Cell 2455, Death Row

by Caryl Chessman

  I immediately contacted one of southern California’s better-known and most capable criminal attorneys, a small man with button-bright eyes. This was the same man who, with other members of his law firm, had represented me and got me off with a comparatively light prison sentence on that last occasion when I had been confronted with the very real prospect of being sent to the gas chamber.

  He seated himself at the table across from me in the Attorney Room of the jail, looked at me quizzically and shook his head. “Looks like you really got yourself into one this time, Chess. Maybe, though, with a little work I can get you another deal. What will you settle for?”

  “An acquittal,” I told him.

  His eyebrows shot up. “Quit kidding,” he said.

  “I’m not kidding,” I replied. “And I’m not guilty. Maybe that’s just a remarkable coincidence. But it also happens to be the fact.”

  My smallish counsellor’s expression told me, before his words did, that he was frankly incredulous.

  “That’s what they all tell me, Chess. You know that. But let’s face the facts. Let’s look at the airtight case they have against you. I’ve already taken a look into it.” He held up, outstretched, the five fingers of his left hand. Then, taking hold of them one at a time with his right thumb and index finger, he pointed out how the evidence damned me five times over.

  “One, many of the red light victims identify you. Two, you are caught driving a stolen car which fits to a T the description of the one the bandit used. Three, a penlight, also fitting the description of one used by the bandit, is found in the glove compartment of this car. Four, the bandit used an old 45 automatic, and when you’re arrested they find one near the car. Five, the police tell me you have already confessed. I should add, not to mention or count the fact—you are a notorious police character, a two-time loser, that you tried to make a run for it rather than submit to arrest which, the law says, shows a ‘consciousness of guilt.’”

  I told him, “I still say I’m not guilty this time.”

  I held up five fingers and, following his example, counted on them. “One, I was rwmdentified, not identified. It happens all the time and you know it, particularly when the police call the victim and say, ‘We’ve got your bandit; he’s an ex-con who’s already confessed. Won’t you please come down and identify him for us?’ And before the victim comes down, he reads all about the guy’s arrest in the papers.

  “So, all right, let’s take a look at the facts. I’m six feet tall and weigh over 190 pounds, and I look it. My build is what they call muscular. I wear a size 46 coat. All the police reports on the bandit definitely fix his height at between five six and five nine or ten and his weight between 140 and 170, widi a thin to medium build. How about that? And some of the victims said the bandit was an Italian and had a slight accent and talked in a monotone. I’m not Italian. I don’t have an accent, and anybody can talk in a monotone.”

  (You will doubtless question how, at mat point, I knew all these facts. The answer is found in the trial record: while being held those three days for “investigation” the police showed me the police reports.)

  “Two, three and four: I was caught in a hot car, they found a pen-light in the glove compartment and a 45 near the car—all true. But there are thousands of Fords that look like the one I was caught in. You can buy a penlight in any drug or dime store. And all .45’s look alike when you’re staring into the business end of them. So, put all three together and say they add up to more than coincidence. Yet, when you get right down to it, all that means is that maybe this car, this penlight and this gun belonged to the red light bandit. That still doesn’t, ipso facto, make me him.

  “Five, the so-called confessions the police got from me were procured in such a way you would have confessed if they’d been asking you the questions—and telling you the answers. They just aren’t true. And if I’d stopped and let them arrest me in the company of an ex-con in a car loaded with hot clothes, just to mention two facts, I’d have gone back to Folsom as a parole violator, maybe with some new charges, whether I was the red light bandit or not. So how does that show any consciousness of guilt?”

  “All right,” he said, striving to be patient. “Let’s assume you’ve convinced me. Let’s say I believe you. You’re not the red light bandit. Somebody else is. But if that’s the case, you must know who he is. So how do we go about proving his identity?”

  “We don’t,” I said. “We prove my innocence.”

  “And how do we do that?”

  “By alibi witnesses and physical evidence. I’ve been thinking back and I’m positive I can prove where I was when most, if not all, of the red light crimes were committed. By tearing down identification and taking apart the prosecution’s other evidence, showing the obvious flaws in it. By proving their case is too good. By proving, if the prosecution tries to introduce them, that my alleged confessions were coerced and are phony. By letting me testify and tell the truth about the existence but not the identity of a third man in the car that night I was arrested and how I happened to be involved with him. By a lot of other ways that you know as well as I do.”

  “Look, Chess,” my counsellor said, “you don’t seem to understand. If you take the stand, the D.A. can and will impeach you with your prior felony convictions. No jury is likely to believe anything you say after that. And no jury will take your word over that of the police as to how the investigating officers secured a confession. As far as the alibi evidence is concerned, all that will do is create a conflict with prosecution evidence for the jury to resolve. Can’t you see? You haven’t got a snowball’s chance in hell if you don’t produce this third party, if he exists.”

  “He exists, all right,” I said. “But look, I’m not saying he is the red light bandit. All I’m saying is that I’m not. All I’m saying is that there were three people in the Ford and one got away at the service station just before the chase began, and the one who got away fits the description of the red light bandit, and the car and everything in it belonged to him.”

