"This is a capital case, your Honor," said Ray Smith. "I for one would like to have Mrs. Bobbick come down here and tell us on the record what is going on that has caused her to become so hysterical that she had to write and ask your Honor for permission to get off the jury."
"All right. The request of counsel is denied," said the judge. "The court will order the discharge of juror number four and direct that the name of an alternate shall be drawn to take her place."
"I ask for a mistrial!" said Moore, but he was denied.
On the fourth of September, Gregory Ulas Powell and Jimmy Lee Smith were finally found guilty of first-degree murder, and Gregory Powell wasted no time in making a motion to represent himself during the penalty trial.
"Due to complete disagreement with both my lawyers, I intend to discharge them immediately," Greg informed the court, and it was astonishing how much he himself sounded like an attorney after listening and learning for two months: "I don't believe I ever stated at any time I felt I was incapable of defending myself, as the district attorney maintains. I think I stated, if the record will reflect, that I realized I didn't have enough time to prepare my case. I think Mr. Schulman has made assumptions as to what I know and what I do not know, and I feel that this is none of his business. The court is not aware of some of the colloquy and the different issues that have gone on between counsel and defendant. Therefore what Mr. Moore has done in his own behalf and what he has done at my urgent insistence is something the court cannot possibly know. The argument that Mr. Moore presented to the jury, I wrote the night before. Many of the things which were in the argument I had written out myself, your Honor. I could have made the same argument and done as well."
Pierce Brooks looked at Greg and listened to his newly acquired legal jargon and rather surprising eloquence and said to Marshall Schulman, "What an ego! Yes sir, that's my boy!"
"What is going on here?" demanded Schulman. "This is just another method of presenting some questions on appeal, and Mr. Moore is just sitting there and letting it go by!"
"All right, I know this much," said Greg. "Mr. Moore cannot possibly obtain my cooperation if I will not give it. And I have stated that I will not. I have made my position quite clear."
"Your Honor!' said Jimmy Smith, now entering the debate, and the heavy-lidded blue eyes of Judge Brandler moved back and forth toward the many speakers at the counsel table. "Mr. Powell has been treated with a silver spoon in his mouth ever since we were arrested. I haven't did anything! I am innocent and I know I can . . . that I could prove it. I could prove it to this jury beyond a reasonable doubt. Goin to Bakersfield was my idea, not my attorney's idea and the record will so reflect that I am the first one that mentioned it. Then he comes back and asked the court, would the court grant the motion to go to Bakersfield as a part of the defense. We went to Bakersfield. There was no defense put on for my part. My attorney ran around drunkedly all over the ground. And I attempted to call him back and ask him whether they could put Mr. Hettinger on the stand and ask certain questions that would prove beyond a doubt that I was innocent. He would not ask him. It was a physical impossibility of Hettinger runnin down the road and lookin over his shoulder. And another thing, I asked him to give me a hypnosis test. Any kind of way, a psychiatrist, anything. He hasn't made any attempt to do that. He refused. I did not commit the crime. This whole trial has been put on for this man Powell. He is a self-confessed murderer. May I just say one more thing, your Honor?"
"Yes," sighed the judge.
"I can prove beyond a reasonable doubt that I, Jimmy Lee Smith, is more qualified to defend myself in this courtroom than Gregory Ulas Powell. And also the district attorney has papers in his possession that will prove these facts to this court. I think."
"Prove what?"
"Prove I am qualified and'capable of defendin myself, maybe not verbally, but when given opportunity to take my time and to write out things that I wish to say, and to have use of the law library which I have asked the court on occasions, and I was refused. Sergeant Brooks even knows I am not guilty. They all know it. That is why all these lies were produced in this court. Just to get me. I want another attorney. Please."
"I am not interested in the many falsehoods that Jimmy Smith has just related," said Schulman, worrying now about an issue being raised on appeal concerning Smith's accusation of a drunken attorney. "I think the court should, make some observations on the alleged drunken stupor Mr. Ray Smith was supposed to have been in at Bakersfield."
"I believe the word he used was 'drunkedly,' " said the judge.
"Not only there but here in the courtroom too, your Honor!" shouted Jimmy.
"The court has no information that during the course of this trial Mr. Smith had partaken of any intoxicating liquor."
"You have almost got me almost in the gas chamber!" Jimmy cried. "What am I gonna do? Your Honor, please have mercy on me!"
"The motion that the court is ruling on now is just the motion that Mr. Ray Smith be relieved, and that the court at public expense appoint another attorney to represent you. That motion the court does deny."
"Well, your Honor, you will have to relieve him in some kind of way," Jimmy said. "He must be relieved, your Honor. If you don't, I don't know what I'm gonna do, but I must do somethin. I can just sit here and don't do anything just as well as to have him. The man is not doin a thing."
"All right . . ." the judge said, but Jimmy interrupted him once again.
"Would you consider, your Honor, if I brought in a witness to state that after talkin to Mr. Smith they smelled liquor on his breath?"
"All I can suggest to you is, the mere fact, if it is a fact, that an attorney may have a drink during noon hour is certainly no basis for any criticism of that attorney. Was there anything further?"
