That year was an important one for me, for my career. Recently, I found the red book. It occurred to me that the details I described make a fairly good record of what it was like to be a public defender that year. This is what I wrote back then, with very little editing.
Saturday, November 17, 2018
1983: A PUBLIC DEFENDER'S JOURNAL
I was in the office of the LA County Public Defender from 1968 (first as a law clerk), and as a lawyer from June 1970 to July 1974. After a year traveling around the world and living near Paris, I re-joined in July 1975. I left in January 1989.
During our travels I kept a journal, using the red “Daily Reminder” books that we had been given to record appointments. I transcribed the journal of out travels in another site.
Over the years, I sometimes tried to keep a journal, but never did with anything like the discipline of the travel year, when I wrote every day. But in 1983, I tried again.
That year was an important one for me, for my career. Recently, I found the red book. It occurred to me that the details I described make a fairly good record of what it was like to be a public defender that year. This is what I wrote back then, with very little editing.
That year was an important one for me, for my career. Recently, I found the red book. It occurred to me that the details I described make a fairly good record of what it was like to be a public defender that year. This is what I wrote back then, with very little editing.
The journal recalls my experiences, that were more or less typical of that profession. I handled the "routine" cases that every felony trial PD coped with, and my journal recorded those. But that year I also got to achieve something special and lasting. Here's what I wrote so long ago:
I am resuming this journal on October 13, 1983 with the intent—often expressed and never faithfully followed—to write every day. It may help this time if I limit my writings to one major subject: my cases and the law. I’m hoping that may accomplish what I haven’t been able to do since my trip around the world in 1974-75: concisely describe my day-to-day experiences and thoughts in a limited space. Before I begin I should take some greater space to re-cap the year up to October 13.
It began with my re-assignment to Central Superior Court—felony defense—after 2 ½ years in Appellate. The change was appropriate and timely. The California Supreme Court had accepted two of my appellate cases—both death penalty cases. I had argued one in December, 1982, and the other was set for February, ’83.
My only regret about the change was that I had established an expertise in the field of law I am most interested in—capital defense. I had achieved recognition from peers—State P.D.’s, etc., I was among the inner circle of decision makers of strategy in this battle. I was among the select few fighting on the edge of the new, emerging law. All quite ego-gratifying, a fine sense of self-importance, growing more and more.
Now I was to be one of the many felony deputy PD’s handling a calendar full of routine cases. Quite a comedown.
And to be honest, the run-of-the-mill tedium of day-to-day criminal practice becomes overwhelming after a short time. This would be my third tour at it. The first, ’72-74, was relieved by my trip; the second, ’77-’80, relieved by the assignment to Appellate.
I found in those earlier tours that I burned out after a year or so, became hardened, began to feel inadequate to the increasing caseloads of ever more serious cases, more losers than winners. But I also realized—hoped—and was reassured that the transfer was to include the long-awaited Grade 4 appointment.
That elusive goal had been so teasingly withheld for so long that I had become fatalistic, ironic, and quite depressed about it. It means money, growth, status, and a chance to do DP cases. It is a ticket to a career. (Part of the reason for the delay was our trip; during that year, there had been many promotions of my contemporaries.)
After some more waiting, it came, I think in March. Now that I have it, I take it for granted. It is one of those things in life that only assume enormous importance when they are withheld. When you have it, it is immediately taken for granted.
As a result of the promotion, I received my first capital potential case, but more about that later.
The second most significant event of the past year has been the lessening problem of my asthma, allergies, and other respiratory ailments. All the misery and inertia of the past eight years since returning from the trip has been swept away since giving up the cats a year ago. The sneezing, wheezing, coughing attacks, the drugs, the lack of energy, all gone, so much so that I have begun smoking again.
My first response to the resumption of my trial calendar was the sense of familiarity with the problems to be solved. The confidence of clients, the credibility wih judges and DA’s, the fair dispo of hopeless cases.
By now, after 10 months, I find I am much less burnt out than at this point in my previous tours. I attribute this to greater maturity. I am not so affected by the prospect of losing a case and my client to long prison terms. I considered, and rejected the notion that I am callous and not caring. I do accept failures as part of the game, an inevitable result of the predicament of my profession.
I have been assigned to an excellent court, Judge Dion Morrow, with a good DA, Dan Johnson—low pressure, good deals, few real problems. As a result, I have zipped through most of my cases, settling most in short time with few real headaches. Because this court is so good, I have had only three jury trials in 10 months.
The first, a robbery, resulted in a conviction. Sherwood Hedgman was the client; Florence Pickard, the judge; Dan Johnson the DA. He was great, I was barely adequate; my client was guilty.
The second was Johnny Lee Wilkes, charged with murder. He killed a 16 year old boy who, he believed, had stolen his truck. Legally, he was guilty of manslaughter and that is what the jury found. It was a proper result, but unsatisfying because I had a shot at a not guilty and couldn’t get it.
The third jury trial was an ADW with GBI and robbery by my client, Faron Green, on his homosexual roommate. The judge was Roberson, the DA was Alan Yockelson. The jury came back NG on all counts, a good feeling because it was the kind of case that should have been a G; the kind that a good lawyer should occasionally win—i.e., a hopeless one.
So, only three juries, March, May, August. In between and since, there has been much other work to do. I have had more murder cases this tour than in all other tours combined. There was Wilkes, and then there was Roberto Espinoza. He and his nephew got drunk. His nephew wound up dead, shot in the forehead. The client said his nephew shot himself.
After much research re. gunshot residue, the investigation of wits, I announced ready for a court trial before Judge Morrow, but the eyewitness, the nephew’s wife, had gone to Mexico. The Sheriff detective thought the case was inconsequential; it was dismissed.
Then came Herman Jones. Herman, a 60 year old heroin dealer killed his young heroin addict / dealer roommate, or so it was charged. But the DA and police couldn’t prove it, not even enough to get by a prelim. They dismissed, tried again, and dismissed again. So Mister Jones walked out a free man.
My First Potential Capital Case
Robert Earl Meekins is nineteen. He’s been arrested a couple of times in his life, been in some trouble, but nothing to prepare him for now. He was raised in Pacoima, the black ghetto in the Valley. He has a large family: mother, father, brother and 7 sisters. He is not very bright, couldn’t really get along very well in school. He was sent to forestry camp. When he dropped out of school, he was just hanging around. He had fights with his mother, so he went to live with a sister in South Central L.A. But soon, she had to move; he was sent to live with an aunt and cousins. He spent his time on the corner of 43rd street with homies—who happen to be “4-Trey Crips.”
They have enemies, the gangs from other streets. Robert and some friends got arrested after breaking into a liquor store late at night and stealing bottles, cigarettes and coins. Then in April, the night of a dance at Jefferson H.S., Robert went looking for some Bloods. Robert is only 5’4” but he had a sawed off shotgun that made him a lot bigger.
He wound up shooting a man who had gone to a liquor store late at night. Robert was arrested when the word got around to the police and his instantly admitted the shooting, saying that he was shot at by Bloods. But the cops weren’t buying it. The victim was a Mexican man and it looked too much like a botched robbery. But they didn’t have much evidence.
The survivor, a friend of the victim (Mr. Bustos) didn’t speak English, didn’t hear anyone ask for money. The dying man had nodded his head when asked by a cop on the way to the ER whether it was a robbery. All the cop had was experience, the word on the street, and the skill to dig. Robert had denied it was a robbery, but he had given them the name of his “partner,” Darryl Adams. Darryl is 16. He had been arrested with Robert on the liquor store burglary. He is about 6 foot, but looks up to Robert, probably the only one who ever did.
Darryl was arrested quickly and told the cops that while he and Robert stood outside the liquor store, Robert said, “Lets rob the Mexicans.” They followed them and Robert repeated three times, “Give me your wallet,” while trying frantically to get his shotgun from his sleeve while the victim pulled a knife. Then Robert shot him and they ran away. The cops confronted Robert with this statement and he then admitted that a third person had suggested that “the Mexicans had plenty of snaps.”
The DA had some legal problems. First, Robert’s arrest was questionable. I might be able to suppress his statements. The second statement was taken without re-advisement of his rights. Second, the proof of a robbery independent of Robert’s statement came in the form of a nod when the victim was asked if it was a robbery. This is a possible Dying Declaration, but it seemed to be very weak.
