The Falcon and the Snowman (47 page)

When the defense opened its phase of the trial, there was a surprised murmur in the spectator gallery: the first defense witness was an FBI agent.

Robert Lyons, one of the agents who had interviewed Daulton at the Mexican secret police offices on January 15, acknowledged that one of the first things Daulton had said that night was that he worked for the CIA as a “subcontractor” to Christopher John Boyce. John Foarde, the second agent, then corroborated this; thus, the defense had managed to salvage the one point favorable to Daulton from the Mexico City interview that the prosecution had elected not to use against him. However, under cross-examination by Levine, the two agents said that when they had investigated Daulton's claims, they had been told by the CIA that the agency had never heard of Andrew Daulton Lee prior to January 6, 1977.

Kelleher invited the defense lawyers and prosecutors to a conference near the bench; as he did from time to time, he asked the lawyers for an estimate of how long they expected the trial to continue. Kahn and Re said they expected to be able to wind up the defense in a day or two. It was the first indication that Daulton would not testify. They had decided that he wouldn't make a good witness; they were afraid he might cross himself up under the heat of cross-examination, and had decided there was nothing he could offer that would justify the risk. The lawyers, of course, didn't give any reasons to the judge; they just said Daulton would not be called to testify.

The defense began its final efforts to save Daulton the next day.

Borrowing an idea from the Boyce defense team, Kahn and Re decided to try to persuade the jury that the Pyramider documents were worthless—not the prize defense secrets claimed by the government. Professor Martin Hellman of Stanford reprised his testimony from the Boyce trial, but Kelleher refused to permit William Florence, who had been one of the star witnesses in the Ellsberg-Russo trial, to testify as he had in the Boyce trial; the judge ruled that Florence was not qualified to give expert opinion on the matter of whether the Pyramider documents were properly classified.

“The defense calls Myrtle Clarke.” Stilz and Levine looked back in the rear of the courtroom and saw a gray-haired woman who appeared to be in her seventies walking slowly down the aisle, seemingly barely able to walk. It was Daulton's grandmother.

Solicitously, Kahn asked her if Daulton, during the summer of 1976, had ever mentioned to her his plans to make a trip to Mexico. She said he had. “And did he tell you that he worked for the government?” Kahn asked.

“Yes, he did,” she replied. Kahn sat down, certain he had made a point supporting the theory that Daulton worked for the CIA.

Levine rose to cross-examine Mrs. Clarke.

As he did, Stilz, sharing a lawyers' joke over having to interrogate the kindly-looking woman, smiled at him and said, “Go get her, Tiger.”

“I'll eat her alive,” Levine grinned, uncomfortable with his assignment.

“Did defendant Lee ever tell you
which
government he was working for?”

“No, he didn't,” Mrs. Clarke said.

Daulton's future was placed in the hands of the jury in midafternoon on May 12, 1977.

Stilz and Levine had studied the jury's response to the testimony, and they expected a conviction within a few hours.

But the day ended without a verdict. The jury had sent a note to Kelleher requesting copies of the original indictment against Daulton, so that jurors could review them in their hotel rooms. Kelleher granted the request.

The following morning, at 9:15, another note arrived from the jury:

Good morning your honor!

Thank you for the copies of the indictments. Is it permissible to make notations, etc., on our individual copies of same? If possible we would like copies of your instructions to the jury.

Are parts or all of the trial transcripts available to us? Are we able to make enquiry of you without generating action by yourself … I suppose an “off the record” type inquiry?

We would appreciate it if something could be done about the total lack of ventilation in the Jury Room. We have no air conditioning, nor do the windows open.

Thank you

Jane Lyon

Foreman

Los Angeles was in the midst of a modest spring heat wave, and temperatures were in the eighties. But that was only one reason the atmosphere in the jury room was so warm. The second reason was that the jury was engaged in a pitched battle.

