In turn, I wanted a jury that would weigh all the evidence fairly and impartially, and hardheadedly decide the question of guilt or innocence without being influenced by passion, prejudice and newspaper or other hoopla. So each of us, the prosecutor and I, arduously questioned prospective jurors until, four days later, a jury was finally selected and sworn “to try the cause.”
That meant the preliminary skirmishing was over.
I also had the uneasy feeling that it meant the battle, if not the war, was lost before it had really begun. It seemed to me that the prosecutor, before offering a shred of evidence, had convinced the jury that this was a death penalty case and that the trial to follow was simply a necessary formality.
I heard my motion for a daily transcript of the trial proceedings, invariably granted in capital cases, denied.
I listened as the prosecutor stood before the jury and delivered his opening address. The theme he was to stress throughout the trial was nicely summed up in a one-sentence paragraph of a news story which appeared in the Los Angeles Daily News:
In his [opening] statement to the jury Dist. Atty. J. Miller Leavy said Chessman was a “criminal genius, a one-sided personality with absolutely no social conscience.”
An old hand at the game, the prosecutor forcefully and dramatically presented his case in support of the charges, his “case in chief” as the law calls it. Neatly he wove a convincing, damning net of direct and circumstantial evidence around me. He called witness after witness to the stand—several victims of the red light bandit who said, “That’s the man!” Forensic chemists who testified crisply, professionally with regard to hairs and mathematical probability, and little nuts and pliers and “adhering debris.” Police officers who vividly detailed my capture.
I countered with a vigorous but necessarily improvised defense. Already, so far as I was concerned, the trial judge figuratively had handcuffed me when he had ruled I would have to remain at the counsel table and would not be permitted to approach the witness stand to cross-examine prosecution witnesses with regard to exhibits; nor would I be allowed to take those exhibits to the jury box and pound home my point after I had ferreted out some piece of damaging information from a prosecuting witness.
We had so little time to find witnesses and dig out favorable physical evidence that my defense at times lacked the convincing coherence additional time for preparation would have given it. I was obliged to call several witnesses to the stand absolutely cold, without first interviewing them, and others after but a hurried interview. Still other key witnesses we never did locate. And there was the very real problem of trying to defend against eighteen serious felony charges simultaneously. All I could hope to do with such a rough-hewn defense was to create a reasonable doubt as to my guilt, which is all the law requires to warrant acquittal.
I took the stand in my own behalf and flatly denied being the red light bandit or committing his crimes. I weathered the storm of an intensive three-day cross-examination, steadfastly stuck to my claim of innocence. But the prosecutor was clever and in several ways made a fool of me. I had expected that to happen and considered it unavoidable, since what I was trying to do could be compared to a man in a stud poker game who declares he has an ace in the hole but refuses to show it. I testified that diree men had been in the Ford the night of my arrest (and earlier a fourth) but refused to identify that third person, and this gave the prosecutor an excellent opportunity to ridicule my testimony. He also, over my objection, forced me to admit that two other men and I had been associated with an individual engaged in closing down the “books” (places where illegal wagering is done on horse races) of a competitor, and that I had taken $2300 from one bookmaker at the point of a gun, a “robbery” not charged.
In rebuttal, to impeach and discredit my claim of innocence and to smash the then looming structure of my defense, the prosecutor sought to introduce in evidence my pre-trial confessions, after having asked me if I had not admitted commission of a crime charged. I challenged his right to do so and branded those confessions in sworn testimony as false and extorted. The prosecutor replied by calling to the stand investigators who testified I had not been mistreated and had confessed freely and voluntarily. As a result, the trial judge overruled my objections and permitted the police to testify and relate those confessions to the jury.
