the Onion Field (1973) (54 page)

The rest of the day and the next day involved a lengthy hearing wherein Jimmy Smith took the stand to testify seeing Halpin with a gun. Gregory Powell was called by Kanarek but declined to become involved, invoking the fifth amendment. The matter was finally resolved by calling a deputy sheriff who was also involved in the alleged incident.

"About a week or so ago, Deputy, did you have a conversation concerning a pistol with Mr. Halpin?" asked McCormack of the witness.

"Yes, I did."

"Did you bring such a gun to court?"

"Yes."

"Did he hold it and examine it for a while?"

"Yes."

"Did he slip it into his waist?"

"Yes. Then he returned it to me."

"And did you take it from the courtroom?"

"Yes."

Charles Maple cross examined this witness and determined that Halpin was considering buying a weapon and was being shown the gun by the deputy, who was also a gunsmith. Everyone was finally satisfied that Halpin was not going to shoot anyone, but Jimmy Smith and Gregory Powell were disappointed that the whole affair came to so little. But then, you never knew what could be cause for review and reversal. You just never knew.

After many months Judge Peracca would, by noon recess, be sitting at the bench with his head in his arms. His life was literally in danger and he was removed from the case, eventually undergoing heart surgery. The case was wearing out many judges.

Typewriters brought into the jail were routinely checked for hacksaw blades and vials of hydrofluoric acid used to melt steel, but on June 4, 1968, a narcotics officer received a tip from an informant that three guns would be coming into the Los Angeles County Jail inside an Underwood typewriter. As always, Greg and Jimmy were the victims of informants. They would always blame the assassination of Senator Robert Kennedy for foiling their scheme, but actually, the plan never had a chance. As usual, if they didn't inform on each other, someone else would do the job.

Police and prosecutors would credit Gregory Powell for masterminding the aborted escape attempt, but for once he was following another's lead, at least at first.

"Come on, Greg," said Jimmy in the jail one evening when they were making the last of their allotted calls, but Greg winked and grinned and continued the low whispering stream of erotic promises he was making to the woman on the other end of the phone.

By now Maxine had taken up with a dishwasher called Stan the Man and she had dropped from sight with the child of Gregory Powell. Neither Greg's family nor her own were to hear from her.

"Jesus," Jimmy said in disgust. "What's she doin, playin with herself?"

Greg stifled a chuckle and nodded and continued the low crooning string of lewd promises to the middle aged black woman.

She was a lonely and plain looking woman and Greg called her his Chocolate Drop. She had begun corresponding with him through another Death Row inmate. She was in love with him and wanted to marry him whether or not he was convicted again, whether or not he was sentenced to death. To Greg and Jimmy she was their hope of escape.

It was Jimmy Smith not Gregory Powell who made the initial plans. He had a friend deliver two .38 revolvers to Greg's Chocolate Drop to keep pending further instructions. They had the woman buy metal cement and an eighth-inch piece of metal the exact size of the plate on the back of a typewriter. The rest of the plan involved a black man and a blond man. They were friends of Greg and Jimmy, introduced to them by another inmate. They had their own motives, not the least of which was the thrill of being part of something so dangerous yet with no personal risk. The typewriter was bought with money Jimmy begged from his Nana and a cousin. One of the guns traded for the .38's was a .25 caliber automatic in poor condition. The blond man had to install a clip spring in it. A derringer was obtained and a revolver, which was the hardest to conceal inside the typewriter. Jimmy was listing his Nana's phone number each night to the jailers, but was actually calling Greg's girlfriend to make the arrangements.

For a dry run, Jimmy asked Greg's girlfriend to bring a rented typewriter to them and told her how to secrete hacksaw blades and alien wrenches in the roller. She refused to deliver it, so Jimmy Smith turned to an old friend who did not know what the machine contained. The typewriter was searched casually and passed through without a hitch.

They hid the blades and wrenches in their cells inside the corrugated sides of cardboard boxes which they slit and then reglued at the opening. It had been so easy they were astonished. The guns were next. Once again, though, Greg's Chocolate Drop would only assist to a point. She would not deliver, and even thirty minutes of lewd crooning promises of what was to come when Greg escaped would not convince her. There was only one thing to do-find another unsuspecting "friend."