  “That’s your story?”

  I nodded. “That’s my story.”

  The small man with the button-bright eyes mulled over what I had told him. Then he said, “Chess, tell me something. Answer me truthfully. If our situations were reversed, would you believe me if I told you that story?”

  “No,” I admitted, after a moment’s thought, “I don’t think I would.”

  “Well, that’s the answer then,” he said. “I don’t think you would either. It’s not part of my job to decide whether you’re telling me the truth or not. I’m personally inclined to believe you. The story’s just wacky enough to be true and it’s obvious there is just a whole lot more you could tell me that you’re holding back. But take an old campaigner’s word for it: no jury on earth will believe you once they hear about your criminal record and after those female victims get on the stand and point the finger at you and say you’re the man. You’ll be committing suicide if you go before a jury. Better take a deal if I can get one, and I think I can.”

  I shook my head. “No deal.”

  My counsellor looked sad. He said, “Well, Chess, it’s your neck, but just the same I hate to see you stick it in the noose.”

  “In this state,” I reminded him, “they gas you.”

  “That’s right,” he agreed. “And when they get through with the job you’re awfully dead and you stay that way for a long, long time.”

  Those words brought our interview to an end. I was still determined, whatever the risk, to take my chances in front of a jury, yet I couldn’t very well ask a man to defend me who genuinely believed that in doing so he would be sending me to my doom.

  I promptly consulted another attorney, a tall, florid-faced, white-haired former member of the district attorney’s staff, with a formidable reputation both for huge fees and an ability to work legal miracles in seemingly hopeless cases.

  Puffing on a cigar, this attorney listened, absorbed, to my story. He had ask
ed to hear it. When I finished recounting it, I asked, “How much to defend me and really do the job?”

  He promptly quoted a fee of too many thousands of dollars. He also said he wanted a guarantee of several thousands more if he got me the acquittal I wanted.

  I whistled. “Look, counsellor,” I said, “I’m supposed to be the guy who goes around robbing helpless citizens, not you.”

  He laughed a deep belly laugh. “Son, I like to win,” he told me jovially. “I like to win better than anything in the world. It’s a religion —almost a mania—with me. I’d like to win for you, on your terms, but it would take money to do the job. It would mean turning investigators loose to dig up every shred of evidence there is in the case, both for us and against us. It would mean hiring a forensic chemist, using expert witnesses. It would mean spending more time than you can imagine digging around in law books, staying awake nights working out the angles and the kinks in the case, and spending days on end probing prospective jurors’ minds to be certain we got the right ones.” He paused to flick the ash from his cigar.

  “You see, son, I’m no fixer. When I win it’s only because I know more about the case, the evidence, the angles and all the rest than my esteemed opponent the prosecutor. Actually, the fee I quoted you was a bargain rate. I know it’s probably twice as much money as you can afford to pay or can raise. Yet at the same time it’s not a penny less than I could take the case for and still have a chance to win. Understand?”

  I told him I did. I understood if an acquittal was legally for sale, I didn’t have the purchase price. This fact was underscored when I contacted yet a third attorney, with the same results.

  This meant if I still wanted to be represented by counsel at my trial I was left with these alternatives: either hire an attorney I could afford, or ask for an appointment by the court of the public defender. Ours being an adversary system of jurisprudence, a “protection of legal rights” would mean only a watchdogging to insure the presentation of available, favorable evidence, trial of the case according to established procedural standards, and full and fair instructions to the jury on applicable principles of law.

  I needed more than a watchdog, however. I needed an inspired advocate—an Erskine, a Pruiett, a Darrow, a Fallon, a Rogers and a Leibowitz all in one—an unconquerable, dynamic legal gladiator eager and willing to punch gaping holes in the prosecution’s case. I needed a dedicated champion willing to fight for me every inch of the way through the trial. That was what I needed, and I ended up with a fool for a client.

  I decided to represent myself.

  A courtroom and I were not strangers. I was then familiar, generally, with the rules of evidence and, although acquired informally (mostly from my studies at San Quentin), I possessed a working knowledge of criminal trial procedure. I could talk and argue convincingly, and I wasn’t crowd shy. There was no danger I would suddenly find myself struck dumb when the trial got underway and I found myself on my own. Finally, I was in the mood to give the state a good battle for my life.

  I thus believed I possessed sufficient skills, miscellaneous, legal and forensic, to justify my decision to have a fool for a client. That decision was made reluctantly but not halfheartedly. When I appeared for plea I informed the master calendar judge, who would take my plea (of not guilty) and assign the case to another judge for trial, of my decision. His Honor questioned me sharply in an effort to determine if I was sincere or simply claiming an intention to represent myself in order to stall the case along by allowing it to be set for trial and then, at the last minute, hiring an attorney who, necessarily, would have to get a continuance in order to prepare. I assured this judge I really did intend to try the case without an attorney. His Honor wasn’t so sure and warned me I must be ready to go to trial on the date set.

