PART VII(a): Kangaroo Court
On the morning of March 29, 2012, while riding my bicycle, I hit and killed a man who was crossing the street.
This is not a story of who was at fault, though at first it seemed that way.
We all share a critical responsibility when we go out into the world: the duty to keep one another safe. I failed in that responsibility and, as a result, we will never get back the life of Sutchi Hui. Words cannot adequately express how sorry I am for his death and for the loss to his family. I carry that sorrow with me every day.
This story is about what happened after the accident — and it’s a story that happens all too often: High-profile cases get tried not in courtrooms, but on TV and the internet. Media fans the flames, the public quickly passes judgment, and elected officials bend the system to secure political wins — at the expense of due process and fair outcomes.
The narrative is based on court transcripts, newspaper and online articles, television broadcasts, and extensive notes and journal entries I made in the months after the accident. To protect the privacy of others, I changed some names. All else is true to my memory of what happened.
I am sharing this not for redemption or personal profit, but because this side of the story rarely gets told. To make sure our justice system treats all defendants fairly, we need to speak up when it doesn’t.
I’m Chris Bucchere.
And this is Bikelash.
PART VII (a): Kangaroo Court
6 March 2013–342 days since the accident
Darkness blanketed the Bay Area when I left the house, but as I drove into the city I witnessed a glorious sunrise. Orange radiance all around filled me with warmth and light. As crazy as this sounds, the beams of sun gave me hope that Judge Andrew Cheng would also see the light. I hoped that we could show that this entire affair had been invented by the DA and blown wildly out of proportion by the media.
Then the orange glow conjured up a different memory — of the chain gang I shared the airlock with for a few moments in the county jail. Their orange jumpsuits. Their cuffs and shackles. Their menacing looks — then the unexpected kindness they showed to me, their fellow prisoner.
The orange glow of the sun shining over my head — or an orange uniform. So much was riding on this day.
I drove past the Hall of Justice on Bryant Street. I needed to count the media trucks and look for any signs of live coverage. I spotted at least one bona fide news truck and one other potential bogey, but no antennas were raised, so the likelihood of live coverage was low.
I circled back to Division Street and found a free all-day parking spot. Getting a free spot this close to the Hall of Justice at this hour was a small miracle, and it felt like a good sign. But I still had a ten- or fifteen-minute walk ahead of me.
I hustled to our predetermined meeting place and found the brain trust raring to go: Ted Cassman stood in the center, wearing a dark suit and a conservative blue tie. Julie Salamon held a suitcase full of papers, awaiting their promotion from mere documents to “exhibits.” Fred Levine, the defense attorney who my insurance company had hired to represent me should a wrongful death suit be filed, was holding a giant easel and a two-by-three-foot satellite photograph, mounted on foamcore, of the intersection.
“‘Bout time,” said Ted, looking squarely at me with an admonishing stare. “We’ve gotta get going.”
We positioned ourselves carefully inside the stairwell, just steps outside the courtroom. My dark-suited entourage surrounded me in their best Secret Service huddle. Ted pushed the door open, and we flung ourselves into a sea of reporters.
“Mr. Cassman! Mr. Bucchere! Do you — ”
Before we even heard the rest of the question, my huddle and I had pushed through the outer door and into the vestibule of the courtroom. Seconds later, I was seated in the gallery, with Fred at my side. Ted and Julie began to set up their computers, a projector, and multitude of hardcopy visuals.
I turned off my phone and started doodling in a small notebook. The judge had not entered yet, but some of the other players had. Deputy ADA Omid Talai, third in the pecking order under DA George Gascón, was flitting about nervously. He wore a navy suit, a light-blue checkered shirt, and a purple patterned necktie tied in a full Windsor knot. Seated at the prosecution’s table, next to Omid’s unoccupied chair, was SFPD’s Inspector Lori Cadigan, someone I felt I knew — when I hardly knew her at all.
It was hard not to like Inspector Cadigan. She stood at least 5’9” plus a few inches to account for her black-heeled boots. She wore a black pantsuit with wide charcoal pinstripes under her leather bomber jacket. Once again, a large gold cross hung around her neck.
As I looked at Inspector Cadigan, she glanced back at me inquisitively, tipping her head to one side. This was our third meeting — once in the hospital on the day of the accident, once when she apologetically handcuffed me and led me into jail, and now. Yet there was only a faint glimmer of recognition in her eyes. I looked back at her sheepishly, my lips curling into a smile of greeting. She quickly turned around and straightened her back into her chair, the layers of her hair whipping around and falling down on her shoulders.
Something was wrong with Lori Cadigan. I thought she was on our side. In the hospital, she had told me that this was no big deal. Right before handing me over to the county jail, Lori had sat silently at her desk while her boss, Inspector Dean Taylor, lambasted Gascón for overcharging me and interfering with — and making a mockery of — SFPD’s investigation.
But now I saw something different in that inquisitive look of hers. The warmness, the pleasant demeanor — they were gone. Her face was red, too. Was it because she had just caught me looking at her and taking notes? Or was it something else? What had changed?
Thankfully, Fred interrupted my swirling thoughts.
“Chris, how are you doing?” His voice was barely above a whisper.
“I’m fine, just fine,” I lied.
“You don’t look good,” said Fred. He was right. I felt like a deer in the headlights. I felt moisture in places where I didn’t think I had sweat glands.
“I know — I don’t want to talk about it. Too many reporters.” My eyes darted about the courtroom as I lowered my voice and continued to put more chicken scratches in my notebook.
“Then I’m gonna talk,” Fred said. “You can just listen.” I could feel the warmth of his breath in my ear and I could smell the remnants of his last cup of coffee.
“I went to a small performing arts college, where I had the role of stage manager. I know exactly how this feels. Because I sat next to all sorts of performers — actors, musicians, comedians — at this moment, the moment right before the big moment, when they always had the highest stress levels. I saw these performers, full of pent-up energy, literally at their worst. It was my job to make it as easy as I could. So they could give the best performance they had in them.”