Jimmy was now so excited by the escape schemes he had the judge order the jail doctor to supply him with tranquilizers. The two partners were now scheming, planning, phoning, cajoling, threatening everyone who could possibly help them. And Greg was now involved in sexual contact with his partner almost every day. Jimmy Smith was to tell himself that at least it kept Powell's sex drives under control so he could pay attention to business-escape business.

It was only left to have a dupe bring another typewriter full of guns into the jail. Greg selected an unsuspecting inmate friend named Bayer, also defending himself, who had a girlfriend acting as his legal runner. On the evening of June 7, 1968, a Miss Grant brought a typewriter for Gregory Powell. She was caught on the informant's tip, the machine searched, and she was arrested. So was Sylvia, Greg's Chocolate Drop.

When Jimmy went to his cell the night of June 10 he was disappointed and depressed. Still, it had not been completely in vain. After all, he reasoned, Powell was in all kinds of trouble with the bulls as well as Bayer, who kicked his ass. Who knows? Somebody might take a blade and touch him off over this one. And the best part was that nobody, but nobody, even so much as guessed at Jimmy Smith's considerable part in it. That proves, he thought, that I'm smarter than that turkey-necked punk. Then Jimmy actually had to smile as he thought of the fistfight that day.

"You son of a bitch," Bayer had said to Powell. "You're gonna tell them my girlfriend didn't know nothing about those fucking guns. You hear me?"

"Get away from me," said Greg, and Bayer knocked him down.

Yeah, thought Jimmy, yeah, right on his ass! And what a weak sissy punch it was coo. And what did he yell when he hit the deck? What did that punk yell? thought Jimmy Smith. He opened his big mouth and screamed, "Jimmy!" That's what he did. The punk!

|immy Smith and Gregory Powell, not knowing about the informer, would always believe the tightened security on June 7 was what foiled them. For on June 7 the jail was alive with deputies to guard a new arrival named Sirhan.

"If only the fuckin Ay-rab hadn't of dusted Kennedy," Jimmy would complain to sympathetic listeners. "It's just my luck. Everything happens to me."

The most tragic aspect of the whole incident for Jimmy Smith was later in court when he saw a public defender playing with the typewriter exhibit, remarking upon how cleverly the revolver cylinder had been removed from the gun and made to look like part of the works of the machine. Jimmy's eyes popped when he saw the lawyer poke beneath a roller with a pencil and dislodge a quantity of white powder. At first the lawyer didn't notice, and Jimmy's heart stopped. Jesus! he thought. The black man had said he'd stick some in there and he'd done it. There it was, jammed far beneath the roll, now spilling out. Maybe a gram, maybe two! The deliverer of the guns had made good his promise of a bonus in the typewriter to calm the nerves of Jimmy Smith during the escape.

Jimmy's tongue felt fat and red raw when the lawyer reached inside and tore the little bindle and powder spilled down the side of the machine.

"What's this?" asked the lawyer blowing the precious crystalline substance away. "Fingerprint powder?"

"Jumpin fuckin Jesus," Jimmy Smith moaned aloud. "My whole life's just one big junkyard of misery and bad luck!"

Once during recess, Phil Halpin told his associate, Pat McCormack, about another case he tried with Kanarek.

"Judge Walker got so mad at Kanarek he flew off the handle and declared a mistrial," said Halpin. "The case lasted five days. It should've been a simple half-day case."

"What eventually happened?" asked McCormack.

"We settled for a misdemeanor plea."

"Then his tactics paid off for his client, didn't they?" said Maple, who had been listening.

"But damn it, the system can't accommodate such tactics," Halpin argued.

Phil Halpin sometimes thought he would punch the next person who told him he shouldn't let the case bother him. Of course it bothered him. He was involved precisely because no one else cared. The case had been around too long. The defendants and counsel knew of course that this would happen, and this was part of the strategy. It could theoretically be done in almost every capital case except that most lawyers have to make a living. Charles Maple was a salaried public defender, and Irving Kanarek didn't seem to care about making a living. And Halpin thought of Kanarek the first day in court, with a fresh haircut, an expensive suit, and a clean shirt and tie. He would wear the suit until he was ready to discard it. Then he would start again.

