"Let me inform the court," said Schulman angrily, "that it is my information that Mr. Kanarek has subpoenaed Mrs. Bobbick to appear on the thirty-first of October on behalf of the defendants. He has also subpoenaed a number of jurors who participated in this trial!"
And on that day a psychiatrist defense witness was called to testify to his opinions regarding an interview someone conducted with Mrs. Bobbick, the defense hoping to show that Mrs. Bobbick was not emotionally disturbed and was excused without proper cause. Since the doctor had not examined the juror personally, his opinion was not allowed by the judge.
Kanarek once again battled through his syntax to frame admissible questions:
"Now what we are asking is, and based upon this record, we are asking, in view of all the circumstances of what happened and the lack of opportunity for independent medical examination of Mrs. Bobbick, and again we have a capital type of case which the United States Supreme Court has always given . . ."
"Mr. Kanarek," said the judge, "you repeated it so many times, the court is well aware of the fact it is a capital case."
"I'm sorry, your Honor," Kanarek apologized. "But in any event, all that we wish your Honor to consider is what is possible, physically possible. Otherwise, there is no opportunity, your Honor, at the motion for new trial, or on appeal, although I hope that your Honor grants this motion, and I think that when we have finished, I hope that your Honor does ... I think it should be granted. It forecloses all opportunity ... as your Honor is well aware, you can't augment the record on appeal."
"Next question, Mr. Kanarek," said the judge. "Objection sustained to the pending question."
"Doctor, having read the reporter's transcript, do you have an opinion as to whether Dr. Crahan had adequate basis to determine the mental condition of Mrs. Bobbick?"
"I am going to object to that as immaterial to this particular hearing!" said Schulman.
"Objection sustained," said Judge Brandler.
"Doctor, you read the reporter's transcript . . ."
"That has been asked and answered several times! Objection sustained," said the judge before Schulman objected.
"Very well," said Kanarek finally. "Call Mrs. Bobbick."
Schulman watched the frail trembling woman take the stand, her eyes flitting over all of them. He knew he wouldn't have to cross examine her.
"Mrs. Bobbick, you were the juror number four that . . ."
"I am worried about my husband," Mrs. Bobbick sobbed.
"Would you rather testify on another occasion?" asked Kanarek.
"Well, no, my husband had surgery today. I would rather testify now."
"May the record reflect the apparent physical condition of the witness," said Schulman.
"Your Honor, Mr. Schulman is not a doctor," said Kanarek. "There is no apparent physical condition of the witness as far as I can see."
"Let the record reflect that the witness is now crying. She seems to be emotionally disturbed and upset," said the judge.
"May I respectfully object to that and suggest that some doctor testify whether she is emotionally disturbed," said Kanarek.
"I am emotionally disturbed," said Mrs. Bobbick.
"Mrs. Bobbick, would you tell the court what other members of the jury called you during the course of deliberations," Kanarek resumed.
"Objected to as immaterial," said Schulman.
"Objection sustained," said the judge.
"Your Honor, the offer of proof is that this was not a volitional request on her part to leave that jury room. She was actually submitted to a series of criminal violations in that jury room by the other jurors, and the offer of proof is that she would testify as follows: 'I have been called God Damn. I have been called a stupid jerk. They shouted at me. They jumped up and down like a bunch of monkeys. So I'm a schizophrenic because I don't do what they do. The sex jokes that was going on during the trial up in the jury room . . . when you go upstairs, you know . . . small room, no . . . nothing to do, no place to go.' That is what the witness would testify to here," said Kanarek. "Her exact words, your Honor. I can only make the offer of proof by making it. Mrs. Bobbick, I will show you this document. You wrote this in the jury room?"
"My memory isn't very good because my husband has had major surgery and I haven't slept for many nights, and I don't remember the details," said the witness tearfully.
"The voices on the tape recording will convince your Honor that there was nothing but amicability between herself and those two representatives of the District Attorney's Office who took this statement," said Kanarek.
