.Case of the Unfortunate Haircut

On February 15, 1989, while I was walking to my gig at Laughs Unlimited Comedy Club in Old Sacramento, the victim of an armed robbery positively identified me as her assailant. I was arrested for seven armed robberies, and it took the police 29 hours to figure out they had the wrong guy. While in hard lockup I learned how to con people, I made criminal connections, and I was assimilated into a gang–pretty much everything you need to make it in show business. This is how it happened.

The Haircut

I wanted a new look for the stage, an edgy look. The beautician cut it short with spikes and dyed it black. She added mascara and eyeliner, and I had the crazed look I wanted. She said, “You look dangerous.”

It’s my first night out with my new haircut. I’m in the basement restroom of Dos Padres Restaurant in Old Sacramento, two blocks from Laughs Unlimited. It’s 35 minutes until I go onstage and I’m getting up for my set. I put on mascara and eyeliner and throw punch lines into the mirror. I see a Planned Parenthood sticker on the condom machine and say, “I believe in Planned Parenthood. There is a right time and a wrong time to have parents.” I dance on my toes, warming up like a prizefighter. 

“I am The Reframe Wizard. You can say, ‘California public education is 49th in the nation,’ or you can say, ‘Thank God for Alabama!’ ” Jab, jab, uppercut.  

“How did I get so successful? I was a salesman going door to door selling No Soliciting signs.” Boom!

I head for the stairs but there is congestion, I can’t get around three big cowboys. They grab my arms and yell, “Don’t freak out! Don’t freak out!” 

Who grabs a total stranger and yells, “Don’t freak out”?! I flap my arms up and down, giving all three a ride. It seems that three drunken cowboys are forcing me to square dance. Or maybe I’m in the hands of an organ harvesting cartel and am going to wake up with no kidneys. I try to remember if I had signed my organ donor card. 

I yell, “Police!” 

They go, “Yes!” 

I yell louder, “Police!” 

They go, “Yes!” 

And I go, “Police?”

“Yes. We’re undercover.” 

Oh, thank God they’re cops. I am so relieved. I figure it’s time to straighten this out, “Hey fellas, what’s up? I’ve got a show to do, I’m on in 30 minutes.” 

They handcuff my hands behind my back. They walk me outside and stand me against a brick wall. I’m being kept from getting to my gig and it gets harder to breathe. It keeps getting darker, it keeps getting later. 

That’s Him

I apparently look guilty to everyone with my hands handcuffed behind my back. Everyone passing by stops to take a long, hard look at what the bad guy looks like. (He’s got to be guilty. Why else would the police have him?) I have never seen people look at me with such revulsion and disgust, and I’ve played some rough rooms. I don’t quite get what is happening yet, but this is bumming me out, I need to be in an elevated mood to perform standup at Laughs Unlimited Comedy Club. 

The cops bring forward a well-dressed young lady who stops 20 feet from me. She has mascara running down her face, my guess from crying. Her hair hangs in tangles, she is breathing hard, and she looks at the ground like she is afraid to look at me. My arresting officer tries to get her to move towards me, but she refuses to come closer. He asks her to look up, and she follows his arm and pointing finger to look at me for three seconds. I see her grimace, purse her lips and nod. “That’s him.” Then she turns away and never looks at me again. 

I want to ask her, “Excuse me miss, what exactly do you mean, ‘That’s him’?” I do not know at this point what I am being charged with. In a perverted twist of double-blind eyewitness theory, all parties, both the police and the eyewitness, know I am the suspect, both know what the crime is. The only “blind” participant is me. 

As “Sarge” reads me my rights, he tells me it is for armed robbery. I urge him to walk two blocks to the comedy club where I have worked all week. His youngest deputy says, “Sarge, you sure we got the right guy? He’s got all these comedy club paycheck stubs in his wallet.” Sarge looks at the night sky, takes a deep breath and says, “I got a positive ID.” He spins me around and hisses, “Gotcha!”

I’m pushed into the back seat of a police car by a hand on the back of my head. I’m not going to my gig, and I feel my spirit leave my body. The car floats through the streets of Sacramento, past buildings I have been in but now are strange, cold, distant. We turn into the rear of the police compound on 7th and H. Two cops walk me across the parking lot towards the buildings, stripping me as we walk. They take my wallet, they take my belt, everything out of my pockets, and look them over as we walk. 

From the moment Sarge had said, “Gotcha!”, their attitude towards me changed from fear and suspicion to contempt. Police you meet in public are trained to be nice, in jail they treat you like the scum of the earth.

