Authors: Ken Englade
But Hunter was not looking for an easy out; Diamond’s proposal, in fact, visibly irritated him. “Where
was
[the poison] administered?” the judge asked Diamond, speaking sharply. “You tell me!”
“The poison would have had to be administered in Malibu,” Diamond responded, not even slightly repentant. If that were true, the preliminary hearing should have been held in the Malibu municipal court. On the other hand, he continued, if the timetable were moved back a couple of hours, the poison could have been administered in Burbank, and it should have gone to a court there. Diamond argued that the doubt about where the oleander was slipped to Tim should be sufficient to make the judge pause. “The law favors the place where the injury takes place,” he asserted.
Hunter shook his head. Giss was on his feet, waiting his chance to rebut Diamond’s allegations, but Hunter waved him back into his chair. He did not need to hear the prosecution’s arguments, he said. He had made up his mind; he was going to order David bound over for trial.
“I feel that Tim Waters, who was a dying man, was poisoned by oleander,” Hunter said, speaking clearly and deliberately, “and that was the cause of his death. I feel that his death was a homicide. The fact that oleander is fat-soluble is why it took him longer than normal to die.”
Also, he added, demolishing Diamond’s alternate proposal, the fact that Tim
died
in Ventura County while the place where the poison was administered was unknown was sufficient to bring David to trial there. End of discussion.
As David was led from the courtroom in handcuffs and ankle chains, Diamond told Hunter that he planned to file a series of motions to try to block a trial in Ventura.
Hunter smiled indulgently. Go ahead and file your motions, he told Diamond. But in the meantime he was sending the case record to superior court so it could be set for trial as soon as possible.
But it was not as simple as that. True to his word, Diamond filed a flurry of motions, one of which, particularly, almost succeeded.
While waiting for a trial date to be set, Diamond’s research uncovered an obscure state law that prohibited a district attorney from delegating his authority to anyone else. The defense attorney hoped to use this little-known statute as a wedge to stop David’s trial.
Pouncing on the regulation, Diamond filed a motion before Superior Court Judge Frederick A. Jones, who had been assigned to the case and would, unless something unforeseen occurred, preside over future proceedings, including the trial. Diamond’s document insisted that the illegal delegation of authority was precisely what happened when Ventura D.A. Michael D. Bradbury agreed to swear Giss and Rogan as special prosecutors to try David’s case. Additionally, Diamond contended, it had been the Los Angeles district attorney’s office that had been calling the shots from the beginning. It was the L.A. D.A.’s office that decided to prosecute, not Bradbury, he said, and it was the L.A. D.A.’s office that announced that Giss and Rogan would be seeking the death penalty against David.
Judge Jones, a former prosecutor and FBI agent who had been elected to the bench in the late seventies on a law and order platform, let it be known in late November that he was inclined to go along with the defense lawyer on that issue. To the surprise of most of those who had been following the case, Jones said he was seriously considering Diamond’s arguments and might dismiss the murder charge against David.
The announcement hit the district attorney’s office like a bomb. If the judge acted as he indicated he might, it could just about wreck the prosecution, which already was wounded from one blow. About the time Diamond filed his motion, it was announced that Giss’s trial assistant, Jim Rogan, had been appointed a municipal court judge in Glendale by Governor George Deukmejian, so he would be lost as far as any other work on the case was concerned. Rogan had proved himself adept in the courtroom and—since he had been in charge of the prosecution in Jerry’s and Laurieanne’s case—he knew the details of the case as well as anyone, including Giss and Walt Lewis. He would be missed.
Rogan’s departure, however, was a reality, something the district attorney’s office was going to have to live with. A Jones decision in favor of the defense, on the other hand, was anything but a foregone conclusion. Giss would fight Diamond’s motion as hard as he could for a very basic reason: If granted, it could bring an abrupt halt to plans for a trial. If, upon examining the evidence that would be presented by Giss and Diamond, Jones did indeed dismiss the charge as Diamond had requested, the prosecution would either have to refile it—and go through another preliminary hearing—or forget about it.
