Madman Walking

by L. F. Robertson

  Death penalty work has its own seasonal cycle: February was the time of a major annual conference devoted completely to defending capital cases. This year, as usual, it was happening in Monterey. Mike and his wife were going, and so was I, with Charlie; they’d be staying at a cute B and B, and we’d be at our frayed-around-the-edges dog-friendly motel.

  The conference was a three-day marathon of lectures and workshops about capital case defense at every stage from trial through federal appeals and the hopeless last-ditch hearings seeking clemency from the governor. It was the big event of the year, the gathering of the clans; when Terry was alive, we had never missed it.

  Terry had been one of the darlings of the conference; he was always invited to speak at a workshop and a panel or two. Among the elite of this crowd I was a person of no importance, except for the fact of being Terry’s wife. Some of the insinuations that I had been too clueless to see that Terry was in trouble had come from colleagues of ours I’d known through the conference. The veiled accusations—never said to me directly—had more than a little to do with my quitting the whole business and fleeing to the woods.

  After taking up Andy Hardy’s case I had steeled my courage and made an appearance at that year’s conference. Many of the faces there were new and a lot younger than mine, but I’d met a dozen or so people I’d known from before, some of whom asked where I’d been. Like me, they were all a little grayer, a bit stouter, a little more weathered in the face than before.

  The notoriety of Terry’s death had completely died away, and I’d sat in sessions and workshops, walked with Charlie on the trail along the waterfront, explored tide pools, eaten some lunches and dinners alone and others with old acquaintances, and generally had a pretty good weekend. There had been some difficult moments, when I saw a bookstore or a restaurant that had been a favorite of ours, or noticed that a place we once liked was gone. But the feelings had passed quickly, and I was actually looking forward to going back this year.

  I made it to Monterey early enough this time to register at my hotel and hit the bar and the finger-food table at the Friday evening reception. The crowd around the table put me a little on edge. I really have been living too long in the backwoods, I thought, if I get claustrophobic in the scrum around an hors-d’oeuvre buffet.

  As I was balancing a paper plate of cheese and crackers and grapes and heading for the table where I’d left my beer, I saw Mike coming over from across the room. “Janny,” he said, as he reached me, “I heard from Willard today about the Y-STR testing. I called you, but I guess you’d already left.”

  I wasn’t sure I wanted to know, but I asked anyway. “What was the result?”

  “Couldn’t be better: apparently a faint but readable profile consistent with Scanlon, a minor contributor, unknown, and Howard was excluded.”

  “All right!” A cracker slipped from my plate onto the carpet.

  “It’s good. Of course, Willard said they’ll argue that the absence of a profile for Howard doesn’t mean he didn’t have the gun at some point. But given the result, combined with Forbush’s testimony, that’ll be pretty weak. And now they can release the gun for test-firing.”

  “Whatever happens, you’ve improved my weekend.”

  By coincidence, or synchronicity, one of the workshops that weekend happened to be about DNA typing. Dutifully, I made my way there. The speakers, a molecular biologist and DNA expert, and a public defender experienced in trying DNA cases, mentioned Y-STR typing, but didn’t go into detail about it. After the workshop ended, I stood in the little huddle that had formed around them, listening impatiently as other lawyers sought answers to what seemed like interminable questions about their cases. Eventually I reached the front of the crowd, and blurted out, “I have a habeas case where we just got a Y-STR result that excludes our client, and now I have to do a direct examination of the expert, and I don’t know what to ask him.”

  Allan, the public defender answered first. “Can’t take yes for an answer?” he joked. “Seriously, congratulations. I don’t think I can help you, though; I haven’t had a Y-STR case myself.”

  The scientist, whose name I’d lost track of, weighed in. “I’ve worked on some. Why don’t you give me a call when you’re back in your office?” He handed me his business card, and I thanked him profusely and retired in clumsy and grateful confusion, dropping my iPad and trying to avoid swearing at it as I picked it up.

