Author: marshallsknowledge

The weather today in San Francisco is chilly, clear and I feel like writing as a storm is brewing for later and we just finished 6 days of storms and floods in the Bay Area.

We did move to Lido Island, not right on the Balboa Bay, but a neat little house in the middle of the street between the North and South bay front and it was terrific. My GI house in Northridge was put up for sale, but no takers, so I just let it go back to the lender as we were not going back to the heat and wind, lawn mowing, gardening, watering and all the other requirements of home ownership, thank you. Forgot to mention that when living in Northridge, my wife wanted a dog, so we looked around, no little dog for me, found a pure bred German Shepherd female, light-colored and a wonderful companion, a protector and smart, which was the beginning of a series of Shepherds, male and female over a period of time. I loved that dog, named Duchess, and she was part of the family, accompanied us, of course, to the beach area and all over. No problem getting to work: LA Civic Center downtown LA by Southern Pacific Railway from Santa Ana, a short ride directly to Union Station, located about two and one half blocks to the Hall of Justice. A 40 minute, great train ride in the AM and back in the P.M. Would you believe the cost for a round trip was 80 cents? (couldn’t drive and park for anything close to that bargain.)

Well, I have devoted a lot of space to DA work, but I want you to know, I was considered a very good defense attorney when I finally developed my practice in Orange County. George Porter, who was a very good criminal defense attorney with an office in the city of Ontario, servicing San Bernardino, and Riverside Counties, got a brilliant idea of creating a statewide criminal defense organization, and about 40 years ago contacted a few  prominent attorneys, such as Ephraim Margolis from San Francisco (Ephraim was also Israeli and represented the State of Israel in matters involving American-Israeli relations,) Charles Garry, a famous labor, criminal defense and civil rights attorney, who stood up to the Congressional Unamerican Committee in their witch-hunt against Hollywood so-called communists, Paul Fitzgerald, a big time criminal defense attorney from LA., Chuck Sevilla, who with his partner, John Cleary, from San Diego, well there was no one better than they as a pair or as individuals. All of the aforementioned eventually became presidents of what is known  today as “California Attorneys for Criminal Justice.” (CACJ) From a small group, the organization has grown from a handful of defense attorneys to over two thousand members today. Among other things, such as legal briefings, case analysis, a law magazine, two seminars a year,  one in San Francisco in the winter and one in LA in the summer, plus special seminars on various special subjects, such as death penalty cases, DUIs, Forensic evidence and so forth.

OK, why talk about CACJ? Well, as I said, some people thought I knew what I was doing as a defense attorney. Every year the organization honors a few people with an acknowledgement and recognition of their contribution to the criminal justice system. This year, I was awarded “The Charles Garry Award” on December 10th at the CACJ luncheon at the Hyatt Regency Hotel, Embarcadero, which stated on the crystal award to me:

TWO THOUSAND SIXTEEN CHARLES R. GARRY AWARD                                                MARSHALL MANNE SCHULMAN, ESQ                                                                                               FOR YOUR COMITTMENT TO SOCIAL JUSTICE                                                                                 AND BEING A TRAIL BLAZER FOR GENERATIONS OF ATTORNEYS

Other awards that day went to a journalist, a former State Senator and also two members of the State Assembly.

Now to the meat of it. Charles Garry was about as liberal and left-wing as one can get. It was ironic that I received an award in his name,  as Charlie really did not care for me particularly based upon my DA days, and probably from when we first met, and Charlie was either the fourth or 5th president of CACJ, and violently opposed to the death penalty and was aware of my existence primarily based on one of his contacts, either as a client or with some contact with Ruchel Magee.

I first saw Ruchel Magee in 1963 where he was charged with a cheap robbery of a young guy in south LA. Looking at the case, I offered Ruchell, through his attorney, a plea to 2nd degree robbery, and would dismiss the kidnapping charge which was tagged onto the charge as a second count. Kidnapping or robbery with incidental movement carried life imprisonment. Basically Ruchell apparently told his attorney “no deal,” so we went to trial. The trial was not particularly noteworthy, except for Ruchell’s courtroom outbursts, and he was convicted as charged and sentenced to life imprisonment. That did not end the saga of the longest-serving prisoner in the California system.

In January 1970, three inmates of Soledad State Prison were shot dead by a prison guard; who was never charged. There were charges with racial overtones, but the guard was exonerated by a Grand Jury. Three days later, a prison guard was thrown off a walkway to his death.Three black inmates were charged with the murder and sent to San Quentin, where they would be tried for the murder in a Marin County courthouse. The three became known as the “Soledad Brothers.” One of the inmates was George Jackson, who was one of the founders of a prison gang known as “The Black Guerrilla family,” a black prison gang. George Jackson had a relationship with a former UCLA professor named Angela Davis. George also had a younger brother, Jonathon Jackson. A plot was developed where Angela Davis would provide a shotgun and other firearms to Jonathon, who would then enter the courtroom where his brother was being prosecuted, toss a weapon to his brother, release witnesses brought by George Jackson, arm them, and take hostages, consisting of the judge, the DA and four jurors. The prisoners would be driven to an airport, commandeer a plane and escape. Ruchell Magee was one of the prisoner witnesses brought to court that day as a witness to some of the activities of the prison guards. Well they all got into a van, gunfire erupted and all of the escapees were killed, except Ruchell, who I believe was holding the shotgun provided by Angela Davis, which was strapped to the judge’s neck. The shotgun went off in the shootout, blowing the judge’s head off, killing him; the DA took a bullet and became paralyzed; a juror was shot in the leg. Ruchell had multiple charges, including the murder of the judge. Ruchell cut a deal, pled to murder 1st, was sentenced to life and as far as I know is, and has been, in prison, since 1963, which would be about 58 years. Should have taken the plea deal I offered back in 1963 and would have been released and maybe a free man today.

There are a bunch of people who think Ruchell’s crimes were politically motivated, based upon the prison guards’ attitude towards black prisoners, and I think Charley Garry was one of them. My writing is basically from memory, but if you are interested, you can always google the names of Charley Garry, Ruchell Magee, Angela Davis, George Jackson, the Black Guerrilla Group, and the Black Panthers and get some additional information. BTW, Angela Davis split, but was caught in New York, brought back for trial, got her case moved to, I think, Santa Cruz or San Jose and was acquitted of all charges by an all-white jury. (She wrote a book about her experience which I read ages ago. Can’t remember the name but will look it up if anyone is interested,) and I might mention that there are no hard and fast rules in criminal practice, such as  “He who represents himself has a fool for a client.” Angela Davis represented herself and won.

