FROM THE MOMENT CHRIS HARVEN TOOK THE STAND TO MOUNT HIS SIXTHMAN defense, the scene at the Vista County Courthouse devolved into a circus. Veteran court watchers knew to be observant of courtroom etiquette, but now their ranks were swollen with a rabble of amateur gawkers. “The Court will notice that the courtroom is, spectator-wise, filled. In fact, it is over capacity. I think there are people we can’t even get in,” Clayton Adams said to Hennigan at the first break in Harven’s testimony. Always finicky when it came to courtroom distractions, Adams complained about one man in particular “who is commenting on the questions being propounded to the witness, Christopher Harven, the expected answers, and then giving his opinion as to the credibility of the witness, and guffawing, and things of that nature.” Hennigan admonished the spectators not to comment inside the courtroom or outside in the presence of the jurors.
Clayton Adams received a sharp reprimand from Hennigan when he requested ten minutes to run back to his hotel to retrieve the transcript of Chris Harven’s interrogation, which he had not anticipated needing that day. “I find it hard to believe that a competent lawyer would not be prepared to believe that Mr. Lloyd would be asking his client about the statement made,” Hennigan scolded.
Adams, taken aback and feeling undeserving of such harsh words, shot back at the judge. “Let me make it clear on the record, I guess I am incompetent then. For the record, I am incompetent. I did not anticipate this. My client does have incompetent counsel. I request ten minutes to go home.” An irritated Hennigan granted the request and Adams hustled off to retrieve the document.
Michael Lloyd’s direct questioning of Christopher Harven had taken a day and a half. During the break prior to the start of cross-examination, one of the yahoos from the spectator gallery approached Michael Lloyd in the corridor. “I was believing this Jerry Cohen business for a few days,” he said. “But last night I started thinking a nice Jewish boy would never get himself in something like this.” Lloyd was unfazed. “Well, he could be Irish, you know,” he told the man.
On cross-examination, it did not take Jay Hanks long to get into reading the unabridged transcript of Harven’s interview with Detective Malmberg.
During direct, Lloyd had asked Chris to explain how he was able to provide so much detail to Malmberg about activity that went on in places he now claimed he had never been. Two reasons, Chris said. Russell Harven had filled him in on a lot of the details while sitting around the fire in Coldwater Canyon. Everything else, Chris said he filled in based on the roles each were supposed to play inside the bank according to the plan.
Hanks read from the transcript, each time asking Chris if the statement was something he had observed firsthand, had been told by Russell, or was speculating on based on the plan.
“Do you recall being asked: ‘You went to the cage or the vault?’ And your answer: ‘To the vault.’ Was that based on something you had been told or on speculation?”
“That was based on my understanding of where Jerry went.”
“Do you recall being asked: ‘Who goes where armed with what and who does what?’ Do you remember saying: ‘Well, hum, Russ went to the other door’?”
“Yes.”
“Was that based on your personal observation or something you were told or speculating about?”
“It was something I was both told and also per the plan before.”
With the questions and answers right in front of him in black and white and also on the tape recording of the interrogation Hanks would later play for the jury, all Chris could do was confirm his statements and sit there looking like the biggest fucking liar in the world while Jay Hanks shredded his Jerry Cohen story line by line, paragraph by paragraph.
Hanks used the interrogation transcript to implicate George Smith as the mastermind behind the crime, the role Chris had tried to assign to Jerry Cohen during direct testimony.
George was the one who ran the whole show, told us what we were going to do, what bank we were going . . . See, that’s George’s bank, right? Cased it out, you know, when he was in there doing his bank work, you know.
George said he wasn’t going to be taken prisoner, you know. He armed up and told us all to do it, too.
When George decided we were going to go in there, he said he was going to go heavily armed; he said he liked to have some grenades, you know; he said that in the service they made grenades with Coke cans and all that, so him being my roommate, George and I manufactured them together. I helped him.
