If You Really Loved Me (48 page)

"What difference does it make where the money comes from?" Baruch snapped. His statement in the recusal motion summed up his argument: "The maneuvering by the District Attorney's Office to keep Deputy District Attorney Robinson on the case poignantly demonstrates how that office has lost all objectivity and impartiality in making critical decisions."

Jim Enright, chief deputy district attorney, said that evidence of the murder-for-hire plan would be introduced to support a death sentence verdict if the death penalty
was
sought. Since Robinson was one of the intended
victims,
he would be replaced in the trial at that point by Tom Borris.

Baruch contended that Robinson would already have won the jury's sympathy by then; it would be too late for them not to think of him as the victim-to-be. "No juror should be permitted to make a life-or-death judgment in a case where he knows and likes the victim."

What a complicated legal situation it had become. Enright suggested that, by the time the jurors reached a penalty phase—if they should find David Brown guilty in the first phase of the trial—an entire new jury could be selected. Enright announced flatly that there was no question of removing Robinson. Robinson had established rapport with the key witnesses, and he knew the case inside and out.

Baruch was scathing. "We have to go through all this just to keep Robinson on the case? I mean—is Jeoff Robinson the only talented prosecutor they have?"

Underlying all the argument, there was the fact that death penalty cases are excruciatingly difficult to prove. Most jurors-to-be are uneasy with the concept of finding a defendant guilty if it means he—or she—will die. The Brown case was especially difficult to prove; Newell and Robinson now believed that David Brown had not actually pulled the trigger the night his wife died. Although he was just as culpable—if not
more
culpable—as the actual shooter, under the law, would jurors grasp that?

Robinson had prosecuted a number of exacting homicide cases; he suspected this one was destined to be
the
most memorable, no matter what the verdict. His three chief witnesses were convicts—or exconvicts. Two convicted murderesses, and a born-again strong-arm drug dealer. The prosecutor had not exactly been tossed into a field of daisies.

The defendant,on the other hand, had, as yet, no criminal record and would be presented by the defense as a conscientious businessman who had saved lives with his computer skill. The newspapers always referred to David as an "executive."

Nothing was black-and-white, and an intelligent jury would know that. But this case was no sure thing. Robinson would never give up the prosecution of David Brown to a new team, nor would any of the brass at the Orange County DA's office.

Both Robinson and Newell had, quite literally, risked their lives on this one.

The defense and the prosecution wrangled sporadically as full summer came to Orange County. The actual trial seemed no closer than it ever had. The official date was August 2, 1989, but no one involved seemed to feel it would begin then. It seemed sometimes as if David Arnold Brown would forever be suspended in limbo in the county jail.

Then on July 29, 1989, Joel Baruch abruptly resigned as David Brown's attorney, citing a "conflict of interest" that he refused to discuss. Now, David had no lawyer of record. Any further proceedings were delayed until August 11. The motion to remove Jeoffrey Robinson as prosecutor was taken off the court calendar.

Verbal fisticuffs between attorneys continued when David Brown hired a new lawyer: Richard Schwartzberg. Baruch had one final go-round associated with the Brown case. He brought a civil lawsuit against Schwartzberg, claiming that David Brown's new attorney had slandered him in court. Baruch charged that Schwartzberg had told other attorneys in court that Baruch had taken part in the plot to have members of the Orange County prosecution team killed.

Schwartzberg, who had been joking, agreed to make a $500 donation to a charity benefiting cystic fibrosis to settle the suit. "It isn't worth the time and money to fight this," he explained. ". . . It was a way for both sides to save face. Schwartzberg also agreed to apologize to Baruch.

Schwartzberg, a brilliant legal mind, would soon be joined by Gary M. Pohlson, one of the three or four top defense attorneys in Orange County. Schwartzberg was a walking law library, and Pohlson had a warm, friendly style that jurors responded to. David Brown had now hired himself a dynamite defense team—which did not come cheap.

Indeed, it was necessary for Jay Newell to photocopy all the payoff money from the murder plot so that the
actual
money could be removed from evidence and given to Brown's new lawyers. The buried money apparently was not tapped, but David did have a safe in a storage shed in Orange. He gave the combination to a defense investigator. The lock would not click open. When a locksmith easily flicked the dial and the heavy door swung open, there was nothing inside.

The mystery of just how much money David Brown had access to remained unanswered.

The new guard for the defense took over. David Brown had had three lawyers, and now he had two more. His legal expenses were nudging up toward the half-million-dollar mark, according to educated guesses, and he had yet to go to trial.

