Devil's Defender

by John Browne

  That morning I wore, as was my custom during trials, a thirteen-dollar Timex watch as a good luck charm, and stood in front of the jury for my opening statement. I spent the next thirty minutes telling them that, yes, Benjamin Ng was at the Wah Mee Club on the morning of February 19, 1983, and, yes, he participated in the robbery. But, I said, my client didn’t know the murders would take place and left the scene without a drop of blood on him. “It was undisputed that Mak was the leader,” I said.

  My investigators, Sylvia Mathews and Chris Beck, found as much dirt as they could on Willie, and I intended to use it, along with expert medical testimony on Ben’s brain injury, and of course the matter of two guns, three perpetrators.

  In a death penalty case there are two phases. The first is the fact phase: Has the government proven its case (here, thirteen counts of premeditated murder) beyond a reasonable doubt? The second, the penalty phase, asks if there are any mitigating circumstances that warrant a life sentence.

  Only one juror need answer yes and you’ve beaten a death sentence. So you don’t want to go through some elaborate song and dance about how your client is innocent if you know they will be convicted in phase one and you need the jury to trust you in phase two. Many lawyers make this mistake. Juries are unforgiving. It cannot be understated how much gaining their trust can control the outcome of a verdict. As a result one of my basic rules is never lie to a jury. Withholding evidence is OK, but never lie or make a promise you can’t keep. If you do so even on one small point, you’ll lose them.

  So during the fact phase I focused mostly on the point that only two of the three perpetrators fired guns and Wai Chin did not know which two. We avoided some wild theories about tong intrigue, coercion, and duress, which came up in Mak’s trial two weeks later. Keep in mind we never said Ben was not a shooter, only that the state could not prove he was.

  The first phase of the trial lasted just six days, as many of the facts were not disputed. The verdict, on Wednesday, August 24, came quickly: guilty of thirteen counts of first-degree murder. For the penalty phase, which took up all of the following day, we put on evidence about Ben’s brain injury and how his judgment was impaired, and did so in a way that observers to this day say changed Seattle judicial history.

  King County prosecutor Norm Maleng had assigned his A Team to the case. Now I had mine: Ben’s mother spoke no English whatsoever, and all the interpreters had turned us down for fear of retribution in the community. So Judge Howard allowed Ben’s older brother, Steven, to interpret for her. People thought I was behind it, but I had nothing to do with what happened next.

  His mother, Shun Ling Wong Ng, showed up in traditional Chinese dress: silk everything, traditional cap, and turned up shoes. I had no idea she would appear this way until she entered the courtroom. She told the story of how the crazed woman had assaulted Ben in the marketplace in Hong Kong, hitting him with a board and calling him the devil. Ben was less than two at the time. Mrs. Ng broke down but finished her testimony. Steven then began guiding her past the jury box. She paused, turned to the jury, bowed, put her hands in a prayer position, and said in halting English, “Please don’t kill my son. Thank you.”

  She turned and left. The moment was so powerful, Judge Howard had to take a long recess.

  The penalty verdict came back quickly—after just two and a half hours. Not a good sign. We had reason to worry. (Weeks later Willie Mak received the death penalty, though it was reduced to life without parole after years of appeals; Tony Ng received thirty years to life and was deported to Hong Kong after serving twenty-eight years.) But when our verdict was read we had five life votes. We only needed one. One of the life voters was the IRS agent I had kept on the jury, a much-criticized decision by the self-appointed death penalty experts.

  Saving Benjamin Ng’s life was the most dramatic and unexpected victory of my career and remains so. I still occasionally hear from Ben (now serving a life sentence) and his family and always receive a Christmas card with good wishes and thank-yous. The family knows he participated in a horrendous event that changed Seattle forever. But they are grateful he was not murdered by the state.

  The day after the verdict I was interviewed live on the local NBC affiliate, and the interviewer seemed greatly pissed that Ben’s life was spared. She asked how I could justify such a result. I looked at her with pity and said simply, “There has been enough killing.”

