Anyone You Want Me to Be (29 page)

An uneasy quiet settled over the DA’s office as they waited for September. What other legal tactics might the defendant try to employ before late summer? Were any more delays possible? Whatever else they did, all the employees of the Lenexa Police Department and the DA’s office had been told and told again not to say anything to the media or anyone else that could jeopardize the start of the trial. The time to talk was when you took the witness stand.

Out in rural Johnson County, in the southern part of this jurisdiction that had not yet been overrun by new construction, the beauties of spring had come to the land. It was covered with freshly cut rows of hay and a delicately colored purple grass called henbit and liver-and-white longhorn cattle grazing in fenced pastures. Hawks flew overhead, landing on wooden posts and constantly searching the ground for prey. Fishermen unpacked their poles and tackle, which had been in storage over the long winter, then drove down to try their luck on the Marais des Cygnes River. When the summer had turned beastly hot in August and early September, and when the webworms had taken hold of the elms in Linn County, spinning their deadly white cocoons and choking the life out of the trees, John Robinson was at last going to trial for being a serial killer. The waiting was over—or was it?

A
s the summer waned and jury selection approached, the defense played their biggest strategic card in a year. By now, questionnaires had already been mailed out to the more than a thousand potential jurors in this case (the questionnaires held ninety-four inquiries, including one seeking their views on the death penalty). Stating that they were overwhelmed by the amount of evidence they had to digest and the number of witnesses they still needed to interview—not to mention the entangled computer issues the case had generated—Robinson’s lawyers asked for yet another delay. They had, after all, only been in charge of the case for the past several months and had never dealt with anything of this nature. Without more time to prepare, the attorneys wrote in their motion, they could not fulfill their “minimum constitutional obligation” to their defendant. This was not, they argued, just another murder trial or even just another capital murder trial.

“The state of Kansas,” they claimed, “has never seen a prosecution of this scale and magnitude.”

For months the district attorney’s office had been fearful of just this legal maneuver. In response to the defense request, Morrison and Sara Welch now filed their own papers on why the trial should go forward as scheduled. Judge Anderson had to decide if these circumstances were “extraordinary” or “catastrophic” enough to justify another postponement. Or were they just another example of Robinson trying to bend the legal system and everyone involved in it to his will? His lawyers didn’t think so.

Besides Berrigan and O’Brien, two other attorneys were now helping to represent Robinson: Jason Billam and Joseph Luby. These four men had in turn hired six legal interns and paralegals to catalog and analyze the evidentiary material, plus the thousands of photographs and hours of videotapes, audio tapes, and CD-ROMs. In asking for another postponement, the defense lawyers wrote that they had devoted 1,474 hours and their support staff an additional 2,812 hours to the case.

“Nevertheless,” they contended, “counsel’s best guess is that we have reviewed and absorbed less than 25 percent of the material that will be relevant to the trial of this case.”

They also claimed that the prosecutors had not provided them with the addresses and phone numbers for about 90 percent of the possible 649 state witnesses. Trial preparation, they wrote, would be just about complete by now if the DA’s office had given them “accurate, fully informative lists of witnesses,” so they could have interviewed these individuals in a timely manner. According to their position, that had not happened.

“Without such a list, preparation by September 16, 2002, is impossible,” their motion said.

This was the most serious challenge Judge Anderson had yet faced. Berrigan and O’Brien were highly competent and respected defense attorneys with excellent reputations throughout the Kansas City area. They were experts in capital cases, which was why the judge had appointed them to this one. If they made a request of this urgency and gravity, it had to be thoroughly considered. On the other side of the legal aisle, the Johnson County DA’s office had set aside about two months in the fall of 2002 to present their case. It had told witnesses to be ready to come to Olathe to deliver their testimony. Paul Morrison was in no mood to upset his plans or those of his coworkers. He was dealing with an accused serial killer whose life had been defined by the inability of anyone to set boundaries on his behavior. For almost four decades Robinson had done precisely what he’d wanted to do, and to an astonishing degree he’d gotten away with his activities. Now he was testing the boundaries of American jurisprudence and those who worked inside the Johnson County Courthouse. Now he would learn if he could control this game, as he’d controlled so many others, or was someone else in charge of the situation?

On the afternoon of July 25, the judge listened to the lawyers argue for four hours, carefully weighing both points of view before deciding that the defense team had not been crippled by having had roughly a full year to prepare for the trial. The system had provided Robinson with every opportunity to examine the evidence and talk to potential witnesses. His attorneys were highly qualified and experienced. The case would go forward as scheduled—with no more delays foreseen.

