CHAPTER38
Testimony was set to begin after Presidents’ Day weekend, but when Peter Vlautin came in with tears in his eyes—not from emotion, but from an eye injury—Judge Virga issued a delay. And John O'Mara, who had "witnesses stacked up like planes over Chicago," was thrown into a scheduling nightmare.
He put a busload of witnesses on hold and engaged in a logistical juggling act involving egos, employers, transportation, and hotel reservations. Hoping to open strong, he'd slated Judy Moise early, but she had to get back to work in Sacramento, so she repacked her rumpled clothes and headed home, leaving O'Mara to reshuffle his witness list. Vlautin's eye injury had been a cut to the opposition.
O'Mara instead began with five former employees of Lumberjack, a supply store, who testified to delivering gardening supplies and numerous bags of ready-mix concrete to 1426 F Street. Hardly the gripping start that prosecutors covet.
O'Mara soon shifted the focus to Bert Montoya, calling to the stand two of Bert's friends from Detox, J. D. Ridgley, still director of the facility, and soft-spoken, full-bearded Bill Johnson, who'd since left. Both men spoke fondly of Bert, and during their testimonies, Bert seemed almost resurrected in the courtroom: his face, his mannerisms, his love of cigars, and his continual discourse with private spirits.
Despite all his years of Detox, both witnesses insisted, Bert wasn't a drinker. "Tobacco was his drug of choice," Johnson asserted. "He was not a public inebriate. There was no preoccupation with alcohol for Alberto at all."
Johnson stumbled over exact dates—this was nearly five years ago, he apologized—but he related his last encounters with Bert the best he could. He recalled the day that Bert had walked the four miles back to Detox to say that he was "very unhappy" at Dorothea's. They'd talked it over, he said, then Johnson had driven Bert back to the boardinghouse.
He'd asked Mrs. Puente "why she was giving Alberto this medication that he didn't like. She said that was not true, that he woke her up at 4:00 a.m. and asked her for the medication."
With regret breaking across his face, Johnson recalled how he'd convinced Bert to stay. Then he suddenly blurted, "I was wrong. I gotta live with this for the rest of my life."
Clymo objected instantly, and Judge Virga ordered the witness's statement stricken from the record. But there was no way to strike it from the jurors' minds.
The Sunday before she was to testify, Judy drove back down to Monterey with nervous dread her passenger. It unsettled her that there seemed to be so much uncertainty surrounding the case against Dorothea Puente, that people still asked her, "Do you really think she did it?" She tried to anticipate questions and recall dates, picturing Kevin Clymo looming before her, assailing her with cross-examination. Loathing the idea of having to repeat that whole ordeal, she checked into the inn with dismal expectations.
But this time, the prosecutor had arranged to have his investigator bring Judy to his office, where he lavished time on her like a balm. He seemed candid, open, unhurried. He slaked her fears with a flow of conversation, and impressed her by being fluent in the particulars of her role in this case. He even surprised her by playing a clandestine tape recording made in Detective Cabrera's office back in November 1988. Judy sat listening to her own tremulous tones, startled by the intensity of her exchange with Beth Valentine as they whispered about Bert's mysterious disappearance.
By the time she left O'Mara's office, Judy couldn't help but compare him favorably to George Williamson. He'd made time for her. He'd taken her comments and concerns seriously. He'd put her at ease. And he was so impressively sharp…. She even wondered idly if John O'Mara was married.
On Monday, February 22, the media converged on the courtroom, anticipating the testimony of "the social worker." Sketch artists chose perspectives and limbered their wrists. Reporters readied their pens. Then Judy Moise was called to the stand.
Stepping up to the witness box, Judy was vacillating between trembling inside and feeling almost comfortable. She raised her right hand, swore to tell the truth, and took her seat. Then she just had to hold on and race to keep up with O'Mara's questions.
He started in 1986 and sped forward, through an explanation of her job as a mental health worker with the Volunteers of America, past this co-worker and that, on to her relationship with Bert.
