“Yes. Back when I got it and again when you showed it to me before.”
“Were you surprised to get it?”
“Yeah.”
“Why was that?”
“Well, it was kind of out of the blue.”
“What do you mean?”
“I hadn’t heard anything from anyone, and suddenly here’s this letter.”
“McGaw knew where you were living?”
“No, but he had my parents’ address. I’d given him that as a way to contact me.”
“What did it mean to you, to get that letter?”
“That somebody wasn’t happy I wasn’t getting the job done.”
“Is it in some kind of code?”
Laszlo jumped in with a barrage of objections. The letter was hearsay, no one had established that it was code or that Scanlon was capable of recognizing that it was.
“May I lay a foundation?” Mike asked.
“You can try,” said the judge.
Mike tried, but all Scanlon could say was that he knew from experience that the letter was meant as a reminder, a push to get the job done. He said the reference to whether he was still working probably meant “why aren’t you taking care of business,” the question about “homies” meant Lindahl, and the reference to Christmas may have meant that they knew where his family lived, but he couldn’t say why he believed that. “It’s just how they communicate, man. The fact that he sent the letter was a message in itself.”
In the end, the judge sustained Laszlo’s objection and ruled that we hadn’t proven, at least yet, that the letter was actually a directive.
Mike moved on with his questioning. “What did you do after shooting Lindahl?”
“Decided to get out of town for a while, in case there was any heat. Sold the gun back to Indio for a few bucks and a .22, and took off. Figured I’d go to El Dorado, visit my cousin Keith. Thought I could stay up there with him until things cooled down or I at least knew where I stood down here, but I started getting a weird vibe from him, so I borrowed some money from him and took off. Good thing, too, because he turned me in.”
“Then what did you do?”
“I just drove east, got across the state line to Nevada before the cops were onto me. Did a couple of robberies for cash to get my car painted at a shop, stole some Nevada plates and swapped them for mine. Ended up in Utah for some reason. Did a couple more robberies near Salt Lake. Then I began feeling paranoid there, and felt I’d be better off where I knew the territory, so to speak, so I started back home. I got busted in a motel outside Wheaton; those Nevada plates did me in.”
“Was the letter from McGaw in your car when you were arrested?”
“Yeah, I guess. I just forgot to get rid of it.”
“Had McGaw ever sent you a letter before, during the time since you left prison?”
“No—that was the only one.”
“Had you written to him since you were out?”
“No, I’m not the letter-writing type.”
“Eventually you dropped out of the gang. Why was that?”
A brief frown. “They asked me to do something I wasn’t prepared to do.”
“What was that?”
“It’s pretty much all in my debriefing statement.”
“Can you explain it for us anyway?”
He sighed. “Okay, sure. I was in segregation up in Pelican Bay because of that stupid escape attempt and because the prison’s gang unit had validated me as AB. I was in some trouble with the AB higher-ups because of what I’d done; I’d brought a lot of bad stuff down on everyone. They decided to give me one last chance. I was told to kill my cellmate, some young guy who’d gotten on their bad side for some reason. But I got to know him, got to know his story, and decided it just wasn’t fair, and I wasn’t going to do it. At that point, I was toast. I’d caused them trouble and disobeyed orders. So they got someone else celled with me. Someone I trusted; we’d been cellies in Folsom. He got the jump on me, almost killed me. I lost so much blood they thought I wasn’t going to live. When they brought me back to the prison hospital, I called a guard over and told him I wanted to see Ida Rader and debrief.”
“How did you feel about the Aryan Brotherhood at that point?” Mike asked.
“Betrayed, angry. Hell, I’d killed a man for them. But if they were done with me, I was done with them.”
Mike asked to have Scanlon’s debriefing statement marked for identification, then showed it to him. Scanlon acknowledged that it was the one he had written. To the best of his recollection at the time, everything in it was true.
Mike asked him, “Do you believe you’re getting any benefit from testifying here about all this?”
“Not at all. Nothing but a headache, and a sore hand.”
“And by testifying here, you’re actually putting yourself at greater risk inside prison?”
“Absolutely.”
Then it was Willard’s turn to cross-examine.
Willard began by confronting him. “Mr. Scanlon, what is your purpose in being here today?”
Scanlon replied in the same level voice he had answered Mike’s questions. “I didn’t just walk in; I was brought from a prison.”
“But you are cooperating with Mr. Henley’s legal team, aren’t you?”
“Yeah.”
“And what is your purpose for that?”
“I don’t need one. But if you want to know, it’s to right a wrong, because Howard Henley is sitting in prison for a crime I know he had nothing to do with.”
“You’re sure you aren’t hoping for a chance to escape?”
“I’m always hoping for a chance to escape.”
“You said more or less the same thing to the officers after your arrest in the prison escape, didn’t you?”
“I don’t remember, but I’ll take your word for it.”
“Didn’t you tell one of them, ‘A caged animal will take a chance to get free if he can get it’?”
“I don’t know, but it sounds like something I might have said.”
