Norco '80

by Peter Houlahan

  AS THE WITNESSES TESTIFYING ABOUT CRIMES COMMITTED IN SAN BERNARDINO began to take the stand, Jay Hanks took over the helm from Kevin Ruddy. The dislike the defense had for Ruddy was nothing compared to what they reserved for Hanks. As head of the prosecution team, he was the one they held responsible for what they saw as witness coaching, feet-dragging on disclosure requests, and other actions they openly referred to as misconduct. “Until The People want to be gentlemanly about this,” Adams threatened at one point, “I will withhold everything I have from them, just as they are withholding it from me.” After one such attack, Hanks exploded. “I resent this continued attack by Mr. Adams without any justification. He continues to make bald nonfactual accusations accusing the prosecution of not complying with discovery.” “Let’s stop calling names back and forth,” a beleaguered Hennigan urged.

  In another instance, Hanks objected to Adams continuing a line of questioning despite sustained objections against it. “I am asking the Court to admonish counsel to leave the area,” a frustrated Hanks demanded. “I would love to leave town,” Adams commented dryly. “I would desire the Court to ask him to leave town too,” Hanks responded. None of it was said in jest and nobody in the courtroom laughed. Things had gotten too raw between them.

  At times, the animosity veered into the realm of the absurd. One of the rubber bands Russell Harven compulsively stretched between his fingers accidentally got loose and shot Hanks in the rear end. In what the press dubbed the “Pencil Fencing Incident,” Olson and Hanks threw pencils at each other during a particularly combative argument in front of the jury. The spectacle was so unseemly that Michael Lloyd objected. “I realize the people’s emotions are rather high key in a case of this nature, but I would request the Court prohibit both counsel from throwing pencils in court.” Alan Olson jumped in. “I would join Mr. Lloyd in the request that the district attorney not mimic in his childlike manner things he thinks funny about this case.” “I will admonish all counsel, don’t throw pencils,” Hennigan scolded.

  LATER IN THE TRIAL, AN INCIDENT OCCURRED THAT RAISED EYEBROWS INSIDE the courtroom and out. Clayton Adams was in the process of cross-examination when he noticed something strange. “No offense intended to the court,” Adams protested at the next recess, “but I did want the record to reflect that while I was cross-examining the witness Charles Vasquez this morning that the Court was, from the bench, photographing jurors.” Asked about the incident by a reporter afterward, Hennigan said, “We’ve been together a long time. I like having a memento of them.” The AP wire story about the incident was headlined: “Judge in Robbery-Murder Trial Photographs Jury for Souvenir.” A quote from Jay Hanks summed up the sentiments of anyone who had been following the proceedings from the start: “For this trial, it’s not weird.”

  With all the drama, colorful testimony, and unseemly squabbling, word was out that there were some very strange happenings going on at the Vista courthouse. Soon veteran court watchers and just plain folk were lining up in the hallway outside the courtroom of Justice Hennigan to snatch up seats in the gallery for the best show in town. Ahead of them lay the most dramatic and contentious fight of the entire trial, over the single question most likely to determine whether the three defendants before them would live or die: Who really killed deputy James Evans?

  17

  FRIENDLY FIRE

  April 12, 1982. Vista, California.

  D. J. McCARTY SAT ON A BENCH IN THE HALLWAY OF THE SUPERIOR COURT IN Vista, hoping to God no one would notice him. The place was a zoo, spectators packing the seats inside the courtroom and spilling out into the hallway hoping someone might leave so they could take their place. The newspapers called them “court watchers,” but to McCarty they were nothing more than complete strangers. For D.J., the prospect of being questioned in front of a room full of strangers was nothing short of horrifying. Despite his gregarious nature and self-confidence, D.J. had no experience speaking in front of crowds and had only been on the witness stand once in his life, and then only for five minutes. And now he was supposed to sit there and talk about . . . this?

  “Which direction did Deputy Evans turn when he was hit?”

  “Toward me.”

  “Could you see he was wounded?”

  “Yes.”

  “What did you see that indicated he was wounded?”

  “Massive hole in his head.”

