MUSINGS OF A STORY MERCHANT



"The universe is made of stories, not of atoms."
—Muriel Rukeyser
____________________________

Guest Post: This Emotion by Gary Wenkle Smith

 


THIS EMOTION

 

          How do you know he is a killer?

He is the one sitting beside me.  The only person in the courtroom who is being accused of murder, who says I did it, the killings.

          I first met Dennis in West Valley Detention Center, Rancho Cucamonga, California.

Would you come into the jail with me?

          The setting is surrounded by thick concrete from the moment you enter the institution. The smell is like no other. Thirty-five hundred men and nine hundred women, their bodily excretions, their inability to engage in routine hygiene—clothing exchange is once a week, and showering perhaps twice—inadequate ventilation, even their breath from the low-grade, poor-quality food adds to the stink that is so oppressive that first time visitors are shocked by the impact of it upon their senses. I am reminded of it at once, and I unconsciously adapt, forgetting it for the moment.

The lobby is large: two sets of glass doors, two restrooms, and a multi-windowed counter, with “Official Visiting” over one window. I have called in advance and I check in at the counter, showing my driver’s license and bar card. From behind two-inch-thick glass, the Custody Assistant accepts my cards and pushes a yellow form under the metal plated drawer under the window, which I fill out and return to her. She calls the unit where I will visit, advising: “One official on the way.” Then she slides a small yellow pass along with my ID and bar card under the window to me.

I take the pass and cards and I thank her.  I walk to a steel door with thick glass and waive my yellow paper pass at the deputy sitting in a room to the left of a metal detector. There is a visitors’ window to the left of the door where civilian visitors check in, give their ID and wait for the deputies to run them before they are allowed to enter. It is not uncommon for someone to be cuffed and arrested before their visit, upon a deputy discovering they have an outstanding warrant.

The deputy pushes a switch to the right, and I hear a hissing, then the door opens into the wall, slamming in place. I walk in and pass through a metal detector. I always beep. Most deputies who know me don’t bother with a wand scan of my body. The uniformed deputy is no-nonsense, but over time and routine contact with him he has become civil. He takes my visiting slip, my ID and bar card and begins writing information on his daily log—who I am, my client and his booking number and then hands me a key on a long dirty lanyard with an oxidized brass circle-shaped piece with a hole through it, all held in place on a soldered-closed two inch ring, kept in an old hotel-type squared key box, where he puts my ID and Bar Card.

I thank him and walk out of his office into the room with the metal detector.  I stand in front of another steel door, waiting for the vacuum release to engage the hydraulics so it pulls itself into the wall with another loud banging. I step into the hallway. When the door closes behind me it slams and clangs and echoes down the walls and reminds me that I am now locked inside the jail.

I pivot left, and walk down a long polished concrete hallway. The walls are drab yellow, a low energy color. The lighting is bright fluorescent. There is a blue line with arrows pointing toward me every twenty feet directing people coming out of the institution back to another locked exit fifteen feet from the room I just left.

Arrows on the walls with large black letters point ahead, listing units 1-15, one on top of the other. When I reach a doorway, I make my way to the right around a bubble, named by inmates, which is a room with limousine black tinted glass shaped in a semi-circle. I’ve never known what goes on in there. To my right are hallways to units 11 and 12, then a bit further to units 13-15. They are long hallways, painted drab yellow with polished concrete floors.

I continue around the bubble to the left until another hallway comes into view into which I turn right. On the wall in thick black paint are arrows pointing the way to UNITS 1-10. I continue walking until I reach another doorway with another bubble. The arrows point me around the bubble to the right and the first hallway has the bold lettering: UNITS 9-10, the second hallway hold units 7 & 8. I turn down that hallway and walk 200 steps, finally reaching unit 7 on the right, unit 8 on the left. By now, I have forgotten the stench of the place.

I enter a visiting area with one wall full of glass windows and steel circular seats welded to a metal post coming out of the wall in front of each window, and telephones beside each seat with cords six inches too short so visitors have to lean down to their left to speak while visiting. The visitor must sit in the seat and wait for their friend or loved one to make it up the stairs from the room below.

