Hillside Stranglers (36 page)

Judge George now spelled out his conclusion:

This court has the authority and the obligation to deny a motion by the District Attorney’s Office to dismiss serious pending criminal charges where the court finds that dismissal would not be “in furtherance of justice.” . . . nor is it the function of the court automatically to “rubber-stamp” the prosecutor’s decision to abandon the People’s case. . . . Applicable standards indicate that a prosecutor must under ordinary circumstances pursue the prosecution of serious charges where there is sufficient evidence for a jury to convict, without concern for the consequences to his reputation should he be unsuccessful in obtaining a conviction.

This second reference to the possibility that concern for reputation had motivated the motion to dismiss made Grogan want to cheer. The judge then employed language more stinging:

This court would be abdicating the responsibility of its office were it to permit the District Attorney to abort this massive and costly three-and-a-half-year investigation.

It would be “spurious,” the judge proclaimed, to dismiss the charges on the theory, as suggested in the motion, that new evidence might turn up later, since the motion had been submitted “without the likelihood of refiling,” as the prosecutor himself had stated. Furthermore it would be “disingenuous” to suggest, as again the prosecutor had, that the murder charges be dismissed lest an acquittal on them have a negative effect on the trial of the nonmurder counts. “Disingenuous” was the judge’s carefully chosen word here for “phony.” In a dignified
but sharp way, the judge was accusing the prosecutor of slinging bull.

The court’s decision is that our legal system should be permitted to run its normal course by appropriate submission of the issue of guilt or innocence to a jury selected from the community rather than leaving that issue to the disposition of the District Attorney as final arbiter of the case. . . . If in fact [this court’s] obligation is merely to perform the ministerial function of giving “rubber stamp” approval to the District Attorney’s decision to abandon this murder prosecution, let an appellate court so instruct this court. . . . This court finds that dismissal of the ten murder charges pending against defendant would not be “in furtherance of justice,” and the District Attorney’s motion to dismiss those charges is hereby denied.

Finally the judge took care of the matter of the reluctance of the District Attorney’s Office to prosecute. He fully expected a vigorous and effective resumption of prosecution, he said, but:

. . . should such action not be forthcoming from the District Attorney’s Office, this court has authority to deal with that contingency by referring the case to the Attorney General . . . or under certain circumstances by appointing a special prosecutor.

The sermon was over. It had taken the judge an hour and ten minutes to read it out. Its message was sufficiently unusual to cause some initial confusion, but the confidence of his tone and the persuasiveness of his logic were quickly apparent, nowhere more evident than in the simple phrase “this court has authority,” an assertion no one was prepared to doubt. It was as though a second-strike victory had been declared in a kind of legal war, one with strong political consequences, although politics had not played any part in the judge’s motives. His
denial of the motion was a slap in the face not only to Roger Kelly but to John Van de Kamp, whose office the judge, not subtly, was accusing of” delegating to Bianchi the prosecutorial responsibility for defendant’s case by allowing Bianchi to scuttle the case.” Words such as “scuttle,” “spurious,” and “disingenuous” were not mild, nor had they been meant to be mild. And the judge’s calm affirmation that he was prepared to turn over the prosecution to the attorney general or to a special prosecutor was especially provocative. John Van de Kamp was a Democrat who was running for attorney general, a post then held by George Deukmejian, a Republican who was running for governor.

Judge George gave Van de Kamp two weeks to decide whether to resume prosecuting Buono. If Van de Kamp withdrew and Deukmejian’s office decided to take over the case, it might appear as though the whole matter had degenerated into a political issue, one that might play a role in the 1982 campaign. If the Republican attorney general won the case before the election, it would make the Democratic candidate for that office look weak and help Deukmejian to the governorship. If Deukmejian lost the case, Van de Kamp and Kelly would be vindicated, Deukmejian would look foolish, and the Hillside Stranglers case would become known as Judge George’s folly.

Judge George regretted the political implications, because he wanted nothing to detract from the only important issue, which was justice. But controversy he neither courted nor shunned. Personally he enjoyed the composure of a man who had done the right thing, and in some respects the hullabaloo his action caused did not bother him. Perhaps a side effect of all the charges and countercharges would be to heighten public regard for the criminal justice system, which appeared to many to have become paralyzed by trivialities; and perhaps the legal community, which had become an arrogant society unto itself, might come to focus for the moment more on justice than on the law, which had become less the instrument of justice than, as it were, its strangler. With all this in mind, the judge repeated the statutory phrase “in the furtherance of justice” several times over in his ruling. For all its length and scholarship,
the ruling had a bracing simplicity to it, like “Thou shalt not bear false witness against thy neighbor.”

