Lost Girls

by Caitlin Rother

  On the morning of Gardner’s arraignment, vandals spray-painted a message of hate on Cathy Osborn’s garage door while she was at work: Chelseas blood is on you. Move out.

  Few people sympathized with Gardner’s family.

  “I wish they’d leave her alone—the media,” said Deputy Public Defender Michael Popkins, one of Gardner’s new attorneys. “Mom doesn’t deserve this. She didn’t do anything wrong. You raise your kids the best you can.”

  But some of this anger was irrational and was escalating unbounded. Critics railed with violent rhetoric against “the system”—lumping the state mental-health, corrections and parole agencies together with the criminal justice system. Existing laws weren’t strong enough to stop sexual predators from roaming free in parks and playgrounds, they charged, or from molesting little girls with abandon. With a lack of proper enforcement, more needed to be done to protect our children, our future.

  Overnight, Gardner became the poster boy for all sexual predators on the loose, churning debate on Today in the morning and Nancy Grace at night, in letters to the editor, at Starbucks and the gym. Why, critics asked, had he been allowed out of prison the first time? And why, if he’d violated parole multiple times, had he not been returned to prison? If the DA and the judge had done their job and not given him a plea deal in 2000, this monster would still be behind bars and Chelsea King would be alive. How could he have gotten off with just five years, when the possible sentence was thirty-two?

  Criminal defense attorneys, including Gardner’s, countered that the six-year sentence in 2000, of which he served five, was sufficient. “He got a pretty stiff sentence for a first-time offender,” Popkins said. “It wasn’t a light sentence by any stretch.”

  District Attorney Bonnie Dumanis tried to shield Deputy District Attorney Dave Hendren, who had made the plea deal under the previous DA’s watch, and was now receiving death threats. Hendren was happy to lay low.

  Dumanis had seen her share of cases after working her way through law school as a typist clerk in the DA’s office, twelve years as a prosecutor and eight years on the bench. As such, she agreed with the defense attorneys, calling the sentence “very reasonable.” After reading the transcripts from Gardner’s preliminary hearing and sentencing, she determined the case had been handled appropriately. For one, she said, Gardner had no prior record. Two, it was always risky to go to trial with a case like that one. And three, contrary to what Gardner and his family claimed, his attorney, William Halsey, had done a satisfactory job of defending him.

  “I didn’t see anything that looked incompetent in the way he handled things,” she said in 2011, after the matter had been resolved and she no longer felt hamstrung by the ethical limitations of discussing a pending case.

  In her view, superior court judge Peter Deddeh was a law-and-order kind of jurist, and Hendren, as the sex crimes division chief, was entirely capable. She concluded that the critics were “trying to play on the fears and biases of the public.” With all the distortions and falsehoods being circulated, she “felt that everybody didn’t have all the information.” All in all, she said, she felt satisfied with the outcome of the 2000 case, because even if it had gone to trial, “we felt we wouldn’t have done better than we did. In retrospect, we all felt upset, but the judge didn’t have a crystal ball.”

  In the heat of the moment in 2010, however, forensic psychiatrist Mark Kalish didn’t see it that way. He countered that the court did have the information it needed to foresee something like this happening; the judge and DA’s office simply discounted it. People had every reason to be angry, he said. His colleague, Dr. Matthew Carroll, had told the judge in no uncertain terms that Gardner “would be a continued danger to underage girls in the community” and warranted the maximum sentence possible.

  “They should be [angry]!” Kalish said. “I’m frustrated, and I think Dr. Carroll is frustrated. I mean, we try to do a good job, and it gets ignored, apparently.”

  Others were able to rise above the lynch-mob mentality and see the situation more rationally. “Whose fault is this?” Mike Workman, a father of five, asked rhetorically. “Well, it’s everybody’s fault,” he said, noting that many California voters don’t want to spend more money on government programs, including those to treat the mentally ill.