The room is empty today. I can see the bubble behind the doorway into the room with the stairs. I see a man wearing orange standing outside a door the top half of which is probably unbreakable plexiglass, waiting for the door to buzz so he can open it and make his way to the stairs and up to the visiting area. To my immediate left is a wall speaker with a button. I press the button, and moments later a male voice is heard: “Yes.”

“Good morning, Official Visit for Dennis _________.”

“He’s on his way.”

“Thank you, sir.”

On the left there is a locked door. It is a steel door with a see-through window that is very thick. I insert the key and pull open the door, which is very heavy. I step in and there are two doors of the same kind on my right, behind which are visiting rooms for lawyers and other professionals.

The door I have just entered slams, the noise deafening. It is shocking to the senses each time, but I’ve become familiar with it. I enter the second room after inserting the same key, turning the lock the opposite direction of the other door. That one slams shut also as I step into the room.

The horrible stench of the unit hits me. It is much more powerful than in the lobby. It is an overpowering stench. This day it is so strong I am repulsed, wanting to walk out and away.

This room is painted a drab yellow, with unpolished concrete flooring, a pile of trash in one corner of the floor including Kleenex, visiting slips, wadded paper, even gum wrappers. There is a black mesh screen dividing my side from the inmate side. There is a concrete counter that runs under the mesh to the other side so that we can lay our documents, and elbows on it.

Through the window on the door on the inmate side, I watch Dennis climb the stairs slowly. It is obvious he is in pain as he chugs his way up. When he finally reaches the door, he waits for a deputy to press a button buzzing him into the room. He looks at me and smiles. He has a nice face. His hair is sandy brown and shaggy.

The door buzzes and he pulls it open, holding it so it doesn’t slam behind him. When he steps in, I am still standing. I tell him my name and offer my knuckles on the grating that divides us. We bump knuckles. We both sit. Trying to see his eyes I move and adjust my vision through the half inch diamond shaped openings in the mesh. We work together to get a clear view of one another.

I can smell him—his breath, his days-old perspiration clinging to his clothing that is wrinkled and frayed with the letters 3X on the thigh and front of the short-sleeved top. I silently process this sensory information.

He is weary, his eyes with deep crow’s feet, somewhat red, seemingly blurry as he arranges his body on the steel plate upon which he must sit. I know how uncomfortable it is, as I am on the same type seat. I also know that he has had spinal fusion. He is overweight by at least thirty pounds, looking bloated.

I know about the food in WVDC from personal experiences. The menu hasn’t changed in years: Frozen waffles for breakfast, frozen mystery meat sandwiches for lunch, which has an orange dye in in the meat that stains your fingers if you are able to get to the hot water dispenser to try to thaw it; and dinner might be any combination of stuff presented as food, including shriveled corn, some kind of material passed off as meat, and perhaps on a good day a squashed slice of bread.

Supplements of starch and sugar are available through commissary, including Top Ramen, ten cents in the store, a dollar twenty in jail. Milky Way bars are a dollar fifty, and coffee prices change weekly.

There are no hygiene products given, so you are either required to buy your own, or if on welfare, i.e. no money on your books, others in your car—your race—will help you out. Everyone has to shower when allowed lest they begin to stink. A resounding beating is in order for the intentionally unhygienic.   

Dennis asks me if I knew Joe, an old friend, one of the Berdoo Hells Angels. I told him I did, and tears poured from him. He said he had been praying I would somehow find my way to him. Joe had spoken of me with praise. Dennis had lived next door to him during his teen years, Joe teaching him how to use a wrench. They had remained friends, but Joe had died, and Dennis did not know who to call to get my name.

I cried with him, already believing we were meant to be together in this thing, the multiple homicide case. He heart-shot three people in his driveway in the desert in the nighttime in the middle of nowhere. He had been sitting in jail for fourteen months, his prior counsel leaving him to wait after only one visit, suggesting he could get him life, plus fifty, instead of 3 lives, plus one hundred fifty, or maybe death.

He had no hope. I felt that, too. He had been alone, unable to mourn, now crazy. Each day spent in conflict with his belief that what he had done was right, but nonetheless being caged and put on show, the accused.

He told me what happened that night, and I knew it was true. I saw it with him as he experienced it, once again, slowly padding his way across the 8 x 10 visiting cell behind the mesh that separated us.

