“Wow.”
Gordon Marshall had ascended into the ranks of the elite among death-penalty lawyers by winning a couple of high-profile appeals early in his career. Terry, my late husband, had also occupied that rarified professional space, but he didn’t think much of Marshall; in Terry’s opinion he was too much about publicity and personal fame, and lazy about working on his cases. Marshall claimed to be a distant descendant of John Marshall, the first Chief Justice of the Supreme Court. Judges loved him.
“How did you get Howard’s case from Marshall?” I asked.
“You didn’t know?”
“Know what?”
“Marshall had to retire a while ago—had a stroke, apparently. All his court-appointed cases had to be reassigned.”
“I’m sorry to hear about Gordon,” I said. Whatever I thought about him, the news was sobering. “Jeez, we’re all getting old.”
“I don’t like to think about it,” Mike said. “All the old guard are retiring or dying. I don’t know half the people at seminars anymore.”
“But here we still are until it’s our turn.”
“Yeah. I don’t know if I’ll ever be able to afford to retire. But back to Howard—all the briefs were filed, and I thought I’d just be babysitting the case until the petition was denied. I’d had it for about three months when the court issued an order to show cause.”
“That’s unusual—good news for Howard, though.” I couldn’t help thinking that having Marshall as his lawyer had a lot to do with an ordinarily merciless court granting Howard a hearing. Marshall had a gift for getting good results for his clients. “What issues is the court interested in?”
“The questions are about innocence: what evidence there was at the time of the trial and what new evidence there might be that Howard wasn’t involved in the murder.”
“Even better news.”
“Yeah. After I read it, I called Evelyn and whined until she agreed to ask the court to pay for a second attorney. I just got the court’s okay yesterday.”
Call it diminished capacity. Or maybe I was addled by shock and blood loss. But somehow, I found myself agreeing to at least consider working with Mike on Howard’s case. “Terrific. I’ll send you some of the briefs and the habeas petition, for a little background, and then we can set up a day to meet.”
Damn, I thought, as I headed back into the bathroom to replace the blood-soaked bandage on my cut finger, I should call him back and say no way. But I didn’t. Instead, I printed out the state Supreme Court’s opinion affirming Howard’s conviction in his appeal and began reading.
3
Confucius supposedly said, “Virtue is never left to stand alone.” Like a lot of philosophers, he had no experience with the criminal justice system.
According to the court’s opinion, Henley had been charged with capital murder for allegedly hiring another man, Steve Scanlon, to kill a competitor, one Jared Lindahl, in a dispute between small-time drug dealers.
Before Henley’s trial his lawyer told the judge he was concerned that Henley wasn’t mentally competent to stand trial. The judge appointed two psychologists to evaluate Henley and write reports for the court.
For a criminal defendant to be mentally competent to stand trial, the law requires two things of him. First he has to show he understands the legal proceedings, meaning he has to know basically what he’s been charged with, what could happen to him, and which people in the courtroom are the judge, the prosecutor and his own attorney. Second, he has to be able to assist his attorney “in a rational manner.” A defendant can be mentally ill, even psychotic, but if he can manage both those things, he’s fit to be tried for his alleged crimes.
Both psychologists decided that Henley was competent. They agreed he understood why he was being prosecuted, but wasn’t getting along with his lawyer. One doctor said it wasn’t clear whether he was mentally ill or just an eccentric with some strange beliefs. The other concluded that Henley could cooperate with his lawyer, but was choosing not to.
Henley was entitled to a hearing on the question of his competence, but after seeing the reports, his lawyer, perhaps seeing where things were going and trying to salvage what might be left of his relationship with Henley, decided not to pursue the issue. The judge ruled that Henley was mentally competent. Henley promptly fired his lawyer and represented himself from then on.
