A Death in California

by Barthel, Joan;

  After that incident, Jim’s dad had laid down the law. “I never wanted you to be a policeman, but you’re going to be one, evidently, and if you’re going to get into shootouts, you get you a weapon that when you hit a guy, he’ll stay down.” Jim’s dad took away Jim’s .38 service weapon and bought him a .357 which Jim, fortunately, had never had to use. But he knew it was there. “I don’t want to have to shoot somebody,” Jim declared, “but if I have to shoot, I don’t want him to get up and shoot back.”

  Gene felt the same way. One blazing day in late July—Jay Powell’s birthday—Gene and six other detectives were assigned to escort Walker to the ranch; he and Jay Powell had been allowed a visit there in preparation for their defense. Two of the detectives carried high-powered rifles; Gene and the others had their regular service weapons. Gene’s hand hovered near the holster the whole time. The gun used to kill Bill Ashlock had not been found; ballistically, there was no match with the gun Walker had when he was arrested. Gene always thought that Walker, following the lead of the Jackal, had welded the gun to the underside of the Lincoln; Gene had heard that when the FBI went over the Lincoln, they found signs that something had been hidden underneath. Still, with Walker, you never knew, and all afternoon, Gene half-expected Walker to suddenly swoop down behind a bush or jump into a gully, grab the gun he’d stashed there, and come out shooting. So Gene stayed ready, and he let Walker know he was ready. “If I see anything in your hand besides paper and a pencil,” he told Walker, “you are bought and paid for.” Walker just smiled and took copious notes on his yellow legal pad, strolling through the house and around the grounds as though he owned the place.

  Gene felt Walker, all summer, was having himself a ball. With his access to a phone, he was making so many calls that Tom Breslin thought it necessary to put it in writing:

  Dear Hopie,

  If G. Daniel Walker happens to call you, the following, only, will be related by you: ‘My attorneys have instructed me not to talk with you. If you have anything to say, please contact my attorneys.’ And then, HANG UP!

  Sincerely,

  T. P. Breslin

  Once Walker called Jim Brown at home, to ask Jim to bring a tape recorder over to the jail because he wanted to confess. When Jim hurried over with the tape machine, Walker smiled. “I confess: I didn’t do it.”

  Some of Walker’s calls to Ned Nelsen lasted half an hour, maybe forty-five minutes. “He seemed to think that because they were co-defendants, we were on the same side,” Ned recalled. “He’d discuss aspects of the case, ask a lot of questions, but he never made any statements that were incriminating.” When the sheriff’s office got Walker’s phone bill, over five hundred dollars, Walker was limited to two calls a day. Eventually another large bill arrived; Walker had been calling Western Union and sending out a stream of wires. When the sheriff’s office explained the situation, Western Union agreed to absorb the cost, and Walker’s two calls a day henceforth could be made only to Jay Powell. His letters continued, including long, newsy letters to Ned Nelsen, bringing Ned up to date on Walker’s legal progress. He wrote to Ned about some newly discovered evidence, a medical report indicating that Bill Ashlock had been shot, not in the back of the head, but through the mouth, and he told Ned all about his visit to the ranch. He sent Ned a large envelope, with an enclosure for Hope—Bill’s death certificate. William T. Ashlock had been cremated at the Fresno Crematory, under the direction of the people from Myers Chapel. His ashes were scattered at sea.

  Place of Death: Springville.

  County of Death: Tulare

  Length of Stay in County: 3 Days.

  Walker’s attempt to suppress the evidence was his own, separate motion, with Hope not joining. Items of evidence that would be detrimental to Walker would, of course, be helpful to Hope—the credit cards, the loaded .38, the surgical gloves.

  When Van told Hope she could have one lawyer, but not two, to reduce the legal fees, she chose Tom Breslin. Ned Nelsen was older, richer, more or less in a class with her parents; Tom had seen her at her worst, she felt, scared and shaky at the Beverly Hills jail, even more bedraggled that night in Visalia. Tom had become a youngish father figure to her, even a father confessor; it was Tom whom she’d felt the need to talk to most, when they drove out to the beach. So it was Tom Breslin who followed the suppression hearings, day by day, all summer, and who drove north to the Visalia courthouse on the day Judge Ballantyne was to issue his ruling as to whether the evidence would be suppressed.

