Next, the defense moved that the jury be given an additional instruction for count seven, the alleged murder of Ben Fink. According to the prosecution, they said, Puente felt so outraged by Fink's drunken behavior that "she just lost it" and killed him. That sort of "heat of passion" killing required an instruction for voluntary manslaughter.
Judge Virga agreed. And once the jury was again seated, they were instructed that, for count seven only, they had this additional option.
And the more options, the more possibility for friction. Such was Clymo's logic.
Back on his feet, O'Mara put responsibility for the morning's delay in the lap of the defense. He hadn't meant to imply that Ben Fink had been murdered in a fit of anger, he said, cluing them to the fact that the additional instruction had come from the other side.
O'Mara still had plenty to cover. He pulled out more charts and warned, "We're going to talk about something boring—the famous Dalmane Wars," and several jurors smirked.
He summarized the toxicological findings, stressing the strange coincidence that all the bodies showed traces of Dalmane. And he enumerated Puente's ceaseless refills for the drug. All the while, he attacked the defense experts and commended his own.
The defense expected nothing less.
Finally, he was coming to things he had saved for last. Some bits of evidence had been numbered and entered into the record with hardly a comment. Found on Puente's dining room table, for instance, was a scrap of paper torn from a spiral notebook. "This is a very interesting piece of paper," O'Mara said, showing them a huge blowup of a scrawled tally:
Jim 657
V 687
B 687
B 687
L 500
D 600
J 700
-----------
5,058
A glance brought a slap of realization. O'Mara hardly needed to explain, but he did. Jim was Jim Gallop, V was Vera Martin, the two B's were Betty Palmer and Ben Fink, L was Leona Carpenter, D was Dorothy Miller, and J, he said, was either John Sharp or John McCauley. "What she's figuring out is how much money she can expect every month. She's computing her income."
What else could one conclude? Her addition was off, but this tally closely reflected what each person received from Social Security, SSI, and other sources.
"I suggest that this was before Bert Montoya was killed," O'Mara said grimly. "Otherwise, there would be three B's."
Why had she murdered these people? For the money, mainly, but not only for the money, he explained. For the prestige, for the lifestyle, for the respect that money can buy.
O'Mara picked up a box of Christmas cards that had been found on Puente's dining room table in November 1988, and passed one to the jury. Flipping it open, they saw festive, preprinted Season's Greetings from "Dr. Dorothea Puente."
The woman had more than a lifestyle to support. She had an image to maintain.
He put away the cards and mused, "I'm sure she rationalized in her mind: ‘They're better off dead. They're going to be dead soon anyway, so what's the difference? I'm really doing them a favor.'"
But the prosecutor didn't believe she'd done them any favors. He snatched up the photographs that showed her simple, final solution. He marched the photos past the jury box, announcing them name by name: "Everson Gillmouth, wrapped with garbage bags about the face. Betty Palmer, with garbage bags on the torso. Dorothy Miller, with a Chux pad on her face and duct tape to hold her arm in place. Ben Fink also has a Chux pad over his face. And Mr. Montoya—the man she treated like a son!—Mr. Montoya has a garbage bag over his face."
"Do you notice the similarities?" he shouted. "Suffocation couldn't have been detected twenty-five minutes after death. Why are these objects over their faces?"
He set aside these dreadful images. "Whether you believe they were poisoned to death, whether you believe they were smothered to death, does it really matter?"
Square in front of the jury box, he made his final plea: "Don't buy this story that they all died of natural causes. She murdered each one of them. She did it willfully, she did it deliberately, she did it with premeditation. And if there's any doubt in your mind as to whether she did it in that fashion, think about after she did the first one. If there isn't deliberation on the first one, there sure as heck is by the time you get to number two! And when you get to three, four, five, six, seven, eight, and NINE, what do you think is going through your mind?”
O'Mara folded into his chair, his question reverberating through the paralyzed court.
Part VII: SYMPATHY FOR THE DEVIL
Some call her the devil incarnate, others call her an angel.