Without it, there was no evidence of the corpus delecti of a robbery. When assigned to Appeals, I had written a brief arguing that to prove special circumstances based on a felony, the law required proof of the corpus of the felony, not just of the homicide, contrary to the holding of the Cantrell case which allowed the statement to show the degree once the corpus of murder was shown.
But all this was a long shot. Bardsley and the others had analyzed the case as an LWOPP at minimum. In fact, the consensus was that the only reason for not get a Death verdict would be Robert’s age, nineteen, and lack of a prior record of violence.
When I was first given the file, I was slightly shocked. It had finally come after all this time—put up or shut up—“Some day I want to try a DP case.” “That’s what it is all about.” Oh, yeah? Oh, shit. Who needs this?
As I began to read an think about it, began to see the issues—at least believed that I saw the issues—I felt a lot better. Then I went to see Robert.
Sitting in the jail interview room waiting, I reviewed the file. Then I heard the deputy call his name. I raised my hand and watched the small boy walk slowly around the barriers toward me, hands in his pockets. He had a sad, half-lidded dull expression I have since become familiar with.
Suddenly, it hit me: the realization that I have since discovered is a common experience of every lawyer at such moments—the cold chill and tingling when it hits you:
THEY WANT TO KILL THIS PERSON . . . TO KILL HIM . . . THEY REALLY MEAN IT! . . . THIS KID MAY DIE.
As he walked over and I began to talk to him I knew it would be the beginning of a long walk side by side. We would get to know each other very well. If it went all the way, it might be the only friendship that ever counted.
I heard a story that John Moore was asked by his client to witness his execution. He had no one else who cared anything about him. And Moore did go and watched his client die.
At that first interview and in the many that followed I got to know him and what is more important in this case—as it turned out—he got to know me, to feel that I cared about him, was on his side. He learned that I knew my business and would fight for him with everything I had. To some degree, I was lucky in this regard. The things I predicted turned out to be right; the things I promised to do, I was able to do. The little things that are crucial to laying a foundation of trust: getting phone calls, getting his jail module changed so he would stay out of gang trouble, giving him a few dollars, contacting his family and having them visit him and support my advice.
Robert’s family was more shadowy. I talked to his sisters, Carla and Donna. He has six others. I never got to talk to his mother. Of course the family background would have to be further explored in exhaustive detail if this case developed into a death case.
I worked long and hard on the legal issues. We began our investigation early, before the preliminary hearing, talking to all the witnesses to contradict the police version of the arrest and to try to find a witness to support Robert’s claim that the victim had a knife. We found one. A guy said he saw the victim with a knife. But he also heard Robert demand the wallet. Not a very good witness.
At the prelim we got a bad break. Instead of the intelligent and fair Candace Cooper, we were sent to Mary Waters, a cold, ignorant rubber stamp who would do all she could to make the case appear to be strong. As expected, she denied all my carefully thought out motions and ordered my client bound over on all charges.
But still, I made crucial points. Both Dan Johnson and I interviewed the surviving victim who told us and later testified that he heard NO WORDS spoken by the shooter or his companion before the shooting; that is, no one asked for a wallet. It was so dark he could ID no one. He didn’t even see a gun.
We also talked to the officer who rode in the ambulance with the dying victim. It was only after prompting by the I/O that he “remembered” having asked the victim, “Era un robo?” and getting a nod as a response, thus establishing, however slim, evidence of the corpus of robbery, the thread on which to hang a charge of felony-murder and the special circumstance needed to get a death penalty.
Also, the I/O, an experienced detective named Joe Northey, became confused about the sequence of facts leading to the arrest and statements. On my cross examination, he made critical errors about his knowledge and intentions, giving me some more issues to chew on.
Despite all this, I prepared my motion to dismiss the charges with little hope of success. These motions are rarely granted and with a special circumstance charge, even less likely. Few judges would dismiss such serious charges. Even so, in this case I had a reasonable DA. Johnson was a former cop, a long time DA who had tried capital cases and gotten death verdicts, He was easy going, not too anxious to prove himself by aggressive tactics. He was a wily trial lawyer, the toughest kind of DA because he was so laid back, likely to understate rather than overly try his case. I had tried Hedgeman against him and he had beaten my pants off—out nice guyed me by ten miles.
What happened to Robert Meekins would greatly depend on how Dan Johnson viewed this case. Knowing Dan, I suspected that he would not see this case as a true capital crime, but the system assumes that all filed spec. circs cases are capital until and unless the DA exercises discretion to NOT seek death by filing a letter with the court informing the judge and defense of that decision.
Some thought Dan was lazy and that he would recommend against seeking death so he could avoid the extra work. But I knew that Dan was not lazy. Rather, he would do what was give him the fewest problems, with his superiors and with his own sense of right and wrong.
I had to do everything I could to show Dan that the hardest path would be to seek death, the easiest to accept a lesser plea—to a first degree, or even a second, although the chances of a first was slight. In the opinion of Bardsley and Rappaport when I briefed them in a meeting [they evaluate all potential capital cases before assigning them and had labeled this one as LWOPP at best] a 2nd degree murder was a pipe dream.
The prelim had been the first step. Though Dan had gotten over it, he had struggled. He admitted the weakness of his case. I said, “You’ve got real problems with this one.” He shrugged. “Don’t I know it? I don’t think another judge would have let it get by.” Robert was upset at the prelim result. All he understood was that he was accused of killing during a robbery. He was steadfastly sticking to his self-defense idea: that he had to shoot because the guy was pulling a knife. But he also insisted that the gun had gone off accidentally while he tried to pull it out of his jacket.
He wanted to know about his friend, “Snoop.” Darryl Adams had been charged in juvenile court and was found unfit due to the gravity of the offense. He would have a prelim, too, and he would be a danger to Robert. If the DA was smart, and Johnson was, he would offer Snoop immunity or at least a sweet deal to testify. It would make sense, it would be appropriate, and it would be devastating.
At arraignment in Superior Court in Department 100, the next break came. The judge, Ron George [who was later elevated to the California Supreme Court and became the Chief Justice] would keep the case there until the DA decided whether to seek death. The decision would determine which judge would get the assignment. That was the next critical decision that would decide Meekins’ fate.
I had thought about which judge I preferred to have the case. I had mentally run through the list and decided that my own judge, Dion Morrow, was my choice, in the unlikely event that I would have a choice. You can challenge the assignment to one judge, but then you are at the mercy of the next one. Morrow surely would be more convenient because both Dan and I worked there every day. Morrow was a known quantity to both of us; we both trusted him and he us. We knew how to handle him, what we could expect from him in terms of trouble, legal calls, attitude, patience. Although he talks tough and is far from giving away the courthouse, I knew him to be fair, street wise, and sensible. That’s about as much as I could ask—rare qualities among the available judges, who are mostly petty, gutless, and dull.
When Judge George asked whether the DA would seek death, Dan said that he would recommend to his superiors that they shouldn’t seek it. Hearing that—and on the record—made me ecstatic. It not definitive but once having declared that opinion it would be hard for the DA office to overturn it. I joined in and suggested that we both wanted Morrow to get the case. George readily agreed and ordered the case transferred to Department 112.
It took a while before anything happened next. Johnson went on vacation for the month of July. Then I went on vacation for the first three weeks of August. I spent two days of that vacation locked in my home office with a pack of cigarettes and all the case materials I had put together, writing my 995 motion to dismiss. It turned out to be lengthy, complex, with some strong arguments and more weak ones.
But I had made up my mind to throw in everything because I wanted Morrow and Dan to be well aware of the weaknesses of their case. Even if the motion was denied, which I thought probable because it would be easy for the judge to say that there was enough evidence to go to a jury, he might still view it as too weak to support a life sentence. He might push Dan into offering a 2nd.
When I got back I discovered that Darryl Adams had gone through his prelim, represented by Ray Newman, and had been bound over on the murder charge. Ray had been a PD and was one of the competent appointment lawyers. We talked about the case and reached no real conclusions. Ray was busy trying another case, so we said “Hi” in the hall on the 13th floor, while waiting for an elevator, or in the lunchroom between cigarettes and football or baseball talk. [Ray’s ambition was to be a sports agent. He had made a few connections with high school and college prospects, and was putting all his time and resources into this dream. Sadly, he was to lose that gamble.]
We both knew that he could severely hurt my case by getting a deal for his client involving testimony. But at this stage, he said, he had not been approached by the DA and he would not approach them . . . yet.
When the day finally arrived to argue the motion I didn’t sleep too well. There was a lot at stake. That morning I went into Morrow’s chambers without Dan on the pretext of asking him if he was ready to hear the motion that day. He said he was, but wouldn’t give me a clue as to his thinking. All he said was an inscrutable, “This is a very interesting case.”
