by Ann Rule
Just as David Brown seemed about to burst with rage and frustration, Robinson sat down. He would have another chance with the jury. He had already answered every possible defense he thought Gary Pohlson might bring up. He looked at the jurors and tried to guess what they were thinking.
They gave him no clue at all.
48
Few in the courtroom envied Gary Pohlson the job before him. The jury had heard his client on tape as he admitted participation in one murder (his own wife's) and as he cold-bloodedly planned at least three more. How could Pohlson explain all that away? Still, the defense attorney smiled expansively as he strode to the lectern to begin his final arguments. Everyone in the courtroom—including Robinson—liked Pohlson; could he now rub some of those warm responses off on David Brown?
Pohlson fired his shotgun approach around the courtroom. The concepts flowed, but did not necessarily connect. It was difficult to grasp one argument before he moved on to the next, leaving his listeners to grapple with shades of meaning.
"I am concerned that feelings will overwhelm truth. . . . On one side we have the two girls ... on the other side we have David Brown—who is obviously not as sympathetic a character," Pohlson began earnestly. "Because of that and because of all the tears we've had, and the laughter we've had, and the anger we've had, it's my fear that we'll get a little bit off the truth . . . the facts. Maybe we'll be overwhelmed by the emotions, by the sympathies for these young girls, by their tears. . . . Every case is important to the person sitting over there in the defendant's chair. Sometimes we lose track. We go through these things and we laugh and we make jokes. And I am obviously the worst offender—maybe the second worst." He nodded in Jeoff Robinson's direction. The jury smiled nervously.
"It's not just Cinnamon and Patti Bailey who are sympathetic characters," Pohlson continued. He said he had approached the case from a "very human point of view" and found that it divided itself up easily into five areas: feelings, special circumstances, persons (Patti, Cinnamon, and David), lies, and motives—motives both to lie and to kill. He wrote his designated areas on the display easel. And from those scribbles, he promised that the truth would emerge.
"The last thing I want to talk to you about is the truth."
It was an unfortunate phrase, perhaps even a Freudian slip.
Pohlson urged the jury to look at the evidence, and to realize that each side viewed it differently. "There's somebody who's not going to be right. If you think the defendant's actions were because he was conscious of being guilty, then you can use that. For two and a half days of these horrendous tapes—they're talking about killing some people, about evil things. What about the reasons behind it? What about consciousness of innocence? Joel Baruch called the prosecutor names and fought and fought and fought [with him] in court. Yes, he went back to David Brown and said that the prosecutor and the investigator were unethical and were out to get him."
Astoundingly, Pohlson urged the jury to replay the arrest tape of September 22, and to listen—listen to what was really said. The Steinhart tapes too were "oppressive . . . Mr. Brown tried to participate in a very bad thing. But he was desperate. He felt he didn't have a chance—because [he thought] The prosecutor is lying . . .'
"Look at the September 22 tape and see what a frightened, wimpy guy he is. Brown was panicked! . . . You ever see two more different men than Richard Steinhart and David Brown? Steinhart's strong and David Brown's weak. Steinhart? He played David Brown like a fish. ... He preyed on David Brown's weakness. ... He saw Brown was upset and scared and he was afraid he'd be put away by Patti's testimony. He told Richard Steinhart he was a desperate person—he doesn't have a chance. . . .
"That doesn't mean he's guilty."
Pohlson had to stress reasonable doubt; it was all he had. His own client had lied to him about bribing witnesses. Pohlson was doing the best any man could under the suffocating restraints he labored against. "Listen to all the tapes again and get a feeling and get beyond the feeling, and then take it [further] regarding reasonable doubt."
Pohlson said he could not see that the simple buying of insurance indicated that special circumstances should attach to his client. "Was there too much insurance? Mr. Robinson thinks so. What else? I don't know—maybe I missed something."
