But Fulgoni was not terribly pleased with his own star witness, who was willing to say only what he saw and remembered and no more. "Hettinger was not," Fulgoni complained, "willing to make those small inferences we all make and must make without seeming equivocal. His testimony was cold, unemotional, too objective."
It was true. The witness showed absolutely no emotion during the 1969 retrials. He was a different man to all of them: the defendants, Pierce Brooks, the dozens of civilians and police witnesses who had heard his demonstrative testimony in 1963. But if the witness seemed emotionless, his wife was not. Helen Hettinger broke out in a serious case of hives for the first time in her life. Her body was covered with itching maddening welts until the trials were over.
One of the days he stood in a courtroom corridor waiting to be called, the witness was approached by a black man who looked very familiar.
"What say, Karl?" said the bony farm worker with the scarred mahogany face. "Remember me? Emmanuel McFadden?"
"Emmanuel? Is it you?"
"It's me." The farm worker grinned. "You look different, Karl. A little skinny."
"Getting old, Emmanuel."
"How they been treatin you, Karl?"
"Okay, Emmanuel. I stopped in Bakersfield once on my way to the lake. I looked for you."
"Yeah, I heard there was a white man lookin for me. I jist figgered it was you. I hear tell you ain't a officer no more." "No."
"You okay, Karl?"
"Sure, Emmanuel. Sure."
Jimmy Smith's attorney believed Hettinger to be honest in what he said, but found him rather contemptible. "A beaten dog," was the term he used out of court.
As to the witness's stealing, Hollopeter had a less complex and psychological interpretation than Charles Maple had, but came to much the same conclusion. Hollopeter would allude to the old psychiatrist joke: "Your son, madam, takes things because . . ." "Yes, Doctor?" "Because he is a thief, madam."
Hollopeter knew Hettinger was vulnerable to psychological attack but avoided the tactic, not because of any compunction, but because he feared it would engender sympathy for the witness. Hollopeter would say of the witness: "A real tough guy never would've let this happen in the first place. He could've crushed Powell's skull with a jack or a hubcap. If he were a tough guy."
The witness had no friends at the defense table, not at either trial.
Early in the trial, Hollopeter made the following comment at the bench:
"I have one criticism, your Honor, and I welcome the chance to state it. I do object to counsel referring to the witness as 'officer! The man, I am informed, is not an officer."
"Actually that's true," said Fulgoni. 'Til call him Mister Hettinger."
In October, 1969, the witness was asked by Hollopeter:
"When you got back to the shooting scene did you see Mr. Campbell?"
"Yes."
"Where was he?"
"He was lying in a ditch."
"Was he alive at that time?"
"I don't think he was," said the witness, his voice mechanical, his eyes vacant.
"When you rode in the ambulance with Mr. Campbell, did you notice any wounds on his body?"
"I just saw a lot of blood. Just a lot of blood."
"Mr. Hettinger, what is your present occupation?"
"I am in landscaping and maintenance."
"You are no longer a police officer?"
"No."
"When did you terminate your employment as a police officer?"
"In May of 1966."
"How many times have you testified about what occurred on the night of March 9th and the morning of March 10th, 1963?"
"Six or eight times," said the witness. "I can't quite remember."
"When you testify, does it bring back the events to your mind?"
"Sometimes they sort of fade away between trials. And then 1 get my memory refreshed," said the witness haltingly, staring at the wall in the back of the courtroom.
"You told us you looked over your shoulder and you could see flashes that seemed to be gun flashes and then appeared to be teardrop-shaped flashes. Mr. Hettinger, were you very greatly shocked by this event?"
"I would say that my state of mind ... I was in disbelief . . . I couldn't believe that it had happened."
"How old were you at that time?"
"About twenty-eight or so."
"Were you in good physical condition?"
"Yes, I think so."
"When you ran, you intended to escape if you could, didn't you?"
"I wanted to," said the witness bleakly.
"Did you think you'd reach a place of safety?"