Both sides had a lot to win or lose; Jones’s ruling would be crucial. And neither Giss nor Diamond had any feeling for which way the judge would come down.
In his first few years on the bench, Jones was regarded as an extreme conservative, handing down such stiff sentences that even prosecutors were often surprised. But over the years, he had mellowed, and by the time David’s case came before him, his reputation was that of a man equally balanced between the prosecution and defense. He was known as a tough judge, but a fair one, a man who could examine the issues with intelligence rather than bias. To help him make his decision, Jones ordered a hearing to give Giss and Diamond the chance to argue their points in person, and reserved a formal ruling until he had listened to the debate. The hearing began early in December.
Giss, realizing that months of work and one of the most important cases of his career were on the line, called Bradbury as his main witness, hoping testimony from the Ventura district attorney would put to rest the defense contention that he had allowed another district attorney to make his decisions for him.
On the stand Bradbury swore that it had been his call, not that of Los Angeles D.A. Ira Reiner, to charge David with the death of Tim Waters. But before Giss could breathe too large a sigh of relief, Bradbury added that he had left to Giss and Reiner the decision on whether the prosecution would ask for the death penalty against David. That, Bradbury confessed, had been a mistake.
Asked how
he
felt about seeking the death penalty against David, Bradbury said he was not sure; he would have to give it considerable thought.
Eventually, after a DDA from Ventura named Kevin De Noce was named by Bradbury to help Giss at trial, replacing Rogan, the Ventura district attorney said he felt that the nature of David’s crime justified asking for David’s execution.
Bradbury’s decision was far from arbitrary; there are several factors that have to be considered before announcing an intention to seek the death penalty. Under California law, a death sentence can be sought only in cases in which “special circumstances” prevail. Poisoning is considered a special circumstance.
However, at the time Bradbury testified in Jones’s court—before he made the death penalty decision—it was far from certain that there would
be
a trial. But after listening to Bradbury, Judge Jones said he felt the prosecution had acted correctly and that the trial would go ahead as planned, which was exactly what Giss wanted to hear.
The relief over the judge’s recommendation to the opposing lawyers to start pointing toward a trial was so great, in fact, that Giss was unworried about another of Diamond’s requests: permission to exhume Tim’s body. The defense attorney wanted to run another series of tests on Tim’s tissue so he could have some documentation to refute Rieders’s powerful testimony. Giss offered no opposition. He was confident in his expert’s reputation, and he figured that additional tests would only confirm the Pennsylvania toxicologist’s findings. In a way, Giss seemed almost to welcome the opportunity since it would give added strength to his argument. Besides, it was something his new assistant, De Noce, had been quietly pushing for anyway.
Although he was only three years out of law school at Pepperdine University, De Noce exhibited a marked bent toward science that went a long way toward compensating for his comparative lack of courtroom experience. He had a real knack for scientific subjects, and Giss respected this. In fact, Giss’s loosely formed trial plan was to let De Noce handle the scientific arguments while he concentrated on the aspects that would allow him to use his expertise with witnesses. De Noce’s job, in other words, would be to prove that Tim Waters was murdered, while Giss’s would be to convince the jury that David was either the actual murderer or that he paid someone to have it done.
Unknown to the prosecution team, Diamond had by this time half decided on a trial strategy as well. Rather than go into court and slug it out with Giss to try to prove David not guilty, Diamond had tentatively determined to concentrate on proving that Tim
had not even been murdered
. But he had to be careful; he could not afford to tip his hand by pointing too strongly in that direction. Instead, he continued with tactics that would make it appear to Giss that he was striking blindly in an effort to find something, virtually
anything
, to keep the case from ever coming to trial. In an attempt to camouflage the importance he was placing on the proposed new scientific tests—which he hoped would show that Tim had died a natural death—Diamond also asked Jones to toss out the charges. If Jones granted Diamond’s request, it would effectively prohibit David from being tried for Tim’s murder not only in Ventura County, but possibly in Los Angeles County as well.
