The word “system” itself was probably a misnomer. In its constant use and overuse the judge sensed characteristics of a contemporary obsession with valueless technology. “System” had come to imply something static and hard, something as inflexible as a computer and as self-sustaining as the robots of science fantasy. To deny the legal and moral responsibility of a judge to make the system work, adjust it, force it if necessary, was to adopt a peculiarly technological approach to the law, thwarting justice with technicalities, permitting social disorder in the name of procedural rigidity.
Roger Kelly defended himself publicly, denying Grogan’s and others’ accusations against him. Somehow his thirty-two-page memorandum to Van de Kamp, in which he argued that the case could not be won, was leaked to the Los Angeles Times, which gave it prominent coverage. Most observers believed that Kelly himself was the source of the leak, but he denied it. The memorandum ignored much of the evidence against Buono, including new and highly promising conclusions about the fibers found on Lauren Wagner’s hands and wrists. (Kathy Vukovitch, the LAPD criminalist, had by now pretty well established that the Lauren Wagner fibers matched the rug, made from automobile carpeting, in the spare bedroom where, Bianchi had said, he and Angelo had tried to electrocute Lauren. The rug had still been in place when Angelo had been arrested. Other fibers from Lauren’s hands matched an accumulation of material found in the crevices of the seat of the brown vinyl easy chair—an unusual collection of fibers that acted like geological sedimentation as evidence of time and place. Only what had been identified as cat hairs, also stuck to the adhesive left on Lauren’s hands, remained a puzzle, since Angelo had owned no cats. One LAPD chemist had identified these as rabbit fur, but for some reason his analysis was discounted.)
Bob Grogan condemned Kelly, despite Kelly’s denials, for using the media to undermine the case and to try to save face. Nor did John Van de Kamp’s comments to David Israel, a columnist for the Herald-Examiner, seem proper to Grogan. Asked by Israel whether he thought the decision to drop the murder charges would hurt him politically, Van de Kamp replied:
“Given what the judge did, it may have been politically more prudent to proceed with the prosecution. It’s one of the chances you take. But I think we’ll be vindicated in the long run.”
“Does that mean you think Buono will walk?”
“I’m limited in what I can say.”
When he read that, Grogan observed: “Limited! He says he’ll be vindicated! How is Van de Kamp going to be vindicated unless Buono’s vindicated?” Grogan also noted that by saying that it would have been politically more prudent to prosecute, Van de Kamp was making Buono sound like a political victim, something Buono’s lawyers must have liked: they were already referring to a “conspiracy to convict” their client. Again Grogan began to wonder whether people really wanted homicide detectives to do their job or not. Did people secretly or unconsciously agree with Buono that the girls deserved to die? There seemed to be an indifference to or even an acceptance of murder that was a symptom of some grave psychological disease in society.
Neither Van de Kamp nor Buono’s lawyers took up Judge George’s challenge to have the ruling appealed to a higher court, nor did they seek to have Judge George remove himself from the forthcoming trial, something that Angelo urged his attorneys to do. The District Attorney’s Office withdrew from the case. Attorney General Deukmejian appointed two deputy attorneys general, Roger Boren and Michael Nash, along with a special investigator, Paul Tulleners, to examine evidence to determine whether the case was worth prosecuting. When these three discovered how much of the evidence had been ignored in Kelly’s memorandum to Van de Kamp and in Kelly’s motion to dismiss, they decided that Kelly was so negative as to be worthless to them, and they did not even consult him.
Of all the factors Kelly had omitted, the Lauren Wagner fiber evidence seemed to them the most important, perhaps the key to winning the case: it not only connected the victim to Angelo, it placed her in the very chair in which Bianchi had said that she had been gagged and blindfolded and in the very room where she had been killed. It was exactly the kind of circumstantial evidence needed under California law to corroborate the testimony of an accomplice; it was a means of separating Bianchi’s lies from his truths.
