A Family Business (36 page)

Even if one assumed, Jones continued, that the entry into Oscar’s was illegal—and
he
as the judge did not think that it was—that did not in itself establish a link between what happened and Dame’s decision to talk to investigators. David had twice given his consent for Wentworth and the others to enter Oscar’s, Jones reminded Diamond. “Therefore,” Jones explained, “this court concludes the several consents were not obtained by coercion, nor were they products of duress or results of submission to assertions of authority. Instead, they were freely and voluntarily given.”

Although that seemed to settle the issue, Jones was just getting warmed up. While the fruit of the poisoned tree concept is a valid legal principle, Jones expounded, the Dame case was an exception, one of only three such cases he had seen in his twelve years on the bench.

“I doubt that I could script a factual setting more compelling than the application of this well-recognized yet unique exception than that which has been proved here,” he commented. “[David] had put in operation this unpermitted body-burning operation in complete violation…of virtually every regulation which might control or regulate the enterprise. These repeated complaints caused fire and air quality enforcement officers to react just as…anyone would have reasonably expected of them.”

In addition, Jones said, the Cemetery Board’s investigator, Westall, was not “idly casting about,” blindly searching for violations. “He was on the trail of Mr. Sconce and for good reason, apparently.” David’s persistence in continuing to operate the illegal crematorium, Jones continued, would eventually have led to a search of Oscar’s under almost any circumstances. “I conclude from all these circumstances,” Jones declared, “that the illegal operation at Oscar’s Ceramics would have been inevitably discovered in the normal course of those investigations.”

Jones also made quick work of Diamond’s claims that David’s rights had been violated in his conversations with Edwards and Diaz. At the time he talked over the phone to Edwards, which was three days before he went into Judge Mitchell’s court expecting to be released almost immediately on $5000 bond, David had not been charged with any of the crimes alluded to by either man during the telephone discussion, therefore his right to counsel “had not yet attached.” In other words, at that time and in those circumstances he
had
no right to a lawyer. And as far as his jailhouse interview with Diaz, Jones pointed out that it was David, not the detective, who had asked for the meeting. “This communication occurred upon the instigation and request of the defendant and was not in any manner the product of law enforcement suggestion,” Jones said.

There was, however, one point the judge failed to rule upon immediately. And that was the assertion involving David’s interview with Detective Hopkins. In Jones’s mind, the defense’s claim in that regard was of little value anyway. “I feel no sense of immediacy…in making a decision as to that conversation,” Jones said dryly, “particularly in light of my impression that there’s very little within that conversation that will ultimately be considered profitable…by the [prosecution] and, more importantly, because I don’t feel that a delayed ruling on this issue is going to affect the ability of either party to prepare for trial.” Translation: Enough’s enough. See you in court!

Giss’s spirits soared. He had, he assumed, cleared the last major hurdle leading to David’s long-awaited trial on charges that he murdered Tim Waters. With Diamond’s latest obstacle removed from the scene, Giss felt that he and De Noce could then concentrate on finally getting into court and working for David’s conviction.

Not that he didn’t have problems with his case, he admitted to himself. During the trial there would still be two major issues that he considered weak spots in the case.

Foremost—and this was a situation he readily conceded was a problem, a condition he called the prosecution’s Achilles heel—was the fact that investigators had never been able to prove that David or anyone hired by him had met with Tim Waters the evening of Friday, April 5. For jurors to be convinced that the two had indeed gotten together at a restaurant where David (or one of his hired guns) would have been able to slip the oleander extract into something that Tim would have consumed—a drink, a salad, whatever—prosecution witnesses, especially Galambos and Edwards, would have to be especially persuasive. Their persuasiveness, in turn, would depend largely on how well the prosecution had presented its case up to that point. Giss would have to lay such a well-documented foundation for a Tim/David meeting that jurors would have to conclude that it probably occurred even if could not be substantiated by witnesses.

Working in the prosecution’s favor, while not nearly as incriminating as testimony of a single witness, was the fact that three-plus hours are apparently missing out of Tim’s life late in the afternoon and evening of Good Friday. One of his employees, Dawn Stickler, testified that she and Tim closed up the Alpha Society office at about five
P
.
M
. that day. Investigators were not able to find
anyone
who saw Tim again after that until he met his friend, Scott Sorrentino, at a freeway off-ramp sometime after eight
P
.
M
.

However, Giss was confident that he did not necessarily
have
to physically link Tim and David on that fateful Good Friday to convince a jury that David was a murderer. David had already pleaded guilty to paying his stooges to beat up Tim, so whether David was actually the one who slipped something into Tim’s food or drink, or whether he paid some as yet unidentified person to do it, was immaterial. Paying someone else to commit a murder would not reduce David’s culpability.

The second major obstacle facing the prosecution, which had been addressed publicly by no one up to that point, was more subtle. During the Pasadena preliminary hearing as well as the one at Ventura, a number of prosecution witnesses told how David had been anxious to kill his grandparents. George Bristol had been particularly vocal on that point, explaining in detail how David had been pressuring him to come up with a poison that he could use. But no one, neither prosecution nor defense, had publicly asked why David felt he needed
another
poison if he had already used oleander successfully against Tim Waters.

There also was a possibility, albeit an unlikely one, that Giss had a ready answer to that but had not revealed it for any of a number of reasons. A trial is not just a matter of opposing sides presenting everything they know and leaving the jury to sort it out. There is a great deal of strategy involved, not only concerning what evidence will be presented, but how, by whom, and under what circumstances. Cross-examination, for example, also is a vital part of a trial, and if one side can destroy another’s witnesses, that sometimes can be as effective as having a well-positioned witness of your own.

