“Officer McCarty, are you positive that you did not personally kill James Evans?”
“Yes, I’m positive.”
“As positive as you were about the window?”
D. J. McCarty stepped down from the witness stand just after 3:00 p.m. on the afternoon of April 14, 1982, relieved to be done with the ordeal of testifying but far from certain what the jury might decide after hearing it. On his way out, George Smith glared, and Russell Harven smirked. Chris Harven leaned forward and flashed D.J. the middle finger while shielding the gesture from the sight of the jury with the other hand. D.J. left the courtroom, walked past a waiting reporter without comment, climbed into the root beer–colored piece-of-shit Impala the department had been loaning him for the trips to Vista, and drove home to San Bernardino.
D. J. McCARTY WOULD NEVER SEE THE NUMBING AMOUNT OF BALLISTICS TESTIMONY presented by both sides that followed his own. He would not be there when a nuclear chemist named Dr. Vincent P. Guinn testified for the prosecution that after bombarding sample bullets with radioactivity and then measuring for trace elements, he was certain the fatal round came from the boxes of ammunition used by Russell Harven and Manny Delgado. Or when the defense countered with Lawrence Kovar, who ran the same “neutron activation” tests and agreed with Guinn that it had to be the PS-79 manufactured bullets, but then revealed that dozens of PS-79s had been found at the Fontana substation mixed in with the rest of the ammo for the M16.
He would not be around when Michael White, a criminalist with the department of justice, discredited a claim by the defense that McCarty might have hit Evans while firing through his own windshield from the inside by proving the bullet holes in McPheron’s windshield had come from the outside. Or when the blood splatter experts for the defense contradicted his story by saying the spots around where Evans fell indicated the bullet must have been fired from McCarty’s position behind him.
He would not hear criminalist Ronald Ralston declare that the lead taken from the brain of Jim Evans was too mangled to trace back to any one weapon. Or Donald Dunn, a ballistics expert for the defense, who asserted that there was indeed enough left of the slug to conclude that it could not possibly have come from either Russell Harven’s “Shorty” AR or McCarty’s M16, the only two guns available to test.
D.J. would miss the spectacle of Clayton Adams’s bitter accusations against Hanks and the San Bernardino Sheriff’s Office for conspiring to withhold, steal, and destroy evidence that would have linked the bullet to McCarty. Or Jeanne Painter taking the stand to describe how she had tried for months to get Hanks to comply with an order to produce the only remaining round from McCarty’s M16, only to finally be given a useless slug of lead that had been destroyed when pried out of its casing for testing by the prosecution.
And McCarty never knew that justice J. David Hennigan had made the highly unusual request to the jury that it make a “special finding” to determine who had been the killer on Baldy Notch Road that afternoon. Or that a bailiff had handed out a slip of paper to the jury foreman that read
SPECIAL FINDING:
We find that the bullet which killed James Evans was fired (by)
(mark one only)
George Smith __________
Russell Harven __________
Christopher Harven __________
Manuel Delgado ___________
A Police Officer __________
We cannot say beyond a reasonable doubt who fired the bullet __________
And D. J. McCarty would be nowhere near Vista, California, when the ballot was handed back to Hennigan with a single checkmark indicating the jury’s finding. The only people in the courtroom whose opinion mattered had decided that the killer was the only person with nobody in the courtroom to defend him: Manny Delgado.
18
SCANDAL
April 28, 1982. Vista, California.
ON THE EVENING OF APRIL 28, 1982, TWO WEEKS AFTER D. J. McCARTY HAD completed his testimony in the trial of the Norco 3, a booking clerk at the Vista Detention Facility assigned to the visiting-area observation booth saw something happening in one of the interview rooms. Nancy Garcia watched carefully. Then she left the booth and hurried to notify her supervisor, deputy Larry Van Dusen. Van Dusen entered the observation booth and took a close look. Moments later, there was a sharp knock on the door of the interview room, startling the man and woman inside. The door flew open and Van Dusen announced that the interview between the prisoner and the member of his legal team was now terminated. What for? the woman wanted to know. Van Dusen ordered her to pack up her documents, escorted her to the reception area, and ejected the woman from the jail.
Van Dusen’s report to the commander of the Vista jail, Captain Robert DeSteunder, would say that Garcia had notified him that “suspicious activity of a sexual nature appeared to be occurring in interview room C.” When he went to see for himself, Van Dusen reported that he observed investigator Jeanne Painter “grasping Inmate George W. Smith in the area of his crotch . . .” When the press got ahold of the story the following day, they were less obtuse about what Van Dusen had allegedly seen. “Jail officials ejected Painter from jail last Wednesday night and banned her from interviewing Smith in person after a jailer allegedly observed her masturbating Smith . . .” The same article in the Vista Press went on to quote attorney Clayton Adams as saying, “We deny everything.”
On April 29, with the prosecution calling in its final ballistics experts and wrapping up its case against the Norco 3, all court proceedings came to a screeching halt.
