Everyone’s career has highways, side roads, detours, and intersections. My journey through the trial courts had been exciting at times, tedious at other times, always interesting. A stage, Shakespearian in nature, with memorable heroes and even more memorable villains. And, like the Master’s plays, populated with an infinite variety of bit players. We had names for them. Snaggle Tooth, Chicken Man, Bag Lady, others too numerous to list. All characters who played minor but important roles in the ephemeral dramas of forgotten lives passing through county courtrooms.
I called them all, hundreds, to the stand, methodically drawing from them testimony to make the case. All the while cognizant of the necessity of being candid with juries about their nature. Many were the times I looked jurors in eyes and told them my witnesses, the ones I would be calling to the stand, were awful people, often just no damn good. As the saying goes, I told them, for a crime committed in Hell, you don’t have angels for witnesses. I told jurors that witnesses might be panhandling bums, habitual liars, others, I told jurors, were often too dumb to effectively lie. Witnesses would be taking the stand who evoked hilarity and tears, disgust, and sympathy. But always, I had to promise aways, that from such beings, it would be possible to out the truth. Juries, I felt, if a trial attorney was honest about his witnesses, candid about their character and doesn’t obfuscate their flaws, would be able to mine the nuggets of truth, the gold from the chaff, from even the most marginal of witnesses.
There were many more trials than the ones I have sketched so far for readers of this series.
The young wife in Visalia, who on learning her husband had impregnated his paramour, (with twins!), got a gun, practiced at the shooting range, and shot him as he, home from work, walked in the door. The grandmother who was raped by her son-in-law and the high school girl raped by a cruel and monstrous man in a car along the frontage road of the Friant Kern canal. Cases that confirmed to me what we were coming to realize that sexual assault is more often about power than sex. Then, there was the farmer in Earlimart robbed and murdered by one of his farm-workers to get money for drugs. The young mother on the north side of Visalia, raped, strangled, and set on fire in front of her five-year-old daughter. The ex-boyfriend who used a shotgun to shoot and kill a young woman as she came home after a date with a new boyfriend.
And then there were the child abuse cases. The most difficult of all to see through trial. The emotional toll as well as the evidentiary challenges could be overwhelming. I recall two cases especially for their contrast in how victims held up at trial where their assaulter has the right to be present and confront them. One victim was ten year old girl raped by her father and, surprisingly, she was one of the best witnesses I ever put on the stand while the other, a nine year old girl, who despite, the judge and I leaving our usual places to sit with her on the floor, to give her a chance to tell her story, and who was simply was too afraid. She could not speak of what the man, seated at the counsel table staring at her had done to her.
So many trials. Maybe they took a toll on me. I don’t really know. Never stopped to consider.
But by the time I donned my blue pinstripe suit (a personal tradition) for the first day of the last trial I would ever do, my career had been moving from the main highway of trial work, branching off in a different direction. My days as a trial lawyer were drawing to a close. The binders on my desk were no longer trial binders containing witness lists, opening statements, closing arguments, trial briefs, jury instructions. The binders were now stuffed with budgets, personnel matters, grant funding requests. And off to the side special binders, new and, as of yet, little used. Political matters.
I was on the way to the proverbial corner office. Still in the courthouse, for sure, but soon to sit at a desk only one man or woman could occupy at a time.
With this last case, perhaps, my toughest, I would be giving closing arguments in this last trial literally as I was preparing to take the oath of office as Tulare County District Attorney. It was an intersection in my life. I had chosen to journey down a new road, leading the office, but also as one who held elective office. I would follow that road to many interesting destinations for the next two decades.
In my opening statement, of the Holley case, I told the jury they would “have the opportunity to see, hear and evaluate,” the evidence compiled against the defendant and that it would be extensive. I said, “We will delve into everything from the most arcane science to the frailty of human character. Be patient with us. We have a job to do. The child’s name was April Holley.”
I was prescient. The trial took months. It was complicated. Too complicated to recount in the limited space of this platform. But I can sketch an overview of this, my last trial.
To simplify the case for the jury. I told the jury, the case would be broken down into two phases. In the first I would establish “The What, The Where, The When, and the How of the crime.” And in the second the “Who” by first linking the defendant to the crime and then establishing his guilt.
The victim lived in squalor. She and her family occupied a place in the Matheny Tract, a place of ramshackle housing, house trailers and a population mired in poverty, a mile or so south of Tulare. It was worse than just being poor. It was a poverty overlayed with the leavings of broken families and rampant drug use.
On December 4th, 1988, the body of eleven-year-old April Holley was found. She had been raped, sodomized, and drowned in the bathtub of her own home. I told the jury, “While April’s name is synonymous with Spring, her circumstances were anything but fresh and new.” Where she lived was not “a clean well-lighted place.” On the contrary the jury would be entering “a dark and dirty world . . . But enter it you must and enter it you will.”
