Devil's Defender

by John Browne

  The all-white prosecution team went after Duke with a vengeance. The cops were intimidated by Duke—his success, his star status, his intelligence, and his good looks. The fact that he had many beautiful, young white women as friends also pissed them off. The prosecutors thought they had to have a conviction. They made a big splash in the press when he was charged. For them the case was going to be a career builder or buster.

  They were worried because of the poor investigation by the police and the circumstantial nature of the case. I was worried because it was a rape charge against a black man, with white victims, and likely an all-white jury. I was right to worry. Duke was the only black person in the courtroom involved in the trail. No black jurors were in the panel, and the judge was white. There was only one black judge (out of thirty) in King County at the time.

  The first case went to trial, and the victim (I say “victim” rather than “alleged victim” as she was raped, just not by Duke) was very compelling: young, attractive, less than worldly, from a small town in eastern Washington. She was a racist but didn’t know it. The proof of this came during my questioning her on cross-examination. I asked her if the perpetrator had any unusual accent or speech pattern, and she said, “Yes, he did not sound like a black man; he sounded educated!” No shit, that’s what she said. The courtroom erupted in sighs and moans. The prosecutors almost fell out of their chairs. Her answer won the case for me. She had no black friends, had known no black people in her past, and picked Duke out of the lineup because he was the only man who fit the description of the rapist.

  After losing, the prosecutors licked their wounds and proceeded with the second case. It was just as weak as the first, but they were desperate to save face and tried hard to get a conviction. The jury was split eleven to one for acquittal; the hold-out juror said the fact that the rapist had a mustache and Duke never did was immaterial since “you can’t see a moustache on a black man.” The ordeal cost him a lot of worry and money, but Duke was a free man.

  After his football career was over he became successful in business and an advocate for early learning reading projects. I once saw him on Sesame Street supporting literacy.

  My career was also flying high. I had four cars, a motorcycle, a waterfront house, two Rolexes, and a Ralph Lauren model as a girlfriend. But I’d be lying if I said my life was in order.

  Remember back in 1970 when Jasper, the inmate at the DC jail, told me to never try cocaine because I’d like it too much?

  Yeah, well I should have listened to him. I got around to trying it, and he was right. My friends and I partied hard, though never when there was a trial.

  I’d frequently buy a bottle of cognac just to calm my nerves from all the coke I was doing. There’s a photo of me from that era. I’m sitting on my couch in a bathrobe, and I look emaciated. Seriously, just skin and bones.

  15

  “THE FLOOR IS SUPPOSED

  TO BE GREEN”

  The sky had just begun to pale on a February morning when I stepped out of the house of a friend and fellow lawyer in the Leschi neighborhood, just a few blocks from the shores of Lake Washington. The tree branches overhead looked like arteries running through the sky. My head still rang with cocaine, and my tongue, dehydrated from sipping cognac all night, felt like a slab of pumice in my mouth. Another all-nighter. At least it was Saturday.

  I folded myself into my black Mercedes and cut over to Yesler Avenue, bound for State Route 509 and, ultimately, my waterfront house fifteen miles away in Normandy Park, where coffee and a hot shower awaited. Along the way I slid past the King County courthouse and the police station, and, shit . . . there were a dozen police cruisers, marked and unmarked, and other emergency vehicles pulling in and out. Something big had happened. I was in no condition to stop and talk to a bunch of cops to find out what it was. A car full of homicide detectives, all of whom I knew, passed me. Sgt. Joe Sanford looked me right in the eye and nodded. I responded with a blank, dazed stare. They wheeled toward Chinatown, and I steered in the opposite direction, toward 509 and home.

  I cleaned up, brewed a pot of coffee, and around 7:00 AM turned on the television. All the local stations were broadcasting live from the mouth of a dank, garbage-strewn alley off King Street (around the corner from the popular Asian food joints I frequented). The news anchors were unusually grim and obviously moved by the events they were reporting. I could see medical examiner trucks and men carrying what were unmistakably body bags through the alley. There was no end to the parade of bags, it seemed. Donald Reay, Seattle’s internationally known coroner, and his staff streamed in and out of a four-story brick building.

