the Onion Field (1973) (46 page)
Read the Onion Field (1973) Online
Authors: Joseph Wambaugh
"I'm afraid of nothing. I don't have fear. As a matter of fact, I feared the people such as yourself. You have come into my home under most unusual circumstances. I couldn't resist you . . ." Then the witness began sobbing in her hands.
"Your Honor, may the record reflect that the witness turns the tears off and on at will," said Kanarek.
"Oh no!" said Schulman, and held out his hands to the judge.
"You may suggest that," said the judge angrily. "But the court doesn't observe that at all. And the court is going to suggest that you take into consideration common decency as far as this witness is concerned."
"Now, Mrs. Bobbick," said Kanarek, unruffled, "then is it so, that you do not like me? Is that correct?"
"I don't know what you're talking about!" said the witness fearfully.
"Do you like me?"
"That is immaterial!" said the judge.
"But your Honor, I suggest that it's relevant on the bias and prejudice of this witness that it is proper impeachment to show that she is biased against the defendant because she is biased against the attorney for the defendant."
"Let's proceed to some relevant question! The objection is sustained," said the judge.
"Your Honor," said Kanarek, "this witness was not emotionally upset and disturbed. This witness was a holdout, eleven to one. She had a position. That is reflected in the district attorney's own transcript. She had a position that she maintained."
"I'm tired of this, your Honor!" said Schulman. "This record is replete with falsehoods and I don't like it. This attorney just seems to be able to relate anything in his mind that he wants to believe exists, whether it ever did or didn't exist."
"Mr. Kanarek's wild assertions, although they are reflected in the record, are not supported by any evidence. So proceed to the next question," said the judge.
Irving Kanarek then read Mrs. Bobbick's statement to district attorney's investigators to prove that Mrs. Bobbick had taken a not-guilty position: " 'Well they forced me,' " read Kanarek verbatim. " 'I finally just gave up. I collapsed. My nerves just gave up. I just collapsed. I couldn't take it anymore. That's what's wrong with something like that. They should be in a glass cage where they cannot . . . where they cannot, uh, uh, terrorize . . . and terrorize is the word . . . uh, a person because when they all shout, if you had twelve people here and you were the odd twelfth one, eleven shouting men, and you were you, you're a woman, you just couldn't take it. This is terrible, this is like you're being bombarded in your cars and your nerves and you're not . . .' And then there are asterisks which according to the legend on the first page would indicate that to the transcriber it is unintelligible, your Honor."
"I would like to be excused, I have to go," said Mrs. Bobbick, but the judge smiled kindly and motioned her to remain seated.
Kanarek read further into the transcribed material: " 'In other words I was treated like I was some kind of a nut. At first it was my request, you know. That's how it got started about the jury instructions.'
'Hadn't you read them before you went in?'
'Oh, my, yes, at gun fire speed. I'm not a lawyer, you know. After all, sure, at gun fire speed, machine gun fire, really. Well, who can retain that? Sure, I retain a lot, but I can't retain ... I don't have a photogenic mind.' "
"Your Honor, I must get my husband to the doctor," cried Mrs. Bobbick, interrupting the reading of Kanarek.
"The sole question the court has to determine is whether or not the court properly or improperly excused her as a juror," said the judge, "by reason of the two requests that were made and the testimony that was submitted to the court by way of Dr. Crahan."
The next transcribed statement of the woman read by Kanarek was on a broader topic: " 'Well, when they pick the jurors they don't pick it from the experts in law. They try to pick average people. Taxpayers, responsible people. That's all I consider myself. Now, I may be wrong but I think maybe I'm going to write the legislature and ask them to please change so that the jurors, because there are twelve, they can really use the majority rule. I think perhaps that would be the best solution. I really do think so. I've been thinking about this for a long time, ever since they all scooped down on me, and I seem to be the oddball, see? It seems to me that on ten to two or nine to three, like it is in civil or something . . . That's what I think.' "
"And that," said Schulman later, "from the lips of that poor woman was the sanest thing I heard all day from anyone."
"I am exhausted," said Mrs. Bobbick when Kanarek stopped reading. "I don't know what I'm doing. I should invoke the fifth amendment or something for my own protection."
Other of her fellow jurors were called that day by Kanarek.
"She was jumping up and down," said one witness, "throwing her arms around, screaming at us, using rather unpleasant language. She didn't have very complimentary things to say about all of us and just was in a very unpleasant physical and emotional state, I would say."
"All right," said Kanarek. "She was at odds with the other eleven on the jury, was she not?"
"We couldn't tell! She never would tell us," said the witness.
"Didn't she request at one time the instructions, or that the formal charges be read?"
"Yes she did. She had forgotten what the charges were."
After lunch that day, Mrs. Bobbick was recalled to the stand. "I invoke the fifth amendment. I cannot go on ... my husband ... in order to protect my health."
"You now don't recall anything that occurred in the jury room?" asked Miss McDonald for Gregory Powell.
"I have a migraine headache, and I don't remember. I can't recall. I can't go into that."
"Your Honor, may I object that the conclusion of this witness be stricken?" said Kanarek.
"You may object," said the judge. "Overruled!"
"She said 'migraine.' "
"She can testify whether she has a headache or not," said the judge who looked as though he were getting a headache.
"She said 'migraine.' "
"Objection sustained as to the migraine," said the judge, sighing in surrender. Then he added: "I was wondering what the attitude of defense counsel would be if, with the background such as was presented to us here through the testimony of Dr. Crahan and Mrs. Bobbick's appearance here in court, what would be the defense counsel's thinking if the juror had remained as a trial juror in this case and had participated in a verdict of murder in the first degree? That is something for counsel to think about. I am not asking for any reply to it. Proceed to the next question."
