A Family Business (31 page)

Pending:

• Removal of body parts (five counts)
  
• Conspiracy to mutilate human remains
  
• Multiple cremation of human remains (two counts)
  
• Commingling of human remains (two counts)
  
• Failure to inter human remains within a reasonable time
  
• Misappropriation of income from preneed trust accounts
  
• Embezzlement
  
• Failure to include required language in trust accounts
  
• Failure to deposit trust funds within thirty days (two counts)
  
• Forgery (three counts)
  

Jerry

Dismissed:

• Conspiracy to mutilate human remains
  
• Removal of body parts (twenty-six counts)
  
• Mutilation of human remains
  
• Conspiracy to bribe a witness and solicitation of perjury
  
• Falsifying a death certificate
  
• Embezzlement
  

Pending:

• Conspiracy to mutilate human remains
  
• Multiple cremation of human remains (two counts)
  
• Commingling of human remains (two counts)
  
• Failure to inter human remains within a reasonable time
  
• Misappropriation of income from preneed trust accounts
  
• Failure to include required language in trust accounts
  

To say that prosecutors were displeased with Smerling’s disposition of the case would be a vast understatement. But they could kick wastebaskets until their toes were nubs; there was nothing they could do immediately to rectify what they considered a gross injustice. They could appeal, of course, which they did. As soon as they could get the papers together, they asked a higher court to make Smerling reinstate the charges that he had thrown out, except the embezzlement charge against Jerry and two falsification of death certificate charges which the prosecution conceded it could not prove. But that amounted to little more than an automatic reaction. Even if the higher court decided that Smerling erred in tossing out the accusations, the most it could do was order Smerling to reconsider; the appeals court not tell Smerling what kind of sentence to impose.

The fact was, there was nothing the prosecutors could do about the lenient five-year term David had drawn, or about Smerling’s offer to grant probation on the remaining counts. The severity of a sentence—except where it is otherwise mandated, such as in the conspiracy-to-murder charge—was entirely within a judge’s discretion.

There was, however, one other action they could take which would make them feel better: They could step up the investigation of Tim Waters’s death. As circumstantial as the case was shaping up be, it was better than nothing. They felt it was important not to let David think he had skated away.

PART FIVE

Accused of Murder

28

In actuality, the decision to steam ahead with plans to prosecute David for Tim’s murder was a relatively easy one for the district attorney’s office to make. Translating the decision from move to motion, however, proved more than a little troublesome; there was a lot of red tape that had to be waded through before the determination could become reality.

For one thing, if David were to be tried for Tim’s poisoning, it would have to be in Ventura County rather than Los Angeles County. Under state law, jurisdiction rests with the county where the crime was committed. But since there was no evidence in this case to show where Tim was administered the poison, jurisdiction would be determined by where he died. That was in Ventura County. But it was the L.A. D.A. who was determined to prosecute, not the Ventura D.A.

In the end, the two offices worked out a compromise. The Ventura DA. would bring the charges, and the prosecution ultimately would be shared by the two counties.

At the time, those obstacles were viewed as surmountable, and in the end they were, although the process of sending an L.A. DDA to try a case in Ventura precipitated a significant threat to David’s timely prosecution. But that problem would not surface for another year and a half. The immediate difficulties were deciding if murder charges were to be filed against David, and who—the person or persons, as opposed to which county—would prosecute the case. But first there had to be a case to prosecute.

On February 9, 1990, seven months after he had dared Hopkins to charge him, David was formally accused of poisoning Tim Waters. Two months later, on April 16, five years and eight days after Tim’s death, David pleaded not guilty to the charge.

If nothing else, the filing of the charge ruined any hope that David would be free any time soon, not even when he finished serving Smerling’s sentence in eight months time. It was unlikely that a court, knowing that David was accused of murder, was going to let him go until the accusation had been disposed of.

