Cell 2455, Death Row

by Caryl Chessman

  The state’s attorneys had also cast a quizzical look at the fact that I had represented myself and seemed to be complaining because I had exercised a constitutional right to do so. At the same time they seemed to be suggesting that this self-representation was somehow wrong.

  Why? I wanted to know. I was able to present competent argument in my own behalf. I knew the subject matter and the law relating to it. I would conduct myself properly before the court. I could be produced safely. The law itself allowed me to represent myself. Yet the court wouldn’t listen to me—simply because I was a condemned man—although it was willing to listen to any attorney at all who might be representing me. To me that seemed an overnice preoccupation with form at the expense of substance. In a formal application to be produced I said all this. And once more I was bluntly told to get an attorney or go without oral argument. Then an attorney was appointed for me but immediately relieved when I refused to turn over full control of the litigation to her. In lieu of oral argument I filed written argument. The matters were placed before the court “for consideration.”

  And the months once more began to roll around.

  Eight months after all papers in the case had been filed, the court, with two of its justices strongly dissenting, accepted the transcript as a basis for hearing and deciding the appeal—refused to grant hearings— but ordered that certain missing portions of the trial proceedings be added to it before the appeal would be heard.

  My petition for a rehearing was denied, as were a petition for a writ of habeas corpus sought as an aid of appellate jurisdiction and a petition for writ of mandate. The United States Supreme Court declined to review the state high court’s decision and opinion accepting the record.

  It took the reporter seven months, and cost Los Angeles County-thousands of dollars, to prepare this additional record ordered by the California Supreme Court, aldiough it ran to only three hundred pages.

  Meanwhile, I stepped up the intensity of my legal campaign. Somehow, some way, I was determined to get at that record. In swift succession, probing for a chance to launch a frontal attack, I carried my fight against that transcript to the lower United States courts, through its intermediate reviewing courts and finally back to the Supreme Court of the United States for a second time.

  I went back to my law books and dug out ammunition; I read fine print until my eyes blurred and my brain reeled. I walked the floor of my cell into the wee hours of the morning, until my arches became outraged, while I critically sorted and classified and analyzed what I had read, and boldly planned the mounting of a legal offensive, a way to queen a pawn.

  Hallowe’en, 1950. The newspaper headlines for that night and the next day screamed “RIOT ON SQ DEATH ROW!” and I found myself in a “quiet” cell on the isolation unit, charged with being a ringleader. As might be expected, my reaction to this turn of events was neither meek nor submissive, philosophical nor passive. I made it very plain I didn’t like any part of this routine. I managed to get hold of a tew sheets of paper and a pencil and wrote a petition for a writ of habeas corpus in longhand, addressing it to a judge of the Marin County Superior Court. As usual, the Bay Area dailies picked up the story. Here’s what the San Francisco Examiner had to say on November 15, 1950.

  WRIT ASKED BY RIOT LEADER

  Caryl Chessman, ringleader of the recent riot on condemned row at San Quentin, yesterday filed a [petition for a] writ of habeas corpus in Marin County Superior Court in San Rafael.

  Chessman, currently in solitary confinement at the prison, charged in his writ that he is being deprived of his legal rights to continue his fight for freedom . . .

  When results were not forthcoming within a reasonable time, I wrote out another petition for habeas corpus, directing it to the District Court of Appeal in San Francisco. I later learned unofficially diat phone lines began to crackle. The Examiner reported the result on November 29, 1950.

  Superior Judge Edward I. Butler of Marin County yesterday signed a writ of habeas corpus designed to release Caryl Chessman, ringleader of the October 31 death row riot at San Quentin prison, from solitary confinement. Application of the writ, which is returnable December 6, was prepared in pencil by Chessman himself.

  I was taken from the hole, as the prisoners call it, and returned to my cell on Condemned Row. Heavily guarded, I appeared in court on December 6, and the writ was ordered discharged on the ground that I was out of solitary and no longer had cause to complain.

  A few days later I got into a rather violent argument with two other condemned men. Back I went to the isolation unit. But this time my legal books and papers went with me. I’m the only condemned man ever to do time in the hole with a cell-full of legal books and papers.

  When the additional record was filed and my objections to its accuracy rejected by the trial judge, I was in the mood to slug it out with the state’s attorneys in California’s high court. Right then, more than ever, I didn’t much give a damn whether I lived or died.

  “He who defends himself has a fool for a client.” Every day it was becoming clearer why this was so. And every day it was becoming clearer that I would lose the appeal when it was finally heard.

  Why? Because Chessman was a “bad” man. The newspapers said so. He hated the Row. He fought back at it and what it stood for. He refused to fit into the pattern. He didn’t give a damn what anybody thought about him. He didn’t bluff; he refused to scare. Once he got into a slugging match with another condemned man. The armed guard ordered him, once, twice, three times, to stop fighting. Then the guard pointed his gun through the bars at him. “Stop! Stop or I’ll shoot!” Chessman didn’t stop. “Go ahead and shoot and quit talking about it!” he shouted at the guard.

