the Onion Field (1973) (40 page)

Finally on Monday, August 19, defendant Jimmy Smith took the stand and was cross examined by Marshall Schulman.

"Was there any conversation between you and Gregory Powell, whispered or otherwise, that let you know that he was going to shoot one of the officers or both of them?"

The answer, Pierce Brooks was to say, was pure Jimmy Smith in its evasiveness.

"In my mind, no sir. I'm positive that I had no thought in my mind. Right now. That I can remember."

"And you never worked the farms around that area of the Maricopa cutoff?" asked Schulman.

"I'm almost sure I haven't. I swamped some spuds once down there and I also picked cotton goin the other way. But I never remember workin close to the mountains. Maybe I did, but I don't remember it."

Then Marshall Schulman read a disjointed transcription taken from a detective who was present the night of Jimmy's capture. It was taken by a stenographer and it was read by Schulman verbatim in the form of a question. The statement was difficult to follow, at times incoherent, and Pierce Brooks looked at Jimmy Smith and imagined the absolute fear that was on him that night when he huddled there handcuffed, a blanket over his naked shoulders, his feet bloody and painful, while he was interrogated, not for his usual five-dollar shoplift, but for the murder of a cop. He could easily imagine Jimmy babbling incoherently, and he could understand how a man like Jimmy Smith could have survived his wretched life by never giving anything but an indirect evasive reply to anything anyone ever asked of him.

Brooks could understand, but that was all. He despised the lying coward too much for a quantum leap into pity. Jimmy had blurted things to the Bakersfield detectives:

"When I hit the county jail, I'm gonna make them give me . . . give me ... I know that I ... A psychiatrist thing, you know, and I bet you he can tell, you know, that I, you know . . . that I, you know . . . that I'm not mental, that I couldn't do it, you know, do that I hope I didn't do it. I might do it, you know, in a pinch, or maybe if I was shoved into it, or something, but I mean, as far as just outright, you know, just kill a man, you know. Was there anything else you wanna know?"

The jury listened in rapt attention as the words on the transcription tumbled brokenly:

"I don't know whether . . . maybe not, maybe Powell will tell you. Maybe . . . man, he's sure to think, you know, about that. You know what? It's just, you know, outright cold blooded, you know? This takes a lot of ... I don't know what this is. He's gotta be a nut, man, you know, just to, for no reason ... If you are gonna attack me, or just to cold blooded kill . . . How could I do that? Could you do that? I mean, you maybe could. I mean, there's no motive other than maybe to escape or somethin. Well, uh, this don't ... I don't know. Maybe it was doin time, or somethin that made me, could build myself up to somethin, or ... or, if I thought I could escape the Death Row, or somethin, you know? But, how could a guy in this cold blooded . . . and this was a simple matter, takin the guys back in the hills and dumpin em. This is . . . this just can't be done, you know?"

"What were you doing," asked Schulman finally, "when Gregory made the statement: 'Jinuny, what the hell are you doing? The guy is getting away'?"

"As far as I know, I was just standin there like an idiot because I was in shock."

"You were shooting into a man's body, weren't you?"

"I never saw his body. I never saw ... I never looked . . ."

"Mr. Smith, describe the twitching motion that you saw on that body on the ground."

"I either saw an arm or a shoulder ... I don't know which it was. I couldn't even determine the color . . . but it seemed to me . . . I even had dreams about it, that it was . . . periodically, just a few times it was done like ... or it was movin. I don't know. I can't even describe it."

"You say you have dreams about this coat jumping?"

"When I first arrived in here at night I was dreamin about it. I couldn't understand it, why I kept thinkin about this."

"Did you see the coat jumping?"

"I don't know. Yes, I guess I did see it. I thought I saw it, anyway. I'm pretty sure I did."

"You never mentioned the four bullets in the body until March 13, when you corrected everything. That's when Sergeant Brooks told you there were four bullets in the body."

"Yes sir. That made me remember. Him tellin me."

"Remember?"

"Yes it did. Then I remembered hearin those other shots!"

Now Marshall Schulman could look at the sunken cheeks and skull-like face and flat blue eyes of Gregory Powell and whisper to Pierce Brooks: "Old death's head ain't got a chance, and neither does his partner now."

At last, Brooks could look at Jimmy Smith and no longer be troubled by the thought of him hunting Karl Hettinger, quartering his victim with the little car and the lights, hunting him down like a wolf.

The defenders of Gregory Powell knew that if Jimmy Smith's fate was uncertain, their client's position was perilous indeed. And their client realized it and permitted the groundwork for a defense of diminished capacity if not outright insanity.

A neurosurgeon from Vacaville was called who had performed a craniotomy on Greg on September 14, 1961, during his last prison term.

"This patient gave a history upon coming into the institution of having had a head injury in childhood," testified the doctor. "It is the routine at the California Medical Facility to subject such a patient to neurological screening. In other words, to determine whether there is, in fact, any injury or other disease of the nervous system in such a person. This involves performance of X rays of the skull, brain wave tests, or electroencephalograms, and neurologic examination. In this particular case, an area of calcification was seen in the right fronto-temporal region."

"Roughly the right temple?" asked Moore.

"Yes sir. As I say, this area of calcification was revealed on X ray, and its exact nature could not be determined in spite of a number of different tests, so after obtaining opinions from other neurosurgeons and X ray specialists, it was concluded that the only way we could be certain that this calcification was not caused by a brain tumor was by exploratory surgery."