He was a demanding client, calling Gary Pohlson at his office or at home with suggestions and complaints. Gary Pohlson was not yet forty, a stocky, muscular man with an open, Irish-looking face. He described himself to juries as "fat and bald," and he was neither, although there was an encroaching sparse spot on the top of his head. His suits were impeccably tailored, and his silk ties perfectly matched his socks. He could take no credit at all for that. His wife bought his clothes.

Gary Pohlson was a good man and looked it. He could represent Attila the Hun, and the jury and gallery would still like him for himself. In 1989, he tried six difficult cases, won four—and lost two. Pohlson usually "fell in love with" his client, finding the positive and bringing it out in court.

A career as a criminal defense attorney was far afield from Gary Pohlson's original goal. He attended St. John's Seminary in Camarillo, preparing for the priesthood. He met his wife-to-be's brother there, and eventually they both entered the secular world. Pohlson met his wife on a blind date—set up by her brother. They had been married eighteen years and had three children.

Pohlson was active in his church and community, an avid basketball player, and the consummate father. He played basketball with his boys every night and drove them sixty miles round trip three times a week so they could play basketball on one of the best junior teams in southern California. "I want to win," he admitted. "Everything. Even if I'm playing basketball with my kids in the backyard, I want to beat them!"

The David Brown trial would be Pohlson's sixth time up against Jeoff Robinson. He had lost the first five. Nevertheless, they were friends. Not close friends—but they often played basketball together over the noon hour with other attorneys and deputy DAs, and they socialized occasionally. They more than respected one another in the courtroom, which in no way precluded the possibility of explosive reactions in the trial to come.

With the change of attorneys, it was obvious that David Brown would not have his day in court until the spring of 1990. However, the DA's office announced that it would not seek the death penalty. Spokesmen refused to disclose the reasons for dropping the death penalty. But Bryan Brown, who headed the DA's Homicide Unit, said, "I'm not really comfortable going into the details, but we heard about a number of factors we weren't aware of. This caused us to reverse our decision to seek the death penalty against him."

Patti had just begun her sentence. Cinnamon remained in prison. It seemed a bleak twist that, had she not come forward with the truth, she might have hoped to win a parole at her 1989 winter review with the parole board. For now, she was placing her trust in Jay Newell and Jeoff Robinson. She waited.

She had been waiting for almost five years. She was no longer a child, and within six months, she would no longer be a teenager. All those years had been swallowed up by her sentence.

David Brown's spirits rose. Things seemed to be coming around his way again. He had a great team of attorneys. The battered phoenix stirred and began to come alive.

PART FOUR

The
Trial

40

T
here was a possibility that David Brown would face not one but two trials: the first on the murder charge in his fifth wife's death, and the second on the charges evolving from the plot to have the prosecution team and his
sixth
wife killed. But the murder trial came first. It was to begin February 20, 1990, in Superior Court judge Donald A. McCartin's courtroom—Department 30, on the eighth floor of the Orange County Courthouse.

The defense asked for a delay, which was granted. The new trial date was scheduled for March 28. David Brown asked for more time. If his request was not granted, he threatened smugly to fire his attorneys, confident that that would force another long wait before he faced a jury. But McCartin would have none of it. Brown could fire his attorneys if he chose, but he was not getting more than a month's delay; the Court was prepared to proceed on April 25.

And so it would.

But before Brown's trial started, there was another blighted spring on Ocean Breeze Drive. Back in the old neighborhood in Garden Grove, four days of violence again shocked neighbors who had been jolted five years earlier— almost five years to the day—by Linda Brown's murder. On March 30, 1990, the woman who lived in the house directly behind the former Brown residence—on Jane Drive— broke into television star Sharon Gless's home. Joni Leigh Penn, thirty, had been obsessed with Gless for four years. Armed with a .22 semiautomatic rifle, she barricaded herself in Gless's San Fernando Valley home and held off police for seven hours before a female police negotiator talked her out.

Four days later, Garden Grove firefighters responded to a fully involved fire in the house directly across the street from the house where Linda Brown died. It was the house with the fountain and the colored lights, and it had just been remodeled. When the fire was tapped, firefighters discovered the body of a middle-aged man in the master bedroom. Identified as that of the homeowner, the badly charred body proved to be that of a murder victim. And once again, yellow police ribbons surrounded a house on Ocean Breeze Drive.

The 1990 incidents had, of course, no connection to the Brown murder case, but the location of the homes of those involved—all three—were in a perfectly straight line from east to west, almost a fault line of evil.