Enough for today,

Marshall

Well, things were going OK, living in Northridge, commuting to downtown LA with a good bunch of sharing car-poolers: Steve Crossman, who I mentioned earlier- the guy who successfully took over my jury trial with closing argument when I was stationed in Santa Monica and who lived in the Valley in Conoga Park, Ron Einstoss, an LA Times reporter who covered the courts, ( Ron was a big guy who played tackle for a Nevada football team,) and Dave Aisenson, a deputy DA living in Reseda. David eventually ran for, and was elected, to be a Superior Court Judge, and was a good friend of mine at the time who lived very close to my house. Generally speaking, the commute was at least one hour each way, based on the condition of traffic, but it was not so bad, as we had plenty of time for conversation and civic center gossip. At this time, things were pretty routine: Court every day, negotiating with defense attorneys, settling some cases, and if a case was not worked out, then off to trial. Some major cases at the time interspersed with the run-of-the-mill felonies. Still living way out in the Valley among the new developments and existing horse ranches. (Robert Taylor, then a leading man star and his wife Barbara Stanwick who was on television in the “Big Valley” series had a horse ranch just off of Reseda Blvd near where I was living.) Times change, and today the area is wall to wall homes. Used to take our one-year-old on a 5 day vacation at a beach town called Carpenteria just south of Santa Barbara with Lew Watnick and Aaron Stovitz sharing a little modest beach house.  Aaron Stovitz, like Lew Watnik, was a brilliant attorney from New York City and, like many New Yorkers at the time, rubbed local Californians the wrong way. He was brash, but very good and was assigned to be partnered with Vince Bugliosi to try the Charles Manson murder conspiracy case, which became very famous and was written about in a best seller called “Helter Skelter.” (Vince sent me a signed copy of the book after it was published.) Anyway, Aaron eventually was off the case and Bugliosi prosecuted it by himself, and did a great job convicting all the charged defendants, and they also all received the death penalty, but because the death penalty as written at the time was not restrictive as I have mentioned earlier,  all the defendants’ sentences were later reduced to life. I mention Bugliosi, as I have a memory of meeting him earlier. My office was on the 6th floor of the Hall of Justice in downtown LA. Just outside of my office were metal cabinets containing printed out jury instructions the Courts were required to read and give to a jury. Each drawer in the cabinet contained printed instructions, starting with the jury’s duties, reasonable doubt, up through the definition of evidence, including circumstantial evidence and the definition of the specific crime charged and concluding with how the jury should deliberate, make a finding of either guilt or acquittal, i.e. not guilty, and so forth. One day, I walked out of my office, and I saw a young guy whom I did not recognize as belonging on the 6th floor, going over the jury stacks  “What are you doing here on this floor?” I asked and he replied “I am a new deputy DA assigned to the 5th floor, and I want to prepare myself for when I get into the trial department.” Blew my mind! In all the years, I never saw anyone not assigned to the 6th floor,including me, prepare for eventual promotion. No wonder Vince became one of the most famous DAs to emerge from that LA DA Office.

I was mentioning Carpenteria and summer vacation which brings a few more things to my mind. First, on one of my cases, I was stuck in trial, but the wife and son were ready to go and get out of the summer heat of Northridge, so we went, except I had to commute each day during the trial from LA to Carpenteria and back, which left me at arrival for dinner and a quick breakfast to return. The trip was about two and one half hours to three each way. My wife was pregnant with my daughter, Julia, at the time. BTW, Julia edits this log and does a magnificent job  Both my kids are remarkable, and I will get to them in future blogs. I should mention, getting back to Aaron, he was one hell of a guy. The Stovitzes had a young daughter who tragically and very unfortunately became ill with leukemia and shortly before her teenage years, passed away. I don’t know where a parent gets the strength to cope with such tragedy but somehow God gave them and the child to live through such horrible things. Aaron and his wife did, and I believe conceived their next child during one of our summers at the beach.

Well, one day, while living in the Valley, trying to cope with the heat, my father-in-law, who at that time had moved to LA and was working for a food supply company, worked out a weekend away at a hotel in Laguna Beach, where he sold his products. My daughter was just born and we had a baby nurse available, so Maxine, my son, Douglas, and I took advantage of about the only thing my father-in-law (Maurice ) ever did for me, his grandkids, or his daughter (except the car as a wedding present,) and we took it.

Laguna was great, cool and alive, and Maxine wondered if it was possile to live by the water and commute to LA for work. I checked, and it was. Max checked the paper for rent ads, and came across one in Newport Beach located on a small island in Balboa Bay called Lido Island. A small structure on Via Ithaca with three bedrooms, two baths, and an upstairs play room, a really very neat residence. She answered the ad, got a key to the house, we drove down, and looked at the place. We could afford the rent, so we took it and made plans to move which eventally was the beginning of a very successful private practice.

More to come

BTW, I am still a baby when it comes to the Internet, and noted some readers have sent me messages which I haven’t figured out how to respond to.  I will see my daughter soon and maybe she or her kids can help me, but one can reach me at lawmarsh@aol.com and we can chat. Just say “your blog” and I will love to chat.

Best to all,

Marshall

Haven’t written for a while, so let me bring you back to some things that were going on in LA.

Well, I am still assigned as the Deputy in charge of the cases sent to Judge Herbert Walker’s Court, Department 101, Hall of Justice, at 1st and Spring Streets,in downtown LA. Dept. 101 generally had only heavy cases assigned to it, after pleading not guilty in Master Calendar which was Dept 100. The lighter cases never seemed to get there,  except on occasion, such as bookmaking, petty theft with prior convictions, small burglaries and other non violent offenses. I suspected the defense attorneys managed to keep out of Dept. 101, how I can only guess. The two other trial attorneys assigned to my court generally were very good, and I had no trouble assigning cases on a rotary method as they came up; I would take one, then the next, say, to DDA Sheldon Brown (great trial lawyer) or Bert Denmark (also extremely good) or then myself. I still had the responsibility of making sure all the cases were ready for trial, witnesses had been subpoenaed, investigation was complete, handle all negotiations and plea bargaining as well as motions. The DA’s office had its own appellate branch, I earlier mentioned Lew Watnick as a friend and classmate was assigned there,. But basic motions such as an attack on the sufficiency of the evidence to support the charge which was known as a 995 motion based on the penal code section was my responsibility. Lots of work, but I loved it. There was a saying among the defense lawyers about my Department “Greatest triple play combination – Schulman to Walker to Chino” (Chino was the State  Reception Prison,  and also a medium to minimum security prison.) Each courtroom would have a small custody chamber where those in custody would be brought every day awaiting their appearance or some proceeding or another or trial. Went into one one day for some purpose when we had a visiting judge from the San Joaquin area and noted the prisoners had written on the wall: “There is hope with Walker” as the visiting judge made Walker look like a gift horse. The valley judges generally sent their convicted felons to State Prison rather than have the expense of giving probation with local time, (cheaper that way and the County did not have to pay.)

