Irving Kanarek then read Mrs. Bobbick’s statement to district attorney’s investigators to prove that Mrs. Bobbick had taken a not-guilty position: “ ‘Well they forced me,’” read Kanarek verbatim. “ ‘I finally just gave up. I collapsed. My nerves just gave up. I just collapsed. I couldn’t take it anymore. That’s what’s wrong with something like that. They should be in a glass cage where they cannot … where they cannot, uh, uh, terrorize … and terrorize is the word … uh, a person because when they all shout, if you had twelve people here and you were the odd twelfth one, eleven shouting men, and you were you, you’re a woman, you just couldn’t take it. This is terrible, this is like you’re being bombarded in your ears and your nerves and you’re not …’ And then there are asterisks which according to the legend on the first page would indicate that to the transcriber it is unintelligible, your Honor.”
“I would like to be excused, I have to go,” said Mrs. Bobbick, but the judge smiled kindly and motioned her to remain seated.
Kanarek read further into the transcribed material: “ ‘In other words I was treated like I was some kind of a nut. At first it was my request, you know. That’s how it got started about the jury instructions.’
“ ‘Hadn’t you read them before you went in?’
“ ‘Oh, my, yes, at gun fire speed. I’m not a lawyer, you know. After all, sure, at gun fire speed, machine gun fire, really. Well, who can retain that? Sure, I retain a lot, but I can’t retain … I don’t have a photogenic mind.’ ”
“Your Honor, I must get my husband to the doctor,” cried Mrs. Bobbick, interrupting the reading of Kanarek.
“The sole question the court has to determine is whether or not the court properly or improperly excused her as a juror,” said the judge, “by reason of the two requests that were made and the testimony that was submitted to the court by way of Dr. Crahan.”
The next transcribed statement of the woman read by Kanarek was on a broader topic: “ ‘Well, when they pick the jurors they don’t pick it from the experts in law. They try to pick average people. Taxpayers, responsible people. That’s all I consider myself. Now, I may be wrong but I think maybe I’m going to write the legislature and ask them to please change so that the jurors, because there are twelve, they can really use the majority rule. I think perhaps that would be the best solution. I really do think so. I’ve been thinking about this for a long time, ever since they all scooped down on me, and I seem to be the oddball, see? It seems to me that on ten to two or nine to three, like it is in civil or something … That’s what I think.’ ”
“And that,” said Schulman later, “from the lips of that poor woman was the sanest thing I heard all day from anyone.”
“I am exhausted,” said Mrs. Bobbick when Kanarek stopped reading. “I don’t know what I’m doing. I should invoke the fifth amendment or something for my own protection.”
Other of her fellow jurors were called that day by Kanarek.
“She was jumping up and down,” said one witness, “throwing her arms around, screaming at us, using rather unpleasant language. She didn’t have very complimentary things to say about all of us and just was in a very unpleasant physical and emotional state, I would say.”
“All right,” said Kanarek. “She was at odds with the other eleven on the jury, was she not?”
“We couldn’t tell! She never would tell us,” said the witness.
“Didn’t she request at one time the instructions, or that the formal charges be read?”
“Yes she did. She had forgotten what the charges were.”
After lunch that day, Mrs. Bobbick was recalled to the stand. “I invoke the fifth amendment. I cannot go on … my husband … in order to protect my health.”
“You now don’t recall anything that occurred in the jury room?” asked Miss McDonald for Gregory Powell.
“I have a migraine headache, and I don’t remember. I can’t recall. I can’t go into that.”
“Your Honor, may I object that the conclusion of this witness be stricken?” said Kanarek.
“You may object,” said the judge. “Overruled!”
“She said ‘migraine.’ ”
“She can testify whether she has a headache or not,” said the judge who looked as though he were getting a headache.