On August 31, two weeks before the start of jury selection, the defense team took its boldest step to date: Robinson’s lawyers threatened to quit if the judge did not order another postponement. Claiming they could not adequately represent their client, they insisted that they “cannot and will not” be ready for a September 16 trial; unless they were given another eight months to prepare, they intended to walk. In their motion, Robinson’s attorneys stated that the court had been “insensitive and unresponsive” to their “earnest pleas” for more time. If they had to begin jury selection on September 16, this would present them with a terrible legal dilemma, “including whether it is moral to participate in a trial where counsel’s mere presence would only serve to sanitize the execution of John Robinson.”

They had not, they contended, had the opportunity to conduct independent tests of hair, fingerprints, and DNA evidence, which they believed included blood and hair that belonged to someone other than Robinson or those he’d allegedly killed. Finally, they indicated that the defendant might be showing signs of insanity, as he seemed not to have a “rational understanding of the evidence and charges against him.” They needed to explore the possibility of mental illness in Robinson, and this would take time as well. In early September, Dorothy Lewis, a professor of psychiatry at the New York University School of Medicine and a clinical professor at the Yale University Child Study Center, examined Robinson twice. Dr. Lewis had conducted evaluations of violent adults and juveniles since 1971, focusing on the interaction of psychiatric disorders, neurologic dysfunction, and environmental stressors as the cause of recurring violent behaviors. She was also the director of the Dissociative Disorders Clinic at Bellevue Hospital in New York City.

After speaking with Robinson and some members of his immediate family, she also reviewed the available information on his mental and medical history.

In a motion filed by the defense and written by Jason Billam and Joseph Luby, they said, “Dr. Lewis indicates that Mr. Robinson has a history of severe physical and emotional abuse throughout child hood, resulting in episodic dissociative states. History obtained independently of Mr. Robinson reflects that as many as four generations of family members may have suffered from such psychiatric illness similar to his. Dr. Lewis suspects that Mr. Robinson may suffer from bipolar mood disorder with dissociative features, although substantial additional testing and investigation is necessary to reach a final conclusion.”

Based on Dr. Lewis’s diagnosis, this motion said, “We have stumbled across several possible indicia of mental disease, including dissociation, emotional liability, and depression. Mr. Robinson lacks a rational understanding of the evidence and charges against him and has been unable to assist in his defense in any meaningful way. Medical records reflect that in 1987 Mr. Robinson suffered a stroke that left him temporarily disabled. MRI films made in connection with that stroke reveal abnormalities in the basal ganglia of Mr. Robinson’s brain.” (This diagnosis did not address the issue that Robinson was suspected of killing at least two, if not more, women prior to the stroke.)

Because of all these factors, Berrigan and O’Brien went even further in their August 31 motion for a continuance. They suggested that when they’d been appointed by the court to help the defendant’s inexperienced defense team, back in the summer of 2001, they’d been misled.

“Had we known at that time how events would subsequently unfold,” the attorneys said when asking for more preparation time, “the court would have received a firm, resolute and resounding NO! in response to its request.”

With this motion, the defense had thrown down a legal gauntlet. Fundamental questions of due process had been raised. Had the defendant been treated fairly or hadn’t he? Had the prosecutors acted appropriately toward the defense? Had Robinson’s lawyers had enough time to prepare their case? Or was this just a stalling tactic? No one knew how any of this would be resolved, and all of it was happening at several minutes past the eleventh hour. Witnesses were making plans to come to the Olathe courthouse and testify. Robinson may have been mentally impaired, as his defense implied, but he appeared to be using whatever brainpower he had to slow down the process that could end in his conviction and execution.

Perhaps buried inside his lawyers’ contention that the defense was not ready for jury selection was Robinson’s view of himself as a victim. He was the one being dealt with unfairly, after the state of Kansas had provided him with highly qualified death-penalty counsel for a year at no cost. He was the one who wasn’t ready for trial after another year had passed and the court had given him two more experienced lawyers to argue his case. He was the one who could not confront what lay ahead in the courtroom, where a procession of witnesses were going to take the stand, swear an oath to tell the truth, and lay out what Robinson had done over the past fifteen to twenty years. He was about to be exposed to the world and, more important, to twelve jurors.