Earlier I wrote about one of my associate attorneys, Paul Herbert, and know I would like to introduce you to Ray Daniels.

Ray was from Boston, a graduate of Boston College, who somehow ended up in the LA DA’s Office and into my Court, Dept. 101. At the time, he had been trying to put together a murder theory against, if I recall correctly, an injection of insulin causing death, which would have been the first ever such type of murder. Very hard to prove. I allowed him to continue amassing his experts and trying to make the case. Ray was about my height; at the time, I was about 5’9″ (age shrinks you, you know) dark hair, and, I would say, a rather handsome young man. He was married to a gorgeous gal from Italy, and Ray, though a Boston Irishman, was fluent in Italian, which helped him after LA. We will get to that. Man, was she a good-looker and I generally melted when she called me “Tiger.” Oh Well, Ray made the case and got the 1st murder by insulin case in history. I do recall, while Ray was in the process, he self-promoted himself by giving an unauthorized interview about the case before it was presented, and I told him if I was the elected DA, I would fire him as he worked under and on behalf of the DA and the DA has to authorize any press statement. He got the picture, and we stayed friends.

Well, Ray eventually returned to Boston and was hired by the famous F. Lee Bailey, one of the most prominent criminal defense attorneys in America at the time. You may remember Bailey was part of the OJ Simpson defense team and asked the investigator: did he the investigator ever used the “N”word (which was denied by the investigator.) One generally does not ask a question just out of he blue, and OJ’s defense team had witnesses to contradict the officer and make him a liar in front of the jury. The prosecution should never have tried to support the police officer witness to maintain their credibility, but they just took it on the chin instead, and lost a dead bang winner because of that and other acts, such as having OJ try on a glove found at the scene.

Later on when I was in private practice I had a chance to meet up with F. Lee Bailey on a case in Orange County, Thomas Gionis, in 1995

Tomas Gionis was a orthopedist with a highly successful practice. He was married to John Wayne’s daughter, Alissa Wayne. They had two young children and there was a bitter custody fight going on between them. Alissa was at the time dating a character named Roger Luby. One evening, Alissa and Luby returned and upon leaving their automobile, were met by two thugs; if I recall, one was armed. Supposedly, Luby and Alissa were tied up, threatened and Alissa had her head smashed onto the concrete floor causing pain, bleeding and later stitches, and Luby also head his head smashed into the concrete floor of the garage and one of the thugs sliced Luby’s Achilles tendon and tried to do the same to the other ankle area. Luby ended up with a limp as well as his head injuries. The DA charged the two thugs, the private investigator who allegedly hired them, (allegedly by Gionis) and Gionis with the assaults, battery and conspiracy to intimidate and injure. Gionis hired me to defend him. I thought the DA would have trouble connecting Gionis. Well my employment did not last very long, as the DA brought a motion to kick me off the case, based on a conflict of interest. It seems previously, my partner at the time, Byron McMillan, had been consulted by Luby for some advice and charged him all of $100.00 for the short meeting. The DA had the cancelled check as proof. I probably could have fought it, but F.Lee Bailey had been consulted and came into the picture. Bailey and I met the evening before court and made arrangements to transfer the file and for Bailey to take over the case, which was done. They had a preliminary hearing, but Bailey did not last after the case got to the superior court. The case went to trial,and  Gionis hired John Barnett, a local, and one of the best criminal defense attorneys in the area. The jury hung on the first trial, but rather than keeping John Barnett, Gionis hired from New York another lawyer, Bruce Cutler, who was also very famous and was best known for representing John Gotti, who was alleged to be a big Mafia Boss. They went to trial and Gionis was convicted and sentenced to 5 years in State Prison, took the case up on appeal where the appellate court reversed, based on a violation of attorney client privilege, where Gionis made some damaging statements to his divorce attorney as well as other reasons. The prosecution took the case to the Supreme Court and the appeal court reversal was reversed, the verdict and sentence reinstated and that ended that saga. Alyssa Wayne went on to law school, graduated and was admitted to practice law in California. For detailed facts and law stuff. google People v Gionis at 9 Cal 4th 1196’/

I am ambivalent regarding Bailey, but it was nice meeting a nationally-known attorney.

I mentioned Byron McMillan earlier. Byron was from the West LA area, and passed away just last year. He went to University High in the Westwood area, and though I do not recall ever meeting him as a teenager, I learned he was pals with one of my classmates, Eric Blore Jr., our high school fullback and son of the English actor, Eric Blore, who played butler parts in the movies. However, in 1946 or 47, I went to Catalina Island looking for work with a couple of high school  buddies, Merwin L Koeppel, who I knew from the age of 10 to today (lived across the street,) and Frank Morris, who eventually played quarterback for San Jose State. Frank eventually connected with Hollywood and was the editing director for the movie, “Mary Poppins,”  where, as I mentioned in an earlier blog, the music was written and directed by two other high school classmates, Richard and Robert Sherman. I spent one summer in Catalina Island doing odd jobs and ended as a fry cook in a diner located on the main pier where the daily steamer from LA docked with its daily load of tourist passengers. Didn’t know a griddle from a frying pan, but learned quickly and would cook a lot of cheeseburgers and fries, waiting for the Catalina Steamer’s passengers to hungrily swarm down the dock to the Cafe, “The Busy Bee.” After work, I would go to the small beach in Avalon and play volleyball. I later learned Byron was in Catalina doing something at the same time and also meeting in the afternoon playing volleyball, so we definitely met there for the first time.Byron was one of the youngest judges appointed by Governor Edmund G. “Pat” Brown, father of California’s present Governor, Jerry Brown, in Orange County, was a trial judge, a master criminal court judge, and eventually presiding judge of the Court. Well, he became part of my golf foursome. He took an early retirement, and went to work as an associate in a personal injury firm, but eventually asked if we could get together to practice criminal law and I jumped at the chance to work together with him. I will eventually get to private criminal defense.