Irving Kanarek recalled the defense psychiatrist and asked a question in what Schulman would call his inimitable style:
"Directing your attention to the fact that in the August 30th, 1963, proceeding there is a conversation between the court and Mrs. Bobbick, and the fact that in Dr. Crahan's testimony he makes the statement that the judge told him about some incident in connection with a rattlesnake, and the fact that the only time that the court has talked to Mrs. Bobbick is in the August 30th, 1963, transcript, at which time there is no mention whatsoever of a rattlesnake, and the fact that Dr. Crahan used this information which he says he obtained from the judge, who had no contact with Mrs. Bobbick except in the August 30th, 1963, hearing, do you have an opinion as to the adequacy of such a statement by Dr. Crahan in connection with his analysis?"
"Objected to as immaterial," said Schulman, staring in disbelief.
"What a classic question that is!" said the judge. "Objection sustained."
Then the jury foreman testified. "She wouldn't cast a ballot," he said. "She would have a nervous tantrum and demand that we all remain silent and give her time to gather her thoughts and we should keep quiet for two or three hours at a time. We couldn't talk, we couldn't deliberate because it would offend her."
"Was there profanity used in the jury room?" asked Kanarek.
"I would-say normal profanity."
"What is that?"
" 'Hell,' 'damn,' 'goddamn.' "
" 'Stupid jerk'?"
"That's just an assertion . . ."
"Did you use the language 'stupid jerk'?" asked Kanarek.
"It's possible I may have used it."
"Who did you direct that language at?"
"I don't think I directed it at any individual any more than anything else."
"Did you call yourself a stupid jerk?"
"I very likely did for ever getting into this thing in the beginning," said the witness.
The juror was then asked to define Mrs. Bobbick's alleged hysteria.
"Well it's awfully hard to describe. When a person jumps up and screams and starts tearing their hair out and telling you she can't stand it and grabbing her head and nobody had even said anything to her. I would say she is hysterical," said the jury foreman.
The Bobbick affair used up four volumes of transcript. Marshall Schulman finally said to the court, "I don't think anybody can stop Mr. Kanarek from saying anything that comes to his mind. I am going to ask your Honor to find this counsel in contempt. He repeatedly disobeys the direct orders of the court."
"Mr. Kanarek is not doing this intentionally," said Judge Brandler.
"I think he is doing it intentionally!" said Schulman.
"I'm satisfied he is not doing anything intentionally," said the judge wearily. "It is just that he persists, and apparently he just cannot understand the court's ruling!"
"What are you going to do, your Honor?" asked Schulman. "Here you have this bulldog going forward in spite of the objections thrown in his face. He understands the ruling of the court and he just proceeds in spite of them. I don't know where he will be stopped!"
"Mr. Kanarek," said the judge patiently, "you asked the identical question to which the court just sustained an objection except maybe the words are in a little different order or a little different inflection."
Irving Kanarek, almost hidden behind boxes of law books he had placed on the counsel table in front of him, just blinked and paused for a brief moment then shook himself into action and proceeded with a new citation from a book in hand.
"Here, for instance, your Honor, is a case . . ."
"I don't want any further discussion about them, Mr. Kanarek! I can read, and I will analyze them!"
"I know that, your Honor, but if you would bear with me for a moment, please. For instance, there's a case, People versus Chesser, 29 Cal 2d 815."
"Mr. Kanarek, you need some help there again with your volumes," said the exasperated judge. "What I suggest you do, why don't you put them in some order so they won't be one on top of another? Then you will be able to find your cases."
"I invite your Honor's attention to ... I refer your Honor to the case of Moore versus Michigan, which is a United States Supreme Court case. Would your Honor care to take this citation?"
"Yes," said the judge sadly, as Schulman fiddled with his necktie and hitched up his pants.
"Did I mention the Modesto case?" "Yes, Mr. Kanarek. Yes."
During the days of new trial argument, Irving Kanarek was permitted to make motions which the prosecutor would rage about when back at his office at day's end.
"Your Honor, these five witnesses would testify," said Kanarek, "that during this motion for a new trial they were taken to an anteroom and the female deputy required these female witnesses to lift their dresses, lift their slips, if any, until the most intimate items of apparel, their underpants, were visible to the female deputy, and whatever other intimate items of apparel were present, and that she conducted this search of them before they were allowed to enter the courtroom in connection with the allegedly public proceeding!"
After seven days Judge Brandler finally ended it. Before imposing sentence, the judge read a written plea from defendant Smith in his own hand.
I have never had a profound fear of death, but to end one's life in such a grim, ghastly, and unjustified way frightens me. I am hoping that there is some humane element within your spirit that enables you to understand and have compassion on a dying man whose life you can save. I hope and pray that you are an instrument of God's everlasting compassion and save my life for me. Do I deserve to die?
With humility and humanliness, Jimmy Smith
On November 13, 1963, Judge Brandler answered him: "Sadistically, Gregory Ulas Powell led Officer Campbell to believe that his life would be spared up to the very moment that he took deliberate aim and cold bloodedly executed Officer Campbell by firing one shot into the officer's mouth. While Officer Campbell, unconscious but writhing on the ground, was in the throes of death, Jimmy Lee Smith, standing over the body of Officer Campbell, with revolting, inhuman savagery, pumped four additional fatal shots into the prostrate officer.
"Then these two defendants continued their barbarous attack by stalking the fleeing Officer Hettinger, who miraculously escaped from being likewise cruelly executed by these defendants.
"The evidence in this case overwhelmingly justified the death verdict by the jury. It is the order of the court that you shall suffer the death penalty and that said penalty be inflicted within the walls of the State Penitentiary of San Quentin, California, in the manner and means prescribed by law at a time to be fixed by this court in the warrant of execution."