—
The conventional wisdom in jury selection holds that the defense should avoid veterans of the armed forces, who are believed to be harsh and unforgiving. But Bailey surprised the prosecutors in the Hearst case by agreeing with alacrity to seat William Wright, a retired air force colonel, who had served in the Korean War. Bailey took a risk on Wright, betting that his fellow Korean vet’s receptivity to the defense theory of the case would trump his inclination to support the government.
During the troubled Korean conflict, more than a thousand American service members were taken prisoner. While in captivity, some of the Americans made statements that were supportive of the Communists. Several pilots who had been shot down even made broadcasts on North Korean radio confessing that American forces had engaged in germ warfare, which was demonstrably untrue. A former newspaperman named Edward Hunter, who went to work for America’s fledgling intelligence agencies, invented the name for the practice of coercive persuasion that produced these results: brainwashing.
The concept took hold more in the popular imagination than in the medical literature. The notion that an authoritarian government, or group, could exert mind control over even reluctant adversaries was a familiar trope of the Cold War. The Manchurian Candidate, a novel by Richard Condon, published in 1959, was a political thriller about a Korean War prisoner who is brainwashed into becoming an unwitting assassin for a Communist conspiracy. George Romney, the Michigan governor who was running for president in 1967, asserted that he was “brainwashed” by American military leaders about progress in the war in Vietnam. The term, a description more than a diagnosis, came to mean the process of forcing someone to believe something he or she didn’t want to believe.
That was the basis of Bailey’s defense—that the SLA used mind control techniques to force Patricia to become a bank robber against her will. Thus, she lacked the requisite criminal intent to be convicted for it. Bailey’s first major undertaking, then, was to ask the judge to prevent the prosecution from introducing Patricia’s statements before the jury. According to Bailey’s theory, the communiqués, the statement to Tom Matthews, and the “Tania tapes” interviews were all involuntary on Patricia’s part. She was compelled to make them—like a statement that had been coerced by a police officer who failed to give Miranda warnings. Because courts kept such statements from the jury, Bailey argued, the judge should keep Patricia’s “involuntary” statements from the jury as well. On February 9, less than a week into the trial, Bailey persuaded Judge Carter to halt the government’s presentation of its case to the jury and hold a hearing on whether Patricia’s statements were voluntary. For that proceeding, Bailey called his first witness—Patricia Hearst herself.
The ceremonial courtroom of the San Francisco federal building was cavernous, with more than 250 seats, and all of them were occupied (as was an overflow room) when Patricia took the stand. The hearing, which was conducted outside the presence of the jury, was the first time she told her story in public since her kidnapping transfixed the country two years earlier. Her parents watched attentively, Catherine still wearing black.
Patricia remained painfully thin, but she was otherwise transformed from the woman who flashed her fist at the cameras on the day of her arrest, almost five months earlier. Al Johnson had taken over the task of choosing her makeup and wardrobe; Patricia now looked like a college student arriving for a job interview—conservative suit, modest heels, clear nail polish, neatly cropped hair. Her voice, though, remained the same as the one on the communiqués—a lockjaw monotone that always seemed, despite everything, kind of bored.
“For the record, Miss Hearst,” Bailey began, in his gruff conversational manner, “you are the defendant in this case?”
“Yes,” Patricia said.
Bailey led her through the statements that the government planned to introduce. He began with the communiqué after the bank robbery.
“Can you tell us who was talking first about the idea of making a tape?” Bailey asked.
“Cinque,” Patricia said.
“What did he say, what did he want to accomplish?”
“He said a tape was going to be made about the bank robbery.”
“Did he say for what purpose the tape was to be made?” Bailey went on.
“To say that I participated in it,” Patricia replied.
The testimony might well have been accurate, but Patricia’s deadpan style sapped it of much emotion. She did elaborate somewhat when she talked about her encounter, along with the Harrises, with young Tom Matthews.
“Now, I’m referring to your state of mind at the time you made these statements: What did you believe would have happened to you if you had not told Mr. Matthews what Bill Harris wanted you to tell him?”
“That I would have been killed,” Patricia said, with her usual lack of affect.
“Can you tell me approximately how many times…that you had been told that a lack of cooperation would mean that you would be killed?”
“Hundreds of times,” Patricia said.
Browning had a low-key style, but he did sometimes display a prosecutor’s instinct for the jugular, as when he rose to cross-examine the defendant. His point was to show that Patricia acted voluntarily, and he did not limit himself to discussion of the Hibernia operation.
He showed Patricia the “Bakery” document, which was the SLA’s step-by-step guide to committing bank robberies. She said she didn’t recognize it. So he showed her another document.
“Let me direct your attention to a subsequent page, which appears to be a diagram,” Browning said, “and at the top it’s labeled ‘B of A Marysville.’ Do you recognize that handwriting?”
“I wrote it, it’s my handwriting,” Patricia said.
“Do you recall the circumstances under which you wrote that sentence?”
Bailey vaulted out of his chair to object. He said the testimony was beyond the scope of the hearing. The judge let Browning press on.