"I don't know what I thought."
"Why did you slow down to look around?"
"I think ... I was still in a state of... disbelief. I couldn't believe that this had happened. And call it a . . . curiosity, if you must. I looked back. I couldn't believe it."
When the star witness was finished he approached the district attorney during recess. "This is the last trial, isn't it?" he asked, but Fulgoni was talking with Hollopeter about something that had happened in chambers. "Sir," said the witness, "is this . . . ? Do I have to come . . . ? Is it really going to . . . end now?"
But they didn't hear him. They were arguing about Gregory Powell testifying for Smith, and Fulgoni was angry.
The witness was suddenly too tired to stand there. He left the two lawyers and went to his truck. He drove home, but his wife was at work. He wanted to tell her it was probably over. He didn't think he'd have to testify anymore. Not unless it was reversed again.
He put on his jeans and old shirt. It was too late to go to work, so he just went out to his own yard and knelt in the flowers. There were two brown snails feeding on his newly planted yellow gazaneas. He carried the snails across the yard to the street and released them.
Then he went back to his gazaneas. He found one more fiery than the rest. It was folded and tucked, elliptical. He touched its petal. He wanted to help it open. Then he looked at the little gazanea. It was like a fiery teardrop. He thought he heard a quiet whimpering behind him and spun around, but there was nothing. Then his eyes were clouded and burning and he realized he was crying. It had just happened. There was no warning anymore. That scared him more than anything ever had-that a man could just start crying without warning.
The time had come for Gregory Powell to make good on a long-standing promise to Jimmy Smith. Fulgoni knew what Powell was going to do. It was at this point obvious to the prosecutor. It could never work at a court trial but it could in front of juries of ordinary people, unsophisticated in the ways of law and legal strate- gems.
Fulgoni believed it could work, in part because all the testimony had pointed to Smith being the ineffectual follower of an arrogant and dangerous leader. Then there was the mere physical appearance of both men. Powell was always strange looking, could make his face cruel and deadly with little effort. Fulgoni argued at the bench for all he was worth.
"He's going to take the Fifth, your Honor. You know it. I know it. Maple knows it. Mr. Hollopeter knows it!"
"I don't know it," said Hollopeter. "Your Honor, I won't dignify that statement that I'm acting in bad faith. I deny it."
"If we could have a hearing outside the presence of the jury," said Fulgoni, "then if he took the Fifth ..."
But Judge Shepherd finally decided that Section 913 of the California evidence code forbade the trier of fact to draw an inference from a privilege exercised in a prior hearing, that Jimmy Smith was entitled to call any witness he wished without a prior adjudication as to whether or not the witness would testify. Fulgoni was stopped. The code section was relatively new and there was no case law Fulgoni could rely upon to force a hearing to stop the witness from doing what the prosecutor knew he would do.
So Gregory Powell made good on his promise to his partner, became somewhat of a folk hero to the other Death Row inmates who knew what he was going to do. And six and one half years of court proceedings c
ame down to just three questions with the responses known far in advance by almost everyone but the uninitiated jurors.
The first question by Hollopeter was: "Mr. Powell, how many times did you shoot Officer Campbell?"
"I object to that question as being asked in bad faith at this point!" said the raging Fulgoni.
"Overruled," said the judge.
The defense witness conferred with his lawyer, Charles Maple, before answering.
The second question was: "On the evening of March 9th, 1963, did you decide to kidnap two officers in the vicinity of Carlos and Gower?"
The witness conferred once again with his lawyer before answering.
The third question was: "Did you retain Officer Campbell's gun in your possession until after the shooting?"
The answer was exactly the same in all three cases.
Gregory Powell stared at each juror, his blue eyes going flat and icy. His lips tightened, and Jimmy Smith said later it was just like Greg used to be, just like when he had a gun in his hand and cocked it. This time it didn't scare Jimmy, it thrilled him. Jimmy could have kissed him. At that moment, for the only time in his life, Jimmy Smith loved Gregory Powell, whose answer was:
"On the advice of my counsel and based on the Fifth and Fourteenth amendments of the Constitution of the United States I refuse to answer that question on the ground that the answer may tend to incriminate me."