In preparation for his expected trial, David was transferred from a state-run prison to the Ventura jail, which was run by the county, to await his expected trial. He had no sooner been transferred to Ventura than the warden called the prosecutor and asked if he had any idea about David’s occupational capabilities, that is, if he had any suggestions about where David might be put to work. Ever anxious for the opportunity to make a quip, the prosecutor fired back: “Just don’t put him in the kitchen.”

The filing of the charge also propelled David into a fresh round of legal activity. To begin with, he had to find a lawyer. Although he was offered help from the public defender’s office, David insisted that he be allowed to hire Roger Diamond, who had represented him at the Pasadena preliminary hearing. In a complicated series of court proceedings that bounced through five courts, including the court of appeal, Diamond, whose motto is “I never give up,” finally won.

Diamond had not been reappointed as David’s lawyer when the Pasadena proceedings moved from municipal court to superior court, because he also represented Randy Welty—and that set the stage for a possible conflict of interest. In Ventura, however, the issue was different. The Ventura courts took the position that state law mandated that an appointed attorney come from either the public defender’s office or from one of the backup attorneys on contract to work as public defenders. Diamond successfully argued that the law did not apply in Ventura because it was not within the population boundaries set out by the state law. Furthermore, because of his prior history in the case, he was more qualified to represent David than a public defender, who might take months just to sift through the huge stack of documents and transcripts from Pasadena.

Diamond began fighting the battle to represent David in February 1990, almost as soon as the murder charge was filed. He won the final round when he was appointed on August 20, six months down the road.

A determined workaholic, Diamond was filing motions in the case within four days of his appointment and was ready to appear in court in October when a preliminary hearing was set on the murder charge. Throughout his twenty-three-year career as a lawyer, many of his clients, like Welty, had been persons connected with the adult entertainment business. Even while he was trying to win the right to represent David, he was fighting on behalf of the owners of five adult video arcades who were refused permits to operate in the town of Garden Grove, in Orange County. Simultaneously, he also was waging a losing battle in Glendale, near Pasadena, on behalf of the owner of a similar business. Both of those cases, as well as David’s, had received a lot of local media attention, so Diamond’s name was not exactly unknown.

An unimposing man with brown, curly hair going gray around the temples and deep crow’s-feet around his eyes, Diamond looked more like a high school physics teacher, right down to his usually rumpled suits, than a champion of porn brokers. But rather than being the quiet retiring type, it seemed he often attached himself to high-profile causes. In fact, though sex shop owners took up a lot of Diamond’s time, he also has been active over the years in other well-publicized efforts. As president of a group called No Oil Inc., he helped lead a long, successful, headline-grabbing fight to keep the Occidental Petroleum Corp from drilling beneath Pacific Palisades, an exclusive Los Angeles beachside community where Diamond had his office at the time. Later, after the Sconce case was well under way, he moved to unostentatious quarters on Main Street in Santa Monica, only a block off the beach. Before becoming involved in the Occidental Petroleum fight, he was an attorney for the American Nonsmokers Rights Foundation and the Los Angeles branch of the American Lung Association. In that capacity, he became committed to supporting a controversial 1987 ordinance banning smoking in restaurants, stores, and public meeting areas in Beverly Hills. It was a case that garnered considerable national attention. However, except for David’s case in Pasadena and the porn cases in Garden Grove and Glendale, Diamond had no recent record of participation in controversial criminal trials. This particular lack of experience was expected to put him at a disadvantage when he went up against the team the district attorney’s office had chosen to prosecute the Tim Waters case.

