Paul Kozakiewicz: Justice Delayed, Justice Denied

A Cautionary Tale
An innocuous trip to Sen. Barbara Boxer's office in 2006 started a chain reaction that resulted in a man being found guilty of a charge of resisting arrest. But, this was just the latest twist in his ongoing battle for justice in America.

Dr. Amir Shervin, 67, came to this country with high hopes in 1975. He had just graduated from one of the most prestigious British universities in the Middle East, King Edward Medical College. His post-graduate study was at the d'Mont Morency College of Dentistry. Shervin was continuing his profession as an oral surgeon in his new homeland. But, fate took a sideways turn that has been going on for three-and-a-half decades.

Shervin said he was promised a residency in oral surgery at the University of California, San Francisco (UCSF), an offer that was withdrawn when the Islamic revolution took over his homeland, Iran, in 1979. He felt discriminated against and responded by suing the university.

Shortly thereafter, Shervin was taking the final part of his exam to get his license to practice dentistry in California when he was inexplicitly denied a license for failing one portion of the clinical exams by one point. He responded by suing the Dental Board. That was the start of an ongoing odyssey that continues to this day - 30 years later.

The original claims against the dental board and UCSF are still unresolved, largely because city, state and federal governments have some of the best lawyers and unlimited resources at their disposal to fight ongoing lawsuits.

I first met Shervin, his wife and two young children in 1992, a couple of years after starting the Richmond Review and Sunset Beacon newspapers. He was a Richmond District resident on a mission.

I intervened on Shervin's behalf by bringing the case to then-San Francisco Mayor Frank Jordan and state Sen. Quentin Kopp. The offices of the two powerful men tried to reach a compromise with the Dental Board and university but were unsuccessful, even though Superior Court Judge Roy Wonder determined in 1985 that there was ample evidence to support Shervin's passing of the state dental board exam. His license should be issued immediately, Wonder said.

Judicial Fix Was In
Shervin passed the two-part national exam and was entered into the national register in Chicago as a dentist in full. He then took the two-part California exam. He passed the first part, the preclinical portion, and was taking the second part, the clinical portion with live patients, when problems emerged.

The exam was held at UCSF, which had just been sued by Shervin for reneging on an offer for him to become a part of its faculty. But, a series of shady maneuvers vacated that opinion.

Shervin said shortly after Wonder issued his decision, he was called to the judge's chambers and told to have a meeting with state attorney general Richard Arnold, the attorney who had just lost the case. Shervin claims Arnold threatened to not issue his dental license and requested he take the dental exam again.

Shervin became disappointed at the suggestion, and Arnold called state police officers.

Shervin claims the officers told him "to not come back again."

At the request of the court, Shervin met with an attorney named Edward Zinman, who suggested Shervin meet with another attorney, Andrew Ross. At the meeting, Ross was in an "angry" mood, Shervin said. Ross demanded that Shervin sign a three-page letter that was presented as a settlement with the dental board. Shervin only had 45 minutes to sign it, Ross said, or any settlement negotiations were off the table.

Shervin wanted to take the paper home and read it, but Ross insisted he sign it and threatened to withdraw settlement talks if he did not. Shervin said he trusted the process and signed the paper, which turned out to be a stipulation vacating Wonder's decision and retrying the case in another courtroom.

Shervin was shocked.

"I trusted them, to my detriment," he said.

In the retrial, Superior Court Judge Ollie Marie Victoire ruled against Shervin and dismissed the case, without ever referencing the earlier decision and findings by Wonder, a senior judge on the court.

As a further indignity in the case, Victoire ordered Shervin out of the courtroom because he objected to the conduct of the trial and the deleterious actions, and non actions, of his court-appointed attorney - Zinman - who was appointed even though Shervin said he did not want his representation. It appeared a judicial fix was in.