That evidence, in turn, brought before the jury startling accounts of my violent criminal past, since, on invitation ot the prosecutor, one of the investigating officers testified these previous crimes and criminal acts—robberies, shootings, gun battles with police, escapes from custody—had been discussed while I was being grilled with regard to the red light crimes. This officer also testified I had bragged that I would continue my criminal career posthaste if I ever got free again but would be smarter and not get caught next time. I strenuously denied making any such statement, bragging or having discussed my criminal past with the police, and offered other surrebuttal evidence in an effort to combat the shock-producing effect I saw the prosecutor’s rebuttal evidence had had on the jury.
In all, when both sides had completed their presentation of evidence, a staggering total of more than eighty witnesses had testified on 120-odd different occasions and eighty-four exhibits had been placed before the jury. When transcribed, the testimonial evidence alone filled 1500 pages of the reporter’s transcript of the trial proceedings prepared for use on appeal.
Of the prosecutor’s argument to the jury, the Los Angeles Daily News (on May 18, 1948) reported:
Life of criminal genius Caryl Chessman is a burden and a menace to everyone, including himself, and he would be better off if he were put in the gas chamber.
This was the theme of Dep. Dist. Atty. J. Miller Leavy in his summation to a jury in Superior Judge Charles W. Fricke’s court today.
“This young man is completely worthless,” said Leavy.
“Since he was 16 he has abused every privilege of society.”
Then the prosecutor called the jury’s attention to the fact that I was being tried for three kidnaping charges punishable by death—so return three death penalties! he demanded.
The news story just mentioned went on to state the defendant “appeared unimpressed by the prosecutor’s demand that he pay with his life for the alleged crimes,” and that “It is expected that the jury will get the case tomorrow, after Chessman, a very eloquent speaker, has made his pitch to the jurors.”
I spent that night chain smoking, pacing the cramped floor of my jail cell, reviewing the evidence from every conceivable angle and forming in my mind what I would—or could—say on the morrow when I confronted those twelve grim-faced talesmen and talked for my life.
How do you convince twelve such people who have heard you branded a fiend and worse by the prosecutor, who have seen and heard witness after witness point you out and say you are the bandit, who have heard police say you confessed, who have heard officers tell of the violent episodes in your past and your asserted determination to return to a life of crime as soon as you got free again—how do you convince twelve such people you simply are not guilty of the particular crimes for which you are on trial?
The answer is, you don’t. When the time comes you stand before them and quietly, with cold logic, with, warm emotion, you argue the evidence and your claimed innocence. You say all that can or should be said. You hammer at the fact mat the red light crimes were committed by a bungling amateur with a sexually twisted mind, not by a coldly calculating professional criminal. You ask them: Would a two-time loser who intimately knew the ins and outs of crime approach a car unmasked and proceed to commit penny ante crimes punishable by death, knowing all the while his picture was on file in practically every police station in the county and that it probably would be one of the first to be shown to robbery victims? You pound at this theme and dissect the evidence for a day and a half. Then you sit down.
You listen as the prosecutor closes with another blast at you. He appeals to the jury to render “co
w county” justice. You listen as the judge gives long, complicated instructions to the jury. You know what is coming thirty hours later when you are brought into court and the foreman of the jury tells the trial judge the jury has arrived at verdicts. On slips of paper these are passed to the court clerk. He reads the verdicts aloud. The jury has found you guilty on seventeen of the eighteen charges. On two it has fixed the punishment at death.
You know then that the long, tough battle for survival, rather than just ending, is just beginning. You know you are headed for the Death Row and that you will be lucky—damned lucky—to come off that Row alive. You remember then what a grizzled old convict once told you: When it gets too tough for everybody else it gets just right for me!
The reporters and photographers swarm around you. Flash bulbs explode in your face. Questions are hurled at you.
No, the death penalties didn’t surprise you, but they did disappoint you. You had hoped for an acquittal. Yes, you still absolutely claimed to be innocent. Yes, with the death sentences, you believed your chances for reversal on appeal were good.
What happens if you lose the appeal?
The answer is simple. You practice holding your breath.
After that the reporters aren’t quite so flip with their questions. They sense that inside you aren’t amused.
And you’re not. You’ve made up your mind you will put up the damnedest legal struggle any human being ever has before they get you in that ugly green room.