"It's an era of violent change in the law," Halpin complained to his superior. "All judges are afraid of being reversed. And they all say they can handle guys like Kanarek."

Halpin's boss, Joe Busch, smiled placatingly. "Where's your sense of humor, Phil?"

"I've lived with him too long to laugh," said the young prosecutor.

Judge Arthur Alarcon was perhaps not as gentle as his predecessors in this case, but his reputation as a jurist was impeccable. This judge was younger, healthier, more exuberant. He was descended from lawyers and professional men, and Spanish gentry of the Southwest. The books on criminal law, evidence, and procedure by Fricke and Alarcon netted him a tidy royalty and could be found in any law office in the state.

He was a no-nonsense judge known to be fair to both defense and prosecution. The Powell-Smith murder case was becoming the butt of derisive courtroom humor. If anyone could get it moving again it was Arthur Alarcon.

On January 23, 1968, in Department 78, the usually smiling green eyes of Judge Alarcon were not smiling. Almost at once Irving Kanarek, as was his way, interrupted the judge who admonished him for it. The following day, after further argument, the judge warned Kanarek three times that his bailiff would enforce courtroom decorum. After being told to sit down by the judge, and some argument on that score, Judge Alarcon asked: "Have you ever tried a death penalty matter as a trial lawyer?"

"No, your Honor," was the reply.

When court reconvened, Judge Alarcon said: "I conferred with the presiding judge of the court and I also studied a previous case, People versus Flanagin, in which Mr. Kanarek was the attorney of record, in which there was a motion for a new trial. Among the reasons indicated by Judge Hauk for a new trial was the inadequacy of the representation of Mr. Flanagin who was charged with possession of marijuana, one cigarette. There was a time estimate by the people of one day. The case took some two weeks to try.

"Mr. Kanarek has indicated that he has never appeared as the attorney in a death penalty case. I have considered Mr. Kanarek's behavior before this court, his attempts to urge a motion for a severance for defendant Smith. In view of the very serious nature of the charge in this case, in view of the fact that a previous jury has found this defendant guilty of murder in the first degree and recommended the death penalty, this court has a special duty to see that Mr. Smith gets the finest representation possible.

"In view of Mr. Kanarek's lack of experience in any death penalty case as a trial lawyer, in view of the finding of Judge Hauk that Mr. Kanarek was not competent to represent a defendant in a one-day marijuana possession, the court will vacate the order of Judge Brandler appointing Mr. Kanarek. Mr. Kanarek is now relieved as the attorney of record. Mr. William A. Drake is appointed."

During the three months Drake was Jimmy Smith's attorney, he hardly spoke a dozen words at a time with the defendant, who refused his services and was sullen, hostile and threatening.

Drake was to say, "Heaven forbid any of my motions being granted! Smith doesn't want them granted. Just as Powell doesn't want his granted. Like all condemned men, they want motions denied to have issues raised on appeal. But is that so surprising? Does anyone expect a person fighting for his life to cooperate with the forces implicitly attempting to destroy him?"

Jimmy Smith filed a written declaration:

Judge Alarcon does not wish me to have a fair trial, but wishes me to be found guilty and executed, which is the real reason he purportedly replaced my attorney, Mr. Kanarek. Further, it is my belief that Judge Alarcon wishes to use my cadaver as a stepping stone to become governor of California.

In May the California Supreme Court heard the new appeal of Irving Kanarek and would say of Judge Alarcon's ruling:

The outright removal of counsel on the ground of an alleged "incompetency" is more of a threat to the independence of the bar than is arbitrary misuse of contempt power. As Mr. Kanarek persuasively argues, "If the advocate must labor under the threat that, at any moment, if his argument or advocacy should incur the displeasure or lack of immediate comprehension by the trial judge, he may be summarily relieved as counsel on a subjective charge of incompetency by the very trial judge he is attempting to convince, his advocacy must of necessity be most guarded and lose much of its force and effect."