You’re In The Jailhouse Now

They take all my possessions except for my contact lens case and put me in a holding cell packed with 30 men who are in for everything from peeing in public to murder. I’m wearing a silk white jacket, a skinny black tie and makeup. Wearing mascara and eyeliner is not the look you want in jail. 

Hours pass. The tank is hot with the smell of men, I close my eyes and doze standing up. Two men are talking, they’re here to stand trial for murders they had allegedly committed in Folsom Prison. 

“Hey man, I hear they’re having trouble with the pool up at Folsom.” 

“What’s wrong with the pool?” 

“The water keeps turning red.” Har, har, har. 

There is no easier way to learn how to con people than to go to jail, and I quickly get the hang of it. A six-foot six-inch skinhead steps in front of me, he has a swastika tattooed on his cheek. He pulls my arrest sheet out of my hands, tantamount to a bitch slap. The cell falls silent, they all want to know what the weirdo is in for. The skinhead moves his lips. I’m amazed he can read.

“Armed robbery. You?” There are murmurs of approval. 

He frowns. 

“It says seven counts of armed robbery. You? You committed armed robbery seven times?” 

I shrug. “Who keeps count?” 

Gasps of admiration. Everyone is smiling and nodding their head at me. I’m thinking, “I could make it big here.” 

My eyes are burning, I know I’ve got to take my hard contacts off and put them in my carrying case, but I do not want anyone to know of my vision weakness. A place opens against the wall, I sit down and lean back. It takes me 30 minutes to take off my contacts by covering my lens case and removing my lenses with movements that look like I have an itch on the bridge of my nose. I get them into my lens case undetected. 

They call 20 of our names and we file into a second waiting room where we are given a quarter and get to use a pay phone. I call my brother and explain that he’ll need to purchase a bail bond for $50,000. 

I hear the big guy from Folsom Prison counseling a young man to not follow a life of crime, but to get out, go home and take care of his family. The younger man says,  “But I go crazy when the baby starts crying at night.” 

“Well, when the baby cries you get up and get it a bottle. You take care of that baby and do not follow me here. It doesn’t get better here.” I am fascinated by this jailhouse shaman, this wise convict counselor, and want to get a look at him. He senses me looking at him and spins around, his red eyes bore into mine. His glare says, “Fuck with me and I will kill you.” I get the message loud and clear and we never make eye contact again. 

They lead us into a big wire cage for strip search. We stand in a circle facing the center and we’re ordered to strip. I try to get into a Gandhi state of mind, but I am so mad and so afraid that my veins stick out and my muscles twitch. Is it a good thing or a bad thing that I look like a homicidal maniac? 

We strip and are told to put our hands over our cocks while cops with billy clubs stand behind us. One at a time we bend over to grab our ankles while a cop gets down on one knee to look up our ass. The kneeling cop tells us to cough three times. I think, “At last, I’m receiving the very best of Republican health care.” 

I remember a joke about an inmate who had saved a fart for this moment, but I doubt it would get a big enough laugh to warrant broken bones. We are given uniforms; they’re like blue flannel PJs with white stripes, along with cloth booties and a towel. They take us to our cells and tell us which bunk is ours. This is a relief–the way to make time pass in jail is to sleep. 

Saved By An Angel

I lay in my bunk and think of the guy out there who did the robberies. What if I’m a dead ringer for him? What if seven people take the stand, point at me, and say I robbed them at gunpoint? There is no solace in being judged by 12 of my peers. My peers are dumb as fuck. I’m going to convince a lifetime Walmart cashier and a guy who hands out shoes in a bowling alley that seven people who are sure I robbed them have it all wrong? 

I fall asleep in my bunk, but even in sleep I still hear the sounds of the jail; steel doors slamming, voices shouting, canned laughter from a TV. 

It takes the police twenty-nine hours to figure out that they got the wrong guy. I am saved by my investigating officer, Detective Allan Aires, an African-American man who takes the time to look into my innocence. As he grills me about my whereabouts for the day, I tell him that they have the wrong guy. 

“That’s it? You’re just saying that you’re not the guy?” 

“Yes sir.” 

“How many times have you been arrested?” 

“I’ve never been arrested in my life.” 

“What? You’ve never been arrested?” 

“No sir. Never.” Detective Aires spins away, runs his hands through his hair, trying to square my lack of a record with the charges of seven armed robberies. He shakes his head. “OK. I’ll check out your story, but if you’re lying to me, I will fuck you up.” 

Detective Aires saved me. He goes away for 24 and returns to say, “I believe you.” 

