Williams, like Burns and Cox, faced the gas.
* * *
On March 2, 1985, as preparations for Burns’s trial continued, LAPD responded to the home of Burns and his mother on Third Avenue in Hyde Park.
Based upon the statements of David Mangola and Darren Charles Williams, both of which indicated that the Rolling Sixties had been paid for the murders at the Alexander house, the police obtained a warrant to search the Burns residence.
Additionally, based upon the theory that there was a hidden stash, ten officers, armed with shovels, dug up the small backyard behind Mrs. Burns’s bungalow.
No money was found.
* * *
The death penalty the three men faced had not been imposed in California for twenty years.
In the liberal moment of the 1960s, majority opinion saw prison’s purpose as rehabilitation. Environment created criminals: victims of social injustice, racial discrimination, poverty, and poor education, the “root causes” of crime. In the 1960s society reformed itself through mass movements. And so too could the criminal be remade, reemerging as a new man, retrained as “a productive member of society.”
Such times left the death penalty both out of touch and out of date. In 1972, in Furman v. Georgia, the United States Supreme Court held that the death penalty, as then applied, was unconstitutional, finding it to be arbitrary, and thus cruel and unusual. The Court found that too many crimes were death-eligible without sufficient guidelines, leaving it solely to a prosecutor’s discretion when to charge the case capitally. This lack of guidelines, the Court held, left the state free to discriminate based upon race. This was most troubling in the South, where prosecutors most often sought death.
In eliminating capital punishment, the Court reversed the death sentences of over six hundred condemned inmates nationwide. This included Charles Manson and his followers, as well as Sirhan Sirhan, the assassin of Robert F. Kennedy.
In the 1970s, as violent crime soared, a backlash surged against the 1960s’ rehabilitative vision. The “tough on crime” movement gained political force, and in 1976, in Gregg v. Georgia, the U.S. Supreme Court set forth guidelines for states wishing to bring back capital punishment.
While death penalty opponents saw Furman as the beginning of the end of capital punishment in America, it marked only a pause. Following Gregg, more than thirty states drafted new capital statutes designed to limit the chances of arbitrary enforcement.
When a Utah firing squad executed double murderer Gary Gilmore on January 17, 1977, the new era of the death penalty dawned.
In the wake of Gilmore’s execution, California sought to revive capital punishment, passing a new law with provisions designed to reduce arbitrariness. Only certain types of egregious first-degree murder would qualify. Capital trials would be cut into two phases: guilt and penalty. And the defendant, if sentenced to death, gained an automatic appeal to the Supreme Court of California.
Now, in March 1985, the attorneys began picking a jury in the case of The People of the State of California v. Horace Edwin Burns.
22
HORACE VS. HORSE
A DEATH PENALTY CASE differs from a noncapital trial in many respects. Because a life is at stake, the process is longer and more complicated, with its own set of rules.
While, as in any criminal case in California, a jury of twelve is chosen and a unanimous verdict required, in capital cases all twelve jurors must be willing to impose death.
Additionally, death penalty cases tend to be high profile, with widespread media coverage. This means a high percentage of potential jurors have already formed an opinion on the case prior to trial.
Therefore, in this case, after determining financial hardships, and establishing which members of the panel were unable to serve due to medical or other reasons, the judge heard challenges based upon publicity.
As the media had extensively covered the murders, the judge dismissed jurors who felt they could not remain fair and impartial in a case with such facts.
The judge then instructed the remaining jurors on their unique role in a capital case:
If the jury finds the defendant guilty beyond a reasonable doubt of first-degree murder and then further finds beyond a reasonable doubt a special circumstance to be true that at that point the jury would be asked to go into what we call a second phase of the trial, known as the penalty phase. And in that second phase you would be asked to determine whether the punishment should be the death penalty or life without the possibility of parole.
Unique to capital cases, the death penalty jury is both the trier of fact—determining whether the evidence is sufficient to convict—and the sentencing authority, deciding whether the defendant will live or die.
The back-and-forth in jury voir dire, the process of picking the jury, is the first taste the jurors get of the gamesmanship marking a capital prosecution.
Sterling Norris warned our family that the trial was a kind of artificial world, with strange rules and procedures that wouldn’t make much sense to us. He let us know that the legal hoops would often be time-consuming and likely frustrating to us as the proceedings unfolded. I knew this world well from my time as a probation officer. For the rest of my family it was a new realm.
While we did not attend jury selection, Norris kept us updated throughout the process. He advised us that picking a jury in a capital case was a lengthy affair. He also stressed the importance. It was vital, he said, to excuse anyone biased against capital punishment.
While we didn’t know it at the time, this kind of capital case minutiae would end up consuming our family for years.
In a death penalty case the prosecution and defense are each afforded a limited number of what are called peremptory challenges. These allow an attorney to dismiss a juror without stating any reason. With a peremptory challenge the lawyer can rid himself of a juror who for whatever reason they feel will not be sympathetic to their case. The dismissal can be based upon hunch, vibe, intuition, anything other than sex or race.