  D.J. adjusted his tie, shifted in his seat, and took deep breaths to calm himself. His heart was beating so hard he could see the lapels on his suit coat moving up and down. The waiting was killing him. Not just the thirty minutes sitting outside the courtroom, but the five days since Jim McPheron had ended his testimony. McCarty had been scheduled to take the stand right after Mac, but Jay Hanks decided to slot in another witness, a sergeant from the California Highway Patrol, before him on short notice. Once it became clear that the sergeant’s incident reports and testimony included things he could not have witnessed, it turned into a feeding frenzy that ran all the way through the end of the week. McCarty had spent it driving back and forth the two hours each way between Vista and San Bernardino, his anxiety level rising. By Friday, he had caught the flu and spent the weekend sweating and puking. And then the call came in from Joe Curfman: You’re going on Monday, for sure. So here he was, feeling like shit and still waiting while the CHP guy finished getting his ass shoved through the cross-examination meat grinder.

  McCarty noticed several people outside the courtroom stealing looks at him. Of course they knew who he was. He was the reason they were here, the main attraction of the entire trial. He looked like a cop, too, midtwenties, six foot two, broad shouldered, with his dark suit, trimmed mustache, and hair parted on the side and swept low across his forehead. One of the court watchers, almost all of them nosy old retirees, nodded in his direction and whispered something to the old crone beside her. D.J. could feel himself rising off the bench, ready to bolt from the courthouse. He took another deep breath and settled down. “You just sit up there looking like the all-American boy and you’ll be fine,” Curfman had told him.

  Joe Curfman had been a lifesaver for McCarty. Curfman was the real deal, with hundreds of felony investigations under his belt. “Handsome little fucker and funny as shit,” D.J. described him. The veteran calmed McCarty with his cool confidence and easy smile and gave him good, simple advice: Keep your answers short, stick to your story, and don’t let them get you mad. Once you lose your shit, those defense attorneys will pounce.

  A guy in a suit walked up and introduced himself. A reporter. Would D.J. talk to him when his testimony was over? I doubt it, D.J. smiled weakly. Talking to the press was the last thing McCarty needed. Even reading the papers had been a mistake. Now that the trial had turned to the killing of Evans, it always seemed to make note of what McCarty was being accused of by the defense, as though it deserved serious credence: “Defense attorney Clayton Adams has said he will attempt to show that it was McCarty who killed Evans, and not the suspects.”

  Once that stuff began to show up in his hometown paper, the whispers and speculation started. “That guy had no business being up on that mountain with a gun he didn’t even know how to use,” one loudmouth veteran deputy announced in the locker room. Others just shrugged. D.J. knew it was the same thing that went on in police departments everywhere: cops popping off without thinking, never considering the consequences. He tried, but it was impossible to ignore it. McCarty knew what had gone down on Baldy Notch Road that day, but the truth didn’t matter. The only thing that mattered was what the jury decided. What if they came back with forty-five “guilty” verdicts and one “not guilty” or some reduced charge in the death of Evans? It would follow him forever. The fucking thing would . . . define him.

  The courtroom door opened and Curfman came out. Just a few more minutes, he said. D.J. swallowed hard and nodded. Curfman studied him. It’s gonna be fine. Yeah, said D.J.

  If I had it to do all over again, D.J. thought, would I really go charging u
p that mountain with a gun I had never used before? If I had known I would experience the terror I felt up there or see the things I saw, would I have made the same decision? What if I had known I would end up being accused of killing a fellow cop, or sit on a witness stand in front of a room full of strangers while some asshole defense attorney tried to make me out to be some glory-seeking cowboy? I was young, too eager for the fight, too many goddamn John Wayne movies. But I never wanted any of this.

  “No one had assigned you this job? What I mean is, as far as the assignment of Deputy McCarty to be the one to carry the AR-15 up, that was still all volunteer, wasn’t it?”

  “Yes.”

  “In fact, you were off duty?”

  “Yes.”

  “You could have just checked out?”

  “I was off shift.”

  “In fact, you were on your way home, getting ready to go home?”

  “Yes.”

  “And you decided to stick around for the action?”

  “I don’t believe so.”

  “In any case, you beat whoever was available to the AR?”