• 30 •
“What Do You Think about It Now, Sucker?”
June 25, 1948—the date I was sentenced to death—fell on a Friday. It was hardly a typical Day of Judgment. No thunder boomed in black, turbulent, wind-swept, rain-lashed heavens. No somber background music, gradually increasing in tempo, rose to a crashing finale. On the contrary, it was a warm, languorous day of early summer, and through an open courtroom window I could glimpse a patch of sunny blue sky and haze-shrouded mountains off to the northwest. Familiar, commonplace city sounds and smells drifted up from the street eight floors below. And distantly, perhaps from a car radio, I heard, mingled with other sounds, that phenomenon unique to our modern society, the singing commercial.
Heavily guarded, I had been brought to court a few minutes early and, while waiting for the judge to arrive, Al Matthews and I spent the time smoking and talking about nothing in particular, our countenances far from funereal. When Judge Fricke, a slight, bespectacled little man then in his late sixties, with a surprisingly deep voice, entered and seated himself at the bench, we plunged our cigarettes into a handy sand-filled receptacle and ceased talking. In a bored voice the clerk formally declared court in session and I walked around and took my place at the counsel table. I leafed through my notes to be certain they were in order.
The case of The People of the State of California versus Caryl Chessman was called. The court announced itself ready to hear argument on the motion for new trial I had made. Heard, the motion was denied. Was there any legal cause why sentence should not be pronounced? After hearing me, the judge said there was none, and that made the traditional question an interesting bit of rhetoric.
Then, matter-of-factly, I heard myself sentenced to death. Twice over—because the jury had fixed the punishment at death on two counts—the following words were spoken in a rumbling monotone:
“The jury having returned a verdict . . . finding you guilty of the crime of kidnaping for the purpose of robbery, and fixing the penalty at death, it is the judgment and sentence of this court that for that offense that you, the said Caryl Chessman, be delivered by the Sheriff of Los Angeles County, State of California, to the Warden of the State Prison of the State of California, at San Quentin, to be by him executed and put to death by administration of lethal gas in the manner provided by the laws of the State of California. The Sheriff is directed to deliver you, the said Caryl Chessman, to the said Warden of the State Prison at San Quentin within ten days from this date, to be held by the said Warden pending the decision of this case on appeal. Upon the judgment herein becoming final, to carry into effect the said judgment of this court, the time and date hereafter to be fixed by order of this court within said State Prison, at which time said Warden shall then and there put to death the said Caryl Chessman by the administration of lethal gas.”
At the same time I listened to Judge Fricke sentence me to fifteen terms of imprisonment, with an order that all sentences except those imposing death or life imprisonment be served one after the other, consecutively, and that service on the first one not begin until I was discharged on all prior sentences (in the year 2009!).
(Two parenthetical comments are in order. First, California law does not permit a judge to run life sentences consecutively. Second, I am of the considered opinion that, if ordered to do so, “the said Warden” would find it more than a little difficult to put a condemned man to death more than once. The California Supreme Court concurs in this view. Recently it had occasion judicially to pronounce that “there can be but one execution of [a] death sentence.” This being so manifestly so, why did the state go to the trouble, burden and expense of trying me on eighteen charges instead of just one if the prosecutor really believed evidence of guilt was so overwhelming? Interestingly enough, if I had been tried and fairly convicted on but one capital count—assuming but at the same time denying that a fair and legal death penalty conviction was obtainable—I would have been long since dead!)
This formal business of imposing those many sentences took considerable time. Once completed, I directed the court’s attention to the fact that the court reporter, Ernest R. Perry, had dropped dead of a heart attack two days before. Then I made an oral motion to have the judgments just imposed set aside and a new trial ordered. The motion was made under a section contained in the California Code of Civil Procedure which provides that the trial judge, in civil cases, can grant a new trial with the death of the reporter if, in his opinion, it would be impossible to produce an acceptable trial record for use on appeal.