When I began arguing I felt I was doing okay—with Morrow the trick was to concede the weak parts up front—take away the steam of any negative leanings. Morrow often hadn’t made up his mind fully until he heard arguments and listened to his own voice arguing back. I sensed that he was listening to me, waiting to hear something that confirmed or crystallized what he was feeling about the case.
After about ten minutes I hit the mark. “That’s the point!” he said, peering over his reading glasses. “Trustworthiness.” He sighed. “I have no doubt that Bustos thought he was dying . . . No doubt he thought he was shot as part of a robbery attempt. But just because he believed it, is not enough to allow his belief into evidence that it was, in fact, a robbery attempt. So, I find there is no evidence of a robbery independent of the defendant’s statements.”
Then he smiled slyly. “But, Mr. Borenstein, why is the independent proof of a robbery necessary to charge special circumstances? Why isn’t the corpus of the murder enough?” Morrow knew this issue was the key to the argument. If he didn’t buy my position, I was a loser.
All the arguments in my written points and authorities were based on technical, tricky, and somewhat too clever quibbles. What was lacking was some compelling reason—something that made sense that the judge could see the way to doing the right thing.
“Look,” I said, “the corpus rule was created to prevent people from confessing and being punished for crimes that never occurred. The Cantrell case says if you have a homicide and the corpus of a murder and the confession merely makes it a first degree, then there is no danger that the confession is to a crime that doesn’t exist.
“But the death penalty law says that you have to plead and prove the robbery separately. That is not only to protect the accused. It is to protect the state, the judge, everybody involved from executing someone for a crime that never occurred. That way, a person’s perverted imagination can’t be allowed to convert some 2nd degree murder into a death penalty.”
Morrow had no response to this, except to ask the DA for his answer. Dan Johnson merely shrugged. He all but conceded the motion, saying he agreed with my position as to the dying declaration. Morrow had little choice. He granted the motion, dismissing the special circs. I continued the case for a week, then talked to Dan and got a shock. He offered manslaughter. Without the robbery evidence, it was an unpremeditated killing, a clumsy, reckless act.
Of course I would advise Meekins to accept the deal. But I would have to convince him. I couldn’t do it in the lock-up at court. I would have to go to the jail. Then I noticed that Ray Newman had been sitting in the audience watching the argument. That could blow the whole deal. Surely he must have realized that the weakness of the DA’s case, the lack of robbery evidence was exactly what his client could provide. Would Johnson change his mind? He might refile the charges and then Morrow would have to change his ruling.
I greeted Ray, and was amazed and relieved when he said he was there to talk to Morrow about billing he had submitted on a totally unrelated case. He wasn’t even concerned with his client, Snoop, but rather on his finances.
I went back to the office, elated about my victory and wary about how long it would remain a win. I told Bardsley, who I had briefed often about my strategy. He was amazed and delighted. He urged me to talk to the client asap, and bring the case back in a plead guilty and get him sentenced before Newman woke up and got the DA to renege.
To my surprise, Meekins was perfectly willing to plead guilty to manslaughter. It was a measure of just how scared he was of the idea of the death penalty or of life without parole. Now he was being offered less, much, much less: not even the 25 to life of a 1st, or 15 to life of a 2nd. Rather, the maximum he faced was 8 years. It didn’t take a great IQ to see that it was a good deal.
From a phone booth outside of the attorney interview room I called the court and had the clerk advance the case and order Meekins in. The next day, Dan and I stated the terms of the bargain on the record. I got another shock: Morrow balked. “No way!”
We asked for a recess and went into chambers. Morrow railed at us. “Here’s a guy who was sitting in the chair in the gas chamber waiting for the pill to drop. Now, he’s gonna get—what? Eight years? Ridiculous!”
But even as he said it, the judge knew that he was merely howling. Dan reminded him of the weaknesses, and after a few more grumbles, Morrow folded. Three weeks later, I received the probation report and was relieved to see no glitches. On October 18, Morrow sentenced Meekins to eight years, with credit for 273 day of time served.
The final line was not a shock: Robert moaned about that, asked why I had not argued for less time.
So much for my first capital case. As of then, I have only one other special circumstance case . . .
CARLOS & VILA: Celebrity and History
When I was assigned to Appellate, I was totally uninterested in the routine fodder of PD writ and appeals: the speedy trial, drunk driving priors case, the minutiae of misdemeanor cases over which others became so exercised. Even the search and seizure writs that had some intellectual interest became a boor after a few writs.
What I was aiming for was to develop expertise and recognition in death penalty related cases. Because I had felony trial experience that the others assigned to appeals lacked, it wasn’t hard to convince Dennis Fischer, the brilliant head deputy, to give me the cases as they came in. The only others with some trials under their belts were Jim Hallet and Dean Gits. At first I had to compete with them, but I quickly carved a niche that only I could fill. [After we each left the office, Dean Gits brought me in as second chair to argue the penalty phase of our client, David Brinson. Dean later became the federal public defender in L.A.]
I wrote several writs on capital case issues and was able to get good results. The most excitement came in the two cases I argued before the California Supreme Court in San Francisco. The first case was that of Celestino Carlos, that came to be famous as “Carlos v. Superior Court.”
Rick Santweir, a PD I had known for 12 years, was in Pasadena, assigned to represent Mr. Carlos. In 1979, at a supermarket in Glendale, an LAPD staff photographer, Gerald Slagle, who was also a reserve deputy sheriff, arrived with his 3 year old daughter, Jenny. He saw two men going into the store, one putting on a mask, both drawing guns.
He could have called police, put the men under observation, even followed them. Instead, he decided to arrest them as they left the store. He told Jenny to stoop down near him and drew his gun. He ordered the men to stop. One, later ID’d as Perez, shouted, “Don’t do it!” Perez began firing at Slagle. Slagle shot back and in the gun battle, Perez was wounded. The little girl, who had not stayed down, was killed.
The other robber apparently fled the scene once the shooting began. Perez had gotten into a car, presumably driven by the other robber, who was later ID’d as Carlos, and left the scene. Perez was arrested soon after, was tried and found guilty of murder, and robbery. The ballistics evidence at Perez’s trial showed that Slagle had probably fired the bullet, a fragment of which had ricocheted and killed the child. In the penalty phase Perez was given life without parole.
Carlos was later arrested and was held to answer after a preliminary hearing. Santweir argued a motion to dismiss (995) the special circumstance. The issue boiled down to whether someone who was a robber but who did not participate in a shooting, could be charged with a capital offense merely as an aider-abettor. It involved the meaning of some ambiguous sections of the death penalty law that had been enacted by Initiative in 1978, but which had not as yet been interpreted by the courts.
When Rick’s motion was denied by the trial judge (Jack Tso, who I got to know very well later), I wrote the brief and filed the writ in the court of appeals. In a short time it was denied without comment, a postcard denial. I then filed a Petition for Hearing in the Supreme Court.
It was granted, but the court did not take any action for more than a year. Everyone assumed that the inaction meant that the court was merely holding the Carlos case until it decided other cases that raised similar issues. These were winding through the courts, some already after verdicts of death. If those cases were heard, the decisions might render Carlos moot, or answer the questions it raised. So the court might never hear argument and might not even write an opinion.
Then, suddenly, the Supreme Court announced that it was setting the Carlos case for argument. Then, just as suddenly, it took the case off calendar. During the interim, the DA decided to not seek the death penalty, probably because of our writ and the fact that Pere who was far more culpable, had gotten life.
The Supreme Court, to everyone’s surprise, re-set the case for argument in December, 1982. With that stroke, I became something of a celebrity among the small clique of lawyers who were enmeshed in capital appellate and writ practice. After exhaustive research, many meetings and briefings with Joe Levine and Mike Millman of the State Public Defender (which at that time was handling many death penalty appeals), I went to San Francisco and argued the case before the Supreme Court justices.
It was a proud and awesome moment, trying to convince the most powerful judges in the state to favorably decide a life-or-death decision that affected my client and maybe hundreds of others. Mike Millman and others who listened intently to the argument, that included the questions from the justices to me and my opponent, congratulated me. We then had to wait again for their written opinions to see if we won.
Meanwhile I went to work in felony trials.
