There were no deals. There were no threats. Newell had only given them a layman's explanation of perjury before both Cinnamon and Patti testified in the preliminary hearing. Newell acknowledged that he had believed either David or Patti was the shooter when he first talked to Cinnamon at Ventura in August of 1988. He just didn't know which one. On October 29, he returned Cinnamon's call and she admitted that she was the shooter.
Robinson cross-examined his own investigator. Not surprisingly, they had no disagreements.
"Have you ever heard me say one word—or have you said one word about a deal?" "No."
"We purposely avoided that?" "Yes."
Dr. Seawright Anderson testified to his examination of Cinnamon Brown five years before, to her confession to him in his first consultation, and to her complete loss of memory in the second. Anderson had never talked to David Brown or to Patti Bailey Brown. It was difficult now for Pohlson to undermine Cinnamon's and Patti's testimony. They had told the truth, and Dr. Anderson was testifying to a distant, flawed reality.
David Brown would not testify; his witnesses became, instead, a flying buttress of defense attorneys. First, Alex Forgette, Cinnamon's attorney. Forgette testified that he did, indeed, tell David Brown that he represented Cinnamon, and only Cinnamon. David had not demurred when Forgette warned him that he would go after anyone—even Brown—to protect Cinnamon. The defendant had continued to retain Forgette. "Mr. Brown kept paying me and he cooperated in every way."
"Call Joel Baruch!"
Those who remembered the last courtroom meeting between Robinson and Baruch tensed. For those who did not, it was rapidly apparent that Baruch and Robinson were full-blown adversaries.
Pohlson wanted to show that David Brown had good reason to believe he was being railroaded, sacrificed on the altar of the ambitions of the DA's office. Baruch was quite willing to oblige. He explained that he was David Brown's attorney from about October 1, 1988, until after the preliminary hearing—held to determine if there was enough evidence to hold Brown over for trial. The preliminary hearing had taken from December 19 through January.
Since this procedure had taken place before the murdertor-hire schemes between the defendant and Richard Steinhart, it was essential that Baruch did not name either the prosecutor or the investigator then working on the case. Would Baruch protect their anonymity?
Asked what he had told his client about "the prosecutor," Joel Baruch answered, "I conveyed to him that the prosecutor did not like me and that he was going to go after Mr. Brown a little bit harder. . . ."
"Did you convey this to 'the investigator'?" "Yes."
"And what was his response?"
"The investigator would stop at nothing to get his point across. He didn't pay attention to rules. There are rules."
Baruch appeared to be a cold, almost supercilious, man. Any resentment he had for Robinson had scarcely diminished. The feeling was mutual, and apparent to even those who didn't know the history.
"How long was the preliminary hearing?" Pohlson asked.
"A month or two. It wasn't continuous."
"What was the tenor or tone of the interaction between the prosecutor and yourself?"
"It was chaotic." Baruch half-smiled. "It invaded the preliminary hearing."
Richard Schwartzberg read from transcripts of that hearing and inadvertently spoke Jeoff Robinson's name aloud. Now, the jury knew who "the prosecutor" was who was meant to die. It was the prosecutor who was trying this case. Jeoff Robinson.
There was a sudden, almost panicky, sidebar conference. The jury was fascinated. They were told nothing more. Baruch remained on the stand.
Yes, Baruch recalled, answering Pohlson, there had been a recusal hearing and there were confrontations in the hallway. No, Mr. Baruch did not care for "the prosecutor."
Finally, Robinson rose to cross-examine the man who had once called him a "buffoon." "Do you have any bias to help out Mr. Brown?"
"No."
"You were paid three hundred thousand dollars to represent Mr. Brown?"
"No."
"How much?"
"Prior to February 1989?"
"The total amount." Robinson dug in.
"About two hundred and fifty thousand dollars—but we refunded some of the money."
"How much?"
Pohlson objected.
"Sustained."
"In the preliminary hearing, you told Mr. Brown that he'd get nailed," Robinson continued, "because "the prosecutor' didn't like you, didn't you?"
"I told him that it was a consideration—that our previous battles would make it hard on Mr. Brown."