Giss shook his head in frustration, regarding the motion as simply another delaying tactic. In a way he was right; it ultimately would prove ineffectual. But in another way he was wrong. While Giss was busy fighting the defense motion, Diamond was sneaking up behind him with a raised club.
32
The defense attorney’s argument went like this: When San Bernardino County officials entered Oscar’s Ceramics on January 20, 1987, they did so illegally because they did not have a warrant. As a result of that allegedly illegal search and the publicity that followed it, Jim Dame was prompted to come forward with information that eventually led to David being charged with, among other things, Tim’s murder. If—and this was the crucial part—it had not been for that so-called illegal search, David would be a free man.
In legal terminology, a source of material or evidence is called a “tree.” If the source is questionable—for example, if the origin of the material is a prohibited process such as an illegal search—the “tree” is referred to as “poisoned,” and any evidence that flows therefrom is known colorfully as “the fruit of the poisoned tree.” If a judge determines that a prosecutor, for example, has relied on “fruit from the poisoned tree,” the law compels that the tainted evidence be declared invalid. That was precisely what Diamond was trying to do: convince Judge Jones that Giss and De Noce’s entire case was built on “fruit of the poisoned tree” and therefore was nonviable.
But that was not all of Diamond’s multipronged argument. He also asserted that David’s interviews with Detective Diaz on July 15, 1987, and with Detective Hopkins on July 6, 1988, as well as his taped telephone conversation with David Edwards on June 5, 1987, had violated his client’s rights because David did not have an attorney present at the time the incidents occurred. In his view, since those acts also were improper, they formed additional grounds for having the charge dismissed.
Despite the fact that it looked like a stalling tactic by the defense, Jones ordered another hearing. It began in mid-January, 1991, and lasted for four days.
While the prosecution was willing to acknowledge that Wentworth and others entered Oscar’s Ceramics without a search warrant, Giss and De Noce argued it was irrelevant because David had given his consent, not just to Wentworth, but also to his employee, John Pollerana. With consent, a warrant is not necessary. Therefore, the prosecutors continued, if the search was not illegal, then the progression of the case, including Dame’s statements to police and everything that stemmed from them, could not be considered contaminated.
Summing up the prosecution’s position on the issue, De Noce put it picturesquely: “Law enforcement didn’t shake the tree of Oscar’s Ceramics to cause Dame, the fruit, to fall. Dame comes from another tree,” he argued, “and that tree grows out of Lamb Funeral Home. It is not even the same tree. There’s no indication that anybody, in shaking the tree of Oscar’s Ceramics, would ever have brought about the fruit of Dame.”
In his response, Diamond picked up on De Noce’s reference and carried it a step further. “As far as Dame being found out of a different tree than Oscar’s, who is in a better position to Oscar’s and Lamb’s than Dame? Dame knew the connection; Dame knew that the search of Oscar’s was intimately involved with the Lamb Funeral Home. So it’s not accurate to say that the trees were different, that Dame fell out of the Lamb Funeral Home tree when it was only the Oscar’s tree that was shaken.”
Judge Jones shook his head. It really didn’t matter which tree Dame fell out of, he said, because it was Dame’s decision to go to the police; the police did not go looking for Dame. Since Dame instigated the contact, the fruit—his information—was not poisoned, that is, obtained illegally. It did not matter either, Jones added, what prompted Dame to come forward. “While it is uncertain whether Dame first became aware of the investigation at Oscar’s through his attorney or on his own, his decision to contact law enforcement turned upon his acceptance of his lawyer’s advice and was prompted by his concern for his own future welfare,” Jones said, effectively demolishing Diamond’s contention.