After being assigned to felony trials, and making Grade 4, and waiting, Bardsley informed me that Rick Santweir had been assigned to supervise misdemeanors in Van Nuys. I was assigned Carlos’s trial, if and when the Supremes ever decided the special circs issues. It was a dirty trick. I was only half-joking when I suggested that to do this would have a chilling effect on those in Appellate who had to decide whether to take a writ. It they thought they would have to try the case if they won or lost, they might refuse the lawyer’s request for the writ.
Also, Carlos had another case in addition to this one. He was charged with four or five robberies that were totally separate. In that case he had been represented by Bill Weiss, but now I would get that one, too. I was supplied with boxes full of transcripts and loose leaf notebooks organized by Santweir, volumes for reading.
Since the Supremes had order the murder trial “stayed” pending their decision on my writ, the cases were in limbo, and thus, there was no deadline for preparation. For a long time the books of papers sat in my office in their boxes, obstacles each time I entered or left. Then I received a letter from Carlos. He wanted the judge to give him a “state appointed lawyer” rather than a new PD. His argument made some sense. Santweir had been his lawyer for almost two years and was intimately familiar with his case. Now a stranger he had never met was to be assigned.
I went right away to visit Carlos and was able to explain that, except for Rick, I knew more about his murder case than anyone else and, by the time the case was decided by the Supremes and we had to go to trial, I would know at least as much if not more than Rick did. When we went to court, he agreed to the continuance and dropped his demand for a new lawyer. The new trial date was December 16.
The Supreme Court continued to accept new cases involving issues raised in Carlos. I waited for the hammer to drop.
The other case of significance that occupies much of my time is People v. Jaime Abraham Vila, who is charged with three murders, has been convicted of one, and is implicated, in the words of the New York Times, in 26 or so total killings.
The case was reassigned to me from Mike Adelson who handled it for many months, in a motion for dismissal for denial of speedy trial.
In 1975, Jaime Vila was allegedly a leader of a heroin smuggling gang centered in the Bronx, New York City. He was supposedly extremely rich, but he made some critical mistakes, trusted the wrong people, and now will probably spend the rest of his life in prison. According to the record, his organization was in a war with competing gangs for control of the New York heroin traffic.
At one point his west coast source dried up and he had to come out here to establish a new connection to get heroin from Mexico. While here he met a Hollywood pimp / hustler called “Kato,” Ralph Di Katlo. Kato told Vila he could get large amounts of heroin. Kato introduced Vila to Arthur James Leeds, a young lawyer who liked the fast lane that his clients travelled, including the traffic of women, dope, and money.
Leeds supposedly became friendly with Vila and began to talk business. He also introduced Vila to Sonny Perlman, another Hollywood hanger-on and petty criminal. Leeds defended a pimp named Carl Girard who was accused of beating two prostitutes, and forcing them into his stable. Leeds and Kato told the girls not to testify against Girard; they would protect the girls and take over Girard’s operation.
The girls went to the Vice cops who taped their talks with Leeds and he was charged with pimping and pandering, solicitation of perjury. While this case was pending, Kato, according to Leeds, was given $40,000 by Vila to buy heroin. Instead, he hid $20K in Leeds’ closet and took the rest to Las Vegas along with Leeds. This was on Thanksgiving weekend, 1975. Leeds left while Kato stayed, supposedly winning big—for a time.
When Leeds got back, Vila accused him of stealing his money. Leeds told him about Kato’s gambling. Vila seemed to believe Leeds. They went hunting together, and when Vila found out that Kato might also be a “snitch” he decided that Kato had to die. Vila’s two henchmen, David Perez and Julio Cestero were alledgedly assigned the hit. Leeds’ gun was taken in order to use in the killing.
Kato then called Leeds from Vegas, saying that he had lost the $20K. Later, he came to Leeds’ office and after stalling him for an hour, Leeds gave him $100. He failed to warn Kato that he was going to die. Two days later Kato and his girlfriend, a prostitute named Joni Scruggs, were murdered.
Leeds knew about it but said nothing. When police questioned Leeds, viewing him as suspect, Leeds denied everything. He continued to associate with Vila, helping him in his heroin trade in LA and New York.
On August 29, 1976, a Mr. Roiz was found in a Mustang on the 605 freeway with three bullets in his head. A .45 was found over the freeway fence. Vila’s name was found on a bill of sale in the console. Police found the registered owner who said she had sold the car for $2,000 to Vila. Vila had written his own address on the bill of sale. Police contacted Vila’s wife, Pat, who said he was out of town on business.
When he returned, he went to the police station with his lawyer—James Leeds—and told them he had sold the car to some guy in Tijuana. The police were stuck.
It was now November, 1976. Leeds had gone through months of delay of his own case, one hung jury, and two court trials. He stood convicted of pandering and solicitation of perjury. He was in real danger of losing his license to practice law and his freedom to a jail or state prison sentence.
Leeds played his ace. He told officers that he had knowledge that would implicated Jaime Vila in at least three murders in California and one in New York. Also, he would reveal facts about Vila’s drug traffic that would convict him and others in his organization of drug smuggling, a federal offense. By this time, NY cops were quite familiar with Vila, who was known as “Teenager.” They were waiting for just such a break.
Leeds told cops that Vila had shot Roiz with a gun that Leeds had given Vila. Leeds had gotten the gun from Sonny Perlman who had gotten it from Richard Rex, who had stolen it from a motel room rented by a Louisiana cop, who was in LA to attend helicopter school.
According to Leeds, Vila had killed Roiz because he had pocketed a large sum of money intended to buy heroin. On the morning following the shooting, Vila had summoned Leeds to his apartment, and told him how it happened. He had shot Roiz three times, one bullet had gone through the dashboard and severed a wire that made the ignition inoperative. Vila had thrown the gun over the fence. He and the driver then ran five miles, licking the blood off his hands.
Police were willing to believe Leeds. It fit neatly into the scant evidence they had gathered. They were desperate to finish Vila, to wrap up three murder cases.
That Leeds himself was dirty, there was no doubt. By his own admission, he had supplied the guns in all the killings. He had been deeply involved in the drug traffic. He had participated in the planning of one killing, in the cover up of all of them. He was now a convicted felon and perjurer. He had his own motive to kill Kato and he was obviously giving, or selling, his info to save his own skin.
But the authorities didn’t have much choice. The feds wanted his help, in LA and NY. So did the NY drug and homicide police. The DA made the deal: immunity from all drug and homicide prosecutions. There would be no overt promises on his case, but sentence would be delayed until after his testimony in all the Vila cases. If he came through, a letter would be sent to the State Bar, to try to save his license. Perlman and Rex were were also given deals and protection.
Vila had begun a long slide down the roller coaster. He was arrested for the Roiz killing. Before he could be brought to prelim, he was transferred to NY custody. He had been indicted through Leeds’ testimony for murder there. He was then indicted on drug smuggling charges in NYC federal court. He was tried in both cases and convicted: sentenced to 25 years to life and then 15 years, consecutive to that.
Then he was brought to LA. He finally had his prelim for Roiz. He was immediately taken into federal custody, tried and convicted of smuggling, and sentenced to two more 15 year sentence, also consecutive. He languished in federal prison.
In 1980, he was indicted for two more murders, Kato and Scruggs. Finally he was brought to LA after the DA located his body in prison and transferred him out in 1982.
Back in 1978, after he had been held to answer, his private lawyer had dropped out and the Public Defender was appointed. Frank Bardsley had been sent by Stu Rappaport to Department 100 to handle it. Frank was about to go on vacation to meet his wife in Puerto Rico where she had been assigned by her law firm on a civil case. Frank was thrilled when he interviewed Vila and discovered that he asserted an alibi for the LA shooting on August 29, 1976. He said he had been in Puerto Rico at a child’s baptism.
Frank got quick approval to go to Puerto Rico to investigate the claim. While there, he met several members of Vila’s family who promised to obtain proof and send it to Bardsley in LA. Some weeks later, Frank received in the mail a copy of a baptismal certificate, claiming that on that date, Jaime Vila and his wife had been witnesses there to a child’s baptism.
Shortly thereafter, Vila disappeared in the jail / prison shuffle and his various courts in NY and LA. During an almost two year period, the case languished while each time, the DA agreed that Vila was in jail or prison somewhere, but didn’t know exactly where he was. The DA was not anxious to bring Vila back for trial, and Bardsley wasn’t so anxious, either.
It was not until 1982 that he was found. By that time Bardsley had been promoted and the case was reassigned to Mike Adelson. Vila was now charged in two case: the murder of Rois in ’76; the other a secret indictment charging the double murder. The speedy trial motion went on for months. Finally, it was granted as to the secret indictment, and denied as to the single murder case.