When the jailhouse cops begrudgingly take me to get my belongings for release, they are incensed that they have to let me go: “Guess there’s not enough on you to make it stick this time, asshole. We’ll be waiting for you.”

In The End It Was Hair and Skin

After I get out on February 17, I contact Detective Aires and he agrees to try to expunge my record. I meet him down at the jail and we talk about my case. He is deeply concerned about how I’m taking my experience with his department. He laughs, “You’re not going to be too hard on us from the stage are you?” Then he shows me a picture of the man they finally arrested for the holdups. 

“Richard, you can see the resemblance.” It’s a Polaroid of a skinny Italian man with spiky hair. The only resemblance is our hair and the color of our skin. 

Tell It To The Judge  

I’ve been seething about my bust for 34 years and that’s why I was so excited to read about the new California statute, Senate Bill 923, that gives police and prosecutors guidelines to make eyewitness testimony more reliable. I asked retired Santa Cruz Superior Court Judge John Salazar how this new statute will help. 

Judge Salazar said, “If a police officer arrests somebody, and they have a good sense that this is the right person, consciously or subconsciously there could be some bias in that procedure, unless it’s blind. If there is unconscious body language, nodding your head, tensing up, gesturing, leaning, you don’t want to take that identification, because once the victim identifies someone, typically they stick with it. In their mind they build up their assurances that this is the right person.”

I said, “But in my case, they did it right there, handcuffed. I looked guilty as hell.”

“That is why the new law is there, to minimize suggestiveness. The way the officers did it with you would not be allowed now, under this law, which wouldn’t eliminate it, but help prevent misidentification. Police can do things, like not handcuff you. That is one of those things lawmen typically won’t do anymore. It clearly means you’re a suspect. But just standing there, whole different thing. We want people to look like they normally do. With bias, where is your impartiality? Where is your ‘innocent until proven guilty’? You lose that.”

What I Hope

Last week I told my jail tale to Santa Cruz defense attorney Zach Schwarzbach, and he said, “You are very lucky. That detective did not have to help you, many wouldn’t.” I often think about what Detective Aires did for me and I hope I can  find him through social media. I want to thank him for these past 34 years of freedom that let me raise my children. 

If Detective Aires had not cleared me early in the police procedure process, I could be a client of NCIP now. I wonder, what would have had to happen for the NCIP to have taken my case? 

“In order to have your case considered by NCIP, you must actually be innocent of the crimes for which you have been convicted and there must be a significant chance that substantial new evidence may be found to support your claim of innocence. And finally you must have been convicted of a serious felony in one of the 48 Northern and Central California counties from Monterey, Tulare, going north up to the Oregon border,” writes the NCIP online.

The joke is, “Everyone behind bars is innocent.” Or say they are. How does the Northern California Innocence Project know that a person is innocent? 

The Santa Clara based non-profit says, “Where we believe there may be a case of innocence, we investigate thoroughly. Some cases are driven by witness statements, others are based on forensic evidence. The process takes a long time. Of the many cases which come into our pipeline, we only proceed to litigation in the few cases in which we have compelling evidence of actual innocence.”

The Innocence Project has been at the forefront of criminal justice reform, using DNA and other scientific advancements to prove wrongful conviction.  Of the cases that were later overturned because of DNA evidence, three out of four were due to misidentification of an eyewitness.

The California Innocence Project says Senate Bill 923 requires that all law enforcement agencies and prosecutorial entities must adopt regulations for conducting eyewitness identification procedures that include: blind/blinded administration, proper witness instructions, proper fillers, witness confidence statements, and recording of the procedure. 

For years Jasmin Harris, the Innocence Center’s Director of Development and Policy, has been the innocence policy guru, including the eyewitness testimony procedure. Harris says, “It was passed in 2018 but we agreed to delay implementation to 2020 so law enforcement could train on it. We will have a report coming out on the efficacy of it. You’ll be pleased to know that we found a high rate of compliance. I believe it’s around 95%.”

I hope we can help police, prosecutors and juries make “innocent until proven guilty” a reality.  

I hope that the good citizens serving on juries study the science of eyewitness reliability to keep innocent people out of prison. 

And for the 2,305,258 Americans who are currently locked up, I hope we can exonerate those who are in there for walking to work with the wrong haircut. 

If you want to learn more about mistaken eyewitness identification, please visit www.californiainnocenceproject.org. 

A longer version of Richard’s jail tale is in his latest book, Love at the In-N-Out Burger, available on Amazon.com.