the Onion Field (1973) (61 page)

The time had come for Gregory Powell to make good on a long-standing promise to Jimmy Smith. Fulgoni knew what Powell was going to do. It was at this point obvious to the prosecutor. It could never work at a court trial but it could in front of juries of ordinary people, unsophisticated in the ways of law and legal strate- gems.

Fulgoni believed it could work, in part because all the testimony had pointed to Smith being the ineffectual follower of an arrogant and dangerous leader. Then there was the mere physical appearance of both men. Powell was always strange looking, could make his face cruel and deadly with little effort. Fulgoni argued at the bench for all he was worth.

"He's going to take the Fifth, your Honor. You know it. I know it. Maple knows it. Mr. Hollopeter knows it!"

"I don't know it," said Hollopeter. "Your Honor, I won't dignify that statement that I'm acting in bad faith. I deny it."

"If we could have a hearing outside the presence of the jury," said Fulgoni, "then if he took the Fifth ..."

But Judge Shepherd finally decided that Section 913 of the California evidence code forbade the trier of fact to draw an inference from a privilege exercised in a prior hearing, that Jimmy Smith was entitled to call any witness he wished without a prior adjudication as to whether or not the witness would testify. Fulgoni was stopped. The code section was relatively new and there was no case law Fulgoni could rely upon to force a hearing to stop the witness from doing what the prosecutor knew he would do.

So Gregory Powell made good on his promise to his partner, became somewhat of a folk hero to the other Death Row inmates who knew what he was going to do. And six and one half years of court proceedings came down to just three questions with the responses known far in advance by almost everyone but the uninitiated jurors.

The first question by Hollopeter was: "Mr. Powell, how many times did you shoot Officer Campbell?"

"I object to that question as being asked in bad faith at this point!" said the raging Fulgoni.

"Overruled," said the judge.

The defense witness conferred with his lawyer, Charles Maple, before answering.

The second question was: "On the evening of March 9th, 1963, did you decide to kidnap two officers in the vicinity of Carlos and Gower?"

The witness conferred once again with his lawyer before answering.

The third question was: "Did you retain Officer Campbell's gun in your possession until after the shooting?"

The answer was exactly the same in all three cases.

Gregory Powell stared at each juror, his blue eyes going flat and icy. His lips tightened, and Jimmy Smith said later it was just like Greg used to be, just like when he had a gun in his hand and cocked it. This time it didn't scare Jimmy, it thrilled him. Jimmy could have kissed him. At that moment, for the only time in his life, Jimmy Smith loved Gregory Powell, whose answer was:

"On the advice of my counsel and based on the Fifth and Fourteenth amendments of the Constitution of the United States I refuse to answer that question on the ground that the answer may tend to incriminate me."

"I have no further questions," said Hollopeter.

The defense could at last rest, and did. Fulgoni looked at the jurors, at some who recoiled when Gregory Powell left the stand and stared them down as he swaggered away.

"Damn!" said Fulgoni. "Damn!" And he pounded his big- knuckled fist into his palm.

In truth, though, Dino Fulgoni was beaten by more than a trick. Ian Campbell had been slain almost seven years before November 6, 1969, when the jury returned the verdict of life imprisonment for Jimmy Smith. It was difficult indeed to bring in a verdict of death for a crime so far in the forgotten past. Time, which had always been Jimmy Smith's relentless foe, at last became his ally.

There was one last moment in the end of the penalty trial which some observers thought as important to the defendant as Gregory Powell, and as time itself. It was Jimmy Smith's final statement to the jury.

"If you are permitted to continue life, what do you plan to do?" Hollopeter had asked him.

"I don't know. Somethin constructive if I can."

"I don't understand you," said Hollopeter to his client.

"Well, I don't wanna make no promises I can't keep. Or say that I'm gonna do somethin or don't do somethin. It's very easy to say it. ... I don't know whether I wanna live."

