With these issues apparently settled, the defense began to battle over forensics. It urged the court to throw out all the evidence that had been gathered from Robinson’s rural property, including the two dead women, because Detective Dawn Layman had gone onto Robinson’s land and taken pictures in late March 2000 without a search warrant. The outcome of the motions regarding Layman’s activities was critical because the Kansas case rested on the bodies in the barrels.
The defense also wanted to toss out the evidence taken from Robinson’s rented mailbox, from his Dodge pickup, from his Olathe storage locker, and from his mobile home. They wanted to keep out information that investigators had gathered from talking with Nancy Robinson and her daughter Christy Shipps, months after Robinson’s arrest. His lawyers argued that the suspect’s relatives should only have been interrogated before formal charges were brought in a capital murder case. The defense also wanted to keep “gruesome photographs” out of the trial and to prevent any predeath pictures of the deceased being shown to the jury. The defense asked the state to provide them with all the records of the numerous e-mail addresses found on Robinson’s computer, many of which had S&M handles. They intended to suppress the sadomasochistic devices taken from the defendant’s farm, including duct tape, harnesses, and hoists. They wanted the evidence against their client severely limited, but they lost on virtually every one of these motions.
Finally, they argued that Johnson County district judge Larry McClain, who’d signed the search warrants in this case, was prejudiced toward the defendant because he’d been in the Olathe DA’s office when they’d prosecuted Robinson for fraud in the 1980s. Robinson’s Fourth Amendment right to protection from unreasonable search and seizure, the defense said, had been violated, and the evidence gathered from these warrants should be disregarded. On May 9, Judge Anderson ruled that because Detective Layman had not taken anything from Robinson’s property on March 30, 2000, but only snapped pictures of his property, she had not violated his rights.
The police had had probable cause to carry out these activities, so Layman did not commit “unlawful trespass.”
After more than one hundred motions had been filed and argued in court, Judge Anderson ruled that the evidence gathered against Robinson at every locale could be used at trial. Most of the legal matters seemed to be resolved, and in the spring of 2002, Robinson was finally scheduled to face his jurors in a few short months. He then filed another motion asking that he be allowed to see his family members in “contact visits,” something he hadn’t been able to do since his arrest more than two years earlier. Ever since then, his relatives had been able to come to the jail during visiting hours and speak to the defendant through a thick and transparent pane of glass, but they’d had no physical contact with him. He now wanted the judge to grant him this right. The prosecutors immediately tried to quash the request, arguing that the defendant had a history of fabricating evidence, and if given the chance, he might try something like that again. The judge sided with the DA’s office and no contact visits were allowed.
An uneasy quiet settled over the DA’s office as they waited for September. What other legal tactics might the defendant try to employ before late summer? Were any more delays possible? Whatever else they did, all the employees of the Lenexa Police Department and the DA’s office had been told and told again not to say anything to the media or anyone else that could jeopardize the start of the trial. The time to talk was when you took the witness stand.
Out in rural Johnson County, in the southern part of this jurisdiction that had not yet been overrun by new construction, the beauties of spring had come to the land. It was covered with freshly cut rows of hay and a delicately colored purple grass called henbit and liver-and-white longhorn cattle grazing in fenced pastures. Hawks flew overhead, landing on wooden posts and constantly searching the ground for prey. Fishermen unpacked their poles and tackle, which had been in storage over the long winter, then drove down to try their luck on the Marais des Cygnes River. When the summer had turned beastly hot in August and early September, and when the webworms had taken hold of the elms in Linn County, spinning their deadly white cocoons and choking the life out of the trees, John Robinson was at last going to trial for being a serial killer. The waiting was over—or was it?
XLI
As the summer waned and jury selection approached, the defense played their biggest strategic card in a year. By now, questionnaires had already been mailed out to the more than a thousand potential jurors in this case (the questionnaires held ninety-four inquiries, including one seeking their views on the death penalty). Stating that they were overwhelmed by the amount of evidence they had to digest and the number of witnesses they still needed to interview—not to mention the entangled computer issues the case had generated—Robinson’s lawyers asked for yet another delay. They had, after all, only been in charge of the case for the past several months and had never dealt with anything of this nature. Without more time to prepare, the attorneys wrote in their motion, they could not fulfill their “minimum constitutional obligation” to their defendant. This was not, they argued, just another murder trial or even just another capital murder trial.
“The state of Kansas,” they claimed, “has never seen a prosecution of this scale and magnitude.”
For months the district attorney’s office had been fearful of just this legal maneuver. In response to the defense request, Morrison and Sara Welch now filed their own papers on why the trial should go forward as scheduled. Judge Anderson had to decide if these circumstances were “extraordinary” or “catastrophic” enough to justify another postponement. Or were they just another example of Robinson trying to bend the legal system and everyone involved in it to his will? His lawyers didn’t think so.
Besides Berrigan and O’Brien, two other attorneys were now helping to represent Robinson: Jason Billam and Joseph Luby. These four men had in turn hired six legal interns and paralegals to catalog and analyze the evidentiary material, plus the thousands of photographs and hours of videotapes, audio tapes, and CD-ROMs. In asking for another postponement, the defense lawyers wrote that they had devoted 1,474 hours and their support staff an additional 2,812 hours to the case.