When she felt too nervous, Judy took deep breaths to steady herself, then plunged on. It was only when O'Mara asked if she would describe Bert as "slow" that Judy finally paused, scrunching her brow in reflection.
"No, I wouldn't call him slow. I'd just say that he didn't have the advantages that other people have."
A shadow of a smile crossed a few jurors' lips. They remembered that when O'Mara had asked Bill Johnson this same question, he'd replied, "I don't like the word slow. I like the word innocent.” It was clear that these two people felt protective of Bert.
And, like Bert's two friends from Detox, Judy also insisted that Bert did not drink.
During her testimony, Judy was dying to get a look at Dorothea Puente. What a reversal from the preliminary hearing, she thought, when she had been dying not to. Now, finally, she rallied her nerve and glanced to O'Mara's left, past Peter Vlautin, to her old nemesis. She was almost startled by the pastel visage of this pale woman with her soft, white hair. Judy had expected her to be older, of course, but not so… changed.
While Judy was looking directly at her, Dorothea Puente shut her eyes. Judy caught her breath. This was a defensive gesture—she was sure of it!—an admission of guilt. She glanced away quickly and answered O'Mara's next question, then looked back again.
Dorothea lowered her gaze and stared at the table.
There it was again!
Judy answered another question, and when she looked back, Dorothea Puente met her eye. They appraised each other for a long moment, with no measure of guilt or innocence, with no scorn, as if seeing each other objectively for the first time.
To Judy, it seemed an honest moment, and from it a fresh clarity spread across the scene. She suddenly felt in tune with everyone in the courtroom: aware of Clymo declining his head to ask Dorothea a question; of the judge sitting just a breath's distance above her; of the jury watching with a dozen pairs of eyes. Somehow, it seemed they were all here together, working for a common purpose.
Over the objections of the defense, O'Mara played for the jury an edited version of the old videotape that Judy had made of Bert so many years before, back when she was first working for the Volunteers of America. The tape was rough and jumpy, but Bert's character shined through, giving the jury a glimpse of this simple man who'd trusted the defendant and ended up dead.
To Judy, simply having Bert's image appear in the courtroom felt like a small triumph. She wanted the jurors to appreciate how special he was, she wanted the tape to affect them the way it affected her.
While the video was running, she glanced repeatedly at Dorothea Puente, hoping to catch some reaction. But she saw nothing there. No emotion. None.
For Judy Moise, testifying was an almost cathartic experience. Even the cross-examination, which she'd been dreading for weeks, transpired more civilly than she'd feared. Once or twice, she and Clymo even shared a joke, a truce of humor passing between them.
For others, testifying would be a decidedly less positive event.
Painfully aware of the suits pending against her, Peggy Nickerson had brought her own attorney to court with her. For this unlucky woman, opening Dorothea Puente's door had been like opening Pandora's box. And she didn't appear to have recovered. She answered O'Mara's questions clearly, but her tone was serious and subdued, and her soft features never once broke into a smile.
O'Mara skillfully extracted the information he needed, moving from item to item. Afterward, he thought her testimony had gone fairly well, but he couldn't understand why Peggy Nickerson—this church worker who'd labored at the impossible task of finding housing for the destitute; this scapegoat who'd caught the blame that rightfully belonged to the
parole board; this social worker who'd lost her career; this altruist who'd been served the acid documents of litigation; this witness who felt so endangered that she'd paid to have her own attorney in court while she testified—O'Mara just couldn't understand why Peggy Nickerson couldn't relax.
Perhaps, as with many prosecutors, a blunt obsession with fact obscured more subtle insights into human emotion.
O'Mara filled the days with testimony from cops, deputy coroners, taxi drivers, and forensic anthropologists in a stream of collective consciousness that detailed the discovery of the bodies and Puente's smooth escape. Several men—some scruffy and coarse, others articulate and shining beneath wasted potential—took the stand to say that Dorothea Puente had hired them from the halfway house. They'd painted, hammered, raked, and dug.
