This is an extract from Judge Burton Katz's book Justice Over-ruled, from the chapter Co-conspirators
Many times it is very difficult to prove a crime against one or more individuals because of the absence of independent eyewitnesses. Resorting to the use of coconspirator witnesses is sometimes required.
Coconspirators present unique challenges. By definition, conspirators contrive to commit crimes in secrecy. Establishing guilt is especially difficult where the only proof against a defendant consists of the observations by a coconspirator (accomplice) of statements mad.e and actions performed by the other in the planning and preparation stages of the crime. Indeed, statements or conduct, standing alone may be perfectly legal and, when observed by a non-criminal witness, without more information, may be unremarkable and meaningless.
Here is an example: Suppose George Washington conspired to overthrow British colonial rule in America. In secret, he told Alexander Hamilton and Thomas Jefferson that they should publish a paper exhorting the colonists to "break the shackles of their servitude" to imperialist England, and to demand autonomy for the colonies. To that end, Jefferson and Hamilton proceed to legally purchase printing supplies consisting of paper and ink. Further, they arrange for the use of a printing press.
Those legal acts, standing alone, prove nothing without evidence of the unlawful purpose. Thus the testimony of Jefferson or Hamilton would be required to establish the fact of a conspiracy implicating washington. Then those acts committed in furtherance of the conspiracy, such as the purchase of the ink and paper, even if legal when standing alone, cab be used against all members of the conspiracy as evidence of the crime.
There is a catch, however. The law, in its wisdom, requires that the accomplice's testimony be corroborated because of the inherent "untrustworthiness" of its source! Because an accomplice has an obvious motive to fabricate, the jury is instructed to view an accomplice's testimony with caution.
Problems are compounded when the accomplice is relucant to testify and has an abiding allegiance to the defendant coconspirator. Such was the case with Mary Brunner, one of the most troubling witnesses I ever had. Mary was well on her way to earning a master's degree at the University Wisconsin,engaged to a "professional student", when she decided that being a faculty wife and giving tea parties was not what she wanted out of life. So she quit and moved to California, acquiring a job as a librarian at the prestigious University of California, Berkerey. She met and fell in love with Charles Manson, a charismatic iconoclast, spiritually light-years from her comfortable world of academia and books. She came from a stable and supportive family, though her parents were distant, displaying little outward affection. Mary was to become the first of the Manson family women, moving into an old, ratty school bus with Charlie in 1967. Manson sired her son,"Pooh Bear" legally named Michael Manson. She was attracted to what Manson seemingly had to offer: freedom to be a child, to be oneself, to love, to experience the warmth, sense of belonging, and adventure of communal living. This seductive lifestyle was later to transmigrate into "Charlie's death trip" culminating in her willing participation in the murder of Gary Hinman.
In return for an immunity agreement fashioned over several months of difficult negotiations with Mary and her attorney, veteran civil rights lawyer Hugh Manis, she reluctantly agreed to testify. The immunity was conditioned on Mary testifying truthfully in all of the Manson family cases involving the murder of musician Gary Hinman, including any Hinman murder testimony to be presented in the penalty phase of the Tate-LaBianca murder trial. In addition to Bobby Beausoleil, who was already charged, we were in the process of seeking murder indictments against Charles Manson, Bruce Davis, and Susan Atkins for the Hinman murder.
Mary, in fact, testified truthfully before the grand jury and in the guilt phase of the Bobby Beausoleil trial. Beausoleil, nicknamed "Cupid," was drop-dead handsome, and the alleged procurer for Manson, bringing new female blood to the family's quarters at Spahn Ranch. After the jury returned a verdict of first-degree murder, a death verdict was imposed by the same jury in the penalty phase. This so shook up Brunner, who felt enormous guilt over Beausoleil's plight and her perceived betrayal of Manson and the family, that she seriously contemplated suicide.
Following her guilt-phase testimony, Mary had returned to her mother's home in Wisconsin. Between the time of the rendering of the death verdict and the formal sentencing hearing, Squeaky Fromme, Sandy Good, and Brenda McCann paid Mary a goodwill visit. Shortly thereafter, we heard she was going to recant her testimony, alleging that sheriffs Charlie Guenther and Paul Whitely and the DA (me) forced her to testify against her will, falsely. The integrity of the jury's verdict rested on our discrediting her allegations. Our dilemma was not to undermine her credibility so much that her testimony before the grand jury and the Beausoleil jury was rendered useless. At times that seemed to be impossible.
When we originally struck a deal with Brunner, we were unaware of the true extent of her involvement in the Hinman killing. We had been led to believe that she was passivelv present while Bobby Beausoleil and Susan Atkins (a.k.a. Sadie Glutz) did Manson's bidding. After she agreed to cooperate, with the encouragement and support of her biological family, we were to learn disturbing additional facts. By then it was too late to withdraw our offer of immunity. I was heartsick that we had to give Brunner immunity knowing the things she had done.
