The case of Darlene and Jerry Span, which we have followed since 1990, has finally turned out well. The Ninth Circuit Court of Appeals has overturned their convictions on federal charges of "assaulting" federal officers. The Spans were, according to eyewitnesses, attacked by two federal marshals who without provocation, roughed them up. Darlene struggled with the Marshal who had grabbed her hair and thrown her against a fence.

The marshals had arrived at their place of business in Phoenix, Arizona with a wanted poster for a 63 year old fugitive who they thought might in fact be a Span brother (not so --the brother was 39), failed to identify themselves, and received brief attention from the Spans who said, no, that's not our brother. When they turned to help customers, the marshals assaulted them.

The Spans were arrested on charges of assaulting the marshals because the had dared to struggle against unreasonable and excessive force. In the trial, the judge told the jury that the law required that they lie there and take the beating. The jury believed that the judge had given them no choice but to convict, even though they thought the law was wrong and the system had abused the Spans. They wrote letters and talked to the press. FIJA highlighted the case as illustrative of what happens when jurors are not told the truth about their powers as jurors.

Two prominent attorneys had handled the Span's case, one for the trial (Oscar Goodman of Las Vegas) and one for the appeal (Alan Dershowitz). On appeal, Dershowitz argued that the judge had not given the right instruction to the jury. The proper instruction would have pointed out that citizens under U.S. law have the right to resist the excessive use of force by law enforcement officers. Excessive use of force by officers is not considered to be a good faith performance of duty. The Ninth Circuit Court of Appeals agreed, but said that since the defense council had not formally asked the judge for the correct instruction, they let the conviction stand.

So Darlene Span filed again, pro se this time, after consulting with paralegals, retired lawyers and an attorney just out of law school, to reverse the conviction. She argued that Goodman was incompetent, and her 6th Amendment right to effective assistance of counsel was thereby denied. (Attorney Dershowitz had not raised the issue of incompetence of counsel.) This time, the court agreed.

The court said: "While we recognize that not every instance of counsel's ineffective handling of the jury instructions requires vacation of the underlying conviction, the egregiousness of the facts and the magnitude of trial counsel's incompetence in this case require that we do so.

REVERSED."

Darlene and Jerry are still in need of legal assistance, and funds to continue the fight--a lawsuit filed by the marshals is still pending. They lost their suit against the marshals; the judge told the jury that they had, after all, been convicted of assault. Someone is also needed to help with writing. Contact them at: 110 N. 24th St., Phoenix, AZ 85034. 1-602-273-1903.

ARKANSAS

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