Boren, Nash, and Tulleners were quickly convinced that Buono was guilty; convincing a jury would be another matter, but they were sure that there was enough evidence for that, and Judge George’s ruling, they perceived, could act as a kind of schema or preliminary script for the presentation of their case. Their only serious misgivings concerned whether, because of the circumstantial nature of much of the evidence, they could persuade twelve different citizens to a unanimous verdict, as required. You never knew what a jury might do. All you needed was one juror who hated the police, for instance, and you could forget about unanimity.
They presented their view of the case in a six-hour meeting with a panel of four nationally respected prosecutors—one of them had prosecuted Caryl Chessman—appointed by Deukmejian to advise him, who agreed unanimously that the Attorney General’s Office should prosecute. In November the case went to trial, after a two-month continuance granted by the judge to permit the new prosecutors to prepare—a delay opposed by the defense, which argued that Buono’s right to a speedy trial was being violated and appealed this ruling all the way to the California Supreme Court, which upheld Judge George six to one.
Immediately the judge faced another crucial ruling. In June the defense had made a “Motion to Exclude Hypnotically Induced Testimony and Testimony Influenced by or Related to Hypnosis.” This motion, which argued for the exclusion of testimony by five witnesses, including Kenneth Bianchi and Beulah Stofer, would, if granted, effectively end the prosecution’s case. The motion was occasioned by a case pending before the California Supreme Court (People v. Shirley) in which the court was expected to rule within a few weeks’ time on the admissibility of the testimony of witnesses who had been hypnotized. For years hypnosis of witnesses by the police had been commonplace, but now it had become the subject of a national legal controversy, and the Minnesota Supreme Court had already ruled that a witness is incapacitated from ever testifying if hypnotized. Judge George’s problem was to anticipate what the California Supreme Court would rule. Its most extreme possible position would be that any attempt to hypnotize a witness, even if totally unsuccessful, would cause that witness to be incapacitated: if that was the ruling, Bianchi would be barred entirely as a witness.
Judge George decided to assume that the California Supreme Court, however liberal, would stop short of the most extreme position and rule, at most, that witnesses who had been successfully hypnotized could not testify. That left him to decide who had and who had not been hypnotized and opened up the whole question of whether Dr. Orne had been correct in his conclusion that Bianchi had fooled Drs. Watkins and Allison, had faked both being hypnotized and the multiple personality syndrome. Since Bianchi had pleaded guilty and had never gone to trial, neither issue had been decided in a court of law. Dr. Watkins continued to maintain his original diagnosis, that he had hypnotized Bianchi and that Bianchi suffered from multiple personality disorder, was legally insane and not responsible for his acts. Dr. Allison had done a partial about-face. He still claimed that he had actually hypnotized Bianchi, but he admitted that Bianchi had fooled him, partially, on the multiple personality issue. Dr. Allison now testified that he believed that Bianchi had indeed been a multiple personality while committing the murders but that he had not been multiple when talking to Dr. Allison. Since interviewing Bianchi, Dr. Allison had become a prison psychiatrist, and now, he said, he realized that prisoners do tend to lie:
That was a shock to me because I had been used to believing what my patients told me and working from that. But here I would meet a man as he was trying to go on parole and I’d find out that he’s told one story when he got arrested to the police, another story to his own attorney, a third story when he got into court,
a fourth story to his parole officer and a fifth story to me when I got him here, and now he wants to go on parole and he’s got a sixth story. And there’s no way, you know, that you can tell what’s the truth when you have that kind of changing history.
Grogan, hearing Dr. Allison’s change of heart, or partial change, wondered that it had taken Dr. Allison’s becoming a prison psychiatrist for him to realize that criminals lie. Hadn’t he ever seen a Jimmy Cagney movie? And did he really believe everything his regular patients told him? Didn’t he know that fooling the shrink was one of the favorite games of people on the couch? Oh well, Grogan reflected, at least Allison had admitted being fooled, halfway. As for Dr. Watkins, who was currently giving public lectures about Ken and Steve and Billy, he probably believed the Holy Trinity was a· multiple personality case.