"I have no further questions," said Hollopeter.
The defense could at last rest, and did. Fulgoni looked at the jurors, at some who recoiled when Gregory Powell left the stand and stared them down as he swaggered away.
"Damn!" said Fulgoni. "Damn!" And he pounded his big- knuckled fist into his palm.
In truth, though, Dino Fulgoni was beaten by more than a trick. Ian Campbell had been slain almost seven years before November 6, 1969, when the jury returned the verdict of life imprisonment for Jimmy Smith. It was difficult indeed to bring in a verdict of death for a crime so far in the forgotten past. Time, which had always been Jimmy Smith's relentless foe, at last became his ally.
There was one last moment in the end of the penalty trial which some observers thought as important to the defendant as Gregory Powell, and as time itself. It was Jimmy Smith's final statement to the jury.
"If you are permitted to continue life, what do you plan to do?" Hollopeter had asked him.
"I don't know. Somethin constructive if I can."
"I don't understand you," said Hollopeter to his client.
"Well, I don't wanna make no promises I can't keep. Or say that I'm gonna do somethin or don't do somethin. It's very easy to say it. ... I don't know whether I wanna live."
"All right, you may cross-examine," said Hollopeter to Fulgoni.
"There's one more thing I wanna say that I forgot," Jimmy interrupted.
"All right, go ahead and say it," said Hollopeter.
"I don't know as to whether I wanna live or not. I wasn't even brave enough to stop that guy from killin that man. I coulda stopped him. I didn't have the guts. I'm sorry he's dead. I can't bring him back. What can I do? Take my life. I ain't never lived. I ain't nothin. . ." And then the defendant began weeping and bowed his head and thought of his partner and all that each had done for, and to, the other. And of the self they saw in each other. Jimmy Smith knew he would never be rid of Gregory Powell. "I'm better off dead," he sobbed. "What's the use of livin? I ain't even a man."
"Your Honor, could I suggest a short recess?" asked Hollopeter.
"I request it too, your Honor," said Fulgoni softly.
In November, 1969, Defendant Gregory Powell wrote:
Your Honor, it is with singular trepidation I begin this task of writing. Consistent with my express philosophy, i. E., life-oriented, I have no alternative but to attempt to persuade this court that I believe my case is one in which there would be justification for applying a great legal tradition, justice tempered with mercy.
During the course of the trials, numerous psychiatrists, all learned and sincere men I am sure, testified that in their opinions, I was a sociopath. This dehumanizing label sounded very scientific and precise, yes, and evoked fear when I first heard it applied to myself on the witness stand. But given time to think, reflect, and most of all, study, in an attempt to define sociopathy as applied to myself, I found myself questioning the validity of this label. I do not claim I am a sociopath, but many of the symptoms attributed to sociopaths do in fact indicate this may be a proper label, at least in general.
This is not a plea for release into a society where everyday living demands that even the average person be able to display at least adequate judgment. This is a supplication, if you will, a plea to be allowed to live out my natural life span in prison. To live in an environ where a person is not faced with making judgmental decision, but a completely controlled environment.
During the trial I read the FBI rap sheet which listed all of the offenses for which I have been convicted. This reading was necessarily an incomplete composite of my life from 1949 to the present, for I was unable to bring out in my testimony the effect the numerous convictions and imprisonment had upon me. The almost continual incarceration from the time I was fifteen to the present caused what is commonly known as a very institutionalized person. Due to this, the terror a normal person would feel at the prospect of spending the rest of his life in prison is absent when I think of imprisonment. In fact, conversely, the terror would be felt by me only if I were to have to face the prospect of life outside the prison.