Hanks was also able to get Chris to implicate George further through direct questioning:
“Mr. Harven, did you ever tell the police that it was the result of your constantly being pressured by George Smith day after day that resulted in your doing it?”
“Yes, I did.”
“Did you ever say, ‘I had a lot of peer pressure, I guess, so I went along with it. So we went down and hit Security Pacific’?”
“Yes, I said that.”
The worst damage to his co-defendants came from several statements Hanks managed to elicit from Chris directly during questioning over the whereabouts and actions of Russ and George during the pursuit and shootout with Evans.
“You have told us that Manny and Jerry and you were in the cab. Where were Russell and George?”
“Russ was in the back attending to George.”
“George was lying down in the back?”
“He was in a severe state of shock. He was bleeding to death.”
“Was Russell lying down also?”
“No. He was leaning over George.”
“Did you ever see him with a weapon?”
“When I was driving, occasionally I would be looking in my mirror or looking back through the glass, and I saw that he had one in his hand.”
“Did you hear the gunfire coming from the back of the truck?”
“Yes.”
It got worse for George and Russ when Hanks used the transcript to grill Chris over the details of what happened in the firefight that killed Jim Evans.
“Do you recall being asked: ‘So you didn’t fire at that point?’ Your response: ‘No. I was just bookin’ it up the road.’ Question: ‘So Manny, Russ, and George were firing then?’ Your response: ‘Well, I know . . . they probably all fired. Like I said, I can’t say that I personally saw them all. I know that we fired. Not we meaning me, but I know . . .’ Did you make that statement to the police?”
“Yes.”
“Who is the ‘all’?”
“Members of the group other than me.”
To the legally untrained, even the veteran court watchers in the spectator gallery, what Chris Harven had just done to the cases of his co-defendants might have gone unnoticed amid the spectacle of his own self-immolation. But every legal professional in the room and the defendants understood completely. From the start, the defense attorneys recognized their primary objective was to keep their clients out of the gas chamber. Key to that, in this trial and certainly on future appeal, was to have their respective client’s confession ruled inadmissible. All three could make a reasonably strong case on grounds of duress and diminished capacity: George from blood loss, Chris from having been shot in the back, and Russ for having gone almost twenty-four hours without food or insulin. But Chris had effectively become the prosecution’s star witness. Even if Russ and George’s confessions were tossed out, Chris’s testimony and confession transcript would still help prove their participation in virtually every crime they were charged with, especially the killing of Evans. In short, it was possible that Chris Harven might have just cost his brother and best friend their lives.
The significance of Harven’s testimony had certainly not escaped reporter Bob LaBarre. “Defendant Implicates Brother, ‘Best Buddy’” ran the headline to LaBarre’s story in the Press-Enterprise the next morning. LaBarre wrote that Chris had “placed his brother, Russell A. Harven, 28, and friend George W. Smith, 29, at the San Gabriel Mountain scene where Sheriff’s Deputy James B. Evans was kille
d more than two years ago. Moreover, he placed his brother and Smith in the back of a stolen pickup from which he had heard firing during a chase into the mountains.”
In an antechamber just off the courtroom, George Smith confronted Chris and Lloyd, demanding that Harven end his testimony immediately before Jay Hanks inflicted any further damage when resuming cross-examination the next day. They refused. Jeanne Painter told George it was too late anyhow. For Chris to plead the fifth now would make it even worse.
Outside the courthouse, Clayton Adams was livid as he spoke to reporters. “There’s no question he is trying to dump responsibility on others. He doesn’t care if it’s Jerry Cohen, his brother, or his best buddy. He’s a coward.”
When asked how Russell reacted to his older brother placing him at the murder scene with a gun in his hand, Alan Olson replied, “Not very well.”
Michael Lloyd countered by claiming it was really Russell and George who were screwing over Chris by continuing to keep Jerry Cohen’s participation a secret. “I don’t think there’s much love lost between them after his brother let him sit for two years without coming forward. Same is true of his best buddy.”