Enough for today

Marshall

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

The trial of the two cop killers was before The Honorable Mark Brandler, I believe in 1963 or 1964. Having chosen LA as the place to try the case, it was going to be a slow tedious process involving multiple witnesses and ballistic experts to tie the case together and reveal each bad guy’s involvement in the murder and other related crimes, such as the approximately 32 armed robberies, plus the story of the meeting of the police officers with Gregory Powell and Jimmy Smith. Just from observing the two bad guys, it was clear to me Powell would be no problem getting a conviction for and a recommendation of Death by cyanide in the gas chamber, but Jimmy Smith was another story. In court, Powell would strut and sneer and show his true side, but Smith, an ex-con, knew how to play the system. Smith would look “hang-dog,” and his defense was going to be believed, “Powell did it all:” the robberies, the shooting at the fleeing officer, and the coup de gras murder of Officer Campbell. My purpose was going to be to show, without any doubt, that Smith was as bad as Powell, if not worse. Thus, I had to be meticulous in the presentation.

In gathering evidence, Pearce Brooks, the brilliant detective, was able to pin down both defendants on strategic statements made by each defendant. The most important was the act each had admitted in tape-recorded interviews, the weapons in their possession when arrested were the same weapons they first had on their respective possessions from the time the kidnapping first occurred to the time they were arrested. Bingo, ballistics proved the fatal wounds administered to the fallen officer were from Hettinger’s 38 Smith and Wesson revolver, which Hettinger gave to Smith, and Campbell’s Colt 38 was taken by Powell at the time of the first encounter back at the Hollywood area. Shell casings from the area where Powell was standing at the end of the ride were from Campbell’s revolver and conclusively the shots to the fallen officer were definitely from Hettinger’s Smith and Wesson.

Also, when Hettinger fled and ran across the field, he encountered a farm worker driving a tractor. The two of them started towards a farmhouse about 5 miles west of the original spot and while hiding in the furrows, they observed the Ford used in the kidnapping going up and down the area searching for Hettinger, and that could only be Jimmy Smith, as Powell had already stolen a vehicle and was on his way back to LA, but was captured going South on the Ridge Route. (now Interstate 5) Also, Smith had prior knowledge of the killing area as a past field worker in those fields. In the end,  I tied both defendants in a web so tight there was no way they could get out of it.

One of the problems was putting the story together, so I decided to start with the two defendants, meeting and becoming partners, how they started robbing small convenience stores, with Powell the gunman and Smith the driver. How they prepared with the purchase of weapons in Las Vegas, their practicing to shoot to kill at a remote waste area with simulated dummies as people to show their intent to kill from the very beginning. They had pledged they would not be taken alive. Then, after presenting the robberies which lead up to the killers cruising the Hollywood area, I then brought the two officers into the picture with the testimony of Officer Hettinger meeting with his partner, the confrontation and the kidnapping leading to the murder.

I had a huge aerial photograph of the Ridge Route and the area, which was pretty good for illustration purposes, but could not really recapture the scariness and loneliness of the actual crime scene. For some unknown reason which I never understood, the defense requested a view of the area of the shooting. I have, as a defense attorney, never asked for a view, as I have never seen a view benefit the one requesting it. For your information, when a party requests a view of the crime scene, the whole court, its staff, the jury and the parties and their respective attorneys are transported or driven to the area. No testimony is allowed, but there can be questions relating to pointing out what was taking place at the time of various incidents such as: “Officer Hettinger- using different people, would you please stand where you were when the first shot by Powell hit Officer Campbell in the lip and caused him to fall backwards? Please position officer Pearce where Officer Campbell was standing.” (and so on) Well, once out there in the field, it was more than clear how lonely and desolate the area, the ready-made grave where the irrigation pipes were to be laid, the fact that if both officers were killed, they may never had been found, leaving their wives and children to never know what happened to their husbands and fathers. Pretty cold, wouldn’t you say?

I also had a mannequin made of a head and torso, sort of resembling Officer Campbell based on pathology and ballistics showing the entry and exit wounds illustrated by rods which showed the angle of flight which corresponded with someone standing behind the fallen officer shooting into his body from behind, as described be the surviving officer.

Needless to say, the trial was lengthy, covering maybe 32 volumes of testimony. My opening statement was the longest I ever delivered, and I usually don’t like to overwhelm the jury with small details, but in this case in order to put the occurrence together, I had to spend about a day in opening statement.

As expected, the defendants each blamed the other, hoping to escape the Death Penalty.  Didn’t work. I nailed each one with their own recorded statements

Closing argument did not take as long. The jury was instructed and went to the jury room to deliberate

Then the  best-laid plans went awry. One juror would not deliberate, because she lived in Sierra Madre, sort of a rural area in the San Joaquin hills just above Pasadena, and one day she called the police to remove a rattlesnake that found its way to her front porch. So the police came, shot the snake and she apparently went ballistic against the officers for killing the snake and developed a hatred against police which was never revealed when we were selecting the jury. Fortunately, because she did not reveal the bias and also refused to deliberate, after inquiry, the court excused her for cause, and an alternate juror was selected, Shortly after, the jury returned with a verdict of guilty of Murder 1st and we then went into the next phase: what penalty should the jury recommend, life or death.

At that time, I could and did present to the jury that life does not necessarily mean life and the accused would be eligible for parole after 25 years. I could present parole statistics showing parole grants and the number of those committing crimes while out on parole. I could also show the defendants’ criminal backgrounds, such as the several felonies each defendant had previously committed, and, in Smith’s case, his knife attack on a teacher when he was a juvenile. Also, I could present evidence of escapes over a set period of time.

It’s not a good idea to try a case by way of several lawyers deciding strategy by committee. The OJ Simpson case is a classic example. In that case, not only were there at one time three DAs in Court, but also, after court, there were additional DAs assigned to participate in strategy, which in my opinion dilutes the effectiveness of the prosecution. In the Onion Field case, Powell’s girlfriend would bring their infant to court and stand by the jury as they would leave the room, holding the baby up for the jury to see. I wanted that in the record and planned to use it against him. So, when he was testifying, I asked him if that child was his? Yes, he admitted.  You could hear the gasps in the courtroom.  But I knew once I had that evidence, in closing argument regarding penalty, I told the jury why I asked the question and that Powell was such a coward he would not only hide behind his girlfriend’s skirts but would, for his benefit, have an infant in court rather than at home in  a crib where the child belongs. If I had a committee, they probably would veto that ploy, but it fit me and my style.

