The subject bullets, he said, were consistent with the test-fired bullets in every respect; there was no dissimilarity that would preclude their having been fired from the same gun. Farther than that he would not go. He declined to indicate how unlikely it was to find two sets of bullets fired from different guns that matched so closely, beyond saying that he had never personally seen such a close match in bullets not fired from the same gun. And, citing forensic best practices, he would not go so far as to opine that the bullets from Lindahl had been fired from the recovered gun to the exclusion of any other.
Having read trial transcripts in which firearms examiners had no problem with opining “with reasonable scientific certainty” that a bullet had been fired by a particular gun, I wasn’t impressed with his caution when it came to calling a match for the defense. On the other hand, it left Laszlo with nothing to object to and little to cross-examine about.
Matt Boyarsky had driven up from Los Angeles to testify in the afternoon, and when we broke for lunch, he was waiting for us in the hall. He was a fit-looking man in his mid-fifties, with salt-and-pepper hair, square tortoiseshell glasses, and a pair of lines on his forehead over his nose that suggested years of poring over hard-to-read letters. And an attractive man—I noticed the wedding ring on his finger and gave a small inward sigh.
We discussed his testimony over lunch at the Chinese buffet, which had become our lunchtime spot for chatting with witnesses. Boyarsky had brought a copy of the letter from his database and the notes that had accompanied his first review of it. “The detective’s name was Springer,” he said. “With the Wheaton PD.” (I liked his voice, too. Damn.) His news was what we’d suspected, but I saw Mike’s eyes narrow.
In court that afternoon, Willard and Laszlo looked a little uncomfortable as Mike called Boyarsky to the stand. As Mike questioned him, I felt a subtle change in his tone and manner, a heightened intensity. Remembering Laszlo’s many objections, Mike took Boyarsky through his qualifications in great detail: his military career as a trained cryptographer, his long experience studying and decoding the missives of street and prison gangs, the articles he’d written, the classes he’d taught to law enforcement and correctional officers. Laszlo objected anyway, but Judge Redd—who’d certainly qualified many a police officer as a gang expert based on little more than a three-day training class—overruled him.
Boyarsky then went through what was legible of the letter and explained, as he had to me, the manner in which inmates conceal meaningful statements in letters by changes of character and tense and the use of a word to mean something else. He explained the language in the same way he had to me over the phone. When he started to say that the reference to martial arts might be a suggestion about how to go about killing the victim, Laszlo objected to the last sentence as speculation; and the judge sustained the objection. “This letter conveys a message—‘What are you doing out there, and why isn’t the job done?’—with a threat of consequences.”
Then Mike asked Boyarsky, “Have you seen this letter before?”
“Yes,” he said.
“When?”
“In 1999.” I saw the judge turn his head at that.
“Can you explain the circumstances under which you previously saw it?”
“A Detective Springer, of the Wheaton Police Department, called me and asked me if I would review it and let him know whether it contained a coded message. He sent me a copy by Federal Express, and I examined it and told him pretty much what I’ve told you today about what I saw as its meaning.”
“Did you hear from him again?”
“No. I sent him an invoice and, if I recall, eventually received a check from the city for the consult, but that was all.”
“How is it that you know this is the letter Detective Springer sent you?”
“Well, I keep a database of coded communications for purposes of my research. I included a copy of that letter in it. When I received the copy you sent, it rang a bell; I knew I’d seen something very similar before. So I consulted my database and found the earlier one, with my notes of where it came from.”
Laszlo spent his cross-examination sowing doubt about Boyarsky’s ability to read what he had into the bland and often illegible phrases of the letter, questioning how he could tell, except by rank speculation, that the letter said anything beyond what it said on the surface. Boyarsky referred again to his experience studying coded communications and deciphering them, and pointed out that I’d told him that Scanlon had said this was the only communication he’d had received from McGaw since leaving prison.