"The institutional man," a reader of the document would say of the defendant's description of the most misunderstood phenomenon of penology. "How many institutional men are there in and out of prison who can never function except in a controlled environment? And who dares admit it? And what institution is open to them?"
"They kept kicking me out," Gregory Powell had said when he was nineteen years old. "I kept stealing cars and going back, but they just kept kicking me out of prison."
1970 was only four weeks away when the twelfth Superior Court judge to sit on this case formally sentenced the defendant, Gregory Powell, to death. The sentence was entered in one of the last of the 159 volumes of a 45,000 page court transcript, the longest in California history. There would of course be another automatic appeal, but most observers now saw little chance for a reversal.
In 1970, once again on Death Row, Gregory Powell requested and received a book entitled What Happens When You Die? There was, however, another condemned man named Robert P. Anderson who would have something to do with whether Gregory Powell would die in the gas chamber.
Chapter 19
The new decade was not unkind to Gregory Powell, who had adopted his middle name and insisted that everyone, even his family, refer to him as Ulas Powell
"His alter ego speaking," his attorney Charles Maple would say. Maple didn't believe there was much chance of the case being reversed again, but kept in touch.
The condemned man would receive a little money from friends or relatives, a few dollars here and there. Once he received a considerable sum from an anti capital punishment group in Italy. He had by now thoroughly convinced himself that repressed homosexuality had been at the root of his problems his whole life long, and that he had been born to be homosexual. His added weight, darker hair, and glasses softened his appearance considerably. He granted interviews and even drew cartoons for gay newspapers and was quoted as saying he had a distinct aversion to gas and would never be executed.
The new decade was not unkind to Gregory Powell, who had adopted his middle name and insisted that everyone, even his family, refer to him as Ulas Powell.
"His alter ego speaking," his attorney
He joined a convict religious cult and edited their political writings, and he waited for a decision in People versus Anderson. In March, 1972, the California Supreme Court declared that capital punishment was cruel and unusual. Gregory Powell escaped the row forever and went to the yard.
No
w he was free to live his life in the kind of non-threatening, controlled environment he said should always have been his. He was not unhappy. He kept busy with his many letters. After all, the family needed him more than ever, and sometimes he even lent them money. Douglas had matured, given up hard drugs, and stayed out of trouble, profiting from his brother's mistakes. But Lei Lani had fared badly and there was still friction between Sharon and his parents. His letters went to each of them: sisters, brother, mother and father. He directed them in business, household, and personal matters. He advised, scolded, commanded. If he had one wish it would be that they lived close enough to visit him more often. It was too hard to properly administer a family by letter. But he sighed and decided he'd just have to do his best. They couldn't possibly manage without him. He was, and always would be, the rightful head of the family.
Chapter 20
When Jimmy Smith was finally sentenced to life imprisonment he thought he'd won. The day they drove him up to Folsom Prison he wasn't sure. Not when he saw it, more horrible than he ever remembered it. Not when those hateful iron gates yawned, and the gray, slimy, cold granite walls swallowed him.
He had one bitter but torch bright consolation: Gregory Powell still faced death and might one day be smoked. Then, after People versus Anderson, he realized Powell had beaten him again. Powell was in the yard at San Quentin living reasonably like a human being while Jimmy languished in the hell of Folsom. He could never win from Gregory Powell.
Without the slightest hope of another successful appeal, Jimmy permitted the man who had won his first reversal to try again. He once more accepted the services of Irving Kanarek. In early 1973, the relentless lawyer filed an opening brief in the case of appellant Jimmy Lee Smith. One of the arguments read as follows:
During pre-second trial proceedings, strong indications of Hettinger's mental instability were uncovered. In view of this and the circumstances of the killing (appellant's extreme terror rendering his memory of the events at the time of the killing very confused; the fact that it was night and that visibility was poor; the fact of guns "floating around") it is probable that Hettinger, himself, was responsible for the firing of four shots at Campbell although he may have mistaken Officer Campbell for one of the defendants in so doing.
the Onion Field (1973) Page 45