On the afternoon of September 5, eleven days before jury selection would begin, Judge Anderson ruled that there would be no delay and ordered Robinson’s lawyers to stay put. The case had teetered on the brink of chaos, but now it rumbled forward once again.

“We will have our trial on September 16,” Judge Anderson said in his ruling, and he meant it.

Five days before the proceedings were to get under way at the Olathe courthouse, the defense lawyers filed yet another motion, stating that all of the roughly one thousand prospective jurors should be disqualified because they were already prejudiced against their client. The judge should recognize this and start the process over, sending out another thousand questionnaires to another thousand people. Months earlier, Judge Anderson had ruled against shifting the venue of the trial, even though it had generated enormous local publicity. He wasn’t a man who lightly changed his rulings. On September 12, he patiently listened to the defense argument before making his final decision. The trial was set to begin and nothing was going to stop it. This coming Monday morning, the first one hundred or so of the potential jurors would be questioned by both sides, so everyone had better be prepared.

On September 16, nearly 850 days after Robinson’s arrest, jury selection commenced. The largest criminal investigation in Johnson County history was about to be used in the biggest criminal prosecution ever undertaken in Kansas. Never before had one thousand jurors been called for prospective duty. Never before had Olathe—or the state—seen anything of this legal magnitude.

“The extraordinary allegations in this case,” wrote the defense lawyers in one of their motions, “are unprecedented in Kansas history in the nature of the charges, the technical nature of the evidence, the span of time covered in the allegations, the extent of media coverage, and the volume of evidence generated by multiple federal, state and local jurisdictions that committed massive and unprecedented resources in the investigation of this case.”

The prosecutors had quietly waited for this moment for more than twenty-seven months.

I
t had been one of the hottest and driest Kansas summers on record. By late September crops stood burnt in the fields, trees were dying alongside the roads, and cattle had been sent to market early for lack of food to fatten them up. Temperatures were still crowding a hundred degrees each day and the drought had broken open crevices in the earth. No relief was forecast. One morning, as prospective jurors rode to the Olathe courthouse for questioning, they could have tuned in a story on National Public Radio stating that in 2000 one in five Americans between the ages of twelve and seventeen had had a bad sexual encounter on the Internet. There were estimates that as many as fifty thousand people logged on to the Net on any given day looking to make illicit contact with a child or trying to sell pornographic images of youngsters.

After the potential jurors entered Judge Anderson’s courtroom, they were questioned rigorously by both sides and told what to expect if they were selected. They heard about sadomasochism and other sexual games being played both on-line and off. They were asked if they could listen impartially to testimony about graphic sex and violence. Some said they could not and were dismissed. A few hinted that doing this might make them sick, but they were willing to try.

Jury selection was supposed to take five days. Those five stretched into ten and then into fifteen. The trial would have been daunting enough for most jurors if it had only centered on S&M, but the two capital charges made it much more demanding. Many prospective jurors were uncomfortable with having to decide life or death questions. Some could not put aside their feelings about this issue, and they were sent home. Over those fifteen days, nearly five hundred men and women were brought into the courtroom in small groups, but less than one out of three people made the first cut. Later on, several expressed great relief that they had not had to serve on this jury.

During the selection process, Patrick Berrigan, a big-shouldered Irishman with a mass of brown hair and a friendly gleam in his eye, showed himself to be intelligent and charming. He bantered easily with everyone and seemed humbled by the task in front of him. He moved gracefully through a near impossible job. It would have been hard to imagine Robinson ending up with better counsel. On the other side of the courtroom, Paul Morrison and Sara Welch were all business and seemed to embody inexhaustible determination and patience. They stared out from their table with the absolute focus of soldiers fighting in a trench. They’d come this far and nothing would deter them now. Morrison had hoped to call his first witness on September 23 and then September 30, but both schedules were pushed back. Finally, on Friday, October 4, twelve jurors (seven women and five men, all of them white) and five alternates were chosen.

Just before this happened and the trial was set to open the following Monday morning, Sean O’Brien made another plea for a delay:

“We shouldn’t be trying this case with this panel in this county at this time. Frankly, Your Honor, we’re not ready to go.”

The judge disagreed. He too had come this far with this cast of characters and legal issues, and he was committed to forging ahead.

