The Supreme Court of the state thus decreed that membership in the bar, not a trial judge's opinion, would determine an attorney's fitness to try a case. Irving Kanarek was reinstated, Judge Alarcon was replaced, and once again, the Powell-Smith murder case was making legal history.
Irving Kanarek's co-counsel was perhaps the most sympathetic with the relentless controversial lawyer.
"This isn't the first trial where the factual issues are lost," Maple would argue, in defense of both Kanarek and himself. "The court system itself has become the antagonist. After the Alarcon incident, where he was declared incompetent, Irving Kanarek began to feel the system was against him personally. He has to protect himself by the only device he knows-multiple objections. On all grounds."
It was appellate issues which interested Deputy Public Defender Charles Maple, who was a graduate of Harvard Law School and proud of it. "That's where the real changes in the law occur," he said to his client Gregory Powell. "Few cases are won on appeal, but the effects are so far reaching that one is attracted to appellate issues. An advocate tries to find and set up in the trial record legal issues that are of constitutional proportions."
But if Phil Halpin wondered if Charles Maple was a dupe of his client, he need not have. Charles Maple had been a trial lawyer for many years and knew exactly what his client was about.
"Powell's buying time," he said. "His only hope is time, change in the law, appellate decisions, abolition of capital punishment-and escape. Down here he has a chance to escape, up there he has none.
"I think he's as intelligent as Chessman was. These cons are good lawyers. And they have real lawyers advising them and helping them between trials. Of course they seize upon any device to perpetuate their lives or win their freedom. Who wouldn't?
"Using me? Because he makes a motion to represent himself? They all do it. If it's denied they have another issue. If it's granted they say 'Okay I need Charlie Maple as advisory counsel. I'm not in a position to do legal research. I'm not a trained lawyer.' In effect, 'I want Charlie Maple as my lackey and runner.' Powell knows no lawyer worth his salt would do it. It's a ploy. He's set up an issue that's impossible to satisfy.
"On Death Row they have exchanges of briefs, motion exchanges, habeas corpus exchanges. If they're not good lawyers when they go up there, they're pretty fair when they come down.
"One case involving the murder of a police officer was reversed three times. It was never reversed on guilt but there were developments of law during intervening trials."
Yet even Charles Maple began to complain of Irving Kanarek, who would call the public defender at three or four in the morning to discuss a motion he wished to raise the next day. Kanarek would often work all night for his client, Jimmy Smith. Maple eventually had his number changed because of it.
Charles Maple when arguing with the prosecutor, in trial or out, had what he thought to be an impregnable position. He said to Halpin: "File one additional count of kidnapping with injury. That carries life without parole. We'll plead guilty to murder and the second charge. We'll gladly accept the sentence of life without possibility of parole. I've told you people a dozen times, we'll cop out if he can just live out the rest of his life in prison. If you just don't kill him. Now I ask you, is that an unreasonable proposition?"
The district attorney had sent the star witness a huge carton of court transcripts to read, to refresh his recollection about his testimony at the 1963 trial. The witness never touched it. His wife rewrapped it and sent it back. It was so large it cost five dollars for fourth-class postage.
One night in the summer of 1968, when Karl was fishing with Jim Cannell, Helen Hettinger heard voices in the yard. It was close to midnight. She saw two men in the dark and heard one say: "He must be home, the outside light is on."
"Who is it?" she asked, very much afraid, now that the trial was about to begin, remembering the threats and crank letters of the first trial.
"I'm an attorney here to see your husband, Mrs. Hettinger," said a voice outside the door.
"I don't know who you are," said Helen peeking through a window at a man. "You'll have to call. You'll have to come back. Please go away." She tried to describe him later. He was a short man and heavy. He talked politely but she was frightened.
When her husband heard, he envisioned assassins sent by the killers. He didn't know whether or not to call the police.
A few days later the men returned at the dinner hour. One of the men apologized to Karl for upsetting his wife and asked to have a talk. The man reminded the witness that he was an officer of the court and that the witness should speak to him.