John Scott in Appellate filed a writ appealing the denial; the DA appealed the dismissal of the secret indictment. Adelson was transferred to Beverly Hills to be in charge and the case was transferred to me.
I found Jaime Vila to be a very soft spoken man, who acts appropriate to his status, having been in custody for a long stretch; seemingly resigned to spending a much longer time in prisons. The cases, he claims, were all set-ups, due mostly to Leeds who wanted to save his own neck, and to lying police who were desperate to nail him. He also blamed his “incompetent” lawyers, notably, Ronald Parker.
He has all his cases under appeal and expects to win, because there was not evidence against him. As to these charges, he wants to fight them all the way. As I plowed through the volumes of material I had: three volumes of the prelim; one transcript of the grand jury indictment; one transcript of co-defendant David Perez’s prelim; the 100+ page sheriff’s murder book; and the enormous murder book for the double murder, I began to get a feel for the case.
After getting discovery from the DA, Sterling Ernie Norris, that consisted of two giant expandable folders of papers—and a Xerox copy of a 1976 New York Times series of articles about Vila and the murders, the picture that I have written about emerged.
The first thing I did was send my investigator, Tony Trujillo, to Puerto Rico to track down the alibi. As I feared, it turned out to be not very productive. Tony found Vila’s family and the priest who did the baptism. He found several irregularities in the certificate that lent serious doubt to the alibi as a viable defense.
Tony also went to federal prison at Marion, Illinois to interview an inmate, who, Vila claimed, was with him in Puerto Rico at the baptism. The supposed witness, Jose Valenzuela, was serving a life term for drug smuggling but cheerfully told Tony that he expected to be released in an exchange to Mexico in five years. By his answers, Tony became convinced that he would not be a believable witness.
That left me with very little in an affirmative defense. Just as well because alibi defenses are the worst kind. Unless airtight, presenting anything a jury smells as fabricated can turn a weak prosecution case into a conviction. I began to turn my attention to weaknesses of this prosecution case.
Clearly, the Achilles heel of the DA case was James Leeds. His testimony was needed to convict Vila. There was some independent evidence: his connection to the Mustang; his connection with the victim, by phone calls made and received; the victim’s mistress who knew of Vila’s involvement with Roiz and drugs. There was also a footprint at the scene that was the same size as Vila’s foot.
But Leeds put the gun in Vila’s hand, gave the motive, relates Vila’s supposed admissions. He was corroborated by Perlman, another paid informer. These two are deeply implicated in the crimes, not just as witnesses, but as participants. Leeds joined Kato in the prostitution racket and had his own ample motive to dislike and fear Kato, a known police informant. Vila had accused Kato and Leeds of stealing his money. Leeds blamed Kato. He provided his own gun to Vila to kill Kato. He returned the rental car that had been parked in front of Kato’s house. There was more. In his various testimonies before many courts, Leeds had been inconsistent, minimizing his own involvement with drugs and in the murders.
But, and it is a huge but, the bottom line fact is that he has been effective. He broke the Vila organization. His testimony led to Vila’s convictions in NY for murder, drug smuggling, etc. I began to think in terms of a court trial for three reasons. First, Leeds had proved to be good in front of juries; a judge might see through his façade and be offended at his sleaziness as a member of the Bar.
In a jury trial, impeachment of Leeds required going into all of the murders and crimes that Vila was guilty of, whereas a judge would not be prejudiced by that. In fact, knowing that Vila was already subjected to so many life sentences, a judge might well conclude that this trial was a waste of time. He might even be disgusted enough to dump it.
When I discussed my theory with Bardsley, he agreed, but he thought Vila would not go for a court trial. Many in his position are distrustful of the system, especially judges. “Waiving” any rights was not something that most wanted to do. Yet, when I posed it to Vila, he jumped at it. He was sure he would win because the case was “bullshit.” I think that after three losing jury trials he is ready to try something new. Actually, he is more concerned with his hoped-for reduction of sentence in his California federal case, one that he wants me to pursue.
I have made some efforts to do so, but like every other part of the Vila saga, it is slow, tedious work. I have been trying to get the transcripts of his other cases, to gather ammunition to impeach Leeds, but I have not been able to get the case numbers. I’ve talked to the lawyers who represented him on those case, but they have been no help. His previous lawyer on my case, the one he paid to do the prelim, has also been disbarred.
I have Leeds’ testimony before the State Bar. I conferred with LASO Lt. Fitzgerald, the I/O, who provided me with some useful background info. Also a recent rap sheet for Sonny Perlman, who, despite being in the federal witness protection program, given a new ID and home, has been convicted of a new drug selling crime, totally without Vila’s help.
I am now at the point where I am prepared enough to waive jury and set a trial date a couple of months away.
Apart from these few interesting cases, my calendar has been filled with the usual run of robberies, arsons, auto thefts, marijuana sales, PCP dealings. I have been spending time thinking about capital cases, the legal and practical problems involved. I have now watched arguments and scattered parts of four capital cases and have made some observations.
The first was Ricky Lee Sanders, the “Bob’s Big Boy” case. Sanders and another person robbed the restaurant, herded the employees and some patrons into the freezer and shot them all, killing several, crippling others. Leslie Abramson represented Sanders.
While the jury was out in the guilt phase, she appeared at our Wednesday night death penalty meeting and sought our input on her penalty phase strategy. In the discussion, it became clear that she did not have a clear perspective about her plan or the impression she had conveyed to the jury. She kept saying, “The jury likes me and they like Ricky and the hate Giss [Harvey Giss, the DA.]” We felt that this was unlikely considering the ghastliness of the crimes, but politely tried to get Leslie back to earth.
In her penalty phase she put on her client’s brother, a decorated soldier, to tell the jury about their bad childhood and his love for his brother. Fine, except it allowed the DA to point out to the jury that both brothers had the same bad breaks, and one chose to become a ruthless killer while the other made a different choice. Watching her argument, and then Giss’s argument was disturbing. Leslie argued many of the points suggested by the so-called experts: the awful finality of death; the lack of any reason for the death penalty; the brutality and inhumanity of the penalty. But her demeanor lacked convincing force. Giss, on the contrary, demanded justice for the dead and crippled victims, with all the righteous fury of an outraged prosecutor. The jury came back with death.
The next was a case in which a 19 year old defendant had shot a Russian immigrant and his wife in a stupid robbery attempt. The woman died. Mel Tennenbaum, a PD, had represented the defendant until he had been promoted. Now, an old African American lawyer, Jerry Lenoir, and Hal Miller had the defense. Brian Kelberg was the DA.
Kelberg’s argument was a textbook sample of DA arguments, citing all the much used examples and allusions, the “tiger in a cage” clichés. He cited a judge’s speech from an old case in he discarded the rationales that had been put forward in favor of capital punishment, but was left with one, that it was the law, and that some people deserved to die for their crimes.
Lenoir was appalled. He had not expected the case to get this far, had not prepared well enough for this phase. Now, he became enraged. He knew the case Kelberg had cited. He had been the DA in the court at the time. The defendant there was a multiple murderer who had killed several wives for profit. He draped his arms around the slim shoulders of his client, a cowering boy and begged the jury not to do this “to me.”
The third was the Miller case, also one of Tennenbaum’s old cases. Now Jay Jaffe and Charley Patton, also former PD’s, had this nightmare. Miller was charged with killing four people, and four more attempts that failed. The evidence was circumstantial and weak from a legal point of view. But it was enough to convict because there were so many bodies. A jury just couldn’t take the chance of erring on the side of acquittal.
The penalty phase was a shambles. Miller acted up, prevented his lawyers from presenting family members as witnesses to plead for his life. In argument, Patton’s ego prevented him from making the best arguments: he really gave no good reasons to spare his client’s life. Patton relied on his shared history of poverty: a sharecropper’s son. He argued to one Black woman in the front row who carried her Bible and tearfully followed his sermon. She prayed and God told her to vote for death. As did the others, who had made up their minds much earlier.
The most recent was the Hillside Strangler case. Angelo Bono’s lawyer, Jerry Chaleff, also a former PD, had endured two years of trial and when the jury came in with guilty verdicts—nine murders—it looked like a certain death verdict was foreordained. Jerry’s argument didn’t matter because this jury, too, had made up its mind for life in the guilt phase. The reason was simple.
