“I see,” a very unpleased Hennigan said.
For Clayton Adams, it was unambiguous evidence that the prosecution was engaged in ongoing and improper collusion with the jail and law enforcement agencies to undermine the defense. “I don’t understand why the prosecution or how the prosecution even had a copy of that report. This is not a matter of public record, as far as I know. Police reports are not a matter of public record,” he said sharply. “I would indicate to Mr. Hanks and to the Court that my position is that that report was taken back to the Riverside office, copies were actually run off and posted around the office. Now whether Mr. Hanks cares to deny that it was he who disseminated that report, that’s fine. But the point is, a copy or copies reached the hands of the press and it was as a direct result of Mr. Hanks’s activity. And I would urge the Court—”
“Mr. Adams has a habit of making bald-faced accusations without substantiation,” Hanks cut in. “No copy of that report, of my report, was ever made. My report remained in my hands at all times. Although I did discuss the contents of the report with a number of different individuals, I never had the report duplicated. To my knowledge, there was no report ever posted in the District Attorney’s Office. And I’m simply unaware of any further of these allegations. I discussed the contents with both members of the District Attorney’s Office and also with members of the media who called me on the phone.”
The admission that he had revealed the contents of a sealed report to the press was unsettling. The implication that Hanks might be reveling in the misery of Painter and stoking the gossip mill now in full swing was at the very least unseemly. But Jay Hanks was certainly not the only source of information. True or not, the story of a beautiful thirty-three-year-old investigator jacking off a cop killer inside a jail interview room was simply too juicy to keep secret for the multitude of jailers, deputies, and courthouse staff who knew the details.
“This report does not really relate in any way to the guilt or innocence of the defendants,” an exasperated Hennigan said. “And the motion for a mistrial is denied.”
“And the request for a citation of contempt as to the prosecution, Your Honor?” Adams asked.
“That is also denied as of this time.”
Hennigan then called in the jury. “I would like to ask you: While I have told you not to read articles relative to the [case], did any of you actually see this article? If so, would you raise your right hand?” With possible jury bias from the story at the heart of Adams’s request for a mistrial, Hennigan had been hoping no hands would rise. No such luck. “Very well,” he sighed. “Let’s see, Mr. Moreno, Mrs. Bourguignon, Mr. Perk, and Mrs. Galanter.”
Hot on the tail of a salacious jailhouse sex scandal, the papers quickly dug up more dirt on Painter from sources within the Riverside legal and law enforcement communities. Along the way, someone got their hands on the November 27, 1981, Vista jail incident report accusing Painter of bringing in photographs of herself nude “in various positions” and including the investigator’s explanation that they were “for my husband.” Wondering who this husband might be, a reporter managed to confirm what Painter’s colleagues at the Riverside Office of the Public Defender suspected or already knew. Placed near the bottom of the April 30, 1982, article in the Vista Press announcing the scandal was a single paragraph containing a bombshell.
Painter has been involved in several of the Public Defender’s major cases in recent years. In 1978 she married one of her clients, John Ditsch, after he was convicted of second-degree murder. He has been serving time in state prison since then.
Two days later, on May 5, Adams again moved for a mistrial upon learning that Painter had been placed on leave by the public defender’s office. “Not only has she been relieved of her duties with respect to this case, but with respect to all of her duties in the Public Defender’s Office.”
Again, Hennigan rejected the motion. “I am going to deny the mistrial at this time, at least until we see what the situation is next Monday.”
Adams said he doubted anything would get done by Monday. “To me, this is a deliberate sort of a thing anyway. Somebody wanted this to happen, and it happened.”
Before ending the discussion, Hennigan made a decision he hoped would guarantee Painter would remain on the Smith defense team, one way or another. The judge acknowledged that he did not have the authority to tell the public defender what to do concerning an employment issue, but he would refuse to enforce any ban defender Malcolm MacMillan might place on Painter regarding her ongoing participation in the case. Hennigan told Adams to instruct Painter to be in attendance when Adams returned to court the following Monday, May 10.