Throughout the jury selection, Robinson had sat quietly beside his lawyers, looking something like a ghost. He was extremely pale, wore a hearing aid, and had lost weight and more of his hair. He looked much older than he had two years earlier. From his blustery persona he had been reduced to a subdued, shrunken figure who looked remarkably small and harmless in his tie and dark business suit. He never made eye contact with anyone except certain female witnesses and members of his family. His skin seemed to get paler as the trial wore on. Like everyone else in the courtroom he may have been cold. Judge Anderson had set the thermostat low to keep everybody awake and alert. He knew it would be a long haul.

If security had been tight for the preliminary hearing, it was tighter now. One could not read a newspaper in the hall leading to the courtroom for fear that a headlined story about the case might prejudice someone involved in the trial. Two armed guards stood outside the courtroom and would not allow anyone inside unless there was a break. Three more armed guards were inside at all times watching Robinson and monitoring other activities in the courtroom. The lawyers were under such a strict gag order that they could not even talk about their educational backgrounds with reporters. The judge, who had a flat, forceful voice and manner, was absolutely determined to keep shenanigans out of the trial. He almost succeeded.

On Monday, October 7, Paul Morrison presented his opening remarks in a surprisingly understated fashion. He did not go in for histrionics, and even this case would not push him in that direction. He spoke for only a few minutes, soberly laying out the charges against Robinson and quietly contending that Robinson had killed women for fifteen years. He lured them and murdered them, for money or bloodlust. All seven charges in this case were part of a long-standing common scheme or course of conduct that should result in a capital murder conviction.

In his presentation, Sean O’Brien went into far more detail, describing how his client was a serial philanderer who’d been unfaithful to his wife for decades. The attorney acknowledged that these things had hurt the Robinson family and that Nancy surveilled her husband while he was having an affair. O’Brien had a soft voice and gentle demeanor. He wore a graying beard and a thoughtful expression. He seemed interested in ideas and in searching for the intellectual or psychological truth behind John Robinson, which is an unusual thing in an attorney. Like Berrigan, O’Brien was also an excellent choice to defend the accused.

He tried to counter Morrison’s argument by suggesting not so much that his client was innocent as that the various charges were significantly different. They were not part of a common scheme or course of conduct, and should therefore not lead to a capital conviction. O’Brien’s opening remarks set the tone for the entire defense. They raised the possibility that others might have been involved in some of the crimes (how could one middle-aged man who was not in good shape have moved those barrels by himself?). O’Brien brought up a fingerprint found on a roll of duct tape in Robinson’s farm trailer—it did not belong to the defendant—and mentioned other DNA that could not be connected to him. From the beginning, O’Brien seemed to be walking a delicate legal tightrope: he didn’t appear to be asking the jury for an acquittal as much as he was preparing them not to take Robinson’s life.

The lawyer went into considerable detail about the BDSM lifestyle and spoke of the importance of fantasy in this subculture. He clearly did not want to tarnish the memory of any of the victims but raised the possibility that those delving into sexual games on or off the Internet were potentially courting danger. Both women and men were responsible for their actions in this realm. He pointed out that Izabela Lewicka had moved to Kansas City of her own free will to learn to be a dominatrix, and Suzette Trouten had surfed Gorean chat rooms looking for partners. Hadn’t Suzette come to Olathe after placing an ad on the Internet looking for a BDSM master and Robinson had answered it? Hadn’t Vickie Neufeld also consented to her relationship with the defendant? O’Brien went further, suggesting that social scientists believe that people who enjoy BDSM were sexually abused as children and associate love and affection with pain and bondage.

But the lawyer kept returning to Robinson’s wife, as he would throughout the trial. Just as she’d stood beside her husband during all of his troubles and taken loyalty to new levels, she would now be his main line of defense.

“Nancy Robinson,” O’Brien said, “has remained faithful to John and she will say that his main fault is his affairs. She will say that they had a normal and frequent sex life. She calls him a dreamer and he’d get euphoric about a new business opportunity. He’d carry these ideas too far and too fast. Nancy will criticize his philandering. She’d follow him around and gather evidence…. She found videos and hotel receipts at storage lockers and would kick him out of the house and would demand the affairs end. The kids would beg her to bring him back. She now says that John loves her and she loves him and he loves his children. He never missed a volleyball or soccer match and was very actively involved in his children’s lives.”

The first witness was Carol Trouten, who created the same impression as Nancy Robinson had at the preliminary hearing but for a different reason. She looked and sounded numb, especially when talking about her deceased daughter. Resignation permeated her voice and eyes. She’d been married to the same man three different times, had raised five children, and appeared to be someone who’d seen a great deal of life, yet nothing had prepared her for what she was doing now. Unlike Nancy, she wasn’t trying to save someone’s life but to understand the death of her youngest girl. She also did not seem to be the sort of person who would take much comfort in helping the state of Kansas execute the defendant.

