Authors: Ken Englade
“Then put me with him,” David said defiantly. “Put me with him. Give me a motive to want to do anything to the guy, a guy I never met or talked to in my life. Give me a motive.”
“Well, I mean—”
“What motive? What motive?”
“The fact that he was spreading—”
“Spreading rumors? People were writing things about me? These guys all got together. It’s called a term I am sure you are familiar with if you are familiar with informants. It’s called ‘getting in the car.’ They get two or three guys in the car, they all try to say the same thing so they can add weight to it. Prosecutors nowadays are using it more to jerk bail and to add different charges. They still use it to buttress weak cases.”
Hopkins let him work off his anger, and then approached him again from a different angle. “What I am interested in, really, Dave, is that you know that there is testimony that there was a second person involved in your meeting with Waters in the restaurant.”
David refused to play. “I never met Tim Waters at a restaurant,” he contended again. “I never met Tim Waters. Never!, Ever! Never!”
“There was a second person—” Hopkins began.
“There was a person that didn’t like Tim Waters at all,” David said, moving in the same direction he had with Diaz. “There are a couple of them.”
Hopkins wanted to know if David would talk to him about those people.
“This is very relevant to my defense later on,” David said. “It is important to show why I didn’t do what these people say I did. It’s very important, and if I knew for a fact that you guys were not going to talk to the Pasadena police, I would tell you this right now. I’d give you the person who had the motive, why he had the motive, what he talked about, and four other people who heard him talking about it. I’d tell you why he wanted to have Tim Waters whacked.” His condition for talking, he added, was bail. “Give me bail so I can fight my case from the street.”
Hopkins said he had no authority in Los Angeles County, that he could do nothing about the charges against David there.
David looked at him skeptically. “No, but you could talk to people.”
“I can’t make you any deals,” Hopkins said.
“I’ll help you guys,” David said. “And then you can pound the guy who had this done because I even went with this guy to the Holiday Inn to talk to Tim Waters, but he wasn’t there. I went there with this guy for the specific reason of talking to Tim Waters not about my business but about what this guy wanted to talk about.”
“Do you want to tell us about that,” Hopkins pushed. “I would think, see the way the D.A. up in Ventura is looking at this, we’ve got you wrapped up pretty good just on what we have.”
“No, you don’t,” David volleyed. Staring at Hopkins he softly voiced a challenge. “Fine, then,” he said slowly. “Then wrap me up. You aren’t going to because I didn’t do it.”
Again the discussion wandered off, but ten minutes later Hopkins brought the issue up yet another time. “Are you saying that sometime in the future you might give us that information?” he asked.
“Yeah,” David said. “Work with Pasadena and have them give me reasonable bail so I can go free. I want to put every mother’s son in front of a jury and let us cross-examine those assholes. I am living for that day. I don’t think the D.A. is stupid enough to put them on, but if he is, more power to him. You get me a workable bail, I’ll give you the guy and the motive and four other people who heard him talking about it with Tim Waters. It ties Galambos into it too.”
If Hopkins had a choice, it would be for David to share his information with him right then. I’ll give it one more try, he thought. To David, he again tried to emphasize the importance of the Rieders report. “And I am not bullshitting you, David.”
“Spend the county’s money all day long,” David responded.
“We’re not bullshitting you,” Hopkins added. “We’re being up front with you. That’s why the tests took so long. He eliminated any other possible cause of death.”
“He did?” David replied acerbically. “Okay. If you got that, then come on with it. That’s all I can say: Come on with it. I know I had nothing to do with it. I don’t positively know that he wasn’t poisoned because I didn’t know him. But I know I didn’t have anything to do with his death in any way, shape or form, so it doesn’t bother me.”
David, however, was unwilling to let the interview end without touching on his two favorite topics: conditions in the jail and Walt Lewis.
First, the jail: “Roaches this big,” he said, holding his fingers several inches apart. “They fly. I have never seen a cockroach fly in my life until I was over in [the] old county [jail]. And, you know, queens. I never seen guys with breasts before. Running around with hard-ons, chasing each other around in the shower. I never saw that until I was over at Old County. I could write a book about this place. Most of the cops here, I don’t know how they put up with the scum that they have to deal with on a daily basis. They are incredibly patient. Some of them have attitudes, but most of the cops try. That is a salute to them.”
“I’ll give your attorney a call,” Hopkins promised.
“Or call the clown, the new D.A. who is taking this case over,” David said. “I don’t have a real high opinion of Walt Lewis because of how he slimed me all through the preliminary, and I knew he was sliming me. I knew he was coming down talking to jailhouse informers. I knew all this as it was going on, and I knew what the jailhouse guys were doing to me, and I didn’t figure that anybody who could believe all that crap was looking out for my best interests. So I don’t hold a high opinion of Walt Lewis.” He grinned. “But you knew that anyway, didn’t you?”
Hopkins left the meeting with a personal opinion of David that closely matched that of Diaz. But where Diaz had disregarded most of what David had said as sociopathic blathering, Hopkins was more intrigued by his comments.
Specifically, he found it particularly interesting that David was saying two things at once. In one breath he claimed that Tim Waters was not murdered, that he died a natural death. But in the next breath he contended that he knew who had a strong motive to kill Tim, and who in fact may actually have committed the crime.
It was something for him to think about on the hour-long drive back to Simi Valley. David had been very cryptic. The more Hopkins thought about it, the more he wondered exactly who David was trying to finger. Finally he decided it was Steve Strunk, whom David had fired. David seemed to be hinting that Tim was competing with Strunk’s father, who owned the Cremation Society of California. Strunk’s CSC and Tim’s Alpha Society may have been direct competitors, David seemed to be saying, while his own company, Coastal Cremation, was in a different league altogether. Since David was for all practical purposes the cremation king of California, he professed not to be worried about the minor irritation that Tim could have caused him. Hopkins, however, was aware of no evidence even remotely connecting Strunk to Tim’s death.