“In light of that, his question whether Scanlon was still working stands out, because there’s nothing in the context that suggests he would have known Scanlon had a job. Also, McGaw wasn’t actually in a position to know that Scanlon had spent time with his family over Christmas. Of course, in addition to the sort of ‘nice family you’ve got there’ kind of threat, he may have been warning Scanlon that the AB had people on the outside watching him. It’s also a significant fact that Scanlon himself immediately understood the letter for what it was.”
After Boyarsky was excused, Laszlo asked the judge for permission to recall Springer the next morning as a rebuttal witness. The judge granted his request, adding, “I’d like to hear from him.”
Mike had been working on his closing argument for a week, and that evening I helped him make some final tweaks, listened to him recite it, and pronounced it good.
* * *
When we arrived in court the next morning, Springer was there, and Sandra Blaine was with him.
The case was called, and Laszlo called Springer to the stand.
“Detective Springer,” the judge said.
“Your Honor.”
Willard asked him if he remembered consulting an expert about the McGaw letter.
“I do not. It’s been almost twenty years since the Lindahl murder, and I’ve worked on a lot of cases since then.”
He’d heard about the inmates who had testified at the habeas hearing that Scanlon was an Aryan Brotherhood associate and had been ordered to kill Lindahl. “I don’t tend to believe them. They’re a gang of violent criminals, and they have their own agendas. Besides, even if Scanlon wasn’t lying about the AB, in my mind it never ruled out that he took money and drugs from Henley, too.”
Willard summarized what Boyarsky had said about the meaning of the letter. Springer was dismissive. “I don’t see how you can read that much into it,” he said. “And besides, it doesn’t add anything; Scanlon already said the AB was involved.”
“Even if the letter was evidence that the Aryan Brotherhood wanted Scanlon to kill Lindahl, would you have considered it exculpatory evidence?” Willard asked.
“No,” Springer said. “We had enough evidence from witnesses that Henley wanted Lindahl killed and hired Scanlon with the proceeds of his drug dealing. Henley was guilty whether or not the Aryan Brotherhood also wanted the man dead.”
On cross, Mike got Springer to admit that he wasn’t disputing Boyarsky’s testimony that the consult had taken place or that he had received information from Boyarsky that the letter did at least appear to be what Scanlon had told Sunderland it was.
“I just don’t remember any of it,” he said.
“Then you don’t remember whether you thought the letter might be exculpatory?”
“No. But I can’t imagine that I did.”
“And you don’t recall whether you gave the letter to Ms. Blaine?”
“True.”
“Or whether you discussed your consult with Mr. Boyarsky with her?”
“No.”
“Do you remember why you thought the letter was worth asking an expert about?”
“I do not.”
During the brief recess that followed, I said to Mike, “Well, that was pretty bald-faced.”
Mike nodded. “I just wanted to ask him, ‘You know you’re lying, don’t you?’ I almost wish I had.”
Sandra Blaine wanted to te
stify again, Willard said when we reconvened. Mike pointed out that she had already testified that she had not seen the letter or been aware that it had been recovered until last fall, and asked for an offer of proof of what she intended to say now. Willard said, “She wants to be clear that Springer did not talk with her about the letter or his consultation with Mr. Boyarsky. She is anxious to clear her name in all this.”
“She’s already denied ever seeing the letter,” Mike objected. “I don’t see what having her say the same thing again would accomplish at this point.”
Judge Redd agreed. “I have heard from Ms. Blaine previously. I don’t think further testimony about her unawareness of the letter would add to the evidence already presented. There has been a lot of testimony presented here, and some of it has been pretty repetitive. Unless Ms. Blaine has something new to say, I’m sustaining the objection.”
And so it was over, except for the final arguments. The exhibits marked for identification were offered and accepted into evidence with remarkably few objections from Laszlo, and Mike began his argument, summarizing the evidence Henley had presented, both in the pleadings in his habeas corpus case and at the hearing, and explaining why the evidence of his innocence and of the concealment of exculpatory evidence by the prosecution required that he be granted a new trial.