          I could go with him because I have been taught to develop my ability to feel with others—to mirror their feelings, to change seats with them and become them, to stand behind them and express what I feel, hoping they repeat my words, confirming that I heard them. I have listened and I have felt, and often their pain is so intense I never leave them, they never leave me.

We would re-visit that night many times before trial.

I believe TLC training has opened psychic abilities to see and understand those with whom I engage, even more so when we are put together on a journey toward trial.  Listening, hearing and intuition are all central to TLC training, and I use it constantly.

          There are limitations on how we can work in the jail. Dennis could not leave; he could not afford to post the three and one half million dollars bail. I could not stand behind him, but I could mirror what he said, using his gestures, asking him how he was feeling, trying to express what I believe he was feeling, waiting for his confirmation.

It was much more difficult when our close-up vision was blurred by the mesh. It required greater focus, something I have developed over my many years of jail visits. I have been in our various custodial institutions literally thousands of times over the past forty-one years.

Some of what I have learned through Trial Lawyers College must be modified to fit the circumstances, and the person with whom I am working. Dennis was suffering from deep depression and sorrow. For him, life was over. I had to find my way into his world and develop trust so I might be able to explain my idea of how we will present our defense—that he killed those three people in self-defense. Part of the way in is to be able to love my clients. With Dennis, that was not difficult.

          Dennis and I shared who we were for seven months while our experts did their work. I grew to love him more each visit. Every week we met and discussed how he felt. Often, he was depressed, and we spent the first hour chatting about things bothering him, working our way into his private hell.

He spoke of the ghosts that visited each night, still tormenting him. How he wished he had died that night so he would never have to think about it again. Recalling his dreams in which I would magically appear and save him. A color emerging in those dreams finally becoming a blue shirt he wore as we walked out of the courtroom together to his freedom beyond the door.

While he spoke, I listened, often mirroring his body language, when appropriate, repeating what he expressed with my body and words. In time, he began to believe that I saw him, felt him, understood him, and would not abandon him.

Before me, he had told his parents to let him go, it was over, because the first lawyer assured him he could get him that deal: fifty to life instead of three life sentences plus one hundred fifty year, maybe death.

          Most frequently, we went through that night of the killings, step by step, remembering how he had felt while it was happening.

It was slow motion, a sensation I had experienced a couple of times before—once when a friend was killed as we raced down the street, him on his motorcycle, me in my Trans Am, and a car turned in front of his motorcycle. The other time I was thrown off my dirt bike.

When he spoke of the attack, I asked him to move through it slowly. I did the same, mirroring his motions on my side of the mesh. He heard the dogs barking and went out to see if it might be a coyote. I heard them also.

He walked to the corner of the driveway where the chain link fence ended before it turned the corner. I stood there with him. I saw the horror on his face when the giant with a clown mask came out of the dark and grabbed him by the shoulder.

My face filled with that fear, I felt it, the terror, the adrenaline rush as we blocked the arm and began stumbling backward across the driveway, drawing from our front left pocket our snub nose .357 five shot Smith & Wesson handgun we had been carrying day and night for the past eighteen months.

We drew the gun slowly with our left hand and were grabbed by the hair on the back of our heads. We felt the pull toward the ground and brought our gun across our chest and aimed at the body beside us and fired. The explosion deafened us, and the flash of light blinded us.

The hand let go of our hair and we watched a shadow shuffle off with a strange movement of short steps, into the darkness. We turned and two more shadows were charging us. We fired and their eyes lit up like demons. We fired again, both times the gun recoiling, the flash again blinding us, the sound more a thudding. We watched both shadows turn and shuffle off, that same strange way of moving with measured steps, into the black of the night. We saw them no more.

We stayed still, waiting, wondering whether that really happened, and if so, where had they gone? We heard our hearts beating, but no other sounds.

I asked Dennis to tell me where he was, what he was feeling. He froze in place. I froze with him and waited. Several minutes passed before he tried to leave the cell. When he tried to pull it open, I knew he was going into his house to call 911. I asked again. “Dennis, where are you?” He slowly turned and looked at me.

He said: “I’m here now.”

“I went there with you,” I told him.

“I know.”

We knew we were ready for trial when we had been through it all several times.