Now we were at the Beausoleil sentencing hearing, where a motion for new trial was being sought. Beausoleil, having dismissed his public defender and acting as his own counsel, recalled Mary Brunner. He conducted a very credible and competent examination of Brunner. And here was Brunner, trying to wiggle out of her commitment. Before she testified for Beausoleil, I reminded her that the immunity agreement was off if she she stuck to her recantation story. Secretly, I was glad she was recanting her testimony; we would now be free to bring charges for her remorseless participation in a torture-murder in which Gary Hinman was told he should get ready to die. A murder in which he was given his religious beads so that he could chant to his God, after being stabbed in the chest. A murder in which he was told by Beausoleil "that he was a pig and that society did not need him…this was the best way for him to go…" Beausoleil had told Hinman that he was just doing him a favour! A day earlier, Manson himself had slashed Hinman's face with a sword, viciously cutting his left ear in half, before leaving his victim in the deathwatch, of Sadie, Mary, and Bobby, to suffer another day. of indignity and abuse before Manson ordered Beausoleil to kill him.No, I wanted all deals to be off. To this day, I still think of Hinman, a gentle soul, being tortured, debased, and snuffed; his blood used to write the words "Political Piggy" on the wail above his body. Tears still come to my eyes. I wanted to charge her with murder.
Brunner was obviously torn between her loyalty to Manson and Beausoleil and her own well-being. It was incredible to think that after being handed her life back she was going to throw it all away-including her son, whose custody she was desperately trying to regain. Her son, fathered by Charles Manson! Judge William B Keene presided over the Beausoleil case. Keene was an imposing judge who commanded respect. He was later to become the TV judge in Divorce Court and, other TV judge-oriented shows, aided by his telegenic appearance and very droll wit. Keene began the hearing with a stern admonition to Brunner:
Keene: It's previously been established . . . in consideration of your testifying . . . in front of the grand jury and in front of the jury in the case of Mr. Beausoleil, both of which you have done, and in any future criminal trial that may arise out of the death of Gary Hinman, that you personally were to be granted immunity. . . . you have fulfilled only a portion of that agreement with the office of the district attorney. Now, in the event that you testify here in this case, it is my belief that you will be arrested upon leaving this courtroom and charged with the crime of murder in connection with the death of Gary Hinman. . . . In the event that does occur and you testify here today, anything that you say here . . . can and undoubtedly will be used against you in any trial in which you are charged with the crime of murder. Do you understand what I've told you?
Brunner: Yes, sir.
Keene: Do you understand. the serious ramifications to you personally by your giving any testimony in this court this morning?
Brunner: Yes, sir.
Keene: I might also suggest and point out to you, Miss Brunner, that if you do testify . . . in response to any questions asked you by Mr. Beausoleil, this court will ask you to answer all questions directed to you not only by Mr. Beausoleil but by
Mr. Katz: do you understand that?
Brunner: Yeah, I understand that.
Brunner prepared to lay down her life for Beausoleil as he began his coolly delivered examination.
Beausoleil: Are you also aware of the fact that beyond being charged with murder that you could be charged with perjury?
Brunner: Yeah, that occurred. to me.
Beausoleil: And very probably violation of probation, isn'r that correct?
This was important, because this would affect her ability to get her baby back. Beausoleil began to focus on Paul Whitely and charlie Guenther's first visit to Madison, wisconsin, in December 1969. He probed into the alleged threats and attempts used to induce her to testify against him and Manson. I was impressed with his ability to frame a comprehensible question and ask appropriate follow-up questions. He also interposed objections, and while they fell on deaf ears, they were quite well done. I couldn't help thinking about Beausoleil's natural gifts. He was handsome, articulate, intelligent, a quick study and a gifted poet, artist, and musician who had his own rock group in Berkeley, competing favorably with the emerging but still relatively unknown credence clearwater Revival band. what seed or gene had distorted an otherwise almost perfect genetic blueprint, allowing him to execute another human being, a friend with whom he had lived? He had mortgaged his life on ..Charlie's death trip"! What a waste!
His questions were deceptively simple, demonstrating a skill far beyond many lawyers' reach. Brunner and Beausoleil were rocking to each other's rhythm. yet Beausoleil was given virtually no time alone with Brunner for preparation. His communication was limited to his Manson family visitors, such as Sandy and Squeaky, who were his conduits.
Beausoleil: In reference to how you feel about your child, how do you feel about your child? Let me rephrase the question. You love your child very much, don't you?
Beausoleil: I would imagine that he probably means more to you than anything else in the world-isn't that correct?
Brunner: Than most anything else.
Beausoleil: Anything means more to you?
Beausoleil: Could you tell the court what it is?