Before adjourning the night before, the jurors had taken an informal straw ballot. It was 8 to 4 in favor of convicting Daulton. They had decided to get some rest and try again the next day. The following morning, after Kelleher denied the request for the transcript, jury instructions and off-the-record advice, the foreman conducted a review of the testimony and evidence, and the jury took its first formal vote; the decision went against Daulton 10–2.

The majority then went to work on the holdouts, both women. Within an hour, one changed her mind and voted to convict. But Peggy Fuller, the prelaw student, refused to change her vote.

“There are grounds for
reasonable doubt
to believe he's innocent,” she insisted.

It was obvious, she continued, that the CIA could have been manipulating the two young men. “You can't believe what they say,” she said when other jurors pointed out the CIA's denial that Daulton had been in its employ.

Outside the jury room, the lawyers waited impatiently.

Stilz and Levine were puzzled and starting to worry; Kahn and Re offered hope to Daulton. “The longer they stay out, the better chance you've got,” Kahn told Daulton. “You may be home free.” Daulton's lawyers also encouraged Dr. and Mrs. Lee, who were keeping a vigil at the courthouse, to have hope.

Miss Fuller now found herself alone at one end of the jury table looking out at eleven unhappy faces—antagonists who were beginning to lose their patience and raising their voices. When the jury took its lunch break, some of the jurors seemed to want to avoid her; at dinner, the other eleven jurors refused to sit with her and she dined with one of the Federal marshals who were guarding the jury. Again and again, the other jurors reviewed the evidence and argued that Daulton's guilt was obvious. But Miss Fuller stood her ground, unrelenting, through the second day of deliberations and into the third. She would recall later: “I wanted to hold out forever; I was under terrible pressure; you're cut off from all contact with other people; you're alone, and they refused even to
listen
to my arguments. They were cold and laughed at me. They just didn't understand the concept of reasonable doubt.”

“Finally, I said, ‘All right, I'll say he's guilty,' but I didn't think he was.”

At 11
A.M.
on May 14, 1977, a Saturday, the jury reentered the courtroom.

Without looking in Daulton's direction, the foreman handed a note to the court clerk, who in turn showed it to Kelleher and then announced the verdict:

Guilty on all counts of espionage and conspiracy to commit espionage
.

Daulton shook his head in bitter disbelief. And then in a gesture that recalled his tormented glances toward his father years before when he had dropped a fly ball or swung at a third strike, he looked quickly in the direction of his parents, both of whom had tears in their eyes.

47

After his conviction, Chris had been transferred from the Los Angeles County Jail to the Federal Correctional Institution on Terminal Island, a prison fortress set on a rocky jetty that thrust into Los Angeles Harbor near the southern foot of the Palos Verdes Peninsula. As Chris traveled to Terminal Island along the Harbor Freeway in the back of a prison car, he could look out the window and see the rolling hills where, not many years before, he had first met Robin and Mohammed.

He was assigned to D Block, T.I.'s maximum-security wing, where prisoners were locked in individual cells, measuring eight feet by five feet, around the clock, except for weekly two-hour exercise periods. Prison administrators told Chris he was being isolated because they feared other inmates might try to murder a man convicted of treason. His only regular communication with the prisoners was through the bars of his cell—a shout across a corridor or quieter words with an inmate in one of the cells next to him. Prison guards warned him not to accept food from the other prisoners: they had picked up reports of a plot to poison him from their informants, they said. But Chris thought the inmates were friendly, and he didn't worry about the warning.

Lonely, Chris groped for ways to use up his many hours by himself. He began reading six and even seven books a week from the prison library—mostly history and biographies—and worked to keep in good physical shape by doing 1,200 pushups a day. The subject that was on his mind now more than anything else was escape.

One morning there was a commotion in the corridor outside his cell, and Chris looked out inquisitively; the arrival of a new inmate was one of the few happenings that broke the lonely monotony in D Block; and he saw that the new prisoner was being moved into a cell beside his.

