by John Browne
Ben and Willie pled not guilty. After the guards escorted them away, Wolfe and I stepped out of the courtroom and into a throng of reporters in the hallway. One thing on which Wolfe and I agreed was that we were already, at this early stage, losing the media battle. Two days earlier, on February 23, 1983, the Seattle Times ran a profile of Ben (SUSPECT HAS HISTORY OF TROUBLE) that referred to him as a “black sheep,” detailed his past crimes, and suggested he was a member of the Hop Sing Tong, a rival of the tong that leased the Wah Mee. Wolfe, meanwhile, was fighting to keep a section of a search warrant affidavit redacted, five lines that revealed that Mak had told a detective shortly after his arrest, “I shot them all.” Although no one in the media knew the content of these lines, both the Times and the Seattle Post-Intelligencer had hired lawyers to unredact them. The information would severely damage Mak’s defense.
“The media have reacted hysterically,” I admonished the reporters outside the courtroom. I think Wolfe appreciated that.
The King County prosecutor, Norm Maleng, a man I respected greatly even though we were sworn adversaries, had of course assigned his A Team to the case: deputy prosecutors Robert Lasnik and William Downing, both very smart and experienced. I had tried many cases with them—winning some, losing some. Low-key, with great senses of humor, they were difficult opponents. Unlike many prosecutors I could count on, they didn’t get distracted by silly issues. They concentrated on the real tasks. Juries and judges liked and respected them. So did I.
They proved as sharp as I’d feared during the next step, the critical assignment of a trial judge. King County at the time had many gifted, experienced, no-nonsense judges—my favorite. There were also a few loose canons who were just plain evil, dumb, or both. We asked for preassignment of a judge and were given a list of three. The prosecutors could strike one, Wolfe and I could strike another, and the third would be assigned the case. The three we had to pick from were all known as anti-defense and pro-prosecution. Not a good omen. We ended up with Judge Frank Howard, a very conservative judge and a very conservative person in general. He was smart but seemed to have no lighter side and was in constant fear that I would take over his courtroom, as was my reputation with less secure judges.
This played out early on when, in mid-March, Lasnik and Downing insisted survivor Wai Chin have his testimony videotaped. Lasnik told Judge Howard that Wai Chin, the only eyewitness to the massacre, could die before the trial, then scheduled for July 1, a little more than three months away. The prosecutors said they wanted to have Chin’s testimony videotaped in advance in case he wasn’t around when it came time to testify in front of the jury. Chin, who’d sustained bullet wounds to the neck and jaw (two small bits of lead remained lodged in his neck), had already been released from his monthlong convalescence at Harborview Medical Center. But Lasnik pointed to an episode earlier in the month, two weeks after the shooting, when the witness’s blood pressure dropped and he required resuscitation. Most sensationally, Lasnik also raised the possibility that Chin could be assassinated before the trial.
“The press is going to have a field day with a statement like that!” I objected. Judge Howard called a recess.
Out in the hallway I heard Lasnik tell a reporter, “They want [Chin] to die.” They referring to Wolfe and me. I lost my shit. Back in court I told the judge what I’d heard. Lasnik apologized and backed down. He dropped the assassination attempt argument altogether and asked that the record show that his only case for the videotaped testimony was Chin’s ailing health. Swayed by the testimony of two doctors who said the witness, a lifelong smoker, was at risk of developing serious pulmonary problems, Judge Howard said he was leaning toward allowing the videotaped testimony.
A Seattle Times editorial a few days later, on March 28, 1983, piled on: “The precautions sought by the prosecution, and tentatively approved by the court, in preserving testimony of the sole survivor of the Wah Mee Club massacre are warranted under the circumstances. And it is difficult to see how they could jeopardize the rights of the defendants.” The prosecutors were smart. I could see what they were up to, even if the media—and, apparently, Judge Howard—could not. What they really wanted was a dry run of dramatic testimony that would be publicized and further taint the prospective jurors.