  Being ready is, however, more than a state of mind, and it assumes a condition of fact. In my case that naive assumption was not justified. Back at the jail, I ran head on into unexpected difficulties. My jailers pointedly informed me that their rules did not allow prisoners to possess legal books of any kind, or a typewriter or clerical supplies (beyond pencil and writing tablet paper), although legal books, typewriter and clerical supplies, as I pointed out, were essential to anyone undertaking to prepare a defense in his own behalf. The logic of what I said was met with a shrug, a grunt or a growl. Inquiry also resulted in my being told I would be restricted to two twenty-minute visits a week behind a thick mesh screen from friends or relatives (which included witnesses), notwithstanding the fact I was acting as my own attorney and direly needed to interview numerous witnesses.

  Try as I might, I was not able to get these rules relaxed, and the result was that, for all practical purposes, I was foreclosed from personally preparing for trial. To my way of thinking, this was a strange situation indeed: both California’s organic (constitutional) and statutory law expressly gave the individual defendant the right “to appear and defend in person,” and yet apparently, in practical operation, when the right was asserted, it could be frustrated by forcing the defendant to go to trial wholly unprepared. The situation became even stranger when I attempted to write the trial court and complain. My letters were returned by the jail censor on the ground no prisoner could write a “personal” letter to a judge.

  Not relishing the predicament I found myself in, I contacted a fourth attorney in whom I had confidence and made tentative arrangements with him to assist me in the preparation and presentation of the case. This attorney was to set investigative and other pretrial machinery in motion immediately upon receipt of a fee agreed upon, which was to be paid by my father, who planned to secure the money by making a loan on our house.

  Then I suffered another setback. My father was seriously injured and hospitalized before he had completed negotiations for the loan, and my trial date on the first set of charges came around before he had sufficiently recovered from his injury to conclude these negotiations, even with the attorney’s help. I was scheduled first to be tried on the clothier robbery and kidnaping charges jointly with Dave, the overwrought passenger, who had been named a co-defendant. On my application, my trial was severed from Dave’s and continued for three days, when the red light crimes were to be tried. Although sought, no other relief was granted. On the date set for trial oi the red light and other charges, I appeared before the trial judge (not the one originally scheduled to preside over the clothier robbery and kidnaping charges) and explained I was wholly unprepared to defend myself through no fault of my own. I asked permission to subpoena named jailers to prove I hadn’t been allowed personally to prepare, and had my father and the attorney in court ready to testify. I motioned, consequently, for a brief continuance and for an order that either I personally be allowed to prepare or that the attorney of my choice be allowed to prepare the case for trial for me.

  The motion was denied. The trial judge said it was my own fault I was unprepared, because I had turned down the services of a deputy public defender and had been warned to be ready for trial. He added that he saw no need for me to produce witnesses and that he couldn’t “interfere” with the sheriff’s “arrangements” that operated to prevent me from personally preparing. Then he ordered that all eighteen felony charges be consolidated for one trial.

  The legal battle for my life was on and the struggle ahead looked rugged. I knew that, being wholly unprepared, I would be hopelessly outmaneuvered. Death sentence convictions would inevitably follow if I didn’t get immediate help in contacting my witnesses and gathering physical evidence, things I couldn’t possibly do in a jail cell. So I asked, and the trial judge agreed to appoint the deputy public defender assigned to his courtroom as my “legal adviser” until I could arrange for private assistance.

  My legal adviser turned out to be an earnest young attorney named Al Matthews who had become a deputy public defender for the express purpose of gaining criminal trial practice experience in every kind of criminal case before my trial judge, the Honorable Charles W. Fricke, regarde
d in legal circles as one of the state’s most learned trial jurists and in certain other circles as one of its toughest.

  Al and I huddled that night in the Attorney Room at the county jail. He listened intently to my story, scribbling notes as I told it. I emphasized that I wanted to prove my claimed innocence, not another’s guilt. I told him bluntly that I knew exactly what I was up against and that win, lose or draw, I would take the responsibility. I said all I wanted was a fair chance to defend on my terms. I remarked that I realized my story probably sounded incredible but asked that he accept what I said on faith alone and help me unearth witnesses and run down leads.

  “In short,” I said, “let’s start with a hypothesis of innocence and try to develop it.”

  “Fair enough,” he agreed.

  And that’s what we did. I felt much better when the trial got under way the next morning.

  First was the problem of selecting a jury. The prosecutor, personally convinced I was guilty and a menace to society, wanted a jury that would vote the death penalty. He said so. He said considerably more. He told prospective jurors: “You might think he is just as insane as some people for the defense say” (although no one for the defense had said I was insane). He worried over the fact I “persisted” in representing myself, and added this would give me an opportunity “to grab some sympathy for [myjself in some way.” He asked the prospective jurors if they would be able to cope with the “problem” of “defendant representing himself.” He gratuitously argued the evidence would “be a veritable demonstration and not call for anything except the death penalty,” even before the jurors had the faintest intimation of what the evidence would be or show. He said he didn’t believe the “evidence” would show I had killed or murdered anyone yet. He demanded to know if the prospective jurors had any “quarrel” with the kidnaping law; he told them it took “courage” to return the death penalty and questioned their “courage” to do so.