"All right, you may cross-examine," said Hollopeter to Fulgoni.

"There's one more thing I wanna say that I forgot," Jimmy interrupted.

"All right, go ahead and say it," said Hollopeter.

"I don't know as to whether I wanna live or not. I wasn't even brave enough to stop that guy from killin that man. I coulda stopped him. I didn't have the guts. I'm sorry he's dead. I can't bring him back. What can I do? Take my life. I ain't never lived. I ain't nothin. . ." And then the defendant began weeping and bowed his head and thought of his partner and all that each had done for, and to, the other. And of the self they saw in each other. Jimmy Smith knew he would never be rid of Gregory Powell. "I'm better off dead," he sobbed. "What's the use of livin? I ain't even a man."

"Your Honor, could I suggest a short recess?" asked Hollopeter.

"I request it too, your Honor," said Fulgoni softly.

In November, 1969, Defendant Gregory Powell wrote:

Your Honor, it is with singular trepidation I begin this task of writing. Consistent with my express philosophy, i. E., life-oriented, I have no alternative but to attempt to persuade this court that I believe my case is one in which there would be justification for applying a great legal tradition, justice tempered with mercy.

During the course of the trials, numerous psychiatrists, all learned and sincere men I am sure, testified that in their opinions, I was a sociopath. This dehumanizing label sounded very scientific and precise, yes, and evoked fear when I first heard it applied to myself on the witness stand. But given time to think, reflect, and most of all, study, in an attempt to define sociopathy as applied to myself, I found myself questioning the validity of this label. I do not claim I am a sociopath, but many of the symptoms attributed to sociopaths do in fact indicate this may be a proper label, at least in general.

This is not a plea for release into a society where everyday living demands that even the average person be able to display at least adequate judgment. This is a supplication, if you will, a plea to be allowed to live out my natural life span in prison. To live in an environ where a person is not faced with making judgmental decision, but a completely controlled environment.

During the trial I read the FBI rap sheet which listed all of the offenses for which I have been convicted. This reading was necessarily an incomplete composite of my life from 1949 to the present, for I was unable to bring out in my testimony the effect the numerous convictions and imprisonment had upon me. The almost continual incarceration from the time I was fifteen to the present caused what is commonly known as a very institutionalized person. Due to this, the terror a normal person would feel at the prospect of spending the rest of his life in prison is absent when I think of imprisonment. In fact, conversely, the terror would be felt by me only if I were to have to face the prospect of life outside the prison.

"The institutional man," a reader of the document would say of the defendant's description of the most misunderstood phenomenon of penology. "How many institutional men are there in and out of prison who can never function except in a controlled environment? And who dares admit it? And what institution is open to them?"

"They kept kicking me out," Gregory Powell had said when he was nineteen years old. "I kept stealing cars and going back, but they just kept kicking me out of prison."

1970 was only four weeks away when the twelfth Superior Court judge to sit on this case formally sentenced the defendant, Gregory Powell, to death. The sentence was entered in one of the last of the 159 volumes of a 45,000 page court transcript, the longest in California history. There would of course be another automatic appeal, but most observers now saw little chance for a reversal.

In 1970, once again on Death Row, Gregory Powell requested and received a book entitled What Happens When You Die? There was, however, another condemned man named Robert P. Anderson who would have something to do with whether Gregory Powell would die in the gas chamber.

Chapter
19

The new decade was not unkind to Gregory Powell, who had adopted his middle name and insisted that everyone, even his family, refer to him as Ulas Powell

"His alter ego speaking," his attorney Charles Maple would say. Maple didn't believe there was much chance of the case being reversed again, but kept in touch.

The condemned man would receive a little money from friends or relatives, a few dollars here and there. Once he received a considerable sum from an anti capital punishment group in Italy. He had by now thoroughly convinced himself that repressed homosexuality had been at the root of his problems his whole life long, and that he had been born to be homosexual. His added weight, darker hair, and glasses softened his appearance considerably. He granted interviews and even drew cartoons for gay newspapers and was quoted as saying he had a distinct aversion to gas and would never be executed.