“Do you recall, Miss Hearst, when you wrote the sentence, ‘Saw seven employees, five women, two men, one young and nervous. Manager is fat and black’?”
Bailey again sputtered a series of objections, arguing that Browning’s questions related to matters outside the scope of the hearing. The real reason Bailey was objecting, though, was that Browning was pressing on the area of Patricia’s greatest vulnerability. He was showing Patricia the report she provided to the other comrades after she cased the bank in Marysville. That document was part of the comrades’ research that led to the robbery of the bank in Carmichael and the death of Myrna Opsahl. Bailey knew this line of questioning, if permitted, could lead his client to incriminate herself in a capital crime. He tried to get Judge Carter to cut off this line of questioning, saying, “You’re forcing her to answer these questions which could expose her to further charges, and I will not permit her to do it.” But Browning shot back, “Mr. Bailey has waived any privilege against self-incrimination by putting the defendant on the stand.”
The judge let Browning proceed. “The issue in this case involves the subject of coercion,” the judge said, “and there’s a whole course of conduct here that has to be evaluated, not just one incident.” Carter noted correctly that Browning’s questions dealt precisely with the issue of whether Patricia was an independent actor.
Bailey had little choice but to take a most embarrassing step. “I will advise the defendant to invoke her Constitutional rights,” he said. “Miss Hearst, you are instructed to refuse to answer on the grounds that it might tend to incriminate you.” The jury was out of the courtroom and sequestered from press coverage, so they were not around at that point to see Patricia take the Fifth. Still, this was a self-inflicted wound by the defense; a hearing intended to limit prosecution evidence wound up showing the world that Patricia still had plenty to hide.
Judge Carter then rejected Bailey’s attempt to limit the prosecution’s introduction of Patricia’s statements. Oliver Carter was one of the lesser lights of
the federal judiciary. When Harry Truman appointed him to the federal bench, in 1950, Carter was only thirty-nine years old. Over the years, the judge became best known in the legal community for his chronic inability to reach decisions in civil cases. And though he was only sixty-four at the time of Hearst’s trial, Carter was sick with heart disease and weary of the job. (He dozed off on many an afternoon, which produced a mordant kind of consensus between the opposing lawyers. One day, Steele Langford, a deputy to Browning, whispered to Bailey that the judge had fallen asleep again. “What should we do?” Langford asked. “Let’s wake him up if we need him,” Bailey said.)
Still, Carter had ample reserves of common sense. He could tell when he was being played. Bailey was simply inventing reasons to keep incriminating evidence from the jury. “The Government has established that the statements made by the defendant after the happening of the bank robbery, whether by tape recording or by oral communication or by writing, were made voluntarily,” Carter ruled. The decision was a rebuke to Bailey and a warning about how the judge would handle the rest of the trial.
—
It didn’t take long for the government to finish the rest of its case. Anthony Shepard was the aspiring police officer who was working as a clerk at Mel’s Sporting Goods. He testified about how he caught Bill Harris shoplifting, chased him out of the store, tackled him, and then applied a handcuff to one of Harris’s wrists. At that point, Shepard explained, Patricia’s machine-gun fire from across the street caused him to drop his hold on Harris and allow him to escape.
Browning asked Shepard what happened after the second burst of gunfire.
“He said, ‘Hey, we better get out of here,’ ” Shepard answered.
Then?
“The last time I was looking up he was jumping over the center divider proceeding toward the van,” Shepard said. He then explained that he ran for his life to escape Patricia’s gunfire.
The star witness for the government was Tom Matthews, the preternaturally cool high school first baseman who seemed to regard his experience as a kidnap victim as a sort of lark. On May 16, 1974, following the shoot-out at Mel’s, Emily Harris had come to Matthews’s front door and asked to see his van, which had a “For Sale” sign in the window. After they drove a block or two, Patricia and Bill Harris had joined them and pulled a gun. Bill said the trio needed Matthews’s car. Matthews testified that Bill said, “If I did not do anything stupid, they wouldn’t hurt me. I said that was fine as long as I don’t get shot.”
Matthews was so spacey that he didn’t recognize his famous kidnappers at first. Bill explained that the woman in the car was Patty Hearst—“ ‘Tania,’ and both of them smiled,” Matthews said. He understood that he was being kidnapped at this point, albeit in unusually cheerful fashion. He went on to describe their surreal journey from store to store to find a hacksaw to remove the handcuff on Bill Harris’s wrist. Matthews admitted on the stand that he kept a shard of the handcuff as a souvenir.
Tom and Patricia spent a long time chatting in the back of the van. Matthews described a very different Patricia from the demure woman sitting in court. At that moment in Los Angeles, she had been in full badass regalia, with a black wig, leather jacket, hiking boots, and (of all things) green plaid pants. In the van, she showed Matthews the M1 machine guns that were lying next to her and that she had just used to spray Mel’s facade. What was more, she displayed her prowess with those weapons, removing a bullet from the chamber, placing it into the clip, and then putting the clip back into the weapon.
“Do you know why she did that?” Browning asked.
“No, I don’t,” said Matthews. Browning’s implication was that Patricia was just showing off.