Well, the jury returned a death verdict for both defendants and there would follow an automatic appeal

I left the office in 1965 for private practice. My next blog will cover the automatic appeal, its results and a discussion of the pros and cons of the death penalty, as well as the aftermath of the Powell/Smith saga

Marshall

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

On March 9, 1963, two  ex-cons out on parole, having met and joined up with each other, and having together committed about 32 armed robberies of small convenience stores, were scouting the Hollywood area to find another place to commit robbery, being armed with automatic pistols purchased at a gun show in Las Vegas, Nevada, where a background search was not required, and where one robber, Gregory Ulas Powell, would enter and Jimmy Lee Smith would drive, generally a stolen vehicle, and act as the driver. In the early evening of this date, the two were cruising Hollywood looking for a place to rob when they were “red-lighted” by two LAPD plain clothes patrol officers assigned to be on the lookout for suspicious activities. The officers observed the stolen Plymouth driven by Jimmy Smith and noted that the driver and passenger in the Plymouth did not seem to fit the area by the way they appeared dress-wise in the area. So, the officers decided to stop the car, detain the occupants and inquire of their business in the area.

That turned out to be a mistake. The officer driving the police car was Karl Hettinger, a young officer and ex-marine with a good record in police work; the officer-passenger was Ian Campbell, also an ex marine and good officer, married and the father of two young children. The suspects’ car stopped for the red light. Officer Hettinger approached the driver’s side of the suspect vehicle, while officer Campbell approached the passenger side. Each of the suspects was ordered out of the stolen vehicle on their respective sides. Unknown to the two officers, Gregory Powell was carrying a 32 caliber automatic at the time he was exiting the detained vehicle. Officer Campbell was a large man, over six feet two inches and Powell was short, slight of build. Powell got the drop on Campbell, putting his weapon in Campbell’s back, disarming the officer and using Campbell as a shield. He pointed Campbell’s weapon, a 38 caliber revolver, at Officer Hettinger,who had his service revolver: a 38 Smith and Wesson Revolver, pointed at Powell and also at Smith.  But Powell was completely shielded by the size and bulk of Campbell. Powell ordered Hettinger to surrender his weapon to Smith, and, after some hesitation, with a revolver being pointed in his direction, the officer complied and gave his Smith and Wesson revolver to Jimmy Smith. With that, the officers were directed to get in the Plymouth and abandon the police vehicle, with Hettinger to drive with Smith in the front seat and Campbell and Powell in the rear seat.  The officers were told that they would be eventually let go, but the officers were unaware of the previously made plans of the two suspects not to be taken alive.The two bad guys had earlier gone to a remote trash dump area out in the Mojave Desert, where they practiced shooting at imaginary human beings to test their recently purchased weapons in order to prepare them to kill anyone that posed a danger to their being locked up again in State Prison.

Hettinger was instructed to drive towards what was then known as “The Ridge Route:” a winding road through the Tahachapi Mountain that extended from the San Fernando Valley to Kern County through various cities from Bakersfield North up through Sacramento known as highway 99. (Today, the winding road has been replaced with Interstate 5, leading to places North extending through California, Oregon and Washington States.) Hettinger complied and throughout the ride across the mountain range the officers were falsely assured the would eventually be let go. When the group reached the bottom of the Ridge Route, Hettinger was instructed to turn left and take a road known as The Maricopa Cutoff. After a few miles driving West in this remote farm area, they were told to turn left on a small country farm road leading back towards the mountains, and after a short drive, they were instructed to stop and get out of the car. The Officers complied. At that exact area, there was a ditch already dug for a watering system for the crops in the fields. ( Jimmy Smith was very familiar with the area, having worked those fields in the past, and what a perfect place to bury victims in an already-dug grave site.) The two officers were told to stand next to each other, facing Smith, and to Smith’s immediate right, Powell was stationed. Directly across from Powell, Officer Hettinger was standing and facing directly across from Smith, Officer Campbell was standing. With that, Powell said to the two officers “We told you we would let you go, but have you ever heard of the Little Lindbergh Law?” Powell then shot Officer Campbell right in the upper lip knocking him to the ground, a non fatal wound. With that, Hettinger started running South towards the mountains in, as he was trained for in the Marines, a zig zag manner to make any attempt on his life difficult for the shooter to hit him. As Hettinger was running he looked back; though this was a moonlight night and vision was not too bad, he could see from the position. He last saw Powell  shooting at him, and he also saw from the position Jimmy Smith walk around to the stricken, fallen officer and saw that figure from a position directly behind Campbell, fire several shots directly into the downed Officer, appearing to go in the direction of the officer’s chest and abdomen. Hettinger ran along a barbed wire fence which separated the fields where onions were being farmed, balled himself up, threw himself through the fence and ran into the field and hid in furrows that had been dug for the crops. Of course Campbell died as a result of the murderous shots into the chest and abdomen area of his torso.

One of the ironies is when Powell uttered the term the Little Lindberg Law,” he was referring to Penal Code Section 209, which made it a crime to kidnap for the purpose of robbery or ransom, and which carried a parolable term, but if there are injuries, then either life without parole, or death. Th Law came about when one of America’s heroes was a famous person. In 1927, Charles Lindbergh flew a single engine plane named “The Spirit of St. Lewis” from Long Island, New York, solo, a single engine plane to Paris, France, the first ever Trans Atlantic flight. Later, in or around 1936, Lindbergh’s son was kidnapped and murdered. Later, a German gardener named Bruno Hauptmann was arrested for the crimes, found guilty and executed. (there still remains some doubt about the conviction.) Well, states, including California, then adopted the law regarding kidnapping or robbery for ransom with a penalty of death or life without parole for the crime if there is bodily injury. So, Powell was wrong regarding the death penalty for what they had done until the officer was killed. Today the penalty for that crime is not death or life without parole but parolable life

Well, Hettinger managed to escape, ran into a field hand, and the two of them managed to get to a farm house about five miles from the spot of the shooting, contact LAPD, who contacted Bakersfield Police and the Sheriff’s Department.  Jimmy Smith got back in the Plymouth to stalk and search for the surviving officer, obviously to kill him, while Powell stole a car and fled the area, only to be stopped by the Highway patrol, Bakersfield station, on his way back to LA on the Grapevine. Recovered was his automatic. Jimmy Smith managed to get to Delano, a small town just South of Bakersfield and get into a rooming house, but was turned in by the manager to Bakersfield Police, who came and captured him and recovered in his possession Officer Hettinger’s Smith and Wesson revolver, which turned out, through ballistics, to be the very weapon that shot the bullets into Officer Campbell’s torso, the fatal shots and cause of death.