  17

  I WANT A NEW DRUG

  I had abstained from drugs and alcohol for the three months prior to and during the trial, so my friends and I started celebrating with coke and alcohol up in my Smith Tower office shortly after the verdict. We ran out of coke at about 2:00 AM. I couldn’t reach my dealer on the phone, but I was determined to keep the party going.

  I was wearing my most expensive suit, Ralph Lauren, and slipped into the seat of my old but pristine black Mercedes Benz 280SE 4.5, an eye-catcher with personalized license plates—a gift from some cops I’d successfully represented—that said ACQUIT. The whole picture was not subtle.

  I drove to a seedy part of town to break into my dealer’s apartment. It was raining of course, and I parked my car in the alley. I left it running and jumped on the fender to get over the backyard fence. My pant leg caught on a nail, and I fell into a pool of rainwater and cat shit. I looked up and saw the rain coming over the fence and the lights from my car. I said to myself, There is something wrong with this picture. Of course, this event did not deter my obtaining what I wanted from my dealer’s apartment, which was open. I sped to the office and continued to party in my now smelly and wet suit. But the irony was not lost on me. I had gone from saving a young man’s life and being on national television to lying in a pool of cat crap, all within the space of a few hours.

  By this time I was on magazine covers and had been dubbed one of Seattle’s most eligible bachelors. (What a joke! I was married to my ego.) I’d developed a national reputation as a very well-respected defense lawyer and was giving speeches and press interviews. But I hated myself. I remember reading a magazine article about myself while very drunk and high. It was the only way I could deal with success.

  I couldn’t shake the cat shit incident. I knew there was a great big hole in my life I was trying to fill with drugs, alcohol, cars, and women. I was miserable and started to look around for solutions to my self-destruction. The answer came while I was in Death Valley cleaning floors and toilets at a retreat center run by Richard Moss.

  My good friend and investigator at the time was a women named Sylvia Mathews. She saw how I was falling apart, and cared. She had decided to go to a ten-day intensive retreat at Richard’s ranch in Death Valley and invited me along. We didn’t really know what Richard did but had seen major changes in a mutual friend who followed Richard’s work. Our friend could not really describe the process of what went on, which should have been my first clue that I was in for a wild ride. I was so unaware of the profound nature of Richard’s work that I brought along my tennis racket! By the end of the second day my life had been completely transformed and I had been, not so gently, introduced to the mystery of awareness. As Van Morrison, sage and seeker that he is, said, “Never give a sucker an even break / When he’s breaking through to a new level of consciousness / There always seems to be more obstacles in the way.”

  Richard’s work is not therapy or religion. It is about what Joseph Campbell called the feeling of being “radically alive” and developing intimacy with life. Richard once said to me that “the depth of the attention (not intention) we give to this moment is the definition of intimacy.” So it’s all about living in the present, a concept easy to grasp but almost impossible to live. I once said, in a prayer in a sweat lodge, “God grant me the wisdom to live from (not for) this moment and the courage to do it over and over and over again.” Richard thought that was kind of cool. A rare compliment from the master.

  The retreat began late one afternoon in the group room; there were about twelve “students.” I was ve
ry uncomfortable not being in control and having no idea what I was doing. I was negative and cynical, using small talk and humor to deal with my uneasiness. Richard told us all to be quiet and after a few minutes declared that we were going on a rigorous hike in the foothills. We ended up on this cliff with a hundred-foot or so drop-off, and were told to go to the edge and put our toes over the edge. Some refused, for good reason, and were asked to leave the workshop. If you don’t do all that’s requested, you leave. It’s that simple. I had no problem, as I like heights and was young enough to trust my balance.