"Leave me alone," said Karl. "You talk to me at the District Attorney's Office or in court. Don't you ever come to my house again at night and scare my family."
The man left. The witness trembled. He would soon meet the man in the courtroom. It was Irving Kanarek.
Karl Hettinger was subpoenaed to pretrial motions, for by now Charles Maple and Irving Kanarek had learned certain things about him.
It had been five years since the two defendants had seen him. He was thin and nervous now while they had each filled out and were relaxed, bored in fact, by the months in court. He walked and sat hunched over. His eyes were usually downcast and he wet his lips often. He looked very different to his former hunters.
"Have you been in treatment or therapy with any doctors?" asked Maple of the witness.
"Objection," said McCormack.
"Sustained," said the new judge, Thomas Le Sage.
"Are there any doctors you have discussed the events in Kern County with?"
"Objection," said McCormack.
"Sustained."
"Your Honor, if I may," said Kanarek, "I'd like you to have his mental capacity examined."
"Sustained!" said the judge not waiting for the objection.
"Well, may I . . ." said Kanarek.
"Sustained! I have already made the ruling as to what you are going to be able to inquire into at this time."
"Your Honor, may I approach the bench?"
"Not on the same subject. No."
"Your Honor, the witness's competency is the issue."
"It is not the issue at this time."
"But it will be," warned Kanarek.
Judge Thomas Le Sage had known very little about the marathon case when he took the bench the first day. He knew that the case had already caused a Supreme Court reversal for Judge Brandler and another for Judge Alarcon. He knew that Judge Peracca's heart had almost given out because of it. He knew that nobody wanted the case and that's why he, the newly appointed junior judge on the Superior Court bench, was being given it. There was no publicity connected with the case now, only drudgery and frustration. Other judges joked about it.
Judge Le Sage was very dignified, perhaps excessively so. His first day on the bench, ignorant of the months of exhausting motions, he said: "Well, gentlemen, are there any pretrial motions?"
Irving Kanarek beamed. Charles Maple grinned. Phil Halpin groaned and snapped his pencil in two.
Prosecutor Halpin had been frustrated by Charles Maple's deliberate ways, by his completeness compulsion, and his willingness to often join Kanarek in futile motions, but he respected Maple's ability as a trial lawyer and so had only felt mild anger with Powell's defender. And strangely, after these many months he was even losing his sustaining rage at Kanarek. His spirit was becoming deadened.
"Nobody cares about the case anymore," Halpin complained to his superiors. "Each new judge we get is mildly amused at my frustration. There's no concept of what's gone before. No one cares now that a cop was killed so brutally. Pat McCormack's talking about leaving to become a court commissioner. I'll be left alone then. For the duration!"
"Don't let Kanarek bother you so much," was the stock reply.
"It's not Kanarek, damnit. It's the system that indulges him! Hundreds of these killers'll win their freedom one day after all the witnesses and judges and prosecutors either die, or
disappear, or give up!"
"Listen, Phil, after it's over . . ."
"Sometimes I get a crazy feeling that it'll never be over. There's no finality in the law itself. This is a war of attrition in no man's land, and the obstructionists are winning. Judge Peracca almost died. Do you know how many judges have sat on this case? How many people have been involved? How many years? Are we going to be able to drag these civilian witnesses back if and when we ever get to trial?"
"Phil, you're overwrought. You'll . . ."
"The American system of justice is the laughingstock of the English speaking world and totally incomprehensible to the rest of the world!"
"Take a real break this weekend, Phil. Take the wife out to dinner. Go to a show."
Oh God, thought Halpin, realizing that they didn't know about his divorce and how alone he was.
The finish of Phil Halpin came as a result of several incidents. Before he was to break there were minor skirmishes.
Once McCormack removed his thick glasses and invited Kanarek outside to fight. Kanarek merely backed up, blinked patiently, shook his head and set his heavy lips in disgust that McCormack could be so vulgar. His face said he would not be provoked. He would endure.