The trenches, they'd been told, were for pipes—sewer pipes—but these were never quite located. Puente had told them where to dig, and John McCauley had stood, watched, and supervised. (John McCauley, John McCauley. That name echoed.)
Almost no one could remember actually filling these holes back up, and no one had buried anything suspicious… except for one dark, good-looking young man, a felon named Bobby Mitchell. He remembered Puente telling him to fill up a hole one morning, saying that the stuff at the bottom—old carpet and such— was "just garbage." Also, Mitchell testified about an "odd smell" that had hit him when he was leveling the ground, preparing to lay cement. "I haven't smelled anything like it before," he said. "It was just a real foul odor."
On March 1 the exiled jury roamed the hallways while Clymo and Vlautin railed against the prosecution's latest surprise: a videotape of Detective John Cabrera's November 11, 1988, interview with Dorothea Puente, which O'Mara wanted to show in open court. They felt sabotaged. For one thing, they complained to Judge Virga, they'd never even seenthis tape until O'Mara had mentioned it to Vlautin the week before.
O'Mara could scarcely contain himself. He strangled his pen and glared at them. How could the tape have failed to be included in the tons of discovery materials the DA's office had turned over to them? They had the transcript of the interview, and "Transcript of a Videotape" was stamped across page one! "I have no way of knowing what they don't have, Your Honor," he snapped.
Ever judicious, Judge Virga listened to both sides, then decided that this wasn't an issue of "deliberate withholding."
The defense tried another tack. They knew how incriminating this tape would be; they had to keep it out.
Clearly, they argued, Mrs. Puente had believed she was in custody, yet she'd never been Mirandized—never advised of her rights—so the tape was inadmissible. Legally, if Mrs. Puente even believed she was in custody, the interview couldn't be shown to the jury. And Mrs. Puente had every reason to believe that she was being forcibly held at the time, Clymo said. After all, police officers had been at her house since early morning, she'd been questioned at home, then Detective Cabrera had taken her to the Hall of Justice for interrogation. "The totality of circumstances would lead a reasonable person to conclude it was no longer a voluntary submission," Clymo insisted.
At one point, Puente had even asked, "Are you going to let me go, or do I have to stay here, or what?"
O'Mara wanted this tape shown as much as the defense wanted it excluded. It was perhaps his best chance to tarnish the munificent shine the defense kept trying to put on Puente's image. Since she didn't have to take the stand, he might never have an opportunity to cross-examine her. This could be as close to actual testimony as he'd ever get.
The judge decided to take the tape home and view it himself before making a ruling.
Meanwhile, Puente's former tenant, John Sharp, had his testimony repeatedly delayed. Suffering from an ulcer and having just undergone yet another operation, Sharp was keenly aware of the tenuousness of life. He chided O'Mara, "I'm living on Maalox—you'd better hurry and get me up there before it's too late!"
John Sharp was the first long-term boarder to take the stand. Older, balder, and thinner than he'd been at the preliminary hearing, he seemed every bit as alert. He testified about seeing other tenants come and go, about holes being dug and filled, about the note he'd passed to Officer Ewing saying, "She wants me to lie to you." His credibility as a witness seemed to rise with each clipped answer.
Sharp noted that he and Dorothea used to converse about this and that. Once, she'd asked if he needed any help handling his finances. "I told her I didn't have any trouble spending money," he quipped, and several jurors smiled.
Asked about John McCauley, he answered crisply, "I didn't like him." But of course there was more to it than that.
Under further questioning, John Sharp recalled that the last time he'd seen Bert was in the downstairs living room, sitting on the couch. Later, "Dorothea told me she'd put him in a cab, to catch a bus, to go visit her relatives in Mexico."
O'Mara asked, "Are you able to tell us how much time went by from the time you last saw Bert until you had this conversation with Mrs. Puente?"
"Well, twelve hours."
Sharp also recalled that three or four weeks prior to this, Puente had mentioned her intention to send Bert to Mexico. "She told me she was going to send Bert down there to one of her relatives, where he would be able to speak Spanish with everybody and be able to live a lot better."