"During the time that you were deliberating, Mrs. Bobbick, did you come from the jury room down here and talk to someone?"
"Yes."
"Do you recall when you were in the jury room you were interested in the word 'deliberate'?"
"Yes."
"And would you tell the court what transpired when you came down?"
"Nothing unusual, because the English language is a hobby of mine and I look up words all the time at home. I have fifteen dictionaries at home, and it has no significance as far as I am concerned. It may have, to a perfect stranger. That, I don't know. It's nothing unusual. I look up words all the time. I have dictionaries of all languages, and it doesn't ... I look up words all the time."
"Was one of the words you looked up 'deliberate'?"
"Well, it's possible."
"Did the jury foreman say 'God damn you' because you wouldn't go along with what he wanted you to do in the jury room?"
"I don't remember. I haven't slept many nights during surgery and I don't remember."
"Mrs. Bobbick, did you not tell Dr. Crahan that the jurors were threatening you, abusing you, cursing you, and suspicious of you?"
"I don't remember. It's impossible. I had to even get my husband to give me these dates from his medical examinations and what happened. I couldn't possibly remember that. I just don't know."
"Were you very disturbed at the time you made the statement to the doctor?" asked the judge.
"Very much, because I knew on August 26th that my husband faced surgery because of a double inguinal strangulated hernia!"
"Did you mention this to the doctor?" asked Kanarek.
"No, because I didn't realize it at the time. I mean, it was only a cursory examination."
"Mrs. Bobbick, what was it that changed your state of mind when you wrote that note?"
"I don't know what you're talking about. Because I have maybe two thousand books in my home, and I went to the dictionary all the time, and you're talking about a word, and I don't know what prompts me to look a word up at home except that perhaps I want to improve my mind, perhaps. But I don't know why I run to dictionaries."
"I'm referring to the time when you were in the judge's chambers," said Kanarek. "I'm asking you to tell the court why you wrote the note."
"Why I wanted to be excused from the jury?"
"Yes."
"Well, because I've read about strangulated hernias, and every day that you. delay could be a matter of life and death, and that was in my mind; That is the basic anxiety."
"What? The strangulated hernia?"
"Well, that's about the only thing. I mean, naturally, that's something that we should worry about, any intelligent person."
"Isn't it a fact, Mrs. Bobbick," said Kanarek, "you are afraid of harassment by the district attorney and the authorities if you should give testimony from the witness stand that would in any way hurt the position of the prosecution of this case?"
"I'm afraid of nothing. I don't have fear. As a matter of fact, I feared the people such as yourself. You have come into my home under most unusual circumstances. I couldn't resist you . . ." Then the witness began sobbing in her hands.
"Your Honor, may the record reflect that the witness turns the tears off and on at will," said Kanarek.
"Oh no!" said Schulman, and held out his hands to the judge.
"You may suggest that," said the judge angrily. "But the court do
esn't observe that at all. And the court is going to suggest that you take into consideration common decency as far as this witness is concerned."
"Now, Mrs. Bobbick," said Kanarek, unruffled, "then is it so, that you do not like me? Is that correct?"
"I don't know what you're talking about!" said the witness fearfully.
"Do you like me?"
"That is immaterial!" said the judge.
"But your Honor, I suggest that it's relevant on the bias and prejudice of this witness that it is proper impeachment to show that she is biased against the defendant because she is biased against the attorney for the defendant."
"Let's proceed to some relevant question! The objection is sustained," said the judge.
"Your Honor," said Kanarek, "this witness was not emotionally upset and disturbed. This witness was a holdout, eleven to one. She had a position. That is reflected in the district attorney's own transcript. She had a position that she maintained."
"I'm tired of this, your Honor!" said Schulman. "This record is replete with falsehoods and I don't like it. This attorney just seems to be able to relate anything in his mind that he wants to believe exists, whether it ever did or didn't exist."
"Mr. Kanarek's wild assertions, although they are reflected in the record, are not supported by any evidence. So proceed to the next question," said the judge.
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 cars 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 rattlesnake, 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 th
en 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?"
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