OK, so I arrived at the Hollywood Police Station Sunday morning around 10:00 AM . The place was crawling with LAPD Brass. Powell had been captured on his way South in the stolen car. His weapons had been recovered by the police, but he would only talk to Bakersfield Chief Deputy Fote. After Fote attempted to advise Powell of his rights, Powell interrupted the Deputy, telling the Sheriff he knew his rights and proceeded to manufacture a story about Jimmy Smith as the shooter of Officer Campbell. Powell was brought to Hollywood Station and they were still looking for Jimmy Smith, who was eventually apprehended at Mom’s Rooming House in Delano where Officer Hettinger’s gun was recovered without incident. Note both bad guys did state the weapons recovered from each bad guy was in their respective possession continuously from the kidnapping, to the murder, to their respective arrests. Ballistics showed the shot to the upper lip by Powell was fired from Campbell’s Colt 38 revolver and the fatal shots into Campbell’s torso tied up into Hettinger’s gun. (important to show who shot whom and when, as Hettinger could not actually identify directly who was shooting at him after he was fleeing the area of Powell’s position, but he saw shots at him from Powell’s original position and saw a figure move behind the stricken officer and pump bullets into the officer as he was laying on the ground after moving from the position where Jimmy Smith was standing and saw a figure move behind Officer Campbell and could see flashes from that person directed to the fallen officer.)
Well, nobody seemed to know what was going on when I was first briefed at the station, and frankly I really did not know what I was supposed to do or advise. Fortunately, Sgt. Pearce Brooks, who had been assigned as the lead investigator on the case, arrived at the station early Sunday morning after going to Bakersfield, interrogated Jimmy Smith and brought him back to Hollywood. Pearce and I met and it came abundantly clear this Officer knew what he was doing, did not need any advice from me and we began a DA/Cop perfect relationship. Brooks was a former Navy pilot during WW2 off of a carrier and you had to be daring and extremely smart to fly one of those fighter planes of an aircraft carrier. (I might mention he later became a Lieutenant at LAPD, was hired to run the State of Colorado’s State Police force and finished his career as the Chief of Police in a town in Oregon.) The bottom line was I was smart enough to stay out of the way, observing Brooks at work where he was able to get incriminating statements from each suspect which constantly contradicted their previous statements, mainly by feeding them individually what had been contradictions to the arrestees earlier statements. There was never a direct statement from either arrestee admitting his participation in the kidnapping and shooting, but there were plenty of different lying statements to catch them both in a web of lies. (this will be shown in a later Court opinion which we will cover.) When I was asked if there was anything I could suggest, the only thing I recommended was to put the two suspects together and record anything they may say which would help. That suggestion was followed up, but nothing significant came of it.
An additional side note: In 1995, The OJ Simpson murder case was in full swing, and I had left prosecution for defense, I got a call from Pearce from Oregon asking me to contact the prosecutors and tell them what Pearce thought was a key to the DA’s case. “tell them he said to me that when OJ was first told about the murder, he did not react as a normal innocent man (as a father) would automatically ask: “what happened to the children?” (the point was OJ already knew there were no kids involved.) Sometimes it is little things like a failure to react appropriately that can seem to be a small thing, but can be a key to a case weighing towards guilt. I should have followed up, but believed it was not my business to suggest to a team of prosecutors how to handle their case, so I didn’t. For you who are unfamiliar with the OJ Simpson case, OJ was a famous star running back from USC and the Buffalo Bills who was accused of knifing his ex-wife and a waiter at a local restaurant to death and was subsequently in a large media-covered trial and was found not guilty. ( a civil jury later found him responsible and assessed large monetary damages, and later in a botched up armed robbery case in Nevada, he was convicted and is presently languishing in a Nevada prison.
The Smith and Powell case was formally assigned to me and I decided to make some decisions regarding the charges. Here is how my thoughts were. First, the facts called for multiple charges. To start with, about 32 armed robberies committed before the murder, next, kidnapping for the purpose of robbery with bodily injury while armed with a firearm, which carried as punishment life without parole or death at that time, kidnapping for robbery directed to Officer Hettinger which carried life, (the robbery would be taking the officer’s weapons and murder 1st premeditated and in the course of kidnapping and robbery, which carried either life or death, (which is up to the jury,) and lastly, where to file the complaint: either in Kern County or Los Angeles County.
First, I decided I wanted a clean case without a lot of alternatives. I wanted the verdict to be murder and the jury to return a death sentence to both defendants. At the time, I could present evidence that life imprisonment did not mean life. The jury could be informed of the safeguards and dangers of life imprisonment such as: the trial judge can review the verdict and impose life, there is an automatic appeal from a death sentence and the case is reviewed by the Supreme Court to make sure there are no errors in the investigation or trial, the Governor reviews the case and has the power to commute the sentence, so life does not mean life, but the accused can be paroled after 25 years, the number of escapes that have occurred by lifers and other stuff relevant to what penalty to impose. So I decided not to charge all the various different crimes, and take up enormous trial time and I did not want to give the jury several choices but either life or death on the murder and I couldn’t see that there would be any choice but death if the choices were limited. So it was one count.
Next, where to file? My choice would be Kern County, where the murder took place, because I could cut the trial short as the jury would probably be made up of some pro-capital punishment, conservative farmers or oil men. It was clear to me later observing both defendants, there would be no difficulty getting the verdicts I wanted for Powell as he just looked like a killer, snarling and glaring in court, where Jimmy Smith was very much of a con man with his head hanging down and a pitiful devised look on his face, and he would blame Powell for everything and he didn’t shoot anyway. Thus I knew Powell would get the gas chamber, but I was worried about Jimmy Smith not getting the “Pill” in front of an LA jury.
I got overruled, as LAPD wanted the case, understandably, in LA, as the victims were one of their own. That changed the game plan from a short quick trial to one painstakingly presented covering every possible avenue. Actually, as it turned out at the time, the case was, if not the longest trial in California History, one of the longest.
As it turned out, I failed to anticipate all of the new procedural due process rules developed by the Earl Warren Supreme Court of the United States turning a trial as a search for truth to a sporting game of criminal justice, as will be explained later.
Well, I filed the complaint, one count of murder first, put on a quick preliminary hearing. The magistrate, after hearing the presentation, ordered both defendants to trial not only on the murder charge, but added a couple of counts of kidnapping, one with bodily injury and the next phase was Superior Court for arraignment on the charge. I was still in control for the pleading and only filed the murder charge for the reasons stated above. Pleas of not guilty were entered, and the case was assigned to the courtroom of the Honorable Mark Brandler. Each defendant had court-appointed attorneys; Powell had two top public defenders, Kathleen McDonald and John Moore, and Ray Smith an old-time criminal defense attorney on the Court’s indigent panel represented Jimmy Smith. All the lawyers were good. Dates were set and the trial was to progress.
Enough for now and more to come,
Marshall
MarshallsKnowledge© 