After speaking with Painter, Adams was in full expectation that he would once again have his lead investigator on his team and at his side. He then left for a long-planned three-day legal seminar in Georgia. But when he returned, he was surprised to encounter yet another obstacle in his battle to get his investigator back. The source of the problem was one of the last people he would have expected.
AFTER ONCE AGAIN DISPATCHING HIS DEPARTMENT’S LEAD INVESTIGATOR, Theron Bursell, to look into the allegations against Painter, public defender Malcolm MacMillan made his decision. On May 6, 1982, MacMillan sent a letter addressed to Jeanne Painter-Ditsch notifying her of “our intent to terminate you from your position as Senior Defender Investigator with the Office of the Public Defender for the County of Riverside.” The letter went on to give an effective termination date of the following Thursday, May 13.
In addition to citing the Vista jail allegations against Painter, MacMillan added a second reason. “As a result of your acts on April 28, an article appeared in the Press Enterprise on April 30, 1982. As a result of this article and the comments and observations made by persons having to deal with this office, the effectiveness of the female investigators employed by this office has been reduced. The morale of these employees has been adversely affected.” In other words, MacMillan was saying, not only have you humiliated yourself, you’ve humiliated every other woman in this office. It was a vicious accusation to make against a woman who had always valued and returned the support of her female colleagues.
In response to the termination notice, Jeanne Painter retained counsel to defend herself against the allegations and fight to get her job back. Her choice of attorney was a curious one.
“THIS IS THE FIRST TIME I HAVE SEEN THE LETTER ADDRESSED TO MS. PAINTER,” Judge Hennigan said, reading over the termination notice. It was Monday, May 10, Clayton Adams’s first day back in court after the Georgia trip. “Ms. Painter apparently is still employed by the Public Defender, until at least this Thursday,” commented the judge, scanning the room for the presence of Painter, whom he expected to be back at the defense table.
Adams too was surprised to find Painter missing. “When I left on Wednesday,” he said, “it was my understanding that she would be here prepared to go forward this morning. As the Court can see, she is not here and the Smith defense is once again without an investigator.” Adams then addressed a situation that had been even more surprising to him. “The subsequent information that I learned is this: that during my absence, somehow Mr. Lloyd became involved in the case and apparently is representing Ms. Painter in her difficulties with the county. And he has advised her not to be here. So I have got co-counsel who is advising my investigator not to be present in the courtroom.”
To find Michael Lloyd, his closest ally and friend in the trial, suddenly standing in the way of getting his investigator back was intolerable. Lloyd knew how important Painter’s help was to Adams and that her absence, even for a week, would be severely damaging to a case Adams had put his heart, soul, and sanity into for two years. Not to mention the stress and added workload it would heap onto a man who was already near his breaking point. Lloyd might have seen the two roles as completely independent of each other, but Adams did not.
“And the retainer as to Mr. Lloyd happened while I was gone,” Adams went on. “And
I’m not sure what the status is here, but at this point, Ms. Painter is following Mr. Lloyd’s advice as to whether to appear in court or not, is the way I understand it. Now, doesn’t that on its face create some kind of a conflict, where the co-counsel’s attorney is telling my investigator what to do?” Once again, Adams was becoming increasingly distraught. “I would ask the Court, Your Honor, how can I and my client be assured of what the situation is when she reports to Mr. Lloyd as opposed to me? We’re not independent any longer. Our defense has been splintered. In fact, it’s been destroyed in my view.”
Adams argued for a motion for a brief suspension of the trial until it could all be sorted out. Rather than being obstinate or combative as he had in the past, Adams practically begged Hennigan. “We’re floundering here, Your Honor. And it’s not the fault of the defendant. It’s not the fault of defense counsel. I’m just asking for what I believe is reasonable.” Adams ended with a final, desperate plea. “I’m a voice in the wilderness at this point. And all I’m asking for is just a brief couple of days.”