David Brown gazed at his attorney as if he truly expected that Pohlson could pull him out of this mire he was in. For those who understood, it was obvious that Pohlson could have only faint hope for an acquittal. He had predicted that the arrest tape would "roll over us," and the September 22 interview had flattened his case like a road kill. He wanted the special circumstances out. If he didn't cut that loose and let it drift behind, his client could not only be convicted; he could be "L-WOPPed"—life without possibility of parole.
Distasteful as it was, Pohlson had to attack Cinnamon and Patti and undermine their calamitous testimony. "The prosecution would have you believe that [Mr. Brown] is a genius who came up with a clever plot to kill Linda. Does that sound like a clever plan . . . these emotional, young, depressed, greedy girls? . . . These are not two little angels who got led astray and manipulated by Mr. Brown. First of all, Cinnamon Brown did the killing and Patti helped her. Cinnamon went back in at Patti's instructions and finished her [Linda] off. She fires between six and fifteen inches, the gun gets jammed in the pillow. She was going to fire again . . . shoot this woman that they testified, in tears, how much they loved. ..."
Pohlson was caustic. "We're talking a disturbed, upset, fourteen-year-old girl. Manipulated by David Brown?" Pohlson shook his head. "The reason she's upset is she's finally where she wants to be. Her father makes a lot of money. She has nice things. Linda was the threat. Cinnamon told a lot of people Linda was going to kick her out. She'd lose all that."
In retrospect, it was quite possible that Gary Pohlson might have felt the most antipathy toward this phase of his closing arguments. But he plunged ahead, describing Patti as a Lolita-like child who lusted after her sister's husband, an eleven-year-old who forced herself on David Brown as they rode in his truck. "Is this just a poor, little manipulated girl?"
For only an instant, the female jurors' eyes betrayed their resistance to this argument. Pohlson had gone over the line. Eleven-year-olds do not force fellatio upon twenty-seven-year-old men.
Pohlson returned to his pounding theme. "Look at all the lies these girls have told. They've been lying for years."
True. Indeed, they had been. Pohlson painstakingly went over each spate of lying. There was no argument on this from the prosecution. It would have been foolhardy of Robinson to deny the girls lied. It was up to the jury to discern why they lied and if they were lying now.
"Think about all the times Cinnamon Brown and Patti Bailey talked about, 'We never took him serious.' I'm suggesting they didn't take him serious. . . . Maybe David Brown was negligent there. Maybe he should have put his foot down. There is a lot of evidence of nonserious talk . . . until the girls actually did it. . . . So what is his reaction to this—as a father? 'Oh, my God, my daughter killed my wife!' ... He asked Patti Bailey, 'What's the matter?' [when he comes home on the night of the killing] and she says, 'Something did happen,' and he says, Oh, my God!'. . . That speaks volumes. . . .
'The girls did it!"
Final arguments took all of June 12. Robinson began his rebuttal the next morning. The personalities of both the prosecution and the defense were so strong, so likable, so much a factor in this long trial, that it was—-as Robinson pointed out—sometimes difficult to extricate feelings from the facts.
"Mr. Brown had the resources to do it, and he went out and got a great attorney who made a great argument. . . . Every time I hear Mr. Pohlson, I think he's great . . . he's a good lawyer—but good lawyers don't make facts good; they make them sound good. . . . It's almost like cotton candy. It looked good, it tasted great, but then it dissipates. . . .
"The point is the facts are the facts are the facts."
Rebuttal was rhetoric and r
eminding. Robinson was earnest and competent. He steered the jury back to the place where their feelings were relevant. "You're not just a computer where we put the testimony in and you spit out credible/not credible. . . . That's why we have juries— because you trade upon your life experience."
David Brown, Robinson said, had killed for lust and for money. "Is that so difficult to believe?" If anything, Robinson was even more convincing on rebuttal than he had been during his final arguments. He was relaxed and confident, a marathon runner who had caught his second wind.
David Brown's ego had surely suffered at the hands of the prosecutor and his own attorney; Pohlson had called him a coward and wimpy; Robinson had dubbed him the "Love God." Now he scoffed at the picture of Brown as a terrified, desperate man. "This is no innocent man—this is a diabolical man; this is no victim . . . the kids aren't running that home. . . . Mr. Brown knows what the carrot is for different individuals; for adults, for people he doesn't know—it's money. For kids—for his child—for Patti Bailey, it's family. He always has something that somebody needs or wants."