I nodded. I bet he gave this little speech to all his clients. I’m sure he was just trying to help. And because no civil suit had been filed, there wasn’t much else he could do — at least not yet. But he didn’t have to be here. I certainly wasn’t paying him to be here. But I was glad that he came.
Even if I couldn’t do anything but sit silently and take notes, it was nice to have someone putting encouraging words in my ear.
6 March 2013–342 days since the accident
After about forty-five minutes of waiting, listening to Fred’s whispers, and scribbling meaningless notes, Judge Andrew Cheng finally entered the room, and the bailiff called court into session. I crept up to the dock and took the center seat with Ted on my left and Julie on my right, looking rather diminutive next to all the A/V equipment and the suitcases full of documents. Before I could really take everything in from my new vantage point, the attorneys leapt into action, speaking of motions and stipulations in a foreign tongue that I could not comprehend.
“Your Honor, the defense requests a stipulation of the coroner’s report and the traffic signal timing,” Ted said.
“You can’t stipulate the coroner’s evidence,” argued Omid. This was the first time I’d heard him speak. His voice had a tinny quality to it, its pitch indicating that he had more important things to do.
“No one is arguing the cause of death, Omid. You just want to submit autopsy photos into evidence and there’s no need for that because we agree with the coroner’s report.”
“The autopsy photos are relevant to our case! You can’t stop us from including them!” Omid’s voice escalated in pitch with each proclamation.
“Gentlemen, I accept the stipulation for the traffic signal report, but I reject the stipulation of the coroner’s report,” said Judge Cheng, putting to rest the first argument of the day.
“Stipulating” means that both sides — the prosecution and the defense — agree a priori on certain facts that are undisputed all-around. The traffic engineering documents, prepared by city engineer Bryan Woo, showed the light timings for Castro and Market, which were on a fixed cycle of twenty-four seconds green, three and a half seconds yellow, and three and a half seconds “all red.”
The “all red” phase of the north-south light on Castro Street keeps east-west cars on Market Street and pedestrians out of the intersection and allows north-south traffic to finish clearing the 150-foot-wide stretch of Market Street. We all agreed upon the veracity of the engineering documents. No one had a good reason not to agree to a stipulation for that.
But the autopsy photos? They presented an unfortunate dilemma for us. Ted had walked me through the photos a few days before, to prepare me for this. They were horrible and gruesome, and I have since spent many nights, staring at the ceiling, and seeing these photos again in my mind. No one outside of those wearing scrubs or badges should ever be forced to look at autopsy photos — not Sutchi Hui’s family, not Ted, not me, and most definitely not the general public.
We knew Omid wanted to include the autopsy photos just to further round out Gascón’s portrayal of me as a monster, at which had already been wildly successful. We needed to keep those photos private, out of the court record. We knew the coroner assigned “blunt force trauma to the head” as the cause of Mr. Hui’s death. We were not contesting how he died. We could save the judge some time by not calling the coroner as a witness, Ted argued, but the judge sided with the DA.
By being allowed to question the coroner and submit the photos, Omid had won one small victory — and it was an important one. Ted, Julie, and I had evidence to disprove all their facts. Without facts, the prosecution had no ground to stand on and would have to fall back on their other weapon: emotion.
That’s where the autopsy photos would come into play.
I needed to stop thinking ten moves ahead and focus on what was happening around me. As I turned to my right, I felt the air move as a lanky figure strode past the dock.
Omid had called his first witness, Wen-chih Yu.
Wen-chih walked to the witness stand and raised her right hand. She was remarkably tall, with jet-black hair that hung all the way to the small of her back and clung to her charcoal sweater set.
Although this would mark the first time I had seen Wen-chih since the day of the accident, I recognized her immediately from the hundreds of times I had pored over the surveillance video. It depicted her getting off the 24 Divisadero, making a sharp U-turn to position herself in front of the stationary bus, and peering to her left to check for cross traffic. After nearly getting hit by a northbound car proceeding through the green light, which caused her to step back, she again looked to her left and then began to stride through the crosswalk, east to west. By the time the WALK symbol finally turned on, she had already traversed three-quarters of the intersection and had made it almost halfway into my (southbound) lane. Having started crossing against an opposing green light and nearly finishing it during the “all red” phase, she was our most intrepid, forward-positioned crosser.
Of the eight people who crossed before the walk indicator, Wen-chih represented the biggest danger to herself, to me, and to Sutchi. Not only did she jaywalk the most egregiously, but she also walked much more quickly than any of the other jaywalkers. As a result, she cut off any chance I had of moving left to avoid the Huis when they stepped off the curb to my right.
The bailiff swore Wen-chih in, quickly and perfunctorily. She sat in the witness stand, leaning forward, hands in her lap, looking equal parts nervous and vacant. Omid stood up, walked to the witness stand, and kicked into action. After the first few questions, he established that she was indeed in the crosswalk on the morning of March 29, 2012, the day of the accident.
“Why were you crossing the street that morning, Ms. Yu?” Omid asked.
“I was getting off the 24 Divisadero bus and heading over to the Muni station on the other side of the street,” Wen-chih replied.
“When you started crossing, was the ‘white walking person’ symbol showing?”
“Yes,” she said. Wen-chih’s voice quavered a bit; she didn’t seem too sure of her answer. Even though we knew she started crossing almost fourteen seconds before the WALK indicator illuminated, she said she waited for it. I wrote that down in my little notebook, with lots of underlines and stars and stuff.
“What happened next?” Omid asked.
“Well, I saw the collision — the impact — happen right in front me,” Wen-chih said quietly.
“Did you see anything else?”
“No, I only saw the impact. I heard him yelling something like, ‘Hey hey hey!’ And he was going really fast.”
“No further questions, Your Honor.” Omid sat down.
Ted stood up and walked over to the witness stand. Meanwhile, Julie fired up the projector and plugged it into Omid’s government-issue laptop.
“Ms. Yu, you waited until the ‘white walking man’ symbol to cross. Is that correct?” Ted spoke slowly and deliberately.
“And you waited on the curb until the ‘white walking man’ symbol was illuminated, correct?”