Well, I never had been called by my Office, and, to my knowledge, neither had anyone at that time, to get into a case at its inception and work with the investigators from the beginning. This was a Sunday morning, as I recall. Powell had been arrested and later, after I arrived, Jimmy Smith had been apprehended and was on his way back to Hollywood Police Station, picked up and transported by one of the smartest men I had ever met, Sgt. Pearce Brooks.

I arrived at Hollywood station mid morning of March 10, 1963, and as I had been told, there was chaos.  All that was known when I first arrived and was briefed, was a Hollywood Station Police car was found abandoned in Hollywood and two officers were missing. Things developed from there.

To be continued

Marshall

Haven’t blogged for a while. Sort of writer’s block, I imagine. When my brother was killed and had his life, with a great predictable future, snuffed out, things went downhill from there for my family. My parents divorced after I returned from Minneapolis when I was about 9 or 10. My father started medicating himself with narcotics, lost his practice, and moved to Philadelphia as a construction worker for Rose Bros. Demolition Company owned by one of his brother-in-laws to straighten him out. It didn’t work, but he eventually pulled himself together, and taught Anatomy and Physiology at the U.S.C. dental school (the only dental school in LA, and later one of his students was my dentist for a while.) I had almost no contact with my father during my formative years except for an occasional parental visit, which was very strained. I really did not get to know him until I was 29 years old and newly married. We had little money, but managed without alimony or child support except on a rare occasion. I had some kind of a job from the age of 10 until my retirement in 2016. Magazine delivery, paper boy for the LA Times, starting at 5:00AM before school, bus boy at a local eatery, worked at the Beverly Hills Ice house lugging 300 lb blocks of ice up a ramp into a cubing machine and while the block was being cubed into a large vat, bagging two bags of cubes, 100 lbs each, a riveter at Douglas Aircraft in Santa Monica when I was 16, putting in the bomb bay boxes on the A20G fighter bombers used in the North African campaign in WW2, and a bunch of other jobs, even driving an ice cream truck in Glendale selling to the neighborhood kids. The point is, I was not lazy, but after six or seven elementary schools, including a year when I was 10 years old in a disciplinary military school, I had no interest in school. Too bad, because the solid base of lower schooling before college really is very necessary in one’s educational growth. The Army straightened that out and I knew in order to get anywhere, you have to get that education, particularly if you have no place to start earning a living, try for a profession. A profession once acquired is yours and can’t be taken away.

I mentioned earlier, I was living on Reeves Drive in Beverly Hills and part of that time I was assigned to the Santa Monica Branch Office. My son was born during that time in April of 1959. I eventually was reassigned to the main office, Down Town LA. One just can’t predict where life will take one. For some reason, I was talked into buying a GI. House about as far as you could go North in the San Fernando Valley, on Reseda Blvd. which ended at San Fernando Road in Northridge which at that time was the residential part of the Valley which ended about three houses from the fence delineating the Porter Ranch. The area where the houses were located at that time was rural. Today the area now extends all the way up the Ridge Route taking one from LA County to Bakersfield in the San Joaquin Valley and the area that was Northridge has been divided into another part called the Porter Ranch City today.

Well, we moved to a little GI house with nothing but the structure, no air conditioning, so we had to put in a water cooler, no sewers, so we had to put in a cesspool, no foliage, so we had to roto-till the front and back yards, dig trenches for the sprinkler system, then a dichondra lawn, and then put in Mother’s Day trees and plants, get a hand lawn-mower and we also needed to put in a rural mail box on top of a 4 X 4 board which was a problem because the soil was adobe and you had to dig a hole to put in the board; it was impossible, as the ground was as hard as cement. Luckily, a neighbor had a power drill to cut through the ground, so the mail box could be placed.  Lastly, I had to put in a block wall fence for the back yard and complete the whole thing by assembling a Jungle Gym.  All this, because I got talked into buying the house by my father-in-law; the theory being the kid needed a place to play.

What a crock. The weather was awful, in the 100s in the summer time with heavy winds and freezing cold in the winter time and again with winds, and the child didn’t need all that space anyway.

The good part is- as a result, which I’ll go over later, we eventually moved to Newport Beach, where the weather was great, and I developed a pretty good legal practice which we will get back to later.

The move changed my car pooling from David, Raul and Sterry, to Ron Einstoss, an LA Times Reporter, Steve Crossman, who had been reassigned to the Main Office, and David Aisenson, who later became a LA County Superior Judge. All good guys living in parts of the San Fernando Valley. The commute was about one hour each way, but time passed with good conversation with some really neat guys.

OK, so one weekend day, while picking the weeds out of the dichondra, Maxine tells me the Office is on the phone and has to talk to you right now. So, in I go pick up the phone and it the main boss, number 2 in the Office, Manley Bowler, who tells me “All hell is breaking out in the Hollywood Los Angeles Police Station, two LAPD cops have been kidnapped, someone is in custody and there is another suspect on the loose. Get down there and do what you can.” Which I did.

The case became one of major murder trials, a best-selling non fiction novel and a major movie about kidnapping and murder.

To Be Continued

Marshall

Rather than getting into some family stuff, my thoughts lately cover some interesting situations, and I will get back to what occurred after my parents split and my father’s downward spiral and recovery.

Ernie Lopez was just a really bad guy who spent a number of years in McNeil Island Federal Penitentiary where he attempted, and was the only prisoner ever to escape and, in doing so, stabbed a guard 16 times. The guard lived and was available to testify. Lopez was caught and did 15 years on the “Rock” ( Alcatraz Federal Prison, where only the hardest cases were sent.)

When Lopez was eventually paroled, he resumed his criminal life and got a hold of a daring daytime armed robbery of a store, Moore Incorporated, one of the first discount stores, preceding stores such as COSTCO, Target and the like, located on Sepulveda Blvd in West Los Angeles. Lopez had information on when the store’s deposits would be picked up by a bank currier for deposit. The take was to be twenty to thirty thousand dollars, the store’s daily take. The pick up was around 12:30 P.M. Lopez tried to pursuade a former fellow inmate named Luna to join him to rob the bank currier and laid out the plan: burglarize a mask and gun store, stop the currier in the parking lot, grab the money satchel and take off in a stolen getaway car. Luna demurred and did not want to go along with the plan.