“She said ‘migraine.’ ”
“Objection sustained as to the migraine,” said the judge, sighing in surrender. Then he added: “I was wondering what the attitude of defense counsel would be if, with the background such as was presented to us here through the testimony of Dr. Crahan and Mrs. Bobbick’s appearance here in court, what would be the defense counsel’s thinking if the juror had remained as a trial juror in this case and had participated in a verdict of murder in the first degree? That is something for counsel to think about. I am not asking for any reply to it. Proceed to the next question.”
Irving Kanarek recalled the defense psychiatrist and asked a question in what Schulman would call his inimitable style:
“Directing your attention to the fact that in the August 30th, 1963, proceeding there is a conversation between the court and Mrs. Bobbick, and the fact that in Dr. Crahan’s testimony he makes the statement that the judge told him about some incident in connection with a rattle-snake, and the fact that the only time that the court has talked to Mrs. Bobbick is in the August 30th, 1963, transcript, at which time there is no mention whatsoever of a rattlesnake, and the fact that Dr. Crahan used this information which he says he obtained from the judge, who had no contact with Mrs. Bobbick except in the August 30th, 1963, hearing, do you have an opinion as to the adequacy of such a statement by Dr. Crahan in connection with his analysis?”
“Objected to as immaterial,” said Schulman, staring in disbelief.
“What a classic question that is!” said the judge. “Objection sustained.”
Then the jury foreman testified. “She wouldn’t cast a ballot,” he said. “She would have a nervous tantrum and demand that we all remain silent and give her time to gather her thoughts and we should keep quiet for two or three hours at a time. We couldn’t talk, we couldn’t deliberate because it would offend her.”
“Was there profanity used in the jury room?” asked Kanarek.
“I would say normal profanity.”
“What is that?”
“ ‘Hell,’ ‘damn,’ ‘goddamn.’ ”
“ ‘Stupid jerk’?”
“That’s just an assertion …”
“Did you use the language ‘stupid jerk’?” asked Kanarek.
“It’s possible I may have used it.”
“Who did you direct that language at?”
“I don’t think I directed it at any individual any more than anything else.”
“Did you call yourself a stupid jerk?”
“I very likely did for ever getting into this thing in the beginning,” said the witness.
The juror was then asked to define Mrs. Bobbick’s alleged hysteria.
“Well it’s awfully hard to describe. When a person jumps up and screams and starts tearing their hair out and telling you she can’t stand it and grabbing her head and nobody had even said anything to her. I would say she is hysterical,” said the jury foreman.
The Bobbick affair used up four volumes of transcript. Marshall Schulman finally said to the court, “I don’t think anybody can stop Mr. Kanarek from saying anything that comes to his mind. I am going to ask your Honor to find this counsel in contempt. He repeatedly disobeys the direct orders of the court.”
“Mr. Kanarek is not doing this intentionally,” said Judge Brandler.
“I think he is doing it intentionally!” said Schulman.
“I’m satisfied he is not doing anything intentionally,” said the judge wearily. “It is just that he persists, and apparently he just cannot understand the court’s ruling!”
“What are you going to do, your Honor?” asked Schulman. “Here you have this bulldog going forward in spite of the objections thrown in
his face. He understands the ruling of the court and he just proceeds in spite of them. I don’t know where he will be stopped!”
“Mr. Kanarek,” said the judge patiently, “you asked the identical question to which the court just sustained an objection except maybe the words are in a little different order or a little different inflection.”
Irving Kanarek, almost hidden behind boxes of law books he had placed on the counsel table in front of him, just blinked and paused for a brief moment then shook himself into action and proceeded with a new citation from a book in hand.
“Here, for instance, your Honor, is a case …”
“I don’t want any further discussion about them, Mr. Kanarek! I can read, and I will analyze them!”
“I know that, your Honor, but if you would bear with me for a moment, please. For instance, there’s a case, People versus Chesser, 29 Cal 2d 815.”
“Mr. Kanarek, you need some help there again with your volumes,” said the exasperated judge. “What I suggest you do, why don’t you put them in some order so they won’t be one on top of another? Then you will be able to find your cases.”