The new decade was not unkind to Gregory Powell, who had adopted his middle name and insisted that everyone, even his family, refer to him as Ulas Powell.

"His alter ego speaking," his attorney

He joined a convict religious cult and edited their political writings, and he waited for a decision in People versus Anderson. In March, 1972, the California Supreme Court declared that capital punishment was cruel and unusual. Gregory Powell escaped the row forever and went to the yard.

Now he was free to live his life in the kind of non-threatening, controlled environment he said should always have been his. He was not unhappy. He kept busy with his many letters. After all, the family needed him more than ever, and sometimes he even lent them money. Douglas had matured, given up hard drugs, and stayed out of trouble, profiting from his brother's mistakes. But Lei Lani had fared badly and there was still friction between Sharon and his parents. His letters went to each of them: sisters, brother, mother and father. He directed them in business, household, and personal matters. He advised, scolded, commanded. If he had one wish it would be that they lived close enough to visit him more often. It was too hard to properly administer a family by letter. But he sighed and decided he'd just have to do his best. They couldn't possibly manage without him. He was, and always would be, the rightful head of the family.

Chapter
20

When Jimmy Smith was finally sentenced to life imprisonment he thought he'd won. The day they drove him up to Folsom Prison he wasn't sure. Not when he saw it, more horrible than he ever remembered it. Not when those hateful iron gates yawned, and the gray, slimy, cold granite walls swallowed him.

He had one bitter but torch bright consolation: Gregory Powell still faced death and might one day be smoked. Then, after People versus Anderson, he realized Powell had beaten him again. Powell was in the yard at San Quentin living reasonably like a human being while Jimmy languished in the hell of Folsom. He could never win from Gregory Powell.

Without the slightest hope of another successful appeal, Jimmy permitted the man who had won his first reversal to try again. He once more accepted the services of Irving Kanarek. In early 1973, the relentless lawyer filed an opening brief in the case of appellant Jimmy Lee Smith. One of the arguments read as follows:

During pre-second trial proceedings, strong indications of Hettinger's mental instability were uncovered. In view of this and the circumstances of the killing (appellant's extreme terror rendering his memory of the events at the time of the killing very confused; the fact that it was night and that visibility was poor; the fact of guns "floating around") it is probable that Hettinger, himself, was responsible for the firing of four shots at Campbell although he may have mistaken Officer Campbell for one of the defendants in so doing.

One day one of the old guards in the yard said to Jimmy, "You know, Jimmy, when you left here back in '63 I figured you'd come back to us. Most of 'em do. But not for killin a cop. I didn't think you'd come back to us for good."

Jimmy listened to the bull and smiled grimly and looked across the yard at the Flea, who was older now, more demented, more loathsome than ever-pawing at motes and gleaming dust specks in the silver dusk-snuffling around the yard, foul smelling, looking for a man, any man, for anything the man cared to do to him, just for human contact.

"Sir," said Jimmy Smith to the guard, "I was born for Folsom Prison."
Chapter
21

The new decade at first did not seem much different from the last. At least not to Karl Hettinger. In fact, 1970 was one of his worst years. He waited every day for the phone to ring telling him the appeal had been heard and the case reversed. For a time he thought it was inevitable. During this year, the city of Los Angeles reduced his pension to sixty percent. He was strangely glad about the reduction though he never told anyone.

During the retrial, the defense or the prosecution, he was never sure which, had taken his service revolver from him to introduce into evidence, even though his gun had not been one of the murder weapons and had not been introduced into evidence during the 1963 trials. He tried to get the gun back but the district attorney's office told him he would have to wait until the conviction was affirmed by a higher court-perhaps two or three more years he was told. So they even took that away from him. They even robbed him of that, he thought.