  Never before had the San Diego region experienced such extremes of emotion tied to one murder case—emotions that continued to mount in the coming days with the announcement of another crushing discovery that only worsened the fears and worries of parents everywhere.

  When Chelsea’s autopsy was conducted on Wednesday, March 3, Sergeant Dave Brown and Detective Mark Palmer finally conceded they could take a nap. Before that, they were too worried to sleep, in case they missed something.

  Reporters were baffled why they still were unable to confirm that the body found at the lake was Chelsea King’s, even with the ME’s office, which typically released such information within a day or two. Gore later indicated that this was not a purposeful decision, but rather an inadvertent omission out of caution and respect.

  Apparently, the notification got tangled up first by a “gag order” e-mail that Dumanis had sent to law enforcement chiefs across the county, which had trickled down accordingly. The gist of the e-mail, according to one recipient, was “no one will talk about this matter, or you’ll be fired.” Not surprisingly, this had an immense chilling effect over media coverage from that point on.

  Months later, Dumanis said her e-mail wasn’t that harsh or explicit, and noted that she had no power to fire anyone who wasn’t in her department. She said she emphasized in the e-mail that this was a pending investigation, she quoted the bar association rules about pretrial publicity, and she underscored the need to consider the wishes of the victims’ families under Marsy’s Law, which protected their privacy rights.

  Dumanis also acknowledged that she didn’t want to give defense attorneys any ammunition to win a motion for a change of venue. This was a probable death penalty case, which meant they had to be even more careful than usual.

  Nonetheless, after Dumanis’s directive, the sheriff’s department, DA’s office and Escondido police immediately clammed up, trying to squash the overwhelming media attention of the past week. Local law enforcement agencies were told to refer reporters to the DA’s media office, which instituted a communications lockdown, including a “no comment” to Dr. Kalish’s remarks. Paul Levikow, Dumanis’s spokesman, said the shutdown was necessary “to get the defendant a fair trial. We want the state of California to get a fair trial, too.”

  They were right about one thing: the media had been responding to the unprecedented level of community emotion with an unprecedented level of coverage.

  Chelsea was remembered in a private memorial service to which the Kings asked Sheriff Gore and five others involved in the investigation to be pallbearers: Lieutenant Lori Ross, Sergeants Don Parker and Christina Bavencoff, Detective Chris Johnson, and Deputy Luis Carrillo.

  Initially, Gore declined the Kings’ invitation to have him and the other sheriff’s officers participate in the funeral.

  “This is family,” Gore said.

  But Brent King said he felt strongly about this. “No, you brought our baby back to us, and that’s what this will symbolize.”

  As bagpipes played, followed by a French horn solo, Chelsea’s own French horn sat spotlighted on center stage at The Church at Rancho Bernardo, a former movie theater. The sheriff’s officers, wearing their special ceremonial uniforms and white gloves, carried her casket inside the church, filled with about eighty sobbing family members and friends, finally bringing Chelsea home.

  Chapter 27

  Before Chelsea’s body was found, Cathy Osborn, unable to communicate with her son, had retained a private attorney from Orange County. Rudolph Loewenstein drove down to meet with John Gardner at the county jail in downtown San Diego on March 1, at 8:00 P.M., to see if Gardner wanted his representation.

  Gardner also me
t with two attorneys from the local public defender’s office—Gary Gibson and Richard Gates, the head of the homicide unit—to see if they could get Gardner to tell them where Chelsea was. It could be beneficial to reveal her whereabouts, they told him, if he wanted to try to avoid the death penalty.

  When Loewenstein called Cathy the next day, he relayed a message from Gardner: “Do not waste your money on getting me an attorney.”

  Cathy still couldn’t believe that her son was capable of doing such an awful thing, but once she watched the breaking news story on March 2 that Chelsea had been found, his comment told her all she needed to know. Although the authorities weren’t disclosing details, this seemed to be Gardner’s way of telling his mother that he had in fact raped and murdered this girl.

