Lost Girls

by Caitlin Rother

  But it wasn’t until after KFMB-TV did an update on the case in January 2011 that the San Diego County Sheriff’s Department searched for bodies in some of these areas.

  “Our concern at this point is, if there were runaway girls from other areas of the country who happened to be in San Diego County or Riverside County, they may have been victimized by him,” Lieutenant Dennis Brugos told KFMB. (Brugos retired shortly thereafter. As of 2011, the search teams had found no new victims.)

  The OIG report also cited a number of recommendations, such as using trained specialists to bunch, batch and tier this data to track patterns, which would free up parole agents to do more important casework in the field to protect the public’s safety.

  CDCR secretary Matthew Cate responded that the GPS passive-monitoring system was never designed to detect violations as they occurred, noting that Gardner’s agent “was not expected to check Gardner’s tracks, unless the agent received an alert or suspected Gardner was involved in criminal misconduct. As such, unless the agent happened upon Gardner during the commission of the misconduct, the agent could not have been aware that Gardner briefly entered a prison parking lot one day in July 2008, or that he violated his curfew and committed the other potential violations listed in your report... . Unfortunately, we know that even if we had unlimited resources and could do all of the things immediately [noted in the OIG and CASOMB reports], we would not be able to prevent all of tomorrow’s crimes.”

  Assemblymen Nathan Fletcher and Jim Neilsen also aimed their sights at the state Department of Mental Health (DMH) in a letter to the Joint Legislative Audit Committee, asking to examine the department’s screening practices for sex offenders that failed to protect the public from John Gardner. At Fletcher’s urging, the state legislature approved a $250,000 state audit.

  When the audit report came out in July 2011, Fletcher was irked to read the results, because, as he’d interpreted state law, all sex offenders were supposed to be getting “full evaluations” by two DMH psychologists to determine if the inmates were sexually violent predators (SVPs) before being paroled.

  But according to the audit, only 20 percent of the 31,500 sex offenders referred by CDCR over a five-year period had actually received those full evaluations, because the rest had been screened out along the way (after an initial review or a subsequent clinical screening by DMH). Less than 2 percent were committed to mandatory treatment at a state hospital in Coalinga when their term was up because they were deemed too dangerous to be released into society. The annual cost to treat one sex offender at Coalinga State Hospital, where some offenders have been housed for years, is a whopping $180,000. Clearly, Fletcher, the auditor’s office and the two state agencies had different interpretations of state law.

  The audit also noted that this violent predator assessment system had a major increase in inmate referrals for evaluations the year after Jessica’s Law passed in 2006, when the number spiked from 1,850 to 8,871. This problem was exacerbated, audit staff said, because the CDCR didn’t do its job of screening out nonpredators from the evaluation process. CDCR was not only faulted for sending all offenders to DMH for evaluation, but also for waiting until the last minute before their parole date to refer many of those identified as predatory, when state law required referrals to be made at least six months in advance. The audit said this didn’t give DMH enough time to complete its usual evaluation process, which kept prisoners behind bars longer to complete overdue assessments, and forced the use of other costly and time-consuming measures, such as hiring private evaluators, all of which cost taxpayers more money.

  In response, CDCR spokesman Luis Patino said these screening methods were developed jointly by CDCR and DMH. The CDCR “was erring on the side of caution because the public deserves careful screening of sex offenders to ensure they are not sexually violent predators,” he said, and the two agencies are working “to develop further efficiencies.”

  Patino countered that private evaluators were often used because the state pays its own employees less than the private sector to do the same assessments, so it’s difficult to recruit people to fill the public positions. A top CDCR official said that the agency is “committed to adhering to the statutory law governing this program,” but Patino was unable to address the disparity in the various interpretations of the law.

  DMH did not respond to a request for comment on the audit.