“I invite your Honor’s attention to … I refer your Honor to the case of Moore versus Michigan, which is a United States Supreme Court case. Would your Honor care to take this citation?”
“Yes,” said the judge sadly, as Schulman fiddled with his necktie and hitched up his pants.
“Did I mention the Modesto case?”
“Yes, Mr. Kanarek. Yes.”
During the days of new trial argument, Irving Kanarek was permitted to make motions which the prosecutor would rage about when back at his office at day’s end.
“Your Honor, these five witnesses would testify,” said Kanarek, “that during this motion for a new trial they were taken to an anteroom and the female deputy required these female witnesses to lift their dresses, lift their slips, if any, until the most intimate items of apparel, their underpants, were visible to the female deputy, and whatever other intimate items of apparel were present, and that she conducted this search of them before they were allowed to enter the courtroom in connection with the allegedly public proceeding!”
After seven days Judge Brandler finally ended it. Before imposing sentence, the judge read a written plea from defendant Smith in his own hand.
I have never had a profound fear of death, but to end one’s life in such a grim, ghastly, and unjustified way frightens me. I am hoping that there is some humane element within your spirit that enables you to understand and have compassion on a dying man whose life you can save. I hope and pray that you are an instrument of God’s everlasting compassion and save my life for me. Do I deserve to die?
With humility and humanliness, Jimmy Smith
On November 13, 1963, Judge Brandler answered him:
“Sadistically, Gregory Ulas Powell led Officer Campbell to believe that his life would be spared up to the very moment that he took deliberate aim and cold bloodedly executed Officer Campbell by firing one shot into the officer’s mouth. While Officer Campbell, unconscious but writhing on the ground, was in the throes of death, Jimmy Lee Smith, standing over the body of Officer Campbell, with revolting, inhuman savagery, pumped four additional fatal shots into the prostrate officer.
“Then these two defendants continued their barbarous attack by stalking the fleeing Officer Hettinger, who miraculously escaped from being likewise cruelly executed by these defendants.
“The evidence in this case overwhelmingly justified the death verdict by the jury. It is the order of the court that you shall suffer the death penalty and that said penalty be inflicted within the walls of the State Penitentiary of San Quentin, California, in the manner and means prescribed by law at a time to be fixed by this court in the warrant of execution.”
TWELVE
They were driven to San Quentin in a black and white station wagon with three armed deputies in the front. A car with two armed deputies drove ahead and another car followed.
When they arrived, they learned that the prison authorities were installing new cells upstairs of North Block where Condemned Row was located. For many years the row contained only thirty-three cells, but now that was not nearly enough. The back of the row had another line of cells called “the shelf,” used for punishment for cons from the mainline. The new arrivals were being housed in the Adjustment Center, which was at that time the mainline segregation unit.
Jimmy and Greg arrived on Tuesday, and Jimmy spent the night going over legal documents. He was determined to become a better jailhouse lawyer than Gregory Powell. On Wednesday a riot broke out in the segregation unit.
“Jumpin fuckin Jesus,” shouted Jimmy Smith that day to Gregory Powell. “I can’t get away from maniacs like you no matter where I go!”
The cons tore up the cells and created havoc for two days. Jimmy Smith and Gregory Powell did not take part, and on the second day when it was quelled and the tear gas was still lingering in the corridors stinging their eyes, Jimmy yelled, “Hey Powell, that gas ain’t nothin compared to what you’re gonna feel when they strap you in that chair upstairs!”
The two ex-partners were enormously popular in the segregation unit. After all, they had earned headlines with the murder of Ian Campbell. Jimmy found himself basking in the limelight. What he hated was that Powell was getting half the attention. So Jimmy began to show other cons his copy of Gregory Powell’s first statement to the Kern County Sheriff’s Office.
“Think he’s a big man?” Jimmy would say indignantly to any con who cared to read it. “Look at this and see what a snivelin rat he really is. Look how he rolled over me, and I was his partner! Look how he snitched me off!”