  It was Friday, August 31, 1973, the start of the long Labor Day weekend. The case of The People of the State of California v. G. Daniel Walker and Hope Masters was to come to trial on Tuesday, September 4.

  Tom had not been a bit surprised when Walker moved to suppress the evidence. “That’s good jailhouse law,” Tom pointed out. “And Walker’s a good jailhouse lawyer. In fact, in some ways he’s a legal genius.” He had talked it over with Ned Nelsen and had made his plans, and he’d talked it over, many times, with the prosecutor, Joe Haley. “If the evidence is suppressed, you’ve got to appeal the ruling,” Tom kept telling Haley. “You can’t go to trial without that evidence against Walker. Without that evidence, you don’t have a chance to convict Walker.” Joe Haley had listened and had agreed that the state needed the evidence. If Judge Ballantyne ordered it suppressed, Haley said, he would immediately file an appeal.

  Although Tom was in court more or less as a concerned spectator, he was the most attentive as Judge Ballantyne swept into the courtroom and read his nine-page decision agreeing with Walker that the letter to Marcy Purmal had been illegally intercepted and that everything stemming from that letter, everything linking him to the Ashlock murder—the search of his room at the Howard Johnson’s, his arrest, and the seizure of property both on Walker himself and in the Thunderbird—was illegal. The state had argued that Walker’s use of the Taylor Wright credit card was independent information, not linked to the letter, but Judge Ballantyne said that that point “was not adequately developed by the People,” and he granted Walker’s motion in its entirety. All the evidence was ordered suppressed. The whole lot. None of it, then—not the credit cards, or the clothing, or Bill’s yellow metal ring, the gun, the gloves, nothing—could be used as evidence in the prosecution of G. Daniel Walker on a charge of first degree murder. Walker might well be exonerated, then, the coldest, cleverest killer Tom Breslin had ever seen.

  Walker smiled when Ballantyne finished reading. Jay Powell smiled. Tom Breslin smiled in relief when Joe Haley stood up to announce that the state would appeal the ruling. Just before court convened that morning at ten o’clock, Tom had reminded the prosecutor, one more time. “Without that evidence, you don’t have a chance to convict Walker,” Tom had said again. “If Ballantyne rules to suppress, you’ve got to appeal his ruling.”

  Judge Ballantyne listened to Haley, nodded, and made a note. He announced that because of the appeal, the trial was automatically postponed for thirty days. He looked over at Tom Breslin.

  “Mr. Breslin,” Ballantyne said, “you’re scheduled for trial the day following this holiday. But with this appeal, of course, we now will have a continuance. You will agree to that continuance?” It did not sound like a question, only a judicial formality. To Tom Breslin, it sounded like trumpets from an angel choir.

  “Your Honor,” Tom said solemnly, “I cannot agree to a continuance without consulting my client.”

  “Well then,” the judge said, a trifle impatiently, “will you kindly contact your client and ask her to agree to the continuance?”

  Tom tried to look suitably grave. “Certainly, Your Honor, I will call my client.

  “And I did call. I swear I did,” Tom insisted later, with a naughty gleam in his eye. “I went over to The Depot and had a martini and then, honest to God, I called Hopie. I let the phone ring at least twice.”

  Back in court, after lunch, Tom looked even more grave. “I’m sorry, Your Honor, but I cannot reach my client, and I haven’
t the authority to waive her right to a speedy trial. We are ready for trial, and so we will go to trial as scheduled, on Tuesday.”

  The prosecutor blinked. Walker and Jay Powell murmured together. The judge looked closely at Tom, who looked right back at him. Then Judge Ballantyne invited Mr. Breslin and Mr. Haley to join him in chambers.

  Behind the closed door, Tom tried not to grin as he repeated what he had said in the courtroom. “We’re ready for trial, Your Honor. I can’t waive my client’s right to a speedy trial without her permission. So we’ll go to trial. I realize that co-defendant Walker’s trial is automatically postponed for thirty days, because of the state’s appeal. We will go to trial separately.”

