the Onion Field (1973) (45 page)

"What are you going to do, send them back to school? Send Jimmy Smith to the prison boxing team, or the baseball team? Let them visit all their friends? Let them be big shots? Let them tell their fellow prisoners: 'What have you done? Well, I committed a robbery. Well, I got myself a cop!'

"Do you want to let them be big men at San Quentin and then start working on the Adult Authority and eventually get out? Are you going to allow them the chance to escape?

"The only thing that's going to help Jimmy Smith is to make Powell look worse than Jimmy. It's nothing but a question of vicious and more vicious, horrible and more horrible. They had a trial out there in the onion field. They found the officers guilty of being witnesses who could identify them.

"Do you understand Jimmy Smith? He's easy to understand sitting there with his Folsom slouch. He's a cold blooded, no

"Again, words fail me when it comes to describing the vicious- ness of this killing. I can only visualize it. I can visualize Officer Campbell out in that onion field. I can visualize his desires, his wants, his needs. I can see it and I can believe it. And I can see Hettinger too, and the fear and terror that he was in, and may still be in, with that experience that he lived through.

"Ladies and gentlemen, there is really no proper punishment but the imposition of the death sentence on these two men. I will ask you to be strong enough to return such a verdict as to each one of these defendants. Thank you."

On September 12 the jury returned with a verdict of death as to both defendants. One of the attorneys fired by Greg, Public Defender Kathryn McDonald, was in the courtroom, and was startled by a theatrically ominous thunderclap which followed the reading of the death verdict.

Gregory Powell was not startled by thunderclaps nor even by death verdicts. He was already at work on his motions for a new trial, and his various escape schemes which were being frustrated by jail security. He called a jail captain to the stand to complain of his being taken to the law library chained to a wheelchair, and of his runners, family members, being searched.

"Your Honor," said Jimmy Smith in a motion of his own, "I don't know how to explain this fully. I mean, I guess you can understand. I am about to die. I think Mr. Smith has did a wonderful job. I think he did the best he could. But it is obvious to me,whether it is to this court or not, that he didn't do his best. Because I am innocent and I have been found guilty and sentenced to death. And I would like the opportunity ... I would rather have nothin to do with Mr. Smith anymore so far as this case is concerned. And I demand this, your Honor."

Judge Brandler partially granted Greg's motion:

"The defendant Gregory Ulas Powell will be permitted to make use of the law library twice a week for three-hour sessions. We are going to allow you to make use of any and all law books that you desire in your cell."

"I wish to state that I will be filing an affidavit of prejudice against the court for the restrictions that have imposed upon me," said Greg angrily.

At last, in late September, Jimmy Smith was finally given his wish. An attorney wanted very much to handle his motion for a new trial. The attorney, Irving Kanarek, would one day defend an even more famous murderer, Charles Manson. Being such a celebrated killer, Manson could choose almost anyone and selected Kanarek after asking specific questions about various kinds of lawyers. Man- son was to smile that day, a smug, self-righteous, fanatic's smile.

"Get me this Kanarek," Manson was to say that day.

Marshall Schulman knew little of Irving Kanarek when he appeared in court as Jimmy Smith's attorney to make the automatic motion for a new trial.

Schulman hitched up his pants and thought of what he had heard about the attorney. Kanarek was short and burly, with heavy cheeks and heavy lips. He looked a bit sad in the eyes and smiled seldom. He seemed tired from carrying a mountain of law books and a bulging briefcase.

Marshall Schulman would come to liken him to a bulldog. Not just in appearance but in technique. Jimmy Smith would call him a club fighter. "Nothin smooth about him," Jimmy would say, "but he wades right in there."

That first day he waded right in there.

"You want two months' continuance until December?" the judge asked incredulously.

"The transcript is five thousand, seven hundred pages, your Honor," said Kanarek.

"This court has the matter of the proper and expeditious administration of justice to take into consideration," said Judge Brandler.

Then Kanarek framed the kind of exceedingly polite, bewildering sentence which would eventually send Marshall Schulman home with a belly full of acid at the end of a day.

"I would like at this time, also, your Honor, to suggest to the court that it would be a violation of the due-process clause of the fourteenth amendment to the United States Constitution and the several cases involving right to counsel which have been decided by the United States Supreme Court, in which that court has held that the right to private counsel, or the right to counsel of a criminal defendant, especially in a capital case, is such that in order to protect a criminal defendant who is in such a status, that the courts make sure that the defendant has all of his rights protected."

Judge Brandler denied the motion and set the motion for a new trial for October 31. Gregory Powell asked for Public Defender Kathryn McDonald to come back and his motion was granted.

But on October 23, a notice of Motion for Discovery was filed. Irving Kanarek and Kathryn McDonald wanted all documents concerning the matter of the excused juror, Mrs. Bobbick.

"Let me inform the court," said Schulman angrily, "that it is my information that Mr. Kanarek has subpoenaed Mrs. Bobbick to appear on the thirty-first of October on behalf of the defendants. He has also subpoenaed a number of jurors who participated in this trial!"

And on that day a psychiatrist defense witness was called to testify to his opinions regarding an interview someone conducted with Mrs. Bobbick, the defense hoping to show that Mrs. Bobbick was not emotionally disturbed and was excused without proper cause. Since the doctor had not examined the juror personally, his opinion was not allowed by the judge.

Kanarek once again battled through his syntax to frame admissible questions:

"Now what we are asking is, and based upon this record, we are asking, in view of all the circumstances of what happened and the lack of opportunity for independent medical examination of Mrs. Bobbick, and again we have a capital type of case which the United States Supreme Court has always given . . ."