David Brown stared at Jeoff Robinson as if he were watching a snake. His body was stiff with shock. He looked concerned—no, stricken. Pohlson requested a sidebar conference.
No one in the gallery knew what was said. Robinson continued as if there had been no interruption, quoting the defendant from more of the endless tapes. To "Smiley," the undercover policewoman who pretended to be a paid snitch: "Nobody can prove anything. . . . Promise that you won't give me up. You don't have to worry about me—I believe in people—I take care of people. That's how I've managed to get ahead—but I've got a long way to go."
To Richard Steinhart, who had said that Patti would back up on a knife: "Good. Good. That's what I want." Robinson quoted Bob Dylan: "You don't need a weatherman to know which way the wind's blowing."
He ended on a triumphant note. After two hours of rebuttal, he felt good. These were the last words the jury would hear before they retired to deliberate David Brown's innocence or guilt: "Justice has waited since March of 1985. He's had a long and evil reign—the kingdom of David Brown. . . . Cinnamon and Patti have had their just rewards. I'm asking you to give David Brown the same.
"Thank you."
And then, incredibly, Judge McCartin turned to Gary Pohlson and asked if the defense would like another shot at argument. Would the defense care to speak again? Robinson was stunned, and Pohlson was caught off guard. McCartin decreed that each of the attorneys would have another fifteen minutes, since the Court thought Pohlson's final arguments might have suffered because a night had passed since the jury had heard them.
There were two ways to view McCartin's move. He may have been bending over backward to be sure this trial was fair and just. He had made controversial rulings before for that very reason. Or Judge McCartin may have been deliberately slapping down Robinson, defusing his all-inclusive rebuttal. McCartin had displayed ambivalence toward Robinson during this trial—the old lion cuffing the energetic young cub. McCartin was an inscrutable, unpredictable man, a dour jurist—but engaging when he doffed his black robes and revealed blue jeans.
Now, McCartin had frustrated and angered Robinson to the point that he could not hide his rage. Pohlson had not asked for more time and seemed as surprised as Robinson was furious.
Robinson objected.
"You lost," McCartin said implacably.
"So what's new?" Robinson asked irreverently.
"So what's new," said the judge.
The two abbreviated rebuttals were stilted and repetitive. Each side had already finished. It was over at eleven-thirty A.M. on June 13, 1990. This afternoon, Judge McCartin would read the jury instructions, and then they would debate the legal fate of David Arnold Brown.
49
The jury retired at twelve minutes to three on June 13. McCartin instructed that they would deliberate only between the hours of nine and four-thirty. There would be no midnight watches in this trial.
The longer a jury stays out, the more nervous the prosecution becomes. Nothing was ever a sure thing. And this case, of all cases, was based on feelings and individual perceptions. If the jurors had expected David Brown's fingerprints on his dead wife's body, or even on the gun, they had been disappointed. If they believed that "once a liar, always a liar," they would toss out Patti's and Cinnamon's testimony. The baby—and the People's case—would go out with the bathwater.
Nobody knew.
The jury was not sequestered. Judge McCartin had not sequestered a jury in a dozen years. Word was that they debated for two hours that first afternoon, then went home. The next day, June 14, passed with no word.
June 15, the third day—it was too long. Nobody who cared about this case wanted to stray very far from the Orange County Courthouse. It was Friday; if the jury didn't come in with a verdict, they would not meet again to deliberate until Monday. It would be a very long weekend.
Robinson put on his running gear and circled nearby streets.
Newell tried to work.
McLean did work. "I figured my part was over. I couldn't change anything—I might as well go back to work. They could beep me if anything happened."
None of them relished solid food. This was the time of wondering what would happen if. If the jury acquitted David Brown, the men who had dogged his trail for five years pondered what he had meant when he told "Smiley," "I still have a long way to go." If the jury acquitted, David would walk away. Maybe the jury would "walk him out of here" as Robinson had invited a hundred years ago during his closing argument. Maybe he would dig up his $5 million, collect Krystal, and continue on his merry way.