At his murder trial, Henley didn’t cross-examine any of the prosecution witnesses, but he tried to call witnesses of his own: his father, who testified that he had had to give Henley money for his rent the month Lindahl was killed, and two men who had told the police Scanlon confessed the murder to them. Both men said Scanlon had told them more or less the same thing: that Lindahl was killed on orders from the Aryan Brotherhood prison gang and that the guy the police had arrested had had nothing to do with the crime. The district attorney objected, arguing that the two witnesses could testify that Scanlon told them he’d killed Lindahl, but that everything else in their statements was inadmissible hearsay. The judge agreed and excluded the testimony.
The judge’s ruling left the prosecutor free to argue to the jury, “You have not heard any evidence—anything—that contradicted our evidence that Howard Henley hired Steve Scanlon to kill Jared Lindahl.”
The jury convicted Henley of conspiracy to commit murder and murder for financial gain, a death-penalty offense.
The shock of getting convicted must have jolted Henley briefly into lucidity, because he asked the judge to appoint him an attorney for his penalty phase, saying he thought he was in over his head. The judge refused, and Henley continued to act as his own lawyer. The district attorney presented evidence of a long string of prior convictions and uncharged, mostly minor, crimes—assaults, drug possession, disturbing the peace, resisting arrest, and brandishing a kitchen knife during a confrontation with a police officer.
Henley didn’t present any evidence on his own behalf and gave a closing argument which even the state Supreme Court described as “rambling and incoherent.” But it affirmed his death sentence nonetheless. The court noted that both the psychologists appointed by the court had said that Henley was competent, and that because Henley was mentally fit to stand trial, he was fit to make the decision to represent himself. He wasn’t entitled to a lawyer for his penalty trial because he’d waited too long to ask for one. The court also held that the trial judge had been right when he ruled that the men to whom Scanlon confessed could testify that Scanlon told them he committed the murder but not that Henley wasn’t involved. And because that ruling was correct there was nothing wrong with the district attorney arguing to the jury that Henley hadn’t produced any evidence that he wasn’t guilty. The prosecutor was simply stating the truth, even though she knew of the evidence and had been responsible for keeping it from the jury.
4
Mike emailed me the briefs in Howard’s appeal, along with the habeas corpus petition filed after his conviction was affirmed and a packet of police reports about the crime. The facts related in those papers told a story a bit different from the state Supreme Court’s opinion.
Jared Lindahl had been killed in Wheaton, a small city in the Central Valley. His body had been found behind the seedy trailer park where Howard was living. When the police asked people in the park if they’d seen anything, two or three said Lindahl had recently started living in a cabin behind the park. Lindahl had recently been released from prison, and he was trouble, stealing from denizens of the trailer park and strong-arming them for the meager amounts of money and valuables they owned. Howard had been selling small quantities of marijuana and pills, they said, and Lindahl had gone to his trailer one night, beaten him up, and taken his money and stash.
Howard had spent the days after the beating in a rage and had asked a couple of acquaintances in the park if he could borrow a gun to kill Lindahl. The police had arrested Howard for Lindahl’s murder, but had been forced to release him when they learned he was in jail on the day Jared Lindahl was
shot, serving a weekend for failing to pay a fine for a speeding ticket.
Convinced that Howard must have had something to do with Lindahl’s death, the detectives investigating the case kept hunting for evidence that Howard was somehow behind the killing, and they found Freddy Gomez. Freddy, who lived in the trailer park, told them that after the beating, Howard had asked him where he could buy a gun, and Gomez had given him the name of a guy he knew. Gomez had been in Howard’s cabin buying weed one day soon after that; Steve Scanlon, a guy who sometimes visited the park, was there, too. Freddy claimed he had heard Howard offer to pay Scanlon to kill Lindahl and had seen him give Scanlon a handgun.
Freddy Gomez wasn’t just a good citizen. As he was forced to admit under cross-examination at the preliminary hearing, he was a heroin addict who had just been arrested for trying to kill his girlfriend and possession of heroin for sale. He was desperate to get out of custody, so he wouldn’t have to endure the agony of withdrawal from the drug. So he called a jail guard over to his cell and told him he might have some information about the Lindahl killing.
On the basis of Freddy’s information, the detectives arrested Howard for hiring Scanlon to kill Lindahl. Gomez was released from jail the next day.