JUDGE NOT KNOWN FOR CONTROVERSY

announced the
Los Angeles Times
the next morning, calling the judge’s action “extraordinary. Such prosecution motions are normally granted as a matter of course.” Lawyers were quoted saying they could not remember in their experience a similar ruling. References to the balance of power abounded. “Nothing in George’s background,” the
Times
reported, “predicted this surprise rejection. . . . He simply had no track record of going against convention. Prosecution and defense lawyers were in agreement that the 41-year-old-jurist was a scholarly, fair-minded judge. . . . Deputy Dist. Atty. Roger Kelly agreed, saying, ‘I’ve always respected him and admired him, at least until today.’ ”

As for Angelo, he and his attorneys had to cancel their plans for a celebratory dinner.

“Mr. Buono has been on the brink of victory so many times,” Katherine Mader said, “that he just doesn’t show any emotion and he probably won’t until he walks out having been found innocent of being the Hillside Strangler.”

When Judge George denied the motion to dismiss murder charges against Angelo Buono, the city was deeply affected. Television and radio editorials endorsed the judge’s courage, although the
L.A. Times
made no comment, and he received many letters of praise. Within the legal community, however, opinion was divided over whether he had performed a courageous act or an arrogant one. Lawyers and judges who objected to his decision did so on the grounds that he had upset “the system,” even though the judge had stated in his ruling that without a trial Angelo Buono’s guilt or innocence could never be established by means of the criminal justice system itself.

His opponents argued that he was improperly assuming a prosecutor’s role. One politically prominent lawyer, a former federal judge, suggested privately that while it was difficult for people to understand why the judge had acted improperly in this case, given the vicious crimes involved, what if the defendant
were Martin Luther King or Sacco and Vanzetti, who might be subject to the prejudices of a judge? If a prosecutor moved to drop charges, it was wrong for a judge to question that decision and amounted to a violation of judicial neutrality.

Judge George did not respond to such criticisms publicly, except to cite the ample authority for his unprecedented action. Privately he pointed out that while his every decision was subject to appeal, his critics were suggesting that a prosecutor should have absolute discretion and not be subject to the same kind of scrutiny. Surely this was an unbalanced notion, all the checks on one side and none on the other. And to raise at all in this case the issue of political or racial bias was a red herring, symptomatic of the kind of mentality that perceived all criminal defendants as victims. If the judge was not a prosecutor, neither should the prosecutor be the judge.

The central issue here was, as Judge George saw it, not whether the judge was stepping beyond his proper role but whether the prosecutor was performing with the vigor mandated by the constitutional responsibilities of his office. Where would society be if something called the system, itself a precious yet imperfect human construct, subject to all the errors of which the people who worked within it were capable, were permitted to become an impediment to justice?

The word “system” itself was probably a misnomer. In its constant use and overuse the judge sensed characteristics of a contemporary obsession with valueless technology. “System” had come to imply something static and hard, something as inflexible as a computer and as self-sustaining as the robots of science fantasy. To deny the legal and moral responsibility of a judge to make the system work, adjust it, force it if necessary, was to adopt a peculiarly technological approach to the law, thwarting justice with technicalities, permitting social disorder in the name of procedural rigidity.

Roger Kelly defended himself publicly, denying Grogan’s and others’ accusations against him. Somehow his thirty-two-page memorandum to Van de Kamp, in which he argued that the case could not be won, was leaked to the
Los Angeles Times,
which gave it prominent coverage. Most observers believed
that Kelly himself was the source of the leak, but he denied it. The memorandum ignored much of the evidence against Buono, including new and highly promising conclusions about the fibers found on Lauren Wagner’s hands and wrists. (Kathy Vukovitch, the LAPD criminalist, had by now pretty well established that the Lauren Wagner fibers matched the rug, made from automobile carpeting, in the spare bedroom where, Bianchi had said, he and Angelo had tried to electrocute Lauren. The rug had still been in place when Angelo had been arrested. Other fibers from Lauren’s hands matched an accumulation of material found in the crevices of the seat of the brown vinyl easy chair—an unusual collection of fibers that acted like geological sedimentation as evidence of time and place. Only what had been identified as cat hairs, also stuck to the adhesive left on Lauren’s hands, remained a puzzle, since Angelo had owned no cats. One LAPD chemist had identified these as rabbit fur, but for some reason his analysis was discounted.)