There were lighter moments. Once one of those courtroom regulars, called "railbirds" by the lawyers, began passing notes to all counsel in the case with his recommendations as to how the case should be handled. He began to torment and follow Irving Kanarek. Kanarek tried to make a citizen's arrest on the railbird for jaywalking in front of the courthouse but the police refused to accept the prisoner. The court ordered the man to stop hounding the lawyer.
Phil Halpin began worrying about his emotional health when he couldn't even join the others in laughing at the incident. "I've lived with him too long to laugh," Halpin said.
It became intolerable when Halpin discovered that McCormack was quitting the District Attorney's Office. Now Halpin was truly all alone.
Then on March 6, 1969, there was a routine squabble while a juror was being challenged for bias by the defense. The court had indulgently permitted each juror to be challenged for bias separately. This day there was only the one prospective juror in court. She was on the stand. Irving Kanarek suddenly looked toward Phil Halpin and said he objected to a certain remark.
"I'm addressing my remarks to the court," said the young prosecutor.
"He was directing his face at Mr. Maple," said Kanarek to the judge. "And he just said, Tuck you.' "
"I didn't say any such thing!" Halpin sputtered, going white, leaping to his feet. "I did not say any such thing! I will not permit this man to say this about me!"
Judge Le Sage, a God fearing man, looked shocked. The woman juror looked as though she might faint.
Phil Halpin's fists were clenched, his eyes were popping, and he was staring at Irving Kanarek, who only blinked and retreated a step and looked toward the judge with the same patient bulldog expression Halpin had seen and hated every day for a year and a half. Then Halpin leaped forward, grabbing Kanarek by the front of the shirt.
"I will not permit this man to say this about me!" Halpin shrieked.
"Just a minute!" yelled Jimmy, getting up.
"Sit down!" the bailiff shouted, running forward.
"Hey!" yelled Jimmy.
"I didn't say any such thing, and I never have said such a thing, and I won't tolerate it!" shouted Halpin, shaking Kanarek, who would not resist.
"He said it just before he grabbed me!" said Irving Kanarek.
"He struck him!" screamed Jimmy Smith.
"Just a moment," pleaded Judge Le Sage.
"The bailiff! The judge! Mr. Maple! Everyone in court witnessed it!" screamed Jimmy Smith.
"I want this man instructed to keep quiet!" shouted Phil Halpin, releasing Kanarek.
"All counsel sit down!" said the judge.
"If you put your hands on me like that, we're goin to war!" said Jimmy Smith.
"Sit down!" said the judge.
"I'm a man!" said Jimmy. "M-A-N!"
"All counsel be seated!" said the judge.
"That's right!" said Jimmy Smith to Halpin who was watching Irving Kanarek stand calmly, hands outstretched toward the judge, in a gesture of supplication for wrongs done him.
"Just a moment!" said the judge.
"Your Honor . . ." said Kanarek.
"Just a moment, Mr. Kanarek!" said the judge. "Be seated!"
"Your Honor . . ." said Kanarek.
"Just a moment! Be seated!"
"We gotta do somethin about this, your Honor. Period! He struck him!" said the outraged Jimmy Smith.
"Just a moment," pleaded the judge.
"What is this?" yelled Jimmy. "He actually attacked my counsel!"
"Just a moment, Mr. Smith!"
"I would like to be heard!" said Halpin.
"Just a moment!" said the judge.
"I can't believe it!" yelled the incredulous Jimmy Smith.
"The court is going to call a recess in this case at this time," said the judge, "and counsel are instructed, and the parties are instructed, and the bailiff is instructed to advise the court of any . . ."
"Your Honor . . ." said Kanarek.
"Just a minute, Mr. Kanarek! You are to be seated and say nothing! Not to in any way communicate with one another in any way by words or by show of emotions!"
"Your Honor . . ." said Kanarek.
"Just a moment, Mr. Kanarek! You are instructed not to say anything!"
