Madman Walking

by L. F. Robertson

  “Your co-counsel talked to me about it and emailed me a copy. It was new to me. Where did you find the letter anyway?”

  “There was a copy in Blaine’s case file.”

  “Son of a bitch,” he said, and quickly added, “Pardon my French. That sounds like Blaine. I’m surprised she didn’t destroy it. Well, I never saw any letter, as I told Mr. Barry. I heard about it from that guy he confessed to—Sunderland, wasn’t it? But since no one said they’d found a letter I assumed Scanlon was just blowing smoke.”

  “So you had a chance to talk to Sunderland?”

  “Yes. I went to see him with my investigator, Jim Warren. He was in Mule Creek prison, if I recall, on a parole violation. I don’t recall just what he said, but I remember it jibed with what he’d told his parole officer and the detectives. I’m working from memory, at this point. I don’t have my file anymore. I passed everything on to Gettle after Howard fired me.”

  Everyone else had filtered into the courtroom, and we followed. A minute later the judge came out, and the bailiff called the case.

  We began with what now seemed like the usual skirmishes over discovery. Mike brought up the AG’s continuing failure to give us the materials we were supposed to receive about witnesses until the day they were supposed to testify. Laszlo grumbled about Mike’s requests, accused us of withholding reports of our witness interviews until the last minute, insisted we didn’t have the right to anything we’d requested, and then grudgingly handed over a small stack of documents. Among them were reports of their interviews of Scanlon and Niedermeier.

  When Mike complained that we were receiving the interview reports the day before the witnesses were supposed to testify instead of a month before as the law required, the judge said, “Well, you have the documents. You should be able to read them in a day,” and told us to call our first witness.

  Ray Donahue took the stand. “Good morning, Mr. Donahue,” Judge Redd said.

  “Good morning, Your Honor.” It was the greeting of two men who had known one another, in the courtroom and out, for a long time, and on the judge’s side, which was the one that mattered, I detected a note of some respect.

  Donahue testified to what he had told me: that he’d been retained by Howard Henley’s family to represent Henley. He had read the police reports of Scanlon’s confession of the Lindahl murder to Sunderland.

  His investigator had interviewed Sunderland, and Sunderland had confirmed what was in the police reports: that Scanlon said he had been assigned by the Aryan Brotherhood to kill Lindahl. Laszlo objected that Donahue’s testimony about Sunderland’s statement was hearsay—he corrected himself, double hearsay. When I said we would be putting both Scanlon and Sunderland on to tie it up, the judge overruled the objection; and with an internal sigh of relief I went on.

  Donahue continued: Sunderland also said Scanlon had told him he had a letter from someone in the organization confirming the order and that someone else who had nothing to do with the crime was in jail for it. He said that while he was representing Henley he had received some discovery from the district attorney, but he was sure that discovery had not included any letter to Scanlon. “Did you ever receive information that a letter like the one mentioned by Sunderland had been found?” I asked. Donahue answered that he had not. I showed Donahue the copy of the letter from McGaw, and he said he did not remember ever seeing anything like it before Mike had called and emailed it to him.

  “Had you seen this letter while you were representing Mr. Henley,” I asked, “would you have considered it significant?”

  “Definitely,” he said. “It was corroboration that Steven Scanlon was telling the truth when he said he’d committed the murder at the behest of the Aryan Brotherhood, and not Mr. Henley.” Donahue said he would have made a discovery motion seeking disclosure of the letter from the prosecution, but he didn’t have the chance before Henley asserted his right to represent himself. After Henley fired him, Donahue gave all his files of Henley’s case to George Gettle.

  I couldn’t see what there could be to cross Donahue about, but Laszlo managed a few questions pointing out how many years it had been since he had represented Henley and the fact that he no longer had his files available to refresh his memory about the case. He questioned whether the letter would have been all that memorable, given that it said nothing about Lindahl or the killing. This was a mistake. Donahue hit back, repeating even more firmly what he had said on direct examination, that the existence of the letter supported Scanlon’s confession, which exonerated Henley; it would have been an important piece of evidence at Henley’s trial.

