We had evidence tying the defendants to the home invasion and robbery.
On the evening of May 25th, 1982, there had been at a house just two blocks away from the victim’s residence. The two brothers left the party to walk to a nearby store to buy beer and wine. When they returned, one of the brothers appeared excited. He was carrying a paper bag. It contained a wallet and some identification cards. He asked a brother-in-law if he still wanted to sell his car. He threw a hundred-dollar bill and two fifties on the floor. The brother-in-law said put another fifty down and you got it. The defendant threw another fifty on the floor.
Later, as the case developed, the police detectives ended up interviewing everyone at the party. They did a thorough job. Everyone had been drinking and the statements were wildly inconsistent as to times and locations. However, the girlfriend of one of the brothers revealed that the paper bag did contain identification cards and a wallet belonging to the victim. And $540 dollars. She threw the identification cards and wallet in a dumpster the next morning.
Sprinkled in the recounting of other witnesses at the party were statements of how one brother had bragged about how he “had brought somebody down,” how he had “stomped somebody’s face in from being identified,” that they had “knocked on somebody’s door, and an old man came to the door,” that the man ”got hit” and grabbed the brother’s leg. And the brother had demonstrated how he then “stomped” the man.
The witnesses’ statements, if I could get them admitted in court, put the brothers at or near the victim’s residence and in possession of items taken from the home. Even though the statements were inconsistent as to time and place and detail, they were most probably enough to convict. But to get a jury to vote for the Death Penalty, we felt we needed more. Not just circumstantial evidence, no matter how persuasive, but direct evidence of each defendant’s physical participation in the killings.
What we did have was a sister and a shoelace.
As I explained in my last post, I had been at the crime scene with the detectives and when I examined the victim’s face, I noticed a curious kind of curlicue mark on his neck right below the chin line.
Because the detectives were so thorough in their questioning, we had statements from witnesses and others that one of the brothers liked bragging about wearing Stacy Adams shoes. It came up so often that in the execution of one of search warrants, the investigator seized a pair of such shoes from the residence were one of the brothers was staying. The brother admitted the shoes belonged to him.
Closely examining the shoes, hoping to find blood or some other physical leaving, the investigator noticed the shoelaces had a unique bend in the ties of the laces. He formulated an offhand theory, that the shoelace caused the mark on the victim’s neck. I was skeptical at first. But as I looked back and forth between the picture of the mark and the shoelace, and put that together with the statements we had, I too became convinced the mark was caused by being kicked in the neck by that shoe.
However, we would need more than a detective’s speculation.
We would need the testimony from the Pathologist.
The coroner’s office which is responsible for determining the cause and means of a suspicious death is part of the Sheriff’s office in most counties. They in turn hire a pathologist who does the autopsies and opines on the cause of death and the significance of wounds and other evidence collected from the body.
The pathologist we routinely used had an impressive “curriculum vitae.” Graduate of Princeton and all that. And, I must say he was as impressed with his own erudition, as I was. Of course, I was easily impressed. Growing up in Farmersville, my associations with graduates of Ivy League colleges was, to say the least, limited.
The good doctor did love to pontificate. He was not shy about theorizing.
Just as it was valuable, as the case prosecutor, to walk the scene, observe the body “in situ”, I learned in murder cases, it was also in my interest to be at the autopsy as unpleasant as that might be.
This autopsy surgeon could be brilliant. But I had to be more practical. I had to keep him from going off the reservation in the pursuit of a theory which sounded interesting and gave him a chance to show off his brain power. In court, he loved the stage the witness stand provided. And he was good at it. The jury loved it when he lectured like the learned man he fancied himself to be. It was my job to monitor the good doctor closely lest a skilled defense attorney, sniffing out a weakness in his theories, would lead him astray. If we were going to have him theorize on the origin of the mark on the victim’s neck, we had to foreclose him going beyond the borders of reason.
The autopsies on murder cases were done in the pathology “suite” in Tulare as the pathologist like to refer to it. I attended many of them. The place was ugly, dim, smelly and inadequately ventilated. A most unpleasant place for an unpleasant task.
The smells were especially bad. The surgeon would line his nose with Vicks. We all fired up our cigarettes and chained smoked. So much smoke to cover the smells it could get foggy in the “suite.”