We worked on the terror he felt as each day began. They were asleep, finally, having thrown trash into his yard the night before. They stayed up into the wee hours, talking loudly, several of them, leaning on the fence each night, calling his name, waking him. So, he built the wall.

It took months of digging holes large enough to put railroad ties in, tamping the sand to keep them in place. Each day ended in physical agony. He showed me how hard he worked, digging, bending, lifting, shoveling, and tamping. Finishing by mid-morning before the creatures came out and started with their threats.

The first threat came before the wall. Adam walked to the fence while Dennis worked on the ground beneath it. He leaned on the fence, Dennis’ fence, his huge arms bulging, and said: “I’m here to evict some people.”

Dennis tensed. He had seen Adam. He was an unusually large man, and now Dennis knew he was mean and had ill will toward him.

“How did you feel?”

“Scared. I asked him ‘oh really, who?’ and he said I’d find out. I told him I was a Boy Scout.”

“What did you mean?”

“I’d be ready.”

Several months passed before Dennis made it out of the desolation of despair and was ready to communicate, to share, to be challenged in front of a jury.

 

*             *                   *                   *             *

 

We set the case for trial.

I have spent a good deal of time training in voir dire. Selecting a jury to hear a triple homicide case was exciting.

I begin with the presumption of innocence. I share that most people, myself included, don’t really presume people innocent, that we always think the worst, that when I see a person sitting where the defendant sits and I wonder what they did. “Who else feels that way?”

It always gets a good conversation going, and that is what I want, a conversation. Just a bunch of good folks having a talk about the law, and the idea of killing and how they felt about those things, I show them mine, they show me theirs. It works.

Few of us admit to a willingness to let others take our lives. I’ve spoken with a couple of people who said they would never kill, not even for loved ones. I thanked them for their honesty. It takes days to pick a jury in a murder trial, and judges usually don’t rush the process.

We have to be comfortable in our own skin to stand and engage people about their beliefs, embracing each word they offer, thanking them as we go, speaking directly to them as though there were no one else in the room.

Cross-examination is probably my favorite activity in life. The state of ecstasy lasts longer than any other—it goes on and on. The lead detective, a Sergeant by the time of trial, wrote a report that was vague, but between the lines I knew he was trying to tell the truth. When he entered the courtroom that first day after Opening Statements, in uniform, ready to testify, I approached him.

“Sergeant, I’m Gary Smith. I represent Dennis. I’ve spoken with a lot of people about you.”

“You investigated me?”

“Yes, and they all said the same thing. Do you want to know what they said?”

“I don’t know.”

“They all said you are an honest man, and I’m counting on it.”

Most cops are good witnesses. They show up in uniform. When called they stroll to the stand, smiling at the jury. They are sworn, sit and face the jury, some offer a greeting.

Our Sergeant was subdued. He did not look at the jury during direct. On cross, he engaged me, and I took him back to that night, what he saw when he arrived. The jury could see and feel there was something between us.

The Sergeant answered all my questions truthfully, which did not help the prosecution, including that it was obvious the shootings took place on Dennis’ driveway.

The allegation was that Dennis had laid in wait—ambushing the three deceased, them dropping to the ground where they were shot, in the dirt road in front of his house—was slowly dispelled by the prosecution witness, the case agent.

I knew a lot about the only eyewitness. Part of my belief system is that I should always know more than the opposition. Some of that comes from knowing my clients. I had a good investigator, too.

Everyone lies at some point in their lives, and in criminal cases witnesses on both sides lie. Some lie because of their fears of being part of the accused. Some lie because they want the accused to be convicted, others are protecting the accused.

I knew that the eyewitness, Whitney, was a speed user. I know a lot about that drug and what it does to people. I heard it in her voice when she was being interviewed that night by one of the detectives.

I instructed my investigator how to proceed with her: bring her in, encourage her to be open, assure her you want to hear her story, thank her when she shares.

I knew she wanted to talk, and that she would be under the influence when interviewed. Speed users are not occasional users.

I knew that once she started telling, she would not be able to stop. She came back for a second video interview. Rick, my investigator, knew where to take her and she told it all.

The physical and forensic evidence confirmed Dennis’ story in every detail. I needed Whitney to give it up, confirm what I knew. At first, she was combative. A witness can only remain that way if you join them.