After some nervous tapping on the F8 key, the split-screen surveillance video illuminated the projector screen on the right side of the courtroom. I had watched it so many times now that, like the autopsy photos, it kept me awake at night.
The clock in the video showed 8:02:10. The traffic light for north-south traffic — the one I had discovered yet still remained a secret between me and my attorneys — glowed green in the upper left corner of the screen. Wen-chih and a stout man carrying a bag stood about halfway into the northbound lane, in the crosswalk, having accomplished almost 25% of their crossing already. In the still photo of the video, you can see Wen-chih leaning forward to check for northbound traffic, a move that saved her life — twice. For at that very instant, she nearly got creamed by a silver-colored northbound car.
The image shown from 8:02:10 depicts the state of the east-west crosswalk a full seven seconds before the WALK symbol was displayed. (I had taken the liberty of adding the words DON’T WALK back into the video to reflect the state of the crosswalk when the light first turned red, approximately seven seconds before the accident.)
The video recorded in split-screen; the top half and bottom half represented different camera angles. The top half faced east and captured approximately 180 degrees, from the north through the east to the south. The lower half faced west and captured the other 180 degrees. If you were to cut off the top half off and place it to the right of the bottom half, it would form a complete 360-degree panorama.
Julie asked one of the courtroom staff members to dim the lights so that everyone present could see the video more clearly. Ted turned to Wen-chih again and spoke slowly and softly.
“Can you describe what you see, please?”
“It’s the crosswalk at Castro and Market.”
“Can you identify yourself in the video?”
“I’m right there, on the left side of the crosswalk.”
Ted picked up a laser pointer and aimed it at Wen-chih’s unmistakable likeness in the video.
“The person I’m pointing to is you, correct?”
“No further questions, Your Honor.”
Ted sat down. My simmering blood had reached a rolling boil. I wanted to strangle Ted, but I couldn’t reach him, and I couldn’t speak, so I frantically scrawled a note to Julie: “Why didn’t Ted call her out on crossing against the DON’T WALK?”
Julie wrote back: “Because we can’t prove it — not yet. Be patient.”
Julie knew from our past encounters that patience wasn’t my strong suit. But she had the long view in mind. She knew Ted’s master plan. She knew that Ted was executing, in poker parlance, the longest and most painful slow-play imaginable.
And it had only just begun.
6 March 2013–342 days since the accident
The prosecution called their second witness, Angelo Cilia.
I looked at Angelo. He refused to make eye contact with me. Angelo started to answer the requisite questions establishing that he was, in fact, crossing the intersection that morning.
I realized I knew this man — I had seen him before while jogging through the neighborhood near our former home on Cumberland Street. He had an unmistakable triangle pattern on his bald head that I knew I had seen before. I thought it might be a tattoo, yet Angelo didn’t strike me as the tattoo type, especially not the tattoo-on-the-face type.
I tuned in closely, paying acute attention to Omid asking Angelo the more interesting questions.
“Was the pedestrian signal showing WALK before you started crossing?”
“Did you wait at the curb until you saw the WALK symbol?” Omid asked.
“Yes. And I looked both ways, too.” My ears started burning.
“Why do you wait for the WALK symbol and look both ways before crossing the street?”
“Well, I always do that so that I don’t get hit by a car.”
“Or a bike,” Omid said, with palpable disdain in his voice.
I felt every nerve ending in my body prickle. My feet shuffled, and my weight shifted forward, as if all those nerve endings were commanding me to jump out of my seat and shout in frustration at the DA.
Somehow, though, from an even deeper place, a little voice spoke. This voice said only two words, but they were the only two words I needed to hear: wife and daughter.
I sank back into my chair just as Ted rose rapidly from his.
“Objection, Your Honor!” Ted said, pointing and shouting as if someone had just made a joke about his own mother. “I would like the last three words stricken from the record.”
“Sustained. Let the court record reflect that,” said Judge Cheng
Omid, looking satisfied, continued questioning Angelo Cilia.
“What happened as you were walking through the crosswalk?”
“I heard someone yelling, ‘Hey hey hey!’ or ‘Ho ho ho!’ and then I heard the sound of the crash. It was rather bone-crushing.”
It was a perfect sound bite for the evening news. I could almost feel the excitement from the reporters in the room as they jotted that one down.
Omid turned the witness over to Ted, who proceeded to confirm all the basic information, just like he did for Wen-chih. He had Angelo repeat that he was certain that he had the WALK symbol before he had started crossing. Of course Angelo was certain. He was certain that he not only obeyed this walk symbol, but all walk symbols.
Meanwhile, Julie fired up the projector again and advanced the video to 8:02:15.
Recall that the north-south light — the one I was accused of running — turned yellow at 8:02:10. Because of a three-and-a-half-second yellow and a three-and-a-half-second “all red,” the east-west traffic light didn’t show green and the pedestrian signal didn’t simultaneously show WALK until 8:02:17, seven full seconds after the yellow first appeared. The still frame above — from 8:02:15 — showed Angelo and another person, to his left, wearing a blue jacket, taking their first steps into the crosswalk. They’re still a full two seconds early, but they didn’t pose a threat to me or to themselves, because they had just left the eastern curb, stepping into the northbound lane, as I was traveling southbound in the west lane. On top of that, they were walking in front of a stationary MUNI bus.
It’s interesting to note that, as Angelo was stepping into the intersection, Wen-chih — striding rather quickly with long legs — was just about to cross the center line, with the stout man holding the bag a couple of steps behind her.
Remembering what Julie had said — that at this juncture, we couldn’t prove anything about the state of the pedestrian signal — and trying to accept the slow-play strategy, as painful as it was, I listened to Ted wrap up his cross-examination by asking Angelo to identify himself in the video, just as he had asked Wen-chih. Finally, Angelo stood up, made a little motion as if he were straightening his invisible bow-tie, and then stepped down off the witness stand and walked out of the courtroom.