It was a daunting picture.
"Mitch" Miller and Gail Carpenter only hinted at the arrival and departure times of the elusive jurors. They hadn't actually been deliberating all this time. Many had high school and college graduations to attend as June hit midstream; Judge McCartin allowed for that. How many actual hours had they deliberated? It might have been fifteen; it might have been many less. It was hard to figure for those outside the locked courtroom. The longer the jurors stayed out, the more semi-comforting explanations emerged.
Even so, a conviction began to seem unlikely.
A little before two, Jay Newell and Jeoff Robinson reluctantly left the courthouse and headed for the little shop where they routinely ate frozen yogurt instead of lunch. Yogurt they could get down. They were like nervous expectant fathers, however, gulping the stuff so fast that it hit their sinuses with a blast of pain.
Then they headed back toward the courthouse. As they circled the juniper island and walked past the reflecting pond, they caught the buzz of excitement, a palpable feeling.
"They've got a verdict," someone called, but Newell and Robinson figured it was a joke.
The buzz became a roar. Attorneys on the escalator coming down from the second-floor DA's office grinned and confirmed.
They had a verdict.
It was 2:45 P.M. on the longest Friday of 1990.
Department 30 was jam-packed with people, the first time it had been that full since jury selection. There were virtually every employee of the Orange County District Attorney's Office, a number of the Bailey siblings, the press and their microphones and cameras and notebooks. Everyone who had ever dropped in during the two-month trial seemed to be back; strange faces who had never been here before were there now.
All waited for the defendant. At 3:16 David Brown shed his chains and walked to his wooden chair. He was pale green and dewy with perspiration. In all of his life, he had never had to answer for even one sin.
Would he now?
As the jury filed in, they were all half-smiling. No one watching had the vaguest clue whether this was good or bad. Stephen M. Lopez was the jury foreman. He handed the verdict to Bailiff Miller, who passed it to Judge McCartin.
McCartin, the great poker face, read it silently.
David Brown appeared to be fascinated, curious—as if he too were only an
enthralled spectator.
Gail Carpenter, McCartin's usually ebullient clerk, stood to read the verdict in her high, clear voice. "Count I . . . C-71791—first-degree murder, a felony, to wit: violation of Section 187 of the Penal Code of the State of California, in that on or about March 19, 1985, in the County of Orange, State of California, the said defendant did willfully, unlawfully, and feloniously, and with malice aforethought, kill Linda Brown, a human being . . .
"Guilty. "
No one breathed. The verdict floated in the courtroom.
"Count II—in Orange County, California, the crime of felony, to wit: violation of Section 182.1/187, conspiracy to commit murder . . . Guilty. "
Whispers. One to go.
"... Special circumstances—that the aforesaid crimes were committed with the hope and expectation of financial gain . . . Guilty. "
David Arnold Brown had just been L-WOPPed.
* * *
Judge McCartin set the sentencing date: August 22, at nine A.M. After so long, it was over so quickly.
David Brown did not change expression, but a red flush stained his face. He took a sip of water, then was led away by Bailiff "Mitch" Miller and Deputy Marshal Glenn Hoopingarner. As the verdict began to sink in, he shook his head in surprise. It wasn't supposed to be this way.
In the corridor outside Department 30, the pickings were ripe for the television and still cameras. The Bailey brothers and sisters came dangerously close to hysteria as they celebrated the verdict, sobbing and shouting, screaming out their victory.
Alan Bailey hyperventilated and sank to the floor, crying, "Guilty! Guilty! There's no way he'll get out of prison. He's evil to the core. At one time, I thought he was my best friend. I'm just glad he's away forever and ever and ever. He destroyed, he manipulated, but justice prevailed!"
Mary Bailey sobbed in her husband's arms, while Terry Blanchard, one of the jurors, stared, dumbfounded, at the bedlam.