Jimmy discovered that cons on the third floor took care of the less fortunate ones downstairs in the strip cells. Those in Jimmy’s unit had three meals a day and earphones to listen to the radio while the ones below had half rations with only a mattress and blanket for comfort. The building was new and modern and had many small windows set into the bars for light, and on his first night Jimmy watched a con tie a bar of soap to a rope made from torn sheets, and toss it some twelve feet up to a window, breaking the pane. The con then sat on the toilet with his pillow beneath him, completely covering the opening. When he raised up it created a suction which drew all the water down. The water gone, the con then could put his head in the toilet and call down to his friend below through the toilet telephone to tell him a package was en-route.
The con below would break one of the small windows in the same fashion and would eventually receive a package of food or cigarettes tied to a string from above. He would have to entangle that dangling prize with his own string tied to a comb flung out the window. It was a tedious maddening process and sometimes took a hundred tosses, but determination usually prevailed.
Greg was having difficulty adjusting to prison life. A guard made the following entry in his record:
January 21, 1964: Powell threw food at Jimmy Smith and Smith subsequently stated he would like to beat Powell half to death.
January 22, 1964: Powell found guilty of refusing to shave in violation of Prison Rule D 1202 concerning obeying orders. Sentenced to isolation pending transfer to Death Row.
January 28, 1964: Powell does not get along very well with other inmates, therefore does not go for exercise. Will throw a tantrum if he does not get his way.
Death Row! It was impossible. Of course, Jimmy had, like all small time criminals, enhanced his ego in a thousand back alley bull sessions by saying, “I’ll probably end up there someday.” But like all small time criminals he didn’t mean it. Nothing could have been farther from his mind.
Now after his time in the San Quentin Adjustment Center, he was being taken across the yard blinking in the harsh sunlight, toward building number eight, which housed the row itself.
In Jimmy’s earlier term in San Quentin he had heard the bulls shout certain words in reference to other condemned men, like Caryl Chessman. The bull was leading him thro
ugh the throngs of curious cons, and Jimmy felt a surge of excitement and dread. He was the big man and the other cons dropped their eyes when he looked at them. At first it was incredibly thrilling, but then the third time the bull had to say it, Jimmy’s throat tightened and the blood rushed to his face and he began to tremble.
“Get back!” the guard commanded. “Dead man comin through!”
Jimmy Smith had spent the nights in the Adjustment Center thinking of death, and he had vowed that for the first time in his life he would act with courage when it came. Who knows, it might at last be the most pleasurable experience of his miserable life. Who could say it wasn’t? One thing for certain, Powell would accept it like a hero, of that Jimmy had no doubt. Powell would give his life in a minute to make himself a big man in the eyes of the other cons. Jimmy wondered how Powell had liked the walk across the yard to the row. But he knew the answer to that. It would be the high point of Powell’s life.
One thing Jimmy vowed, if they killed him first, if he went before Powell, he would go like a man. He would burn in hell before letting that bastard show him up.
When the new arrivals were brought into the row itself Jimmy had abandoned his fantasy of beating Powell to death. Jimmy decided the best revenge would be to watch him endure the misery that was sure to come.
Four guards escorted Jimmy and a chubby con named Willie to the row that day.
“Next stop, the penthouse,” said one guard as the elevator took them up. Then Jimmy found himself facing a huge steel door with a thick glass window about eight inches square. One of the escorts pressed a button and unlocked the door from the inside. Jimmy was to learn that the inside guard had the key taken away from him at night, locking him in with the cons.
Next came the stripping, and the inevitable: “Okay, bend over and spread em out.” Then came the issue of blue dungarees. No one ever left or returned to the row with the same clothing on his back. At last, Jimmy got his first glimpse of the cells and the bars and steel mesh surrounding them. It was quiet and he heard only the occasional click as one of the condemned men changed TV channels with his remote button.
The Onion Field Page 36