  Slowly I pieced together the story flashing on the screen. Earlier that morning, February 19, 1983, a little after midnight, fourteen Chinese residents of Seattle, many well known and influential, were found shot in the Wah Mee Club, a not-so-secret underground gambling establishment. Most had been hog-tied and shot in the back of the head. There was one survivor, an eyewitness. Thirteen dead. The reporters were calling it the largest-ever mass murder on the West Coast.

  I stayed rapt in front of the screen for hours until, around noon, I received a phone call from my answering service. On the line was Steven Ng, whose brother Benjamin I’d previously represented in juvenile court in a minor theft case. Steven told me Ben had been arrested for the murders, and asked if I’d go see his little brother at the police station immediately.

  Benjamin was twenty years old, short and slight, with almost feminine good looks and the perpetual appearance of a trapped kitten about to be eaten by a pit bull. He and his family had emigrated from Hong Kong in 1975. (His parents had escaped to Hong Kong from the Guangdong Province in mainland China by swimming the Yangtze River.) They were well educated in Asia but held menial jobs in America: his father was a cook; his mother labored in a garment factory. His four older siblings were hard workers too. Only Ben lived outside the law, and had since his early teens: he had been picked up for the strong-arm robbery of an eleven-year-old at age fifteen, shoplifting at seventeen, and shooting at four men after a fight at eighteen (charges were dropped after investigators discovered he had acted in self-defense). He craved the affluence of the people he saw on American television, drove a blue 1977 Corvette, and wore a Rolex watch and designer clothes. His family clearly loved and adored him but were embarrassed by his excesses. When I first represented him as a young teen I got special permission from the juvenile jail for his mother and father to enter his cell so they could rub Chinese herbs on his chest for a slight cold. Even then he seemed to order his parents around. And they seemed to fear him, like if they didn’t do as asked, he would explode.

  My hangover fading, I drove back to the city, where I had no trouble getting through the intense security at the King County jail at the top of the courthouse. The entire homicide division was there. I doubt they were happy to see me. They rarely were. They knew I’d do my job and get Ben to shut up. I was escorted to the smallest holding cell. Ben was alone with a blanket around him and nothing on but boxer shorts. His clothing and shoes had been taken as evidence. His long black hair stuck out all over like one of those wild-haired troll dolls. He had that trapped cat look on his face but hardly seemed aware of the gravity of the situation. The first words out of his mouth were “How long until I get released?”

  He was, until I told him, unaware that an eyewitness had survived and identified him and his friend Kwan Fai “Willie” Mak as the killers. Wai Chin, the frail survivor, had said there was a third perpetrator, whose identity was still unknown. Willie Mak was also in custody, but Ben didn’t know that either until I informed him. The one thing I didn’t have to tell Ben was to shut up. He hadn’t said a word to the cops.

  I knew nothing of the facts of the case, just the horror. And Ben wasn’t forthcoming with information, which was fine, as I knew if I took the case, the details would come later. I spent about an hour with him before we ran out of things to talk about.

  I met with his fam
ily next. I knew it would be a death penalty case and expensive to defend. They said they only had $25,000 to pay me. At the time defending a capital case usually cost at least a million dollars, with the results often being the imposition of the ultimate penalty. A certainty was that thirteen well-loved and respected individuals had been gunned down like cattle in a slaughterhouse.

  I told the family I’d need some time to decide.

  The Wah Mee Club had operated, off and on, as a gambling den and speakeasy since the 1920s and had recently been leased to the Suey Sing Association, rumored to be a Chinese tong, a type of community organization sometimes thought to be a criminal enterprise. The illegal gambling, more or less tolerated by the police, ran from midnight, when the surrounding restaurants closed, until dawn. The most popular game was pai gow, played with Chinese dominoes. Some of the International District’s wealthiest and most politically connected individuals attended nightly, as did numerous restaurant employees just off their shifts. Backed by powerful Chinese businessmen who had ponied up $10,000 to $20,000 each to bankroll the operation, the gambling was high stakes—up to $1,000 a bet. It wasn’t uncommon for there to be at least tens of thousands of dollars on hand. Security was tight. The fear was not just of potential robbery but also of rival tongs making power plays. Patrons had to pass through three steel doors and the scrutiny of at least two security guards. The first door, tucked into a green-walled entryway off the alley, had to be buzzed open, with access granted only to those whom the guards could identify through a clear glass brick that functioned as a peephole. Patrons were then allowed through a second door and into a small anteroom, searched, and buzzed into the lounge and main gaming area, a sixty-by-one-hundred-foot space with four felt-top gambling tables.

