the Onion Field (1973) (56 page)

"The court is going to call a recess in this case at this time," said the judge, "and counsel are instructed, and the parties are instructed, and the bailiff is instructed to advise the court of any . . ."

"Your Honor . . ." said Kanarek.

"Just a minute, Mr. Kanarek! You are to be seated and say nothing! Not to in any way communicate with one another in any way by words or by show of emotions!"

"Your Honor . . ." said Kanarek.

"Just a moment, Mr. Kanarek! You are instructed not to say anything!"

"Yes, your Honor," said Kanarek finally.

"The court is calling a recess," said the judge, "until counsel can reflect and recover their sense of poise."

When court proceedings resumed in fifteen minutes the judge said, "In connection with the last matter the court instructs all counsel involved not to address the court concerning this in any way while the court is making the following orders: Mr. Halpin and Mr. Kanarek are to file affidavits of the occurrence before Thursday at four o'clock. The court will consider whether one or both counsel are to be held in contempt. The bailiffs, sheriffs, clerk, and reporter are instructed not to discuss the matter."

"Your Honor," said Kanarek, "if I may, I would ask that Mr. Halpin be arrested immediately for a misdemeanor committed in the presence of the court in violation of the penal code of the state of California. In the presence of peace officers he committed an assault."

Phil Halpin was defeated. He not only walked off the case, but he resigned from the District Attorney's Office and vowed never to enter a courtroom again. It was little consolation that before his resignation was final, Irving Kanarek would be removed from the case.

It was Jimmy Smith who eventually proved the undoing of Irving Kanarek. He filed a declaration that same month asking the court to curb his attorney's examination of jurors on racial grounds:

This defendant does not subscribe to or identify with any black militant organizations. Attorney Kanarek does not know anything whatsoever about defendant's racial background as a member of the black race.
Respectfully submitted, Another declaration that same month by Jimmy said:

It is respectfully suggested that said attorney has lost all conception of the legal conduct and performance required of an attorney in a capital case, that is, if such knowledge ever existed for said attorney.

Respectfully submitted, During a noon recess in March, six years after the murder of Ian Campbell, Prosecutor Joe Busch walked from the court with Kanarek and said to him, "Irving, you ought to analyze your approach through a psychiatrist. Your personality alienates people."

Irving Kanarek apparently ignored the advice, but later when the judge took the bench, Kanarek wanted it made part of the official record that the district attorney said he should see a psychiatrist.

Toward the end of the month, Jimmy Smith was growing more hostile toward the lawyer and finally he assaulted him.

Prosecutor Joe Busch said, "When Jimmy Smith threw his chair and shoved Kanarek away, it probably was the final straw which influenced the judge." Judge Le Sage once again listened to a motion from Jimmy Smith to relieve his counsel. A Pasadena attorney named Charles Hollopeter was brought into the courtroom to talk to Jimmy Smith. Kanarek maintained that his client was distraught and could not make a clear choice to have him relieved.

"There is no foundation for the court to proceed," Kanarek argued vehemently.

"You are again instructed to be seated, Mr. Kanarek, while the court inquires of Mr. Smith," said the judge.

"Well, your Honor, I most certainly do object under Cooper versus the Superior Court. ..."

The judge listened to the argument and said, "You are again instructed to be seated."

Then the attorney argued that the court's apparent decision to remove him would violate his client's rights.

"Now if your Honor deems that I am being muzzled, and that I am being gagged by the sheriff, if your Honor shall deem that this record is to exist, that this record can reflect that I am being muzzled as if the bailiff here restrained me, and put me down, and strapped me to the chair, and put a gag on me, if your Honor deems that this record shall so reveal that, then, of course, I think your Honor gets the point of what I am driving at. May that be deemed, your Honor?"

"The record will not show that at all, Mr. Kanarek!" said the judge, a bit shocked. "The court is at all times willing to hear you in full! And I again request you as a member of the bar to be seated while the court proceeds."

The attorney argued still further that the judge had no right to inquire of Jimmy Smith as to replacing his lawyer. Finally Kanarek said, "May it be deemed that I have been gagged and that your Honor has used the full force, that your Honor has used all of his power inherent, statutory, constitutional, explicit, in keeping me from using the English language, keeping me from speaking. May that be deemed, your Honor?"

"The record will not so show, Mr. Kanarek!" said the judge. "The court is just making the request that you be seated and the court is advising you again that you will be extended the fullest opportunity to argue the matter."

"That isn't the point, your Honor."

"And you are again kindly instructed to be seated."

"Well, your Honor, I don't personally wish in the sense of the word to fly in the face of the court's order, but I deem, based upon my study of the law, that your Honor is proceeding illegally. ... So all I am saying is, let it be deemed, so that the issue will be framed. The issue will then be framed for minds wiser than ours. That's the theory of our appellate courts. They are supposed to rectify mistakes and tell us when we are wrong. . . . May that be deemed, your Honor?"

"No! The court can't make that order because that is not representative of all of the factual situation here, Mr. Kanarek."

"Your Honor certainly has the power to have the bailiff take me into custody. Your honor has that power. I am not interested in flying in the face of the court's order. I am not interested in antagonizing the court."

"Mr. Kanarek," said the judge patiently, "the court is not in any way antagonized by your arguments here. You are again instructed to be seated while the court proceeds further with this hearing."

"Well, your Honor, may it be so deemed? Because if I keep on doing this, will there be some point when your Honor is going to have the bailiff take me into custody?"

"You may be seated, Mr. Kanarek. The court does not intend to make that order. You are instructed to be seated."

"Well then, your Honor, may it be deemed as I have requested, your Honor? I don't... I mean I wish to ... I wish to obey all the court's orders that are valid. But most respectfully, your Honor, it is my most respectful contention that it is not a legal order."