Judge George ruled that Dr. Orne’s analysis was entirely persuasive, that Bianchi had faked both hypnosis and multiple personalities. The judge reached his decision, he said, after studying the more than fifty hours of videotapes of the psychiatric sessions and their transcripts. Of Dr. Watkins the judge said:
I find Dr. Watkins’ methodology to be highly suspect based on the testimony of all the doctors and based on the literature submitted to this Court. . . .
And I find that in particular his methodology was fraught with suggestibility and I think he . . . invited the emergence of or gave a cue for the emergence of the multiple personality in his remarks in the first session, actually telling Mr. Bianchi that there was a multiple personality.
The judge could not resist a further swipe:
I think that Dr. Watkins shows incredible naiveté and made unwarranted assumptions in discounting any possibility of faking. And I find almost ludicrous Dr. Watkins’ emphasis on the four different styles of handwriting, which Billy’s or anybody else’s earlier years [came] up with. . . . It [all] appears quite farfetched.
As for Dr. Allison, the judge, referring to his “rather dramatic turnabout and substantially revised opinion,” dismissed his continued insistence that he had in fact hypnotized Bianchi. Judge George found that, as Dr. Orne had argued, Bianchi had never been hypnotized in any session and had faked all the multiple personalities, inspired by the suggestions of doctors and a psychiatric social worker and aided by his extensive knowledge of psychological theory and by viewing Sybil and The Three Faces of Eve. Bianchi’s testimony was therefore admissible.
Regarding the four other witnesses in question—including a witness to the Yolanda Washington abduction and Beulah Stofer’s neighbor, Evelyn Wall—Judge George ruled that all except Beulah Stofer had been successfully hypnotized by the police, and he was therefore required to bar their testimony. Mrs. Stofer herself, said the judge, had not been hypnotized and could testify. According to Mrs. Stofer and the police officers who had tried to hypnotize her, she suffered from asthma and emphysema and her coughing fits had prevented hypnotic induction.
The defense was pleased that Bianchi’s testimony had been ruled admissible, because Chaleff and Mader believed that it would make it easier to prove him a liar. But the prosecution figured that Bianchi’s lying was a given anyway and that they needed his testimony, the true parts of it, to convict Buono. So both sides thought that they had won this round. (It turned out that Judge George had anticipated the California Supreme Court’s hypnosis ruling correctly. On March 11, 1982, the Supreme Court did at last rule that the testimony of witnesses who had been hypnotized could not be admitted. In June of that year, however, the Supreme Court added a footnote to this opinion stating that it was not ruling at that time on whether the decision was retroactive or applied to cases then at trial, throwing the matter back into doubt with reference to the Buono trial. To the extent that they excluded the testimony of any witness, Judge George then vacated his original hypnosis rulings, offering to take up the entire matter again, but neither the prosecution nor the defense sought to do so. Nor did either side then attempt to introduce witnesses whom the judge had already determined to have been hypnotized. The testimony of Bianchi and Stofer would remain admissible.)
Now, on November 16, 1981, jury selection began. Early in the process, Boren and Nash decided that Chaleff and Mader were trying to trick them into using up challenges of prospective jurors at the start, leaving the defense’s challenges for crucial final selections. Instead Boren and Nash accepted a panel of twelve jurors and eight alternates as soon as they felt they had a reasonable group; and the defense, since it had let these candidates pass, was stuck with them. Of the jurors, ten worked in city, county, or federal civil service positions. One was a retired Dolly Madison Bakery employee and one a female Pan American Airlines flight attendant. They included, promisingly in the eyes of the prosecution, one woman with two daughters and another woman living near the Eagle Rock Plaza with a teenage daughter.
From the prosecution’s point of view, the social and economic character of the jury was encouraging: these were working people, none rich, none idle. Such people tended to be more realistic than the privileged classes about extremes of human conduct. For the prosecutor trying to convict an Angelo Buono, the worst possible juror would have been someone isolated by wealth or status or both from the harsher realities of urban life—a Beverly Hills matron, say, or a young university professor or a Unitarian minister—who luxuriated in an exalted view of humanity, felt guilty about privilege, and was unable or unwilling to accept the idea of the ruthless. As Grogan said, the ideal jury to convict Buono would have consisted of homicide detectives and whores.