Carol was soon followed by Lore Remington, who was anything but numb. She was obviously angry and for at least several reasons. One was that because of the drawn-out jury selection, she’d had to stay in Kansas City for a number of days waiting for the trial to begin. Second, until one day earlier, she’d not been aware that the police had taped a phone conversation she’d had with Robinson on May 25, 2000. When the prosecutors now played the tape in the courtroom, as she sat on the witness stand and lowered her head, Robinson went into detail about Lore placing electrodes on her rectum for sexual stimulation as part of her training as a submissive. He gave her other orders, and as she listened to them, she visibly stiffened with embarrassment.

She’d clearly not expected these details to be revealed in open court, in front of a roomful of strangers and reporters. She acted genuinely hurt at having her secrets exposed to the world. Like many others in the BDSM realm, she’d enjoyed a fantasy life in cyberspace, an escape from her daily existence as a wife and mother. Robinson had shattered the fantasy for her just as he had for Nancy and his children. He was no more faithful to the BDSM rules than he was to the rules of conventional marriage. Until now, for people like Lore, that realm of S&M had retained its own kind of honor or innocence, but Robinson had violated the customs and taken away the innocence of sexual role-playing; you could see the effects of this on Lore’s face. She was enraged at having to be on the stand.

The only thing that made her mood worse was that she did not finish testifying the first day of the trial and was supposed to stay over another night in Kansas City. To the young woman from Nova Scotia, this was intolerable. At the end of court that Monday afternoon, the judge asked her if she would be returning to the stand the following day. She defiantly said no—she was going back to Canada. The judge ordered the armed guards near Robinson to arrest Lore, and he set her bail at $25,000. The guards rushed the Canadian, grabbed her, and hustled her away. She spent the night across the street in the same jail that had been housing Robinson since June 2000. An evening behind bars did not improve her attitude. She seemed just as angry the next morning when she showed up in court and even more anxious to go home. After going back to Canada, she sent the Johnson County legal system an e-mail saying she hated them all.

One final thing had upset Lore on the stand. During her testimony, the prosecution had tried to introduce some e-mails that she’d sent to Suzette on the last known day of Suzette’s life. This evidence set off a hugely complex, dragged-out debate between the prosecutors and the defense over what is an original e-mail document and what is a second or third-generation duplicate. Can apparent originals be tampered with on-line by cutting or pasting in new information? Had that happened in this case? Should e-mails be treated as real evidence in a murder trial or as virtual evidence that can’t be relied upon?

The debate had been triggered because of a time discrepancy in one e-mail between when it had been sent and when it had been received, and this led the trial into a legal quagmire almost before it could get started. Throughout the first and second day of testimony, the lawyers constantly stopped the process to run up to the bench to argue these issues. They hotly discussed all this while standing just a few feet away from the jury. The judge was so concerned that jurors would hear the discussions and be influenced by them that he ordered a boom box brought into the courtroom to play music during the bench conferences. When nobody could decide what music to listen to, Judge Anderson told the jurors just to tune in some static to drown out the talk. They did and court was filled with a low, annoying buzz.

At the end of two days of sparring over e-mail, the judge had become exasperated with how the Internet was affecting the trial.

“This is a new area of the law,” he said. “The law lags behind technology quite a ways…. Technology creates evidentiary problems faster than the law can come up with evidentiary solutions…. Some of these issues are being treated in more novel fashion than they deserve.”

He was tired of the arguing over what was a first-generation e-mail and what is not. Perhaps because of this, the prosecution did not do much more in this area. Following Robinson’s arrest, the ninety-one thousand computer files that Mike Jacobson had so painstakingly sorted through and reduced to one thousand relevant files for the case saw almost no play in the courtroom.

Nearly every day a different group of high school students showed up to listen to testimony. They’d been sent there by their teachers to learn more about how the American government, and the legal system in particular, functioned during a criminal trial, but they were probably absorbing more about sexual behavior. From the dominant submissive advice that Robinson had given Lore Remington on the phone to the accounts of witnesses meeting others for S&M games in Gorean chat rooms, the trial’s underlying theme was how the Internet had connected people all over the nation and the world who were looking for ways to hook up with a new sex partner. The Net had opened up a fantasy world to millions.