“THE PEOPLE CALL DANIEL McCARTY.”
Moments after McCarty was sworn in, the jury was removed from the courtroom so that Judge Hennigan could hear a motion by the defense to forbid McCarty from specifically identifying Russell Harven in court. Sitting quietly on the stand listening to the arguments, D.J. got his first glimpse of the existing acrimony between the defense and prosecution. When Hanks attempted to enter into evidence an artist rendering of the ambush, Olson and Lloyd objected to stick figures representing their clients being included in the sketch. Adams, on the other hand, demanded that one representing George Smith be left in. Hennigan granted the requests of all three defense attorneys.
“I’m objecting, Your Honor,” Hanks said, exasperated at Hennigan’s decision.
“I know you are,” said Hennigan.
“My objection is no good, Your Honor?”
“That’s correct.”
“If I get this right—if I understand this correctly—that drawing can’t come in if I offer it because the defense objects, but part of it can come in if the defense wants it even though I object?”
“Yes,” Hennigan said.
“Well, that seems fair to me,” Hanks said sarcastically.
When Hennigan suggested they could use scissors and cut the offending figures out of the exhibit, Hanks was beside himself. “It’s my exhibit,” he protested. “You’re going to cut up my exhibit, Your Honor?”
“I would agree with Mr. Hanks, that he is correct, the exhibit should remain intact,” Clayton Adams said. He suggested a photograph of the exhibit be chopped up instead. “I would think that he would be thanking me for that,” Adams added when Hanks continued to argue with Hennigan.
“Don’t hold your breath,” Hanks snapped.
“Well, it’s unusual to have found for a fleeting instance Mr. Hanks and Mr. Adams on the same side,” noted Hennigan before ordering the photograph of the exhibit to be cut up.
“I’ll do it,” Adams said, raising the scissors to begin cutting.
“Give me that,” Hanks growled, grabbing hold of the scissors. The two men engaged in a brief tug of war before Hanks successfully jerked them out of Adams’s hand.
“I beg your pardon,” Adams yowled. “Pardon me. May the record reflect Counsel has yanked it out of my hands and is apparently now attempting to cut the photograph?”
You gotta be kidding me, McCarty thought.
After an hour of debate, Olson was able to successfully prohibit the identification of Russell Harven in the courtroom. But within moments of beginning his testimony in front of the jury, Hanks did ask McCarty to identify someone else. “As you look around the courtroom, do you see anybody in the courtroom that you recognize to be the person that was standing in the roadway when Evans fell?”
“Yes, I do,” said McCarty.
“Please point him out.”
McCarty raised a finger and aimed it at the defense table. “The man in the blue suit, with the red tie, with his hand on his face.”
“Wearing glasses?”
“Yes, sir.”
“May the record reflect the witness has identified the defendant, George Wayne Smith?”
“It may,” said the judge.
Hanks kept the questioning of McCarty lean, not wishing to put too much out there for the defense to try to use against him. Although his anxiety had somewhat subsided now that the questioning had begun, McCarty still spoke in a soft voice recounting the killing of Evans, getting wounded himself, diving out the door, and then driving off the suspects with the M16. The jury listened intently, the spectator gallery silent.
Hanks had McCarty step down from the witness stand and approach what was referred to as People’s exhibit 245, or as Hanks called it, “The Mountain.” The Mountain was a scale model of the washout site on Baldy Notch Road that Hanks had commissioned from the graphics department of the Los Angeles County Sheriff’s Office at a cost of $1,000. Using topographical maps and personally inspecting the location, a designer named Michael McClure used chicken wire, a compound plaster called Sculptamold, gravel, and handmade landscape elements to create a remarkably accurate six-and-a-half-foot-long, two-foot-wide representation of the scene. The Mountain took up constant residency in the courtroom for several weeks. The defense refused to use it and Alan Olson had taken to referring to the monster as “Mount St. Harvens” while outside the presence of the jury.
D.J. painstakingly placed a miniature truck, police vehicles, and plastic figures in their various positions during the ambush. Having been permitted to identify him in the courtroom, Hanks and McCarty freely referred to one of the figures as George Wayne Smith. However, because the identification of Russell Harven had been denied, McCarty had been instructed to not refer to any figure or person he might have observed as Russell Harven. But during questioning by Michael Lloyd, McCarty slipped up.
“And your attention was focused on him?” Lloyd asked, referring to the figures McCarty had seen standing by the truck during the ambush.
“It was the whole shot, the blurs, the movement,” McCarty answered. “That’s why it was focused, like I say, on Harven.”
Hennigan jumped in immediately, before the attorneys even had time to object. “The jury is instructed to disregard the identification or statement of name there.”
Olson had been reading over papers at the defense table when McCarty identified his client. His head shot up. “Excuse me, Your Honor? May I have that last answer read back? I wasn’t paying attention.”
Hennigan refused to have the answer reread, not wanting to reemphasize the gaffe again in front of the jurors.
“I am forced to move for a mistrial at this point,” Olson said at a sidebar on the subject.
“I am going to deny it,” Hennigan responded.