—Kevin Clymo, defense attorney
She had many personalities. At one moment she is the virgin. At other times she is the devil.
—Pedro Montalvo, Dorothea’s fourth husband
I can tell when Mom drinks because she gets so mean I can smell it.
—Dorothea Helen Gray, age seven
CHAPTER 46
Her short curls intensely white against the midnight blue of her sweater, her small hands folded before her, Dorothea Puente looked especially grandmotherly and proper on Monday morning as she watched the jury box fill. In the gallery, two elderly women peered over reporters' shoulders, guessing her age at perhaps seventy-five. "She's so pasty," one whispered, "her skin matches her hair."
Judge Virga swept his black robes into court, assumed the bench, then announced, "Mr. Clymo, you may proceed."
The defense attorney rose to his full height.
After O'Mara's heart-stopping summation, expectations for the defense were not high. Clymo was expected to finish this same afternoon. After all, observers wondered, what could he possibly say?
Clymo wasted no time. "If you believe all that the prosecutor testified to last week"—said with heavy cynicism—"if you believe all he's told you, you'll probably convict Dorothea Puente on nine counts of murder," he began simply. "The passion, the anger, the prejudice that were directed at yo ..." He spread his hands helplessly. "The plea was very, very powerful."
He smiled. "At one point, I looked up at the jury and I thought, oh my God, they're not only going to convict Dorothea, they're going to convict us for sitting beside her!"
But then he realized, he said, that these very sensible jurors would not let their "passions dictate."
Good-humored and unpretentious, Clymo spoke to them in confidential tones. "I agree with Mr. O'Mara about one thing," he said, "this truly is the mother of all circumstantial evidence cases. It's a difficult case, difficult for the prosecution, difficult for the defense."
He reminded them that the change of venue was necessary because emotions ran so high in Sacramento that Puente couldn't get a fair trial there. They'd been selected, after months of interviews with hundreds of prospective jurors, because they could weigh both sides fairly.
As an aside, Clymo grinned and said, "I almost wore my fish tie today," flipping his necktie. "A trout in the milk is very strong circumstantial evidence—but of what?"
Serious again, he continued, "It's a tough case, and it will take a truly courageous jury to ignore that passion and to apply the law objectively."
Gently, gently, he began defusing the prosecution's argument.
"Your reason, not your passion, will convince you," Clymo stated, that O'Mara's version of the truth was "at times slanted, at times fudged, at times manipulated. If you believe everything the prosecutor has said, you will convict her. But if you test it against the truth," he intoned, lacing his big fingers together like a preacher, "you will see where it's slanted. And after you go through that process, it is our expectation that you will reject what was told you last week."
Clymo had initiated his first tactic: attack the prosecution.
"You were bombarded by one of the strongest emotional pleas that I've ever heard from a prosecutor. Every nerve ending was assaulted! The name of Christianity was invoked! Mother Teresa's name was used to inflame you! Does this s
ituation call for that kind of sarcasm?"
Clymo first suggested that O'Mara had committed blasphemy and insulted their intelligence. Next, acknowledging that some of them had military counterintelligence training, Clymo asked, "Do you recall the classes you had in interrogation techniques? Do you remember all the stuff that we learned as a country after the Korean War? If you want to control somebody's thinking, if you want to implant an attitude, you put them in a situation where you have absolute control of them, in the sense that they can't get away from your diatribe."
Clymo was actually comparing the prosecutor's marathon argument to mind control techniques.
"You hammer it incessantly," he continued, "you tire them, you wear them down, you fatigue them, and you slant the facts. Gradually, slowly, during the fatiguing process, you slant the facts. But," he warned, "don't let that happen to you. Recognize the process."
Having disparaged the prosecution's style, Clymo now went after substance.
He thought it was ridiculous to suggest that the woman identified as "Betty" might actually have been Leona Carpenter. "Why in the world would Dorothea Puente tell anybody that this woman's name was Betty? That doesn't make a whole lot of sense," he said, shaking his head.