I was tired of Lasnik and Downing being one step ahead of me. No more letting them lead this dance. I’d spoken with Chin’s doctors, who said he was in good health and his prognosis was good. So, unbeknownst to Judge Howard or the prosecutors, I subpoenaed the doctors to the next hearing, which was well attended by the media, with standing room only.
The courtroom blew up. The prosecutors and the judge accused me of all types of misconduct. “If the issue is his health, here are his doctors,” I said. “What’s the big deal?”
Judge Howard turned bright red. “From now on,” he yelled, “you need permission to issue subpoenas.”
I walked up forcefully to his bench and pointed my finger at him. “I will never follow that order!” It was my client’s right to call witnesses and issue subpoenas. He might as well find me in contempt now, I said. I held out my hands for the jailers to cuff me.
That shocked the judge. He called a recess. Lasnik and Downing wouldn’t look at me. Wolfe either. Still, when he came back half an hour later, Judge Howard recanted his order barring me from issuing subpoenas without permission. I respected him for that. He remained irritated with me, but he seemed to understand I was doing my job and doing it well. After all, no one ever entertained the notion that Ben would not, ultimately, get the death penalty.
Meanwhile, my annoyance with Wolfe bloomed. He sat on his hands during the whole scuffle over the doctors. And we lost: Howard ultimately allowed Chin’s testimony to be videotaped.
On Tuesday, May 10, Wolfe, our clients, and I, along with Lasnik and Downing, reported to Judge Howard’s courtroom at 1:30 PM. The gallery was empty—no media, no families, just a handful of armed guards, a court reporter, and a video technician. Wai Chin sat in the witness chair, the camera lens trained on him and a whiteboard with the layout of the Wah Mee Club superimposed on it.
Downing examined the witness first:
“Would some of the people that came [to the Wah Mee Club] have a lot of money?”
Chin: “Some of them.”
“I object,” I said. “The question is leading.”
Downing tried again: “What sort of people came to the club?”
Chin detailed the club’s clientele, its hours, and its layout, before the questions delved into when my client arrived on the night of the shooting.
Downing: “And it was soon after 12:00 when Mr. Ng arrived?”
“Objection,” I said. “Leading.”
When the prosecutor asked Chin what happened after he left the club and stumbled, wounded, into the alley, where he found people to help him, the witness answered, “Then I tell them we had been robbed here. They asked me who, black guy or what else, Vietnam guy, and I said, ‘No, Ng and Mak.’”
“I object,” I said. “Object to the hearsay from the other parties.”
It went on like this, as is expected between the defense and prosecution. It’s when Wolfe examined the witness that things got awkward. He pushed against the prosecutor’s contention that his client was the ringleader. Fair enough. That’s his job. But his questions began to imply that my client was the ringleader.
Referring to a witness statement Chin signed weeks earlier, Wolfe said, “And the only reference in that paragraph to Mr. Mak is that he pulled a gun out after Mr. Ng came and that he helped the third man put the wallets in a brown bag; isn’t that true?”
I’d had enough. I opposed Wolfe in front of our shared adversaries. When he made a reference to Tony Ng, a suspect still at large, I intoned, “I object. Nobody has been identified as Tony Ng.”
It became increasingly apparent to me that if Ben had any chance of making it out of this thing alive, he’d have to be tried separately from his friend. There was much mo
re damaging evidence against Willie: it was his idea and his motive—he needed the money to pay gambling debts. He also had bad energy that would affect the trial. With separate trials, I’d be able to do everything possible to blame Willie and cast Ben as a tool Willie had used.
But I didn’t throw Wolfe and Mak under the bus just then. When my turn to examine Chin came around, I tried something different.
Me: “Mr. Chin, who shot you?”
Chin: “I don’t know.”
“Mr. Chin, who shot John Loui?”
“I don’t know either.”
“Who shot Wing Wong?”
I knew, based on previous statements, that Chin, tied up and on his stomach the night of the massacre, had not seen my client shoot anyone. I also knew that police had only recovered bullets from two guns. Two guns, three shooters? There was room for doubt.
I continued: “Who shot Wing Wong?”