Another important factor, one that old hands like Giss and Diamond were well aware of, is that a case seldom is won entirely in the courtroom. There is a lot of psychology involved in preparing a case for trial, not the least of which revolves around the media. In this case, at various stages of its development, both the prosecution and the defense had been relatively accessible to reporters.

But of all the stories written about the case, one of the more interesting ones appeared in the San Diego
Union
on November 25, 1990. The story, by reporter Norma Meyer, was published after the preliminary hearing in Judge Hunter’s court but it predated the two motion hearings before Judge Jones. The article provided a comprehensive summary of the case up to that point, but what it did best of all was afford a sounding board for Giss and Laurieanne to exchange insults, which all was part of the psychological battle that was raging backstage.

Giss bitingly referred to Laurieanne, fully aware of how sensitive David was to any comments about his mother, as “Tammy Faye Sconce,” ridiculing her penchant for makeup. He also labeled her a “fraud,” and claimed that she was the one who ultimately was responsible for the way David had turned out. “The son is like the parents—an incredible con,” Giss said. “That apple fell real close to the tree.”

By making these comments, Giss was playing a mind game with the defendant, perhaps hoping he could goad him into making a fatal mistake, or at the very least, putting him even more on the defensive.

But Laurieanne proved she had teeth as well. Not to be outdone in the slur swap, Laurieanne accused Giss of being a publicity hound “who wanted to have himself another Charlie Manson case.” Manson also had been prosecuted by the L.A. district attorney’s office, and the man who convicted him, Vincent Bugliosi, went on to literary fame with
Helter Skelter
, his book about the case. As her final word, Laurieanne told Meyer that even the name of her son’s prosecutor was abhorrent. “Giss rhymes with hiss,” she spat, “like a snake.”

If the prosecution seemed to have its problems on the eve of trial, so did the defense. The most important one from Diamond’s point of view was that both Galambos and Edwards—especially Edwards—were strong witnesses, each capable of convincing a jury that David had indeed claimed he had murdered Tim, and that his statements were not idle boasts.

Backing up the statements from the two was the taped conversation David had with Edwards while the former was in Arizona and the latter in investigator Loeb’s office. The most incriminating part was when Edwards had mentioned Tim’s death and how he and Galambos were afraid police might try to tie them in to the mysterious demise. When Edwards said that, David had responded: “Well, you weren’t around with that.” As obscure as it was, Diamond was certain the prosecution would make a big deal out of it at trial, claiming it was, in essence, a confession of his knowledge of what happened that was firmly on the record. Also, there was the testimony from Dame, which directly linked David to oleander and, more importantly, seemed to corroborate Edwards’s claims about David’s familiarity with
The Poor Man’s James Bond
. Plus, there had been Dr. Rieders’s testimony before Judge Hunter about the oleander derivative he claimed to have found in Tim’s system.

From what David had said to Diaz and Hopkins during their interviews, and by the types of questions Diamond asked some of the prosecution’s witnesses during the Ventura preliminary hearing, David’s defense seemed to be pointed toward a contention that a “mystery man” murdered Tim, maybe a homosexual lover, if Diamond could introduce the possibility (as he had not been able to do during the preliminary hearing) that Tim Waters had been gay. But that would be a difficult position to maintain at trial, particularly without witnesses of Edwards’s quality to offer substantiation.

One of the big unanswered questions was whether David would take the stand. Up to that point, Diamond had exerted a surprising amount of control over his client, successfully persuading him that it was in his best interest not to submit himself to a prosecutor’s cross-examination. Whether he would be able to continue to do so if David thought his life hung in the balance was something else. Also, David’s personal animosity toward Giss, spurred no doubt by Giss’s comments about his parents, particularly his mother, might provoke David enough to
demand
that he be allowed to testify.

That, of course, would please Giss immensely. Deep in his heart, the prosecutor did not think Diamond would be able to stop his client from taking the stand. For one thing, Giss felt that David was too secure in his belief that he could talk his way out of any situation to agree to be muzzled yet again. In addition, there was the fact that David had a quick temper, and Giss was sure he had gotten to him with his remarks about Jerry and Laurieanne. David would come into the courtroom steaming and spoiling for a fight. At least Giss hoped that would be the case. If there was anything he wanted from the trial more than a conviction, it was the opportunity to go head to head with David.

But these scenarios, carefully worked out and refined by the opposing lawyers, would prove to be worthless. Virtually on the eve of trial a series of events occurred that sent Giss and De Noce reeling. Diamond, who had never quit even when it looked as though he were facing impossible odds, came up with a masterful piece of evidence that effectively demolished the prosecution’s arguments. Ironically, it came from Giss’s blindside, a direction from which he thought he was invulnerable: the scientific foundation for his entire case. On March 20, 1991—to the surprise of everyone who had been following the saga, even Giss himself—the prosecution’s immediate plan to try David for murdering Tim totally collapsed.

The basis for the prosecutions’ defeat and the defense’s victory was a technical report written in scientific gobbledygook. Translated, what it said was that Tim almost certainly had
not
been poisoned with oleander, which is what Diamond had contended all along. But this time the contention had legs. Strong ones. Marathon-winning ones.

33

A lot of people think the law is dull and predictable, that surprises in a courtroom occur only during episodes of Perry Mason. They are wrong. A criminal trial or a proceeding leading up to a trial is a touch-and-go process in which anything can, and frequently does, happen. David’s case was a prime example.