  43

  One of the first things I did once I was home was ask Mike to forward me the DNA report he had received by email from Willard. After trying to read it, I called the scientist from the DNA lecture. His name was Drew Thornton, and he was a professor at UC Irvine. When we talked, after a couple of rounds of phone tag, I followed up our conversation by sending him the report, too.

  He called back the next day. “Wow,” he said. “This is all good news.”

  “Thank you. I just want to make sure I don’t mess it up in some way.”

  “I think you’ll be all right. DNA Analytics is a reputable lab, and Dr. Panetti is honest. I agree with her call that the autosomal profile is uninterpretable, but there are forensic scientists who might try to see a peak or two in it that corresponds to your client. Fortunately for you, she isn’t one of them.

  “The Y-STR profile is very clear. The testing detected only two haplotypes—that means a group of genes inherited from only one parent. The DNA on a Y chromosome is, collectively, a haplotype because the chromosome is inherited intact, as a unit, from a boy’s father. The testing in your case detected Y chromosome DNA haplotypes from two individuals, a fairly clear major contributor and a partial haplotype of a minor contributor. Neither of the haplotypes is Mr. Henley’s. So he’s excluded.

  “Something else you need to understand about Y-STR typing is that Y chromosomes aren’t unique. They’re carried intact through the male line, meaning a man has the same Y haplotype as his brothers, father, paternal uncles and grandfather, and so forth, along the male line. This could be important, since it appears from the report that one of the haplotypes found matches a person of interest in your case.”

  “Right.”

  “Your opponent could argue, legitimately, that the DNA could have come from any one of a number of male relatives. Dr. Panetti has included in her report an estimate of how frequently that haplotype is likely to occur in the general male population, based on databases of known Y-STR haplotypes; it seems to be about 1 in 9,000. But of course it’s different if, say, you’re in a small community where a lot of people are related to one another.”

  “That shouldn’t be a problem for us,” I said. “In our case, the man whose DNA is on there has confessed repeatedly that he killed the victim using the gun it was found on.”

  “That’s pretty extraordinary,” Dr. Thornton said. “I’d say you’re in great shape with this result. Did I answer your questions?”

  “I can’t think of anything else.”

  “Well, if you do, please feel free to call me. Best of luck with your case.”

  “Thank you so much,” I said, hoping I’d understood enough of what he’d told me that I’d be prepared if Laszlo or Willard or the expert tried to play fast and loose with the findings.

  * * *

  Two weeks later, Willard emailed the report on the comparison of the gun from Forbush’s locker with the bullets from the scene. The report went on for three single-spaced pages, plus some diagrams, explaining how the examiner, Ken Olsen, had determined the particular model and manufacture date of the gun; how the gun was cleaned and oiled after seventeen years in storage (it was not encouraging that he got the number wrong) and then test-fired; and how the bullets from the test-firing were compared with the bullets found in Lindahl’s body, using a comparison microscope. The bottom line, though expressed with caution, was that the bullets recovered from Lindahl were consistent at every point he examined with those test-fired from the gun. Lands and groove matched, class characteristics and individual characteristics match
ed.

  With those loose ends tied up, Willard notified Judge Redd’s clerk, and the case was set for two more days of hearings in late March. The hearing was in its home stretch, and I tried to feel prepared for whatever was going to happen. But as I thought that we might finally be finished with presenting our evidence, I kept coming back to the letter. Laszlo had successfully objected to all our attempts to explain its meaning, to establish that it was exculpatory evidence for Howard and that the police and district attorney should have known it was. What we needed was an indisputable expert to interpret it, if that was possible.

  Hoping Mike wouldn’t mind me striking out on my own a bit, I put in a call to Ida Rader. When she called me back, I explained our plight. “Are there any such experts?” I asked.

  “I know someone,” she said. “There’s a man from, if I recall, the Los Angeles area, a former federal agent, who made a career studying encoded messages sent by gang members. He speaks at seminars for correctional officers. I’ve heard him, and he knows what he’s talking about. I’ll hunt down his contact information and email it to you.”