  It was only too clear to the prosecutor—but a little too late—what was happening … what, in fact, had already happened. Still, Tom spelled it out. All the evidence had been suppressed against Walker. Without that evidence, the state had virtually nothing to use against him. As a codefendant, Hope Masters could claim privilege and could not be forced to testify against him. If Hope’s trial went ahead, separately, all the evidence that had been suppressed on Walker’s behalf could, and certainly would, be used at her trial. But if all that evidence were made public in her trial, Walker would then have a complete script to follow as he prepared for his own later trial; he would be many steps ahead of the state when he came to trial, if indeed he ever did: so many legal problems would be linked with the use of evidence in her trial, but suppressed in his, on an identical charge, that the unraveling of those problems could take literally years. Beyond all this, Walker could easily claim massive prejudicial publicity against him, as the evidence was disclosed in Hope’s trial, and he was likely to slither off the hook entirely.

  The fact that it was so clear did not make it less painful to the prosecutor, who stared at Tom.

  “Of course,” Tom went on, pleasantly, “if the charges against my client were to be dismissed, we would be prepared to cooperate. My client might testify as a prosecution witness.”

  Haley shook his head. “We can’t just dismiss them,” he said slowly.

  Tom smiled. “Okay then,” he said cheerfully. “We’ll go to trial on Tuesday.”

  “Well, how about having her plead guilty to a lesser charge, like not calling the police?” Haley offered reluctantly.

  “No thanks,” Tom said. “Dismissal.”

  Judge Ballantyne looked at the prosecutor. “Mr. Haley,” he said gently, “as I see it, the thing that will convict Hope Masters is your proof that she knew Mr. Walker before he came to the ranch. Do you have any evidence of that?”

  Haley shook his head again. “No, we don’t have any evidence of that,” he murmured.

  “Well then,” Ballantyne said briskly, “I don’t think you’ll get a conviction against her, and I think you’re better off getting her cooperation.”

  Haley made one more try. “I would consider giving her immunity, if she will testify,” he said. Again Tom declined. He and Ned had discussed that possibility and had decided that, in the Watergate era, the word “immunity” had a distasteful tang. “No thanks,” Tom said. “It has to be a straight-out dismissal.” When Haley hesitated, Tom whipped out a copy of Section 1099 of the California Penal Code, which he just happened to have with him, and passed it to the prosecutor to read: “When two or more defendants are included in the same accusatory pleading, the court may, at any time before the defendants have gone into their defense, on the application of the prosecuting attorney, Direct any defendant to be discharged, that he may be a witness for the People.”

  Tom went one step beyond, then, since he had gone so far already: he said he wanted the dismissal to occur after the trial had begun, after a jury was sworn, and after the first witness had testified. In his legal diggings, Tom had learned that if a defendant were discharged at that point, he—or she—was considered to have already been placed in jeopardy and could never be placed in jeopardy again on that charge, even if he—or she—subsequently confessed.

  Judge Ballantyne nodded to Tom. “Well, Mr. Breslin,” he commented, “it looks as though you’ve done your homework on this.”

  Now Tom tried to look humble. But he had done his homework; he had worked hard, and the fact that all his earlier attempts in Hope’s case—trying for a change of venue, for a supreme court hearing, trying in any way possible to at least get her case separated from Walker’s—had failed, made this sudden victory all the sweeter.

  “All right,” Haley said finally because, in the end, there was not much else to say. Under the terms of the stipulation that Tom dictated, then, and both attorneys signed, Judge Ballantyne as witness, Hope would agree to a postponement of her trial, along with Walker’s postponement, while the state’s appeal of his suppression ruling went forward. Only she and her parents, her attorneys, and the prosecution would know that she would not be tried for murder; Walker and Jay Powell would not be told, of course, lest they come up with some legal maneuver to thwart it. When the trial finally began, whenever that was, and the jury was sworn, and the first witness had testified, the charges against her would be formally dropped; the trial would proceed against Walker alone, with Hope Masters as the key witness for the prosecution.

  As he drove back to Los Angeles, the signed stipulation in his briefcase, Tom sang along with his car radio. He had not been in such high spirits for months. He felt like Galahad, like a conquering hero; he felt like the Archangel Michael, who had wrestled with the Devil, and won.

  Honey wept with joy, and Van was delighted with what they called “the arrangement.” But Hope was appalled.