  We returned to the ranch and were sent into the desert in groups of three to sing until we had some sort of breakthrough. Now this felt real stupid. First of all, I can’t sing well—in my band they would put a microphone in front of me but not plug it in! Second, what was this supposed to accomplish? There was no logic behind it. I was totally resisting this second exercise. But I went with my group, volunteered to go first, and sang what I remembered from Tim Buckley’s song “Buzzin’ Fly.” Within two minutes I was sobbing for no reason I could identify. I still don’t know what that was all about, but I do know it broke down most of my defenses.

  Over the next nine days we did many unusual exercises. One was whirling, as in whirling dervishes. We were supposed to spin on the grass barefoot until we gave up control of everything. Two more people left the group for failing to participate in this exercise. I was doing my best, and Richard came over to me and said I was trying to control my being out of control. I spun like a maniac, fell down, and barfed on Richard’s shoes.

  We also did a lot of “Who are you?” exercises, fasted (no food or speech), and ended the fast with time in a sweat lodge at 4:00 AM. This was powerful stuff. And it worked: my ego was broken. But what now? The real necessity is learning to live with this awareness in the real world. This remains a challenge. I participated in advanced retreats over the next few years—they helped me kick my drug habit and, later, provided the tools I needed to quit drinking—and this work was a major catalyst for change in my life.

  18

  FIGHTING FOR WOMEN

  WHO FIGHT BACK

  While I was defending Benjamin Ng—and meditating my way toward sobriety—I was involved in two cases that might, given my counsel of Ted Bundy, surprise a lot of readers: Claudia Thacker and Ivy Kelly.

  Claudia Thacker survived the Nazis. She survived an impoverished, asthmatic adolescence in post–World War II France. And for a long time Claudia Thacker survived Kenneth, the US Air Force officer who impressed her strict Catholic parents, won her hand in marriage, and brought her to the town of Port Orchard, Washington, some twenty miles southwest of Seattle.

  For twenty years Claudia lived inside a nightmare, taking thrashings from Kenneth, who beat her before, during, and after intercourse, and who, as their four children matured—three daughters and one son—took to beating them too. By the mid-1970s a pattern had emerged: Kenneth would sulk in the basement for hours downing beers before climbing the stairs to unleash the breadth of his drunken rage on his family. Even the Port Orchard chief of police would later allow that his own kids, around the same age as Claudia’s, used to note that the Thackers showed up to school spangled with bruises.

  Claudia had few friends and no one to confide in. Kenneth forbade her from learning to drive, making outside connections—and any possible lifelines—nearly impossible to obtain. And she had to account for every penny: her husband would hand her a blank check and send her into the grocery store, and if the amount of the check stub didn’t match the grocery receipt, she faced a pummeling. As things worsened she didn’t even dare walk out to the mailbox, fearing Kenneth’s reaction.

  Then on Labor Day, September 5, 1977, Kenneth pushed her too far. He rose from the basement that afternoon after a long weekend of drinking and nattered on about, of all things, clothing. Claudia and the kids had recently bought school clothes. “Who buys sweaters in the middle of July?” he boomed, so inebriated that he didn’t seem to know what month it was. When Claudia tried to calm him he kicked her, slammed her against the refrigerator, and then grabbed one of their daughters by the throat and threw her across the room. “I’m going to kill you all!”

  Their son fled the house. The three girls escaped to their rooms.

  As for Claudia, something in her changed. A sense of resolve flooded over her, and she ran to the master bedroom, to her husband’s bedside table, to the one thing she could think of that would deliver her and her children from the nightmare.

  Kenneth barged into their seventeen-year-old daughter Linda’s room, back out into the hall, and then back toward Linda’s room again. “I’m going to kill you!” he repeated.

  The sound of gunfire. Claudia holding the pistol. Kenneth crumpling to the floor.

  He died on the way to the hospital.

  The verdict was swift: guilty of second-degree murder.

  Out on her own recognizance, as her conviction was under appeal, Claudia worked at a floral shop and gained a sort of celebrity in the community. People, especially women, saw in her story something of themselves. “I’d have done the same thing Claudia did,” an elderly businesswoman told Seattle Times reporter Janet Horne in an April 9, 1981, article. “Probably I’d kill for my grandchildren, too.”