The two chatted in the van about the bank robbery, and she refuted everything her defense now wanted the jury to believe. “She said she was a willing participant,” Matthews testified. She said, contrary to some news reports, that none of her comrades had pointed their guns at her during the robbery. As for the incident at Mel’s, “Patricia Hearst said she was lucky she saw the struggle going on, because at the time she was reading a newspaper. She looked up, saw the struggle going on, so she fired at the store.”
The theme of Matthews’s testimony was that the Harrises and Patricia made congenial company during their eleven hours together. Jurors smiled as Matthews recounted watching the double feature at the drive-in, as Bill, Emily, and Patricia waited in vain for their comrades to show up. Indeed, Matthews was so relaxed in their company that after the last show at the drive-in he curled up and went to sleep. It was hardly the behavior of a terrified victim. For that reason, the testimony was damaging for Patricia’s case. Bailey’s defense was based on the notion that Patricia lived in fear for her life at every minute. Thus, she was like a robot programmed by her evil masters in the SLA. Matthews, in contrast, made the Harrises and Patricia sound like a groovy trio. They weren’t even scary enough to keep Tom Matthews awake.
Bailey compounded the damage of Matthews’s testimony in his cross-examination. He tried to play up the terror of the encounter, but Matthews wasn’t buying. “You thought that if you offended them in any way, you might be harmed?” Bailey asked.
“Correct,” Matthews answered.
“Would you say that made a deep impression on you at the time you heard the threat?”
“Not really.”
“In other words, you did not much care whether you would get shot or not?”
“No, I was more excited than I was scared.”
“Were you excited with the idea of an interesting adventure?”
“Yes, I was.”
“In other words, you considered yourself fortunate to have been in that place at that time,” Bailey asked, with some incredulity.
“Yes,” Matthews said, prompting robust laughter in the courtroom. His dreamy equanimity was funny, to be sure, but his testimony left the clear impression that if he was having a good time on his adventure with the SLA, so was Patricia Hearst.
On February 13, the government rested.
—
Patricia never wanted to testify at her trial. As she returned to the embrace of her family, albeit in jail visiting rooms, she wanted nothing more than to put the SLA experience behind her. She was also exhausted from talking to psychiatrists. The first group was assigned by Judge Carter to determine if she was mentally fit to stand trial; they found she was. The next were representatives of the prosecution and defense, who were examining her to determine her state of mind at the time of the bank robbery. Patricia was not a reflective person in the best of circumstances, and she loathed the process of revealing her thoughts and feelings to these strangers. Hearsts, especially her mother, regarded any form of soul baring as vulgar. The last thing Patricia wanted to do was repeat this process in a public courtroom, with the whole nation watching.
Bailey didn’t much care what Patricia thought, one way or the other. He had a job to do, and he left his deputy Al Johnson to explain his decisions to the client. During a boozy, mid-trial dinner with the journalist Shana Alexander, Bailey explained how he and Johnson dealt with Patricia. “Right now we are brainwashing her in reverse, using the good cop–bad cop approach,” Bailey said. “Frankly, it’s not hard. She has a lot of confidence in Al, and she has no deep political convictions. She’s easy meat.” In their visits to Patricia in jail, Patricia’s family was doing the same thing, though with less cynicism.
Patricia tolerated her brief testimony in the hearing about whether her statements were voluntary, but she hoped that she would not have to return to the witness stand. Bailey could have defended the case without her testimony. The government conceded that she had been kidnapped, and Bailey cleverly began the defense case with the testimony of Steve Suenaga. He was Patricia and Steve’s neighbor on Benvenue who stumbled into the kidnapping and wound up beaten and tied up on the floor of their apartment. Suenaga’s testimony convincingly established that Patricia had been the victim of a terrifying crime.
Bailey convinced himself that the answer was no. Carter often gave vague and confusing responses to the lawyers, and sometimes he changed his mind. But Bailey still chose to interpret a brief exchange with the judge during the hearing as a definite ruling that he would limit Patricia’s cross-examination. Based on that purported assurance, Bailey called his client to the witness stand, this time with the jury in the courtroom.
—
Bailey, as was his custom, was living on the edge throughout the trial. He was smoking at least two packs of Benson & Hedges cigarettes a day and, according to Shana Alexander, drinking about ten highballs every day as well—Bloody Marys or margaritas at the court’s lunch break, scotch and soda at night. Bailey’s cockiness and thirst for cash led him to shortchange preparation, too. Instead of walking Patricia through her testimony on the weekend before she was to take the stand, he took advantage of a three-day break to fly to Seattle to give a paid speech at a meat packers’ convention and then to Los Angeles to give another one at a legal seminar.
Still, in spite of everything, when Patricia returned to the witness stand on the morning of February 17, she was an excellent witness, much better than earlier during the hearing. She was clear and focused. Bailey pulled salient details from her background to illustrate what kind of person she was before she was kidnapped. Patricia noted that when she was a student at Menlo College, before she started at Berkeley, there was a political demonstration.
American Heiress: The Wild Saga of the Kidnapping, Crimes and Trial of Patty Hearst Page 34