  “If you could get it into evidence,” Laszlo sniped.

  Donahue gave him a look that summed him up as a complete amateur. “I’m pretty sure I could have,” he said.

  During the morning recess I made small talk with Dot and Lillian, while Mike talked with Niedermeier. From my reading into Niedermeier’s criminal history, I knew he was about forty-five, but he appeared twenty years older. He was fairly tall, but bony and narrow-shouldered; his hair was sparse and needed cutting; his eyes were watery, and his cheeks sunken and leathery. He didn’t hide the fact he was unhappy to be here.

  Our next witness was Sunderland. Brought from the holding cell in an orange jail jumpsuit, he slouched, unshaven and resentful, in the witness chair as Mike questioned him, over routine hearsay objections from Laszlo, about his visit from Scanlon and Scanlon’s confession of the killing to him.

  He said, as he had in our interview, that Steve had called him, telling him he had to get out of Wheaton for a while and had stayed with him for a couple of days before moving on. When Mike asked if Steve had confessed a crime to him, Laszlo made a hearsay objection. Mike said Scanlon would be testifying to what he told Sunderland, and Laszlo revised his objection, stating Sunderland’s testimony would be cumulative. The judge overruled both objections, but said all testimony about what Scanlon had said to Sunderland would be stricken if Scanlon didn’t testify.

  Mike continued.

  “Steve Scanlon told you something about the murder of a man named Jared Lindahl, right?”

  “Well, I didn’t know the name of the man at that time, but yeah.”

  “What did he say?”

  “He said it kind of in bits and pieces, but the gist of it was, he was in with the Aryan Brotherhood and had orders from them to kill some guy in Wheaton, and he’d gone and taken him out.”

  “Did he tell you someone else was in jail for the murder who didn’t have anything to do with it?”

  “Yes, he did.”

  Laszlo objected that the question was leading. “Please avoid leading your witness, Mr. Barry,” the judge said.

  “Did he say anything to you about a letter?” Mike asked Sunderland.

  “Yeah, he said he had a letter from some guy in the AB—said it was sort of a friendly reminder to get on with the hit.”

  “Were you involved in any way with the Aryan Brotherhood?”

  “No way. When I was in the joint I stayed away from all that stuff—just did my time. I was sorry to hear Steve got caught up with them, and just as glad when he took off; I really didn’t want anything to do with their business.”

  Mike asked if Scanlon had seemed to have money.

  “Not that I saw,” Sunderland said. “He told me he was almost broke and waiting until he could get out of California to do a robbery and get some cash. He asked me for fifty dollars to help him get out of the state, gave me a watch as part payment. I helped him out by using my credit card to fill up his car.”

  On cross-examination, Laszlo walked Sunderland through his long and unsavory criminal history of armed robberies, burglaries, drug possession, and statutory rape. He was now doing ten years for shoplifting some steaks from a market, because he was what they call a habitual criminal. He’d gone to his parole officer to turn Scanlon in, because he didn’t want to be involved in a murder. Sunderland made it clear that he thought Scanlon was a bit of a braggart and
a little loose, especially for someone with aspirations to rise in the Aryan Brotherhood. Scanlon didn’t show him the letter. He didn’t know whether Scanlon’s story about it was true or not, nor did he know whether Scanlon was telling the truth when he said the other guy in jail wasn’t involved in the murder. He’d never thought of Scanlon as particularly truthful or honorable. Scanlon had been jumpy and paranoid while he had been staying at Sunderland’s house. He might have been on meth, or just scared.

  “Did you tell that to your parole officer and Detective Springer?” Laszlo asked.

  “Probably not.”

  “But you’re saying you told them the truth about what Steve said to you?”

  “Yes, I did, and I paid for it, too.”

  “How is that?”

  “My parole officer violated me for receiving stolen property and associating with criminals, and I spent another year in the joint.”

  “Why receiving stolen property?”

  “That watch Steve gave me turned out to be stolen. I should have known better, knowing Steve.”