"Now, Doctor, what does calcification mean?"

"It is a deposition of calcium within the tissues."

"Where does it come from, if you know?"

"Well, the reasons for this are not fully known. It may occur without any known injury or disease. There may be areas of very dense calcification in the brain without apparent adverse effects. A possibility, and the thing that led to surgery here, is that certain types of brain tumors may form calcium within their substance."

"Now it is my understanding that atrophy, the shrinkage or wasting of the brain, can come from a trauma?"

"Yes sir. It will progress up to a point and then will stop and become permanent and will not change beyond that. With overwhelming head injuries sufficient to produce prolonged coma it may be progressive."

"All right now, what effect would such an injury have upon the behavior or the way a person behaves or acts?"

"I base what I am about to say on a study of previous cases with problems of this sort and usually those with this problem to a more severe degree. A person with cerebral atrophy, this is a mild atrophy in this case, but a person with real cerebral atrophy tends to have episodes of, let's say, intermittent explosive behavior, unpredictable usually. This may be precipitated or accentuated by alcohol intake and in effect it is usually a bizarre behavior."

"And could the repeated intake of alcohol continue the process of atrophy or wasting away?"

"A very heavy intake of alcohol for a prolonged period would cause atrophy itself without head injury, so it becomes a bit more difficult to say specifically, since we have two known agents under discussion that can produce atrophy."

But when Marshall Schulman took the doctor on cross examination it was evident that the prosecutor had done his homework.

"As a matter of fact," said Schulman, "there are probably individuals in high prominent positions with atrophy of the brain, are there not?"

"Yes there are," said the doctor. "I know of a congressman, but I won't give his name."

"Okay, what about General Eisenhower as a result of a stroke?"

"This would be unavoidable on the basis that I know of no other stroke that hasn't had atrophy, so I must assume the President had."

"And you studied the results of those electroencephalogram tests, did you not?"

"Yes sir, I did."

"And did they show normal?"

"Yes sir, they did."

Then Schulman related a "hypothetical" statement of murder which included the Little Lindbergh statement and posed a question to refute the explosive behavior theory.

"Well, the things in the hypothetical question," said the doctor, "which would seem incomparable with the explosive behavior concept, would be the space of time involved for one thing."

"Let me put it this way, Doctor. The space of time involved at the time of the taking of the officers to the time of the shooting was approximately two hours. What would you now say?"

"Well as I previously testified, if explosive behavior was to occur, usually it's going to occur right away in my experience."

"You have indicated that alcohol may affect Mr. Powell's condition, is that right?"

"Yes sir."

"On the other hand it may not, isn't that also right?"

"That's true."

"And if I related to you for the purpose of this question that just prior to this trial an EEG occurred, sleep induced, an alcohol induced EEG . . . you are familiar with both those tests?"

"Yes."

"And the alcohol induced EEG showed no change at all from the sleep induced EEG, and the sleep induced EEG showed certain spiking consistent with the fact that an operation or a craniotomy was performed, does that indicate to you that the intake of alcohol would not necessarily affect Mr. Powell?"

"I would have to draw that conclusion, that it might not necessarily affect him."

"A person can still have his intelligence, think and plan of his own free will, and do a criminal act and still have some atrophy, mild or otherwise, without the atrophy having anything to do with the criminal act, isn't that right?"

"I think that is true."

"It doesn't stop him from becoming a free-willed individual?"

"No sir, not a mild atrophy."

"Thank you. That's all."

The defenders of Gregory Powell then called another medical expert. This one was examined by Public Defender Kathryn McDonald.

"What is your profession, Doctor?" asked Miss McDonald.

"I am an otolaryngologist."

"What?" said Schulman.

"In simple terms, an ear, nose, and throat specialist."

Then the doctor testified: "I do not think that this mouth wound would likely be a fatal wound. It has not injured a vital structure. The structures that it has injured are not likely to bleed vigorously. I just feel that one could sustain this wound and live. My opinion is that it would not be fatal unless it would . . . you would have to consider other possibilities or infection or complications."

"In your opinion, Doctor, would such a wound be fatal as a result only of hemorrhage?"

"The structures that are injured here would not bleed enough.

I have seen many tongue wounds. They bleed vigorously for a short time."

Marshall Schulman was to ask: "Do you know any of the parties involved?"

"No. I considered it a civic duty if I could testify in this case at my convenience."

"You testified that there would be no vessels severed by this bullet wound?"

"There would be only capillaries."

"No veins at all?"

"No major veins."

"And no arteries at all?"

"I don't believe it's necessary . . ."

"Please answer my question, Doctor."

"All right. I will state again there would be no major vessel severed."

"If a bullet goes through a man's tongue, he is not going to bleed very much?"

"He will bleed vigorously for a few minutes."

"Now the palate is the roof of the mouth. This bullet tract went through the roof of the mouth. Would that not bleed also?"

"It would bleed, but we cut the roof of the mouth in surgery without concern, in midline."

"I understand that," said Schulman, "but assuming a man is out in an onion field and there's nobody around to sew him up or stop the bleeding ..."

"I don't know whether you are trying to bait me into becoming provoked, but this is repetitious."

"What would you do if a man came into your office with a wound tract that has been described to you in the hypothetical question, what would you do for him? After taking X rays and determining the extent of the injuries?"

"The probability is, I would be prone to leave the bullet right there."

"You would?"