  Chapter 33

  Ignoring his attorneys’ advice to remain quiet until after the sentencing hearing, John Gardner issued a public apology through KFMB-TV on Sunday, April 25, 2010, in a statement that came through an unnamed source and was aimed at the families of Chelsea King and Amber Dubois: I’m sorry. I wish I could take it back. I know that it doesn’t mean anything to anybody but I really am sorry for everything. I wish that I was able to get help when I tried to get help. I tried to seek out help and was not able to get any.

  Carrie McGonigle was the only parent who would comment: “To me, it’s just words. There’s no meaning behind it. It doesn’t bring Chelsea or Amber home or back to us.”

  After receiving regular e-mails from numerous media, including one persistent KFMB-TV reporter, Gardner called the local CBS affiliate collect from jail that same Sunday and agreed to do an interview, hoping to improve his public image. The station took several days to edit and gain legal approval for the segment, which didn’t air until April 29, during sweeps week.

  Gardner’s attorney Michael Popkins was in Sacramento when his boss called him Sunday evening to warn him that Gardner had called KFMB, and to prepare Popkins for what was coming down the pike. Popkins was annoyed, to say the least, that his client had failed to heed his instructions once again.

  When the interview aired four days later, it caused an uproar. Some complained that the media shouldn’t have given Gardner a platform to talk about himself, just as Popkins had feared. Many others, however, couldn’t pull themselves away from the TV.

  “What I did is horrible,” Gardner said. “I hate myself. I really do. There is no taking back what I did. And if I could, yes, I would. Are you kidding me? But I was out of control. If I could stop myself in the middle, I would have, but I could not... . I was aware of what I was doing, and I could not stop myself. I was in a major rage and pissed off ... at my whole life and everyone who’s hurt me, and I hurt the wrong people... . I’m afraid of myself.”

  Asked about Cathy, he said, “She’s an overcontrolling mom ... so I try to stay away and she tries to hold on.”

  Gardner extended an offer to meet with his victims’ parents and answer questions about how he killed their daughters, telling the reporter that he wasn’t going to give those details to anyone but family members. “I’m not going to keep kicking dirt on something. It’s just wrong,” he said.

  When the reporter asked if there were other victims, Gardner chuckled. “Good try,” he said.

  He said he figured he probably had a short time to live in prison. “I gave up on my own life a long time ago... . I’m guessing in the next two years—I don’t even think it’s going to take two years—and I’ll be dead.”

  After the interview and the outrage it caused, Gardner’s attorneys got his sentencing date moved forward before anything else could go wrong. This was atypical in the usual scheme of things, but they actually were returning to the hearing date that would have been set—had Gardner not waived his due time for sentencing while they arranged a psychiatric evaluation and had a positron emission tomography (PET) scan done of his brain. Nonetheless, this acceleration brought Gardner from arrest to sentencing in a mere seventy-eight days, which is lightning speed in the justice system.

  “I just didn’t want him sitting there [in jail] any longer than he had to,” Popkins said, adding that he also couldn’t guarantee the judge that Gardner wouldn’t talk to the media and stir up the community again.

  Gardner ultimately told Popkins that his attorney and advisors had been right, that giving KFMB the interview had been a mis
take, because it hadn’t helped his public image at all.

  On Saturday, May 1, 2010, Carrie McGonigle responded to Gardner’s offer and e-mailed Popkins, asking to see his client. Popkins wrote back and, believing their exchange was private, was not pleased to see the contents of his e-mail reported in the media. Carrie wrote back, wrongly accusing him and Mel Epley of putting her on a “no-visit” list.

  On Monday, Popkins and Epley had a conference call with Carrie and her attorney, Robin Sax, during which they compiled a list of questions that Carrie wanted to ask Gardner. They promised to get answers for her, which they did in a call later that day. But in the end, that was not enough for her. She insisted on meeting with Gardner, face-to-face.

  Later that day, Cathy Osborn came to visit her son while Carrie waited outside the jail to ask if she could have Cathy’s half-hour visiting appointment the next day. As soon as Cathy saw Carrie, she ran to her car and drove away.