The jury as finally chosen included seven women and five men, among them—as nearly as can be surmised from names and physical appearances—six Afro-Americans, two Anglos, and four Hispanics. The alternates, of whom two eventually became jurors, were similarly mixed, with only Asian-Americans missing from among the chief ethnic population groups of Los Angeles. Ethnic and sexual balance had become important factors in determining the fair selection of juries, and this one appeared immune to scrutiny on appeal.
It took three and a half months (fifty-four actual days in court) to select this jury, delaying the actual start of the trial until the spring of 1982. The cause of this tedium and expense was California’s cumbersome system of jury selection. A hundred and twenty prospective jurors were examined—these surviving from an original panel of three hundred and sixty, those who could not serve for several months being excused—with defense and prosecution both permitted twenty-six peremptory challenges. By law, both sides were allowed to examine each prospective juror directly, and the judge and counsel had to question each in individual court sessions from which all other jurors as well as members of the public were excluded. Interrogation covered such matters as whether he or she would vote for acquittal because of opposition to the death penalty. This time-consuming procedure—in many other states and in the federal system the judge alone, sometimes guided by written requests from the attorneys, conducted the examination of jurors—was the result of judicial decisions and legislative lobbying by attorneys, who got paid by the hour and were jealous of their prerogatives. Direct questioning of jurors by lawyers was permitted in all felony and misdemeanor trials in California and helped to clog the courts. During the Hillside Stranglers trial, jury selection in another Los Angeles murder case, this one involving only one count and one defendant, took from April of one year to February of the next, a full ten months. Judge George, who had lobbied for the system’s reform, calling it “sick” and a prime reason for growing public contempt for the criminal justice system, said that he felt “disquieted” when fellow jurists congratulated him on getting a jury for the Buono trial in “only” fifty-four court days.
When at last the jurors were impaneled, they learned that the trial ahead of them was expected to last about a year. Court would meet from ten to twelve and from one-thirty to four-thirty, with time off for holidays, doctor’s appointments, and funerals. The jurors’ employers, including Pan American, agreed to pay full wages for the length of t
he trial. In addition the jurors received five dollars a day and fifteen cents per mile to drive to and from the courthouse. They had to pay for their own lunches.
Only two weeks into the trial itself, another important ruling presented itself to the judge. At issue were Bianchi’s extended statements to the police in Bellingham, the interviews for which Salerno, Grogan, and the others had so carefully prepared and which had elicited minutely detailed accounts of the killings, much new information, and several items that Bianchi could have known only from being present at the murders. Without these statements the prosecution’s case would be greatly weakened, but because they had not been made under oath and for other, technical reasons, the judge ruled them inadmissible. Only Bianchi’s testimony under oath would be let in, the same “morass of contradictions” which had been the basis for Kelly’s motion to dismiss.
But then Chaleff and Mader—in what was probably a serious lapse in defense strategy—exercised their right to cross-examine Bianchi on his Bellingham statements. The defense’s intention was to underline Kenny’s contradictions, but the result was to render admissible the Bellingham confessions in full and to permit the prosecution to show that much of what Bianchi narrated in Bellingham was, unlike his later obfuscations, verifiable: the needle mark on Kristina Weckler’s neck, for instance, unnoticed until Bianchi had mentioned it, and his positioning of Lauren Wagner as confirmed by the fibers. Equally important was that audio tapes of these confessions were now played for the jurors, who could judge for themselves whether anyone, no matter how accomplished a liar, could have invented such a mass of details—dialogue, physical description of victims and locations, such things as the cigar box, itself an item of physical evidence, in which Angelo had kept the handcuffs. Boren and Nash had been struck by the convincing qualities of these tapes—including the tone of Bianchi’s voice, even, matter-of-fact, so different from the histrionics of the psychiatric sessions—and they hoped that the jury would react similarly. They rejoiced that Chaleff and Mader had opened the door to letting in these tapes and that Judge George was quick to admit them.
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