"And you said 'the investigator' would stop at nothing to get Mr. Brown?"
"Yes ... I gave examples in this case. ... I definitely indicated my participation in the case could affect him. ... I told him this several times over a period of time, over the entire preliminary hearing."
Robinson was scathing. ". . . The investigator and the prosecutor are going after your client because they don't like you? That they lost some reason, some objectivity—that they'd convict him just because they didn't like you?"
"No, I didn't say that."
Robinson read the decision of Judge Schwenk, who had found no merit in Joel Baruch's recusal motion against "the prosecutor." He now accused Baruch of trying "to buy the case in the press—of trying the case in the press."
"No! It was to try to stop an unethical prosecutor from steamrolling David Brown. . . . Some cases need to be tried in the press. You let your client go naked. Jurors read, and they need to know both sides. ... I wanted the press to know our position."
"Were you worried about what would follow after you told Mr. Brown [about 'the prosecutor']."
"No—"
"You didn't think the situation was serious?"
"Certainly serious for Mr. Brown."
"Why didn't you make a motion against the prosecutor before the preliminary hearing?"
"You know you can't do that. Some prosecutors play fair with the defense—some play a game."
". . . Did you think your client was going to do something bad?" Robinson moved carefully for Baruch's jugular, and McCartin sat alert, watching. "Why write checks for over twenty thousand dollars for his brother?"
"It was for rare coins."
"You think—"
"Exactly," Baruch cut in smoothly. "Mr. Brown was a coin collector ... he asked me to write a check for coins so I wrote a check for coins."
"The morning after two people were supposedly killed, you leave and go to Florida?"
"Yes ... for an anniversary with my—then wife."
"On the night before, were you in the jail in a heated conversation with Mr. Brown?"
Baruch glared at Robinson. The jury may have been lost. The intensity of the feud between these two attorneys was white-hot. Robinson seemed to believe that Baruch had some knowledge of the murder plots, and he had stopped just short of accusing him of that.
The jury was excused and McCartin roared at Robinson, "I love you, but our romance is ending. I'm getting upset, goddammit. Hear my voice change? I do things. Like kill attorneys. . . . You're pursuing crap. I don't know what the hell you're getting into. . . . Goddammit, let's get the show on the road!"
Pohlson soothed the waters. He let Joel Baruch explain that it was necessary for a defense attorney to establish a relationship of personal rapport with his client.
"You gave him instances of dealing with the prosecutor and the investigator?" Pohlson asked.
"Several."
"Were you concerned it would cause him to do something?"
"No," Baruch insisted. "I wouldn't have told him if I thought it would."
Surely the jurors realized now that Robinson and Newell were "the prosecutor" and "the investigator," but everyone pretended that Schwartzberg had not slipped. The code names continued.
It was Tuesday, June 5. The weather was bright and sunny, but the weather was always bright and sunny in Santa Ana. The founta
in outside the courthouse had not been turned on for months because of the drought. But for some reason, this morning, it spouted and arced twenty feet in the air. The brides leaving their courthouse weddings laughed as they ran by.
The last witness for the defense was yet another attorney: Donald Rubright, who represented Patti Bailey. The defense obviously wanted to imply that Patti Bailey was offered a "deal" to testify against her husband—that she would be tried in juvenile court instead of adult court. The prosecution was just as determined to show that she had not.
It was a wash.
"Did the 'district attorney' tell you he didn't want Patti Bailey to testify thinking she had some kind of a deal?" Robinson asked Rubright.
"Yes."
"My advice," Rubright said to Gary Pohlson's similar question, "was for her to testify. I believed it would benefit her. There would be advantages."
"How many times did you see her?"
"Maybe seventy-five to a hundred times, counting phone conversations."
"Did she trust you?"
"Ultimately, yes."
David Brown's 1099 forms from 1981 through 1985 were offered and accepted as evidence.
Dr. Kim Hicks was supposed to have testified against Cinnamon. A stipulation was offered and accepted as to what her testimony would have been. Like Dr. Anderson, she would have testified as to Cinnamon's statements just after Linda's murder.