Shervin moved to Marin County in 1993 and took up the battle there, with numerous concerned citizens and an interfaith council going to bat for him. Dedicated people and organizations worked tirelessly on his behalf, including the Interfaith Coalition in Novato; Rev. James Currant; Father Constantine Efstathin at the Nativity of Christ Greek Orthodox Church; Marin Community Clinic; Council of American-Islamic Relations; and others.

Fast forward to 2006, 27 years after Shervin's first attempt to get justice in his new homeland. One of the actions of the interfaith council was to get Sen. Ted Kennedy involved. Kennedy's office referred Shervin's case to Sen. Barbara Boxer's office for resolution of this protracted affair. The group had attended earlier meetings with representatives from the offices of Sen. Dianne Feinstein and Congressman Pete Stark.

Initial meetings at Boxer's office seemed productive to Shervin, and Boxer's staff was looking into the matter. But, files at the senator's office suddenly disappeared and Shervin and the group became concerned.

On Sept. 20, 2006, Shervin and two men went to the senator's office in an attempt to get some information on the case. That's where the latest turn in this twisting saga took Shervin over a cliff. Boxer's aide, Eric Vizcaino, approached Shervin and the other men in the lobby of the senator's office and started yelling at them to go away, saying the office could not help.

Shervin said all he wanted was a written letter explaining why the senator's office was not going to help him after implying that it would.

During the confrontation, Vizcaino claimed Shervin spat on him.

Shervin denies that claim. A videotape which captured the encounter does not show Shervin overtly spitting. Nevertheless, San Francisco District Attorney Kamala Harris' office charged Shervin with a misdemeanor assault charge on Vizcaino's behalf.

Shervin was staying with a friend in Newark on the morning of Dec. 7, 2006 when he got a call from Inspector Peter Walsh of the San Francisco Police Department, who wanted Shervin to go to a police station for questioning about the incident.

Shervin said he talked to Walsh and the two agreed that he would come to the station in three days. Walsh confirmed that scenario with Hoshang Bastan, whose home Shervin was at the morning of Dec. 7. What happened next is a matter of dispute.

Walsh testified that Shervin said he was going to light himself on fire rather than go to the station. However, a recording of the conversation between Shervin and Walsh reflects no mention of Shervin's claim to light himself on fire.

"I never said such a thing," Shervin said.

Concerned for Shervin's safety, several Freemont police officers were dispatched to conduct a "welfare check" on Shervin. When officers arrived about 20 minutes after Shervin spoke to Walsh, they grabbed Shervin because they thought he was trying to avoid them. They threw him to the ground and he was arrested.

The officers also arrested his 16-year-old daughter, Sherin "Natalie" Shervin, saying she interfered with the officers' attempt to arrest her father.

Bastan testified the officers entered the house without his permission, or a warrant, and used excessive force to restrain Shervin and his daughter. Shervin was charged with resisting arrest and his daughter was charged with assault and battery of a police officer.

Shervin responded to the police visit by filing a lawsuit in federal court claiming his, and his daughter's, civil rights were violated. That case, being heard by Chief Judge Vaughn Walker, is still pending in District Court.

Courthouse Blues
Between the time of the incident with the Newark police officers at the end of 2006 and the time the case actually went to trial in October 2009, Shervin had to travel from Novato to the courthouse in Freemont some 36 times, as the trial was continually postponed, mostly due to legal maneuvering facilitated by a long string of legal motions, including an attempt to deny Shervin the assistance of an attorney.

When an attorney came forward to represent Shervin, the Alameda County attorney handling the case fought the motion. Motions and responses to motions trigger the creation of legal briefs, which have to cite legal precedents and special circumstances. The strategy of high-priced lawyers is to weaken the resolve of the defendant to, just maybe, exploit a loophole or statute of limitations.

A couple of years after the incident, the district attorney's office for Alameda County dropped the charges against Shervin's daughter, but continued the case against Shervin. Natalie has been feeling the heavy weight of the struggle. Recently, she was diagnosed as suffering from a post-traumatic-stress disorder concerning her run-in with the police officers and the years of ongoing court impositions.

Shervin said the Alameda County district attorney offered to consider dropping the charges against him if he would withdraw his lawsuit in federal court, but Shervin refused.