  “I wouldn’t call it beat. I didn’t consider it a race, Counselor. Somebody had to bring the weapon out.”

  In his incident reports and preliminary trial testimony, McCarty had been consistent on the key points. He never loaded the gun on the way up the canyon because he was too busy working the radios and too worried that McPheron might drive the Ford Fairlane into Lytle Creek. At the ambush site, he was still in the passenger seat when Evans was shot.

  Only after that had two rounds come through the windshield of the Fairlane, one hitting McCarty in the elbow and causing him to dive out the driver’s-side door. After fumbling to load the weapon, he had, by his own admission, raised the gun over the top of the door and closed his eyes, “spraying” gunfire across the width of the road. The M16 was capable of firing in fully automatic mode, but McCarty never thought to switch the setting and had fired in semiautomatic mode instead.

  All the defense had to do was tweak a few details to turn the whole story around. Of course McCarty loaded the gun on the way up and switched it to automatic mode. Who goes to a gunfight with an unloaded gun? When the shooting started, McCarty threw open his passenger door, jumped out with his fully loaded gun, closed his eyes, and began spraying automatic gunfire all over the place, unable to control a weapon he had never fired before. When Jim Evans heard gunshots coming from behind him, he whipped his head around to look and a bullet from D. J. McCarty’s gun struck him in the right eye, killing him. Friendly fire, happens all the goddamn time. McCarty was just too ashamed to admit what really happened, they said, and was hiding behind the “thin blue line” of fellow cops lying to protect him, all of it aided and abetted by a prosecutor willing to do anything to send three men to the gas chamber.

  D.J. eyed the thick binder sitting on the bench next to him stuffed with incident reports, a transcript of his pretrial testimony, and some other documents he could refer to while on the stand. He had gone over his preliminary testimony a week before, using a yellow highlighter to mark places that might give him some trouble. Any time you take the stand, you’re the one who’s on trial, he had been warned. D.J. thumbed through a few pages of the pretrial transcript. He closed it again and set it on the bench. Just a bunch of minor bullshit, nothing he needed to worry about. But what about the other guys? What had Lenihan and McPheron said on the stand before him? D.J. wondered but knew better than to ask. Sharing prior witness testimony with another witness was not allowed. “You can’t control what anyone else says,” was all Jay Hanks would say on the subject.

  DEPUTY MIKE LENIHAN WAS TWENTY-FOUR YEARS OLD WHEN HE TOOK THE stand for the prosecution on April 1, 1982, almost two weeks before McCarty. D.J.’s friend and former roommate was thin and soft-spoken, with an intensity about him that belied an underlying shyness. Lenihan had been in the patrol unit immediately behind McPheron and McCarty when the pursuit reached the washout high up Baldy Notch Road. On direct questioning by Hanks, Lenihan recounted how he had slammed on the brakes, jumped out of his car, and saw Evans get killed before McCarty fired a shot. However, in recalling the flurry of activity, which unfolded in a matter of fifteen to twenty seconds of total chaos while he was under heavy fire, Lenihan’s memory flip-flopped the order of the two events. Clayton Adams was quick to point out the inconsistency on cross-examination.

  “After you observed the brake lights going on, what was the next thing that you observed, the very next thing?”

  “The next thing I observed was shots going through his back window.”

  “When was the first time you observed Deputy Evans in the washout area?”

  “I was behind the driver’s door, I noticed—he was later identified as Deputy Evans—behind his unit.”

  “This was already after the bullets going through the window of McPheron/McCarty’s unit?”

  “Yes.”

  “Okay. And Deputy Evans was still alive then?”

  “Yes.”

  Lenihan’s account contradicted McCarty’s version that Evans was shot before the rounds came through the windshield of the Fairlane. Lenihan also unwittingly substantiated an important element of the defense’s friendly fire argument.

  “Could you estimate how many rounds he fired . . .” Adams asked regarding the first volley of fire by McCarty.

  “It was a burst of gunfire. It was an automatic weapon he was firing.”

  “So he cranked off a burst of automatic fire, too much rounds for you to count, essentially?”

  “Yes.”