Making up half of the prosecuting duo was Jim Rogan, who had taken over from Walt Lewis in Pasadena and who later inherited the Jerry and Laurieanne file after David copped his plea. It was Rogan who had become so outraged with Smerling over the way the judge had handled David’s case. Rogan had grown up on the streets of San Francisco’s rough Mission District, the son of an unwed mother who also was a convicted felon. He dropped out of high school in the ninth grade to help support his younger brothers and a sister, and never returned. Instead, he wrangled his way into a community college where he earned enough credits to get into the University of California at Berkeley. Working all the while at a series of low-paying jobs, he applied for admission—and was accepted—to the UCLA Law School, where he became a member of the Law Review. After graduating in 1983, he took a job as a litigator with a prestigious civil law firm, only to find that he was obsessively attracted to the criminal law side of the profession. Following his instincts, he quit his cushy post in 1985 to be a DDA. A slim, pale man with thinning light brown hair and a tentative smile, Rogan appeared mild and quiet until he got in the courtroom. As a DDA he was especially aggressive in prosecuting members of the L.A. street gangs, perhaps extracting a bit of punishment against the types who had made his childhood and adolescence miserable when he was struggling to keep his fragmented family together.

Forming the other half of the team—the lead prosecutor in the case—was Harvey Giss, who was as brash as Rogan was reserved. A hyperactive, sharp-tongued lawyer who keeps in trim by running four miles a day through the Malibu hills, Giss also graduated from the UCLA law school, but in 1964, nineteen years before Rogan.

After graduation he worked as a clerk for the chief justice of the Arizona Supreme Court for two years before deciding to go into private practice. Although he was making good money as an independent, he discovered his job was not giving him much of an adrenaline rush. In 1972, about the time Rogan dropped out of high school, Giss put his shingle in a trunk and signed on as a DDA. Between then and the time he took over David’s file seventeen years later, Giss had prosecuted more than a hundred felonies, including twenty-two murder cases. Only one of the murder defendants was acquitted. Four times Giss had sought the death penalty, and twice the jury went along.

He prosecuted the Bob’s Big Boy Killers—Franklin Freeman and Ricky Sanders—and the highly publicized case involving four men accused of kidnapping, robbing, and murdering UCLA sweethearts Michelle Boyd and Brian Harris. Each of those cases stretched over four years. The Freeman and Sanders case, which got its nickname because the defendants were accused of herding a group of restaurant employees and customers into a freezer and opening fire, killing four, was tried several times. In the end, both were convicted. Freeman was sentenced to life without parole, and Sanders got a death sentence. In the UCLA sweetheart case, Damon Redmond, Donald Bennett, and DeAndre Brown got life sentences, and the fourth man, Stanley Davis, was sentenced to death. In 1990, only a few weeks after murder charges were filed against David, Giss was named California’s Prosecutor of the Year.

If Diamond was intimidated by the records of the two prosecutors, however, he did not show it on October 1, 1990, when the three of them took their places in Courtroom 20 in the Ventura County Hall of Justice. The occasion was the opening of a preliminary hearing to determine if David should be brought to trial for Tim Waters’s death.

On the bench was Municipal Court Judge John Hunter, a blond, hulking man who had played basketball at Brigham Young University during his undergraduate days in the late fifties. After graduating from the University of Southern California Law School in 1963, he decided that he did not want to practice in Los Angeles. So he and two friends got into a car and started driving west, stopping wherever they could find a USC Law School grad who might encourage them to stay. When they got to Ventura, they popped in on District Attorney Woody Deem, who offered all three of them jobs. Hunter accepted on the spot; his two friends did not. Hunter worked as a prosecutor for four years before taking a job as a civil litigator. But when Governor Ronald Reagan offered him a judgeship in 1970, Hunter jumped at it.

As far as the philosophies of the judges involved in David’s case went, they seemed to flip from one extreme to the other. Where Smerling made no bones about his reluctance to sentence defendants to jail, Hunter was just as outspoken about his eagerness to put violators away. It was his belief, he told one reporter, that a jail sentence was the best way to get a criminal’s undivided attention. But as a municipal court judge, like Person in Pasadena, Hunter had no authority to rule on David’s guilt or innocence. His job, as Person’s had been, was to hear the prosecution’s evidence and determine if it was sufficient to make David accountable in superior court.