“Okay,” I said. “When will it be?”
Mike gave a date in the middle of May. “You free then?”
I glanced at the calendar on my computer; my visit to my newest client was early in the month. “I’ll have to cancel my exercise class,” I said.
Mike didn’t miss a beat. “Oh, come on; there’s nothing like a trip to Wheaton! We can drive there together. I’ll make arrangements to examine the exhibits in Howard’s trial and Scanlon’s, and maybe introduce you to some of Howard’s family,” he added, “if you don’t mind spending an extra day.”
“In Wheaton?” I said. “Be still, my beating heart.”
He laughed. “It’s a date. See you the morning before.”
* * *
Mike and I drove to Wheaton together for the hearing, our first appearance before the habeas referee—the judge appointed to take evidence in Howard’s habeas case. After the scruffy suburbs of the Bay Area, we cruised at 80-plus miles an hour through the underbelly of California corporate agriculture and right-wing water politics. Vineyards and orchards of fruit and nut trees covered the hills down into the valley, under a cloudless sky. Some trees near the freeway had been left to die from lack of irrigation next to signs that pronounced the area a dust bowl produced by the water policies of Democrats in Congress. Other signs, along the road and at gas stations, advertised in Spanish for field workers.
To fill the time, we made small talk about our cases and our families and tried the various FM stations available along the way, a choice of angry talk radio, smarmy religion, and country or Mexican music. “Next time,” I said, “I’ll bring an audio book.”
During the drive, I brought up the visit with Ida Rader. “I liked her,” I said. “She seemed straightforward. And she makes a good case that Scanlon was probably telling the truth about the AB being behind the killing. Dan and I both think she’d be a good witness.”
“I hope so,” Mike said. “We need whatever we can to corroborate Scanlon.”
At the south end of the valley lay Wheaton, the seat of Taft County. I’d worked on a post-conviction case there once before, a kidnap-robbery-murder after a drug deal gone bad. My client, a black man on the run from a parole violation in Los Angeles, had gotten the death penalty; his partner in crime, who was local and white and related to the county sheriff, had somehow never been charged.
My investigator, who had grown up in Taft County, had accounted for the outcome by the history of the place. The area had been settled by white Southerners: Confederate sympathizers before and after the Civil War, and later, Okies escaping the Dust Bowl, who found a familiar set of attitudes among the farmers and oilmen of the region. The Ku Klux Klan had flourished here long after it had died out, or gone underground, in the rest of the state; there had been lynchings in the 1920s and Klan marches in Wheaton as late as the 1980s.
When I had been there before, the place simmered with suburban intrigue. My investigator and local lawyers had filled me in on an eye-opening array of scurrilous details about local politics and general bad behavior around the courthouse: who was sleeping with whose wife or husband, secretary or clerk; who was hiding a cocaine or alcohol problem; who had taken bribes. At the courthouse, and around town, there seemed to be a lot of women in their thirties and early forties looking like they spent a lot of time at the gym, dressed a little too young, makeup a little too thick, hair a little too big.
The town itself was a pretty ordinary place, a downtown of blocky two- and three-story office buildings, doctors’ and lawyers’ offices, bail bondsmen, dollar stores, and bodegas, surrounded by suburbs of one-story houses ranged around shopping malls.
One of the silver linings to visiting Wheaton was a Hilton hotel near the civic center that let rooms at the state government rate. Over Corona lagers and plates of chiles rellenos in a fancy Mexican restaurant, we talked about the discovery hearing.
“Damn,” Mike said, topping up his glass from the bottle. “If we could only find that letter Scanlon says he had. But it’s hard to tell whether he’s even telling the truth about that.”
“Well, we’ve got our hearing tomorrow,” I said. “Let’s see what turns up.”
What turned up the next morning was Sandra Blaine.