"Mr. Kanarek, again the court reminds you that you are on your feet and addressing the court contrary to the express order of the court!"

"Well, your Honor, since your Honor is determined that your Honor will not arrest me, then I have no alternative, your Honor. I want the record to reflect, however, that it is my position, that I am deemed arrested, deemed that an Order to Show Cause In Re Contempt has been issued, deemed that the court has used all of its powers of gagging me and so forth, because the reason this is so vital, your Honor, is because what Mr. Smith says is potentially usable by the district attorney against him, plus the fact that he has the right that I have psychiatrists examine him."

"You have made the motion a number of times, have you not, Mr. Smith?" the judge finally said to the defendant.

"Yes. I have made the motion to relieve Mr. Kanarek."

"And you still wish the court to grant you that relief?"

"That is my wish, your Honor. Please."

"The people wish to speak on the motion?"

"Your Honor, I object to that!" said Kanarek.

Judge Le Sage finally said: "It has become evident that there is a growing lack of confidence and communication between the defendant Smith and his counsel. This lack of confidence has led to physical encounters between the defendant Smith and his counsel in the open courtroom. . . . The court is of the opinion, and finds, that the constitutional right ..."

"Your Honor!" said Kanarek.

"Just a moment ... to counsel will be denied to the defendant Smith if he is required further to be represented by Mr. Kanarek. Mr. Kanarek is hereby relieved."

The order was entered on April Fool's Day, 1969. The next day the judge ordered the joint trial split in two.

When Phil Halpin read of Judge Le Sage pleading with the attorney to sit and be silent, he reeled in his chair. The prosecutor was dizzy, hot, disoriented.

Deemed to have sat down. Deemed to have been silenced. It suddenly struck the prosecutor. They had all gone over the brink into madness. The physical fact was meaningless, only the words mattered. A man need not sit if it was deemed that he sat. He need not speak if it was deemed that he spoke. Lawyers could stipulate to anything. They could deem that lie was truth, that fantasy was real. Who could refute it? Only the words mattered.

He lay in his bed alone in the darkness one night and reviewed his dead dreams and the wreckage of his life much like a young man named Jimmy Smith had done exactly six years before when Jimmy was exactly his age.

He was a failure in his personal life and his career. He wondered if his marriage had been sacrificed to the whorish vocation he had pursued so determinedly. He had worked fifteen hours a day, seven days a week, to get through law school. He was sick, racked with a flu virus and a relentless lung-tearing cough. He thought about getting blind drunk until he passed out, but was too weak to get up from the bed.

I tried to tell them, Halpin thought feverishly. Every judge was the same. They just didn't understand that no defendant is going to cooperate with his destroyers. You couldn't make the defendants submit by giving them whatever they wanted. He couldn't make the judges understand that. And they wouldn't believe that the antics of the defense amounted to a clear cut attempt to stop the system itself. How many judges had told him, "I can handle it, Mr. Halpin?"

He thought of the good offer he had had to go into private practice. He had passed it up for this case. He had been obsessed by this case. And it wasn't just the murder. True, he had grown up in the same Glendale neighborhood as Karl Hettinger and knew many of the same people. True, he had two girls like Ian Campbell had. True, he hated what Kanarek and Maple were obviously trying to do to Hettinger. But in the end he was totally incapable of knowing who were the knaves and who were the fools. What he really hated and feared was what this case had done to his conception of his profession, and himself.

They made movies and wrote books about courtroom drama. It was all a hoax. There was no drama. Not in a real courtroom. It was all a cruel joke and an incredibly silly thing to devote one's life to.

We're not remotely concerned with a search for truth, he thought. The advantage to the defense is the passage of time and the courts permit it and pervert justice. Who respects the system? Not the defendants surely. Not the public. Not me, God knows!

When lawyers were permitted to obstruct and even stop this pathetic process, then it was not even madness. There was some dignity in madness.

Eyes watering, trembling with chill, unshaven, he stared at himself in the mirror, mouth open, and imagined instead the baggy-eyed bulldog countence of Kanarek, mouth agape, saying: "Not so, your Honor! Not so!"

In the dark, in a pool of sweat, he broke into a coughing spasm. It was so bad he felt his lungs would rip apart. He struggled up and staggered into the bathroom. Even the judge had the flu. It was going around. Then he realized who had it first. Where it had come from. Irving Kanarek!

Halpin bummed around for one year and lived off the eight thousand dollars which represented his life's savings and total material worth to the world. He returned to the District Attorney's Office the next year when he needed a job. He decided it would be better than pumping gas, and he knew nothing else.

Phil Halpin didn't talk much about the case when he returned. When pressed, he would only say, "At the end, I would've made any deal with Powell and Smith if I'd had the power. I would've let them go. Dropped all charges. Released them. If only I could've put their two lawyers in the gas chamber."

Irving Kanarek filed a fifty-four page declaration relating the nature of the case: "In March of 1963 Officer Ian Campbell passed away in Kern County ..." He stated his years of involvement as Jimmy Smith's counsel. He asked that the court pay him $200,000 exclusive of expenses incurred.

Judge Dell granted him a fee of $4,800 and wrote:

It's the intent of the court to discharge in full any and all claims made by you in connection with your services pursuant to Section 987a, penal code, in representing Mr. Smith. It's the court's position that your negotiation or retention of such warrant will constitute an acquiescence, and of course, termination of responsibility, notwithstanding the fact that you claim substantially larger amounts.

Very truly yours, There was considerable jubilation when Irving Kanarek was gone. Public Defender Charles Maple immediately altered his own tactics and it looked as though the jury would be selected and the trial would finally begin.