Lawsuit alleges Santa Clara County violated disability law

A Northern California man is suing Santa Clara County’s legal system, claiming he was denied proper hearing accommodations to help him communicate during jail time and in court proceedings.

Howard Herships, 79, alleges in a federal lawsuit that the Santa Clara County Sheriff’s Office, District Attorney’s Office, Public Defender’s Office and a judge in county court all failed to ensure his hearing disability was addressed while he was in the legal system, violating his civil rights.

He said in failing to properly aid him, the institutions are also going against mandates stemming from past lawsuits to improve the way the county jail and court system assist people with disabilities.

“They don’t comply at all,” Herships, a Placer County resident, told San José Spotlight. “You go through the whole process and it’s totally pathetic.”

Herships is not a newcomer to the legal system, having represented himself in numerous court appearances and filings, many stemming from a car-keying incident in 2005.

After being booked into jail in January 2020 over an alleged probation violation connected to the car-keying incident, Herships said his hearing aids were taken from him and not returned for several weeks, despite requesting them multiple times. He attended court hearings where he couldn’t properly hear what was happening, he said.

When he requested accommodations from the court, he was given a set of headphones connected to the audio system of the court. But he said that didn’t help, as he was unable to hear conversations clearly and the audio frequently cut out.

Even the court transcript from that hearing has multiple spots where the recorder wrote “unintelligible,” where words couldn’t be heard clearly, he said.

He said the judge should have allowed him to have his hearing aids instead of assuming the audio system would address his needs.

“With the (audio) system, I have no means of communicating with my public defender. Because then the district attorney can hear everything also,” Herships said.

The Americans with Disabilities Act, commonly known as ADA, requires the legal system to “give primary consideration to the requests of the individual with disabilities” when determining what type of auxiliary aid and service is necessary, Hership’s lawsuit said.

The public defender’s office did not respond to a request for comment. Spokespeople for the district attorney’s office and sheriff’s office deferred comment to the county counsel. The county counsel, James Williams, said his office generally doesn’t comment on pending litigation.

A long legal history

Herships said he hopes his suit will push Santa Clara County to “implement procedures and ensure that the ADA” is being complied with for people like him.

He isn’t deterred by potentially lengthy court fights. The 2020 arrest and court hearings that prompted his federal civil rights lawsuit stem from his alleged involvement in the 2005 keying of a car belonging to Silicon Valley tech millionaire Steve Kirsch, the founder of search engine Infoseek, which he sold to Walt Disney Company.

Herships was described in 2008 by a county deputy district attorney as a “legal pest” during the yearslong legal battle in that case, which The Mercury News reported at the time generated more than 53 court appearances and a stack of documents more than a foot tall.

Eighteen years after the alleged keying, Herships is still dealing with legal fallout that has dogged him, or that at times he has helped spur on through filing appeals and lawsuits.

He also frequently files for waivers on court fees because he is on a fixed income as a retired veteran, meaning the county foots the bills for some of his cases.

Herships was sentenced to three years of probation and 30 days in county jail in 2009 for the keying incident, and ordered to pay about $5,600 in restitution to Kirsch. He has not paid the restitution, and his attorneys have argued previously he is not in a position to pay due to his fixed income.

But in 2011, a warrant was put out for Herships’ arrest, alleging he violated his probation. Court records said it’s unclear what prompted the warrant, and Herships said he never was informed either.

He couldn’t appear in court due to medical reasons, and the case was delayed multiple times until he was arrested in 2020. He was released in late March 2020 due to health orders related to the coronavirus pandemic.

Herships also has alleged the judge in his 2020 case improperly deducted time served credits from his record, resulting in him spending 30 days longer in jail than he was required. An appellate judge ruled in favor of Herships on Feb. 14, seemingly wrapping up one chapter of a long saga connected to the 2005 case.

“This court cannot return that lost time to Mr. Herships, but it can set the record straight, and ensure he is not subject to any further incarceration based on the trial court’s error,” his attorney wrote in a 2022 filing.

Contact Joseph Geha at [email protected] or @josephgeha16 on Twitter.