  Willie Mak and Ben Ng were known at the club. Willie was a gambler, and police believed he owed gambling debts of more than $100,000 and had hatched a plan to rob and kill those in the club, enlisting Ben Ng and another friend, Tony Ng (no relation to Ben), as accomplices. Ben was known to be volatile and easily incited to commit crimes, especially when prompted by Willie. Tony was unknown to the club members.

  Detectives believed the three men entered a little before midnight, easily gaining access because the guards recognized Ben and Willie. Once inside they drew their weapons—likely .22- or .25-caliber handguns—and ordered the nine or ten people already inside to lie on the floor. They removed the victims’ money and wallets and bound their hands and feet with white nylon rope. As more people arrived, the trio ordered the newcomers to the floor and tied them up. Once they had a total of fourteen hostages—thirteen men and one woman, mostly in their fifties or early sixties—the gunmen opened fire, shooting them at point-blank range in the head.

  They fled with about $20,000, not knowing Wai Chin was still alive. The sixty-one-year-old wrested free of the ropes and stumbled into the alley, where incoming patrons were able to help him. Right away he identified Willie Mak and Ben Ng as two of the three perpetrators. Ben and Willie were arrested within hours at their south Seattle homes. (Ben was living with his girlfriend at her parents’ house.) In an affidavit prosecutor William Downing stated that, along with a total of ten firearms, police recovered more than $10,000 cash in Ben’s bedroom, where he was sleeping with his girlfriend, and more than $5,000 in Willie’s bedroom.

  I knew if I took the case, I’d be in for the biggest fight of my career. I also knew I’d probably go broke. I was tired of evil in my life. I was tired of taking cases for a lot less money than they would cost. I also knew, because it seemed like such an open-and-shut case, that no one needed a defense against the death penalty more than Benjamin Ng. If there was ever justification for capital punishment, Ben’s actions qualified. I’d do everything I could to save his life, and still probably lose. But I had to try.

  I phoned his family and told them I was in.

  A day or two after the killings I visited the crime scene along with Sgt. Joe Sanford and another cop, guys I respected immensely. They hadn’t muscled into Ben’s cell to pressure him as bad cops often do. They had honored his invocation of his right to remain silent. Sanford had even told me before I entered the jail that Ben had invoked and they’d questioned him no further—just one example of how different the Seattle Homicide Unit was compared to other police agencies. Here they were faced with the most horrible case they’d ever encountered and needed to do all they could to allay community fear and solve the case, but they had backed off as true professionals when Ben invoked his rights. This division, led by Sanford and another sergeant, Don Cameron, was the absolute best in the country. Unsurpassed by younger cops, these were old-school, cigar-smoking, hard-drinking detectives who worked long hours and set an ethical standard. A little rough around the edges, they swore often, let their shirttails hang out, and ate food on the run. They did not look like Tom Selleck or Don Johnson, but they were the best. At that point I’d handled at least twenty murder cases investigated by their division and was allowed free reign of the fifth-floor offices that always had half-eaten sandwiches, strong coffee, and cigarette smoke. I was honored on at least three occasions when they sent clients my way. They weren’t supposed to make such referrals but did so if they thought a person needed an aggressive attorney, usually self-defense cases where they had to make an arrest but felt the defendant was probably justified in using deadly force.

  As we entered the alley, past an Indonesian-American-owned aquarium and bird shop, a decorative kite the shape of a goldfish wagging in the wind overhead, Joe warned me that the sight inside Wah Mee was hard to stomach. Dried blood speckled the pavement in front of the club door, likely left by survivor Wai Chin when he staggered out of the gambling den for help.