Peremptories are a precious and limited resource, and therefore the attorneys wish to exclude as many potentially hostile jurors for cause, which means those who express an antagonism toward their side: those who will always or never impose the death penalty regardless of the evidence. Any time the attorney can dismiss a juror for cause, a peremptory is preserved.
THE COURT: Now, let me ask you this. Are your feelings about the death penalty such that you would always vote for the death penalty regardless of what evidence?
PROSPECTIVE JUROR: Probably I would vote for.
THE COURT: Is that regardless of the evidence, no matter what the evidence was?
PROSPECTIVE JUROR: Yes.
THE COURT: You would vote for the death penalty?
PROSPECTIVE JUROR: Yes.
THE COURT: And regardless of what evidence was presented in the trial? Would you do that automatically, in other words?
PROSPECTIVE JUROR: Yes. Um-hum.
DEFENSE ATTORNEY: Challenge for cause.
THE COURT: The challenge will be granted.
Conversely, some on the panel felt they could never sentence to death:
THE COURT: Are your feelings about the death penalty such that you could never vote for a verdict of death regardless of any evidence that might be developed at the trial?
PROSPECTIVE JUROR: Well, I was always for the death penalty, but now that I’m here and actually going to get on it, I don’t know whether I can or not.
THE COURT: Do you understand that with regard to the imposition of the death penalty, the jury would have to agree unanimously to impose the death penalty?
PROSPECTIVE JUROR: Yes.
THE COURT: So all twelve jurors would have to agree.
PROSPECTIVE JUROR: Yes.
THE COURT: So each individual juror would have to agree to the death penalty.
PROSPECTIVE JUROR: Yes.
MR. NORRIS: What that really means to you is that it would be your vote that would se
ntence another human being to death.
PROSPECTIVE JUROR: I just don’t think I can vote for the death penalty.
DEFENSE ATTORNEY: Under any kind of case? Hitler? That type of person, could you vote death if you had someone like that? So you’re saying no matter what the evidence is—
PROSPECTIVE JUROR: I’ll have to say that. I’ll have to say that, yes.
MR. NORRIS: Now, after you’ve considered all this, is it your opinion as you sit there now that you could not personally yourself ever impose the death penalty upon another human being?
PROSPECTIVE JUROR: No.
After impaneling hundreds of prospective jurors, a jury of twelve, along with four alternates, is finally selected. All swear to apply the law and impose death if the evidence so merits.
From the prosecution’s perspective, this is the only way the death penalty can function. Were it otherwise, and jurors categorically opposed to capital punishment were allowed to find their way onto capital juries, it would render a death verdict impossible, no matter the evidence. This would mean a total rejection of the voters’ will, as they overwhelmingly supported the death penalty’s reinstatement in 1978.
For the defense, and death penalty opponents, the process ensures that capital juries are both predisposed to vote for death—as all twelve have assured the judge and attorneys that they can do so—and also more conservative, as citizens who favor capital punishment tend to be right of center.
* * *
Due to issues of timing—Cox and Burns were arrested long before Williams—and to legal prohibitions on using Williams’s statement against the other two defendants, the cases were severed, with each defendant tried separately.
While this would drag the proceedings out for much longer, I felt it would provide the prosecution with a psychological advantage.
So much of the persona and the swagger of the gangster is tied to the group, and the proximity of the homies. They feel safe, insulated, caught up in the fantasy of the mob. Collective presence emboldens, convincing them to remain tight-lipped and unified, not wishing to be seen as weak or to let down the crew, and perpetuating the fiction of street warriors against the world.
Sitting alone he is stripped of his protective illusion. He is isolated, out of his comfort zone. No eye contact, smirks, hand signals, or gossip, none of the little street reassurances. Severance leaves him vulnerable and insecure, sending the message that the power dynamic has flipped. He will now be judged by society’s standards, not those of his subculture. Killing of innocents will now be condemned, not lauded.
Additionally, the three defendants posed less of a threat to courtroom security when separated.
Once the death-qualified jury of eight men and four women was sworn in, testimony in the Horace Burns case began in April 1985, in Department 132 of the Criminal Courts Building in downtown Los Angeles, Honorable Aurelio Munoz presiding.
My family and I sat in the first row of the gallery. We were scared, angry, and confused. We also remained divided. The murders had ripped the family apart. We hoped a guilty verdict could help put it back together.
But we knew it would be taxing, that until all three trials were over our lives would be on hold, dominated by the fits and starts of the legal system. For years we would be forced to relive the crimes, subjected to autopsy photos, defense arguments, and the ongoing presence of the killers.
* * *
Heading into the Burns trial, the defense was confident, the prosecution uneasy.
Burns’s two attorneys were both experienced criminal defense lawyers who had tried death penalty cases since capital punishment returned to California.
Gerald Lenoir was five feet, three inches tall, described by a colleague as “brilliant.” He had migrated to California after graduating from a small African-American college in Missouri.
Lenoir’s co-counsel, Hal Miller, was a lifetime resident of Los Angeles. He attended UCLA, and in 1956 ran on the same track-and-field team with Olympic gold medalist Rafer Johnson. Miller’s family migrated to Los Angeles from Oklahoma and Kansas in 1906.