I could tell Mike was still angry about the cover-up as he went through the evidence of Howard’s innocence that was known before his trial—but he channeled his feelings into an effective speech. “We have heard that Steve Scanlon confessed repeatedly to committing the murder of Lindahl for the Aryan Brotherhood. He told at least two people that Henley had nothing to do with it. He said he had a letter from an AB shot-caller that confirmed his assignment—the same letter had already been found and given to the police and apparently the district attorney, and its meaning as a warning and reminder to Scanlon was affirmed by an expert. None of this was presented to the jury at Howard Henley’s trial.
“And new evidence has come to light, which we have heard in this court. Several former members of the Aryan Brotherhood have confirmed that Lindahl was greenlighted by the gang, and that Scanlon was assigned to kill him. Dwayne Forbush has testified that he sold a gun to Steve Scanlon and did not sell one to Howard, contradicting Freddy Gomez’s pretrial statements that he directed Howard to Indio when Howard asked where he could buy a gun, and that he’d seen Howard hand a revolver to Scanlon. The gun itself has been found and matched to the bullets that killed Lindahl. DNA testing found Scanlon’s profile on the gun, but not Howard’s. There is, at this point, a mountain of evidence that Howard Henley did not solicit the murder of Jared Lindahl; and all the government has are unreliable and refuted statements of an informant looking for a deal. The government’s misconduct in this case was egregious; it has left a man who is almost certainly innocent on death row for eighteen years. That and the sheer amount of exculpatory evidence not only warrants, but requires, that Howard Henley be given a new trial,” Mike ended, his eyes flashing in anger.
Willard summed up for the prosecution, pointing out the evidence that showed Henley had hired Scanlon, how much of the evidence in Henley’s favor had in fact been known before his trial, the time that had passed, and the lack of credibility of the inmate witnesses, including Scanlon, who had testified at the hearing. The new evidence, he said, was merely cumulative; it confirmed Scanlon’s confession that he had killed Lindahl and that the killing had an Aryan Brotherhood connection, but it did not preclude the possibility that Scanlon had taken money or drugs from Henley to do the same hit.
Mike summed up with a brief, intense rebuttal, pointing out that Forbush’s testimony and the DNA testing showed that Freddy Gomez had lied about Howard buying a gun from Forbush and giving it to Scanlon and made it that much more likely that Gomez had lied in his further statement that Henley had paid Scanlon to do the killing. “Howard Henley has been on death row for eighteen years,” he reminded the judge, “while evidence that could have freed him was ignored or deliberately concealed from his defense.”
The arguments complete, the judge pronounced the matter submitted, and we thanked him and stood as he rose from the bench and left the courtroom.
“Ite, missa est,” Mike said under his breath, as we turned to leave. The smart-ass reply I thought of making stuck in my throat.
45
We were all tired. After goodbyes in the hallway to Dot and Lillian and reassurances that we thought it had gone pretty well in the end, Mike and I both went straight home without lingering in Wheaton.
Defense attorneys tend to get the blame for the slow progress of death-penalty cases, but the judicial system moves at its own pace. After the hearing, Mike and I, and the attorneys general, filed post-hearing briefs arguing what the proven facts were and how the law applied to them. Mike and I argued, of course, that the evidence required the granting of a new trial, and Willard and Laszlo disagreed. Then we waited.
I went back to my routine of work and calls from Howard and other clients, current and former, exercise classes, gardening, and occasional musical evenings at Vlad’s and trips with Harriet to nurseries and garden club meetings. Once, I had to travel to San Francisco for an oral argument and stayed an extra night to make welfare calls on Howard, Walt Klum and Arturo Villegas at San Quentin. But mostly I stayed near home, and I wanted nothing else. The judge’s report would happen when it happened, and aside from occasional stabs of anxiety, I surprised myself by how philosophical I felt about it.
But Mike’s call, when it came, brought with it a jolt of panic. “Is it the report?” I asked him in a faint voice.
“Yes and no,” he said. “I just got a phone call from Josh Schaeffer, the kid at the Gazette. Judge Redd is recommending that Henley get a new trial. Josh isn’t a lawyer, needless to say, so he didn’t follow the reasoning that well, but he was reading bits and pieces of the report to me over the phone. He’s scanning the report to email it to me; I’ll forward it to you. I guess it’ll be a couple of days before we get it in the mail.”