Judge Donald A. McCartin was a pilot for both the navy and the Marines in the Second World War, landing on the impossibly small decks of aircraft carriers. In his early sixties, he was a handsome, tall, lean man. He could be formidable as he gazed down from his bench at trial participants. He was alternately witty and scathing, a benevolent father figure and an irascible curmudgeon. If he appeared to be asleep, he was not; he was listening. He was completely unpredictable and kept young lawyers a degree off-balance. As the David Brown trial began, McCartin was dealing with a bad back, the result of a recent athletic injury.

Department 30 was a highly individual courtroom, reflecting many of McCartin's moods and interests. Actually, it was a wild and crazy courtroom, slyly decorated with humorous touches that helped the mind glance away from time to time when the testimony became bitter and tragic.

A narrow shelf protruded from McCartin's bench, supporting a statuette of a bewigged judge who was covering his mouth with his hand. He was either gagging or laughing at justice. On McCartin's right, facing the witness box, there were three little figures made of flat stones and painted in bright colors. They may have been Speak No Evil, See No Evil, Hear No Evil, but it was hard to tell. They may only have been there, as the box of Kleenex was, to comfort the witness.

On the right wall, behind Deputy Marshal "Mitch" Miller's desk, there was a selection of drawings and photographs. One was of a ferocious stubbly-bearded face; beneath the face were the words "Good Morning." Most of the other pictures were of McCartin family dogs. Some were grinning and wearing nightgowns. All looked happy and healthy. The judge was a dog lover. He once spent $4,000 to replace a beloved golden retriever's hips with prostheses. McCartin discussed dogs affectionately and pointed out that his preference for them summed up "what I think of the human race." He may have been kidding.

Judge Donald McCartin was also a man with four sons and three stepdaughters who enjoyed the comparative peace of a lake cabin north of Orange County whenever possible.

Miller had been McCartin's bailiff for eight years. Gail Carpenter, McCartin's clerk, had occupied the small desk below the bench for five. She was unfailingly cheerful, and nothing ruffled her. Sandra Wingerd was the pretty red-haired court stenographer. The year-long Randy Craft serial-murder trial was held in Judge McCartin's courtroom; his staff was used to television cameras and anchormen, to newspaper reporters and book writers, to Hollywood "producers."

The jury box was on the left side of the courtroom; the seal of California, flanked by the American and the California flags, was behind Judge McCartin.

By most states' standards, Department 30 was a huge courtroom, with comfortable cushioned seating for two hundred or more potential jurors or members of the gallery. The seats squeaked and whined, however, when a court watcher took even too deep a breath or reached down to search for a pen or legal pad.

The attorneys and the jurors had more comfortable, less creaky chairs; the defendant would sit in a chair without casters. A good solid wooden chair allowed for few quick movements and was a precaution that evoked a silly mental picture of the accused making a break for freedom in a fast-moving chair.

But David Arnold Brown had already demonstrated a penchant for escape. He would be brought up from the basement—usually by Miller and Deputy Marshal Glenn Hoopingarner—in handcuffs and ankle chains. During breaks, he would wait in a holding cell just outside the courtroom. He could smoke there.

The pretrial motions and McCartin's decisions were damaging to the defense. Gary Pohlson argued that he could not "conceive of a more damaging piece of evidence" than the Steinhart tapes, the tapes that substantiated a plot to kill Jeoff Robinson, Jay Newell, and Patti Bailey. He wanted them out. "There are other things that this plot could show besides consciousness of guilt."

"There was an attempt to thwart the prosecution of this case," Jeoff Robinson argued. "It's a tough case for both sides. . . . When David Brown takes part in that kind of activity, we should have the right to bring it before the jury."

"If this comes in, we roll over—the jury's going to roll over us," Pohlson retorted.

McCartin acknowledged that the tapes
were
damaging, but he ruled against the defense. "I don't see it as a tight call. I don't see any way I can rule it out, unless I lost my sanity."

David Brown himself took the stand. Pohlson questioned him about the interview he gave to Jay Newell and Fred McLean on the morning he was arrested. That interview was damning, and the defense wanted it gone. David recalled that he was tired and groggy from prescription medicine during that interview. "I never understood until the end of the interview that I was under arrest. I had nothing to hide. I still don't."

McCartin watched part of that three-hour tape. It was patently clear that Newell advised Brown of his rights under Miranda and told him up front that he was under arrest.

That tape too was in.

Gary Pohlson and Richard Schwartzberg had a hard row to hoe. A trial,
any
trial, was theater.
This
trial promised high drama.

At nine-thirty
A.M
. on Monday, April 30, 1990, Department 30 was empty, save for Bailiff Miller. It was cool and quiet, and its windows—a rarity in a courtroom—provided a panoramic view of miles of flat land that spread out below—until it disappeared into a blur of smog.