  A local chapter of the National Organization for Women, or NOW, set up a legal fund and retained the services of John O’Connell, a former state attorney general (not the same John O’Connell who defended Ted Bundy in Utah). Evidence had been withheld from the first jury—a psychiatric evaluation that would have shed light on Claudia’s state of mind at the time of the shooting. The state supreme court overturned the conviction. A new trial was set. And when the Northwest Women’s Law Center requested that I represent Claudia, I gladly accepted.

  In March 1981, three and a half years after Kenneth Thacker’s death, and after numerous pretrial motions, Judge J. W. Hamilton allowed us to present evidence of the battered woman syndrome to the jury. The condition is complex and in some ways counterintuitive, as battered women can be strong individuals on the outside. It’s characterized by “learned helplessness” brought on by many factors, all involving the loss of individual power and self-worth. Those who abuse their partners (there are battered men also) take control of all aspects of that partner’s life. They control all the money and must give permission for the partner to leave the house or to have a particular friend. The goal is to isolate the spouse. All this is critical for jury members to understand, lest they assume the battered spouse could have walked out at any time. They cannot. The syndrome traps them.

  I also showed the jury charts and maps of the Thacker home on the day of the shooting to dispute the prosecution’s contention that Kenneth was shot from behind. “Look at the path of the bullet,” the Seattle Times quoted me telling the jury. “Now unless he’s walking down the hallway sideways, bullets don’t go like that. But if he’s standing over Linda, that’s what would have happened.”

  The elected prosecutor in the county, known for his buffoonery, had said that if Mrs. Thacker got away with the crime, it would be “open season” on husbands. Well, she did get away with it. The jury found her not guilty in less than one hour, which included a lunch break. The jury also awarded her attorney fees, a novel procedure in Washington State reserved for those who’ve been found to be wrongfully prosecuted in a self-defense case.

  Like Kenneth Thacker, Jack Kelly, fifty-nine, was a mean drunk. On Saturday, August 30, 1980, he started early, draining all the booze in the house before stamping off to the liquor store to replenish.

  He returned late in the afternoon, stumbling into the kitchen, where Ivy, sixty, was placing in the freezer the apple pies she’d made and was about to make jelly with the apple peelings. She had had three kids, now grown and with children of their own, before she married Jack four years earlier. He beat her regularly, one time so badly that she required hospitalization.

  “Have a drink with me,” he implored.


  They sat down for a drink. Then, inexplicably, Jack grabbed Ivy’s full glass and poured it on her head. He stammered an apology and served her another round. But he had the look.

  Slurred speech, glassy eyes—Ivy knew the signs. A beating was imminent.

  He stepped outside with some tools to do repairs around the house, then came roaring back inside. “I’m going to kill you, you witch!” he screamed, blocking the only exit.

  Ivy retreated to the coffee table where Jack kept his gun in a drawer. She raised the weapon and aimed, hoping Jack would back down. When he didn’t Ivy pulled the trigger, and Jack collapsed.

  Despite evidence that her husband had banged her up in the past, a Snohomish County Superior Court jury found Ivy guilty of second-degree murder, and she faced a twenty-year prison sentence. The problem was that in many aspects of her life Ivy was the epitome of a powerful woman. She was even a bush pilot in the Alaskan wilderness. In rebuttal to the defense case the prosecution was allowed to put on evidence that Ivy had aggressive exchanges with neighbors and, on one occasion, went after Jack with a shovel, banging on the back door with it, trying to get back into the house, where Jack was armed with a gun.

  The Northwest Women’s Law Center brought me in to work on Ivy’s appeal. I argued that such specific instances of prior conduct were not admissible as relevant to disprove self-defense. (Even if they were relevant, they were much more prejudicial than relevant.) No luck. In December 1982, the state court of appeals upheld Snohomish County’s decision.