Caught in the cracks

John Macomber wasn’t in any hurry when he left home to meet a buddy at the emergency room. It was coming up on 9 p.m., which is usually Macomber’s bedtime, when his friend called, asking for a ride home. It wasn’t that far from Thermalito to Oroville Hospital and back, so he figured he’d be home and in bed by 10 at the latest.

It was the last weekend in May. Warm. Clear. Macomber had on the shorts and flip-flops he’d worn most of the day and, as usual, his favorite fishing cap. When he pulled into the hospital’s upper-level lot, he parked by two patrol cars. As he got out of his truck, he noticed a flimsy orange plastic fence rolled out across the driveway. Though he was less than 50 yards from the building, he had to walk down a hill, across the lower level, and back up another hill to the entrance.

As he approached the automatic doors, a guy in a wheelchair came rolling out of the waiting room, yelling about a fight inside. Macomber says he knew by the way the guy was acting that something bad was going on—"I just wanted to get back to my truck and get out of there.”

In his haste, he decided that, instead of walking all the way around, he would just step over the plastic fence. As he did, he heard someone yelling.

“I turned around and, man, there was this huge bright light in my eyes. I couldn’t see anything. I didn’t know who was behind it or what they were going to do. I just knew they were coming at me.”

He raised his hand to shield his eyes and took a step back, waving his arms and yelling to take the light off his face. “Next thing, there was somebody on both sides of me. I still had this light in my eyes, and I hear somebody saying, ‘Should I shoot him? Want me to shoot him?’ I just freaked out, and started yelling and swinging my arms to get them away.”

Macomber says he’s not sure when it sunk in that this was the police trying to bring him down. “In my mind, I’d been heading back to my truck, and that’s where the cops were. When I hit the ground, I felt something hitting me in the back, then I felt the handcuffs.”

Certain they had him confused with whoever caused the ruckus in the emergency room, and Macomber tried to tell them they had the wrong guy. But his initial reaction at the fence, coupled with a mouthful of slurred and stumbling words, gave officers the impression that Macomber had been drinking. He says before he got the first sentence out, one of the cops said, “He’s drunk. Get him.”

Macomber’s speech is usually the first indication that he has some type of disability. The harder he tries to find words in his head, the more mixed up they come out. His former wife, Patty Myers, says when he gets nervous or feels threatened, he tends to panic, which makes it even more difficult because he knows what it is he wants to say or do, but he just can’t get the words out.

The police report states that on the way out of the parking lot, Macomber spit at Officer John Alvies, who then stopped the car and covered Macomber’s head with a spit mask. Once that happened, it didn’t matter whether Macomber had been drinking; the charge went from public intoxication to battery on a police officer with injury.

Macomber, who claims he’s innocent of the charge, was bailed out the next day by Myers, who says his condition caused her concern. “He was at maximum stress. His back was bruised, his hands were swollen, and his wrists were marked from the handcuffs.”

Myers got photos of his injuries and took him to Comp Care Medical Clinic to have them documented. Myers says Macomber lives independently and manages quite well to take care of himself. “But when I saw how the court system was handling his case, I knew he had fallen through the cracks. I decided to help him fight this.”

Macomber has had two public defenders who he claims have been unwilling to do what is required to uphold his constitutional right to a trial with counsel present. He’s been to court twice, but he says his defense was never discussed in his presence. At his last court appearance, he learned his public defender had already made a deal.

It’s called diversion, a program often used by the court system for people with mental or physical disabilities who are guilty of certain crimes. Macomber’s diversion includes the following stipulations: Don’t fight the charge, submit to two years of close monitoring, enroll in an anger-management group, and attend weekly AA meetings. At completion, if he does everything he’s ordered to do, he walks with a clean record. Such a deal!

Maybe it is, if he’s guilty, but Macomber says he’s not, and so far no one has produced evidence to prove he’s not innocent. Further, without a trial, Macomber will never have the opportunity to present evidence on his own behalf that might prove he should never have been in the patrol car in the first place.

Myers, who has collected two thick files of information about the case, says she has material that should be presented in a court, including the pictures of the injuries taken when she picked him up, but neither of the attorneys would take the time to look at them.

“It’s like everyone already decided his outcome without even listening to his side. The only thing we keep hearing is that he could never win a trial, so he should take the diversion and forget about it. But that’s just not right.”

Rochelle Forbis, Macomber’s second public defender, who made the diversion deal, said his disability is exactly why she went with diversion. “It was in his best interest because the case involves a cop. John is obviously disabled and can’t speak well. A jury would be inclined to believe the cop because John has such a hard time expressing what he means.”

She said she never realized Macomber wanted to take the case to trial. “But I’m not in that department anymore,” she said. “Now, it’s up to Hoptowit to do it.”

Dennis Hoptowit is the third attorney assigned to the case. Myers says her phone calls to his office have so far gone unreturned. Three attempts by the CN&R had the same result.

Macomber’s first attorney, Robert Radcliffe, doesn’t remember Macomber expressing a desire to go to court. “I do recall him saying he felt the charges were inappropriate,” Radcliffe said. “I agreed with him. The charge was that he spat. That shouldn’t have been a felony.” Radcliffe did get the charge dropped to a misdemeanor, which automatically transferred the case to a misdemeanor attorney.

Myers says at the time Forbis was appointed they had hopes she would pursue some type of defense. “Then we got to her office, but she had left his file at home, so she couldn’t discuss it with us.” Myers asked about getting a public-defender investigator involved, and though Forbis told them she had one, he was never brought into the case.

Oroville Police Chief Kirk Trostle seems to be the only one interested in listening to Myers and Macomber. Until last Friday (Jan. 30), Trostle was unaware of the case and had no idea Macomber was injured during the arrest. Myers admits this was an oversight on her part. She failed to sign and return a complaint form to OPD that would have notified Trostle of the events.

Macomber, who says he has no idea who or what hit him, hasn’t accused anyone specifically. “I remember feeling a blow to my back, but I don’t know if it was a cop, a security guard. No idea. But I want to find out.”

Trostle says he does too, and opened a formal investigation on Friday. He said situations like Macomber’s are unfortunate and come about because of a “failure in the system” for people with disabilities.

“We [police officers] are at the gate; we’re the first person to see a suspected perpetrator. It calls for a special type of training when dealing with people who have disabilities.”

He said the county has been looking at a crisis-intervention program to act as an advocate for individuals. “Hopefully, the protocol for cases like John’s is about to change.”

In the meantime, Macomber returns to court next month—not to try the charge, but rather to determine his compliance with the diversion program. He says he has not signed the diversion papers but has done everything indicated.

“I’m not going to sign,” he said. “Once I do that, it’s like saying I’m guilty, but I’m doing everything that’s written in the orders. It’s not about doing the program, it’s about being innocent.”