“I’m going to deny the motion to suspend the case temporarily,” Hennigan announced, to the dismay of Adams. The judge then addressed Michael Lloyd regarding the conflict of interest. “Whether Ms. Painter follows the instructions of the attorney whom she has been appointed and hired to assist, or that of Mr. Lloyd, is up to her. I do suggest to Mr. Lloyd that there is a possibility of a conflict of interest in a situation like this. And I suggest that to Ms. Painter too.”
“I frankly don’t see the conflict,” Lloyd said. “I have informed Ms. Painter of the possibility of a conflict, and we have taken great pains to make sure that this does not arise.”
Adams took exception to Lloyd’s statement. “I would suggest to the Court that the conflict is just very evident. I told Ms. Painter to be here this morning. He told her not to be here. She is not here. So Mr. Lloyd’s remarks are just not well-founded.”
With everyone having presented their arguments, Hennigan acted decisively. “Insofar as any orders by Mr. MacMillan that she not do any further work on this case, I will and do overrule Mr. MacMillan on that on the basis that regardless of her employment, she is now and has been for some time assigned to this court to assist an officer of this court.”
“Your Honor, I would seek a couple minutes to at least make a phone call and I would advise her to come back into court,” Lloyd requested.
“Would ten minutes be sufficient, Mr. Lloyd?”
Twenty minutes later, Clayton Adams’s investigator was back in the courtroom seated beside him at the defense table, albeit with the attorney now positioned between Painter and Smith for the duration of the trial, as ordered by the Court.
On May 13, 1982, three days after returning to the courtroom, Jeanne Painter was officially terminated for misconduct by the Office of the Public Defender and began her career as a private investigator on retainer to Clayton Adams. One day later, the prosecution rested its case against George Wayne Smith, Christopher Harven, and Russell Harven after four and a half months and 120 witnesses.
After her dismissal from the defender’s office, it would have been much easier for Jeanne Painter to simply walk away from the case and avoid all the waiting reporters, knowing looks, snickers, and whispers she would be subjected to around the Vista courthouse. But she had always been tough, independent, and gutsy. She also had a kid and needed the steady money. There might have been another reason Jeanne Painter was willing to endure the daily humiliations to remain on the defense team. That reason was George Wayne Smith.
TWO WEEKS LATER, JEANNE PAINTER TOOK THE STAND AS A WITNESS FOR Clayton Adams, although purely in her capacity as an investigator on the case. However, when it became clear that Adams’s primary purpose was to have Painter state that, in her opinion, Jay Hanks and the prosecution had intentionally withheld evidence, Hennigan called the attorneys to the bench for a sidebar. The judge got right to the heart of the matter.
“Now, one other thing I see coming up that I wish to make certain that we do not get into, in view of the fact that her background and closeness to the case has been established, Mr. Hanks, do you intend to go into any question of the matters that came up two weeks ago?”
“To be quite frank with the Court, I hadn’t decided if I at this point intended to impeach her by her—how shall I say—closeness to the defendant.”
“Well,” Hennigan said. “I think I am going to forbid anything which would amount to impeachment on claims that have not been proved as scurrilous matters, and so on. On the other hand, a proper method of impeachment is bias. And a legitimate relationship with a client—let me state it since we are out of the presence of the jury, because I have heard rumors.” Hennigan paused, uncertain if he should even bring it up. “Does she have any marital plans with Mr. Smith?”
19
WHO THE FUCK IS JERRY COHEN?
May 17, 1982. Vista, California.
ON THE EVENING OF MAY 17, 1982, ALL THREE DEFENDANTS, THEIR ATTORNEYS, and investigators in the trial of the Norco 3 met for what was assumed to be a perfunctory final review and coordination of the individual defense cases to begin the following morning. Judge Hennigan had granted the request by the defense to meet at the courthouse in what would be the first and only time all nine would be together outside the courtroom. Before the meeting, Jeanne Painter had an idea to lift the spirits of the three defendants. After dining out with Clayton Adams, Painter ordered three steaks to go. Telling the courthouse guards the containers were just leftovers, the investigator brought them into the meeting room to the delight of George, Chris, and Russ. After five months of prosecution witnesses, they would at last have a chance to go on the offensive. But the warm glow of unity and cooperation was to last no longer than the steaks, never to be experienced again.