And the proceedings were not without an occasional macabre bit of humor. At one autopsy, the internal organs of the subject had been carefully removed one by one to trace a bullet trajectory and document the injuries to the organs. As the examination proceeded, the organs were set on a tray beside the gurney. After the surgeon and detectives were finished with their work and had stepped aside to discuss their findings, I noticed the deputy coroner, unceremoniously tossing the organs back inside the open chest cavity. Naively I questioned why he wasn’t putting the organs back in the proper position. His response? “Parts is Parts.”
The work at the autopsy of a homicide victim was fascinating once you got past the fact that the subject was a dead human being. The trajectory of bullet, the direction of a knife wound, the bruising to the brain from bouncing around in the skull after being stuck by a “blunt object” as the cops inevitably described it in their reports. I was okay with men, women, even old people. Children were another story, however. They were the worse. I needed to look. I needed to learn what happened and how to prove it in court, to make the evidence resistant to the test of cross examination, but in such cases, one had to swallow more than an odor to do that.
In this case I had the curious curlicue mark. What could the pathologist make of that? Or more accurately, could I bring him to the same conclusion the investigators and I had reached. Could I get his commitment that it was plausible. And, just as importantly, keep it reasonable enough, plausible enough to prevent him from undermining my theory under cross examination by the defense.
We set about recreating the assault under controlled conditions. We felt, it would not only convince the pathologist, but it would also provide interesting and persuasive demonstrative evidence at trial.
We had the shoes. We need to recreate the assault with the shoes. To do this we hired professionals to create a mockup with a mannequin covered with material which had the same consistency as human skin of an adult male, indeed one in the later stages of life.
We then calculated the angle of the kick and the head of the victim when received. We then executed a kick with the shoe. To our surprise it worked the first time.
At trial I placed large blow ups of our photographs of the mark on stands before the jury. Using our demonstrations, the Pathologist was able to connect the mark to the shoelaces of the defendant”s shoes. I had the direct connection from that defendant to the violence visited on the victim.
And then there was the Sister.
We had statements from various witnesses about the defendant bragging about “bringing someone down.” But when she had heard him make such a statement, it was in the cold sober light of the next day. She and her brother had been to the little store and as they walked out, she pointed across the street at the victim’s residence and where the police cars were still parked. It was all around the neighborhood what had happened. She asked him, did he really have anything to do with that. She said he had laughed and bragged about “Downing an old white MF.”
Understandably she developed an extreme hostility to having anything to do with the case against her brother. But the detectives had her statement on tape.
At trial, when I told her I was calling her to the stand, she cussed me good, told me she it was all a lie, and she would refuse to testify. I called her anyway. She was very large woman and as she passed by me on the way to the witness stand, I kept my distance. One swat with one of those giants paws and karate lessons on not, I would be flattened.
She sat down, glared at me the judge and everyone else who came within in her field of vision. She looked at everyone but her brother. At the Judge’s nod, I asked a series of short questions. She paused before answering each one. Getting her to answer was like pulling teeth. But, as I had felt she would, she told the straight truth. And on cross, she did the same.
When she stepped down from the stand and walked toward the rear door of the courtroom, she averted her eyes. The fight was gone out of her. I know she was hurting inside. She knew what her testimony had done to her brother. She had told the truth. And it contributed to his eventual conviction and death sentence.
The other brother was tried separately and received Life Without the Possibility of Parole. They both died in prison.
This was one of my first murder trials. Even though it was a Death Penalty case. Later, as District Attorney, I would require prosecutors to have a defined level of experience before they could receive an assignment of a Death Penalty case. But in those early days, our proud little Tulare team just took on whatever case came in the door. We seldom worried about the main office in Visalia. They never called. We had a hard-working judge who kept docket moving and we won most of our cases and kept the police and citizens happy and confident.
The other bookend to my murder cases ended soon after I was sworn in as D.A., and ironically it too was from the Tulare area.
On December 3rd, 1988, the body of 12-year-old April Holley was discovered. She was lying in the bathtub of her home. She had been murdered.
I was Assistant D.A. by that time. We had a different District Attorney by then who had come from outside the office. He had tapped me up out of the ranks to be his Assistant D.A., the number two person in the department and by unspoken agreement, while he handled most of the budgetary and administrative functions of the department, something he was a pretty fair hand at, it was my responsibility, since I knew the nuts and bolts how we put cases together, to direct and manage the prosecution side of the office.
But I liked to keep my hand in. I still maintained a limited caseload. Usually had at least one murder case on my desk.
And this one, I decided to take.
Courthouse Tales is published Sundays.
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