6 March 2013–342 days since the accident
For those not familiar with the preliminary examination (or “PX,” as attorneys call it), it’s basically a mini-trial without a jury, during which the prosecution tries to present enough evidence to convince the judge that suspicion exists of a crime being committed. To that end, the prosecution submits exhibits, calls witnesses, and presents their side of the case in closing arguments.
The PX gives the defense counsel a chance to cross-examine each of the prosecution’s witnesses, to submit exhibits, and to present witnesses of their own, yet the latter two actions rarely happen because the burden of proof — mere suspicion of a crime being committed — lies with the prosecution. Moreover, it behooves the defense to show as little of its case as possible; it’s better to save the meatier bits for the actual trial, should the case end up going that far.
So, the defense counsel — in a hearing like this, with no jury present — gets a chance to refute the prosecution’s evidence and convince the judge to order the charges dropped or reduced. By allowing a judge to throw out or reduce absurd charges from an overzealous prosecutor, the PX is designed as one of the many checks and balances that keeps our system fair.
That said, the standard for determining if someone should stand trial is incredibly low. All it takes is suspicion that a crime was committed. In this case — because we’re not talking about a crime of intent — all the prosecution needed to do was show suspicion of gross, felonious negligence. In my case, responsibility for that rested almost entirely on the testimony of Nathan Pollak. Ted had warned me earlier in the week about the issue with the low standard for passing a PX.
We had other factors working against us as well, he had said. Our plan involved showing the judge that all the eyewitnesses — Wen-chih, Angelo, and Nathan Pollak — would give testimony that directly contradicted those events in the surveillance video, thereby destroying their credibility. But here again, the arcane regulations governing a PX would get in our way: The rules say that “witness credibility” should not be a factor in the judge’s decision to command that a defendant stand trial. So we planned to focus entirely upon refuting the evidence based on facts alone.
Meanwhile, this epic game of Texas Hold ’Em continued to unfold before me. If Wen-chih and Angelo were the hole cards, Nathan Pollak was the flop.
And what a flop he was. Pollak showed up for court in an army-green and slate-colored flannel shirt, black skinny jeans, and black Converse shoes. His sandy-blond hair was matted down except for an enormous tuft that shot up and off to one side. He had several days’ worth of stubble and a wad of chewing gum in his mouth. He lugged a huge amount of gear up to the witness stand — two bags, a bike helmet, and various other unidentifiable objects. When the bailiff spelled his name, P-O-L-L-A-C-K, Nathan raised his index finger while saying, “No C!” as he shimmied up to the witness stand. He plopped down into the chair behind the stand, his array of gear about him, let out a sigh, slouched down, and immediately began to fidget restlessly, his eyes darting about the room.
Is he strung out on crank? I remembered someone telling me that a lot people in the restaurant business are speed freaks — and Pollak owned a café. That’s a frightening possibility.
Omid had already begun his carefully plotted line of questioning.
“Did you drive from the area of Castro and Duboce to Market Street [on March 29, 2012]?”
“Are you familiar with that area?”
“And why do you say very?”
“I’ve lived there for a decade.”
“About how many times have you either walked, bicycled, or driven that stretch?”
“Thousands.” Pollak kept fondling the stubble on his chin and his cheeks — probably just a nervous habit, but definitely a sign of trouble at the poker table. Omid proceeded to establish that Pollak knew the area well by asking him to write the letters SL (for stoplight) at the intersections of 14th Street and Castro and 15th and Castro and SS (for stop sign) at 16th Street and Castro on a satellite map that Omid had printed. The questioning continued:
“Now, you say you first saw the bicyclist at the intersection of Castro and Duboce; is that right?”
“Was the cyclist going in a similar or different direction that you were traveling?”
“Similar, the same.”
“I first noticed that cyclist at Castro and Duboce. I was driving alongside the cyclist, both heading south, which is now Castro Street. It was Divisadero; it became Castro at the turn right after Duboce.”
“Both heading south, both moving at about the speed limit, which is, I believe, twenty-five, maybe thirty miles per hour and — ”
“Objection,” interjected Ted. “Now it’s a narrative, Your Honor.”
Judge Cheng looked away from his computer monitor and muttered, “Sustained.” Omid resumed his line of questioning, his feathers only slightly ruffled by the interruption, it seemed.
“And when you say the cyclist was by your side, was that to the right of your car or to the left of your car?”
“To the right, the passenger side of the vehicle.”
“And the street specifically after Castro and Duboce heading south, having done that route thousands of times, is that block going south from Duboce, is it uphill or downhill?”
“From Duboce to 14th is a slight downhill. I couldn’t say the exact gradient, but it’s probably a slight downhill.”
“Okay. Were you paying attention to the bicyclist?”
“I cycle often to get around the city. In fact, I cycled here today. And as a motorist and a cyclist, I’m very conscious of both motorists and cyclists when I’m on the road.”
Suddenly it made sense why Pollak had lugged all that gear into the courthouse. I bet the DA, learning he was also a cyclist, had asked him to ride his bike to court — expressly to show one cyclist testifying against another. How repugnant, I thought.
I stewed and simmered, breathing methodically, looking at Pollak and trying to read his mind. Why are you doing this? How would you feel if I were doing this to you?
Meanwhile, the direct examination continued:
“Did you notice the cyclist at the intersection of Castro and 14th?”
“Did you notice whether or not the cyclist obeyed or disobeyed any traffic laws at Castro and 14th?”
“The cyclist disobeyed the traffic laws at Castro and 14th.”
“What did you see the cyclist do?”
“I saw the cyclist neither yield to the yellow should there have been a yellow, but I knew the cyclist ran the red light.”
Of course my GPS trail had me and Tobias stopped for twelve seconds a few car lengths back from the limit line on the north side of 14th Street. In other words, Tobias and I had performed a maneuver called “stopping at a red light.”
“Do you recall where you were, if you know, when you saw the bicyclist run that first red light at Castro and 14th?” asked Omid.
“I was stopped at the red light because my vehicle moved faster than his, so it approached the light first.”
“Specifically with respect to the intersection at 15th & Castro, where you have previously designated there is a stoplight there, did you see the bicyclist obey or violate any traffic laws at that intersection?”