After consulting among themselves for more than seventeen months, the last thing Clayton Adams and Alan Olson expected were any surprises. But when Michael Lloyd finished outlining his strategy for the defense of Christopher Harven, the others in the room exchanged looks of stunned disbelief.
Clayton Adams took a deep breath and folded his hands on the table. If you really want to go ahead with this, that is your right. As long as it doesn’t interfere with the defense of our clients.
Lloyd then broke the news that he had every expectation of putting Chris on the stand to testify.
That was a problem, said Adams. A big problem. Of particular concern to Adams and Olson were comments made by Chris Harven during the interrogation by detective Larry Malmberg the day of his capture. By testifying, Chris would be subject to cross-examination by Jay Hanks in which the prosecution could bring in statements implicating George and Russ that Hennigan had previously ruled inadmissible. All three attorneys had fought exhaustively to keep these statements out, but now Lloyd was going to ruin all of that just because he wanted to roll the dice on some wacky defense doomed to certain failure.
The February ruling by Hennigan had been a partial victory for both sides. In their respective interrogations, all three defendants had not only confessed in detail to their own guilt, but explicitly implicated their co-defendants. Hennigan had ruled the prosecution could introduce the contents of the interrogations, with one important limitation: Due to the hearsay and Aranda-Bruton rules, only statements made by a defendant about himself or his own actions would be allowed. But if Chris took the stand and contradicted his statements to Malmberg, Hanks would be allowed to impeach his testimony by reading the verbatim excerpts from the parts of the confession that had been previously excluded by Hennigan. Whatever his intention, Chris would be effectively testifying against the others.
The meeting quickly grew contentious as Olson and Adams made it clear they did not appreciate being bushwhacked by Michael Lloyd at the eleventh hour. From the start, Clayton Adams had been the de facto leader of the defense team both by virtue of his greater experience in felony cases and by force of personality. He had usually been first to cross-examine prosecu
tion witnesses, defending not only the interests of George Smith, but also matters common to all three defendants. Olson and Lloyd swooped in afterward mostly to address any remaining issues peculiar to their own clients. As such, it had long been agreed that Adams would go first with the Smith defense, launching the initial and most complete attack on the prosecution’s case. But what Lloyd told them that night changed everything. Adams would now have to completely adjust his opening statement and witness list to defend his client not only against Jay Hanks, but also Christopher Harven. Adams’s position was simple: You want to spring this shit on us at the last minute, then you go first. Olson concurred. Michael Lloyd did not.
IN THE DARKNESS, THE THREE DEFENDANTS RODE IN THE INMATE VAN BACK to the Vista jail. You were captured in the mountains with that cop’s bullet in your back, asshole, George growled in a low voice, seated one row behind Chris. How are you going to explain that?
Don’t worry about it, Chris said, staring out the window. I’m not going to say a fucking word about you or Russ up there.
You won’t have to; Hanks will say it for you, George said. We were never going to turn on each other, remember?
We were never going to get taken alive either, remember?
George sat back in his seat. I wonder what they’re going to think about it back in the tank.
Chris turned to look at George, his face visible in the alternating light as they passed beneath the street lamps. Don’t even think about putting a snitch jacket on me, he warned.
They were silent for a while.
What the fuck, Chris? Russ said in the darkness. All you’ve ever done is what’s best for Chris.
Yeah, well . . . Chris stared out at a world of fast-food restaurants, gas stations, and car dealerships, one where he was now considered too dangerous to exist. A car came to a stop at the light beside them. Chris stared down at the young woman behind the wheel. No more of that either. Throughout the prosecution’s case, Chris had a growing feeling that George, Russ, and their attorneys were taking an every-man-for-himself approach, frequently disregarding previously agreed-upon tactics. Maybe now it was time to look out for himself too. You know something, he thought. Fuck you guys.
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