“If a chance to escape had come up during your trip here, would you have taken it?”
“Of course, man; anyone would.”
“If you escaped before coming here to testify, you wouldn’t have been here to right the wrong against Mr. Henley, then.”
“Get real,” Scanlon said. “You and I both know there wasn’t a chance in hell I’d get away coming here.”
Willard took him through his criminal past again, with a few more flourishes. “You have convictions not just for robbery, but for armed home invasions and armed kidnapping, don’t you?”
“I guess I may have kidnapped people to rob them once or twice.”
“You went to trial on the home invasions, three counts, right?”
“I believe so.”
“You were tried on them and the Lindahl murder at the same time.”
“Yes.”
“And you testified at that trial.”
“Yes.”
“And denied you’d done any of them, is that right?”
“Of course.”
“Now, when you denied murdering Lindahl, were you telling the truth?”
“No, I was lying. I’m sure you’ve lied about a lot of things in your life.”
“You were testifying under penalty of perjury when you lied in your trial, then.”
“Yes.”
“And you’re under penalty of perjury now.”
“Guess so.”
“Why should we believe you’re telling the truth to us now?”
“Because back then I was fighting for my life, and I did what I had to. If I’d testified and told the truth I’d probably be on death row, just like Henley.”
“So you actually met Corker Bensinger in Folsom.”
“Yes.”
“And he was an AB shot-caller?”
“Yes—‘was.’”
“Is that because he’s dropped out?”
“That’s what I understand.”
&nbs
p; “Did he ever talk with you about the hit on Lindahl?”
“I’d rather not say.”
“Why not?”
“He can come and say for himself whether he did. I’m not going to rat anyone out.”
“You were okay with saying McGaw gave you instructions.”
“Yeah, but he’s dead.”
“Do you know who actually ordered the hit?”
“As far as I know, yes.”
“And you’re not willing to say who that is?”
“No.”
“Why not?”
“Because it wouldn’t be right.”
“But you’re here to see that justice is done for Mr. Henley, right?”
“Yes.”
“Is protecting this other friend of yours more important than that?”
“No. I already told the court what I did. What this other guy did doesn’t seem relevant.”
“You don’t get to judge what’s relevant here.”
“Well whoo-ee!” Scanlon said scornfully.
Willard went on. “But you’re saying it was the Aryan Brotherhood that ordered you. Who in that group gave the order?”
“You’ll have to let him tell you.”
“Will he be testifying at this hearing?”
“Possibly.”
“But you’re not willing to say who he is.”
“I can’t, no. You’re asking me to name someone when it could end them up on death row.”
“But don’t we already know who you’re talking about?”
“So what?”
“So do you have anything to lose by answering my question?”
“I definitely do.”
“What?”
“Well, if that reporter in the audience says in the newspaper that I named names, and that gets back to anyone, I’m in danger in the penitentiary because then I’m a snitch.”
Willard asked the judge to order Scanlon to answer the question; Mike objected that it was beyond the scope of direct and that Bensinger would be in court at the next hearing to answer it himself. The judge ordered Scanlon to answer.
“Your Honor, I can’t.”
“You’re aware there may be consequences for refusing,” the judge said.
Scanlon made a show of looking at the chains on his wrist and ankles and back up at the judge. “What can you do to me, Your Honor?” he asked quietly. “I’m already in hell.”
35
For a moment, we all held our breath, wondering how the judge would react. Then he turned from Scanlon to Willard. “Just move on,” he said.
Willard moved on—to Scanlon’s debriefing statement, which, Scanlon admitted, did not include several of his AB-related crimes, and to the escape attempt in which Scanlon had stabbed a guard in a struggle for his keys.
“Do you consider yourself a violent person?” he asked.
“I was in the past. Now I try not to be. I try to leave other people alone and hope they’ll do the same for me. But if I have to, I’ll defend myself.”
Willard needled him some more about his refusal to name the man who had ordered the Lindahl hit. “Do you think you can come in here, be sworn to tell the truth, and just answer the questions you want to?” Mike objected, and the judge told Willard, again, to move on.
“You’re serving two life terms right now, isn’t that right?” he asked.
“Yes. I’ve been told I’m not eligible to be considered for parole until I’m sixty-eight. And I don’t think I have a chance in hell of getting paroled given my history.”
“So basically, you don’t have any realistic hope of getting out.”
“Yes. I’ve given up that fantasy.”
“So you have nothing to lose by coming in now and telling a court that Howard Henley didn’t have anything to do with the murder of Jared Lindahl.”
“Come on, you know better than that. And I didn’t just come in now, if that’s what you’re suggesting. I’ve been telling you people for years that Henley’s innocent, but none of you have been interested.”
Willard changed the subject. “Do you think you’re an honest person?” he asked.
“Well, I’m in prison,” he said. “Honesty isn’t everybody’s best policy, but I try to be honest because lying in prison is a dangerous game.”
“If you wanted something, and you had to lie to get it, would you be willing to lie?”