“The record may show defendants and counsel are present. There is no member of the jury present. I intended to take up, Mr. Adams, the matter you mentioned to me this morning,” Judge Hennigan said at the opening of the session. “I would suggest that this would be better discussed in the closed court without members of the public present.”
“I agree, Your Honor,” said a visibly distressed Clayton Adams.
“Very well,” said Hennigan. “The Court will order the courtroom cleared. Captain DeSteunder may remain, but other members of the public are asked to leave. Mr. Bailiff, you will put a ‘Closed Court’ sign out.”
“I have read the report that the Court gave me this morning, the incident report,” Adams began. “The point I wanted to make is that I am not prepared to address any of these charges in the report other than to deny them entirely. Beyond that, I would just indicate to the Court that because of what happened last night, i.e., that my investigator was apparently ejected from the jail premises last night during the course of her meeting with my client, I am not prepared to go forward today. It does not appear that I will be prepared to go forward for the remainder of the case in that this final insult is such that my investigator simply will not be going forward on this case any longer. So I am without an investigator. I personally will not tolerate this kind of conduct,” Adams continued, growing more upset. “I will no longer have any dealings whatsoever with the jail until such time as I have to turn myself in to become their prisoner,” he added, referring to the five-day sentence for contempt looming in his future.
“Had you personally had any problems or limitations in your visits with your client, Mr. Adams?” Hennigan wanted to know.
“I have avoided such visits for this very reason: I don’t want to become a subject of false reports, false charges, false innuendos, as my investigator has. So I have studiously avoided that. You can check the records,” Adams added. “I haven’t even had a visit in the jail probably for over a month.”
“Usually the person who visits the jail and talks to the client is the attorney rather than the investigator,” the judge said, surprised that Painter had been the one conducting all the jailhouse meetings. “This is not a usual case. I am not implying any criticism of having the visits through the investigator,” he added. “But there is no reason you could not see your client in jail, as far as any communication that is necessary.”
“Well, that is your opinion, Your Honor
,” Adams protested. “I am not going to subject myself to this kind of abuse. I am just not going to do it. I don’t think I am required to do so. I know of no ethical or moral requirement or canon that requires me to do so, and I refuse to do so.”
“Do I understand that Ms. Painter has withdrawn herself from this case completely?” Hennigan asked.
“I can’t make any representations at this time, Your Honor. As far as I am concerned, no human being should have to put up with the kind of abuse that she has suffered up to this point. She is not here today. She was not able to accomplish her task last night. I am not prepared to go forward today.”
Hennigan kept calm and methodical as Adams grew more upset, trying to keep the situation from turning into an absolute disaster. For Adams to lose his only investigator—especially one playing as critical a role as Painter—two years into a death penalty case could easily trigger a mistrial, or at the very least leave it wide open for reversal on appeal. Hennigan was doing everything he could to keep Painter attached to the case in a way that would not compromise Smith’s right to an adequate defense.
“Is there any reason she could not continue her function as an investigator in serving subpoenas on witnesses, talking to witnesses, arranging evidence, and assisting you in that respect?” Hennigan asked.
“No. I am telling you, Judge, the woman is a nervous wreck. She has given all she can give and taken all she can take. When she called me last night, she was in tears. And like I said, she was an emotional/mental basket case. The jail has succeeded in doing what they wanted to do.”
“Is she still assigned to this case by the Public Defender’s Office?”
“I haven’t the vaguest idea, Your Honor.”
“Very well,” Hennigan sighed. “I would appreciate it if you would find out from her as quickly as possible if there is any reason she could not continue her functions in this case other than visiting the client at the jail.”
“Whatever the Court wants to do, Your Honor, except my feeling is that that will not be acceptable. She is the one who has been the investigator on this case for almost two years now. She is the only one who knows where everything is, who has her finger on the pulse of the case.”
“Is there any other problem she is having other than her problems in connection with visiting your client in jail?”
“Yes, of course,” Adams said. “She has health problems. She has other problems that I don’t care to go into detail.”
After deciding to recess the case for the remaining two days of the week to get the mess sorted out, Hennigan proposed he and Adams call public defender Malcolm MacMillan to find out whether he intended to leave Painter on the case or assign a new investigator to replace her.
“It should be evident to the Court and everyone concerned that a replacement for Ms. Painter wouldn’t solve the problem,” Adams said, growing more distraught. “Whoever replaces her would have to redo everything.”
“That would seem unlikely,” Hennigan responded. “I presume that whatever she has done, as far as getting witnesses and making investigations, has been recorded in some way so that counsel must present it and is aware of it. I would be very much surprised if she was doing an investigation and keeping it all in her head without any memorandum or notes or reports to the attorney.”
“No, Your Honor. It’s all verbal and most of the time she doesn’t even tell me. I tell her to do things. She does them. I haven’t the vaguest idea how she accomplishes them and I don’t care.” Hennigan asked again about her performing other functions. “She does when I ask her,” Adams replied.
“Well, then, you can ask her and certainly she can do that without having to go to the jail today, tomorrow, or Saturday or Sunday,” Hennigan said.