  On redirect, Mike asked, “When you told your parole officer and Detective Springer what Steve told you, did you tell them everything you remembered him saying about the murder?”

  “I did.”

  “Did you deliberately hold anything back?”

  “No. I was trying to be as honest as I could. I didn’t want trouble.”

  Mike had found out Scanlon was in the holding cell at the courthouse and was going to see him over the lunch break. “Not a bad morning,” Mike said, as we separated. He gave me the discovery Laszlo and Willard had given us, for me to read over before the afternoon session. There was a DVD and transcript of the attorney general’s interview of Niedermeier, who, Willard said, had told them he had no memory of ever meeting Scanlon. And there were debriefing reports from Corker Bensinger and Scotty Maclendon. Progress was being made on some fronts, at least.

  I declined a lunch invitation from Dot Henley, pleading the need to work through the break. With a made-to-go ham and cheese sandwich and a horrible coffee from a minimart near the courthouse, I settled into a small conference room at the county law library to listen to the interview on my computer and check it against the transcript. There wasn’t that much to it: mostly Niedermeier protesting, in a slurred voice, that he just wanted everyone to leave him alone and he no longer remembered anything about Scanlon or the Henley case. I made markup copies of the rest of the discovery at the copy machine and ate my sandwich while reading and making notes.

  When I got back to the courtroom, Mike was in conversation with another man. “Commissioner Gettle, Janet Moodie,” he said, introducing us. Gettle seemed gentler and less dynamic than Donahue. Lean and a little stooped, he peered down at me through metal-framed glasses. “I’m glad to see Henley is getting a hearing,” he said. “It’s a case you don’t forget.” We went briefly over what I’d be asking him, and he said, “I gave my files to the appeal attorney, but I’m sure, as I stand here, that I never got any such letter. You know, we tried to call Sunderland as a witness, but the judge wouldn’t let him testify about what Scanlon told him about the AB. If we’d had that letter, you know we’d have tried to present it.”

  When Gettle took the stand, Judge Redd didn’t seem quite as impressed as he had been with Donahue. Even as a commissioner, it seemed, Gettle wasn’t one of the club.

  Gettle spoke briefly of how he had come into the case, appointed by Judge Redd to be Howard’s advisory counsel. “The judge called me the day Mr. Henley made his motion to represent himself. He said Mr. Henley had no legal background and was refusing to waive time, insisting on going to trial immediately, and he was sorely in need of advisory counsel. He asked me to come to court the next day, so he could make the assignment.”

  I asked why the judge had called on him.

  “I had been advisory counsel in another case before him not that long before, and I guess he thought I’d done a creditable job.” I saw the judge give a slight nod, as if agreeing.

  “Had you heard about Mr. Henley’s case before that?”

  “A little, but I’d been in trial in a case in Visalia for a while, so I was a little out of the loop on local events.”

  “Did you talk with Mr. Donahue about Mr. Henley’s case?”

  “I’m sure I did.” Laszlo’s objection that he was speculating was sustained.

  “Did you obtain Mr. Donahue’s files?”

  “I did.”

  “And did you read them?”

  “Oh, yes.”

  “And you were aware that Steve Scanlon claimed he had a letter from someone in the Aryan Brotherhood regarding the killing of Jared Lindahl?”

  “Yes.”

  “Was any such letter in the files you got from Mr. Donahue?”

  “No.”

  “A letter like that would have caught your attention, wouldn’t it?”

  “Absolutely. I was hoping it would turn up.”

  “Did you receive any discovery from the district attorney after you were assigned as Mr. Henley’s advisory counsel?”

  “I believe we did.”

  “Was that discovery given to you or Mr. Henley?”

  “I had arranged with the district attorney’s office to have it given to me. I then made copies and shared them with Mr. Henley.”

  “Why did you decide on that arrangement?”

  “Several reasons. I was concerned about Mr. Henley’s custody status and the danger that material related to his case might get into the wrong hands in the jail. Also, his mental condition was such that I was concerned about his ability to keep track of discovery he received.” Laszlo objected to Gettle’s statement about Howard’s mental condition as irrelevant and asked that it be stricken; Judge Redd denied his request.