  This was important to Adams because it supported the defense’s assertion that McCarty had been “spraying” bullets around in fully automatic mode, which makes it notoriously difficult to control a weapon, especially for someone untrained on the M16.

  DEPUTY JIM MCPHERON TOOK THE STAND TO TESTIFY FOR HANKS ON APRIL McPheron’s direct testimony supported McCarty’s version of events almost perfectly. A little too perfectly in the opinion of Alan Olson, who went after McPheron for inconsistencies with his earlier testimony at the pretrial hearing.

  “Now, it’s your testimony that you are certain that the weapon was not loaded before you got to Lytle Creek, the AR?” Olson asked. McPheron confirmed he was certain it was not. “Okay. Court and Counsel,” Olson announced, holding a copy of McPheron’s preliminary trial testimony aloft and calling out the page number. “Page 1056, line 14 . . . through 22.”

  Question: Did you observe the AR-15 to have a clip in it at that time?

  Answer: I don’t recall, sir.

  Question: Is your answer to that you don’t recall whether there was a clip in there or not or that you don’t remember observing the rifle?

  Answer: I knew he was holding the rifle. However, I do not recall whether there was a clip in the rifle at that time.

  McPheron stuck to his current testimony. “The clips were not inserted into the weapon during the time we were driving up there, sir.”

  McPheron recalled in detail watching McCarty attempting to load the magazine into the M16 while crouched down behind the door and seeing it repeatedly fall out before D.J. finally got it to catch.

  Olson thumbed through the copy of McPheron’s pretrial testimony again and read.

  Question: Did you ever observe McCarty loading that AR-15 or loading a clip into it?

  Answer: I don’t remember, sir.

  Question: And you had McCarty in your view, did you not?

  Answer: Yes.

  Question: And you saw him fire the weapon, is that correct?

  Answer: Yes, sir.

  Question: However, you did not see him load it before. Is that correct?

  Answer: I don’t recall seeing him load the weapon, no sir.

  Olson then retrieved the report written by detective Peggy Williams concerning her incident interview with McPheron the night of the shootout. “Did you tell Detective Peggy Williams that you believed that McCarty and the deceased Riverside deputy
had gotten hit simultaneously; however, McCarty was able to continue firing?” he asked.

  McPheron stared down at his copy of the report. As written by Williams, it suggested McCarty was already firing when Evans was shot and then was able to continue shooting afterward.

  “Yes, that’s what is down there. Whether it was put to her that way, I’m not sure.”

  “She made that part up?” Olson sneered.

  Both Olson and Adams spent an extended amount of time grilling McPheron on his psychological state, referring to the two prominent newspaper articles in which McPheron had discussed the emotional impact of Norco and the stress of police work in general. Clayton Adams was particularly nasty in his questioning. “Incidentally, have you resolved your psychological problems that you were receiving counseling for?”

  At one point, McPheron recited a list of heartbreaking and gruesome things he had experienced in his career and the toll they had taken. Afterward, Adams questioned his sincerity by noting the mementoes and newspaper clippings McPheron had a habit of collecting. Referring to the piece of windshield with the bullet hole that McPheron had framed, Adams used his last re-cross to take a parting shot at the big deputy.

  “Deputy McPheron, as I understand it, you would like to be able to forget all about these incidents in your past so that perhaps your stress-related problems might go away.”

  “It would be nice,” McPheron agreed.

  “By the way, where did you keep that windshield in your home, that memento?”

  JAY HANKS NEVER BELIEVED D. J. McCARTY SHOT JIM EVANS. HE CALLED THE accusation “foolishness” on the part of the defense. He was less certain about whether it had been Russell Harven or Manny Delgado. There had been three men firing .223-caliber weapons on Baldy Notch Road and only two were still alive. There had been three ARs involved in the gunfight, but only two were ever found. Chris Harven’s HK93 used by Manny Delgado still lay hidden somewhere in Coldwater Canyon, its location a secret Manny had taken to his grave. But for Hanks, the decision of whom to blame for the murder of Deputy Evans was a simple one. Manny Delgado had already received his death sentence. The only person sitting in the courtroom who had been firing a .223 that day was Russell Harven. That is, until D. J. McCarty walked in to take the stand.