Bob Grogan condemned Kelly, despite Kelly’s denials, for using the media to undermine the case and to try to save face. Nor did John Van de Kamp’s comments to David Israel, a columnist for the
Herald-Examiner,
seem proper to Grogan. Asked by Israel whether he thought the decision to drop the murder charges would hurt him politically, Van de Kamp replied:

“Given what the judge did, it may have been politically more prudent to proceed with the prosecution. It’s one of the chances you take. But I think we’ll be vindicated in the long run.”

“Does that mean you think Buono will walk?”

“I’m limited in what I can say.”

When he read that, Grogan observed: “
Limited!
He says he’ll be vindicated! How is Van de Kamp going to be vindicated unless Buono’s vindicated?” Grogan also noted that by saying that it would have been politically more prudent to prosecute, Van de Kamp was making Buono sound like a political victim, something Buono’s lawyers must have liked: they were
already referring to a “conspiracy to convict” their client. Again Grogan began to wonder whether people really wanted homicide detectives to do their job or not. Did people secretly or unconsciously agree with Buono that the girls deserved to die? There seemed to be an indifference to or even an acceptance of murder that was a symptom of some grave psychological disease in society.

Neither Van de Kamp nor Buono’s lawyers took up Judge George’s challenge to have the ruling appealed to a higher court, nor did they seek to have Judge George remove himself from the forthcoming trial, something that Angelo urged his attorneys to do. The District Attorney’s Office withdrew from the case. Attorney General Deukmejian appointed two deputy attorneys general, Roger Boren and Michael Nash, along with a special investigator, Paul Tulleners, to examine evidence to determine whether the case was worth prosecuting. When these three discovered how much of the evidence had been ignored in Kelly’s memorandum to Van de Kamp and in Kelly’s motion to dismiss, they decided that Kelly was so negative as to be worthless to them, and they did not even consult him.

Of all the factors Kelly had omitted, the Lauren Wagner fiber evidence seemed to them the most important, perhaps the key to winning the case: it not only connected the victim to Angelo, it placed her in the very chair in which Bianchi had said that she had been gagged and blindfolded and in the very room where she had been killed. It was exactly the kind of circumstantial evidence needed under California law to corroborate the testimony of an accomplice; it was a means of separating Bianchi’s lies from his truths.

Boren, Nash, and Tulleners were quickly convinced that Buono was guilty; convincing a jury would be another matter, but they were sure that there was enough evidence for that, and Judge George’s ruling, they perceived, could act as a kind of schema or preliminary script for the presentation of their case. Their only serious misgivings concerned whether, because of the circumstantial nature of much of the evidence, they could persuade twelve different citizens to a unanimous verdict, as
required. You never knew what a jury might do. All you needed was one juror who hated the police, for instance, and you could forget about unanimity.

They presented their view of the case in a six-hour meeting with a panel of four nationally respected prosecutors—one of them had prosecuted Caryl Chessman—appointed by Deukmejian to advise him, who agreed unanimously that the Attorney General’s Office should prosecute. In November the case went to trial, after a two-month continuance granted by the judge to permit the new prosecutors to prepare—a delay opposed by the defense, which argued that Buono’s right to a speedy trial was being violated and appealed this ruling all the way to the California Supreme Court, which upheld Judge George six to one.

Immediately the judge faced another crucial ruling. In June the defense had made a “Motion to Exclude Hypnotically Induced Testimony and Testimony Influenced by or Related to Hypnosis.” This motion, which argued for the exclusion of testimony by five witnesses, including Kenneth Bianchi and Beulah Stofer, would, if granted, effectively end the prosecution’s case. The motion was occasioned by a case pending before the California Supreme Court
(People
v.
Shirley)
in which the court was expected to rule within a few weeks’ time on the admissibility of the testimony of witnesses who had been hypnotized. For years hypnosis of witnesses by the police had been commonplace, but now it had become the subject of a national legal controversy, and the Minnesota Supreme Court had already ruled that a witness is incapacitated from ever testifying if hypnotized. Judge George’s problem was to anticipate what the California Supreme Court would rule. Its most extreme possible position would be that any attempt to hypnotize a witness, even if totally unsuccessful, would cause that witness to be incapacitated: if that was the ruling, Bianchi would be barred entirely as a witness.