The question we have explored is: why vote death? Why vote life? John Moore has posed the problem after studying these cases and others that have been widely reported: Robertson, Easley, Harris, Autry, et. Al. There is one answer for each of these cases. The variables are too broad for easy analysis.
Chaleff’s penalty argument consisted mostly of an indictment of Kenneth Bianchi who had been caught in Washington, and admitted murders there. He admitted that he was the LA Hillside Strangler, claimed to have multiple personalities that surfaced in videotaped hypnosis. Then he admitted that he had feigned hypnosis and the whole phony defense. He made a deal. He pled guilty to five or six murders and was given life sentences in return for testimony against his cousin and crime partner, Angelo Buono.
I was at the county jail to see Jaime Vila one day. He was in “high power,” the area reserved for security risks. While waiting for him to be brought down, I glanced to my left and saw Al Simon, another PD. He had only one client, and was conversing amiably with him. It was Ken Bianchi. I caught snatches of the conversation—Chaleff’s name, some book about the case that Bianchi had read, talk about some money Al could put on his books, something about when he was going to be transferred to prison to begin serving his time.
Bianchi was—as so many murderers I have known—soft-spoken, mild-mannered, occupied by the minutiae of his case. He wore glasses on his dappled, pasty-complexioned face. His well-known curly hair was well groomed as was his mustache.
Vila was brought down in handcuffs and, after they were removed from behind his back, they were re-attached to a chain on his side of the counter that separated us. He handled the indignity and discomfort with an equanimity born of experience. People serving long prison sentences have a slow, deliberate manner. They don’t walk too fast, or talk too loudly; their handwriting is often careful and meticulous because they have nothing but time. They are like people in long, languid vacations—nothing but leisure time on their hands.
Vila is a solid, powerful looking man. He is not fat, but is broad, so wide that he seems shorter than his 5’10’’ or 11’’. His head is leonine, thick black curly hair and full black kinky beard, spotted with a few grey hairs. His face is dark, though it is also pale from the lengthy time in prison, almost a grey pallor. He has an easy smile, that wrinkles his face in a cheerful way and exposes one or two gold teeth among the others.
We discussed the letter I sent to Judge Pregerson, inquiring about reduction of his sentence. We discussed Perlman’s new crime, selling dilaudid while still in witness protection. The State Bar had provided Leeds’ testimony. They wanted Vila to testify at his hearing to reinstate his license. Vila was tempted, but couldn’t admit that he was a drug smuggler.
The case was set for court trial before Gordon Ringer. Karen Rizzo had taken over the DA’s case. She had been in a long trial, the “Skid Row Stabber,” and needed time to prepare. I got along well with Karen and her involvement, rather than Norris’s meant a smoother trial. I told Karen about the case, focusing on Leeds as the least reliable and most culpable of her witnesses, just so she would have the right attitude about the case from the start.
We set the case on February 7 for court trial. Now my real prep could begin.
Tuesday, 29 November, 1983
The pressure is beginning to build. At the start of this journal I noted that one of my fears about coming back to felony trials was remembering that on each of my previous tours I began to lose my grip after about a year. The calendar active cases begins to build to unmanageable levels, the cases become more serious, the unsettleable ones don’t go away, fatigue and frustration set in.
Two of my appellate cases have lingered. The Carlos special circs case that I argued before the Supremes in December still remains undecided. It has been assigned to me for trial and except for some moments of irritation, it is like a sore that doesn’t hurt.
The second is Donaldson. In September, 1980, a pre-school teacher in Compton, came upon some people who had broken into the school early in the morning. They tied her up and one killed her. Three weeks later, Lester Donaldson, 15, was taken to SW police station because he might have had some info about the crime.
He came in voluntarily, not under arrest, and was not a suspect. Later, his brother, Kenneth, called the station and also walked into the station to see about his brother. After each was interviewed separately, they were placed in an interview room and left alone. The room was bugged.
Police heard Kenneth make an incriminating statement. Both were arrested. Kenneth was charged with murder, burglary special circs, and they were seeking death. Charlie Gessler, one of the best and most experienced PD’s was appointed. He made a motion to suppress the statement. It was denied. He asked the Appellate Division to seek a pre-trial writ to reverse the ruling.
I researched it and decided there was merit to the argument that taping a private conversation, even in a police station, is prohibited by the US and State constitutions. Cases had always held that conversations were not protected if one was in custody. That was presumed to be justified by security reasons. But no case had ruled that private talks between brothers who were not in custody, but had come voluntarily as possible witnesses, in circumstances where they were led to believe that their conversation was confidential, could be secretly overheard and used against them.
My writ was quickly denied by the Court of Appeals but the Supreme Court granted my petition for hearing, then held the case for a year without acting on it. They had other cases that involved conversations with inmates and seemed likely to review their old rule pertaining whether an inmate had the right to any degree of privacy.
They ultimately decided the De Lancie case, ruling that one could sue to challenge the jail procedure or routinely monitoring conversations between inmates and visitors. They cited a new Penal Code section that recognized some right to privacy.
But that case was not on point because neither person was in custody at the time. Then, suddenly and surprisingly, the Court sent a letter to me saying they intended to hear argument on my case to decide “unanswered questions” of De Lancie. This news was disturbing, because I suspected I was being put into a corner and being set up to lose. I carefully framed a supplemental brief arguing that my case should be decided on its own merits and not on De Lancie’s reasoning or procedure.
In February, 1983, I went to San Francisco for the argument. I had been there in December to argue Carlos, my first case. Now an old hand, I went up again. The first time I had brought Bea, Greg and my parents. Now, I went alone. It was routine.
The argument seemed to go well. I reminded the justices again and again that my case was different from De Lancie. They seemed to listen. Then, no decision for many months. Now, November 21, the opinion has been issued.
In 26 pages, Justice Broussard (who also signed Carlos’s majority opinion) ruled that there is no right to privacy in a police station for either witnesses or inmates. Every case the opinion cited involved at least one inmate, so I was disappointed; they hadn’t seen the distinction at all. To add to the misery, they used my case to decide that their decision in De Lancie was not retroactive. Thus, all those who were in the same position as that defendant, were screwed. As I feared, the Court ignored my simple issue to decide an unrelated point of law.
I now need to prepare a Motion for Rehearing, due December 6, even though it has very little prospect of success. On Thanksgiving weekend, I spent all day Saturday in my office and began the work. But writing requires hours of uninterrupted concentration. You have to sit and struggle, re-think and re-work over and over again. In Appellate, that was my only focus. But now I had a calendar full of other cases to prepare, preliminary hearings to do every day, visits to the jail to make, witnesses to interview, investigation requests to write or dictate, meetings to attend.
Then on November 28, I was assigned a new capital case.
Monday had already been a rough day—“one of those days that history tells us are better spent in bed.” I had 5 prelims set, including one murder case, an arson, and a drug addicted transgender informant. Late in the afternoon, when I thought I had cleaned up all in the prelim court, except for one bench warrant pickup, I got a message that Rosalie Rakoff, one of our head deputies, wanted to see me.
When I called, she told me that she had a special circs case to assign to me. The client was now in Division 30, waiting for a PD to set his prelim date, and for appointment of counsel for his 2 co-defendants. Marcus Egarton, the defendant Rosalie had picked for us to defend, was said to be the shooter; the others were accomplices. This was PD policy: we take the most culpable one—because we are better than the private lawyers who take appointments—at least that is the theory.
Despite some further complications (Egarton had other pending cases, and had been sent to these other courts), I was able to meet him late in the afternoon. He was in the lockup on the 5th floor, among a hundred other, malodorous inmates. I introduced myself to him, gave him my card, warned him not to talk to anyone else about his case. I told him what would happen next and that I would visit him in the jail to talk in detail about the case.
The two lawyers who were to be appointed for the co-defendants were expected at 4 p.m. It was now 3:30. I went to my office and read the file. There wasn’t much in there, which was disturbing: just a preliminary investigation report by the officers who first arrived at the scene of the crime on August 23, 1983.
They found that a man had been shot and killed near his car at 10:30 p.m. on Gramercy Place in L.A. The report named a couple of witnesses, stated that John Morris, the victim, was an insurance agent, who after doing some business, was getting into his car when he was confronted by 4 young black men. One carried a shotgun. They took his watch, credit cards, money. The guy with the shotgun gave it one of his partners, pulled a .38 and shot the man.
The next report was my client’s arrest on November 15. It was based on “roll call info” that included his photo. A follow-up report on November 21, stated that a witness named Sean Johnson was “re-interviewed” on November 17 and gave a description of the suspects. He was shown photos and picked out my client as the shooter.
