Mel Belli was probably one of the best-known attorneys, if not in the nation, surely in California. He was known as “Mr. Tort” for his work in accident injury tort cases and some criminal defense as well. He had an office on Montgomery Street just South of Broadway, next to one of my favorite restaurants in San Francisco, “Doros,” with the then-famous “Ernies” just across the street. Both establishments are now gone, probably due to a change in attitude regarding culinary tastes. Mel’s office was right on the street, with large front windows allowing a passerby to see the great man at work. Well, the Rosoto, Vlhovitch and Franklin case was now set for trial with the only issue being: do these guys get the death penalty for the Simpson murder? Joe Rosoto hired Mel Belli to defend him, but he did not get the great one; he instead got one of Mel’s associates, Seymour Ellison. Probably for the best, as we will talk about Seymour Ellison, who at the time, was a decent criminal defense attorney.
Vlahovitch somehow or other had a really good defense attorney connected to The American Civil Liberties Union, (ACLU) who spearheaded the previous appeals and because Franklin’s former attorney, Sam Frizen, had been appointed a judge of the Superior Court, I ended up with Franklin.
The original prosecutor was the Assistant DA of Orange County, who at the time was considered an outstanding prosecutor (so I thought at the time). He eventually became the DA of Orange County and ended his career as a Superior Court Judge; for some reason, which I never figured out, he and the whole Orange County Office were recused (means kicked off) of the case and the Attorney General took it over. Two very good prosecutors were assigned to try the case; their names were, Al Harris from Northern California and Gordon Ringer from the AG’s office in LA. I did not know Harris, but Gordon Ringer and I went far back, as Gordon had handled several appeals and was the appellate lawyer on several of my cases. I should explain, all direct appeals, to either the District Court of Appeals or to the Supreme Court, are handled by the Attorney General’s Office from any and all the various DA prosecutions throughout the State.
The first thing I did was review the transcripts of the earlier trials and motions to familiarize myself with prior testimony and at the same time confer with my client as many times as necessary, plus drafting and filing what is known as “Discovery” motions. Basically I wanted to make a motion asking the government to allow me to see all statements of witnesses and their names and addresses, written, oral or otherwise, physical evidence to view, and, most importantly, what is known as “Brady” material cases on a US Supreme Court case called “Brady v Maryland,” which obligates the prosecution to provide all evidence, written or oral, that would be favorable to the accused. Actually the prosecution has an obligation to provide “Brady” material, even if not asked for.
The two new prosecutors were honorable men and complied with my request, and, wow, you are not going to believe what was given to me!
Remember the bulk of the prosecution’s case was based on the testimony of Joe Rosoto’s half-brother Michael, who claimed he was told by Franklin and others that Joe hired the killers to kill the Simpsons so he could get away with the robbery of The South Seas restaurant and cocktail lounge? Mike testified he was not receiving any benefit from his testimony, but he, in effect, was testifying because of the nature of the murder and his wanting to do the right thing. Well, the prosecutors gave me a recording made before the trial of an interview of Michael and guess what? The recording is an interview by the lead DA investigator from the Orange County DA’s Office, attended by the prosecutor, whom I have mentioned earlier, and also an investigator from the Anaheim Police Department. The tape was being played to me by the DA’s electronics guy, Freddie (forgot his last name.) It starts out with the usual identification of the parties present and is conducted by the investigator, and then something like: “alright, now you are going to tell us what you know? and Mike responds in substance: “OK, now if I help you guys you will take care of my pending LA Market Robbery case?” With that, one can hear a very distinctive “click.” Then the tape proceeds with: “As long as you tell the truth, we will see what we can do.” With that Mike comes up with his story, and, at the end, another exact same distinctive “click.” “Freddie?” I ask. “What was that last click?” He answers: “It’s when the tape is turned off.” (“BINGO!” I think, “This probably is enough to get a favorable verdict,” and, as it turned out, Mike had been involved in several market armed robberies, one where he actually shot or discharged a firearm. But that was not all.
Next, I get a tape where Mike is interrogated in the State of Washington, and guess what? Mike originally named as the hired killers two cousins and guess what again? He was put on a polygraph and passed.
Still more I discovered from Michael’s naming his two cousins; that information was presented to a Grand Jury, which indicted the two cousins, and, when it was time to arrest the alleged cousin killers, they were, and had been, in Sicily, and could not possibly have been involved. A Grand Jury Indictment does not become published until the accused is brought to court, so the indictment was secretly withdrawn, and the former defense lawyers were never aware of the false naming, indictment, and its withdrawal, or at least no one brought it up during the original trial, which is hard to believe. Furthermore, it developed that my client, Franklin, had an altercation when he just previously beat the crap out of Michael, which could well be claimed that Michael named Franklin out of revenge. Also, I learned through discovery that the Washington police arrested Franklin on some charge in order to place Michael in the same cell, hoping to get some admissions from my client, Franklin, to no avail. And, guess what? Michael’s Grand Jury Testimony, the tape of Michael naming his two cousins, the Grand Jury Transcript, and the polygraph tape of Michael all disappeared and just were not available.
