“She attempted to kill herself immediately after I’d spoken to her about exchanging information for the possibility of a reduced sentence, isn’t that true?”
Sloane’s objection was strident, and the judge’s rebuke of me even more so.
“All right, then let’s move backward,” I said to Dunham when Ransom had finished instructing the jurors to disregard my improper question. “Alice’s mother’s killers were never caught, correct?”
“Or killer. But yes, it’s my understanding that the crime remains unsolved.”
“Isn’t it true that at the time of her death, Leann Ward was working at a restaurant called the Plum Tree?”
Before Dunham could answer this question, Sloane stood and lodged the obvious objections: hearsay, lack of personal knowledge. But I was prepared. Soon after learning Jane Doe’s identity, I’d submitted a Public Records Act request for the police incident reports from the Plum Tree robbery, a route that had allowed me to obtain the documents without alerting the DA.
In response to her objection, I now offered these reports into evidence. With the judge’s permission, I used Dunham as my mouthpiece, forcing her to read into the record the official Oakland Police Department narratives summarizing what was known about the perpetrators. The courtroom thus learned that they’d been masked and armed with multiple weapons, including handguns and shotguns; that they’d come in through the back door, which presumably had been left open; and that they’d killed a man and escaped with a modest amount of cash, along with jewelry and other items seized from the customers. I pointed out that Leann Ward’s name was on the list of witnesses, and that the robbery had taken place just a week before her death.
“Was Sims or Edwards ever a suspect in the Plum Tree job?”
“I have no idea.” Dunham’s facial expression was tight; her eyes were uncertain. She was beginning to piece together the contours of my defense.
“To your knowledge, was either of them ever arrested in connection with it?”
Dunham admitted that no such arrest had been made.
“Isn’t it true, in your experience, that the police have been known to go to great lengths to protect a confidential informant?”
“Not cover up a murder,” Dunham said. “Never.”
“All right, the police wouldn’t. But what about the FBI?”
“I don’t know. I don’t have a thing to do with the FBI.”
I had one more question, which would be a deliberate echo of the abuse she’d thrown at me the day of Alice Ward’s attempted suicide. “In your experience as a law enforcement officer, what’s the worst thing that can happen to an informant in a murder case, even a cold case like Leann Ward’s death?”
Dunham held my eyes, her gaze locked with mine so intensely that I sensed the jurors fidgeting uncomfortably in their chairs.
“Sometimes they turn up dead,” Dunham finally answered.
I nodded sadly, then offered a frank, appraising glance at the jurors. “No more questions.”
CHAPTER 20
After Wilder’s warning from jail, I’d spoken with Car, letting him know that it was possible they were being watched. He hadn’t noticed anything, he told me, and in any case, they were keeping close to the condo. “They’re wondering how much longer we’re going to have to stay here. Tam’s especially anxious to leave, but everyone’s nerves are frayed. Are you completely sure this is necessary?”
I told him that I was, even though I remained uncertain. “The prosecution rested its case today,” I said. “We’re looking at tomorrow and Monday for the defense witnesses, with the case going to the jury Tuesday. Who knows how long they’ll be out.”
“Could be five minutes,” Car said.
“Or five days.”
“And who’s to say it’ll be safe to return after the verdict’s in?”
I didn’t have an answer. And I didn’t want to say what I feared: that it would never be safe, especially if I couldn’t get Braxton to testify as I’d planned.
Because of this concern, my next call after my talk with Car was to the FBI agent. “I’ll need you tomorrow,” I said when he came on the line.
I steeled myself for bad news, but his answer at least gave me hope.
“I can’t do it tomorrow,” Braxton said. “I’ve got tentative approval for the plan, but it needs to be kicked up one more level for the final go-ahead. We’re talking Monday at the earliest.”
My insides fizzed with the familiar panic of an underprepared lawyer. I needed the weekend to prep my client for her testimony. I’d hoped to call Rosen first, followed by Braxton. Tomorrow was too soon to be putting Alice Ward on the stand. “It has to be tomorrow,” I told him. “I need you on the stand before my client. That’s just the way it has to be. You’ll have to expedite the process.”
There was a pause, then Braxton said he couldn’t make any promises. He wouldn’t know until mid-morning if he had authorization to testify. “And even then, remember, this may not turn out the way you’ve planned.”
That was my problem, I said, not his.
With the state having rested Thursday afternoon, I called the defense’s first witness Friday morning. Trembling, Alex Rosen took his place on the stand.
He said his name, swore the oath, and stated where he lived. Without further preamble, I directed his attention to my client, Alice Ward, and asked him if he’d ever seen her before. He identified her as the person he’d seen in the city the night of the shooting. “She was walking down the sidewalk with this guy. Big muscles, shaved head. Mustache. Scary-looking dude.”
Rosen went on to repeat what he’d told me about the guy having his arm around Alice Ward and talking to her in a low voice as they went, then giving her a little pat on the back before returning alone the way they’d come.