There had to be much more to this. Why no reports between August and November? How many witnesses were there? What other evidence? Who was Sean Johnson?
Back in Division 30, I met John Yzurdiaga, the lawyer appointed to represent Howard. John had been a PD and was respected for his competence and likeability, as well as a wry Basque wit. We chatted until Jeff Brodey arrived to take the third defendant. Jeff also was a PD alum I’ve known forever. Bea and I were friends with Jeff and his then wife, Susan. They had gone on the round-the-world trip and shared their adventures with us. (Our marriage endured; theirs didn’t.)
We set the case for December 9. Although that would not give us nearly enough time to adequately prepare, the clients had a right to an early prelim, and we didn’t have the time to secure their waiver of that right. In the courtroom I found my client’s girlfriend, Lisa. She gave me the names and addresses of some people who might be witnesses. She said they saw the shooting and could say that Marcus hadn’t don it.
She also said that Marcus’s mother would not come to court. She had thrown him out and didn’t care what happened to him. That was not a good sign. If this was a true capital case, family cooperation would be needed.
The court appearance was short. Mike Tynan (also a former PD) was the judge. He sent the case to Division 37. The judge there was George Trammel. (I had tried one of my first misdemeanors before Trammel, and later, tried the David Brinson capital trial before him).
The next day I went to the jail and interviewed 5 clients. One was Erik Monteverde, who allegedly had shot a man in a bar fight. The case felt like it could be a murder—as the I/O had snidely insisted—but would probably be seen by the DA and judge as a manslaughter. The client didn’t seem to be a control problem; he was sensible about his dilemma.
Egarton was the last interview. He wasn’t brought down until 20 minutes before the room would be shut down for shift change break. That was okay; on a capital case where I would need many interviews, the first is usually only an introduction meant to establish confidence and let him get to know me, to lay a foundation for later trust.
He was a young black man with a short haircut, muscular build, crooked and somewhat protruding front teeth that gave him a pronounced lisp. He rambled on about the case. I listened. He had been hanging around the place where the shooting happened. He is a Crip and was “banging” with his homies.
Mostly he wanted to know what else the police had besides Sean Johnson. Sean was arrested with the keys to the man’s car. Sean is a “Blood.” He was angry with Marcus; several incidents between them gave Sean a motive to lie. Sean had tried to rip off Marcus’s old girlfriend’s house. Sean was always asking Marcus for money. He wanted Marcus’ help when his stepfather tried to beat him up.
I tried to slow Marcus down. I told him I would need more time to investigate all of this. I don’t know if it sunk in. He is con-wise, tough, 19 years old. He is not afraid because he doesn’t realize that—at least for now—“they” might be wanting to execute him. This is just another humbug case that “they” are trying to put on him.
Egarton had another case pending. His PD, Marty Wegman, told me that he thought he might have gotten the attempted burglary reduced to a misdemeanor theft, but Egarton had failed to go to the probation office and to court for sentencing. When he was picked up, he told Marty he didn’t want probation. Marty thought he could get county time for him. But, Marty worried, the judge might see his arrest for a robbery-murder as a reason for prison. Really?
I spent the next few days cleaning up my desk and thinking about the Donaldson petition for rehearing. I wrote part of it on Friday at the office and Saturday at home (December 3) I spent the day with a pack of cigarettes and finished the damned thing in respectable fashion. As a result I was able to relax on Sunday when the family came for a Chanukah party. On Monday I submitted the draft to the Appellate secretary, who grumbled and began to type. I was then able to turn to other cases.
Marcus Egarton’s girlfriend, Lisa, showed up at 8:30 a.m. She had visited Marcus. He wanted to know what happens if Sean Johnson doesn’t appear to testify. A red light flashed in my mind. I didn’t want anything to happen to any witnesses for moral and practical reasons. Any threat to a witness would be evidence of guilt; any statement the witness made that he later denied would still be used aginst the defendant; and if a witness was killed, Lisa would be implicated, and Marcus would surely be a candidate for the death penalty.
I asked her to trust me to deal with witnesses and evidence. I warned her about getting too involved, and especially, to never discuss with Marcus anything about the case because the sheriff will monitor any conversation between them. That included phone calls and letters. (Donaldson was on my mind.)
I called the DA’s office and found out that Dick Webber was assigned the case. I didn’t know Webber. I left a message for him. One of the PD’s had just finished a murder trial with Webber. He said he was a good guy, reasonable and trustworthy.
When I got throught to Webber, he said he didn’t know much about my case, even whether he would be ready on the 9th. He would talk to the I/O and get him to copy the murder book for me. I dictated an investigation request to find the wits that Lisa had provided.
I found a message from Karen Rizzo. She was beginning to work of Vila. Fitzgerald would be meeting with her tomorrow and expected new information. He had talked with Vila on the flight from Philadelphia, hinted at admissions made. They were bringing Sonny Perlman from prison, and were trying to find the Louisiana cop who had lost his gun that became the murder weapon. Richard Rex is dead. Still trying to get the Bronx grand jury transcript.
8 December 1983
The last few days have been brutal. Because I scheduled a one week vacation (the week before Christmas—to coincide with Bea’s), I have been paying for it in aggravation and will continue to pay for a month after the week’s “rest.”
Because clients have speedy trial rights‑and always pressure their lawyers to get their cases to court sooner (contrary to the public impression that criminal defendants and lawyers always want delays—only those on bail are anxious to delay the inevitable), it is hard to schedule vacations.
To put a case even one day past the speedy trial date requires the client’s agreement, a specific verbal waiver of rights. To get that, you have to promise, cajole, threaten, con him, beg him—to do what is in his (and your) best interests to do. Sometimes it is easier to try the case and forget the vacation, incurring the wrath of family.
Jose Reza is 44, joint wise, a druggie charge with possession of some pills, just barely enough for sale as well as personal use. It is a prison potential felony, especially given his record of prior felonies. They offer him county time but he is holding out. He wants to know exactly how much jail time he has to do and doesn’t want formal probation. He is not afraid to risk prison to make his point. He’s been there before.
So, I announce to the judge that I am ready for trial. The law requires that the DA must bring him to trial within 10 days. The DA asked for 3 days to locate his witnesses. This is not going to be a problem; his wits aren’t civilians; they are police officers. Unless they are sick or on vacation, they will be found by Friday.
But the judge is engaged in another jury trial. That means the case will go to Department 100 for assignment. The judge there will make a last effort to settle the case before wasting a court on this trial. Day by day, we creep on until we near December 19th, the day I am to begin my vacation.
Meanwhile, all this affects my other cases. If I start a jury trial, I run into other case deadlines. The 13th is the date set for Monteverde’s prelim. It already has been continued once and there are many civilian wits and 2 co-defendants. That makes grant of another continuance more unlikely.
And there is also Egarton. He wants his prelim on the 9th when it is set. I have come to the jail to talk him into agreeing to waive time so I can continue it for investigation. That means another 3 weeks or a month—at least, past my vacation!
He may not agree, in which case, I will have to persuade the judge that there is “good cause” to deny his right to a speedy prelim. One good cause is to protect his right to a competent preparation, a balancing of one right over the other.
9 December 1983
Amazingly, Egarton gave me no hassle when I suggested the continuance. The case is still a humbug and bullshit, etc., but he realizes that it is a robbery-murder charge that could lead to death or life without parole. So, despite his grumbling, he folded.
But that was yesterday. Today is another day. And what a day. In addition to the Egarton prelim—that might or might not be continued (there are so many moving parts: lawyers, judge, clients—nothing is ever certain until it happens), there was a little sentencing on a receiving stolen property case. The client had pled guilty to a misdemeanor in Division 44.
There was also Reza, which was set for the DA to decide if his witness was available. If he was, I would want to get this case going so it could be settled or trial finished by the sixteenth, the last day before my vacation. That was cutting it close.
Complicating things further was a suppression motion and court trial I had set a long time ago for Gilbert Jimenez.
As the day developed, things gradually—very gradually—sorted themselves out. After the judge ordered Reza’s case to Department 100 to begin the trailing process, Reza decided to change his plea and accept the deal of county jail time with probation.
After waiting most of the morning, we finally continued the Egarton case. Sean Johnson, the main—and possibly the only—witness turned out to be a small, ugly, mean-looking young man who was in custody, having been arrested the night before for trespassing. Another witness, Paul Johnson, who was supposedly with Sean but who steadfastly maintains that he saw nothing, is being pressured by the DA and his I/O to change his story. So far, he is holding on.