  Her message came a half-hour later. The man’s name was Matt Boyarsky. I found his website and a good deal of other information about him on the Internet, including articles he had written. He had been a cryptographer in the military and after leaving the Army had gone into the federal corrections system, where he had become one of their experts on decoding gang communications. His articles suggested that many intra-gang kites and letters were actually ciphers of one sort or another, substituting symbols for letters or words. But McGaw’s letter, with its apparent transparency and innocuous subject matter, was a bit different: a letter that the writer knew would be read by the prison’s mailroom staff and intercepted and kept if it appeared suspicious. I hoped Boyarsky could help us with it.

  I gave him a call and left a voicemail. When he phoned back, I described the letter to him and explained we were in a hearing on a habeas corpus case. He said he might be able to help us, and told me his fees for reviewing documents and testifying. Then I called Mike.

  “We still have some of Dot Henley’s money left, so let’s go ahead and ask him to examine the letter.”

  To get Boyarsky the best copy I could, I overnighted one to him. He called me back a couple of days later. “Sorry for the delay,” he said. “I was testifying in a case yesterday. Anyhow, I’ve looked at the letter. It’s not really that much of a code, more like the kinds of letters inmates and their families use to communicate things they don’t want the prison to know. They use simple things like word substitutions, swapping past tense for present, name changes, and such, to hide what they’re really saying. It’s all pretty uncomplicated, and also sometimes depends on shared knowledge to make it difficult for an outsider to interpret. There is definitely something secret being passed on in this letter, though, and I can make a fairly good guess at some of it. You said it was sent by an Aryan Brotherhood member in prison to this Steve Scanlon about a hit he was supposed to do. There seems to be a fair amount about that in there. ‘How are your homies there?’ and ‘Are you still working?’ The reference to having had a nice Christmas with his family and wishing him a great ’99 looks like a question whether he’s going to do the job and a reminder that time is passing and he should be getting on with it—maybe with a veiled threat thrown in about consequences to his family. His ‘homie,’ in context, would be the intended victim, since they’re both living in the same town. The stool pigeon thing is a pretty clear threat, kind of reminding him he’d better stay strong and with the program. The martial arts reference is a bit suspect, too, may have something to do with how he might be planning to kill the guy, though there are too many illegible words in the copy for me to read much into it.

  “Funny thing, though, is I’ve seen this letter before. I wasn’t sure at first, it just looked vaguely familiar, and I had to check my old files. I keep a database of encoded gang material I receive, for research purposes. A detective sent this one to me in 1999, and I gave him a verbal report about it. He didn’t follow up; I thought the case must have been resolved.”

  My heart skipped a beat, and I struggled for words, finally managing to stumble through something along the lines of “Oh—really—wow—uh, I don’t know how that happened, but we haven’t had the case for very long.” I said I was pretty sure my lead counsel would want him to testify and told him when the next hearings had been set; he said he was available. I thanked him, hung up, and called Mike.

  Mike, instead of being breathless like me, was indignant. “Those sons of bitches,” he said. “Springer had the letter, Blaine had the letter in her file. Springer, at least, knew it was just what Scanlon said it was; he consulted a fucking expert! I can’t imagine he didn’t tell Blaine. And the two of them decided to bury the letter because they didn’t need it to convict Scanlon, and they knew it would help Henley. Jesus—we’ve got to put him on whether the court approves his fees or not.”

  “I’m just baffled,” I said. “Why do you think they would do this just to get Howard?”

  “I think,” Mike answered, “it was what Springer said in his testimony. He honestly believes Howard is a dangerous guy who needed to be taken off the streets. I don’t know whether it’s bias against the mentally ill or just against Howard. But he convinced himself and, I guess, Blaine, that Howard was a killer, and after that all he focused on was the evidence that supported his theory. He’s a true believer. The letter would just confuse people, so he buried it.”