“She stood there for a moment like she was in a daze. Then suddenly she started running up the alley, up Myrtle Street,” Rosen said. “I couldn’t help watching her. By this time, the guy was gone. I heard her yell something, then she raised the gun and fired. I saw the victim fall, and then I started running.”
I had a blown-up mug shot of Sims, and showed it to the witness. “Does this appear to be the man you saw talking to Alice Ward?”
“Yes, that’s him. I’m sure of it.”
With this, I sat down. Sloane had evidently detected something in his testimony that aroused her prosecutor’s instinct, because her first question was accusatory, in a tone that presupposed wrongdoing: “What were you doing in San Francisco that evening, Mr. Rosen?”
I objected to the question as irrelevant, but the judge allowed it.
Rosen answered with a sheepish grin. “Trying to score some smack.”
I stood and objected again, moving the judge to strike the testimony as irrelevant and prejudicial. Ransom agreed, and instructed the jurors to disregard it. But I knew he was doing this only for the sake of any eventual appeal my client might file. There was no way to un-ring that bell.
Sloane had more tricks up her sleeve. She asked Rosen when he’d first seen the photograph of Sims he’d identified in court today; he was forced to admit that the first time he’d seen it was the previous Thursday evening, when he’d met with me in his office to prepare for his testimony today. From here, she easily picked up the scent, establishing that I’d met with Rosen one other time. Rosen testified that a man he knew as a sometime dealer had convinced him to talk with a private investigator—whom he couldn’t name—and then with me.
I cringed with each step she took down this chain, seeing the inferences she was setting up, the implication that Rosen had exchanged testimony for drugs. And, in truth, she probably wasn’t far off the mark, at least as concerned his motivations that night for speaking with me. At the time I’d thought I was smart to take advantage of Menendez’s street presence to locate a witness I wouldn’t otherwise have found. Now I was paying the price.
“Did Mr. Maxwell show you anything during this meeting at Wendy’s?” Sloane a
sked.
“A picture on his phone,” Rosen said. “The man and a little girl. Except that time, he told me the guy in the photo wasn’t the guy he was looking for. He didn’t have the mug shot then.”
“And then when he met you last Thursday, he told you the person in the mug shot was the guy, correct?”
“He showed me the mug shot and I told him that was the guy I saw.”
“Last Thursday night, did he put those two photos side by side, the mug shot and the personal photograph from his phone?”
I stood on numb legs and objected at Sloane’s use of the phrase “personal photograph,” though I knew my objection served only to draw the jurors’ attention to her insinuation that I’d been trying to influence this witness, perhaps even attempting to protect one of the racist gang members who were paying my fee.
“He didn’t show the one from his phone again, no. Just the mug shot.”
“In your initial meeting, you identified the person in that photograph as the man you saw?”
“That’s right.”
“And after you identified him, Mr. Maxwell told you it wasn’t the guy?”
“Correct.”
“And then a month later you met Mr. Maxwell again, and he showed you another photograph, and he made it clear to you that this was the guy, right?”
“I guess.”
“And that’s the testimony you gave today in response to Mr. Maxwell’s questions, correct?”
“Correct.”
“Sitting here today, can you even tell us whether the men in the two photographs were one and the same?”
Rosen was already shaking his head before she finished her question. “No, ma’am, I sure can’t tell you that.”
“No more questions,” she said, a flush of victory on her cheeks.
I took my time making my way to the podium, trying to show the jurors that I was unruffled by what had passed. In truth, however, this had been one of the worst moments in front of a jury that I’d ever had.
I took the mug shot of Sims and approached the witness. “Mr. Rosen, what doubts, if any, do you have regarding whether this mug shot of Jack Sims shows the man you saw talking to Alice Ward that night?”
“No doubts,” he said. “I’m sure that’s the guy.”
I could have run though it all again, establishing that I hadn’t promised him anything, that I hadn’t influenced him in any way, and that he’d made the identification of his own free will. But this would have served only to prolong the bleeding.
“No further questions,” I said.
“Is your next witness ready, Mr. Maxwell?”
“Give me a minute, Your Honor.” It was only ten-thirty, too early to break for lunch. I scanned the gallery, my eyes skipping over rows of spectators before coming to rest on Braxton. As my eyes met his, he smirked, his superior gaze seeming to comment on the debacle of my last witness and to promise more of the same from him.
I turned to face the court, my pulse racing. “The defense calls Agent Mark Braxton.”
With open disbelief, verging on shock, Sloane watched him rise and move to the stand. Judge Ransom peered over his reading glasses at the new witness. I did my best to gather my thoughts as Braxton raised his right hand and was sworn in.
Because he was my witness, the rules of evidence didn’t allow me to lead him as I normally would do with a law enforcement officer. This meant I had no choice but to ask open-ended questions, which under the circumstances felt like standing blindfolded on the edge of a cliff. The risks were high. I couldn’t know whether Braxton was here to help me or to burn me, and his attitude so far was no guide.
Braxton identified himself as an FBI agent working out of the San Francisco field office, and confirmed his presence outside the Motel 6 in San Francisco on the night of Edwards’s death. Having progressed this far, I drew back, retreating from the lectern to the defense table.