Were the jurors catching this? She'd planned Bert's euphemistic "trip to Mexico" weeks before he disappeared! Did the significance reach them? It was impossible to tell.
Unfortunately, Sharp also said that he'd seen Bert drunk. And under cross-examination, Vlautin coaxed from him the image of Bert staggering about, bottle in hand.
Vlautin further emphasized how Dorothea had cared for and comforted Bert. When he got upset about the voices he heard, "She'd tell him that Satan wasn't there, and she'd calm him down," Sharp admitted. Their relationship was like "mother and son."
With Sharp on the stand, Vlautin reviewed all the niceties of Dorothea Puente's boardinghouse: the big meals, the clean laundry, the emergency loans, the special chair she'd bought for Sharp because of his bad back. It was going well.
Then Vlautin took a misstep: He asked about noises at night in the yard.
Sharp answered that he'd heard "nothing outside”his voice heavy with insinuation.
On redirect, O'Mara swiftly asked, "Were there disturbances that occurred in the evening or early-morning hours inside?"
"The early-morning hours one night there was."
"And what kind of disturbance do you recall?"
"About one-thirty in the morning, there was a lot of noise on the stairs above my room. Right over my bed. It was a bumping sound, like somebody falling down the stairs or something."
A chill passed through the courtroom.
"Were you asleep at the time this occurred or were you awake?"
"It woke me." But he hadn't gotten up to see what the noise was.
The next morning, Dorothea asked if he'd slept all right. He'd lied, saying, "Just fine."
CHAPTER39
At the start of the fourth week the trial still revolved around Bert Montoya's mental and physical health. And since he was only one of nine victims, the jury had to be wondering just how long this would take. They'd sat through dozens of witnesses, each sharing a tiny peek at some picture they couldn't yet see. It was like trying to study at a cathedral through a keyhole.
Meanwhile, Dorothea Puente sat stoically between her two advocates, watching silently, inscrutable as a sphinx. If the jurors had trouble reading her, this was about to change.
Gloom hung over the defense table the morning of March 9 as a television was wheeled into place. The judge cautioned the jurors that they should keep in mind that questions were not evidence, but Clymo and Vlautin knew how damaging this videotape would be.
The bailiff loaded the VCR and a grainy image filled the screen. A younger, thinner Dorothea Puente faced Detective Cabrera across a table.
They heard the detective ask her basic questions ab
out her residence, and now, for the first time, they heard the defendant's voice. It was weak, plaintive, an old woman's timorous voice, spelling out her name, explaining that she didn't actually own the house. And then they heard her lie: "Well, I mean I don't, I don't have the downstairs. I, I collect the rent for my nephew."
It was the first lie of many.
Cabrera pressed Mrs. Puente about the whereabouts of Bert Montoya, and she insisted she'd seen him the previous weekend, that he'd gone to Utah with his brother-in-law.
Everyone in the courtroom now knew, however, that Bert was then dead and buried in her side yard.
How could Clymo and Vlautin counter the negative impact of their client lying in the face of a police detective? They surely felt every lie stab through their case.
Next, Detective Cabrera was mentioning that John Sharp had said he hadn't seen Ben Fink in about three months. Recognizing Fink's name, the jury listened carefully.
"He was gone most of the time because he was always out drinking," Puente explained. "And he, he was on, ah, he had a bad leg, and he would go sell his blood every week."
"Down at the plasma center?"
"Right. And he said he was going to go back to Marysville."
"When did he say that?"
"When I told him he had to leave." She'd kicked him out, she said.
Cabrera put a diagram of the yard on the table between them, asking about trenches that had been dug, trees that had been planted, concrete that had been poured over sections of her yard.
The concrete was "to keep the weeds down," she explained. "I just don't want to have to pull up weeds. I don't care that much for yard work."
Cabrera kept pounding away, and Puente gamely offered up answers about sewer lines, about landscaping, about compost and garbage, all the while portraying herself as a woman who didn't have much energy for more than a few rosebushes and a vegetable garden. "I have a bad heart," she volunteered. "I can't lift anything heavy."
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