On April 7, 1988, two deputy U.S. Marshals came to the building and salvage business of the Span family in Phoenix, Arizona, looking for a federal fugitive named Mickey Michael. Two widely disparate views of what happened that day would emerge.
Marshals David Dains and Garry Grotewold said they were attacked by Jerry Span and his sister, Darlene. The marshals said they were beaten, bitten and that Jerry Span tried to steal his pistol.
Darlene and Jerry Span told a markedly different story. They said that they told Dains and Grotewold that while they had a brother named Mickey Michael, he was in his 30’s while the Mickey Michael the marshals were seeking was in his 60’s. But the marshals didn’t believe them and attacked them, knocking them to the ground and smashing them into a fence. When their 72-year-old mother, Virginia, began taking pictures with a Polaroid camera, she was attacked as well, they said.
During the tussle, Darlene and Jerry’s brother, Pete, was taking pictures with a 35-millimeter camera. The camera was seized and one of the marshals grabbed the film canister from Pete’s shirt pocket and crushed it with his boot heel, destroying the film.
Darlene, Jerry and Virginia were taken into custody. They later learned that earlier that day, Dains and Grotewold had visited the home of 74-year-old Bill Span, Virginia’s husband and Darlene and Jerry’s father. The marshals described their visit as benign. Bill Span said he was punched and thrown against a wall and the house was ransacked. He died two months later.
Federal prosecutors charged Darlene and Jerry with assaulting the marshals. The Spans rejected an offer to plead no contest in return for five days in jail. Instead, they paid $50,000 to hire Oscar Goodman, a well-known criminal defense lawyer (later elected mayor of Las Vegas), to defend them.
At trial, Dains and Grotewold said Jerry Span punched Grotewold without provocation and then reached for Grotewold’s gun. When Dains attempted to help subdue Jerry, Darlene attacked him, knocking his glasses off, clawing his face and permanently damaging his knee, Dains said.
When the marshals attempted to seize the Polaroid camera from Virginia, she resisted and was arrested, the marshals testified. The Polaroid photographs that had been produced by the camera were on the ground and were confiscated by marshals.
Dains was particularly contemptuous of the Span family, describing them on the witness stand as “codified (sic) country backwoods (obscenity).”
In fact, Virginia and Bill Span and their 10 children were well known in Phoenix for running concession operations at sporting events, state fairs, festivals and other events for more than 30 years. They operated a Christmas tree business that was so large that their land was called “Christmas Tree Corner.” A reporter in the Phoenix New Times described the family this way: “They were a God-fearing, hard-toiling, salt-of-the-earth clan born and raised in Phoenix.”
Two witnesses who were customers at the Span business at the time of the incident testified that Dains and Grotewold handed a flyer to Darlene and said they were looking for Mickey Michael. They said that Darlene acknowledged she had a brother by that name, but he was at least 25 years younger than the man the marshals sought. She then turned and said she wanted to make a copy of the flyer. Dains then grabbed her by the hair and smashed her into a fence.
They said Grotewold, who weighed more than 200 pounds, grabbed Jerry, who weighed about 130 pounds and put him in a headlock. Grotewold had written in his arrest report that not only did Jerry try to grab his handgun five to 10 times, Jerry struck him at least 30 to 40 times. “I feared for my life,” Grotewold had written.
The defense witnesses said that Jerry, Darlene and Virginia (who was not charged) had done nothing wrong. Jerry and Darlene did not testify.
On March 3, 1990, the jury convicted Jerry and Darlene. Jerry was fined $1,000 and sentenced to four months house arrest. Darlene was fined $6,000 and sentenced to three months in a community center and three months house arrest.
Undaunted, Jerry and Darlene retained renowned defense lawyer Alan Dershowitz to handle their appeal. Among other arguments Dershowitz claimed that the jury had not been properly instructed that Jerry and Darlene had the right to resist excessive use of force by law enforcement. The Ninth Circuit U.S. Court of Appeals rejected the appeal, noting that Goodman, the Spans’ trial lawyer, had failed to ask for the instruction so the issue had been waived.
Following the loss in the Court of Appeals, Darlene, acting as her own attorney, filed a petition for error coram nobis, and a motion to vacate the judgment against her and her brother alleging that Goodman’s failure to request the instruction on the right to resist excessive force had deprived them of an a constitutionally adequate legal defense.
The United States District Court denied the petition and motion and Darlene and Jerry Span appealed. By the time the case came up for argument in the Ninth Circuit, a civil damages lawsuit that Darlene and Jerry had filed against Dains and Grotewold had gone to trial and the jury had rejected Darlene and Jerry’s claims. During the course of the lawsuit, however, Darlene was finally given the Polaroid photographs that her mother had taken during the incident. The photographs clearly showed Darlene in a headlock and Jerry being wrestled to the ground.
When Darlene argued her case in the Ninth Circuit Court of Appeals, she brought the photographs with her and provided copies to the judges. In February 1996, the Ninth Circuit granted the motion to vacate the convictions and the charges against Darlene and Jerry Span then were dismissed. The Spans filed federal lawsuit seeking compensation, but the lawsuits were dismissed.
– Maurice Possley
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