  But Gardner wouldn’t reveal anything to these first attorneys. Although Michael Popkins wasn’t in the homicide unit, he had a good relationship with Bonnie Dumanis and Kristen Spieler, and he was subsequently assigned to be the lead defense attorney on the case, with Mel Epley as second chair. They ended up having better luck.

  Fifty-nine-year-old Michael Popkins was a senior attorney in the public defender’s office with thirty-four years’ experience. Known for being cautious and exercising judgment, he’d had his share of high-profile cases, although never one as big as this.

  In 1992, he represented Hai Van Nguyen, a nineteen-year-old who had killed a liquor store owner. Through a plea deal, Nguyen managed to escape the death penalty just days after Robert Alton Harris became the first California prisoner in a quarter century to be executed.

  In one of San Diego’s most horrific crimes, Popkins also represented Ivan and Veronica Gonzales, the first husband-and-wife killers to be sent to death row together in California. They were convicted of torturing and murdering Veronica’s four-year-old niece by scalding her in the bathtub in 1995, while they were high on methamphetamine.

  Popkins also had the case of a popular local musician, Kenneth Bogard, known as “the PB rapist,” who was convicted in 1995 of stalking, raping or sexually assaulting seven women in Pacific Beach, a coastal community of San Diego known as “PB.” One of the victims took the stand to describe how her attacker had broken into her apartment at three in the morning, wearing a ski mask and wielding a knife, and she provided details that helped the prosecutor prove the pattern of Bogard’s violent acts. (The author interviewed Bogard in jail after his arrest, and he, like Gardner, came off as friendly and nonthreatening.)

  In 2008, Popkins was able to win a case of legal insanity for his mentally ill client, Kaijamar “Kai” Carpenter, who had fatally stabbed his mother, an assistant high-school principal. Carpenter pleaded guilty to second-degree murder, and was sent to a state hospital instead of prison.

  At forty-five, Mel Epley had twenty-one years of experience as a defense attorney. Known as quiet and shy, he was a skilled researcher, and one of the office workhorses. Epley had never worked on a high-profile case, although a couple of his cases had made their way into the news.

  In 2008, Epley represented Terrence Stamps, nicknamed “Mackvicious,” also known as the “Pimp Killer,” in a case where one pimp killed another in a dispute over having their prostitutes on the same block. Stamps got a sentence of fifty-one years to life.

  Then, in 2009, Epley defended Dragon Jones, dubbed the “Backroom Bandit,” who was convicted of robbing twenty small businesses in a monthlong spree by scaring female employees with a gun into not calling police. After pleading guilty, Jones got a fourteen-year prison sentence.

  On March 3, Popkins and Epley headed over to the courthouse, where they first met with Gardner in Department 11, Judge David Danielsen’s courtroom, two hours before Gardner’s arraignment on the charges filed against him for the murder of Chelsea King, with the special circumstance of rape, which made him eligible for the death penalty. He was also charged with the assault on Candice Moncayo, with the intent to rape her as well.

  “Mel and I probably were the first attorneys he trusted,” Popkins said. “He was very guarded at the beginning and then for some reason he just liked us.”

  After Popkins and Epley huddled with Gardner in the courtroom’s lockup area, Popkins left to speak to the prosecutor, leaving Epley alone with their client. That’s when Gardner muttered, “My DNA is all over the body.”

  Epley couldn’t hear exactly what Gardner had said, but he thought it was something about finding DNA on the body or something about “the other body.” He asked if Gardner knew that the authorities had found Chelsea’s body, knowing that Gardner had been on lockdown, with no access to TV or news reports.

  Gardner nodded. Epley told him he wanted to follow up on whatever Gardner had said, but they shouldn’t do it in the courtroom, because there were microphones everywhere. For the time being, he told Gardner to plead not guilty, which is how virtually all criminal cases begin, and said they would talk more the next day at the jail. Gardner did as he was told.

  After the hearing, Epley told Popkins what he thought he’d heard, and the two attorneys agreed they needed to ask Gardner for clarification at their next meeting. They also told their superiors, who asked to be kept updated.