“Tell the jurors what you were doing on Larkin Street that night.”
“I was present at the scene as part of an ongoing investigation.”
“What organization was the target of that investigation?”
“The Aryan Brotherhood.”
“Explain to the jury what that is.”
“A ruthless criminal racketeering organization. It started out as a white supremacist gang in the California prisons. However, the AB has grown beyond prison walls and expanded nationwide. It now controls a large swath of criminal activity in the outside world, from drugs to prostitution to guns.”
“At present, who’s in charge of the organization in California?”
“In prison, the AB is headed by a man named Bo Wilder. He’s currently housed at San Quentin, serving a life sentence for a series of brutal killings. On the outside, a man named Jack Sims appears to have recently taken control after an internal power struggle. His position isn’t secure, however. There remain tensions between the prison factions and the outside elements. I suspect that the power struggle hasn’t fully sorted itself out.”
“Describe to the jury how the FBI goes about investigating an organization like the Aryan Brotherhood.” Again I felt the trepidation of jumping off into the unknown.
Braxton’s response was testy, spoken with the seriousness of an acolyte addressing an unbeliever. “Three tactics,” he said. “First, traditional responsive policing, investigating known crimes and trying to bring the perpetrators to justice. Second, wiretaps and other surveillance. And third, the use of confidential informants.”
“Was Randolph Edwards an informant for the FBI?”
Braxton now hesitated. I wondered if he was having second thoughts. Then, as if I’d dragged the answer from him, he answered somberly, “Yes. Yes, he was.”
A wave seemed to pass through the jurors, jostling them awake.
“How did Edwards come to be an informant?”
Braxton told the jurors briefly what had gone down at the Plum Tree, and explained that the FBI, by virtue of its preexisting operation, had been able to tie Edwards and Jack Sims to that robbery and murder. “We’d had those two on the radar for a while. Sims was already a target of our investigation because his father had been a founding member of the AB in California, a lifer who’d died behind bars. We figured it was only a matter of time before he joined up. But, first, he needed a spell in prison.
“We picked Edwards up after Plum Tree and offered him a choice. The first was that he and Sims could both do time for a couple of two-bit jobs we knew about. Once inside, they would take advantage of Sims’s connections. From there, first inside prison and then continuing on the outside, Edwards would be working for the Bureau. Otherwise, he could go up on capital murder charges for the Plum Tree killing and take his chances on death row.”
“So when Edwards was killed, the FBI lost an informant?”
“That’s correct.”
“But the Bureau still has at least one informant left, doesn’t it, Agent Braxton?”
Now was the time for the U.S. attorney who’d accompanied Braxton to put a stop to this line of questioning—if he was going to stop it. However, he remained seated in the back row, turning the pages of a document he held in his lap.
Braxton didn’t answer right away. Then, seeming to choose his words carefully, he said, “No. Edwards was the only currently active informant remaining in the AB’s organization.”
“Edwards and Sims were sent to prison around the same time?”
“Yes.”
“The FBI took care to arrange that they went down on seemingly unrelated crimes?”
“That was intentional, yes. It was important that Edwards and Sims go into the prison system at the same time, again because of Sims’s AB connections. However, we wanted the timing of their imprisonment to appear coincidental.”
“Am I correct that either of them could have been charged with capital murder in the Plum Tree job based on the information the FBI had?”
“Correct.”
“Instead of passing that information to
the local authorities, the FBI concealed it?”
“We kept it in our pocket, yes. Ready to be trotted out if and when it needed to be used.”
“So the FBI protected two highly dangerous criminals from capital murder charges?”
“That’s correct. But it was at the service of a broader investigation.”
Sloane stood, at last, and objected to this line of questioning as irrelevant and prejudicial, moving that it be stricken from the record. The judge called us to a sidebar conference, and, under cover of white noise meant to prevent the jurors from hearing our conversation, asked me what I thought I was doing by bringing this “circus” into his courtroom.
“It’s not a circus,” I told him, while Sloane listened intently. “It’s my client’s theory of defense. I expect to show that Ms. Ward was provoked and manipulated into committing this homicide by Jack Sims. This testimony is relevant to showing that Sims had a strong motive for wanting Edwards dead.”
Now my cards were on the table. Ransom, after some thought, turned to Sloane as if seeking her advice on how to handle a prickly situation. “If that’s his theory, I don’t see how I have any choice but to allow him to proceed.”
The trial had taken a turn Sloane hadn’t expected, and she was rightly pissed at being sandbagged. With Braxton’s appearance, she’d found her prosecution suddenly at risk of being derailed by a criminal defense lawyer apparently acting in concert with an FBI agent who’d readily admitted to protecting two men from the consequences of committing multiple murders. She concisely and angrily stated her objections, then stalked back to the DA’s table.
I returned to the lectern and, with a few more carefully chosen questions, established that Sims’s and Edwards’s conditions of imprisonment had been the same. They’d been released within a year of each other, each having served between five and six years of an eight-year sentence.
“What was the status of their membership in the AB at the time of their release?”
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