"Yes, your Honor," said Greg, on another subject. "There are no mutual meeting grounds for Mr. Moore and myself, and I think that I quite clearly stated this morning my requests and my wishes, and they are still the same. I still insist, and desire-demand-that I be allowed to defend myself for the duration of this trial, and I am prepared to go forward immediately. There is no mutual meeting of the minds. Mr. Moore has indicated that he wishes to withdraw, and I concur, and have already asked that he be discharged."
"As a lawyer, I know," said Attorney Ray Smith, "that the facts of this case justify a first-degree murder conviction. I have been striving for one thing, and that is to keep Jimmy from the death penalty and that has been the theory of my defense, if you can call that a defense. For that reason, I will not request to withdraw."
"I'm tired. I can't stand it anymore," moaned Jimmy Smith. There were others in the courtroom who felt the same.
On September 6, during the penalty trial, Gregory Powell, representing himself, called his mother to the stand.
"Take the stand and be seated. State your name, please," said the clerk, and Greg was looking more fit, well dressed, and relaxed than at any time in the case thus far, prompting Schulman to remark that being a lawyer agrees with him.
"I would ask your relationship to anyone in this case," said Greg.
"I am your mother," replied the witness.
"What is your occupation?"
"Housewife and college student."
"Will you give your age, please."
"Fifty years old."
"Mrs. Powell, could you tell us in general what your health has been since the year 1941?"
"I'm sorry, but I am going to have to object to that as immaterial to the issues," said Schulman.
"I expect to prove by this testimony that during the formative years of my life the responsibilities of raising children were placed upon me," said Greg. "She has had, your Honor, I don't know the dates, but she has had ten major operations. She has had Bright's disease. Included in these ten major operations were three thyroids during this period of years."
"I am going to object to tHis, if the court please," said Schulman. "Why do I have to be placed at a disadvantage ju
st because he chooses to release his counsel and defend himself?"
"I don't feel you are placed at a disadvantage," Greg retorted.
"It's not up to you to feel one way or the other," shot Schulman, "and if Mr. Powell has anything to say he should address it to the court. If he wants to play lawyer I think he should act like one!"
And then Greg, proving he had in fact learned to act like at least one lawyer, replied: "I would cite the district attorney for that remark, your Honor!"
After the judge restored order Greg continued, looking yet more confident.
"Mrs. Powell, would you give a brief history of my personal health until school age, please?"
"At the age of three and a half you had scarlet fever and you were in the hospital with a mastoid operation. When you were four and a half you fell out of a car and had a serious head injury."
"If the court please ..." said Schulman, then gave up and slumped in his seat.
"Do you remember, Mrs. Powell, your financial status at the time?"
"We were very poor."
"Did you have an occasion to think about the winter months that were spent there?"
"You want me to tell them I broke up a chair to have a fire one day to keep us warm?"
Schulman was now unable to control his eyes, which were rolling back every few seconds, giving him a stricken look.
"Would you say that despite all this, it was a happy home?"
"Yes, I certainly would. You don't have to have money to be happy." Ethel Powell smiled.
"Going back to the time that I started the first grade, what was your general health at the time?"
"Terrible."
"Could you tell us specifically?"
"Yes, the very first thing-I know it doesn't matter because it happened before you were born-but I lost all my teeth through an accident, and that left an infection in my mouth, and the infection spread through my body, so my health was in terrible shape."
"How serious was your Bright's disease, Mrs. Powell?" asked Greg.
"I was given three months to live."
"While I was attempting to take care of the three younger children, did you receive any disciplinary reports about me from school?"
"I never received one. I only had a visitation from the head of the school as to why you wanted taken off the honor roll as a patrol boy."
"Just a minute, I'm sorry," said Schulman, "but I have to object to that hearsay testimony."
"This isn't hearsay," said Ethel Powell. "This was said to me direct. I'm repeating what I heard."
"Mrs. Powell," said the judge, "may I suggest that Mr. Schul- man's objection is directed to the court."
"Was I engaged in a lot of sports and so forth?" asked Greg.
"Yes. Oh gosh, you got a lot of ribbons too. Blue ribbons. Yes, we had a wonderful track meet in which you did very well."
"Did you go to the track meet?"
"I sure did. My husband and my father and mother did too. Gee, I know your father was happy. You took part in two things. You could've had top honors in both of them if you'd taken his advice. Which you didn't do. One was a throwing thing."
"Softball. I took second."
"I thought you got a blue ribbon."
"I did in the relay."
Schulman was now holding his head, tapping his tablet with a pencil.
Then Ethel Powell began a narrative of Greg's unhappiness when his grandfather died, and of falling into bad company and running away with Archie. And of her trip to Florida to bring him home, and of a later trip to Colorado when he was arrested there. And of her mafiy pilgrimages to visit him.
"I went first to Cheyenne, Wyoming, and later to Englewood, Colorado, to a reformatory. Another time to Washington, D. C., to another kind of reformatory."
"Did you come back to visit me a second time there?"
"Yes, for three weeks. I also saw you in Kansas, in Leavenworth. I had just gotten out of the hospital. I had an emergency appendicitis. You told me you had attempted suicide more than once."