  We paused in front of the entrance, lit cigars, and spread Vick’s Vapor Rub on our upper lips to mask the stench that was about to assault us. We crept through the club’s multiple doors, down a short, dimly lit hallway, and into the main gallery. We stepped along a path of newspapers laid out on the ground toward a set of folding chairs, and sat. The club looked much smaller than I’d expected. An elegantly curved cocktail bar split the room, with an upper-level lounge on one side and the gaming area on the other, lower level. Lamps, tasseled and spherical, hung from the low ceiling. A large gong stood in the corner. Ornate Oriental columns were spaced out every few feet, black at the bases, their tops red, nearly matching the color of the floor. It was eerily quiet, with only the buzz of flies to break the silence. I stared at the dark crimson floor, collecting my thoughts, not knowing what to say.

  “John!” Joe’s gruff voice called out as if half a mile away. “The floor. It’s supposed to be green. Green, John—not red!”

  I sat up and took in the scene again. Blood from at least fourteen head wounds had painted the club’s emerald floor a horrific scarlet. I thought of the victims, tied up and awaiting their turns when their skulls would meet the muzzle of the assailants’ guns, of the fear they must have felt in this casino-turned-abattoir. My stomach turned, and once again that What am I doing with my life? feeling seized my guts. I gnawed at my cigar, jotted as many observations as I could, and left.

  At home in Normandy Park I made a vow. As with every case, no drugs or alcohol. Not when preparing for the case. Not during the pretrial. And not during the trial. Defending Benjamin Ng would be the greatest challenge of my professional life, and I needed a clear head.

  Next I called my dad. I told him what little I could about the case, the gruesome details already made public, and he listened. When I finished he fell silent for a few seconds. “Somebody has to do your job,” he said evenly. “I’m just sad it has to be you.”

  16

  DEFENDING BENJAMIN NG

  On Tuesday, February 22, 1983, three days after the massacre, I stood with Benjamin Ng in front of Judge Betty Taylor Howard for a bail hearing. Ben wore a gray prison jumper and his head was again a riot of long black hair, a combination that made him look smaller than ever. To our left stood Willie Mak, in a
red jumper, and his attorney, John Wolfe. The four of us, along with the judge and six armed guards, stood in a fishbowl of bulletproof glass, separating us from the gallery crammed with Ben’s still-stunned family and about two dozen members of the media. The third suspect, Tony Ng, as yet unknown to reporters, was still at large, bolstering the prosecutors’ argument that Willie and Ben should not be released on bail. The judge agreed. Ben and Willie were carted off to their cells.

  Willie’s attorney and I were friendly casual acquaintances, but we clashed on this case from the start. He emphasized the importance of the mitigation package, which would be our attempt to convince the prosecutors to not seek the death penalty. A useless task, I thought. Our clients were charged with thirteen counts of aggravated first-degree murder. There would be no mitigating factors that could lead to avoiding death penalty charges. More important, I knew the process would alert the prosecution to our possible defense strategies.

  Wolfe vehemently disagreed. Because this would be such a high-profile case, he said, we had to do everything right or we’d be publically criticized by death penalty experts—likely jealous they didn’t get the case—who’d be second-guessing our every move. “That’s a bullshit motive,” I said, “a cover-your-ass approach.” Wolfe later added that we should do everything to appear like we knew what we were doing, appearances being more important than substance. That pissed me off. “OK, that can be your goal,” I told him, “but it will never be my goal!” My goal—my job!—was to save the life of Benjamin Ng.

  On Friday, three days after the bail hearing, we stood with our clients on the tenth floor of the King County courthouse in front of another judge for the formal arraignment. He asked that the names of the deceased be read aloud. The bailiff called out all thirteen—“Chong Chin, Henning Chinn, Hung Fat Gee”—and noted that each name—“Chinn Lee Law, John Loui, Dewey Mar, George Mar, Jack Mar”—represented one count of aggravated first-degree murder—“Moo Minn Mar, Wing Chin, Wing Wong.”