“I think the witness, Your Honor, should be admonished in the presence of the jury and that the People should also be admonished in the presence of the jury,” Clayton Adams jumped in. “This to me is clearly unconscionable. There is no question about it. You can tell him not to blurt things out that he has been instructed not to.”
Hennigan rejected the idea of a public scolding of McCarty and Hanks before the jury. Hanks was instructed to whisper to McCarty not to do it again, but it was unnecessary; D.J. had been sitting there listening to the discussion the whole time.
Direct questioning of McCarty took less than a day, with Clayton Adams taking the first cross-examination of the witness, as usual. Adams sparred with D.J. over testimony that he did not know how to load the M16 even though he had fired AR-style rifles before.
“So you had, in fact, fired an automatic weapon of the .223-caliber in the past; that is, before May 9, 1980?” Adams asked.
“Semiautomatic, yes,” D.J. corrected.
“All right. The only difference being where one was automatic and the other one had the semiautomatic/automatic mode; is that correct?”
“Yes.”
“Other features about the weapon being identical?”
“No.”
“No?”
“No.”
“Okay. What were the differences between the weapons then; that is, the weapon you had on May 9, 1980, and the one that you had fired in the past?”
“This weapon here is an assault rifle. It is a military-type rifle. The other weapons that I had fired are basically like a hunting rifle.”
“With magazines that feed in and load them?”
“Yes.”
“In much the same fashion as the one that you had on May 9, 1980?”
“None whatsoever.”
“None whatsoever?”
“None.”
“It didn’t concern either one of you that neither one of you in that vehicle knew how to use that weapon?” Adams asked.
“Oh, it concerned me.”
“Not enough to stop, though?”
“No.”
When it was his turn, Alan Olson challenged McCarty’s claim that he never loaded the gun en route.
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“Now, at that point did you realize or were you prepared to be the one to fire that weapon when necessary?”
“Yes.”
“In fact, that was your singular mission, to get to the front and use it, wasn’t it?”
“Yes.”
“Did you think of loading it on the way up?”
“I thought about it.”
“And you thought it wasn’t a good idea or what?”
“I thought it was a better idea to watch McPheron at the time.”
“You thought it would be a better idea to watch McPheron and arrive with an empty weapon?”
“At the time that I was driving up the hill with Deputy McPheron, I really wasn’t worried about anything except winding up in the ditch.”
“At what point did you become worried or concerned about McPheron’s driving?”
“When I got in the car with him.”
“You thought it would be a better idea to arrive with the weapon and just instantly load it when you got there?”
“Yes. I was planning on getting the weapon operating when I needed it, when I got to the point.”
The cross-examination finally came to the actual firefight itself. The defense began laying the foundation that McCarty accidentally shot Evans while standing just outside the passenger door. That would have put McCarty in a position of firing in the direction of Evans crouched less than a dozen feet in front of him. At the heart of their argument were five empty .223 shell casings found in the dirt outside the passenger door of McPheron’s unit, a bullet hole in the passenger door that could only have been made if the door was open, and the incredulity that McCarty would remain in the passenger seat doing nothing for ten to fifteen seconds while Evans was shot down in front of him.
The presence of the shell casings outside the door was neutralized by testimony that the ejection pattern of the M16 was to jettison spent casings out the right side of the weapon a distance of three to four feet. If McCarty fired the weapon from the V of the open driver’s side door as he contended, it would have sent ejected shells skipping over the hood of the vehicle and onto the dirt on the passenger side.
But Alan Olson challenged McCarty’s story that after being wounded he had kicked open his own door before diving out the driver’s-side, accounting for the bullet hole in bottom of the open passenger door.
“Now, as I understand it, you kicked your passenger door open as a diversion; is that correct?”
“Yes.”
“Okay. As I understand your testimony, you pulled up, Evans gets out, goes from [position] E-1 to E-2. Meanwhile, you are simply sitting there for ten or fifteen seconds observing things in disbelief, as though you were in a movie?”
“Yes.”
“At that point, after Evans is hit, rounds come through, you, yourself, are hit and you duck or dive to the left, putting your right arm up—was it your right arm?”
“Yes.”
“And, I take it, your head was towards the driver’s side at that point?”
“I was moving in that direction, yes.”
“And you kicked the door open?”
“Yes.”
“Kicked it with your foot and grabbed it with your hand?”
“Uh-huh.”
“So somehow you stretched and reached the door handle?” Olson said, in obvious disbelief.
“Yes.”
THROUGHOUT THE FIRST TWO DAYS OF TESTIMONY, HANKS AND THE DEFENSE attorneys continued to battle each other, sometimes in open court. When Alan Olson began to get far afield in his initial cross, Hanks simply called out, “Objection. Ridiculous.”
“Sustained,” Hennigan agreed, without even waiting for Hanks to elaborate.
Referring to the San Bernardino deputies as “banditos,” Olson later suggested that Jim McPheron might also have been firing a second AR-15 converted to fully automatic by a Fontana sergeant whose hobby was firearms. “This is crazy,” Hanks objected.
“If it’s really crazy, you ought to appreciate it,” Olson said.