But it was not as simple as that in the labyrinth of the Los Angeles funeral home industry. There were wheels within wheels. For example, if David indeed was pointing toward Steve Strunk, there could be several motives for David to seek to frame Strunk. For one, Steve Strunk was a potentially powerful witness against David as to what had been going on at Lamb Funeral Home/Coastal Cremation. For another, David was charged with conspiring to murder Elie Estephan, the inheritor of Frank Strunk’s CSC—a company that David was reputed to covet. And, for still another, Steve Strunk might be the only possible witness who could testify to a physical link between David and Tim.
Holy cow, Hopkins thought, braking to a crawl in the freeway traffic, it was enough to give a guy a headache.
27
After Hopkins’s interview with David and the publication of Rieders’s report, the detective began an exhaustive investigation to try to connect David to Tim Waters’s death. Although the detective visited a lot of restaurants up and down the coastal strip of Ventura County searching for someone who may have remembered serving the fat guy and the weightlifter, he came up professionally hungry. The prosecution, in fact,
never
was able to find a witness who would swear to seeing Tim and David together on Good Friday evening in 1985. Three and a half years was just too large a gap, given the vagaries of human memory for a casual event and the rate of turnover in Southern California restaurants.
Going at it from another angle, Hopkins sifted through stacks of reports from the major credit card companies and mounds of canceled checks, hoping David might have left a paper record of the meeting. Again, he drew a blank.
Although the detective was coming up empty in his exhaustive attempts to uncover sources in Ventura County, there were still the funeral home/tissue bank charges pending against David, Jerry, and Laurieanne in Pasadena. The voluminous file on those accusations, the ones that Judge Person had determined were valid enough to demand an airing in a court of higher jurisdiction, bounced from desk to desk before settling in the in-basket of Judge Terry Smerling in Department D of the Pasadena branch of the Superior Court of Los Angeles County. (Judicial trivia: In California, municipal courts are called “divisions” and carry a numerical designation; superior courts are “departments” and have an alphabetical designation.)
David could complain all he wanted about the unfairness of the system in effectively denying him bail, but the fact that his file ended up with Smerling would prove to be an unbelievable piece of good fortune. While Person, the former DDA, had a reputation as a pro-prosecution judge, Smerling was at the other end of the spectrum; definitely pro-defense.
A slight, balding man of medium height, Smerling was born in Los Angeles but went back East for his legal education, graduating from Columbia University School of Law in 1970. His first job after returning to California was with the Legal Aid Foundation in Long Beach. After three years there, he went to the Greater Watts Justice Center, and in 1977 he became a staff lawyer for the American Civil Liberties Union.
As an ACLU lawyer he was lead counsel in a highly publicized class-action suit on behalf of three inmates at the Los Angeles County Central Jail,
Rutherford v. Pitchess
, which, in 1979, resulted in a sweeping order for reforms at the facility. He also was responsible for another high-profile civil liberties case,
Youngblood v. Gates
. It was precisely this activist position that influenced Governor Edmund G. Brown Jr., a liberal Democrat, to appoint the thirty-seven-year-old Smerling to the bench in November 1982.
From his first job in municipal court, Smerling moved up to superior court in 1984, serving initially as a trial judge in the Van Nuys branch. From there he went to a job as an administrator primarily responsible for arranging court calendar dates for petty criminals. Then he was transferred to Pasadena, and it was back to being a trial judge again.
As a trial judge in superior court, as opposed to his position in municipal court and before that as an activist lawyer, it was Smerling’s job, in the absence of a jury, to decide on the guilt or innocence of people who came before him. Sometimes he had to sentence those people to jail, although it was a role he admitted he found personally abhorrent. In a 1985 interview with the
Los Angeles Daily Journal
, a publication covering the area’s legal and judicial scene, Smerling readily confessed to his personal discomfort in dealing harshly with lawbreakers.
“I’m not eager to put people away in jail,” he said. “I’m painfully aware of how bad jails are. I believe, as I did at the ACLU, that jail is indeed appropriate for some people, but particularly for [those] the first time around, possibly just being processed through the system is a sufficient deterrent.”
If it had been possible for David to have
hired
a judge, he could not have found one more predisposed to his plight, or one more likely to give a sympathetic hearing to his complaints about the conditions he was forced to endure as an inmate, than Terry Smerling.
During his stint as an administrator in the Van Nuys court, part of Smerling’s job was to negotiate sentence agreements with defendants who otherwise would have had to appear in court, thereby being exposed to the possibility of having to serve hard time. Since jail sentences were repugnant to him, Smerling was totally comfortable with “indicated sentences,” which are roughly analogous to plea bargaining, since that way he could dole out probation rather than hard time. And with that character trait as a given, it should have been no surprise when the forty-three-year-old Smerling suggested a deal. Listening eagerly to the judge’s proposal was David’s new lawyer, Guy O’Brien.
O’Brien had replaced Diamond between the time the Sconce case left Judge Person’s court and the time it ended up in Smerling’s. Diamond was not reappointed to represent David because of a possible conflict of interest after it was discovered that he also had represented Randy Welty, a major financial backer of the CIE&TB, in a case stemming from Welty’s role as the owner of several adult bookstores. Since David might later try to blame Welty for his own wrongdoing at the tissue bank, Diamond’s exit was viewed as a necessity. That meant a complete turnover in legal counsel, as far as David was concerned, because by that time Walt Lewis was off the case as well. Because of David’s threats against him, Lewis had a personal involvement in the case, and that could hinder him in doing his job. He was replaced by a young DDA named James Rogan.