Andy Gutierrez, SCC Deputy Public Defender

Check out the profile of Santa Clara County Deputy Public Defender Andy Gutierrez. We first met Andy when he represented an ACJP family who’s grandmother was facing a 3 year sentence for an alleged dirty bottle. Everyone said it was a done deal – she was headed to prison. Gutierrez was determined to keep her with her family, and she ended up with an outpatient drug program instead. She is doing great, and it wouldn’t have happened without Andy.

By Diane Solomon — Andy Gutierrez defends poor people accused of committing Santa Clara County’s most heinous crimes. Before I spoke to him, his Deputy Public Defender job seemed awful and really hard to me. But when he explains his work, he conveys this sense of commitment, a calling to a higher purpose and enthusiasm.

“I always knew I wanted to go into criminal law because I just liked it. I like the science part of it; I like the investigation part of it. What happens when you have to champion the underdog all of the time is that the chips are always down, so your life is interesting because every person you have to help is usually an amazing challenge.”

Finding the why 
“It was difficult for me growing up and I’ve had tremendous setbacks as a kid,” says Gutierrez, “but I think that’s given me this empathy, this almost insatiable need to fix other people’s problems.” “In every case I get, whether it’s a young woman whose been raped or a robbery gone bad and someone dies, it’s easy to look at the person as a monster,” says Gutierrez. “But I’ve got to start from the ground up and double check everything and figure out, ‘did the police miss something or make a mistake?’ My job is to convince the jury that he or she isn’t guilty of the main charge or is guilty of a lesser charge or isn’t guilty at all.”

One of about 120 Santa Clara County public defenders, Gutierrez looks for what he calls the moral story. When he can map out a crime as a logical outcome of poverty, child abuse or other trauma, he says the monstrous becomes human and explainable to a jury in a way that may connect with them and get past their biases. “Unlike prosecution, a defense attorney usually has to find the unwritten story about what’s really going on,” says Gutierrez. “My job is to find out the why. That helps justice because it gives you confidence in whatever verdict or plea bargain is achieved, that it’s reliable, that we looked at everything and we didn’t come from this narrow perspective of ‘what are the legal elements of this crime?’ and ‘did you meet them or not? If you can provide that answer, you help the defendant, the Court, society and the victims who need closure.”

“We don’t have to talk to the victim’s family,” says Gutierrez, “District Attorneys do. They have to talk to the little girl that’s been molested. They have to talk to the family that wants their daughter’s body found. Think about those conversations for a second. I wouldn’t want to be privy to them, but prosecutors do.”

Gutierrez in action 
I got to watch Gutierrez in action last summer at the sentencing of his client, Dana Kovacevich, a 40-year-old Home Depot appliance salesman who was convicted in May of shaking his 5-week-old son to death. The courtroom had 60 seats but only Kovacevich’s mother, aunt and cousin were there to hear the judge tell Kovacevich that he was sentenced to 25 years to life.

Gutierrez looks younger than 43. Maybe it’s because his suits seem a little too large and when he talks to you he really looks at you, he leans in and tilts his head like he’s really trying to hear what you’re saying. Kovacevich looked tired like he hadn’t been sleeping well and he was overweight the way someone who’s spent four years in jail since his arrest is overweight. His pale skin and shaved head made his brown eyes, brown moustache and goatee stand out.

They sat next to each other in front of the judge’s bench and before the judge arrived I watched Gutierrez talking softly to Kovacevich, sometimes patting his back and shoulders.

Early Challenges 
One of eight children of Mexican immigrants, Gutierrez grew up on San José’s Eastside and describes his early years as poor. When he was five his father left, leaving his mother to support the four youngest children–which she could not do. They lived homeless. They stayed with relatives or sometimes slept in unlocked cars or they broke into the hotels on the Monterey Highway to find places to sleep. His mother kept them indoors to avoid questions. He did not go to school. One day when he was about 8, his mother led them into an aunt’s backyard to play and left. “The great thing about my family was that my aunts and uncles got together and had a big meeting,” says Gutierrez. They didn’t want anybody to go to foster care so everybody went home with an aunt and uncle.”

Gutierrez went to Willow Glen with the Evergreen Valley College professor uncle and his high school teacher wife. “I was perfect for them because I didn’t know how to read,” recalls Gutierrez. By the 7th grade he went from D’s and F’s to honors classes. “I see a lot of the people that are charged with doing gang crimes and they’re so young,” says Gutierrez. “If I didn’t get pulled out of Story and King [roads] where I was being raised, I could be one of them. “

The Power of One 
“It takes one powerful influence to change a kid’s life, even a kid in a bad neighborhood. You have a whole accumulation of factors that can predestine them to delinquency but even with all those factors if you have one person—a good coach, a powerful role model, someone they respect—that’s all it takes to change that person. I had those people. Many kids in San José don’t.”

He’s chosen a life of public service at a work place that most of us hope we never see. The court ruled that five-week-old Justin Kovacevich’s death wasn’t an accident. During the trial, Gutierrez studied X-rays, autopsy reports and postmortem photographs and listened to medical witnesses and County coroners talk about how this infant was likely beaten to death.

For the past eleven years at any one time he’s worked dozens of cases, arranging investigations, and meeting with experts, witnesses, and defendants about child molestations, homicides, and sexual assaults. The court assigns his clients to him. He cannot pick and choose them.

Life After Life
Gutierrez is often the last person his clients will speak to before going to prison. “What do you say to somebody who’s crying and inconsolable because their family doesn’t want to see them, everybody thinks they’re a monster and they’re being sent away for life?” asks Gutierrez. “Do you just say ‘good luck’ or do you try to get them to understand there is life after a life sentence?”

“I tell them there’s a majesty to life that can’t be circumscribed or delimited or solely defined by the bricks that build their prison walls. ‘As a person your life does not end and there’s an amazing journey ahead of you if you have the courage to do it’.

I’ve seen clients come to the realization that, ‘you know what? There IS life after life. I can make good for myself. I can make good for other people. I can love myself again. Others may not, but it’s possible that someone may love me.’ There’s redemption,” says Gutierrez. “Is that a lawyer’s role? Legally? No, but humanly, I think so. Is it consistent with what I’m doing as a lawyer? I think so.

If you know a guy is going to go away for life, is there something else you can do to make the rest of his life somewhat livable? Because of the nature of the cases I have, I have to have those relationships and that evolving dialog on a regular basis. It sounds somewhat spiritual. I’m not a very religious person but I believe in being humane to people.“

Diane Solomon produces and hosts a weekly public affairs program on Radio KKUP, 91.5 fm, and works as a freelance journalist writing for Atom Magazine, Content Magazine, De-Bug, and Metro, Silicon Valley’s weekly newspaper. She’s a full time Silicon Valley wage slave, a Willow Glen Neighborhoodie and a big time San Jose Bike Partier.

Photo by Octavio Martinez.