  “I just can’t testify against him,” she moaned. “Don’t be mad at me, Tom, because I really appreciate what you’ve done, I think you’re terrific, but I can’t testify against him. I promised him I wouldn’t. I said I would never, never testify against him, and I swore on the lives of my children! I can’t do it, Tom, don’t you see?”

  In a way, Tom did see. “She promised, and to Hopie, that’s it,” he told Gene Tinch. “A promise is a promise. That’s her flight pattern.” But even though he understood, and even admired her for her tenacity, he hollered at her.

  “You have to do it, Hopie,” Tom told her. “You absolutely have to do it! I know you promised, but that kind of promise doesn’t count, because it was made under duress. It was not a free, volitional act on your part. It isn’t binding.” When she still shook her head, Tom pressed on. “Hopie, Hopie, you have to do it. It’s your only chance. If you don’t go along with this, Hopie, you will have to stand trial and you might”—Tom hesitated, then he went ahead and said it—“you might go to prison, Hopie, maybe for a long, long time.”

  Hope was so distraught, so confused and upset that she called Reverend Castellanos at All Saints Episcopal Church and asked if she could come over right away. She hadn’t been to his church for years, but she didn’t know anyone else, she said, to turn to.

  She explained her dilemma. “What do you think I should do?” she asked the minister.

  “What do you think God would want you to do?” he countered.

  “Well, I don’t know,” Hope said. “I’m having a really hard time figuring out what’s right and wrong in this thing. I mean, I promised him, and I meant it when I promised.”

  “I think God would want you to tell the truth,” Reverend Castellanos prompted her. “Without malice, though. Without hatred or feelings of revenge. I think God wants you to tell the truth, as you know the truth to be.”

  They talked more, then, about what had happened. He tried to link her pain and suffering, her family’s suffering, to the suffering of Christ. Crucifixion could happen in many forms, Reverend Castellanos told her, and the troubles in people’s lives—sometimes alcoholism, or delinquent children, or incurable illness or, in her case, rape, abuse, murder—had something to do, in fact, a great deal to do, with the troubles inflicted on Christ.

  “Did you expect to be treated better than Jesus?” he asked her gently.
r />   Hope thought about that.

  “Well, yeah,” she said, finally. “I guess I did.”

  “Okay then,” she told Tom. “I’ll do it.”

  “Okay, Hopie,” Tom said. “That’s good. That’s great.”

  “You know, Tom, I was so cold,” she went on, a distant look on her face. “I was just so cold. I have never been so cold in my life. And he put blankets over me. I think he probably kept me alive.”

  Tom just looked at her. He did not feel so elated, anymore. He still felt he had wrestled with the Devil, but he wasn’t so sure he had won.

  Visalia was more to Hope’s taste than was Porterville. It had a good French restaurant and a glossy shopping mall. Visalia’s Lampliter Inn had a more than passable dining room and a handful of private cottages, where Honey and Van were booked; Hope and Gene and Tom had singles in the main building. To Hope, Porterville was battered pickups and farmers in overalls, gaping at her, pointing Instamatics in her face; in Visalia, Van’s Cadillac was not out of place. As the county seat, Visalia boasted a convention center, a community college, summer Shakespeare, a country club, and an expensive residential section, Greenacres, where a lot of professionals lived—doctors and lawyers and judges, including Judge Leonard Ginsburg, who became the third, and last, judge to observe the entire cast of characters assembled on one stage when the trial finally began, on November 19.

  “Characters” was the appropriate word, Ginsburg felt. When he looked at Van, he saw a man so dignified, so precise, that Judge Ginsburg was convinced Van had seen movies about corporation lawyers when he was a little boy and had vowed to be just like one of them when he grew up. The judge could picture Honey, so thin, so rich, drifting through her perfect living room, wringing her hands in storybook distress. When the entire cast—judge, jury, policemen, attorneys, co-defendants—drove to the ranch so the jury could view the scene of the crime, Judge Ginsburg thought that was like a movie clip, too. “Man and boy, I’ve been around these mountains all my life,” Judge Ginsburg said, “and I’ve never seen such a picturesque place, in a little valley like that, shut off by the mountains on all sides, with a little crick running through it, and the white frame house set among the orange trees—and Walker strolling around, waving his pipe, as though he owned the place.” Altogether, Judge Ginsburg found the trial thoroughly fascinating—an intricate, highly improbable drama in which nobody seemed real, including himself.