Acting on Gomez’s information, the detectives went looking for Scanlon. At first they couldn’t find him, but then they received a tip from a parole officer in El Dorado, near the Nevada border. A client of his had reported that Steve Scanlon had visited him and confessed to a murder in Wheaton. By the time they drove to El Dorado and interviewed Scanlon’s friend, Scanlon was gone. But his friend said Scanlon had told him he’d killed a man in Wheaton on orders from the Aryan Brotherhood, and that the police had arrested another guy who had nothing to do with the hit. Scanlon was picked up a few days later.
Howard’s family hired an attorney for him. The lawyer declared his doubts about his client’s mental competence after a couple of court hearings in which Howard repeatedly interrupted the proceedings with rambling rants accusing the prosecutor of framing him for Lindahl’s murder because he knew the sheriff’s son bought cocaine in the trailer park, and insisting his attorney was working with the prosecution by refusing to present his alibi defense.
After Howard fired his attorney to represent himself, a local defense attorney was appointed to be what they call advisory counsel, someone to be available to help him with legal questions he might have and to do legwork, like legal research and interviewing and subpoenaing witnesses, that a defendant can’t easily do from jail. But Howard called the shots. And he had his own ideas about how to try his case. He exercised his right to a speedy trial and refused to ask for extra time to do any work on the case, so he was picking a jury two months after his motion to represent himself was granted.
Howard’s voir dire of the trial jurors consisted of asking a half-dozen jurors whether they had heard that he was in jail on the day of the murder and whether they accepted the truth of the Book of Revelation. He randomly asked a couple whether they knew about the secret colonies NASA had established on Mars. He ignored their answers and challenged no one.
Freddy Gomez had disappeared after testifying at the preliminary hearing in Howard’s case, and by the time the case was tried, no one could find him. The prosecutor and a deputy were allowed to read his prior testimony to the jury.
In addition to Gomez’s testimony that he had given Howard the name of a gun dealer after the robbery and had later seen Howard give a revolver to Steve Scanlon, the prosecutor presented several witnesses from the trailer park to establish that Howard had been beaten and robbed of drugs and money by Lindahl and that Howard had threatened to kill Lindahl after the robbery. Howard tried to cross-examine the first of them, asking if he knew about a lawsuit Howard had once filed against the County of Ventura and if he was aware that Howard had been in jail on the day of the murder. The prosecutor objected that the evidence wasn’t relevant, and the judge agreed. After that, Howard asked no more questions.
The one rational thing he did, presumably on the advice of his advisory attorney, was to try to call the two men to whom Scanlon had confessed—the friend who had reported him to his parole officer, and another man who had reported that Scanlon had told him essentially the same thing when he was in jail waiting for his own trial. After the judge ruled they couldn’t testify about anything Scanlon told them beyond the fact that he had killed Lindahl, Howard said, in a rare moment of insight, “I have no way to prove my innocence,” and rested.
Howard tried to argue to the jury that he was innocent of the murder. “I had nothing against the man,” he said. In her closing argument, the prosecutor hammered at the lack of any evidence presented that Howard was anything but guilty of a murder for hire. “Did you hear any evidence,” she asked rhetorically, “that anyone—anyone—but Howard Henley had a motive to kill Jared Lindahl?”
At the penalty phase of the trial, the prosecutor presented evidence of violence and criminality in Howard’s background, to convince the jury he deserved to die. Howard’s record wasn’t long, but it wasn’t going to make him any friends among the jurors. He had spent a year in a state mental hospital in Florida after being arrested for attacking another man at a homeless shelter. Howard told the police the man had been trying to poison him by putting drain cleaner in his coffee. A psychiatrist from the hospital testified that he believed Howard had faked mental illness in order to avoid going to jail for the attack. A former neighbor testified that Howard had once come to his house with a shotgun and threatened to kill him and his dog because the dog was barking too much. A supermarket clerk said Howard had thrown a cantaloupe at him after an argument over whether he had been shortchanged for some groceries. It seemed that Howard had spent most of his adult life alienating people.