"Mr. Kanarek," said the judge, "you repeated it so many times, the court is well aware of the fact it is a capital case."

"I'm sorry, your Honor," Kanarek apologized. "But in any event, all that we wish your Honor to consider is what is possible, physically possible. Otherwise, there is no opportunity, your Honor, at the motion for new trial, or on appeal, although I hope that your Honor grants this motion, and I think that when we have finished, I hope that your Honor does ... I think it should be granted. It forecloses all opportunity ... as your Honor is well aware, you can't augment the record on appeal."

"Next question, Mr. Kanarek," said the judge. "Objection sustained to the pending question."

"Doctor, having read the reporter's transcript, do you have an opinion as to whether Dr. Crahan had adequate basis to determine the mental condition of Mrs. Bobbick?"

"I am going to object to that as immaterial to this particular hearing!" said Schulman.

"Objection sustained," said Judge Brandler.

"Doctor, you read the reporter's transcript . . ."

"That has been asked and answered several times! Objection sustained," said the judge before Schulman objected.

"Very well," said Kanarek finally. "Call Mrs. Bobbick."

Schulman watched the frail trembling woman take the stand, her eyes flitting over all of them. He knew he wouldn't have to cross examine her.

"Mrs. Bobbick, you were the juror number four that . . ."

"I am worried about my husband," Mrs. Bobbick sobbed.

"Would you rather testify on another occasion?" asked Kanarek.

"Well, no, my husband had surgery today. I would rather testify now."

"May the record reflect the apparent physical condition of the witness," said Schulman.

"Your Honor, Mr. Schulman is not a doctor," said Kanarek. "There is no apparent physical condition of the witness as far as I can see."

"Let the record reflect that the witness is now crying. She seems to be emotionally disturbed and upset," said the judge.

"May I respectfully object to that and suggest that some doctor testify whether she is emotionally disturbed," said Kanarek.

"I am emotionally disturbed," said Mrs. Bobbick.

"Mrs. Bobbick, would you tell the court what other members of the jury called you during the course of deliberations," Kanarek resumed.

"Objected to as immaterial," said Schulman.

"Objection sustained," said the judge.

"Your Honor, the offer of proof is that this was not a volitional request on her part to leave that jury room. She was actually submitted to a series of criminal violations in that jury room by the other jurors, and the offer of proof is that she would testify as follows: 'I have been called God Damn. I have been called a stupid jerk. They shouted at me. They jumped up and down like a bunch of monkeys. So I'm a schizophrenic because I don't do what they do. The sex jokes that was going on during the trial up in the jury room . . . when you go upstairs, you know . . . small room, no . . . nothing to do, no place to go.' That is what the witness would testify to here," said Kanarek. "Her exact words, your Honor. I can only make the offer of proof by making it. Mrs. Bobbick, I will show you this document. You wrote this in the jury room?"

"My memory isn't very good because my husband has had major surgery and I haven't slept for many nights, and I don't remember the details," said the witness tearfully.

"The voices on the tape recording will convince your Honor that there was nothing but amicability between herself and those two representatives of the District Attorney's Office who took this statement," said Kanarek.

"During the time that you were deliberating, Mrs. Bobbick, did you come from the jury room down here and talk to someone?"

"Yes."

"Do you recall when you were in the jury room you were interested in the word 'deliberate'?"

"Yes."

"And would you tell the court what transpired when you came down?"

"Nothing unusual, because the English language is a hobby of mine and I look up words all the time at home. I have fifteen dictionaries at home, and it has no significance as far as I am concerned. It may have, to a perfect stranger. That, I don't know. It's nothing unusual. I look up words all the time. I have dictionaries of all languages, and it doesn't ... I look up words all the time."

"Was one of the words you looked up 'deliberate'?"

"Well, it's possible."

"Did the jury foreman say 'God damn you' because you wouldn't go along with what he wanted you to do in the jury room?"

"I don't remember. I haven't slept many nights during surgery and I don't remember."

"Mrs. Bobbick, did you not tell Dr. Crahan that the jurors were threatening you, abusing you, cursing you, and suspicious of you?"

"I don't remember. It's impossible. I had to even get my husband to give me these dates from his medical examinations and what happened. I couldn't possibly remember that. I just don't know."

"Were you very disturbed at the time you made the statement to the doctor?" asked the judge.

"Very much, because I knew on August 26th that my husband faced surgery because of a double inguinal strangulated hernia!"

"Did you mention this to the doctor?" asked Kanarek.

"No, because I didn't realize it at the time. I mean, it was only a cursory examination."

"Mrs. Bobbick, what was it that changed your state of mind when you wrote that note?"

"I don't know what you're talking about. Because I have maybe two thousand books in my home, and I went to the dictionary all the time, and you're talking about a word, and I don't know what prompts me to look a word up at home except that perhaps I want to improve my mind, perhaps. But I don't know why I run to dictionaries."

"I'm referring to the time when you were in the judge's chambers," said Kanarek. "I'm asking you to tell the court why you wrote the note."

"Why I wanted to be excused from the jury?"

"Yes."

"Well, because I've read about strangulated hernias, and every day that you. delay could be a matter of life and death, and that was in my mind; That is the basic anxiety."

"What? The strangulated hernia?"

"Well, that's about the only thing. I mean, naturally, that's something that we should worry about, any intelligent person."

"Isn't it a fact, Mrs. Bobbick," said Kanarek, "you are afraid of harassment by the district attorney and the authorities if you should give testimony from the witness stand that would in any way hurt the position of the prosecution of this case?"