  In the early hours that night, Carrie wrote to Gardner in jail about meeting him. Popkins, after his own experience with Carrie, told Gardner that he shouldn’t meet with her after the way she’d behaved. But Gardner said he wanted to follow through with his promise, saying he could understand why she was so upset.

  Before visiting him on Tuesday, Gardner’s sister Sarina met up with Cathy and his sister Shannon. Sarina passed Carrie on the sidewalk outside the jail, as well as the three reporters with cameras who had been informed of Carrie’s plans to talk to Cathy.

  Asked for comment, Sarina said, “I have to say ‘sorry,’ that’s it.” Looking at Carrie, she added, “Very, very, very sorry. I am looking at her, saying, ‘I’m sorry.’ She doesn’t want to hear my sorry. I’m sorry.”

  “Actually, I just want to talk to your brother,” Carrie said.

  Sarina said nothing more and continued on her way. A few minutes later, Cathy and Shannon were walking along the sidewalk when Carrie came toward them. The scene, captured by the media, was replayed on the TV news that night and recounted in the newspaper: Carrie stepped in front of Cathy and Shannon, using her body to block their passage, forcing them into a corner edge of the building. Cathy buried her face in Shannon’s side, crying, as Shannon hugged her close, unsure if Carrie was going to get physical.

  “I just want to visit with your son,” Carrie said.

  “Excuse me,” Shannon said, trying to veer away from Carrie and the building by holding Cathy with one arm and raising the other hand to keep Carrie from coming at them again.

  “Don’t touch me,” Carrie said. “I will hit you.”

  “Stay away from her,” Shannon said.

  “I’m not here to harass you,” Carrie said. “I want to talk to your son and find out why he murdered my daughter.”

  Cathy and Shannon escaped inside the jail lobby, where Sarina was waiting.

  This was her last chance to visit Gardner before the sentencing hearing that Friday, Carrie told reporters, and she hoped Gardner would at least talk to her by phone. She was worried he would change his mind after hearing her victim impact statement in court.

  “I fought for what I believe in,” she said. “I did everything I could to try to see him. So I guess I have to trust his lawyers when they tell me that they will try to set up something.”

  Carrie said she wanted to talk to Gardner to get some closure, to ask why he’d picked Amber in particular and to learn exactly how he’d managed to get her daughter into his car in front of the crowded school. She wanted to know if Amber had cried out for her, and if Amber had begged for her life.

  “I never really thought there would be a chance for me to ask him questions until I heard him say that he would answer questions,” Carrie said, referring to his TV interview. “I’ve e-mailed twice, called three times and come down three times. They’re not budging. He doesn’t want to talk to me, even though he says he will.”

  Carrie left, but the reporters waited outside for Cathy and her daughters to come out. When they did, Cathy had a jacket covering her head, shielding herself from the cameras and the questions, as they headed for Shannon’s car, which was parked at the curb.

  “Leave my mom alone,” Sarina said.

  “Why didn’t she let Gardner meet with Amber’s mom?” a reporter asked.

  Before the reporter could finish the question, Sarina said, “She didn’t let Gardner do anything. We’re sorry.”

  After seeing the deep sorrow in Carrie’s eyes that day, Sarina couldn’t forget it. “I have nightmares of that lady, of her pain, and her eyes,” she said in 2011. “We’ve never been able to say we’re sorry to the families. Our attorney advised us not to, told me not to send cards, not to say sorry. The thing wasn’t over yet.”

  After the confrontation, Cathy text-messaged Popkins, who had been adamantly against anyone speaking to Gardner before the sentencing.

  “Maybe if she sees how crazy he is,” Cathy essentially told Popkins. “He’s as stable at this moment as we’re going to get him. She’s making a nightmare out of the media. Let her see him. It can’t make things any worse.”