“Violate the traffic laws. I observed that.”
“What did you see the bicyclist do?”
“The bicyclist ran the traffic light.”
I sure did! I wanted to jump up and shout, “Of course I went through it — it was green!”
Knowing that the outcome of these proceedings would determine if I would be allowed to watch my daughter grow up, however, I kept my mouth shut.
“Do you know if you remember where exactly you were when you noticed this violation?”
“I was stopped at the red light.”
Now, that made no sense at all because the lights are on fixed timings. Try it. Stop at a red light at 14th. A few seconds after that light turns green, the one at 15th will follow. So — unless you get abducted by aliens between 14th and 15th — you’re going to face a green light on 15th. Shouldn’t Pollak have noticed this in a few of his “thousands” of trips down that stretch of road in his “decade” of living there?
“And how is it that you are able to be stopped at the light when the bicyclist is running a red light — ran a red light previously on 14th?”
“The light is not very long and my car accelerates much faster than a bicycle does. It’s an SUV with a big engine, so it can move.”
Dubious, at best. If his SUV “can move,” it should have caught the green at 15th, just as I did. His original statement to the police hadn’t made any sense; his testimony now made even less sense.
“Okay,” said Omid. It seemed as though he actually believed Pollak’s testimony; maybe he had heard it so many times it had become true for him.
Ted once told me that Pollak wasn’t telling us what actually happened in the moments before the crash; rather, he had cooked up a reconstructive memory about what he thought he saw. There really wasn’t any other reasonable explanation.
I thought Ted was probably right, I just still couldn’t figure out why Pollak was doing it.
“We were, in other words, covering the same amount of ground in the same amount of time with me making more stops,” Pollak explained.
“And did you cover the same amount of ground in the same amount of time from Castro and Duboce to Castro and Market, roughly?”
“Objection! Leading,” barked Ted.
“Overruled,” mumbled The Honorable Cheng, this time not taking his eyes off his computer monitor at all.
I wondered if it was customary for a judge to pay such little attention to the proceedings in his courtroom. I worried that he, too, had already made up his mind about the case after watching my trial-by-media unfold over the past eleven months. Worse yet, I feared he might be returning a political favor to Gascón — meaning that this whole preliminary examination could be a complete sham.
It was a terrifying thought that, despite the promises of our judicial system, I might not be getting a fair shot after all. I quickly banished that idea and tried to stay focused on Pollak.
“Specifically, with respect to that intersection at 16th and Castro, did you see the bicyclist obey or disobey any traffic laws at that intersection?”
“Disobey. Cyclist ran the stop sign.”
“Do you recall approximately where you were when you saw this now third violation?”
“I believe I was pretty much at the same point in the street as the cyclist, kind of head-to-head.”
One again, remarkably, we were head-to-head. But then, for his story to check out, he had to stop at the stop sign that he alleged I ran, then catch up to me again, then overtake me, then have me overtake him, then overtake me again, and then stop at the red light at Market Street as I go “whizzing” by.
Is that even physically possible?
“I want to specifically ask you about the block leading up to Market Street. Did you have your eye on the bicyclist or were you still paying attention, as you said, on that last block leading up to Market?”
“Can you describe the slope, if any, on that street leading up to Castro and Market?”
“The steep is slope — the slope is steep.”
“Steep enough where you could pick up a good amount of speed on a bicycle.”
“Objection, Your Honor. Nonresponsive,” Ted interjected.
“Sustained as to the last statement only,” said Judge Cheng.
“Ask it be stricken, said Ted.”
“Stricken,” replied Judge Cheng.
By theorizing about my speed, the star witness showed, once again, that he had so much prejudice that it was beginning to interfere with Omid’s perfunctory line of questioning.
“Have you ever biked down that street?” Omid asked, not wanting to lose the opportunity for Pollak to tell him that going downhill on a bike might make one pick up speed.
“Can you venture as to how many times you’ve biked down that street?”
“It’s — you’ve already said it’s a steep slope. Can you pick up speed on a bicycle?”
“And do you know that because you’ve done so yourself?
“Have you ever personally violated any laws on your bicycle in that area?”
“No. I try to abide all traffic laws.”
Omid continued, but Ted interrupted, “Objection! Irrelevant. Ask the answer be stricken.”
“No. Overruled,” said Judge Cheng.
Omid asked, “When you were coming down that last block, what happened?”
“The cyclist and I are moving at about the same speed, registered on my vehicle looking at the speedometer close to thirty miles an hour,” said Pollak. His sudden switch to the present tense — a modality usually reserved for fiction — was not lost on me. He’s making up this entire story.
Pollak continued, “The hill, as I said, is quite steep, so both of us were picking up speed whether or not I was accelerating or he was. But we were moving head-to-head at the exact same pace.”
I couldn’t help but notice that the same person who, under oath, said that he tried to abide by all traffic laws, had also just stated — under the same oath — that he was driving 30 mph in a 25 mph zone.
“Let me stop you,” said Omid, probably figuring that Pollak was about to continue into a narrative and give Ted more fodder for objections. “Was he alongside you during this portion of the last block?”
“Yeah. Bit of a drag in our nose-to-nose as I had mentioned before, but yes.”
I didn’t know what a “bit of a drag in our nose-to-nose” was, but it didn’t sound good.
Maybe he was trying to imply that we were “drag racing,” which, of course, had no basis whatsoever in reality — much like the rest of his testimony.
“Are you also paying attention to — or are you paying attention at all to the traffic light on Castro and Market?”
“Your light. Keep trying to tell us what happened chronologically. By your side at about thirty miles an hour?”
“That’s correct. At about States Street, which is halfway between 16th and Market, the light turned yellow. I immediately started to slow down and we were still probably moving the same speed just because my car accelerates faster.”
If we were side-by-side — which we weren’t — and he started to brake slightly and I didn’t, wouldn’t I have overtaken him immediately? Pollak’s story again and again seemed to violate the laws of motion.
“Let me stop you,” said Omid again. “Why did you decide to slow down or not accelerate at around the area of States Street?”