Ms. Blaine was, as prosecutors go, a legend in her own time. She loved high-profile cases, and she prosecuted them with fanatic self-righteousness and apparently complete indifference to the rules against concealing and lying about evidence, defying gag orders, putting on perjured testimony, and accusing her opponents, in court and out, of lying to the jury and worse. But the good citizens of Taft County saw her defiance of court orders and her grandstanding in court as passion and zeal, and eventually elevated her from the ranks of deputy prosecutors to the district attorney of the county.
As we walked in, I saw her at the counsel table talking with a man whom I figured must be the deputy attorney general appearing for the hearing. I’d seen only a photo or two of Blaine in newspaper clippings; in person, she was quite attractive, with a clothes-horse figure, long dark hair and wide-set dark blue eyes, and the kind of presence that turned heads as she moved through the courtroom. She must have been well over forty, but she looked ageless.
She probably charms judges and colleagues into agreement, I thought—but that idea was quickly dispelled. She seemed to be lecturing the deputy attorney general, a tallish bland-faced man, who was listening with an expression of condescension combined with something like wariness. Trial-level prosecutors don’t involve themselves that often in post-conviction proceedings a decade after the trial. And the deputy attorney general probably knew something about her: in a half-dozen cases over the years, appellate courts had found convictions she had obtained were tainted by one type or another of prosecutorial misconduct.
The deputy attorney general caught sight of us and came over to shake hands. Sandra Blaine turned and stood where she was, unsmiling.
“Frank Willard,” he said. No drama, just the bureaucratic civility of a government lawyer doing the job the public assigned him. “My plan this morning is to submit your discovery motion on our written opposition.” He glanced back over his shoulder, to where Sandra Blaine was looking at some papers on the counsel table. “But I think Ms. Blaine may want to make some argument.”
The court clerk and reporter emerged through a door at the front of the courtroom and set up at their stations, and Willard returned to the prosecution side of the counsel table. The bailiff announced to the world at large that all should rise and come to order because Department 6 was now in session, and Judge Brackett, stocky and broad-shouldered in his black robe, entered through a door behind the judge’s bench. He sat, and the bailiff announced to the three or four people who seem to haunt the spectator seats at even the most routine court hearings that they could, too. Mike and I, and Willard and Blaine, stayed on our feet.
“In the matter of Howard Henley, petitioner,” the clerk said from her desk, “please state your appearances for the record.”
“Michael Barry and Janet Moodie for petitioner Howard Henley,” Mike said. Willard and Blaine each answered that they were appearing for the people.
“Sorry if I’m late,” the judge said. “We had a hearing in chambers in another case. We’re here on Mr. Henley’s motion for post-conviction discovery, then.”
“Yes, Your Honor,” we said in scattered chorus.
“Is Mr. Henley by any chance related to the folks at Henley-Bishop Motors?”
Mike answered. “Yes, that was his father. I believe Mr. Henley’s brothers run it now.”
“Ah,” the judge said. “Well, in the interest of full disclosure, I bought my truck there. Good people; best service department in this part of the state.”
“Thank you, Your Honor,” Mike said. “I think the Henleys would be pleased to hear that.”
The rest of the hearing held few surprises. The judge granted the attorney general’s motion for discovery. As to ours, Willard, as he had said, told the
judge he had no argument beyond his written response to the motion. Sandra Blaine, on the other hand, stood up, the light of offended justice shining in her eyes, and argued that Henley had been given all the discovery he was entitled to at the time of his trial, that his first post-conviction attorney should have made the motion and that we were too late in bringing it now, and that we had no right to any of the prosecution’s material on Steve Scanlon because he had been tried separately.
The judge listened impassively to Blaine’s argument and then mine and ruled that we were entitled to all the discovery we had asked for except that given to Scanlon’s attorneys in connection with his trial.
“We have a records release from Scanlon,” Mike said. “And this is a case where the defendants were tried using a lot of the same evidence. There is likely to be evidence in the prosecutor’s files relevant to both men.”