  “That’s a pretty charitable analysis,” I said. “I think what he did was criminal.”

  “It’s psychology,” Mike said. “These guys get so convinced they know what the truth is that they find reasons not to believe any evidence to the contrary.”

  I called Boyarsky to let him know we would be retaining him. To make sure we met the thirty-day requirement for discovery, even though the judge had been happy to ignore it when Willard and Laszlo dumped documents on us at the last minute, we served and filed a notice that we would be presenting his testimony, with a précis of what we expected him to say. “They’ll be prepared for him, unfortunately,” Mike said, “but I guess it’s better than having him excluded.”

  44

  I had now seen all four seasons on the road to Wheaton. It was spring now, with a fuzzy halo of new green leaves on the almond and peach trees, and the political signs blaming Democrats for the shrinking San Joaquin Aquifer another year more worn and faded. With any luck, I thought, I won’t have to make this drive again.

  The judge had a new clerk, who wasn’t familiar with the Henley hearing and needed to be brought up to speed a bit. But Dot and Lillian were there, and Josh Schaeffer had showed up from the Gazette. The greetings in the hall had the feeling of a reunion.

  Two other people I didn’t recognize were also waiting in the hall. Mike said he thought they were the expert witnesses, and I tested his hypothesis by introducing myself to one of them. Her name was Susan Panetti, the lab supervisor whom Dr. Thornton had praised as an honest examiner. She had supervised the testing of our sample at DNA Analytics, the testing laboratory, and had written the report on the results. She was slender and dark-haired and matter-of-fact. Mike had asked me to do her direct examination, and I had talked with her by phone about the testimony she would be giving. There wasn’t much for me to do but answer a couple of questions she had about the nature of the hearing we were in. “It’s a post-conviction hearing seeking a new trial, with new evidence,” I said. “We—the defendant’s lawyers—will be doing your direct examination because we have the burden of proof. Kind of a reversal of our usual role.”

  The other possible expert was talking with Willard and Laszlo, and Mike joined the conversation briefly before we were all called into the courtroom.

  Susan Panetti was our first witness. She testified that the DNA on the gun appeared to be from a mix of an unknown number of individuals, male and female. “It always surprises me,” she said, “
how often we find female DNA on guns.”

  Panetti’s testimony followed what she had written in her report, as Dr. Thornton had interpreted it for me. The DNA on the gun was too degraded for standard testing, but they were able to get Y-chromosome profiles that included Scanlon and excluded Henley.

  Willard’s cross-examination stressed the fact that Y-STR profiles are not unique and that Scanlon’s profile could be expected to occur in about 1 in 9,000 men, and that the absence of a profile matching Henley didn’t mean he hadn’t handled the gun, just that there might not be a testable quantity of his DNA left on it. It was the type of cross-examination the defense usually does, and I listened to it with a feeling of irony that our positions were reversed.

  Ken Olsen, the firearms examiner, testified next. Mike had agreed to retaining him as a neutral expert because he had a reputation for being skilled and impartial, but like most forensics experts, his background was in law enforcement and prosecution-linked laboratories, and he appeared to struggle with the fact that his result in this case favored the defense.

  The gun’s manufacture date, according to its serial number, was 1985, so it fit with the account he had of its being used in a homicide in 1999 and stored after that. It was in good condition, considering that it had spent over a decade and a half in an attic crawl space in the summer heat of the Central Valley. He had had to clean it and oil it to make it operable without damaging it, but once that was done, he was able to test-fire it using cartridges as similar in type as he could find to those that were likely used in the shooting of Lindahl. Two of the three slugs recovered from Lindahl’s body were not very distorted; the third was flattened and broken into several fragments.

  Olsen had compared the two relatively intact bullets with the test-fired ones, matching the markings made by their contact with the inside of the gun barrel as they passed through it: lands and grooves, class characteristics present from the manufacture of the gun barrel, and individual characteristics instilled in the gun barrel from use over time.