Today, Monday 2/6/16, very dreary, rainy and dark, a real mood suppressor. But I am getting feedback from readers, and just as soon as I figure it out, I will be replying.
Well, the verdicts were in, next phase: motions for new trial and reduction of sentence, and, if denied, an automatic appeal to the State Supreme Court.
Irving Kanerek, a very controversial defense attorney, substitutes in to represent Jimmy Smith, and Powell decides to represent himself (after the court finds him competent enough to represent himself) and off we go.
Kanarek was a character. Formerly an aeronautic engineer at North American Aviation, he invented some type of product that made intercontinental ballistic missiles fly better. He used to hang out around Loyola Law School, my Alma Mater, as he was friends with one of my classmates, Harold Druz. Harold was like many of my classmates, a wounded warrior from WW2. Both his arms’ lower areas were blown off, and he wore a prosthetic device for both of his hands, and eventually, after becoming a lawyer, ended up as mayor of Anaheim. Well, Irving got fascinated with the law, was admitted to Loyola, graduated and passed the bar, was admitted to practice law, and chose criminal defense as his area of practice. Being an engineer, his approach seemed to be that if there was anything missing in the prosecutorial picture he would attack that defect whether it amounted to anything or not. He was famous for objecting to a witness stating his/her birthday as “Hearsay” because the date was given to him/her by his/her mother. Didn’t get sustained, but you get what I mean.
So the circus went on, with Kanerek calling people who were just in the audience observing, what they knew about the case and when the reply was “nothing,” he would dismiss that witness and call another who repeated the same. I finally gave up on objections, figuring sooner or later, he would burn himself out. Hidden in the motions was an attack on the statements made by the defendants without being advised of their Constitutional Rights to an attorney and to remain silent. The Law at the time of trial did not require what we all know now as the Miranda Rule. Plus, it was an attack on the joint trial of both defendants, the admission of statements by both defendants implicating themselves, but also the other defendant. at the same time. The Law allowed such joinder and admission of the statements with the judge telling the jury to consider the statement only against the defendant who was being referenced. Sort of telling the jury to unring the bell, pretty hard to do. Well, after many objections on my part, which did not seem to stop Irving, I finally decided to just let him go forward with any crazy theory, until he burned himself out, which he did.
Powell, on the other hand, actually seemed to know what he was doing, raising issues that could doom the case in the future. Most of this Blog is by memory, with some minimum research, so I don’t recall everything, but I do recall Powell calling me as a witness and posing some very good questions, putting me somewhat on the defensive. I recall to this day my impression was this guy (Powell) is good, asking the right questions, and I wondered why a guy with so many brains could be so stupid as to get into the mess he created for himself. He was definitely, in my opinion, a sociopath, but what occurred in his life to create such a monster was always a question in my mind. Jimmy Smith, on the other hand, grew up in poverty, half white and half black, never fitting into either society, easy to see what led him into a life of crime with intermittent jaunts into the State Prison system.
Well, the motions were denied, and both defendants were sentenced to death by lethal gas in San Quentin’s gas chamber. That left just one thing: the automatic appeal.
I left the DA’s Office in 1965 after moving to Newport Beach in Orange County to try my luck as a criminal defense attorney, which I will go into in future blogs, but in 1967, the State Supreme Court reversed the conviction on the grounds the statements introduced against each defendant were inadmissible under a new law requiring the individual under arrest to be advised of their right to have an attorney and their right to remain silent, plus the admission of statements implicating the other defendant also was declared improper, as the instruction to only consider the statement against the Defendant making the statement and not the other was an impossibility, so the statement would have to be modified (called redacted in the Law) to eliminate the part of the statement referring to the other defendant.
The case was reversed in its totality and issues regarding penalty evidence would effect the next trial. Evidence that life does not mean life, parole possibilities, escape records, and other things regarding a life sentence no longer could be considered by a jury, and the jury is now told life means life and the jury now cannot be informed of parole possibilities, escapes, and other things related to the penalty, so they go in blind as to what “life” really means.
Now you know, I have spent the last 37 some-odd years as a defense attorney, but that does not mean I have to agree with what I call the “sporting theory” of criminal trials. The Miranda rule of offering an attorney and telling a suspect their right to remain silent and anything they say can be used against them, makes no sense to me. The objective is to seek the truth, not the games of admissible statements. However the rule of joint defendants and statements implicating the other defendant makes sense and the statement should be edited out or not used at all just on fairness.
Well, I had left the office and the defendants were faced with a new trial. The new prosecutor was faced with Irving Kanerek, who was appointed to do the appeal and, at the request of Jimmy Smith, reappointed to represent him in the new trial. After many motions the case sent out for trial, and the new judge asked the parties before proceeding if there were any motions, and Irving stood up and proceeded to re-institute many motions; the prosecutor went ballistic and turned around, walked out the door back to the DA’s Office, and quit.
Sheldon Brown, a darn good prosecutor and one of the DAs who worked for me when I was a Calendar Deputy, got the case, went to trial, and both defendants were found guilty but only Powell got the “Pill.”
My biggest mistake was not pursuing the kidnapping charge, which carried life without parole or death. Smith was later paroled and continually was in and out of prison and eventually died. Powell got lucky. The death penalty, as written, was declared unconstitutional by the US Supreme Court in the case of Greg v Georgia, as the death penalty needed strict standards, not the arbitrary measure presently applied, so Powell’s sentence of death went away.
Powell actually got a parole date after many appearances before the Parole Board, but that date was rescinded and he eventually died in prison custody.
If you want to learn more in-depth, look up and Google the following:
People v Powell and Smith (1967) 67 Cal. 2nd 32 (the reversal)\Smith v Superior Court 68 Cal 2nd 47 ( Judge Art Alarcon who I mentioned in earlier Jimmy Smith’s attorney)
In re Powell (1988) 45 Cal 3rd 894 the rescission of Powell’s parole and it is interesting how Powell attempted to smuggle a firearm into the prison to facilitate his escape.
Joseph Wambaugh, an LA Police Officer, wrote a best-seller called “The Onion Field,” published 1973. A gripping story of the case. Wambaugh visited me either in 1972 or 1973. We met at my home in Newport Beach, I believe so he could touch all facets of the story which had not been published. It was clear to me his theme was going to be in two phases: first how the LAPD brass treated their line officers and the characters in the case, consisting of Kanarek, the prosecutor who quit, the individual defendants, Hettinger, the surviving officer, who was humiliated by his Department for giving up his gun, causing him to eventually engage in petty thievery, the attempt to fire Hettinger, who was later saved by a Sgt. friend. Hettinger eventually moved to Bakersfield, got a job as a Supervisor’s assistant, became a supervisor and eventually lost the office and has since passed away. I was not going to be part of the novel.
It was clear the writer was not very familiar with the first trial, so I suggested he at least read my opening statement and closing arguments which he must have done, for one day after returning from vacation and going to court, one of the attorneys told me I was in the book. Went out and got a copy and also the author sent me an autographed copy with a nice note written on the face page and, sure enough, the designated “Nasty Prosecutor” is mentioned in several pages. Get the book- great reading and very accurate except the author’s reference to Jimmy Smith as a “follower” with LOVE tattooed on his fingers, forgetting Smith had HATE on the other hand as well, as it was Smith who shot and killed Officer Campbell and then stalked the surviving officer to kill him as well.
Regarding the death penalty, there are arguments pro and con, which we should face in some future blog
Enough for today, Bye
Marshall
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