“I don’t know. I don’t know nothing.”
“Who shot C. Chong?”
“Don’t know.”
We went through every name. It would be a strategy I’d use if I secured separate trials for Ben and Willie. With Chin unable to say who shot whom, I could plant a seed of uncertainty in the jury: maybe someone else—Tony or Willie—did the killing. If only I could cut the tether between Ben and Willie.
So I couldn’t believe my luck when, on Friday, May 27, seemingly out of nowhere, Wolfe withdrew from the case, citing a conflict of interest (a matter unrelated to the case but that a judge agreed created an ethical dilemma). Two new public defenders were assigned to Mak. The accused were still slated to be tried together, but I was one step closer to my goal.
At a hearing on June 1, I told Judge Howard I wanted the trial to begin August 1, knowing that Mak’s new attorneys, Don Madsen and Jim Robinson, would ask for a much later date in order to familiarize themselves with the nearly twelve hundred pieces of discovery dropped on their doorstep after Wolfe bowed out. They requested October 1.
The prosecution knew what I was up to and clearly saw that a separate trial would benefit Ng. They insisted on a trial date of August 22, the last possible date by which Mak and Ng could be tried together, thanks to my earlier invoking of Ben’s right to a speedy trial. Arguing against the separate trial, Lasnik pointed to potential security risks, the high cost of two separate trials, and the fact that media coverage of the first trial would prejudice the jury of the second. (Now he was concerned about prejudicing the jury!)
Two days later, at another hearing, I reiterated that I refused to waive my client’s access to a speedy trial and reminded the court that disregarding Ng’s right in this matter could result in the dismissal of all charges against him.
But Downing was quick. He reminded the court that back in May I had said I’d need much more time, until at least August 22. (He was right.) A week later, after further deliberation, Judge Howard gave me the date I now said I wanted—August 1—but still refused to grant separate trials (which is what I was really after).
I felt the judge was calling my bluff.
We did receive one bit of good news around this time: a judge assigned David Wohl to join the Ng defense team at the court’s expense. The request had been stalled because the court believed Ben Ng had money, due in part to his sleek blue Corvette. But we were able to demonstrate that Ben was broke—his sister had paid for the car—and the family had no more money for legal fees.
Wohl was a sharp attorney, and I welcomed the help.
Now it was Mak’s lawyers’ turn to irritate Judge Howard. They said that unless they could be given more time to prepare, they would have to drop out of the case and Mak would need to be assigned yet another defense team. Of course, the judge didn’t like threats. On July 15 he denied their request to delay the trial and ordered them not to withdraw as Mak’s attorneys.
Finally, on Wednesday, August 3, after an eight-hour hearing during which both defense teams pled the case for separate trials, Judge Howard relented. Jury selection for our trial would begin immediately, and the Mak trial would begin two weeks after the Ng verdict was reached.
It was a welcome triumph. Now I could focus on the task of casting Ben as a follower in the whole murderous enterprise and raise the question of whether he actually shot two of the guns used in the slaying.
There was more: while developing my relationship with Ben I noticed something strange when he answered questions. If I held up a pencil and asked what it was, he would say “Wood.” If I showed him a watch, he’d say “Time.” Point to a shoe and he would say “Protector of foot,” not “Shoe.” It wasn’t a language barrier; Ben spoke perfect English. I asked his family about head injuries in the past and learned that when Ben was an infant in Hong Kong some apparently crazy lady in the market started yelling to the crowd that Ben was the devil and beat him on the head with a two-by-four. Ben was hospitalized for weeks and, according to his family, was never quite the same. Based on my observations and the family’s input, I had Ben tested at Harborview Medical Center for head trauma. The doctors concluded that Ben suffered from dementia due to an injury to the left side of his brain, the area that controls judgment.