“I know,” the judge answered. “That was in your motion. But the statute doesn’t include discovery from a codefendant.”
I wrote a quick note and passed it to Mike.
“Even if it’s exculpatory of Mr. Henley?” Mike asked. “Your Honor, the prosecutor has an obligation to produce exculpatory evidence. I would think that would include such evidence even if it’s in a codefendant’s file.” He glanced at my note. “Furthermore,” he added, “since an order to show cause has issued in the case, discovery is no longer limited by the statute.”
The judge thought for a minute. “You’re right about that,” he said. “Mrs. Blaine, I will order the district attorney to provide the discovery requested by Mr. Henley regarding his own trial to his attorneys a reasonable time before the hearing. What if I order that your office review the discovery from Scanlon’s case and, if you find anything relevant to the issue in the order to show cause as to Mr. Henley, that you hand it over to his counsel?”
“I object to that,” Blaine said. “It’s just a fishing expedition, and it would require me to expend valuable time retrieving and reviewing the files. I can’t delegate it, because no one else in the office knows the cases well enough to decide what might qualify as relevant.”
The judge didn’t seem sympathetic. “I can give you two or three months to do the review,” he said. “Do you think you can handle that on your schedule?”
“I’m scheduled to try the Verdugo triple-homicide case next month.” Even without knowing the case, I sensed this was a play to put a political price on the judge’s decision against her.
He didn’t bend. “You should be able to work around it.”
“I can only try, Your Honor,” Blaine said. Even with hardly any audience, it was a bravura performance: the hardworking prosecutor hard-pressed by an unreasonable court.
From there, we went on to scheduling the hearing on Howard’s habeas case. We agreed on a date in October, with Blaine to provide the discovery ordered by the court no less than thirty days before it began. At our request, the judge set a telephone status conference in August to assess how the discovery was going.
As soon as we were out of earshot of Willard and Blaine, Mike said, “We may have done pretty well getting Judge Brackett.”
The morning was still young, and we headed down to the first floor and the end of a long hall, to the exhibit clerk’s office.
The clerk set us up in a bleak little workroom with bare walls, no windows, and a metal table, where we arranged our computers and a portable scanner. There was only one box of exhibits from Howard’s case, because most of them had been re-used in Scanlon’s trial. We photographed some enlarged photos of Howard’s trailer, inside and out, with our phones, and scanned court documents from his prior criminal cases and psychiatric records from the hospital where he’d been in Florida, even though we probably had them already.
Mike brought the box back to the clerk and helped her carry in the three boxes that held the exhibits in Scanlon’s case. There wasn’t much more to them: crime scene and autopsy photos; the autopsy report; bullets in evidence envelopes, and the criminalist’s report giving their caliber and the brands of guns that could have fired them; more criminal records from past cases of Scanlon, Lindahl, and some of the prosecution and defense witnesses. Mike had already received copies of most of it in Gordon Marshall’s files.
“That’s enough paperwork,” Mike said, as we packed our laptops away. “Anyway, there’s someone we should meet while we’re here.”
14
Dorothy Henley met us at a Denny’s Diner about a mile from the courthouse. “Everyone calls me Dot,” she said, as we introduced ourselves. She was white-haired, slender and slightly stooped, and she walked with a cane (“My doctor wants me to have a hip replacement, but I’ve been putting it off.”). Her skin had the powdery paleness of old age, but her blue eyes were bright and attentive. Her cotton skirt and blouse were inexpensive, but unfaded and neat. Under her free arm, along with her purse, she was carrying a photo album.
We found a booth under a window, and Dot set the album on the table beside her placemat, as she sat down. “I thought you might want to talk about Howard,” she said, “so I brought some pictures of him for you to see.”
The server who brought our menus greeted Dot by name. “I come here a lot with a couple of my friends,” Dot told us after she had left. “We like the senior menu. I was hoping Kevin and Bob could join us, but they were both tied up today. Kevin may be around a little later. And Corinne is in Oregon, of course.”