“Because I was following the traffic signal. Yellow means slow, red means stop. I knew that red was coming. It’s a big intersection with a lot of traffic.”
“And are you familiar with what that intersection is like at about 8:00 a.m. on a weekday?” asked Omid.
“Is there a lot of traffic?”
“So, you see the light turn yellow in the area of States Street on Castro. You said you began to either slow down or not accelerate. What happened next?”
“The bicyclist did not slow down.”
“How do you know that?”
“Because the bicyclist immediately overtook me instantly. The light turned red when — ” Nathan stopped to correct himself, as if he realized he was about to the tell the truth.
“Prior to the point when the bicyclist hit the intersection,” he continued. “So the light had turned red. I was still gradually approaching the marked vehicle stop, which is about three or four feet before the crosswalk on the north side.”
This wasn’t precise enough for Omid, who proceeded to pull out an exhibit (People’s Five) — a satellite map of the intersection, lifted from Google Earth. I started to feel pleased, because with every increased level of precision that Omid demanded from Pollak, he dug a deeper hole for the both of them, making it easier for us to prove that all of Pollak’s testimony was make-believe. Omid and Pollak had no idea that we were going to show them that Pollak didn’t arrive at the intersection until more than thirty seconds after the accident.
Omid continued to probe the star witness about the “marked vehicle stop” that Pollak said he was gradually approaching when he claimed I “immediately overtook [him] instantly.”
“Do you see that depicted in People’s Five?” Omid, again asking the obvious, for the benefit of the court.
“I do,” said Pollak.
“And that double crosswalk as you just explained, is that accurately represented in People’s Five?”
While the rules of the road include lots of mandates about double yellow lines, “double crosswalks” don’t exist. I wondered if ADA Omid invented the term to try to incriminate me further.
People’s Five depicted many different lines, but only the three marked below bore any relevance to Omid and Pollak’s ongoing public tête-à-tête. The northern and southern boundaries of the crosswalk (marked in yellow) show where pedestrians are supposed to cross. The limit line at Castro and Market (marked in red), for whatever reason, was drawn several feet north of the northern crosswalk line. In order for Pollak to determine that my light was red when I entered the intersection, he would have had to know the exact position of my front wheel with respect to the invisible plane extending upward from the limit line. And most importantly, he would have had to be located where he said he was, indicated by the red X.
“And you said you began to stop at that initial double crosswalk?”
“I stopped,” Pollak said sternly. He was extra sure about it. His whole testimony — or at least the most important part — hinged upon his claim that he stopped.
“Okay,” said Omid.
“I didn’t ‘just begin to.’ I stopped there,” he said, really emphasizing the word stopped.
“Once you stopped at that initial crosswalk, what happened next?” asked Omid, who seemed ready to move on.
“The cyclist went right past me. The light was red.”
Wait. Hadn’t Pollak said “the bicyclist immediately overtook me instantly” half a dozen questions ago, when he started to slow for the yellow light around States Street?
If I had already overtaken him, more than 200 feet back up the hill, then how did I go “right past” him again? I couldn’t have passed him twice. We didn’t even need to use the video to prove that Pollak wasn’t there until after the accident — because he was already contradicting his own narrative.
“How do you know that?” asked Omid.
“How do I know the light was red?” asked Pollak.
“Because I looked up and the light was red.”
“And after you looked up and saw the light was red — if you know, the moment you saw that light was red, do you know where the bicyclist was?”
“The bicyclist was not in the intersection, he was alongside me.”
Admittedly, at this point, I felt kind of lost. If Pollak had slowed down at States Street and I overtook him, then I overtook him again while he stopped at the limit line, I couldn’t possibly have been alongside him while he was stopped at the red light. I would have to be in three places at the same time for any of this to make sense.
“What happened next?” asked Omid.
“The bicyclist continued through the intersection. My jaw dropped.”
Ted immediately jumped in, still keeping it together, yet unable to mask all of his disdain for Pollak’s words. “Objection, Your Honor. Nonresponsive; ask that the last part be stricken.”
“The last statement will be stricken,” said Judge Cheng, almost reluctantly. But it was far too late to take that one back. I could hear the scratching of pens on paper as the cadre of reporters behind me scribbled his words. I could already hear the sounds of “eyewitness’s ‘jaw dropped’” on the TV news.
“Sorry,” Pollak said.
“It is more than okay,” Omid said, drawing out the word “more.”
I needed to keep writing down Pollak’s contradicting claims so I could help Ted and Julie piece through them, but I felt distracted by this latest display. My hearing had started late; it wasn’t even lunch time yet, but I already felt defeated.
“Once you saw the bicyclist run the red light, what did you see happen next?”
“I saw the bicyclist continue through the intersection almost accelerating. There’s still a downhill as you ride through that intersection.”
He wasn’t there to see whether I was almost accelerating or not. Besides, it would be really hard to gauge an increase in speed, even if he had actually been there — the intersection actually flattens with a slight uphill as you roll over Market Street.
“So do you have a question?” asked Pollak.
“Yes, I do. After that initial crosswalk as you see depicted in People’s Five, is there a downhill shown in that photograph?”
“Yeah. You can see it is downhill continuously into the intersection.”
“Okay. Once you saw the bicyclist go into that intersection, what did you see happen next?”
“I saw the bicyclist intentionally accelerate.”
“Objection, Your Honor,” Ted said, visibly annoyed by Pollak’s claim. “Speculation on the part of the witness.”
“Lay some foundation. Sustained,” said Judge Cheng, leaving the door wide open for Omid and Pollak to explore this newly created intent to accelerate.
“Did it appear as if the bicyclist accelerated?” asked Omid.
“I would ask the last statement be stricken,” said Ted. The reporters had already written that one down, no doubt.
“The last statement will be stricken,” said Judge Cheng. “You may answer that question.”
“Did it appear to you after the bicyclist went through the intersection, through that red light, did it appear that he accelerated?” asked Omid.
“Why do you say that?”
“Because he crouched down and that’s a maneuver to push the weight, your body weight and center of gravity to the front of the bicycle.”