  Yes, Chessman was a “bad” man. He had the “wrong attitude.” He hated; he refused to conform. Hence he didn’t “deserve” to survive, did he? Death in the gas chamber was probably too good for him.

  Well, kill him then. Kill him if you can.

  • 35 •

  A Victory None Would Comprehend

  I began a final draft of Appellants Opening Brief. When completed it was a two-volume, 495-page whopper. In conformance with court rules, I first summarized the facts of the case, outlining what the evidence showed, and then launched and sustained an attack on every single one of the seventeen judgments of convictions.

  Attorneys for the state, six of them, filed a reply brief in which they stressed the legal sufficiency of the evidence to support the convictions, argued according to their lights that I had been “legally convicted,” warned the court “The record also shows that the appellant led a life in the commission of violent crimes and was beyond the possibility of rehabilitation,” and accordingly urged affirmance of the death and odier sentences imposed.

  Beyond the possibility of rehabilitation!

  I filed a closing brief calculated to rip apart the state’s argument and reasserted my demand for reversal of all convictions.

  Once again the court refused to allow me to appear for oral argument and submitted the case for decision on the briefs previously filed. I had another long wait. Through the spring, the summer, the fall of 1951. It was like hugging a time-bomb, never knowing whether that bomb would blow me to Hell or back to Hollywood.

  Dave, meanwhile, had been fighting his convictions of robbery and kidnaping for the purpose of robbery. He had been transferred to Folsom, and unless relief was forthcoming he would spend the remainder of his life there. Not a happy prospect for one who, notwithstanding his conviction, could very easily be innocent of any connection with the crime. Dave’s attorney, Rosalind G. Bates of Los Angeles, had appealed unsuccessfully to the California District Court of Appeal, Second Appellate District, which had allowed all convictions to stand. Then the California Supreme Court had granted an application for it to review the case. Mrs. Bates contended that Dave’s innocence had not been proved beyond a reasonable doubt and that mere robbery should not be held to be punishable as both robbery and kidnaping. The c
ourt said it was for the trial judge (who had tried the case without a jury) to find guilt or innocence and once he had done so a higher court could not interfere with that finding unless there was no evidence at all to support it. On the second claim urged, the court split four to three, the majority holding that, under the kidnaping for the purpose of robbery statute, robbery is kidnaping and hence punishable as such, while the minority emphatically contended such a construction did violence to the spirit and language of the statute and was absurd. The bare majority prevailed; the kidnapings were affirmed, but since the law doesn’t permit double punishment for a single offense, the lesser offenses (the robberies) were reversed.

  A storm of controversy immediately followed. Up shot the eyebrows of California’s leading law schools. What’s this? Robbery is kidnaping! Well, then, why have the robbery statutes been left on the books?

  When it met, at the 1951 Regular Session, the California Legislature promptly did something about the court’s holding. Section 209 of the California Penal Code, the “kidnaping” statute, was amended so as specifically to require a kidnaping or carrying away for the purpose of robbery. Robbery—that is, mere seizure or detention during a robbery or attempted robbery—no longer was punishable as a “kidnaping.”

  The Legislature at the same time granted parole eligibility to every person convicted under the section as it had read before amendment and who had been sentenced to life imprisonment without possibility of parole. In other words, every person but the one primarily responsible for the change in the law was granted blanket relief! That one— and the only man sentenced to death under the law whose sentence hadn’t been executed—had been forgotten.

  I was, then, in the unique position of being twice sentenced to death for acts (regardless of by whom committed) no longer triable and punishable at all under the kidnaping statute.

  A rule of law entitles every defendant convicted of a criminal offense to the benefit of any favorable legislative change in the lavr made subsequent to conviction and before the judgment becomes final. When the case is appealed finality attaches once the appellate court decides the appeal. And since a decision on my appeal was overdue, I would be obliged to act swiftly. But I had to be sure of my ground.

  I immediately contacted one of the senatorial sponsors of the bill and procured a formal and lengthy opinion from the legislative counsel regarding the effects and meaning of the change in the language of the statute. Definitely there had to be a “kidnaping” or “carrying away” with the specific intent to commit robbery before one could now be punished under this “Kidnaping for the Purpose of Robbery” law.

  Armed with this and other information, I wrote the court, setting forth my opinion that the death sentences—putting aside the question of who had committed the acts forming the basis of the crimes—were void because of this legislative amendment. Should the court be in doubt about this, I asked the court to permit me to augment my letter with a formal presentation. The court didn’t request that presentation and before I had completed researching the law dealing with this subject, I got into a serious hassle with prison officials and, for disciplinary reasons, was separated for a time from all my legal papers and books.

  When it finally handed down its decision, the court allowed the two death penalty convictions to stand. Here are the reasons it gave for doing so: the intent behind the movement—whether for the purpose of committing robbery or sex crimes—was for the jury to decide and, having resolved that question against me (but remember the law hadn’t yet been changed and thus the jury could not have resolved the question against me!) the court couldn’t say “as a matter of law” that the movement had not been for the purpose of robbery. (Couldn’t or wouldn’t?)