“Well, now, I’m a criminal. You already know the answer to that.”
“Yes, I believe I do,” Willard said.
Willard ended by asking the judge to strike all of Scanlon’s testimony for his refusal to name the man who ordered the killing. Mike was standing up to argue, but the judge said, “That seems like an extreme remedy for refusing to answer one question. Denied.” I wondered if I was sensing a change in Judge Redd’s attitude.
On redirect, Mike began by asking Scanlon how many people he’d told that Howard was innocent.
“You told Keith Sunderland, right? What did you tell him?”
“That I killed Lindahl on order from the Aryan Brotherhood, and another guy was in jail who had nothing to do with it. And that I had a letter from a shot-caller to prove it.”
“And that was just a few days after the homicide, right?”
“Right.”
“Before you were arrested.”
“Yep.”
“And Keith went to the police with that information, right?” Laszlo’s hearsay objection was sustained.
“He testified at your trial that you confessed the crime to him, didn’t he?”
“He did, the son of a bitch.”
“And he said you told him you did it for the AB.”
“Yes.”
“And when you were in jail, you told another guy, Christian Niedermeier?”
“Yes.”
“What did you tell him?”
“That I did the crime on orders from the AB, and I asked him to apologize to Henley for me, tell him I was sorry he was in jail for something he didn’t do.”
“And Niedermeier also testified to that at your trial.”
“The confession, but not the apology part.”
“And do you remember talking to Gordon Marshall, Howard’s first habeas lawyer?”
“Yeah. He came to see me with an investigator—long time ago now, when I was in Pelican Bay.”
“Were you open with him at first?”
“No. I was debriefing, and I was still in a dangerous environment. I didn’t want to make it worse by talking to anyone else.”
“But later, after you were transferred to a different prison, you wrote to him, right?”
“Yeah.”
“You asked him to come see you because you wanted to set the record straight about Henley, didn’t you?”
“Yes.”
“And did he come see you again?”
“Yes, when I was at Calipatria.”
“And did you tell him then about Howard’s innocence?”
“I did.”
“And you signed a declaration saying what?”
“That the killing was ordered by the AB, and Howard had nothing to do with it.”
Mike had a document marked for identification, and gave it to Scanlon.
“Is that a copy of the declaration you signed?”
Scanlon held it up to his face with his free hand and inspected the first page. Awkwardly, using his free and chained hands he turned and read each page. “Yes, that’s the declaration and my signature.”
Mike thanked him. “Now a couple of months before you were brought here, you had a visit from Mr. Willard and an investigator, no?”
“I did.”
“What happened at that visit?”
“They come up to see me to question me about this case, and I told them I don’t want to talk to them. But they kept on nagging me to speak with them. And there was a guard lieutenant there, so I said, all right, five minutes. So we go in an attorney interview room, and he starts asking me questions. And I tell him I�
��d rather wait, because I kept feeling like he was trying to trip me up and get me to say something I don’t mean. So he says, ‘Okay, I guess you don’t want to talk,’ and goes up to hit the buzzer at the door to let the guard know we’re through. And while he’s up there, the investigator starts insinuating threats towards me.”
“Threats like what?”
“‘Well, you know, if you come back to court to testify’—I can’t remember verbatim exactly what was said, but it was, like, ‘We can see to it that you go back to general population in Pelican Bay, and don’t you have problems with the Aryan Brotherhood right now?’ He didn’t outright just say, ‘Hey, you know, if you don’t do what we tell you to do, we’re going to put you in a life-or-death situation,’ but he implied it where there’s no mistaking.”
“Now Mr. Willard suggested that you don’t have anything to lose by testifying here about Howard’s innocence.”
“I do recall he said that.”
“Now that isn’t exactly true, is it?”
“Not if they can do what they threatened to.”
Willard did a short re-cross, more to blunt the effect of Mike’s redirect testimony than for any real purpose; and Scanlon was handcuffed and hooded and led out of the courtroom. Even the judge seemed uneasy as we all watched it happen.
After Scanlon had left, we discussed the remaining testimony. We had two more witnesses who needed to be brought from prisons outside California. “Will that be it, then?” the judge asked—a little pointedly, I thought.
“I think so,” Mike said. “We’re trying to locate one more witness; we’ll let everyone know if we decide to call him.”
The judge had a trial set to start the following Monday that he thought might run as much as three weeks. “And then we’ll be in the middle of the holidays.” We found a two-day stretch in the second week of January that worked for everyone, to resume the hearing, and Judge Redd made orders that it be so, then stood up and left the bench.
“I’ll try to see Scanlon when we leave, to say so long,” Mike said, as we gathered laptops and papers, “and we can get dinner afterward, if you don’t mind.” I said that would be fine. Then we squared our shoulders, burdened as they were with briefcases and shoulder bags, and left the courtroom to meet the questioning faces of Dot Henley, Lillian, and Josh Schaeffer. They all looked a little taken aback by the spectacle of Scanlon and his testimony.
Madman Walking Page 19