The lawyers arrived; both Robinson and Pohlson wore gray, lightly striped suits, first-day-of-trial suits. For the next few days, they would pick similar suits, as if there were an unwritten guide to courtroom clothing.

And there was a changing of the guard here. Jay Newell had carried this case with him for more than five years. Now, it was in Jeoff Robinson's hands, and Newell would stay in the background, except for his moments on the stand. Newell was, for the moment, the support system.

Fred McLean sat in the back of the courtroom. "If all three of us were at the prosecution table," he explained, "it might look like we're ganging up on the defendant. I can see fine from here."

The press was in the front row, just behind the prosecution table and the defense team. Eric Lichtblau from the
Los Angeles Times
had written dozens of articles about the Brown murder case. Although recently transferred out of the Orange County bureau of the
Times,
he had asked to see this one through to the end. Jeff Collins, of the
Orange County Register,
was back home again after working for a Texas paper; he was playing catch-up with an entirely new case to him. Barney Morris of Channel 7, the ABC affiliate in Los Angeles, was present with a cameraman; Dave Lopez of CBS's Channel 2 was there too. California courts allow cameras and tape recorders in the courtroom—with special permission; cameramen had to stand eighteen feet back from the bar and use no strobes or flashes.

With the sound of clanking chains, the gallery hushed. David Arnold Brown himself was about to enter the courtroom for the first time in this trial. The papers had touted the computer genius, the executive, the millionaire. Photographs had been only head shots, and some of those when Brown was six years younger than he was now. This was the man who collected beautiful women.
Five
of them had married him, one twice.

The courtroom was quiet, waiting . . .

David Brown entered.
He was a pear-shaped man with a humped back.
There was a barely audible gasp as the gallery realized that the man shuffling to the plain wooden chair was one and the same as the consummate ladies' man they had read about. How could this be? The defendant was very short and very fat, and his face was pockmarked and the pale green-white of jailhouse pallor. David Brown had lank dark-brown hair, with no trace of gray. He had lost a great deal of it in the year and a half since his arrest. He wore a white dress shirt over a T-shirt, and gray polyester pants without a belt (forbidden). The threads from the pants' label were still visible.

David Brown was now thirty-seven; he could easily have been fifty.

The way David looked made his reputation even more incredible. He was the embodiment of the nightmare blind date. A daughter would love her father no matter how he looked. But all the other women who reputedly adored David Brown? If he looked the part of a seducer, yes—but this man had to be more adept at mind games than anyone had imagined.

A huge jury pool filed in. Judge McCartin immediately dismissed those who were due to go off jury duty at the end of April, explaining that the case was expected to extend at least until the middle of June.

Jury selection was full of good-natured banter. Pohlson announced he favored "bald buys—especially pudgy bald guys." Robinson commented that "in Judge McCartin's court, you enter never-never land in some time warp."

McCartin joked about Robinson's "competence," the deputy DA objected, and Pohlson "sustained." The gallery laughed. McCartin said, "We sometimes change places in this courtroom. I may come down and be the defense or the prosecutor."

Robinson pointed out that the defense had two attorneys, and he was all by himself. "We'll allow Mr. Robinson to have his mother sit next to him," McCartin decreed.

"His mother doesn't like him," Pohlson stipulated.

The gallery roared again. People are nervous in courtrooms; humor relaxes them. It did not relax David Brown. He was confused by the laughter and obviously concerned that his attorney was joking with the prosecutor. His "dynamite life-of-the-party" sense of humor had deserted him.

Potential jurors moved into the jury box to be questioned. Jury selection is done on a gut-feeling level or with experience or with time-honored rules of thumb. Selecting a ringer is always possible. Jurors have been known to hold back information or to lie to be selected.

Each time the lineup seemed perfect to the observer, it was as if the defense and prosecution were playing musical chairs. Jurors, often bewildered, were asked to step down. Four hours. Six hours, and most of them were gone. Robinson and Pohlson started again. The voir dire (direct questioning of prospective jurors) was hilarious, and the courtroom erupted with laughter again and again. It took close to three days before twelve jurors and three alternates were seated.

It was 1:47
P.M.
on May 2. No one would really know what they were thinking. Not until the end.

There were housewives, an executive secretary, a telephone lineman, an electronics technician, an assistant purchasing agent, a teacher of the developmentally disabled, engineers. Seven women and five men. The three alternates were two women and one man. Almost all of them had children, teenagers or young adults.

They did not know David Brown. If they had heard of him at all, it was long ago in a hastily read newspaper article, and they remembered no details. His notoriety had, to date, come in short media bursts—gone by the next day.