When I took Whitney on a journey, I did my best to show the world from her eyes, and help the jury see it, to know how she felt, to understand why she lied,  engaging her with a discussion about the events of that night.

I took her to her lies. She had forgotten that my investigator had her on video, admitting her lies, telling the truth.

I understood why she lied, and so did the jury. She went with the deceased to “fuck him up,” to “kick his ass.” They were all wigged on speed, or alcohol, Fentanyl and some pot. They were two huge men and a large woman, and Whitney was with them.

She was in the midst of the killings, and she wanted out. She knew she might be criminally liable—we all did.

She set herself anywhere from eighteen to thirty-five feet from the shootings, yet she saw it all.

It took repetitive cross to end the days of her testimony with the same story: they went there to get Dennis and he got them.

The prosecutor repeatedly took her back on re-direct to her lies, only emphasizing the magnitude of them, and I walked her through the truth, again and again.

It was somewhat cathartic for her, although her addiction did not allow much room for introspection.

I showed my empathy by repeating her words with enthusiasm. I did not mock her but pushed her to embrace the truth each time.

The prosecutor lost all respect from the jury by getting her to repeat her lies, only to be reminded of the truth.

Dennis and I never broke faith with the jury.

          The trial ran Monday through Thursday for three weeks.  I presented Dennis as a witness on the final day.

It was late evening at the jail, and the place was noisy, even upstairs in our visiting room. Men drank coffee and ate candy and other supplements purchased through commissary each week. They were jacked up and restless with nowhere to go. I could feel the tension, the edge of violence ever-present in custodial settings.

Dennis was scared about testifying. I could smell his fear, taste it. He hadn’t been allowed to shower all week because he had been transported from West Valley Detention Center in Rancho Cucamonga to Victorville each morning, eating only cold cereal, a peanut butter and jelly sandwich for lunch—squashed flat and mushy, returning late at night, fed a sandwich of ice-cold mystery meat, then left to his own devices.

The smell is unique to him, but I know the sensation it invokes in me. I know the smell of fear and it is a reminder to be direct about what I am seeing, what I feel, how I know it.

We are intimate, and our relationship is based upon trust at the very core of our beings. If I were less than fully engaged, it would be a breach of trust. I was tired, but so was Dennis. His days were so much longer than mine.

We discussed his fear and went deeper to the source. We walked through that night again. I felt the terror they had instilled in him over those many months before he killed them.

I felt the agony, the depression, the relentless anxiety, the remorse, the betrayal of the government, but there was light in the hope and trust he placed in me.

Again, we practiced his time on the stand telling the story, the truth that would set him free. Moving my arm toward the jury box we have created in his cell, I asked him: “Please tell the jury, did you shoot those people?”

We had a reminder, me using my arm to direct his attention to the jury should he begin to look at me. The number one rule: the jurors are the most important people in his life.

That night, Dennis was also tired and on edge. He was angry about what the deceased made him do. He was angry that he was being prosecuted, and that people had lied about him. He resented the prosecutor promoting Whitney’s lies over and over. I let him vent.

While he did, I mirrored his body language. He knew what I was doing.

Finally, he agreed that if he showed his anger, the jury would not understand. If he showed his feelings beneath the anger—the pain he felt, they would love him. That had been our mantra throughout our work. If you bond with the jury by opening yourself to them, letting them see you in your pain, they will not hurt you.

When Dennis turned to the jury and, with each question I posed, told them what he did, he was talking to old friends, just like we had spoken together, telling the story of the case. When I asked him if he shot Adam, Angela and Robert, he said he had, and he told them why. He spoke of the endless days of threats and torment, sleeping with the gun, keeping it in his pocket, the dreams of them killing him. The attack in the dark with high winds screaming, as though the devil himself was director of the scene unfolding. He told them it was his worst nightmare. He wept, and they did too.

 When I closed, we all wanted to be able to defend our lives like Dennis did, and still have a life in the world. Dennis spoke for all of us. We all wanted to free him of his burden. We felt his pain. He was a killer, but it was necessary.

 

*             *                   *                   *             *

 

They sent us out that courtroom door, Dennis in his blue shirt.

          The jury loved Dennis, and they knew I loved him.

It all comes from this emotion.

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