Pollak might have claimed to be a cyclist, but his knowledge of cycling didn’t seem to support this.
“Objection, Your Honor, to the latter part, speculation on the part of the witness,” pleaded Ted.
“Overruled,” said Judge Cheng.
“How many times have you bicycled in San Francisco in your life, conservatively?” asked Omid.
“And you bicycled here today?”
“And the thousands of times you’ve biked just in San Francisco, have you ever crouched down on your bicycle?”
“Have you ever sat up on your bicycle?”
“Have you noticed any change in your speed and acceleration when you are crouching down?
“What happens when you crouch down on your bicycle?”
“The bike moves faster on the front end.”
“And you know that from the thousands of times you’ve biked just here in San Francisco?”
If I’d had any doubt of Pollak’s cycling skills before, this nailed it.
There are at least three maneuvers that road cyclists perform that could be interpreted as “crouching down.” One involves moving your hands from the tops or the hoods to the drops — the lowest part of the handlebars — while lifting your rear over the seat and mashing on the pedals, which is something a cyclist might do to win a sprint.
Another maneuver involves holding the tops with the tips of your fingers, dropping your elbows down and sliding your rear in front of the saddle, bringing your legs in tight and holding them against the frame with your chin nearly on the stem. This maneuver is called a speed tuck, and it’s done to create an aerodynamic position on high-speed, long-duration descents that are nothing at all like Castro Street at Market Street.
On the morning of the accident, I was performing the third type of “crouching” maneuver in cycling: moving my hands into the drops to get the best leverage over the brakes while pushing my weight behind the saddle so I wouldn’t skid or flip over the handlebars from the obscene amount of braking I was doing.
The video shows that I didn’t turn the pedals at all through the intersection, so it’s hard to claim I was sprinting, and a speed tuck would have been stupid and dangerous — and pointless — under the conditions of the Market Street intersection. I was crouching because I was braking. Anyone familiar with cycling would know that.
But I feared this “crouching down” nonsense would provide more fodder for the TV news, and might even be used later to sway jurors who only understand cycling enough to know that they hate people who do it.
“After you noticed the bicyclist crouch down and you said it appeared as if he picked up speed, what did you see happen next?”
“I saw the crosswalk start filling with pedestrians and I saw the bicyclist make a maneuver slightly to the left, almost as if to avoid a collision, but it was obvious that it was going to happen from my — ”
“Objection, Your Honor,” said Ted, who seemed to catch Pollak every time he jumped too far ahead in the script. “Everything after ‘as if to avoid the collision.’”
“Sustained,” said Judge Cheng, who looked bored. “Lay foundation,” he added, which was basically his way of inviting Omid to continue this topic by asking a series of leading questions.
“Did it appear obvious to you that there was going to be a collision?” asked Omid, weaseling his way around Ted’s objection.
“Why did it appear obvious to you?”
“Because the — there were pedestrians in the crosswalk, the cyclist was moving fast, and I know this from the speed I registered at before I stopped at the stoplight and observing that — or it appeared to me, that the cyclist was accelerating and the crosswalk had enough pedestrians in it that a collision would have been unavoidable at the speed the cyclist was moving.”
It’s pretty easy to predict the future when writing about the past, I thought.
Finally, someone called for a ten-minute recess.
6 March 2013–342 days since the accident
“We’re back on the record. Mr. Pollak is present, counsel, and Mr. Bucchere are present,” the court reporter said as people shuffled back into their seats.
“May I approach, Your Honor?” asked Omid.
The judge agreed. Omid got up quickly, grabbed his laptop, and strode to the witness stand where Pollak was sitting with all his gear. That laptop had the video on it, in full-screen mode. I knew this because it was the very same laptop the prosecution was sharing with us so that we could play select portions of the video in front of some of the witnesses — as we had done for Angelo and Wen-chih — but this was different. This time, ADA Omid wanted to play the video privately — not on the projector screen — but in front of his witness under direct examination.
Ted was already out of his seat and hightailing it over to the witness stand to join the fracas.
“I’m going to show you this video,” Omid said quickly to Pollak. “I’m not going to ask you any questions until afterwards.”
“Okay,” said Pollak, playing along. Pollak had certainly watched the video many times already with the ADAs. Meanwhile, Ted was having a fit. Suddenly it occurred to me why he was so upset: During the cross-examination, we intended to surprise Pollak by showing him that his car arrived thirty seconds after the accident. If he were allowed to see the video now, he might notice this important detail and spoil our big reveal that would invalidate his testimony.
“Can we have a designation where he’ll start and stop?” Ted asked, his voice indicating a certain urgency.
“It is starting from the beginning, 8:01,” said Omid as he pressed play on his laptop. Pollak began watching the video, wide-eyed.
“I object to that, Your Honor,” Ted said firmly. “Could we stop it, please?”
“Sure,” said Judge Cheng, but he did nothing to make sure that anyone acted upon his instructions. The video kept rolling, Pollak’s eyes glued to the screen.
“I need to know what the objection is,” Omid said.
“All right,” Ted conceded, but he continued to hold firm on not letting Pollak watch the video. “Could we stop it, please?” he asked for the second time, which was ignored just as it had been the first time.
The two attorneys — Omid and Ted — conferred with Judge Cheng in front of the bench. I couldn’t hear their conversation, but I wasn’t paying attention either, because something much more interesting was happening over on the witness stand. Pollak’s eyes were still glued to the computer screen — and he was reacting in response to what he was seeing. I scribbled a note as quickly as I could and passed it to Julie.
“HE’S WATCHING THE VID RT NOW!”
She scribbled something and passed the note back to me: “I know!”
After a few more moments of private discussion among Omid, Ted, and Judge Cheng, it was time to go back on the record. After hearing Ted’s argument — whatever it was — the judge was not impressed.
“Objection overruled,” Cheng said, back on the record.
“So I’m going to play the video from basically exactly 8:01 a.m.,” said Omid. I could tell he was gloating a bit. Yet so was I, because I knew Pollak had already watched the video. And I’m sure everyone in the courtroom knew that he had, as well.