When the resisting-arrest case finally went to trial in October, 2009, a jury found Shervin guilty of a misdemeanor charge of obstructing the duties of a peace officer by resisting arrest. The jury had to make a tough decision, to support police officers trying to do one of society's toughest jobs or support a man who claimed they used excessive force.

The jury wasn't convinced that Shervin was injured during the altercation and the district attorney did a good job, telling the jury that if Shervin so much as put his hands up in the air, or behind his back, even for a second, while the officers were trying to handcuff him, he was guilty of resisting arrest.

The district attorney was able to successfully frame the issue that the officers only did what they had to do to ensure Shervin's and the officers' safety. He said a finding of "not guilty" for Shervin would jeopardize the careers of the officers. That's something any member of a jury would be hesitant to do.

Shervin says he will appeal the decision.

After Shervin lost the case, Dr. Carter White, a prominent attorney and professor at U.C. Davis, tried to become Shervin's lawyer but Judge Walker refused to appoint him as a court ordered attorney.

Because the state would not pay White for representing Shervin, White had to inform Shervin that it would cost between $20,000 to $25,000 to represent him, an amount that Shervin could not raise.

Ironically, the initial assault charges filed on behalf of Vizcaino, the ones that led to all of Shervin's latest troubles, were dropped by the SF District Attorney's Office, but not until Shervin had to attend numerous court appearances over 18 months.

Aftermath
Shervin has been fighting powerful interests for more than three decades. He has had to fight San Francisco district attorneys, state attorney general attorneys, Alameda County attorneys and United States district attorneys. The fights have cost him his marriage, and his right to practice dentistry as the oral surgeon he was trained to be.

As an indigent person, he has been forced to become his own lawyer in most of the legal actions he has been involved with. When he has had the benefit of an attorney, they have not always been the most competent.

For instance, in the latest case claiming Shervin resisted arrest, his 75-year-old defense attorney, well past her prime but working pro-bono as an appointee of the court, didn't submit evidence of Shervin's extensive physical injuries sustained during the encounter with police officers.

Shervin is persistent and determined to get justice in America. A weaker man would have given up years ago. For more than 30 years he has sought justice in America, but he has never been successful. He has had plenty of encouragement and community support along the way, but the result is always the same.

We're supposed to be a civilized nation of laws, where those with legitimate claims can "have their day in court." That appears to only be the case if you have large amounts of money to pay lawyers to wage a near never-ending series of legal battles in the courtroom.

And, if you take-on the power of the state, taxpayer dollars will be used to kick you down, and keep kicking you down, until you succumb.

From 2006 to 2009, Shervin had to appear in court 71 times. Those appearances were scattered between the San Leandro and Marin county courts for Natalie, and the San Francisco and Freemont courts for Shervin.

City and state courts have spent millions of taxpayer dollars over the past 30 years to pay for attorneys to deny Shervin's claim to a fair trial on his charges with UCSF and the Dental Board. It should stop its abuse for the sake of abuse and look at Shervin as a California citizen who has some legitimate claims that deserve to be heard.

It seems to me that the courts are culpable too. Judges may want to help but are hamstrung by rigid legal requirements that determine the outcome of the fight in the courts. In our legal system the two sides in a dispute slug it out, like boxers in the ring, to determine a winner. Justice is not determined by the merits of a case, so as much as the strength and power of the combatants.

As for Shervin's resisting arrest offense, he should get whatever sentence is determined, if an appeal is unsuccessful, commuted because he has already been through three years of court-sanctioned hell.

As for Shervin's outstanding claims against UCSF and the California Dental Board, a settlement conference should be convened so he can put this ordeal behind him and move on.

Shervin will not let the powerful interests of the state or the federal government deter him from his mission of seeking justice. He wants to hold his adopted homeland to the high ideals from which it was founded. That would make our founding fathers proud.

Paul Kozakiewicz is editor of the Richmond Review and Sunset Beacon newspapers.