  It was no coincidence that Amber’s father, Moe Dubois, attended Gardner’s arraignment, after which a well-attended news conference had been set up. Moe asked for permission to speak to the reporters after Bonnie Dumanis and Kristen Spieler answered questions.

  “We will be trying this case and presenting evidence in open court, not in the public or the media,” Spieler told reporters.

  Dumanis, who was meeting Moe for the first time, gave him a hug before and after he gave his comments. Reading the fear on his face—that no one would remember his daughter, when so much focus was on Chelsea King—Dumanis’s heart went out to him and she felt compelled to whisper her assurances: “We will not give up on Amber,” she said.

  Gardner’s preliminary hearing date was set for March 18. A week later, when the defense asked to move the prelim to the fall, the judge agreed on a compromise of August 4.

  In a press release after the arraignment, Dumanis put out an edict that Spieler would not be available to the media, at any time, and that all inquiries should go through Dumanis’s press office.

  Echoing the tone of Dumanis’s gag order e-mail, this release was yet another signal that the rampant media coverage would get no more help from law enforcement. But that only sent reporters to find stories elsewhere—in Riverside County and beyond. This one was too big to take no for an answer.

  Reporters soon learned that back in October, the Riverside County Sheriff’s Department had been called to investigate an attempted kidnapping and armed assault on a sixteen-year-old girl in Lake Elsinore. At seven o’clock in the morning, October 28, 2009, a man driving a gold Pontiac asked her for directions, showed her a gun and demanded that she get in the car. The girl refused and ran away.

  With her help, the RCSD developed a composite sketch, which somewhat resembled John Gardner. By calling the Department of Motor Vehicles, reporters connected the dots: Gardner had been cited by the California Highway Patrol (CHP) in June 2009 for driving a gold Pontiac without insurance.

  After Gardner was arrested, the girl recognized him from the TV news as her attacker. Even though the RCSD wouldn’t confirm that he was a suspect in that case, the media ran his booking photo next to the sketch for the public to draw its own conclusions. Through his attorneys, Gardner declined an interview with Riverside County authorities.

  “This man is a monster, and we would have gone after this monster like any other monster in the world and taken it out,” James Asgher, a Rancho Bernardo resident, told KABC-TV, the ABC affiliate in Los Angeles. “We did not know. We haven’t slept. We’re stressing. Our hearts are hurting.”

  Meanwhile, Internet vigilantes continued to rage. A group called “Scared Monkeys” posted photos of Gardner’s twin boys and of Cathy’s car and her license plate on the Web, which angered and frightened her and her family
. Cathy called and reported the photos to the SDPD at the satellite station in her neighborhood, where she’d already reported her garage graffiti incident. She also ordered the Web site to cease and desist.

  At the same time, sexually explicit photos of Cathy’s running group, a local chapter of the international Hash House Harriers, started popping up. Members of the global group, which calls itself a “drinking club with a running problem,” pick their own sexual nickname such as “Absolut Whore,” “Village Tool,” “Foreskin Gump,” “Bone of Arc” and “Princess of Incest.” These runners, appearing in half-nude poses, started popping up on the Internet and subsequently on the TV news as reporters jumped on this sexually charged aspect of the high-profile case. The photos apparently did not show Cathy topless, but they were still so lurid, newscasters said, that they had to pixelate the runners’ exposed private areas.

  First thing Thursday, March 4, Michael Popkins met with John Gardner alone until Mel Epley could join them after dropping his kids at school. They explained that he’d missed his opportunity to give up the location of Chelsea King’s body, and he should really think about the impact a death penalty case would have on his mother and his sons, if the defense was unable to settle this case. Epley said he didn’t think Gardner really wanted to die, especially the slow death of confinement on California’s death row, where more than 700 prisoners are waiting to be executed because the state has had a moratorium on state-ordered killings since 2006. If he wanted them to save his life, they explained, he needed to tell them if he had killed Amber Dubois and point them to her body.