But Cinnamon herself had already told the jury about that in this courtroom.
The defense rested at eleven minutes after eleven. A good omen for David Brown, the inveterate Las Vegas gambler?
47
Wednesday, June 6, was taken up with the ponderous, but necessary, debate between the prosecution, the defense, and Judge McCartin over jury instructions. David Brown asked to be excused from court during this part of his trial. He had apparently come to detest this courtroom, his uncomfortable and ultimately stationary chair, and the eyes that burned into his back from the gallery. The Bailey sisters and brothers were there, always watching. They did not wish him well.
Final arguments would not begin until Tuesday morning, June 12. For those caught up in the emotion of this trial, the week yawned ahead, empty. As in all trials that last for weeks, there was a sense of impending loss for the regulars in the gallery—for the jury too. This tight group would soon disband and scatter in all directions. A number of friendships had taken root and would continue, but they would never again be together in this particular fashion. Every day in Department 30 had promised drama and revelation.
The rest of life was never so dependably bizarre.
Jeoff Robinson ran marathons; even during the Brown trial, he ran the Long Beach Marathon on one blazing-hot, smoggy Sunday. He thought of quitting when he "hit the wall" after nineteen miles, his lungs burning from bad air and heat. But then, like most of those who fear stepping on cracks for fear of damage to their mothers' backs, he kept going—afraid of jinxing the trial's outcome. Irrational? Of course. Normal human superstition? Of course.
After half a hundred felony trials, Robinson might well have become blasé by now and overconfident. He never had. The Brown verdict mattered a great deal to him, and not simply because he liked to win. Keeping David Brown inside was, for Robinson, damage control. Like Jay Newell and Fred McLean, Robinson walked with a gnawing worry that something vital might have been overlooked, that some piddling legal nicety might rear its head and let David Arnold Brown go free.
Robinson could not let that happen. His final, most important task was before him now; in his closing arguments, he had to give the jury everything he and Newell and McLean had turned up in their long investigation. He had to tie all the major facts and the incidental—but meaningful —trivia into one blockbuster of a package that would leave no doubts at all in the jurors' minds.
The fact that Robinson had committed this case to automatic memory wasn't enough. Robinson now went into "heavy training" in these last days before the big fight.
The three protagonists for the State met on Thursday in a conference room deep in the belly of the Orange County Courthouse to go over the most salient prosecution points once again. Fortunately, Robinson was not a prima donna; he accepted advice and suggestions with grace. McLean and Newell laid out their perceptions of what had to be included in Robinson's closing arguments. Robinson jotted down notes in his jagged left-handed script. And then they listened as he argued—-not his own case—but the defense's case. Robinson tried to second-guess what Pohlson would say and be prepared to beat him to it, to defuse the defense's case before it happened.
For almost a day, the three men discussed "What if. . ." and "Hit that area hard..." and "Don't forget to include ..." And then Robinson holed up with his notes and his yellow legal pads. For days—and nights—he wrote and thought and rethought and rehearsed what he would say. He slept little. Four days to go.
* * *
The courtroom had been three-quarters empty for much of this long trial, but this morning, Tuesday, June 12, 1990, it was packed with spectators—courthouse employees, relatives of the attorneys, the curious drawn by increased media coverage, the media themselves, relatives of the defendant and the deceased.
Manuela Brown, David's mother, was in the fourth row behind the defense table. David's sister Susan was with her, and Manuela had also brought five-year-old Krystal. She was a chubby little girl in a ruffled, flowery dress and white Mary Jane shoes. She looked bewildered, and she was obviously there to point up what a fine family man her father was. It seemed a frail ploy, given the testimony of Cinnamon, his oldest daughter, and his complete denial of Heather, his youngest.
David Brown entered with the familiar clanking of chains. He wore a pink dress shirt and tie and gray polyester slacks. He turned around, spotted Krystal, and grinned and waved to her with his small star-shaped hand. She waved back; she plainly adored her daddy—just as Cinnamon had once adored him.