With that, all the frustration, crushing workload, physical pain, months of sleeping in a motel room, and fights with the jail and prosecutors seemed to overwhelm Adams, unhinging him. “Your Honor, as far as I’m concerned, personally I am no longer going to continue in the fashion that I have. I will be present in court and I will be available from the hours of 8:00 to 5:00 for each day that the court is in session. I no longer intend to work evenings. I no longer intend to work on days that the court is not in session, nor do I intend to work weekends.”
“The Court will not be in session today and tomorrow, primarily, Mr. Adams, so that you may work.”
“Well, in this particular instance, today and tomorrow, yes, Your Honor, because I have agreed to it. But, after those days, Your Honor, it’s 8:00 to 5:00 and if it doesn’t get done, it doesn’t get done.”
“That, as I say, Mr. Adams, is a matter between an attorney and his conscience, his client, and sometimes the state bar. I cannot order you to put in time.” Hennigan attempted to calm the distressed attorney before him. “You have done a good job on the case. I think you have worked very hard on it. And, as I say, I’m not in a position in which I can order you how to budget your time or try your case.”
“Well, I’m trying to be honest with the court, Your Honor. It’s my feeling that no one, attorney or otherwise, has to take this kind of abuse. And I no longer intend to do it. I have been doing it for two years, and I’m not going to continue.”
“Well, I thought we had said that the abuse you have been talking about has been primarily in the relationship with the jail.”
“I think there has been a lot more than that. I don’t think it’s appropriate to go into the record on it at this time. But I have personally endured a lot of abuse that I have never experienced before until I became involved in this case.”
“All right,” sighed Hennigan. Figuring he had done all the fixing he could for the moment, the judge ended the session and left with Adams to make the call to the public defender Malcolm MacMillan. MacMillan did not answer or return their calls.
UPON HER EXPULSION FROM THE JAIL, JEANNE PAINTER FLED VISTA FOR THE sanctuary of her Riverside home. Already plagued by anxiety attacks for months and now anticipating humiliation and unemployment, Painter felt her world crashing down around her. That night, she called Adams in tears and explained what had happened, adamantly maintaining her innocence, as she would unwaveringly throughout the ordeal. Whatever that booking clerk and deputy thought they saw never happened, she said. With cameras excluded from the interview rooms to preserve attorney-client confidentiality, there would be no conclusive evidence to support either side. According to Painter, the incident was nothing more than the latest attack by a bunch of jailers who had it in for her from the start. For Adams, who would stand by Painter throughout, it was another chapter in the jail’s attempt to sabotage the defense of an inmate they had grown to loathe even more than when he first arrived.
It did not take long for the public humiliation of Jeanne Painter to commence. Despite the closed-court proceedings and Hennigan sealing the incident reports, multiple newspapers blasted the accusations against Painter across the pages of their Friday, April 30, editions. To Adams’s dismay, the articles included details from the incident report, quotes taken directly from the April 29 trial transcripts, and comments by public defender Malcolm MacMillan and Vista jail commander DeSteunder. “She can interview him on the telephone, but we are not going to allow her to meet with him,” DeSteunder was quoted as saying.
Adams marched into the courtroom on the morning of Monday, May 3, convinced he knew who had tipped off the press. “Good morning, Your Honor,” said Adams, decidedly calmer than he had been the week before. “I think at the outset I would like to say that over the recess time that we have had here, I have had a little chance to reevaluate my position. And I realize now that no matter what happens that I cannot restrict myself to working from 8:00 to 5:00 and not working extra hours and so forth.”
“However,” Adams added, “at this point I feel that it’s appropriate and necessary for me to move for a mistrial in this case as it relates to my client. There has been widespread publications relating to this particular issue in the press. A good deal of press
in the Riverside area. And I have in front of me now, and I would submit to the court, a copy of the San Diego Union, which is the local newspaper. On the front page of the County section there is a full spread, including a photograph which depicts my client, myself, and Miss Painter.”
Adams moved on to fingering the culprit he suspected was behind it all. “Further, it’s my representation, based on information and belief gathered from my sources within and without the Prosecutor’s Office in Riverside County and from my sources within the staff of the Press-Enterprise, that these articles were generated as a direct result of Mr. Hanks providing copies of the incident report. And how he got that report in the first place I’ll never know, which was ordered sealed by the court. And the reporters that—or at least one reporter, who had access to that report, used it as a basis for the subsequent publications. I would suggest to the Court that Mr. Hanks is in contempt. I would ask the Court to cite him for contempt at this time. And I would urge the Court to grant the mistrial based on the publicity here.”
Hennigan turned to the deputy district attorney. “Mr. Hanks, there is an accusation against you. What is your response?”
“It’s untrue,” Hanks said. “I provided no copies of the report to anyone, nor did I show the copies of the report to any members of the media. However,” Hanks confessed, “I did discuss the contents of the report with members of the media.”
“Did you receive a copy of the report from Captain DeSteunder?”
“I did. I received, I believe, a copy from—I believe it was from Captain DeSteunder. I did receive a copy of the report from the Sheriff’s Department.”
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