“Just for clarification,” Hanks asked Hennigan. “The Court is going to permit questioning of this officer who’s not qualified as an arms smith in the AR-15, to testify about another sergeant who is an arms smith, if I’m understanding this correctly?”
“I don’t think you understand anything,” Clayton Adams interjected.
“Oh, go get lost, Clay,” Hanks shot back.
The defendants were not shy about displaying their disbelief at some of McCarty’s responses. Chris Harven was the most demonstrative in his disgust, folding his arms behind his head, leaning back in his chair, and shaking his head whenever he found one of McCarty’s remarks to be especially preposterous. George Smith, sitting beside investigator Jeanne Painter, mostly stared flatly at McCarty. Russell Harven fiddled with his rubber bands, a slight smirk on his lips, his attitude toward D.J.’s testimony the same as it was toward the whole trial in general: a complete joke.
For his part, McCarty had worked up a particular dislike of Clayton Adams. Following a recess on the third day of testimony, Michael Lloyd spotted something rather unusual he felt he should bring to the attention of Hennigan and the other attorneys. “I don’t know if there is a problem or not,” he said, after convening the defense and prosecution teams at the bench. “But as we were coming in the court and Deputy McCarty was going to the stand, apparently there was a note in his binder that dropped out. No one saw the note drop out, but my investigator, Mr. Cummins, did see one of the jurors pick up the note and hand it back to Deputy McCarty.”
“Without reading it, apparently?” Hennigan asked.
“I don’t know if he read it or not. I went up to Deputy McCarty just before we started and asked to see the note, and the note is rather derogatory towards one of the defense attorneys.”
“Why don’t you tell us what the note said?” asked Hanks.
“I am not exactly sure of the wording,” said Lloyd, “but it was something to the effect, ‘Do you think you are going to have a job after this, Mr. Adams?’”
“I would be more than happy to tell them, I don’t have a job at all,” Adams said, more bemused than anything. “I am glad it was brought to the attention of all concerned, but I don’t want to make a big thing out of it.”
McCarty maintained a sly innocence about the note when asked about it later.
ON HIS FINAL RE-CROSS, ALAN OLSON BECAME OVERT IN HIS ACCUSATIONS against McCarty, even attempting to bait him with thinly veiled accusations of cowardice.
“Does the window appear to be up or down?” Olson said, referring to a photograph of the passenger side of McPheron’s unit.
“It appears to be down.”
“When you were carrying the weapon, did you have it pointed out the window?”
“No.”
“Towards the window?”
“Possibly.”
“And you, instead of sticking it out and firing, just sat there and observed Evans die? You did nothing for ten or fifteen seconds; is that correct?”
“Yes, sir,” McCarty said.
“Any fire from behind Evans?” Olson asked, later.
“Not while he was alive,” McCarty said.
“Did you ever go out the passenger door?”
“No.”
“Did you ever give a different version of what happened up there to, say, Detective Jordan?”
“Not that I recall.”
McCarty and Hanks knew that the report written up by RSO detective Mike Jordan was going to be problematic. McCarty had encountered Jordan as he was walking down the Baldy Notch Road to be helicoptered out to the hospital. Jordan asked McCarty the name of the deputy who had been killed and became upset when D.J. confirmed it was Evans. McCarty turned Evans’s revolver over to Jordan. As the two walked down the hill in the direction of the makeshift landing site, they had an informal conversation.
On his cross-examination turn, Clayton Adams attempted to impeach D.J.’s version of events using testimony made b
y Jordan during the preliminary hearing regarding their conversation. “Do you remember telling Detective Jordan that Deputy Evans abandoned his vehicle and came back to his unit on the right-hand side, and you stated that as you were firing, Deputy Evans fired one shot at which time Deputy Evans was struck?”
“No,” McCarty answered.
Calling an extremely reluctant and irritated Mike Jordan to the stand as a witness for the defense, Jordan’s pretrial testimony was read into the record.
Question: Did McCarty tell you what he was firing, what weapon he was firing when Evans was hit?
Answer: No.
Question: Did he say where he was when he was firing and Evans was hit?
Answer: I believe he said he was behind him or alongside him. I can’t remember.
Question: McCarty said he was behind or alongside of Evans firing when Evans was hit; is that correct?
Answer: That’s what I recall, yes.
D.J. was at a loss to explain Jordan’s testimony other than that the man had been distraught at the time upon learning his friend Evans was dead. On the stand, there was not a lot McCarty could do other than deny that he had ever said those things to the detective while walking down Baldy Notch Road in the cold and darkness of May 9, 1980.
“Do you remember telling him any of that?” Alan Olson asked.
“I don’t remember telling him any of it,” McCarty answered flatly.
As McCarty’s three days of grueling testimony wound down, Alan Olson saved his best shot for the very end. Olson went after McCarty over an apparent contradiction in the condition of the rear window of Evans’s vehicle. McCarty testified in the preliminary that Evans’s rear window had been completely blown out of its frame, not a shred of glass left. Evidence photographs clearly showed the window to be shattered, with multiple bullet holes through it, but most of the glass remaining. It was not an especially important discrepancy, but Olson was mostly using it as a set-up for his grand finale.
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