"Carol Durning Westbrook told you that Dorothea Montalvo Puente fed this woman. That she would go out on the couch, lift her, feed her soup, even when she didn't want to eat, when all she wanted was her pain pills. She would bathe her, wipe her behind like a baby. Dorothea Montalvo Puente did that. Now, that's not some story that she told Detective Cabrera and is therefore to be discredited and disbelieved. That's from a witness that the prosecution told you was one of the few you could believe."
In soft, reasonable tones, he went on, "There was nobody taking care of Betty except Dorothea Montalvo Puente. Does that make her Mother Teresa? No. Is Dorothea Montalvo Puenta a crazed serial killer, preying upon the helpless, looting people beyond the grave? She's neither. She's neither saint nor demon. She's like all of us, a little bit good, a little bit bad," he said, spreading his upraised palms, as if balancing her two sides. "Half this case has been devoted to proving to you that she's a thief. So be it. She is. That doesn't make her a killer."
Clymo suggested that Dorothea had been a good friend to all of these people. She'd known Leona Carpenter, for instance, for twenty-seven years. And her friend Betty Palmer knew she was "going downhill," so she'd simply agreed that if Dorothea would take care of her, the landlady could receive "her trust" of Social Security checks.
Then, perhaps drawing on his study of psychology at Stanford, Clymo held before the jurors a well-known black-and-white image, a perception test. "Some people look at this and see a chalice. Others see two faces that are facing each other," he said, walking the image past the jury box. "What it fairly graphically represents is that there are frequently two ways of viewing things. I would suggest to you that if you have it in your mind what it is you are going to see, you will see it. Each view eliminates the other."
It was an ingenious move, illustrative of the task before them, subtly persuasive.
To make his next point, Clymo popped in the videotape of newsclips from November 11, 1988, that the jurors had seen months before. The courtroom grew still while sounds and images from that fateful day filled the room.
"And topping our news tonight, a gruesome mystery..."
"... uncovered the remains of a dead body ..."
"This is the house of Dorothea Puente ..."
Clymo ridiculed the prosecution for failing to present substantially more than the suspicions voiced that very first day. "Did you hear on the video, from day one, in essence what you heard in the prosecutor's final argument? Bodies buried! Suspected poisoning! Dorothea Montalvo Puente has a prior! Checks were cashed! People missing! From day one, that was the view of the case.
"What has really been proved to you in the six, seven months, whatever it's been, that we've taken evidence on this case? Not much. You know, from day one they've been trying to prove that Dorothea Montalvo Puente poisoned people. Has that been proved to you?" he asked skeptically. "Has that been proved to you beyond a reasonable doubt and to a moral certainty?"
He let the question hang for a moment.
Clymo next turned to the subject of flight, claiming that the defense had never denied that Puente had fled. "What significance does it have, that's the question before you," he said. "Hell, she didn't have to run away. They escorted her through the crowd!"
(Indeed, Detective Cabrera had handed him this one.)
"Does that prove she's conscious of having committed murder? Or does that just mean that, yes, she knows she's been ripping off the government for a long time, that she's been snagging Social Security checks after people die because, as we've heard, it doesn't take a rocket scientist to figure out that Social Security is pretty easy to rip off."
Clymo conceded that, on the face of it, seven bodies buried in the yard was very powerful evidence. "But of what?" he asked.
"Of a graveyard! It doesn't say anything about how people died!"
With that, he began flourishing medical charts regarding the questionable health of each of the individuals Puente was alleged to have murdered. He recounted the dire medical problems they faced. And over and over, for each of these counts, Clymo reminded the jurors, "What do we know as to cause of death? Nothing. Nothing! It's undetermined."
Clymo's fundamental tactic was to raise questions, raise doubts. It wasn't his job to supply answers, but to raise those little worries and concerns that add up to something short of "beyond a moral certainty."
"You've heard a lot about the smell of death. How could there be a smell of death if nine people were killed premeditatedly? It takes two, three days before a body starts to smell. If these were premeditated, deliberated murders, why was there always the smell of death? Why were bodies around long enough to start the decomposition process? How do you explain that?"