  The court went on to assert: “. . . the offenses for which defendant received the death penalty here were not mere armed robberies. [The perpetrator] by threat of force transported his female victims—Mary for a considerable distance . . . , Regina from the car of Lea to the car of [the bandit]—pursuant to a plan which purposed [but when? at what point?] the commission of robberies and the infliction of bodily harm (the sex crimes). . . . It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.”

  But it is also the fact of intent which constitutes kidnaping for the purpose of robbery in this state. As far as I was concerned the court had said much and yet nothing—except that I should die. Its reasoning wilted in the strong light of analysis. To begin with, the court first had said it could not find facts (which it was not and is not constitutionally permitted to do) and then it had unhesitatingly done so. It had flatly declared the purpose of the movement was for robbery and sex crimes. But the evidence flatly contradicted this statement of “fact.” The movement, at the time it had taken place, could not have been for the purpose of robbery. Moreover—and this the court had ignored altogether—the jury had been instructed that mere seizure or detention (in a nonphysical, purely legal sense, and without any movement whatever) was sufficient to warrant conviction, and that the “kidnaping” began with the initial detention and was a “continuing” offense. Thus, even though the jury may have firmly believed that the robbery intent may have been abandoned by the perpetrator before the victim was moved and even though the jury may also have firmly believed that the movement had been for a purpose other than robbery, it still was required to find guilt under such an instruction (assuming that it believed the defendant was the perpetrator of the offenses). Further, the prosecutor had vigorously argued for conviction upon the theory that the “kidnaping” in each case had begun with the initial technical “seizure” before the victim had been moved and admitted that the robbery motive in the case of Z, if it had existed at all originally, may well have been abandoned before the movement had taken place!

  Under that law, that state of facts and that reasoning by the state’s highest court, my life had been declared forfeit.

  Could I get a federal court to intervene? That remained to be seen. I took considerable comfort in the fact that the Supreme Court of the United States recently had ruled that, to conform to federal due process of law, the defendant was entitled to have the validity of his conviction (including the question of the constitutionality of the statute under which conviction was had) appraised on consideration of the case as it was tried and as the issues were determined in the trial court. This meant that while the state high court (in my opinion) may have pulled a fast switch on me, I still had plenty of ammunition to keep blasting away at the legal target.

  The long wait for a decision on my appeal was over.

  Six days before Christmas, during our exercise period, one of the Row’s wits was scanning the San Francisco Chronicle when he let out a yelp. He handed me the paper, pointed his finger and cracked, “They just gave ya a Christmas present.”

  I read, “Caryl Chessman, San Quentin’s death row legal expert, yesterday lost his latest appeal to the State Supreme Court. In a 5-2 decision the court said the death sentence was just punishment . . .”

  Some Christmas present!

  An application for rehearing of the case was denied in January, 1952, and so was the petition for writ of habeas corpus filed many months earlier.

  On February 6, 1952, I received a note:

  Dear Sir:

  On this date I received Death Warrant in your case, issued January 25, 1952, by the Honorable Charles W. Fricke, Judge of the Superior Court of the State of California, in and for the County of Los Angeles, fixing date for Friday, March 28, 1952.

  Very truly yours,

  H. O.Teets

  Warden

  If I intended to be still breathing after ten a.m on that last Friday in March I had to hustle.

  My next move was to take the case for the third time to the United States Supreme Court. But time, always the condemned man’s Nemesis, was needed. Time to get the record put together, indexed, certified, forwarded to the nation’s highest court; time to research, prepare and file the necessary P
etition for Writ of Certiorari, with a supporting brief; time to permit attorneys for the state to file written opposition at their option; time for the court to consider.

  The next several weeks were hectic ones. First, I won a postponement of my appointment with the executioner when Mr. Justice Jesse W. Carter of the California Supreme Court granted my application for a stay of execution until the United States Supreme Court acted upon my petition for review. Then, working under tremendous pressure, I managed to complete and file all necessary papers. I waited. Soon the state’s attorneys filed a brief urging the court to refuse to review. In a reply brief I accused those representing the state of trying to oversimplify the case right out of court. I again hammered at the fact that I had never been given any opportunity to prove that the record upon which affirmance of the death sentences had been based was grossly incomplete and inaccurate.

  For reasons known only to itself, the Supreme Court gave me the brush-off; on March 31, 1952, it denied without comment my request for it to review and, following review, to reverse the judgment of the California Supreme Court affirming the death and other sentences and rule I was entitled to a new trial or to a chance to prove my allegations concerning the record and the means used to obtain my convictions, with a consequent voiding of those judgments of conviction if I carried the burden of proof.

  My stay of execution was terminated. The death sentences again could be enforced. The procedural wheels of justice once more began to grind. I had my earphones on listening to the ten o’clock news from San Francisco one April evening when I heard the newscaster state that Los Angeles’ notorious red light bandit had been sentenced to die in San Quentin’s gas chamber on June 27th next.