The previous evening April, suspected of stealing a $20 bill from someone at the house where she was to stay the night, had been taken home by people who thought her mother was there. She wasn’t. They took her back to their house, but she faked a call from her mother, went to various friend’s and acquaintance’s houses, and then returned home. Alone.
Witness by witness, a team of excellent investigators from the Sheriff’s office were able to trace her movements around the edge of Tulare and the Matheny Tract. And, importantly, they were able to identify the persons with whom she came into contact.
As the case developed, they were able to do the same thing with the movements of the Defendant, an accomplice (who was tried and convicted separately), and a young boy who it was theorized was also present during the crime. The intersection of those movements at the Holley residence at the time of her death established a patchwork of evidence the investigators were able to use in their later interviews of the defendant to expose his falsehoods about his location and ultimately, his involvement in the murder.
As to the crime scene, the investigators took the extraordinary step of bringing the pathologist to the scene as well as a pediatric surgeon who specialized in child sexual assault cases. They were there documenting the scene and collecting evidence before April’s body was removed from the bathtub.
Trace evidence, DNA connected to the accomplice, and hair evidence connected to the Defendant was collected and analyzed, by them. They were crucial links to proving their guilt.
Lastly, the defendant, who had fled the jurisdiction, was found in San Bernadino. The sheriff’s detectives traveled there and in a series of skillful encounters persuaded him to return to Tulare County, where they arrested him for failing to register as sex offender (he had a previous sex offense on record) and then sat him down, obtained his waivers and took him piecemeal through a series of statements. They let him talk, but ultimately confronted him with facts inconsistent with his stories. They asked him about statements from the dozens of witnesses as to his whereabouts and confronted him with contradictions, some true, some subterfuge. He ended up continually having to admit he had just lied. He kept trying to change his stories only to be confronted with another fact inconsistent with what he was saying. It all eventually leading to an outburst that he had participated in the murder. He immediately attempted to retract, but he was trapped.
It was a long and arduous effort to get before the jury all the pieces of the puzzle of the case. And then in closing argument to show how it all fit.
He was convicted of the murder of April Holley. The Jury set the penalty as death. The trial judge upheld the jury’s decision and eventually the California Supreme Court, in a lengthy opinion, rejected a plethora of challenges about the tactics used by the investigators as well as the admissibility and relevance of the evidence presented in court. The Supreme Court unanimously affirmed the conviction and Death verdict.
The defendant died on Death Row.
Although I didn’t admit it to myself then, my days as a Trial Lawyer had drawn to a close.
In the subsequent decades I looked back on those days in trial courts, as the best days a lawyer could experience. And I’m not the only one. I became close friends with other D.A.’s around California and the nation who had a similar background in the trial courts of their jurisdiction.
We, in those moments of leisure, maybe over a beer or around the pool at a conference, agreed, that for a lawyer the best of times were the weeks, months, years doing trials. It was in trial when our minds were the sharpest, our memory most clear, when our lives, virtually every waking moment were governed by the logic, the language, the analysis, legal and otherwise, involved in the organization and presentation of evidence, of argument, oral and written.
It was, in its way, a war, but a special kind. Something unique to the cultures of the English-speaking people. Combat it was, but civilized combat directed by strategy, employing artful tactics designed to persuade, designed to establish the truth. All within the boundaries of a system of jurisprudence, all within defined rules, tested by history, handed down over centuries. Arriving at a resolution by civilized means. Not a cloying civilized, but a vigorous, robust, vital civilized of a dynamic people. A system of inspiration and challenge for the most focused of men and women. The men and women in the law.
Modernly its all the rage to settle cases, to compromise, to embrace risk adverse approaches to the practice of law. You see the consequences everywhere. Gangs of thieves looting retail stores while employees, indeed security guards, stand and watch; Leaders of universities tolerating professors and students who preach hate and outrage and eschew critical thinking; School boards and administrators who look the other way as teacher’s are assaulted and fifth graders are allowed to trash classrooms and bully fellow students; incompetent government employees allowed to continue drawing their pay; drug addicts, crazies, and bums, allowed to trash the streets and byways of once vibrant cities and drive families from city parks. It is so tempting to compromise, to give in, to settle the case. Not take the risk of an adverse legal finding. There is always the argument that its prudent to save the cost of litigation. But really? Are we not now witnesses to the long-term consequence compromise? What, indeed, has it really cost us?
I say it’s a mistake. We lose something if we don’t have the courage and skill to take a case to trial, to join in civilized, rule based, evidence based, combat. To fight the legal battles for what we think is right. To make our case to impartial arbiters of law and fact.
To stand for our cause before judge and jury.
I will say this:
There is nothing like it.
It’s not for the faint hearted.
It is a noble calling.
This is the last posting of this series on this platform. Thank you for all your kind comments.
The photographs is of a profile in a newspaper article when I was preparing to take office as District Attorney. Sorry for the intense glare, the photographer caught me arguing a case. The mustache is nice though, you have to admit.