As I anticipated he would, Judge Fricke denied the motion, first upon the ground that the section in question applied to civil cases only and second because the moment a sentence of death is passed, “jurisdiction of the cause” is transferred to and resides exclusively in the California Supreme Court. But my futile motion still accomplished its intended purpose.
Judge Fricke took judicial notice of the fact that the reporter was dead and that he consequently could do nothing further toward preparing the record for the appellate court. Judge Fricke added, however, that this did not necessarily mean a record could not be prepared by some other reporter from the deceased reporter’s notes. Taking his cue, the prosecutor then said that he had been authorized to state for the record that his office would do everything possible to assist with the preparation of such a record and that he understood the reporter had dictated a portion of his notes before his death. As a result, Judge Fricke made an order directing that “to the limit of human beings in their use of human ingenuity . . . the entire record of this trial be prepared in as complete a manner as possible . . .”
The order terminated proceedings that day in the case of The People of the State of California versus Caryl Chessman. Again handcuffed and carefully guarded, I was hustled back to the High Power tank at the county jail. Within ten days I would be transported to the Death Row at San Quentin. The question of the record would have to be fought out in the higher court.
So far, I had been fighting for my life on terms dictated by a formidable opponent. Right then I wasn’t so certain I was willing to continue doing so. I wasn’t fascinated with the idea of having to accept a record prepared by one reporter from another reporter’s notes and with “assistance” from the prosecutor’s office. My suspicious mind took a dim view of what the result might be.
I had thought I was getting a break when the court reporter died. I would certainly get one if they couldn’t produce any record at all, for in that case it was almost a cinch I’d g
et a new trial. But what if something that read plausibly were produced, and that missing from it, or watered down in it, were the legal errors that might get me a new trial? What then?
As I saw it, either I could go to San Quentin like a good litde boy and hope the State Supreme Court would require the local officials to produce an accurate record or reject what was offered and order a new trial; or, with the help of some people I knew, I could say to hell with all this judicial hocus pocus.
By that last I mean that I could make arrangements to have myself liberated on my way to San Quentin. I could, given any kind of break, get foolproof evidence that I was not the red light bandit, and then surrender with it. There was, of course, the possibility that I wouldn’t be able to get the needed evidence. And if I were caught without it, I would go straight to the green room.
So I had a decision to make. Which would it be, a gamble with the courts or with a gun? I took out a half dollar and gave it a flip.
Heads I win; tails you lose.
The sheriffs office and not the flip of that coin decided the course I would pursue.
Acting on a tip or a hunch, my transfer to San Quentin was effected with elaborate care. On the seventh day following the imposition of sentence, without forewarning, the turnkey assigned to the High Power tank shouted, “Chessman, roll ’em up!”
I was on my way. The boys in the tank wished me good luck as I rolled up my bedding and pocketed a few personal letters. Carrying the bedding and property, I was let out of the tank.
“Stand right here a minute,” I was told.
“Yes, sir,” I said.
From an adjoining tank stepped Dave, my passenger on that ill-fated January night. Separately tried for robbing and technically kidnaping the proprietor of a Redondo Beach clothing store and one of his employees, Dave had been convicted and sentenced to two terms of five years to life for robbery, to life with possibility of parole for kidnaping the employee (by moving him a few feet within the store), and to life without possibility of parole for similarly kidnaping the proprietor and striking him on the head with a gun butt. I had flatly testified at Dave’s trial that Dave had met me in Hollywood a few minutes before the chase, that he hadn’t been with me earlier that evening and hence could not have been a participant in the robbery. Other witnesses, including an employer, testified to his whereabouts during the afternoon and evening and established an alibi that wasn’t shaken. Still conviction had followed on the strength of his arrest with me and his “positive” identification by the two men who had been robbed. Stunned for a moment by the severity of his sentence and angered by his conviction, Dave had made up his mind to give the state a run for its money in the appellate courts and his case was to have widespread ramifications.
Cell 2455, Death Row Page 33