“Nevertheless,” they contended, “counsel’s best guess is that we have reviewed and absorbed less than 25 percent of the material that will be relevant to the trial of this case.”
They also claimed that the prosecutors had not provided them with the addresses and phone numbers for about 90 percent of the possible 649 state witnesses. Trial preparation, they wrote, would be just about complete by now if the DA’s office had given them “accurate, fully informative lists of witnesses,” so they could have interviewed these individuals in a timely manner. According to their position, that had not happened.
“Without such a list, preparation by September 16, 2002, is impossible,” their motion said.
This was the most serious challenge Judge Anderson had yet faced. Berrigan and O’Brien were highly competent and respected defense attorneys with excellent reputations throughout the Kansas City area. They were experts in capital cases, which was why the judge had appointed them to this one. If they made a request of this urgency and gravity, it had to be thoroughly considered. On the other side of the legal aisle, the Johnson County DA’s office had set aside about two months in the fall of 2002 to present their case. It had told witnesses to be ready to come to Olathe to deliver their testimony. Paul Morrison was in no mood to upset his plans or those of his coworkers. He was dealing with an accused serial killer whose life had been defined by the inability of anyone to set boundaries on his behavior. For almost four decades Robinson had done precisely what he’d wanted to do, and to an astonishing degree he’d gotten away with his activities. Now he was testing the boundaries of American jurisprudence and those who worked inside the Johnson County Courthouse. Now he would learn if he could control this game, as he’d controlled so many others, or was someone else in charge of the situatio
n?
On the afternoon of July 25, the judge listened to the lawyers argue for four hours, carefully weighing both points of view before deciding that the defense team had not been crippled by having had roughly a full year to prepare for the trial. The system had provided Robinson with every opportunity to examine the evidence and talk to potential witnesses. His attorneys were highly qualified and experienced. The case would go forward as scheduled—with no more delays foreseen.
On August 31, two weeks before the start of jury selection, the defense team took its boldest step to date: Robinson’s lawyers threatened to quit if the judge did not order another postponement. Claiming they could not adequately represent their client, they insisted that they “cannot and will not” be ready for a September 16 trial; unless they were given another eight months to prepare, they intended to walk. In their motion, Robinson’s attorneys stated that the court had been “insensitive and unresponsive” to their “earnest pleas” for more time. If they had to begin jury selection on September 16, this would present them with a terrible legal dilemma, “including whether it is moral to participate in a trial where counsel’s mere presence would only serve to sanitize the execution of John Robinson.”
They had not, they contended, had the opportunity to conduct independent tests of hair, fingerprints, and DNA evidence, which they believed included blood and hair that belonged to someone other than Robinson or those he’d allegedly killed. Finally, they indicated that the defendant might be showing signs of insanity, as he seemed not to have a “rational understanding of the evidence and charges against him.” They needed to explore the possibility of mental illness in Robinson, and this would take time as well. In early September, Dorothy Lewis, a professor of psychiatry at the New York University School of Medicine and a clinical professor at the Yale University Child Study Center, examined Robinson twice. Dr. Lewis had conducted evaluations of violent adults and juveniles since 1971, focusing on the interaction of psychiatric disorders, neurologic dysfunction, and environmental stressors as the cause of recurring violent behaviors. She was also the director of the Dissociative Disorders Clinic at Bellevue Hospital in New York City.
After speaking with Robinson and some members of his immediate family, she also reviewed the available information on his mental and medical history.
In a motion filed by the defense and written by Jason Billam and Joseph Luby, they said, “Dr. Lewis indicates that Mr. Robinson has a history of severe physical and emotional abuse throughout child hood, resulting in episodic dissociative states. History obtained independently of Mr. Robinson reflects that as many as four generations of family members may have suffered from such psychiatric illness similar to his. Dr. Lewis suspects that Mr. Robinson may suffer from bipolar mood disorder with dissociative features, although substantial additional testing and investigation is necessary to reach a final conclusion.”
Based on Dr. Lewis’s diagnosis, this motion said, “We have stumbled across several possible indicia of mental disease, including dissociation, emotional liability, and depression. Mr. Robinson lacks a rational understanding of the evidence and charges against him and has been unable to assist in his defense in any meaningful way. Medical records reflect that in 1987 Mr. Robinson suffered a stroke that left him temporarily disabled. MRI films made in connection with that stroke reveal abnormalities in the basal ganglia of Mr. Robinson’s brain.” (This diagnosis did not address the issue that Robinson was suspected of killing at least two, if not more, women prior to the stroke.)
Because of all these factors, Berrigan and O’Brien went even further in their August 31 motion for a continuance. They suggested that when they’d been appointed by the court to help the defendant’s inexperienced defense team, back in the summer of 2001, they’d been misled.
“Had we known at that time how events would subsequently unfold,” the attorneys said when asking for more preparation time, “the court would have received a firm, resolute and resounding NO! in response to its request.”