“Oh my God,” was about all I could say, as I slumped back in my chair. “We actually won?”
“Yeah,” Mike said, and I could hear the relief in his voice. “I don’t know if I could have taken losing this one.”
I read the report as soon as Mike emailed it. Judge Redd had outdone himself; his conversion from the trial judge who had no doubt of Howard’s guilt to a fact finder convinced that a terrible wrong had been done to a possibly innocent man was hardly short of miraculous.
He began with the facts of the murder and the evidence found in the initial investigation, noting that Scanlon had confessed to the murder and spoken of the Aryan Brotherhood’s involvement days after it happened, and that he had never varied from that account. He wrote that at the time of his trial Howard, though obviously mentally ill, had the right to fire his attorney and go it alone because the United States Supreme Court had held that anyone mentally competent to stand trial at all could not be denied his constitutional right to represent himself. He defended his rulings at Howard’s trial, excluding the testimony of Sunderland and Niedermeier, on the grounds on which the state Supreme Court had upheld them: that Howard had failed to lay an adequate foundation for their admission and that the part of Scanlon’s statements to the two men implicating the Aryan Brotherhood was not admissible evidence under any exception to the hearsay rule.
His recommendation that the state Supreme Court grant Howard a new trial was based on two findings. The first was that the letter from McGaw was, as it turned out, known to, and in the possession of, Detective Springer before Howard’s trial. While Springer might have been justified in believing, just from the text of the letter, that it was not relevant to Howard’s case, he had more than that: Scanlon’s statement that the letter was a directive from the Aryan Brotherhood, his own confirmation that McGaw was an AB associate, and the opinion of his expert, Matt Boyarsky. At that point, the judge said, the prosecution had an obligation to tur
n the letter, and the information they had obtained about it, over to Howard and his advisory counsel. The question whether Sandra Blaine knew of its existence did not need to be answered, because the prosecution’s obligation to turn over exculpatory evidence applied to law enforcement agencies as well as the district attorney.
The judge found that Dwayne Forbush’s testimonial evidence was not available at the time of Howard’s trial, because Forbush, awaiting his own trial, would have exercised his Fifth Amendment privilege not to testify at Howard’s.
Scanlon’s testimony and that of the other inmates about the Aryan Brotherhood and the Lindahl killing also fell into the category of newly available evidence, since all of them were active AB members and associates at the time of Howard’s trial, and it was very unlikely that any of them would have testified to what they said at the hearing. So was the evidence of the gun, including the firearms comparison and DNA testing, because Forbush would not have revealed the existence and location of the gun before Howard’s trial.
The standard for ordering a new trial based on newly discovered evidence of innocence is a difficult one to meet: the evidence has to be credible and material and of such force and value that it would have more than likely changed the outcome of the trial. It was difficult, given the way in which Henley had conducted his defense, to assess what might have changed the outcome. However, the judge doubted that either the newly available testimony or the physical evidence alone would have been sufficient. But the sum total of all of it, combined with the evidence of the letter known before trial and concealed, met the burden, in his view. His conclusion was that a new trial was warranted, both because of misconduct by the police before Howard’s trial and new evidence discovered afterward.
Ed was in the Napa Valley making cabinetry for a winery, but I invited Harriet and Bill to join me for drinks and dinner at Vlad’s that evening. The place was busy—tourist season was starting, and a local old-time group was playing—but we found a table and drank pints of IPA and porter and ate our fill of garlic fries, mini-tacos, and small plates of mac and cheese, tapping our feet to the music. Somewhere after the second pint I decided that someday I wanted to learn to play mandolin and got sentimental when the band played an old Scots fiddle tune. In the end, Bill, who had stayed pretty sober, drove us home in my car, with Harriet and me laughing in the back seat and promising to pick up his truck for him first thing in the morning. “Oh, you’ll be sorry you said that,” he said, “when the two of you wake up tomorrow.”
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