DAY TWO ENDED WITH YET ANOTHER SURPRISE. BEFORE LEAVING THE COURTROOM, Clayton Adams had something to tell Judge Hennigan. “I would also bring to the Court’s attention that it is my understanding, or at least the information that I have at this time, that my investigator has been cleared of any wrongdoing with regard to the jail—the false jail report that I brought to the Court’s attention some weeks ago. It has been determined that that report was, in fact, false and unfounded. She is being reinstated in her position at the Public Defender’s Office. For that reason, I would request that the Court permit me now to rearrange my seating arrangement here back to the original positions because there is no longer any reason for it and never was to begin with.”
“I see no reason why not,” Hennigan said. “Let’s hope there are no further problems or accusations.”
Acting as Painter’s attorney, Lloyd told reporters that the position of the table in the interview room in relation to the observation booth proved the jailers’ allegations to be unfounded. “It’s not that the charges can’t be substantiated. They are false.” Painter told reporters that she had been constantly harassed during her visits with Smith, including being intentionally tripped and, in one incident, thrown up against a wall. “People don’t realize the things that have happened to me in there.”
“There’s no doubt in my mind about what I saw,” deputy Larry Van Dusen commented in the article. “I knew what they were doing.” Commander Robert DeSteunder announced that his ban on face-to-face visits between Smith and Painter would continue. If they wanted to meet, the two could do so over a telephone with a sheet of plexiglass between them.
WHEN COURT RECONVENED THE NEXT DAY, ALAN OLSON HAD SOMETHING HE wanted to address with Judge Hennigan prior to admitting the jury to the courtroom. “I would object to proceeding today in light of the condition of Mr. Christopher Harven and the obvious implications to the negative for my client,” Olson told the judge.
“The record should reflect what counsel is speaking of,” Jay Hanks said.
“I’m talking about the condition of Christopher Harven, who has an obviously damaged face,” Olson said.
“In order to make it clear,” Hanks added, “it appears that the defendant, Christopher Harven, has suffered an injury to his face. It appears that the left side of his face is slightly swollen and also red and there are abrasions on the left side of his face across his forehead.”
“Your Honor,” Olson continued, “because of the obvious implications that may befall my client quite unfairly, I would ask for some kind of an admonition to the jury that my client had nothing to do with these injuries, which are quite obvious. They are all over his face.”
“I think the best way would be to have Mr. Lloyd take that up in questioning. Mr. Harven can indicate at that time that no co-defendant had anything to do with it.”
“I’m not going to indicate that, Your Honor,” Lloyd responded. “I have no evidence that no co-defendant had anything to do with it.”
“Do you have any evidence that they did?”
“No. I have no claim whatsoever.”
“Well, if you don’t ask him, I will,” said Hennigan. “Mr. Christopher Harven, to the best of your knowledge, did the co-defendants have anything to do at all with the marks which appear on your face?”
“None whatsoever, Your Honor,” Chris answered.
What actually happened to Chris Harven’s face would remain a matter of intense speculation. What was not under dispute was that within three and a half hours after returning to the jail, somebody beat the shit out of Christopher Harven. The consensus among court watchers was that George Smith had done it. Others thought Chris had asked another inmate to rough him up to support his Jerry Cohen defense. Harven would later say it was done by other inmates when George put the snitch jacket on him after Harven refused to discontinue his testimony. But, under questioning on re-direct, it was clear who Michael Lloyd wanted the jury to believe was behind it.
“Chris, how did you get those marks on your face?” Lloyd asked.
“These marks?”
“Yeah.”
“Not keeping quiet.”
Jay Hanks was immediately out of his seat objecting and requesting a sidebar at the bench.
“What is the relevance of the present marks that he has?” Hennigan asked Lloyd out of earshot of the jury.
“His answer will be that they are in retaliation for testimony he has had here at trial involving Jerry Cohen.”