Whatever the verdict would be, it could not have been wise or sensitive to bring Krystal here on this day to hear words recalling her mother's violent death and words condemning her father. She had already lost enough.
It was 9:20 A.M. and everything was ready—save for one alternate juror whose seat was empty. The trial had come this far, and everyone was nervous that the young woman was missing. Gail Carpenter was picking up her phone to call the tardy juror just as she scurried in at 9:23, complaining about the freeway gridlock. The jurors, who had sometimes worn shorts and sundresses on hot June days, had dressed more formally today.
Judge McCartin explained to the jury how they must listen to closing arguments. "Argument is not evidence, and the displays are not part of evidence, so don't expect to get them. Don't treat closing arguments as evidence. ... If the attorneys start to argue, rely on your own memory."
The courtroom was hushed as Jeoff Robinson rose to speak. He wore his "serious" navy-blue suit. "Good morning," he addressed the jury.
"Morning," they chorused. There was a pronounced air of expectancy. This was the Super Bowl part of the trial, and everyone knew it.
"I will speak twice . . . ," Robinson explained. "Because we have the burden of proof. . . The buck has to stop somewhere."
Robinson thanked the jury for their patience and attention and asked only that they would give him a verdict. "I don't care if it takes five minutes or five hours or five days—or ten days."
The jurors were so solemn, so absorbed, that Robinson caught them off guard when he grinned suddenly and said, "I'm only going to talk long enough until I've convinced you that I'm right. As I convince you, I'd ask you to raise your hands. When I've convinced you all, I'll stop talking."
The jurors and the gallery laughed, albeit nervously—the last laugh of the day. But the tension was eased.
"The primary question is," Robinson began, "why are we here? The answer is what I told you in my opening statement—I told you you were going to hear a modern-day tragedy, and [during this trial] you couldn't have heard a mor
e atrocious set of facts that displays that this is a modern-day tragedy. . . . This can't happen, but it did. . . . This isn't a fantasy. . . . This man—at the end of the counsel's table, David Arnold Brown—in what the People will characterize as a very deviate and depraved manner, orchestrated the murder of his twenty-three-year-old wife—a woman he professed to love. . . . How more depraved an act is there than to take the life of the person that you at least espouse most to care for and trust ... to kill the one you've shared vows with ... to kill the one you've shared your most inner darkest secrets with? And probably the person who would be the least suspecting that you would do this. There probably can be no more serious breach of trust. There's probably a hierarchy of trust. You kill a stranger—an acquaintance—maybe a family member. But the wife—the person you hold all this commonality with? It is really significant, and that's why we're here.
"To further aggravate ... we have the fact that Mr. Brown enlisted and encouraged his own flesh and blood—a fourteen-year-old girl—Cinnamon. That was a fourteen-year-old child any way you want to look at it . . . who was corrupted and tainted and twisted by her father. ... Is it fair for this little girl to have been placed in the situation she was ... ?
". . . By his own admission, Mr. Brown's a coward. . . . There's no question that this man has others do his bidding because he is the ultimate coward. He's a person that wants, wants, wants, but he doesn't want to put himself on the line. As he says over and over, 'Leave me out of it.' Per his own words, he 'didn't have the stomach for it.'
"We further have that, in preparation for this atrocious act, Mr. Brown sweetened the pot a little bit . . . by overinsuring his beloved—the one he has said over and over he would rather die in her place. He overinsures her to the point that it makes the act well, well worth it. After that . . . Mr. Brown comes into a huge windfall. . . . There's no question but that Mr. Brown knew exactly what he was going to gain. . . .
"If that weren't enough—after collecting eight hundred and forty-two thousand dollars, we have another act by Mr. Brown. In the preparation of this murder—actually long before—Mr. Brown preyed upon a young, vulnerable girl from less than fortunate circumstances. Regardless of what you think of Patti Bailey, we all are the products of our environment. . . . Mr. Brown preyed upon . . . Patti Bailey. In preying upon her, he promised her a new life. . . . Mr. Brown knew about her problems with family members, with clothing. Money. Food. What kid wouldn't want out of that hell she was in—to come with Mr. Brown?