In the afternoon, I geared up for the motion and trial on Jimenez, but after waiting all day, the arresting officer never appeared. The DA, Alan Yockelson (the same DA I had tried with Faron Green and Johnny Wilkes) finally acknowledged the weakness of his case and offered a plea to a straight possession, dismissing the “for sale” charge. We put the case over to Wednesday so Alan could confirm his decision with his superiors.
Wednesday, 11 December, 1983
Monday, I re-interviewed Marcus Egarton at the jail along with the other 2 defendants and their lawyers. We got witness leads from out clients so our investigations can follow up. Jeff Brodey and I had the same impression
—none of these guys act guilty. It may be that they are practiced liars, but something about their manner rings true to both of us: two hard headed, skeptics.
That was not the most important event of my day.
Earlier, John Scott, one of our Appellate lawyers, appeared at my office. “Well,” he said, “one for two is not bad.” He waited a beat and smiled. “The Supreme Court just called. You won Carlos. They granted the writ and struck the special circumstances. Congratulations.”
That was it. I had argued two Supreme Court capital cases, Donaldson and Carlos. A month ago—less—November 21—they ruled against me on Donaldson. Now they had ruled for me on Carlos.
But what did the opinion say? How did the court go? Was it a pyrrhic victory that would ultimately cause more aggravation? Would it turn out to be harmful to my client and all our other capital clients in some unforeseen, ironic way? I had to wait.
But not for long: a half hour later I got a call from the Oakland Tribune, wanting my comments on the court’s opinion. The reporter read the conclusion of the 52 page opinion. I listened as the reporter, who was not familiar with the legal patois, stumbled over the poly-syllabic words.
If I heard correctly, it was better than I dreamed. The court ruled that unless intent to kill was proved, no one could be subjected to either death or life without parole, whether the actual killer or an accomplice.
I gave some cautious comment about the possible impact.
Next was a call from the San Francisco Examiner. I asked this reporter to repeat the conclusion. It was as good as I had heard it the first time. I gave some background and more cautious words about the future.
I got another call, from Mike Millman. The State Public Defender’s foremost death penalty expert. Mike had been so helpful and kind when I prepared and then argued the case in San Francisco last December. He was halfway through reading the opinion and it sounded like we won everything we had hoped for and more. He couldn’t see how the court could not leave standing all the death verdicts where no intent to kill element was permitted at the trial.
I spoke to Bardsley and anyone else who would listen.
The next morning, Tuesday, there it was on the front page of the L.A. Times. The Supreme Court limits the death penalty. A later edition made it a banner headline. All day the congratulations poured in. More calls from newspapers: Pasadena Star-News, L.A. Times, Herald-Examiner.
I spoke to Joe Levine, former State P.D., who also had provided help on the case. He now worked for the Court of Appeal. He too felt the impact would be enormous.
Wednesday morning, more headlines—and another story, this time quoting me, naming me and the LA DA, who was “outraged” by the opinion. A call from Time magazine. Some ribbing from my friends.
Everyone is a star for 15 minutes. I enjoyed mine.
Today (Wednesday) I did 7 prelims, 3 guilty pleas. Tonight I sit in the county jail interview room at 6 p.m., waiting for Mr. Carlos to be brought down so we can talk about preparing for trial on the charges that remain, a mere murder and 6 robberies.
Thursday: It hasn’t stopped yet—more praise from lawyers, friends. Some express relief because they have clients who will benefit from Carlos. Today I got a call from National Public Radio. They have been doing a series on the death penalty and wanted to put me on tape for the evening’s “All Things Considered.” Hearing my name and voice on the nationwide program that I habitually listen to and is widely respected for journalistic excellence is a great kick.
The Carlos case was set for Friday. No longer a special circs case, the DA moved to consolidate 5 robberies into the robbery-murder case. I discussed some strategy issues with my client. Still, I had a sense of some sort of let-down. The big win was over. Now the rest would be more or less routine.
Still, we had done something worthwhile, something to be proud of. Because of luck, or fate, or persistence, or whatever, Carlos and I will always be linked. He will have attained a fame few criminals can hope for among their peers. The “Carlos case” will always stand for a rule that made it harder for California courts to execute people. He will stand beside “Miranda” “Escobedo” and “Wong Sun” as a name that will be cited countless times.
As for me, it has already occurred to me that 20 years from now, young lawyers wil be told that the old geezer with the stooped shoulders and odd ways is the “lawyer in the Carlos case,” just as Charley Maple and John Moore were on the “Onion Field” case.
I don’t mind it at all. It is better to be known for something important than for some horrible event, or not known at all.
Whatever, it was a hell of a week.
Tuesday, 20 December 1983
I have begun what I can laughingly call my “vacation.” I brought home 4 briefcases full of the Carlos and Vila files. I have been plowing through Carlos, sorting it out to prepare motions: severance, to suppress evidence, investigation. Both trials are set for February, which seems like the day after tomorrow.
Saturday, 24 December 1983
The past week—my vacation—I have been lucky. I have been able to use most of each day to read files.
Tuesday, 27 December to Friday 30 December 1983
After my one week “vacation” I returned to work today to find a box stuffed with new case files. While I was gone, I missed one prelim day. Young, inexperienced PD’s handled the cases in my absence. Of course, with my luck, they found no conflicts, no private lawyers took over any case, none were dismissed, no guilty pleas were taken.
Luckily, only one was mishandled. A client charged with molesting his stepdaughter was released on OR before he was given information needed to assure his reporting to a psychiatrist. The rest were held to answer, meaning that I will have to follow through on all of them. I find myself always playing catch-up. I will never feel completely comfortable with the clients or the facts.
One of the other cases was certain trouble: a bomb threat and arson by a homosexual schizophrenic. I interviewed him today at the Hall of Justice jail. He started by saying he didn’t want a public defender because he had a conflict. The PD wasn’t preparing his case the way he wanted it done. He challenged me to prove to him that I was a good lawyer.
I was in a bad mood. I am beginning to feel a cold with sniffles and sneezes. After 4 days of frustration, I had lost all patience. I told him flatly that if he wanted to hire a lawyer, he should. If not, he could represent himself. If he didn’t like me he could tell the judge why and ask him or her to appoint a new lawyer. Whatever his choice was all right with me. As to my caseload, I pointed out that anyone he hired would have his own caseload—if he was any good.
My speech shut him up for a while. I went on the details of the case with the certainty that he will be trouble later on.
I have 5 or 6 new files set for prelim on January 3. One was a kidnapping for robbery, that carries life in prison. After interviewing the client, though, I found a conflict of interest. Our office represented his co-defendant.
On the same day, the 28th, I interviewed a man charged with robbery. He is an ex-con, pretty bright, a little hostile, a client whose attitude makes it clear there will be issues with client control: more trouble to come.
In all, I now have 48 open cases assigned to me. It really is too many—an ungainly caseload. Especially in a court in which the judge will not give enough to make deals and the DA’s are lazy, have little judgment, and can’t be pushed.
It means more jury trials, and that means clogged calendars and a hectic few months ahead, with Carlos and Vila leading the way. On top of that, I have some sticky cases from Morrow’s court. These must be tried. And then there is Egarton, the special circs. prelim with all the needed work and aggravation. Oh, and the Monteverde murder.
1984 is going to be a grueling new year.
I don’t remember what happened to all those cases, except for three. Carlos ended up with a plea bargain: the DA agreed to a second degree murder. Vila’s court trial took a long time. Gordon Ringer had a full morning calendar. We took many days to finish. As I hoped, he hated Leeds. But it didn’t help me. He denied my motions about attorney-client privilege to prevent his testimony. He found Leeds to be a participant, rather than merely Vila’s lawyer. Ringer added another life sentence to his other ones.
Marcus Egarton’s prelim was heard by Judge Trammel. After the evidence was in, we argued for dismissal, without much hope that a judge would dismiss a special circs murder case for insufficient evidence. As Trammel began to review the evidence, though, his demeanor gave us some hope. Brodey whispered, “He’s not going to dismiss, is he?” I shushed him. A few paragraphs later, Yzurdiaga whispered in my other ear, “Is he going to dismiss?” I hushed him. Near the end, I whispered, “Jeez, he is going to dismiss.”
Trammel not only dismissed; he did so with findings of factual innocence that would preclude the DA from re-filing or appealing his decision. The case was over.
Then came 1984.