Omid continued: “If you can get our attention — ”
But Ted stopped Omid in his tracks. “Can we stop it again, please, for a second?” he asked for the third time.
“Yes,” said Judge Cheng. The judge said the same thing last time, and the time before that, but nobody had carried out his order and stopped the video.
Now Ted started getting fired up himself, his face turning red. We were caught way off script, so I knew I was watching the best criminal defense attorney in the Bay Area fly by the seat of his pants.
Ted spoke in short machine-gun blasts, rattling off questions. “Was it playing? Can the court inquire of the witness whether the video was playing while we were having our sidebar?”
Omid, the judge, the bailiff, and a few other folks raised their heads as if to ask, “Who, me?” Finally, Judge Cheng turned to Pollak and asked him point-blank: “Sir, did you watch the video? Was it on?”
“It was on,” Pollak replied, after a short pause, dodging the question.
I could tell that Judge Cheng was finally paying attention. “So, did you actually watch it during the time that it was on?” he asked.
“No, I…” Pollak stammered.
Given that his entire testimony was false, telling a lie about not watching the video in front of the entire courtroom while under oath was just par for the course. But I still couldn’t believe he had just lied, straight to the judge’s face, in front of an entire courtroom of people who obviously knew he was lying, unless they weren’t paying attention.
Everyone in the courtroom had watched him react to the video, his eyes never once looking up from the computer screen. He even chuckled and gesticulated a few times while watching it. He wasn’t going to fool anybody — least of all a judge in his own courtroom. So why even try? Is this guy a pathological liar?
Pollak’s cheeks started to turn red. His stubble-stroking kicked into high gear. Ted approached the witness stand, leaned his torso forward, and brought his face within inches of the witness who had just committed perjury. At this point, Ted delivered a line that was definitely not in anyone’s script. In fact, it seemed lifted straight from Law & Order.
“You’re under oath, sir,” Ted said slowly and deliberately, wrapping so much contempt around the word “sir” that I could almost feel its reverberations throughout the deathly-silent courtroom.
Pollak breathed in. With his eyes cast downward and fiddling with his hands nervously, he said, amid a barely-audible exhale: “Yes, I did watch it.”
Midway through the word yes, I felt the blood rushing into my head. I was enraged and ready to pounce.
Your Honor, the witness just admitted to perjuring himself! And you know what? He has been lying under oath all fucking morning! He also knowingly gave false statements to the police. I ask that we strike all of his testimony from the record and that you hold him in contempt of court!
Oh, how I longed to speak those words to Judge Cheng — how I longed to call a spade a spade. I had no clue why Pollak was lying on the stand, but his account of what he thought he saw that morning had the ability to land me in jail for six years. We had proof that his car didn’t arrive at the intersection until more than thirty seconds after the accident, which shows that he was lying about everything that happened because he wasn’t there.
But I didn’t stand up. I didn’t say anything. And moments later, Judge Cheng — as if nothing out of the ordinary had just happened — perfunctorily asked Omid to rephrase his question. I don’t know what made me more incensed: that Pollak had been called out for lying under oath or that Judge Cheng didn’t even seem to notice.
“Rephrase your question,” commanded Cheng. I didn’t even know what question he was talking about. I was too hung up on Pollak committing perjury. And admitting to it.
Omid looked satisfied. “Okay. I’m going to play the video, which you’re going to watch right now. And it’s okay that you just watched it, and then I’m going to ask you some questions.”
Omid wrapped up his questioning by asking Pollak to confirm that he saw his Honda Element at the scene, that a bus was also there, that there were pedestrians in the crosswalk, and that there were others who were probably waiting to cross. Any person who has watched the video a couple of times could have answered these questions; Omid asked them in all likelihood only to confirm that Pollak was actually at the scene. No one disputed that. Exactly when he arrived at the scene was a different matter.
Omid then addressed a delicate subject: “Why did you write yourself this note or email with respect to what you saw on the day of this incident?” he asked.
“I believed that I witnessed something that was going to result in legal proceedings, and I consulted a family member, who was a public prosecutor, and he said, write it down.”
“And do you recall in that email saying that there was at least twenty people in the — ”
“Objection, Your Honor,” Ted interrupted.
“Well, finish the question and then I’ll rule on the objection,” said Judge Cheng.
“Do you recall giving a number about how many people you believed were in the intersection at the time of the collision?”
“Objection. Hearsay,” said Ted, again trying to derail this line of questioning. I didn’t see the point, but Ted had more experience with these matters than I.
“I’m waiting for the next question,” said Judge Cheng.
“And how many people do you remember thinking that there were in the crosswalk inside the intersection at the moment of the collision?” asked Omid.
“Having just counted you said about seven, and I think you said five or six right on the sidewalk, do you know why you said twenty?”
“It was quite a commotion. Yes, it was a commotion and per the video, we all just watched, right after the moment of impact, several other people run into the intersection.”
That’s quite a contrast to Matier & Ross’s reporting on how their police sources said the crosswalk wasn’t crowded.
“Whether to help or to catch the bus or to run to the MUNI station, the cumulative amount of people I believe that were present during, say, the thirty seconds before and after the incident was at least twenty.”
Considering that Pollak didn’t arrive at the north end of the intersection until thirty seconds after the accident, how could he have not only seen the accident itself but also witness what happened thirty seconds before? In reality his actual arrival time might explain why he thought there were twenty people in the intersection. By the time he showed up, there probably were!
I started fidgeting with my pen. How many more seconds until Ted got to cross-examine? Julie touched my arm and asked me to stop fidgeting, lest I draw attention to myself.
All of sudden, everything came to a screeching halt.
“I have nothing further. Thank you,” concluded Omid, and Judge Cheng called for the cross-examination.
The swirling thoughts and emotions in my head dropped to the floor. Ted, Julie, and I had spent countless hours preparing for this moment. Finally, here we were: about to topple this house of cards.
>> Continue to PART VII (b): Kangaroo Court, Continued
For a closer look at the research behind Bikelash, visit the companion GitHub project.
Originally published at Chris Bucchere.