Hal Miller’s uncle, Loren Miller, was one of L.A.’s most famous black attorneys, working with Thurgood Marshall on Shelley v. Kraemer, which declared restrictive housing covenants unconstitutional, and Brown v. Board of Education, which struck down school segregation.
Lenoir and Miller posed a challenge for me that I would deal with throughout the trials. These defense attorneys seemed like decent men and we shared similar pasts. Logically, I also knew that all of the defense attorneys were just doing their jobs. But none of this overrode my anger when they argued on behalf of my family’s killers. This pattern would hold for all three trials. I could feel it in my nearby family members as well. When the defense attorneys spoke, a kind of electric tension pulsed between us.
I knew the justice system well, and dealt with it for years from the inside. What a difference when it’s no longer a job, but your life.
In the Burns trial, both Lenoir and Miller felt an acquittal was likely. The prosecution’s case, as far as they could tell, would rest largely on the testimony of drug dealers, drug users, accomplices, and informants. Of the three defendants Burns would be hardest to convict.
In the first week of trial, the prosecution relied upon police testimony and forensic evidence to establish the murders. Norris also put Linda Lewis, Cassandra Haynes, and Burns’s county jail cellmate, David Mangola, on the stand, to prove Burns’s knowledge of the crime.
The star witnesses for the prosecution would be Ida Moore, the driver of the van, and her front-seat passenger, Delisa Brown. Both were granted immunity from prosecution in exchange for their testimony at all three trials.
Unknown to the authorities at the time of the January preliminary hearing of Cox and Burns, Brown and Moore would now reveal what took place inside the van in the early morning hours of August 31, 1984.
* * *
Before Moore and Brown could take the stand, the Burns case took a strange turn.
Attorney Miller would later say that in a matter of seconds, the case changed from likely acquittal to a mad scramble to beat the gas. The defense was broken. Miller said Norris grinned like the Cheshire Cat.
Despite the advice of his attorneys that there was nothing that Cox or Williams could do to help him, Burns refused to believe them and took action. A week into the trial, Burns attempted to contact Cox.
At 6:45 p.m. on April 8, 1985, as a Los Angeles County deputy sheriff escorted Cox and several others to a visiting area in the county jail, Burns dodged into the line and jammed a bunch of papers into Cox’s hand. Cox took the papers and tried to stuff them into the left breast pocket of his jacket. A deputy witnessed Cox’s moves and confiscated the papers, which he said were “folded up in a fashion as if a very large item was contained in the envelope.”
The papers were a jailhouse “kite,” a secret communication between inmates.
The ten handwritten pages, described by some as looking like “chicken scratchings,” were examined by an LAPD handwriting expert, who said he was “completely certain” that all ten pages were written by Burns. He added that when Burns was brought into the room with him he exclaimed: “That’s my writing. I wrote that.”
The intercepted letter was at once a revealing look into the violent world of the Rolling Sixties, a damning piece of evidence against Burns, and a depressing window into the antiliterate world of the streets.
Norris said the kite was “better than a ten-page confession . . . because what this gives is the innermost understandings, the innermost feelings of this defendant in relation to the crime, in relation to his conspirators. . . .”
Norris would use the letter to prove that Burns shared the intent to kill on that early morning. He would also use it to show Burns’s efforts to escape justice, citing the language “Let’s beat this DA” and “two of us should spring the one.” The kite also showed a common cause between the three gang members. Finally, the letter exhibit
ed an arrogant lack of remorse.
Norris summed up the sentiment: “We’re going to be able to do whatever we want. We’re going to be able to work our will. Not just the crime. But in accomplishing our will wherever we want to.”
The symbol RSC, for Rolling Sixties Crips, is at the top of the letter, and Burns tells Cox, “I love you homie.” This was strong evidence that the crime was done with an understanding between Cox and Burns and on behalf of the gang.
The margins of the letter contain dozens of names of other gang members. Many have question marks after them, indicating Burns’s suspicions regarding the commitment and loyalty of these individuals: “Mumbles? Snoop? J. Bone? Slip Roc?” Others like Catman are crossed out, indicating that they had snitched and should be killed.
The letter, filled with misspellings, street slang, and the purposeful substitution of the letter B, for Bloods, with C, for Crips, provides a window into the thinking of a Rolling Sixties gang member.
The primary theme was how the three could beat their respective cases. Burns writes to Cox, “Let Mumbles and Mup Read this an you get your think cap on and see can we try to get out of this mess.”
Throughout the letter Burns weighs the strength of the evidence against each of them, concluding that the case is weakest against him because he did not leave the van, and therefore, every effort should be made to free him so that he could help the others escape.
Key to this theme is the upcoming testimony of Ida Moore and Lisa (Delisa) Brown. The two women would place Burns in the van and show that he had knowledge of the intent to kill.
“The bitch said I knew about it and she didn’t. So the things are looking like none of us are going to beat this,” Burns writes.
Attempting to demonstrate to Cox that he, Burns, was their only chance, he continues, “Now C. Dove made statements that’s going to hang him, and you got to mush against you and Me by those bitches put me in that van and I new everything that was happening.”
The Valley of the Shadow of Death Page 16