Vito Conterno was a husky man with olive skin and silver hair at his temples. From that first day, Chris was fascinated by him: he was utterly self-confident, and seemed to be completely in command of himself, maintaining his dignity even in a prison cell. Here he was in a Federal penitentiary, where the prisoners wore denim uniforms, and Vito had a silk robe and leather slippers. To Chris, the robe and slippers were somehow equivalent to papal finery that elevated him above the other inmates. Through their respective walls of prison bars, Chris began to learn about his new neighbor. Vito said his parents were from Sicily; they had emigrated to America more than sixty years before, and because there was no other line of work as lucrative, his father had gravitated into the Mafia, and Vito had followed later. Chris was fascinated by his stories of growing up in a big-city Italian neighborhood, of running numbers when he was still in grade school, of later graduating to bigger money with work in bookmaking parlors, of killing his first man when he was eighteen. It was like a novel, and Chris was spellbound.

Vito said he was in prison because of a minor parole violation. He'd been locked up in D Block, he said, because other Mafiosi in the prison had heard of his reputation as a hit man and he had prevailed upon the warden to isolate him.

As the hours shared in isolation by the young man and the old Mafioso wore on, Vito tutored Chris on prison ethics and how he'd learned them himself at the Federal prison in Leavenworth, Kansas. The lowest scum in a prison, he said, was the stoolie; he told about a snitch at Leavenworth who had gotten a shank stuck in his chest and bled to death in front of Vito's cell; about another who had had gasoline thrown into his cell—“burned to death in his own grease”; and about still another whose charred bones had been found in a prison incinerator.

Vito fretted about being in prison again; it was bad for his heart condition, he said, and he had business deals to look out for on the outside. He lived in a big home in Beverly Hills, he explained, and he'd pumped some of the money he'd made in the rackets into buying liquor stores which, he said with a twinkle, would support him handsomely as he advanced into old age. The only reason he was in the joint now, he said, was that he'd gone to Las Vegas without telling his parole officer, and the Feds had been lying in wait for him when he'd landed at the airport—waiting for an excuse to lock him up.

“Fuckin' Feds,” he said. “You'll never leave the fuckin' prison system alive. You ought to think about getting out of here. I have a friend—my lawyer; he can do some things, maybe.

“Think it over,” Vito said. “Maybe I can help you.”

Chris's lawyers had pressed him to cooperate with the CIA in its efforts to pinpoint exactly what information the Russians had obtained from the Black Vault. At first Chris had rejected the request and refused to even discuss it. But Chelius and Dougherty said that if he was to have any chance of getting a light sentence, he had to do it. On May 18, Chris and the lawyers met with Stilz; Rodney Leffler, an FBI agent who served as a liaison officer between his agency and the CIA, and a pipe-smoking man in his early forties who introduced himself as “Jerry Brown of the CIA.” The meeting was in a starkly furnished office in a Los Angeles County Sheriff's Department building. Also present were a polygraph-machine operator and a Federal probation officer who had been assigned to formulate a report on the defendant to guide Judge Kelleher when he sentenced Chris.

The debriefing was almost aborted before it began: Chris had been ordered to the meeting wearing his denim prison uniform, but he refused to go unless he was allowed the dignity of wearing his corduroy suit. He was allowed to do so.

For eight hours, under persistent questioning by Brown, Chris recounted his experiences as a spy. He told essentially the same story he had given the FBI on the night of his arrest, but offered more details, including as much as he could remember about the nature of the data he and Daulton had sold to the KGB. This day was to be the first of six such sessions, spaced over several weeks, that Brown (not his real name) called a “damage assessment debriefing.”

Chris labored to recall everything he had transmitted to Daulton and the Russians, but said he simply couldn't remember
everything
. He said he had been so intoxicated sometimes that he couldn't remember everything he had photographed. But he volunteered an idea he said would help the CIA solve part of the mystery: he said that he and Daulton, in the later stages of the espionage operation, had taped the TWX message traffic they sold to the Russians to a wall and photographed the messages before returning them to the vault in a potted plant or other conveyance. Chris suggested that the CIA assign a technician to test the rolls of TWX messages that were still in the vault for residue of adhesive from the tape; this would help identify some of the TWX messages that had found their way to Moscow, he said.