Judge George decided to assume that the California Supreme Court, however liberal, would stop short of the most extreme position and rule, at most, that witnesses who had
been successfully hypnotized could not testify. That left him to decide who had and who had not been hypnotized and opened up the whole question of whether Dr. Orne had been correct in his conclusion that Bianchi had fooled Drs. Watkins and Allison, had faked both being hypnotized and the multiple personality syndrome. Since Bianchi had pleaded guilty and had never gone to trial, neither issue had been decided in a court of law. Dr. Watkins continued to maintain his original diagnosis, that he had hypnotized Bianchi and that Bianchi suffered from multiple personality disorder, was legally insane and not responsible for his acts. Dr. Allison had done a partial about-face. He still claimed that he had actually hypnotized Bianchi, but he admitted that Bianchi had fooled him, partially, on the multiple personality issue. Dr. Allison now testified that he believed that Bianchi had indeed been a multiple personality
while committing the murders
but that he had not been multiple when talking to Dr. Allison. Since interviewing Bianchi, Dr. Allison had become a prison psychiatrist, and now, he said, he realized that prisoners do tend to lie:

That was a shock to me because I had been used to believing what my patients told me and working from that. But here I would meet a man as he was trying to go on parole and I’d find out that he’s told one story when he got arrested to the police, another story to his own attorney, a third story when he got into court, a fourth story to his parole officer and a fifth story to me when I got him here, and now he wants to go on parole and he’s got a sixth story. And there’s no way, you know, that you can tell what’s the truth when you have that kind of changing history.

Grogan, hearing Dr. Allison’s change of heart, or partial change, wondered that it had taken Dr. Allison’s becoming a prison psychiatrist for him to realize that criminals lie. Hadn’t he ever seen a Jimmy Cagney movie? And did he really believe everything his regular patients told him? Didn’t he know that fooling the shrink was one of the favorite games of people on the
couch? Oh well, Grogan reflected, at least Allison had admitted being fooled, halfway. As for Dr. Watkins, who was currently giving public lectures about Ken and Steve and Billy, he probably believed the Holy Trinity was a· multiple personality case.

Judge George ruled that Dr. Orne’s analysis was entirely persuasive, that Bianchi had faked both hypnosis and multiple personalities. The judge reached his decision, he said, after studying the more than fifty hours of videotapes of the psychiatric sessions and their transcripts. Of Dr. Watkins the judge said:

I find Dr. Watkins’ methodology to be highly suspect based on the testimony of all the doctors and based on the literature submitted to this Court. . . .

And I find that in particular his methodology was fraught with suggestibility and I think he . . . invited the emergence of or gave a cue for the emergence of the multiple personality in his remarks in the first session, actually telling Mr. Bianchi that there was a multiple personality.

The judge could not resist a further swipe:

I think that Dr. Watkins shows incredible naiveté and made unwarranted assumptions in discounting any possibility of faking. And I find almost ludicrous Dr. Watkins’ emphasis on the four different styles of handwriting, which Billy’s or anybody else’s earlier years [came] up with. . . . It [all] appears quite farfetched.

As for Dr. Allison, the judge, referring to his “rather dramatic turnabout and substantially revised opinion,” dismissed his continued insistence that he had in fact hypnotized Bianchi. Judge George found that, as Dr. Orne had argued, Bianchi had never been hypnotized in any session and had faked all the multiple personalities, inspired by the suggestions of doctors
and a psychiatric social worker and aided by his extensive knowledge of psychological theory and by viewing
Sybil
and
The Three Faces of Eve.
Bianchi’s testimony was therefore admissible.

Regarding the four other witnesses in question—including a witness to the Yolanda Washington abduction and Beulah Stofer’s neighbor, Evelyn Wall—Judge George ruled that all except Beulah Stofer had been successfully hypnotized by the police, and he was therefore required to bar their testimony. Mrs. Stofer herself, said the judge, had not been hypnotized and could testify. According to Mrs. Stofer and the police officers who had tried to hypnotize her, she suffered from asthma and emphysema and her coughing fits had prevented hypnotic induction.

The defense was pleased that Bianchi’s testimony had been ruled admissible, because Chaleff and Mader believed that it would make it easier to prove him a liar. But the prosecution figured that Bianchi’s lying was a given anyway and that they needed his testimony, the true parts of it, to convict Buono. So both sides thought that they had won this round. (It turned out that Judge George had anticipated the California Supreme Court’s hypnosis ruling correctly. On March 11, 1982, the Supreme Court did at last rule that the testimony of witnesses who had been hypnotized could not be admitted. In June of that year, however, the Supreme Court added a footnote to this opinion stating that it was not ruling at that time on whether the decision was retroactive or applied to cases then at trial, throwing the matter back into doubt with reference to the Buono trial. To the extent that they excluded the testimony of any witness, Judge George then vacated his original hypnosis rulings, offering to take up the entire matter again, but neither the prosecution nor the defense sought to do so. Nor did either side then attempt to introduce witnesses whom the judge had already determined to have been hypnotized. The testimony of Bianchi and Stofer would remain admissible.)