“This is outrageous,” Hanks said. “Surely counsel doesn’t think that that is admissible, that this man is going to testify that somebody else attacked him because he identified this person who is supposed to exist named Jerry Cohen?”
Despite Hanks’s protests, Hennigan ruled that he would allow the questioning.
“How did you get the marks on your face?” Lloyd resumed.
“I was beaten.”
“And do you know the reason why you were beaten?”
“Yes. They told me to shut up.”
“Well who were they?”
“Inmates.”
“The inmates, did they say anything in reference to your being hit?”
“Yes. They told me to shut up and I had better stay off the stand.”
For the remainder of the guilt phase of the trial, Chris was housed in the jail infirmary and a protective cell, away from other inmates, including George Smith.
HAVING READ THE ENTIRE INTERROGATION TRANSCRIPT INTO THE RECORD, Hanks spent the remainder of his cross-examination mocking the plausibility of Harven’s story. Hanks ridiculed the notion that as the van carrying his brother and best friend sped off to commit a crime Chris felt was doomed to certain failure, Chris’s first thought was to go into Kmart to beat the heat.
Hanks used Harven’s account to portray him as callous and self-serving.
“Now when, after hearing the gunfire and seeing this strange truck appear, you got into that truck not knowing where your best friend and your brother were at, is that correct?”
“I didn’t know at the time that my brother and George were in there; that wasn’t really a thought on my mind.”
“You were approximately 259 yards away from the area where possibly your best friend and your brother had been engaged in a gunfight during a bank robbery, correct? Did it occur to you to go back those 259 yards to the intersection of Fourth Street to check and see whether or not your brother was wounded or killed at the intersection?”
“I wasn’t going to go anywhere near the intersection.”
“Did it occur to you to go back to that intersection to see whether or not your closest and dearest friend, George Smith, was wounded or killed at that intersection?”
“Not at all.”
Hanks questioned Chris about his and George’s motivation for arming up so heavily for
the robbery attempt. “The catastrophe that this country is going to go through in two or three years, that was going to result in the collapse of social order; isn’t that correct?”
“Yes.”
“You and George believed it was imminently necessary that you two get out of Southern California, didn’t you? Did you believe that your survivability would be increased if you could get to a mountainous area someplace in Utah or Colorado?”
“Yes, I did.”
“Mr. Harven, you felt that if you had to stay in Southern California another two or three years with the impending social collapse, that you wouldn’t survive, didn’t you?”
“That thought had crossed my mind.”
“Isn’t it true, Mr. Harven, that your opinion was you were all young men and you weren’t afraid to die? Isn’t it true that you took these thousands of rounds of ammunition and these bombs, gas masks, all these weapons, because you were convinced that you would die anyway if you had to stay in Southern California?”
“That’s incorrect.”
“Mr. Harven, didn’t you believe, and weren’t you convinced, that it was necessary for you to succeed or die in this attempt?”
“No.”
IN ALL, CHRIS WAS ON THE STAND FOR FOUR DAYS, THREE OF WHICH WERE under cross-examination by Hanks, Olson, and Adams. At the conclusion of the testimony, Jay Hanks commented derisively to the press that the whole Jerry Cohen story could be summed up by the two-letter identifier the court had assigned to one of the last pieces of evidence submitted in the case: “Chris Harven’s—BS.”
On June 30, 1982, the prosecution and defense rested their cases after six solid months and more than two hundred witnesses and nine hundred exhibits. Despite the two sides’ frequent displays of personal dislike for each other throughout the trial, most of it had been out of presence of the jury, restrained by the rules of courtroom decorum, and cut short by the authority of Hennigan. But with the following day’s closing arguments, the rules would be loosened and the gloves allowed to come off. In statements intended to address the guilt or innocence of the defendants, both the prosecution and defense attorneys would instead direct their harshest accusations at each other in a display of vitriol rarely seen inside a courtroom.
Norco '80 Page 38