In addition, my client had an iron-clad alibi for the time of the murder, as he was in Washington State at the time attending and playing football for the University of Washington, and these witnesses were available and willing to and were subpoenaed for the trial. Sam Frizen had asked them to appear at the trial,and he also asked the DA’s investigators for the Anaheim Police to meet his witnesses at the LA airport which they did, but they were put on the next plane back to Washington rather than face possible arrest and prosecution for false testimony. At least that is what I was informed. There was other stuff, but the above is enough to certainly raise a reasonable doubt, and in my case, a belief of actual innocence. Remember, these guys were 20 minutes from death before there was a stay of execution, plus before they got a new trial on the penalty stage of the proceedings.
After discovery and preparation for trial, a jury was to be selected. We were assigned to the Courtroom of the Honorable Warren Ferguson, a smarter or fairer judge could not be found, and this was his last State Court case, as he had been appointed to the Federal District Court and later to the 9th Circuit Court of Appeals, where he eventually took Senior Status, and a short time back passed away. Well, we started to select the jury and before a jury is selected the attorneys get a chance to inquire of the jurors to ferret out any bias or prejudice or reasons why they coud not sit, such as opposition to the death penalty or the reverse: if a 1st degree killing- always a death sentence. I took the lead, and after several hours of questioning and emphasizing, not only is the death penalty unwarranted, in this case regarding my client, I let the jurors know I was going to show my client is factually innocent of the murder he was convicted of because of false testimony, hidden testimony and past perjury and subornation of perjury by past witnesses and the former prosecutors
To finish after my juror questioning, the two attorney generals moved to take the death penalty off the table and submitted there were no longer any issues, the jury was discharged, the Judge imposed a life term on all the defendants, and that as it as far as that stage of the saga,but it did not end there
Remember, I am brand new in Orange County, and the Orange County DA was well-known and respected. However I was vocal about the withholding of evidence and my relationship with the DA was icy, and strained but cordial. Nothing ever happened to him regarding the withholding of favorable evidence. I recall asking Sam Frizen if he was aware of all the new discovered evidence as none was in the file given to me, and my memory is that he denied such knowledge. We did not stop there. A Writ of Habeas Corpus was filed on behalf of all the defendants alleging “Brady” violations, and hidden evidence. The Supreme Court appointed a special master to hear the Writ and report his findings to the Court. We had a hearing, evidence was presented, among which Sam Frizen testified he was aware of all the evidence, but chose not to use it. I immediately told Paul Posner, who brought the motion now to declare a 6th amendment violation as no competent attorney would fail to bring out in trial the strong impeaching evidence as an added ground along with the perjury in a Capital trial. Further I testified to what I believed Frizen told me as well. Looking good. And it was. The Special Master found that the DA’s Investigator committed perjury several times and the Orange County DA, if he did not suborn perjury, came close to it and recommended a new trial for all the defendants
Looking good, but ended badly. In those days, in order to show ineffective counsel, a trial had to be reduced to a farce or a sham, and if the lawyer has any theory, no matter how far-fetched it’s OK. Today it is conduct below normal standards, a far less burden. Whatever, to my amazement, the Supreme Court said they do not have to accept the Master’s recommendation and denied the writ and that was that. The opinion can be found by googling: InRe Rosoto 10 Cal 3rd 939 decided in 3/18/1979
Vlahovitch was paroled, and as mentioned earlier, partnered as a bail bond collector with Ernie Loez who I prosecuted earlier. I remember that during the Court proceedings, Vlahovitch kept admiring Deputy Attorney General Al Harris, his appearance and particularly his suits. Pissed me off, as here I am trying to save these guys from execution, but newly in private practice, I barely had a wardrobe, one cheap suit and one sports outfit. Joe Rosoto also was paroled, and Franklin was eventually paroled. After Franklin was released, Joe Rosoto was murdered by what appeared to be a head smashing with something like a baseball bat. Maybe Franklin, the last to leave prison, may have thought Joe could have taken him off the hook; we will never know. I used to receive from Franklin’s mother for several Christmases $50.00, which I returned with a thank you.
The bottom line, at least those guys were not executed, thanks to me, and in my opinion, this is a good case to support the abolition of the death penalty. (That still is not my position, but there are a lot of cases of innocent people being convicted.)
Marshall
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