Howard’s closing argument—the one which the state Supreme Court had described as “rambling and incoherent”—returned again and again to his insistence that he had been framed for the murder as revenge by the sheriff, interspersed with comparing himself to the early Christian martyrs who were tortured and killed for their faith. Somehow he also managed to work in a prediction that men like Steve Scanlon would someday colonize outer space.
It took the jury just over an hour to come back with a death verdict.
Gordon Marshall, Howard’s appointed lawyer for his habeas corpus proceeding, had asked him to agree to see a psychiatrist for an evaluation of his mental health. Howard had filed a motion with the court insisting on having Marshall replaced as his lawyer—a request the court denied in a one-sentence order.
Even without the benefit of a psychologist’s opinion, Marshall had no trouble finding evidence, including psychiatric records and declarations from relatives, that Howard had been mentally ill for a long time. In the habeas petition, he asked the court to overturn Howard’s murder conviction because Howard was mentally incompetent and should never have been allowed to go to trial, let alone represent himself. Howard responded by filing a complaint against him with the State Bar.
For most of the clients I’d worked with, the path that led them to prison had begun with a traumatizing childhood of abuse, neglect, and family disintegration. Howard’s background and upbringing had been surprisingly stable.
He had grown up in Wheaton, where his father had started out managing an auto repair shop and then become a partner in a car dealership; his mother had worked as a teacher and then the company’s bookkeeper. Howard was their first child. After him there had been another baby boy who had been born with a fatal brain anomaly and died soon after birth, and then two more sons, Robert and Kevin, and a daughter, Corinne.
Neither Bob nor Corinne had any use for Howard. In his declaration, Bob said that even as a child Howard had been overbearing and weird. “When we were small we lived in a house where the boys all shared a bedroom,” Bob had written, “and Howard drew a line around his area with masking tape. If he saw me or Kevin cross the line he’d throw a temper tantrum.”
Howard did
well enough in high school to get admitted to Cal Poly, the state university in San Luis Obispo, but he never finished his first year. Early in his third quarter he tried to commit suicide by swallowing a bottle of aspirin. He spent the next year in a mental hospital and never returned to school.
When he was in his early twenties Howard had held a few jobs, but he never lasted long, because he’d either be fired or leave. After the last one and a fight with his father that ended in another mental hospital commitment, he bought an old motorcycle and disappeared for a couple of years. From time to time he would call his mother and ask her to send him some money; she remembered that once he called from Texas and another time from Florida. Eventually he returned home, sunburnt and rail-thin, without the motorcycle.
For a while he lived in a small apartment over his parents’ garage, but when he threatened to kill them and burn down the garage during an argument over his housekeeping, his father called the police. Howard spent a couple of weeks in the locked ward of the county mental hospital, and after he was released he left again, for southern California. When he came back again, his parents gave him rent for an apartment in another part of town, and then another after he was evicted from the first one. His history of mental disability made him eligible for a small monthly welfare payment, which covered most of his expenses, since Howard, whatever his other problems might be, was frugal.
He became something of a local character to the police in Wheaton because he was constantly in trouble with the law for minor crimes like disturbing the peace and shoplifting. Once he was charged with burglary for breaking into a church, after a group of volunteers found him asleep on the floor of the multipurpose room, surrounded by an odd collection of trophies, candles, and crucifixes retrieved from offices and closets in the building. He pled guilty to breaking and entering and spent thirty days in jail.
A few years before Lindahl was murdered, Howard was hit by a bus in the city of Ventura while walking across a street. He broke his ankle, but was otherwise unhurt. The Henleys’ family lawyer filed a claim with the county and got him a small settlement. Although Howard had agreed to the settlement, he soon grew angry that he had been paid too little. He filed pro se lawsuits trying to reopen the case until he was barred from court as a vexatious litigant. He wrote long, incoherent letters, citing strings of legal decisions and statutes, to the mayor, the controller, and every other city official whose name he could find. He invaded city council meetings and harangued the supervisors until he was permanently barred, which resulted in his filing yet another lawsuit against the county.
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