"Just a minute, I am going to object ..."
"Was I in bed receiving blood transfusions?"
"Yes you were."
"After that did you visit me in Atlanta, Georgia?"
"I was refused permission. Then I received a letter from you at the medical center in Springfield, Missouri."
"Later when I moved to Los Angeles, Mrs. Powell, did you see very much of me?"
"No, I didn't."
"Why?"
"You were in the company of a colored man named Pinky. We thought it was like a homosexual."
"After I came out of Vacaville in May 1962, did you come to know Maxine?"
"Yes."
"Mrs. Powell, you told me that you were president of a Toastmis- tress Club?"
"Yes I was."
Schulman started to his feet, thought better of it, and sat back down.
"Mrs. Powell, what is your health at present?"
"I am under the care of a doctor for a heart condition. I just received permission to go back to college this fall. I've been out of college for a year."
Greg smiled then and looked at her. He was proud of his mother. "Thank you. That is all," he said.
"I have no questions," said Schulman.
"You may step down," said the judge.
Next, Greg called an administrator of the California Adult Authority to show that, if not sentenced to death, he would be safely locked in prison the rest of his life. The witness was however cross- examined intensively by Marshall Schulman, who once again had done his homework.
"Is it fair to state," said Schulman, "that sixty-three percent of those individuals sentenced to prison for life on first-degree murder were released after serving somewhere between seven to nine years?"
"Your Honor, I would object," said Greg.
"Do you have any table of individuals who have murdered a police officer and been committed on a death sentence?" asked Schulman.
"No sir, we do not. We don't have enough such cases to compile a table. We had one such case recently that we investigated."
"What were the results on that investigation?"
"He was granted a further commutation to life with possibility of parole. He has subsequently been paroled."
Marshall Schulman smiled slightly. He had no further questions of consequence.
Then a parade of family witnesses took the stand, a service- station owner in Oceanside for whom Greg once worked, his off- again on-again brother-in-law who at that time was between marriages to Greg's sister, finally Robert Powell, his father.
"Mr. Powell what is your occupation?" asked Greg.
"I'm a schoolteacher," said the tired-looking man with the long muscular neck and the handsome friendly face.
"How long have you been a schoolteacher?"
"About seventeen years."
"How long did it take you to get your degree, sir?"
"About fifteen and a half years."
Then Robert Powell told of playing music in one-night stands during the Depression, and of his wife's poor health.
"Mr. Powell, during the time you knew me as a child did you spend a lot of time with me?"
Robert Powell replied, "I ... I spent available time with you . . . that is, what I'm trying to say is ... it was limited. My time."
"Would you say I was a sensitive child?"
"Very much so."
"Neurotic, to put it mildly?"
"Yes."
"Mr. iPowell, starting with my arrival home from Vacaville last year, did I seem changed from the child you knew in those early years?"
The tired grieving man smiled a little and said, "Oh yes. You used to feel real cut down because you couldn't play music as well as your dad. But when you came back from Vacaville, why, your brother Doug and you and I had little jam sessions at the house. We sang trios. We worked out some real fine material and there was nothing but harmony in both senses of the word, when you first came home." And Robert Powell dropped his eyes a
nd swallowed.
"Dad, I hate to ask these questions, but I've got to. You have four children. Two boys, two girls, and I'm the oldest?"
"Yes."
"Starting with Sharon, has she been divorced?"
"Yes."
"Going to Lei Lani. Has she been divorced?"
"Yes."
"Has your youngest son, Douglas, been in trouble? Was he discharged from the army because of trouble?"
"Yes."
"Why have four children all had trouble adjusting to society? Do you know the answer, Mr. Powell?"
"No," said Robert Powell, and the muscles of the long neck rolled as he gulped again.
"Mr. Powell, do you personally think I can write well?"
"Yes I do," said the father. "The idea content is excellent."
"Mr. Powell, I asked your wife and I will ask you also, why do you want me to live?"
"All right now, I am going to have to object to that as immaterial," said Schulman, shaking his head. "It appears difficult enough on this witness ..."
"Mr. Powell, do you believe two wrongs make a right?" asked Greg quickly.
"Objected to . . ."
"No," answered Robert Powell.
"That is all, your Honor," said Greg.
When the lawyer of Jimmy Smith called Jimmy's Nana as a witness to his nonviolent personality, Marshall Schulman set out to prove that Jimmy Smith did have a violent moment in his life, as a teenager, when he pulled a knife on a truant officer. Jimmy's Nana took the stand.
"Mrs. Edwards, do you remember that on March 7th, 1947, Jimmy was picked up for truant at a theater at 539 South Broad-
"I don't know anything about dates, Mr. Schulman," said the crippled old woman. "I don't remember very well. I don't know nothin about dates."
During the old woman's testimony, there was a disturbance at counsel table. Jimmy Smith was babbling incoherently to no one in particular. "It ain't right. My Nana never had nothin! My Nana never so much as said a swear word, or took a drink, or went to a dance in her whole life!"
the Onion Field (1973) Page 32