  “The bottom line, though, was that the discovery was given to you, and not him, correct?”

  “Asked and answered,” Laszlo piped up. The judge, for once, ignored him.

  “Yes,” Gettle said.

  “Did the discovery you received include a copy of any letter to Scanlon?”

  “No.”

  “When Mr. Henley presented his case at trial, wasn’t he trying to show that Scanlon had confessed he had killed Jared Lindahl for the Aryan Brotherhood?”

  “Objection, leading,” Laszlo said. The judge overruled him.

  “Yes,” said Gettle.

  “The letter Scanlon claimed he had from an Aryan Brotherhood higher-up would have been useful evidence for his defense, right?”

  “Of course.”

  “So if he had obtained a copy of such a letter, you would expect him to try to present it as evidence, then?”

  “Definitely.”

  “As far as you knew, Mr. Henley didn’t have a copy of such a letter.”

  “True. I had no indication that he had.”

  Laszlo’s cross-examination began with asking Gettle pretty much what I had asked him, and getting the same answers. I made a few “asked and answered” objections, which were overruled, but I didn’t much care.

  Then Laszlo moved to a different topic. “You knew that Mr. Henley had been the subject of a hearing relating to his mental competence to stand trial?” he asked.

  “Of course,” Gettle answered. “He was found competent to stand trial and to represent himself.”

  “Was he cooperative with you in preparing his defense?”

  “He wasn’t required to be,” Gettle said. “He was representing himself; my role was only to give advice, which he was free to take or not.”

  Laszlo pressed on. “Did he cooperate with you?” I objected to the question, but the judge overruled me.

  “Not always,” Gettle replied, “but sometimes. He objected to my being appointed, but when the case came to the penalty phase, he asked the judge to appoint me as his lawyer. So there must have been times, at least, when he respected my advice.”

  “If he had a copy of the letter to Scanlon, would he necessarily have shared it
with you?”

  “I’d like to think so,” Gettle said. “He clearly wanted to present evidence of Scanlon’s confession and prove his actual motive. He tried very hard to do so at his trial. Had the letter been available, it’s hard to imagine that he would not have tried to introduce it.”

  Laszlo made a snide comment: “So you could at least imagine that he might not let you know if he had such a letter.” I objected to it as argumentative and asking the witness to speculate, but Laszlo sat down without waiting for the judge to rule. I didn’t feel any need for redirect examination, and Gettle, released from the stand, left the courtroom with what I thought was an encouraging glance in our direction.

  “Okay,” Mike whispered, as I settled into my chair.

  After Gettle’s testimony, Laszlo argued that we still hadn’t proved the letter hadn’t been given in discovery and that we would have to call Brian Morris, the lawyer who had represented Howard in his direct appeal, to testify that it wasn’t in the files he received from Gettle. Mike pointed out that among the exhibits to the habeas corpus petition filed by Gordon Marshall was a declaration under penalty of perjury from Morris stating that no letter fitting Scanlon’s description was in any files he’d received from Howard’s prior attorneys and investigators. Laszlo objected that the declaration was hearsay. Judge Redd, seemingly tired of the issue, agreed with Mike. “Mr. Morris is an officer of the court, and we have his declaration. This hearing seems to be becoming awfully long, and I don’t know what we would gain by bringing Mr. Morris here just to repeat what he has already said in a sworn statement.”

  Our last witness for the day was Christian Niedermeier. He appeared nervous and on edge; as the clerk gave him the oath, his eyes kept moving from one person in the courtroom to another, as if seeking someone he recognized.

  “Good afternoon, Mr. Niedermeier,” Mike said. “I understand you’re not very happy to be here.”

  He glanced quickly at Mike, as if startled to hear him speak. “No, I’m not,” he said, with a querulousness I associated with long-time alcoholics.

  “Your Honor,” Mike said to the judge, “Mr. Niedermeier asked me earlier if we could close the courtroom for his testimony. He has concerns for his safety. I gather he suffered some repercussions for his testimony at Mr. Scanlon’s trial.”