“Maybe some other time,” Mike said. “We’re coming back for more hearings on the case in the summer and fall.”
“What did the judge do today?” Dot asked.
“Told the district attorney to give us material from their files and set a hearing to start taking testimony. He wants to start it on October 16th.”
“Well, I’ll be there,” she said. “I don’t suppose they’ll bring Howard back for it, will they?”
Mike shook his head. “I doubt it. There’s no reason to; he won’t be testifying. And I don’t think he wants to come here; he’s used to being at San Quentin, and it’s pretty disruptive getting moved back to jail.”
Dot nodded. “I guess I can understand that. Though it’s hard to tell anything with Howard. His letters and his phone calls—between you and me, they don’t always make a lot of sense.”
Mike and I nodded in agreement. “I know,” we said at the same time.
“I sent him a birthday card a few weeks ago, and he sent me a letter that just said, ‘Dear Mom, I got a horse,’ with something like a kid’s drawing of a horse in it.” She shook her head and chuckled. “I had no idea what he meant by it.” Her expression grew sober. “It’s sad, though. He really shouldn’t be there; he’s too ill.”
We agreed.
The server came back, and we gave her our orders. With the menus out of the way, Dot opened the photo album and turned it so we could see the pictures. “I wanted you to see Howard the way he was.” She described various photos: a snapshot of Howard at seven with the family dog; a photo of him in a Boy Scout uniform; another of him in a suit, at the wedding of a relative; a school portrait of him in his senior year of high school. In his unsmiling stare into the camera in one picture, or the shadows around his eyes in another I imagined I could see hints of the sickness that would engulf him. Experts say that signs of later mental illness can sometimes be detected in children, although they’re often so subtle that even close family members seldom see or recognize them.
“He was a bright child,” Dot said, “and very well behaved, a responsible boy. He was in Boy Scouts, and he had a paper route all through high school, till he passed it on to Kevin, and his grades in school were always good. Lyle and I were so proud of him. He had such promise, until his breakdown in college. After that, he was never the same.”
Over lunch, we talked about families. Dot asked about ours, and on learning my husband had died some years ago (I didn’t elaborate), she was sympathetic. “I still miss Lyle a lot, even though it’s been ten years,” she said. “But a
t least he lived a long life. It’s harder when they’re younger. Kevin’s wife, Sue, passed at forty-three—she had a really aggressive form of breast cancer—and he was just devastated. I didn’t know what he was going to do for a while. I really feel it was his kids who got him through it—they remind you why you need to go on.”
I asked her about her own life.
“In most ways, I’ve been pretty blessed,” she said. “Lyle and I were happy together, and we made some lucky decisions along the way—especially buying into the dealership. We’ve done well, and when Lyle decided to retire, Robert took over in his place. Robert and Kevin have stayed close to us; they take good care of me these days.”
“How did your family handle Howard’s problems?” Mike asked.
Dot sighed. “It was a struggle. Lyle was so patient with him. We paid for psychiatrists to treat him, and they’d give him medications, and things would seem to be all right for a while. But then Howard would stop taking them and refuse to see the doctor, and he’d end up in his room for weeks on end, not eating, and talking to himself, until we’d threaten to make him leave unless he agreed to go to some other doctor. Lyle found him a couple of jobs, and Howard would try for a little while, but then something would happen, and he’d stop coming to work or say something and get fired.
“One day he just lost control and got in a fist fight with Lyle. He was raving—crazy religious stuff, saying we were all damned, things like that. We called the police. They sent him to a mental hospital. But the hospital couldn’t keep him, because he wasn’t completely helpless; that’s what they told us. They gave him medications for a couple of weeks, but that was all. Lyle didn’t want to file charges because he didn’t want Howard to end up in jail. So he was released. But he was angry with us for doing that to him. He packed up his belongings and bought a motorcycle with his savings, and left.”
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