Willard Winhoven was around 60 years old and had an extremely high IQ, was a master electrician in his younger days, but got involved in an unsuccessful armed robbery of a post office, was tried in California for the crime, found guilty and sentenced to prison for a period of 5 to life. After doing 5 years in State Prison, he was paroled, but he never was allowed to be free from custody, because the Feds grabbed him and he was charged for a crime against the United States, robbery of a Federal Post Office, the same robbery for which he had just done 5 years in a State Prison. He was convicted in Federal Court of the very same robbery and sentenced to 20 more years, first in the Federal Prison at Fort Leavenworth,  Kansas where he escaped, was caught, convicted, and sent to Alcatraz, where he met up with Ernie Lopez.

Winhoven was paroled after 20 years, met up again with Lopez, and agreed to rob the Moore store as planned

So, on July 23, 1960, as the currier was leaving the parking lot of the store, his car was blocked by a masked gunman who attempted and did grab the receipt satchel, but not without a struggle, and while the two were struggling an off-duty LAPD officer tried to separate the two strugglers, when he was shot in the back, turned and saw the shooter was Winhoven.  The officer tried to get back in the store, and as he was doing that, he was shot in the leg. While this was going on, the store manager, attracted by the noise, saw Winhoven shoot the officer. Another manager saw the shooting and identified Winhoven. And then a third associate manager, again attracted by the noise, came out, was shot by Winhoven, and was killed. Because the stolen getaway car conked out, Winhoven and Lopez ran out into the street, commandeered a car driven by a lady and took off. A young man driving on Sepulveda saw the car jack and foolishly followed the car into a cul-de-sac where Winhoven got out of the stolen car and shot the young man with a long range rifle right through the young man’s car window; the bullet hit the victim just under one of his eyes The victim survived, but the bullet entered so close to the brain or vital nerve, it could not be removed and hopefully it would never move, which would probably kill him.

The two defendants were luckily stopped early in the morning in Lamont, California, a town near Bakersfield in the San Joaquin Valley, about one month after the Moore Store robbery, murder and attempted murders, and the two robbers were apprehended.

(For a detailed account of the subsequent trial, issues and fact statement you can google People v Winhoven or put down the case citation 60 Cal 2nd 223)

At this time, I was the Calendar Deputy in Department 10 of the Superior Court. Joe Busch was assigned the prosecution, put on the preliminary hearing and when the case reached the trial Courts, the case was assigned to Dept 101, my Court.

Joe was one year ahead of me at Loyola Law School and went directly into the DA’s Office and was also a calendar deputy in another courtroom. He had a steel-trap mind and was also an athlete- played football in the Sugar Bowl, and was just an all around good guy and wonderful trial lawyer. After I left the office in 1965, Joe was appointed as the DA of Los Angeles County in 1970, served three and one half years in that capacity, but tragically died of a heart attack as a very young man.

After I went into private practice, I was appointed to be on a small State Bar Committee called “The Criminal Justice Committee” with the responsibility of advising the State Bar Board of Governors which resolutions the State Bar Conference should be supported in the legislature or what needed more work or what should be rejected. It was an elite committee with County DAs and Appointed Public Defenders. I think I was the only non-government attorney on this small group of lawyers. Joe and I maintained our friendship even after I left the office and he actually offered me the position of assistant DA and a possible judgeship. I was not interested in moving back to LA, nor  did I want to be a judge- too restricting,  plus, frankly, I don’t think I would be good in that job. Too impatient and lacked the sensitivity needed. That subject, judging, came up two other times and I just did not think I would be good in such a restrictive occupation. I like the various cases and courtrooms.

The LAPD detective investigators on the Lopez/ Winhoven case were famous, especially in the “underworld.”  There were four of them, all way over six feet, wearing cowboy hats, thus the nickname, “Hats,” and they carried pearl handle revolvers. But, boy, were they smart! At the time of the trial one had passed the Bar exam and was admitted. He later became a judge; another had just taken the Bar Exam. The third was studying for the Bar and the fourth completing the last year of law school. The Hats were assured and tireless workers. They put together a great, but complicated case where both defendants were convicted of all charges, one count of murder 1st and 4 counts of attempted murder

There were about five of us in the DA’s Office, me,  J. Miller Levy, Sam Meyerson, Joe Busch and Bill Kean. Bill had left the office and was a personal injury defense lawyer, but eventually gave up a lucrative practice, became a judge, and eventually became the presiding judge of the LA Superior Court. We did a TV stint on Channel 2,CBS, in a program called “The Verdict is Yours,” a daytime presentation. The pay was very good and the insurance benefits fantastic, but we had to join the association of television and Radio Artists. Both my kids’ birth, doctors’ bills and hospital charges were covered and with the earnings from the show, I was able to put additions to my then GI home in Northridge ( I will cover that period in a later blog.)

What I learned from the activity, among other things, is that acting is a craft very different than the law, and most trial lawyering is really akin to salesmanship. The show would have a theme and a charge, such as one I did which was an arson/murder case. I was always typecast as a prosecutor, the others either prosecution or defense. A famous movie and television actor, famous for the TV series “Have Gun Will Travel” among his other fine work, was Richard Boone (look him up) who had a show featuring some of the finest TV movie and stage stars. When that show finished, they brought the marvelous actors to LA Studio at Beverly and Fairfax. We were expected not to be actors, but lawyers. The way it worked was a general scenario, with each side preparing with witnesses, not a script but an actor’s exercise nonetheless. There had to be concessions, but how one conceded was up to them. It was a very competitive show, and each side wanted to be victorious. The presentation was to a live six-person jury and the jury would reach a verdict. I recall one actor, though required, would not give me a concession, continually denying what she was supposed to say: “Didn’t you tell your friend you believed the defendant did the crime? “I never did, who told you that young man!” I was stuck and the show was live and time-limited, so I  had to move on. The director was Al Rafkin, who has done many of the Dick Van Dyke Shows, and I remember him telling me “Don’t step on my actor’s lines!”

Lawyers who try to dramatize their presentation, unless they are very good, generally fall flat on their cans, as jurors collectively can smell a phony from far away. One of my jobs after my Army discharge was at Leroy’s jewelers and Silversmith. The company was more than watches, bracelet and rings. This was in the late 40s, when TV sets and other electronic devices were being sold and LeRoy’s had its main store in downtown LA and a branch for TVs and other stuff, like refrigerators, on Hollywood Blvd. Saw an ad for a salesman, responded, and the manager said: you want to sell, there is a customer – go sell. Of course I fell flat on my face, but he decided to give me a try. He taught me the basics, namely “qualify the customer” that is- are they only lookers or there to buy?