We began jury selection on Monday, August 8. The Benjamin Ng who showed up in court that morning would be unrecognizable to anyone who’d seen him during much of the pretrial or in the days leading up to the murders. Gone was his mop. His hair was cut short, with Spock-like square bangs. A classy button-down shirt under a wool vest and pressed slacks gave him the look of a college debate champ, not the street thug the prosecution and the media had tried to paint him as. This was the work of Ben’s pretty nineteen-year-old girlfriend, Kennis Izumi, of Chinese descent but born and raised in Seattle. She and my client had dated since high school, and she stuck by him, showing up at court all through the months of pretrial, even camping out in the hall on days she wasn’t allowed in the courtroom. Her beauty and her devotion to an accused mass murderer made her a media favorite. Large photos of her appeared next to front-page, top-of-the-fold news articles about the Wah Mee massacre.
That day we started with a pool of about two hundred prospective jurors. By late afternoon we removed all who could not sit because they were against the death penalty (you can’t be a juror in a capital case unless you believe in capital punishment), had other hardships, or admitted they just could not be fair. We were left with about a hundred people. The work of finding at least one juror who would hold out for life began. (You only need one vote for a life sentence, as a death verdict must be unanimous.)
This was also a good time to test out a strategy, one I had begun to develop during Wai Chin’s videotaped testimony. I asked the members of the remaining jury pool, all believers in the death penalty, if a brain injury would be enough to find Ng not guilty or, if convicted, to spare his life? No. Would the fact that he was the tool of Willie Mak be enough? No. Would the fact that there might be some tong rivalry going on be enough? No. OK, would the fact that three participants only used two guns and the eyewitness could not ID who the shooters were be enough? Maybe. So this became my theme: brain injury plus Willie’s manipulation plus two guns and three participants and no certainty about who shot and who didn’t.
Picking a “death-qualified” jury is an art, not a science. I immediately spotted people my gut told me I did not want on the jury. One fellow, from remote Vashon Island, wore a Jack Daniel’s baseball cap and a belt buckle that said WINCHESTER ARMS. He spent the first one or two days listening to the questioning of other jurors about life and death, some real emotional questions and answers. I could tell he paid attention. His number came up, and he was seated in the front row of the jury box. The prosecutors thought they had their boy and asked very few questions. I could tell something was bothering him, so I walked up to him and asked, “What’s wrong?” He broke down and said that he had always been a strong believer in the death penalty but after sitting in court listening to the questions and answers, he realized he could never vote to put that youn
g man to death. The good news was all the other jurors heard this heartfelt response; the bad news was we lost him as a juror because he said he would not impose the death penalty.
We completed jury selection after five days and ended up with eight men and four women. They ranged from a brewery worker to a Boeing engineer, a retired University of Washington accountant to an IRS examiner. All of them were pro–death penalty. I had to convince just one to spare Benjamin Ng’s life. The trial would begin in the morning, Tuesday, August 16.
The day of reckoning was here. The media had dubbed it the highest-profile trial Seattle had ever seen. A crime scene riddled with intrigue, with secret entrances and a history that dated back to the 1920s. Three young suspects, one (Ben) with a Hollywood actress–type girlfriend. Then there were the inherent, palpable evil of Willie Mak and the relative innocence of still at-large Tony Ng. Add the gifted, upwardly mobile prosecutors (both would go on to become respected judges) and the supposed flamboyance of the defense team (me). There had been daily reports for months over the magnitude and intrigue of the trial.
The talking heads on TV, the Nancy Graces of their day—stupid, simpleminded, and pandering to the lowest common denominator—were second-guessing all the decisions the prosecutors and defense lawyers made. There was considerable talk among self-appointed death penalty experts that I should not be doing the case, as I was not recognized as an expert in the field. They pointed to all the choices I’d made over the previous six months: I hadn’t pursued a mitigation package to talk the prosecutors out of the death penalty charge; I forced the case to trial too quickly; I picked a jury in five days, which many experts think is malpractice, as most death penalty jury selections take months, using expensive jury consultants; I didn’t use all my preemptory challenges, waiving many jury issues on appeal, which is a big no-no with the experts; and, finally, I left an IRS agent on the jury. This was all proof, they thought, that I had no idea what I was doing. They predicted Ben would be sentenced to death because of my incompetence.