  Gardner felt the same way. “Yeah, she needs to be able to get it out and she can yell at me,” he said. “There’s nothing that she can say that I haven’t already told myself.”

  With the hearing only two days away, Popkins relented, hoping this would end the media circus. He checked to make sure that his boss and the DA’s office had no objection, then he made arrangements for Carrie to meet with Gardner for thirty minutes on Wednesday, May 12.

  Gardner was afraid that Carrie would yell and scream at him, but she didn’t. After seeking advice about how to conduct herself, she managed to remain calm, at least on the outside. He didn’t think she was going to want to hear all the gory details, but she did.

  “She wanted everything, from when I picked up the knife till the end,” he said later.

  “You owe me that,” she told him.

  “I’m sorry. I can’t even look at you,” Gardner said.

  “I don’t care,” she said. “I don’t want to look at you either.”

  Afterward, Carrie told the media about some of their conversation. Gardner also told his mother his version of the exchange, saying that he was emotionally spent afterward, and ashamed. But he said Carrie was “nice to him—very, very nice,” and she offered to have her minister visit with him.

  Chapter 34

  Just before the hearing on May 14, attorneys for both sides met with Judge David Danielsen in his chambers to discuss security measures and some other issues that had come up.

  John Gardner had wanted to make a statement at the hearing, but his attorneys talked him out of it. “He thought he could say something that could make things better,” Mel Epley said. “We didn’t deny him. We just tried to make him understand there was nothing he could say that would make anybody feel better about what he did.”

  Cathy Osborn, however, was still intent on addressing the victims’ families, despite Popkins’s and Epley’s efforts to dissuade her. She wanted to say she was very sorry to both of the victims’ families; she also wanted to thank Carrie McGonigle for being kind to Gardner and for offering to have her minister visit him. Popkins and Epley told Cathy this was not a good idea, that she would only make things worse for herself. When she wrote up a statement, they redacted parts of it, hoping she would give up. They also sent their two investigators to talk to her, but she remained adamant.

  “I was doing it to protect her,” Michael Popkins said. “Nothing she could say would make the public like her or him any better.”

  The judge made the final call, saying this was a hearing to which the sentence had already been stipulated. Although it was within his discretion to let Gardner make a statement, he didn’t feel that was proper in this case, let alone allow Cathy to speak.

  Popkins believed the judge made the right call. “I have absolutely no regrets about that,” he said later. “It would have been a disaster.”

  The standing-room-only hearing drew a rare
combo appearance of the DA, the sheriff and the head of the local FBI office, all of whom had been asked to attend by the victims’ families. Dumanis and Gore sat behind the prosecution table, serving as a buffer between the victims’ families and Gardner. His family sat on the other side of the aisle, with other folks acting as buffers between them and the victims’ families.

  Also in the courtroom was Brenda van Dam, the mother of seven-year-old Danielle, who was murdered in 2002 by David Westerfield, another of San Diego’s high-profile child killers. Van Dam and activist Marc Klaas, who was also in the courtroom, had helped search for Amber.

  Most of the 120 seats in the courtroom were reserved in advance, leaving only seven for the general public. With one still camera for print media and one TV camera, working as a pool, the extra electronic media were sent to one small overflow courtroom, where the floor became a thick mass of electrical cords. Other print reporters and members of the public were sent to a larger courtroom to watch the proceedings on a giant projection screen, while a group of two dozen supporters, holding sunflowers and lilies, talked to reporters and whoever else stopped to chat with them on the steps of the Hall of Justice next door.

  As the hearing began, thirty-one-year-old John Gardner, dressed in a kelly green jail suit, looked as if his brain was spinning with anxiety. He had the strange, distracted expression of someone mentally unbalanced, and he appeared to be moving his tongue around, as if his mouth were dry. His chest rose as his breaths came shallow and fast, as if bracing for the hateful outbursts that Epley had warned would be coming his way. Epley told him he didn’t have to look at the family members, who were going to be very angry.