So, “What are you looking to buy?” Then, the next most important thing is “know your product, and know the competitor’s product and explain why yours is better.” For example, we would get a better commission from Hallicrafter, one of the brands of that time like Zenith, RCA, Hoffman, etc. Nobody ever heard of Hallicrafter, but that company did all of the radar for the US Navy, and I would show a magazine article about them, plus they were the first company to use a printed circuit. You get the idea. The same applies with a case presentation: know your case and be prepared to deal with the issues your opposition brings up. I have always wondered when my opponent has a problem, why try to hide it? One can always admit and move on. A classic is the OJ Simpson case, when the detective denied using the “N” word and was impeached. Better to admit, tell the jury to disregard, and concentrate on the rest of the evidence, rather than trying to rehabilitate him. That gives credibility and dilutes the damage. I call this the “Judo Approach,” take something bad and turn it around. Worked for me every time.

Back to Lopez and Winhoven. When the case was assigned to my court, Joe asked me to be co-counseling the prosecution, which I did. Normally, I like to work alone and call my own shots, but this worked out well. We split the witnesses as well as the closing argument. There was an incident. Joe had worked on another case with the office’s star attorney, J Miller Levy, and during that trial, Miller would keep tugging on Joe’s jacket, telling him to do this or that, a very disconcerting trait. Well, I was questioning a witness, and Joe kept leaning over to grab my jacket and obviously have me do something he wanted. I continue to do my thing and did not like to be interrupted.  So, every time he reached for me, I would move away until I was behind the jury box where he couldn’t reach me. When I was done with my questioning, I had no clue what he could possibly want, as I did a very thorough job. So, as a courtesy, after I had completed my examination, I walked back to counsel table and said “OK,  Joe, what is so important that I missed?” and he replied, “Your fly is open!”

In closing argument, at the penalty stage of the trial, I was suggesting to the jury why they should render a death verdict for both defendants, and, with that, Winhoven burst out, “and you should die!” I promptly told the jury, “You see? He still wants to kill.”

The jury returned a verdict of death, but neither defendant was executed. The death penalty, as it stood at that time, was declared unconstitutional, as there were no standards to govern the selection of punishment, so the death penalty was thrown out due to lack of guidelines, thus considered arbitrary.

Winhoven died in prison and Lopez was eventually paroled, went to work for a bail bondsman named Maldinado, whom I got to know when I was in the East LA office, and Lopez was a collector and partnered with a guy named Vlahovitch who had also been convicted of murder 1 and sentenced to death. I was involved as a defense lawyer representing a co defendant, and, as a result of my efforts, which I will cover when I get to my defense practice, he was saved from execution.

Enough for one day

Marshall

Today marks our sixty year anniversary. 60 years ago, just a short time after we met, Maxine and I were married at the Fairmont Hotel in San Francisco. I had just entered the LA DA’s Office. The Office was kind: “You are to be back on the job on the Monday following your wedding on Saturday.” That gave me the whole weekend to get to San Francisco, get married on Saturday, drive down the coast, and stop the first night at Rickey’s, a fancy motel on Highway 101 in Palo Alto. I get the key to the room, pick up my bride, carry her over the threshold, enter the room and there is a couple sitting there watching TV! Turns out the guy went to high school with me, so we started chatting and then his wife looked at Maxine, saw the rice embedded on her hat and veil and uttered, “you were just married – oh you poor thing!” What a way to assure to my lady that things would be good on the first night! Got a key to another room, and next day off to the Highland’s for Sunday night’s stop, followed by a drive back to LA, just in time to go to work on Monday. That’s the way it was in the 50s, no “Mollycoddling.” Well, we did pretty good together, respecting each other. One of, if not the most important thing, in our relationship is neither demanded from the other constant personal attention,  and we have complete support for one and the other. I do not think I would have my later success without Max’s patience and backing for the long hours criminal trial lawyers have to put in.

I have, from an early age, always had some kind of a job, even when in college and law school. The different types of jobs helped frame any ability I may have as a trial lawyer. My life was pretty good up to my 9th year. Both my mother and father were raised in Minneapolis. Both were graduates of the University of Minnesota, and my father went on to medical school, where he was an outstanding student and interned at the famous Mayo Clinic in Rochester, Minnesota. My mother developed a hearing problem as a young wife, so they decided to move to California, hoping the warm climate would help. My father opened an office in LA at the intersection of Santa Monica Blvd and Laurel Canyon which was about the end of the inhabited city at that time. He became very successful and his practice boomed. He then moved to the Taft Building at the intersection of Hollywood Boulevard and Vine Street, a famous location with the famous Brown Derby Restaurant, a restaurant hosting famous Hollywood Stars, producers, Studio chiefs and the rest of the Hollywood crowd. Dr. Leo, as he became known, was the doctor of these famous people, like Jack Warner, one of the Warner Brothers, head of the film studio of the same name. Dr. Leo got this clientele because he was a very good if not great doctor. Those days, doctors gave a heck of a better service to their patients than today. His stature grew in the profession and he was on the board of Hollywood Presbyterian and Cedars of Lebanon Hospitals  He was also the ring doctor at the American Legion fight arena. As his reputation grew, so did his income. This in the 30s, the height of the Great Depression, when America was in very bad financial shape and unemployment was rampant.

My brother, Leonard, was born in 1922, one year after my parents came to California, and I was born 5 years later in 1927. My parents moved to a very nice house on Detroit Ave between Beverly Blvd and 3rd Street. They were so well-off, they had a live-in maid, a Cadillac car and a Ford model A with a rumble seat, and my father had a driver. Things were good.

I was not close to my brother, as the 5 year difference in ages probably put me in the little pest category. As opposed to me, Leonard was, like my father, a brilliant student. Again, as opposed to me, my parents had to go to the various schools and ask the principals to stop skipping him. As it was, at the age of fourteen, Leonard was a senior at Fairfax High School.

At the age of nine, my good life was shattered. Leonard, while returning from a party, was crossing Beverly Blvd at night and was struck by an oncoming car and killed.

My memory was that evening when the news reached my parents, I recall my mother’s wailing, screaming, sobbing, and I was carted off to my Aunt Bertha, my father’s sister, who had moved to California with Uncle Art Friedman, a dentist, where I stayed for a week or two, then picked up by my mother, taken to Union Depot, and we boarded a train to Minneapolis so she could be comforted by her father and numerous cousins who resided there.

Everything went downhill from there

The sad tale is necessary so the reader can follow what occurred after my brother’s death, My parents’ divorce, My father’s  financial and professional fall and eventual rehabilitation and my growth and my highs and lows.

Enough for one day.

Marshall