And why would someone go to the trouble to wrap the bodies so meticulously, he asked, reminding them of the quilts, the sheets, some of them stitched like a shroud. "Why not get them out into the hole as quickly as you could and get them covered? Once they're in the hole, they've disappeared."
In softer tones, he suggested, "Bizarre as it may seem, didn't the body wrappings represent some crude form of trying to provide at least a measure of dignity to these people, to provide some barrier between them and the dirt?"
At one point, Clymo listed all the former tenants who had testified at the trial. Clearly, they weren't dead. Why hadn't Puente killed them, too, if she were such a crazed killer?
Subtly yet unmistakably, Clymo was making progress, raising doubts.
He saved his best argument for the end of the day, when he popped in the videotaped interview of former tenant Julius "Pat" Kelley. Clymo turned to the jurors, and asked, "If Dorothea Puente hadn't been arrested in November 1988, what would have happened if Julius Kelley had remained at the house, if Julius Kelley had died there of lung cancer? I just ask you to think about that as you watch the video."
The image of a shrunken and feeble man filled the screen, the digital date, 4/20/90, stamped in a bottom corner. The jurors remembered seeing this video months before, but perhaps Puente's former tenant now seemed frailer than ever. They heard George Williamson and Kevin Clymo question the old man in turn, and they heard him respond in a barely intelligible rasp. On the tape, Kelley said he'd repeatedly asked Dorothea for Dalmane to help him sleep. At first she'd refused, but finally gave him a couple of pills.
Kelley recounted life at 1426 F Street, but what he said was less important than how sick he looked. Though only sixty-three, the man looked as fragile as ancient parchment.
After half an hour of Kelley's sickly image, Clymo stopped the tape and again addressed the jury. "Just consider," he said thoughtfully, "if the cancer ran its course, as we know it did, and Julius Kelley was found buried in the yard, don't you think he would be count ten?"
The ju
rors sat up straighter in response to Clymo's logic. A sick old guy with a regular check dies, and Dorothea makes a space for him in her own private cemetery.
Clymo continued in this vein, "When the toxicological testing was done, wouldn't they also find Dalmane in his system? He asked for it to help him sleep, but he didn't have a prescription for it."
If Kelley had died at the boardinghouse, if he'd indeed become count ten, "Dr Anthony would have been in court testifying to the autopsy results, testifying to the toxicological findings, and you would have heard that Julius Kelley had Dalmane in his tissue, in his liver and his brain, and he had no prescription for it.”
"How often," he asked rhetorically, "had that scenario played out?"
Clymo invited the jury to remember some of the earliest testimony about Bert. "Remember Bill Johnson? With the big beard? Remember how emotional he got talking about Bert? Bert was his buddy, he checked up on Bert." Clymo smiled. "One thing that Bill Johnson knew about Bert Montoya was that he had this peculiarity, he was nocturnal. He would walk around at night, and he would do his talking to his spirits at night. He didn't sleep. When everyone else would sleep, he would be up all night.”
Johnson had indeed said this.
"Isn't it just as reasonable to conclude that that's why Dorothea Puente sent him over to Dr. Doody with a note: He doesn't sleep, give him some Dalmane?"
Could this be true? Had Dorothea Puente only handed out a couple of pills now and then to help her tenants sleep?
At the start of the day, no one thought Kevin Clymo had a chance to save his client. But with the gravely ill visage of Julius "Pat" Kelley, he'd done the impossible: He'd raised the nagging concern, the active worry, that Dorothea Puente might actually be innocent.
The next morning, characterizing the prosecution as desperate for a cause of death, Clymo launched a scathing attack on the "incredibly exceptional" handling of the tissue homogenates, and on James Beede. He pointed out discrepancies in the results found by the three labs that had tested the samples. And he claimed that, having failed to find a cause of death, the prosecution had shopped from lab to lab until they'd received the findings they were hoping for.
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