With this motion, the defense had thrown down a legal gauntlet. Fundamental questions of due process had been raised. Had the defendant been treated fairly or hadn’t he? Had the prosecutors acted appropriately toward the defense? Had Robinson’s lawyers had enough time to prepare their case? Or was this just a stalling tactic? No one knew how any of this would be resolved, and all of it was happening at several minutes past the eleventh hour. Witnesses were making plans to come to the Olathe courthouse and testify. Robinson may have been mentally impaired, as his defense implied, but he appeared to be using whatever brainpower he had to slow down the process that could end in his conviction and execution.
Perhaps buried inside his lawyers’ contention that the defense was not ready for jury selection was Robinson’s view of himself as a victim. He was the one being dealt with unfairly, after the state of Kansas had provided him with highly qualified death-penalty counsel for a year at no cost. He was the one who wasn’t ready for trial after another year had passed and the court had given him two more experienced lawyers to argue his case. He was the one who could not confront what lay ahead in the courtroom, where a procession of witnesses were going to take the stand, swear an oath to tell the truth, and lay out what Robinson had done over the past fifteen to twenty years. He was about to be exposed to the world and, more important, to twelve jurors.
On the afternoon of September 5, eleven days before jury selection would begin, Judge Anderson ruled that there would be no delay and ordered Robinson’s lawyers to stay put. The case had teetered on the brink of chaos, but now it rumbled forward once again.
“We will have our trial on September 16,” Judge Anderson said in his ruling, and he meant it.
Five days before the proceedings were to get under way at the Olathe courthouse, the defense lawyers filed yet another motion, stating that all of the roughly one thousand prospective jurors should be disqualified because they were already prejudiced against their client. The judge should recognize this and start the process over, sending out another thousand questionnaires to another thousand people. Months earlier, Judge Anderson had ruled against shifting the venue of the trial, even though it had generated enormous local publicity. He wasn’t a man who lightly changed his rulings. On September 12, he patiently listened to the defense argument before making his final decision. The trial was set to begin and nothing was going to stop it. This coming Monday morning, the first one hundred or so of the potential jurors would be questioned by both sides, so everyone had better be prepared.
On September 16, nearly 850 days after Robinson’s arrest, jury selection commenced. The largest criminal investigation in Johnson County history was about to be used in the biggest criminal prosecution ever undertaken in Kansas. Never before had one thousand jurors been called for prospective duty. Never before had Olathe—or the state—seen anything of this legal magnitude.
“The extraordinary allegations in this case,” wrote the defense lawyers in one of their motions, “are unprecedented in Kansas history in the nature of the charges, the technical nature of the evidence, the span of time covered in the allegations, the extent of media coverage, and the volume of evidence generated by multiple federal, state and local jurisdictions that committed massive and unprecedented resources in the investigation of this case.”
The prosecutors had quietly waited for this moment for more than twenty-seven months.
Barrels of Evidence
XLII
It had been one of the hottest and driest Kansas summers on record. By late September crops stood burnt in the fields, trees were dying alongside the roads, and cattle had been sent to market early for lack of food to fatten them up. Temperatures were still crowding a hundred degrees each day and the drought had broken open crevices in the earth. No relief was forecast. One morning, as prospective jurors rode to the Olathe courthouse for questioning, they could have tuned in a story on National Public Radio stating that in 2000 one in five Americans between the ages of twelve and sev
enteen had had a bad sexual encounter on the Internet. There were estimates that as many as fifty thousand people logged on to the Net on any given day looking to make illicit contact with a child or trying to sell pornographic images of youngsters.
After the potential jurors entered Judge Anderson’s courtroom, they were questioned rigorously by both sides and told what to expect if they were selected. They heard about sadomasochism and other sexual games being played both on-line and off. They were asked if they could listen impartially to testimony about graphic sex and violence. Some said they could not and were dismissed. A few hinted that doing this might make them sick, but they were willing to try.
Jury selection was supposed to take five days. Those five stretched into ten and then into fifteen. The trial would have been daunting enough for most jurors if it had only centered on S&M, but the two capital charges made it much more demanding. Many prospective jurors were uncomfortable with having to decide life or death questions. Some could not put aside their feelings about this issue, and they were sent home. Over those fifteen days, nearly five hundred men and women were brought into the courtroom in small groups, but less than one out of three people made the first cut. Later on, several expressed great relief that they had not had to serve on this jury.
During the selection process, Patrick Berrigan, a big-shouldered Irishman with a mass of brown hair and a friendly gleam in his eye, showed himself to be intelligent and charming. He bantered easily with everyone and seemed humbled by the task in front of him. He moved gracefully through a near impossible job. It would have been hard to imagine Robinson ending up with better counsel. On the other side of the courtroom, Paul Morrison and Sara Welch were all business and seemed to embody inexhaustible determination and patience. They stared out from their table with the absolute focus of soldiers fighting in a trench. They’d come this far and nothing would deter them now. Morrison had hoped to call his first witness on September 23 and then September 30, but both schedules were pushed back. Finally, on Friday, October 4, twelve jurors (seven women and five men, all of them white) and five alternates were chosen.
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