"Yes, your Honor," said Kanarek finally.
"The court is calling a recess," said the judge, "until counsel can reflect and recover their sense of poise."
When court proceedings resumed in fifteen minutes the judge said, "In connection with the last matter the court instructs all counsel involved not to address the court concerning this in any way while the court is making the following orders: Mr. Halpin and Mr. Kanarek are to file affidavits of the occurrence before Thursday at four o'clock. The court will consider whether one or both counsel are to be held in contempt. The bailiffs, sheriffs, clerk, and reporter are instructed not to discuss the matter."
"Your Honor," said Kanarek, "if I may, I would ask that Mr. Halpin be arrested immediately for a misdemeanor committed in the presence of the court in violation of the penal code of the state of California. In the presence of peace officers he committed an assault."
Phil Halpin was defeated. He not only walked off the case, but he resigned from the District Attorney's Office and vowed never to enter a courtroom again. It was little consolation that before his resignation was final, Irving Kanarek would be removed from the case.
It was Jimmy Smith who eventually proved the undoing of Irving Kanarek. He filed a declaration that same month asking the court to curb his attorney's examination of jurors on racial grounds:
This defendant does not subscribe to or identify with any black militant organizations. Attorney Kanarek does not know anything whatsoever about defendant's racial background as a member of the black race. Respectfully submitted, Another declaration that same month by Jimmy said:
It is respectfully suggested that said attorney has lost all conception of the legal conduct and performance required of an attorney in a capital case, that is, if such knowledge ever existed for said attorney.
Respectfully submitted, During a noon recess in March, six years after the murder of Ian Campbell, Prosecutor Joe Busch walked from the court with Kanarek and said to him, "Irving, you ought to analyze your approach through a psychiatrist. Your personality alienates people."
Irving Kanarek apparently ignored the advice, but later when the judge took the bench, Kanarek wanted it made part of the official record that the district attorney said he should see a psychiatrist.
Toward the end of the month, Jimmy Smith was growing more hostile toward the lawyer and finally he assaulted him.
Prosecutor Joe Busch said, "When Jimmy Smith threw his chair and shoved Kanarek away, it probably was the final straw which influenced the ju
dge." Judge Le Sage once again listened to a motion from Jimmy Smith to relieve his counsel. A Pasadena attorney named Charles Hollopeter was brought into the courtroom to talk to Jimmy Smith. Kanarek maintained that his client was distraught and could not make a clear choice to have him relieved.
"There is no foundation for the court to proceed," Kanarek argued vehemently.
"You are again instructed to be seated, Mr. Kanarek, while the court inquires of Mr. Smith," said the judge.
"Well, your Honor, I most certainly do object under Cooper versus the Superior Court. ..."
The judge listened to the argument and said, "You are again instructed to be seated."
Then the attorney argued that the court's apparent decision to remove him would violate his client's rights.
"Now if your Honor deems that I am being muzzled, and that I am being gagged by the sheriff, if your Honor shall deem that this record is to exist, that this record can reflect that I am being muzzled as if the bailiff here restrained me, and put me down, and strapped me to the chair, and put a gag on me, if your Honor deems that this record shall so reveal that, then, of course, I think your Honor gets the point of what I am driving at. May that be deemed, your Honor?"
"The record will not show that at all, Mr. Kanarek!" said the judge, a bit shocked. "The court is at all times willing to hear you in full! And I again request you as a member of the bar to be seated while the court proceeds."
The attorney argued still further that the judge had no right to inquire of Jimmy Smith as to replacing his lawyer. Finally Kanarek said, "May it be deemed that I have been gagged and that your Honor has used the full force, that your Honor has used all of his power inherent, statutory, constitutional, explicit, in keeping me from using the English language, keeping me from speaking. May that be deemed, your Honor?"
"The record will not so show, Mr. Kanarek!" said the judge. "The court is just making the request that you be seated and the court is advising you again that you will be extended the fullest opportunity to argue the matter."
the Onion Field (1973) Page 41