Brunner: It means more to me, Bobby, that I undo what I did to you.
Beausoleil: When you say that-to undo what you did, did you not tell the truth at that time?
Brunner: That's right.
He's done it. She has recanted her testimony, and now Judge Keene is saddled with a real problem. There is not a chance in the world that a death verdict in 1970 will stand the scrutiny of the California Supreme Court on that record. Just two years later, that court was to declare California's death penalty law un-constitutional. The ruling was retroactively applied to all on death row, including Sirhan Sirhan, Manson, and serial killer Juan Corona, who slaughtered twenty-six victims. On top of this, the guilty verdict was also in grave jeopardy as Beausoleil returned to the theme of Guenther's alleged undue influence. She told the court of Guenther's approach: "He got very soft-voiced and very earnest and very, you know, look you real deep in the eye . . . type emotion." Evidently, Charlie Guenther had met his match with this young woman, who was indeed very, very hard.
Judge Keene, over the protestations of Beausoleil, now took over the questioning.
Keene: What did he [Guenther] say?
Brunner: He was telling me how wonderful they were being to me, and how everybody out here was ratting on me and bad-mouthing me and how if I felt anything for my son that I owed it to him to give a statement against Bobby.
Keene: Did that end the conversation then, between you and Deputy Guenther?
Brunner: Around this time I got to crying and Whitely came back into the room.
Keene: Now tell us what was said.
Beausoleil: Your Honor, I object to the court questioning the witness. I am completely capable. She is my witness. I'd like to question her now, if I may.
The court refused, but I've always thought that Beausoleil was right. He was addressing issues relevant to this hearing-namely, what were the pressures brought to bear on Brunner. Had such pressures caused her to testify falsely because she feared she would lose her child, be imprisoned and charged with murder? In fact, she was warned repeatedly of the consequence of a capital charge if she failed to cooperate. These are tough questions. While it is not unlawful to spell out to a coconspirator what her options are, and the consequences of failure to cooperate, there is a point where the onerous consequences might influence testimony. Judge Keene had the unhappy task of trying to sort it out, to determine whether these factors over-came free will and caused her to give false testimony. I was not envious of the judge's position. He overruled Beausoleil's objection and pursued the witness, pressing her to repeat what she had told Guenther and Whitely about the Hinman killing. I watched with fascination as Beausoleil fought Keene, toe to toe.for his life.
Keene: All right, tell us what you said, what you told the officers.
Beausoleil: Your Honor, she's given this information already. She told the court that it was the same as what she testified to, or at least basically. There's a forty-page written statement, Your Honor, of a conversation that happened later after she gave her original statement and it has been testified to by Sergeant Whitely that the questions that he asked were based on statements given-
Keene:Just a minute, Mr. Beausoleil. Your objection is overruled. Tell us what you told the officers.
Brunner: I told the officers that Bobby killed Gary. That is the main thing-I told the officers.
Keene: What else did you tell them?
Brunner: I told them that Bobby and Gary had a fight. I told them that Charlie cut Gary with a sword. I told them we had been in that house for a couple of days, Bobby and Sadie and I.
Keene: Was that statement true?
Brunner: Parts of it.
Keene: All right, what parts were true and what parts were not true?
Brunner: Bobby didn't kill Cary.
Now the confrontation is focused. If Bobby didn't, who did? Brunner is backed into a corner. She can't selectively pick and choose which questions she will answer. And the judge goes for the jugular.
Keene: Who killed Gary?
Brunner: I don't have to answer that.
Keene: Yes, you do have to answer that and-
Beausoleil quickly jumps in to save Brunner's testimonial recantation!
Beausoleil: Your Honoq I object-Your Honor-
Keene: -you are ordered to answer that by this court.
Brunner: I'll take the Fifth Amendment on that.
Keene: You may not take the Fifth Amendment. As I indicated to you, you could not pick and choose what questions you were going to answer.
Brunner: I have the right not to incriminate myself.
Bobby and Mary had anticipated everything. Or so they thought. But this judge was not to be intimidated by a claim of self-incrimination-even in a capital case. Contrast this with the Simpson case, where Judge Ito let Mark Furhman take the Fifth after fully testifying before a jury just weeks before.Judge Keene was an exceptionally strong judge who did not look over his shoulder in anticipation of an adverse appellate ruling. The OJ. team would have fared quite differently under Keene's iron fist.
Beausoleil: May I be heard?
Keene: Mr. Beausoleil, you may not. Your objection is overruled.
Beausoleil: You haven't heard my objection, how can it be overruled?
Keene:Just a minute, Mr. Beausoleil. [To Brunner.] I've ordered you to answer that question as to who killed Gary Hinman.
Brunner: I'm telling you that I don't have to incriminate myself, as you advised me.
The courtroom was packed to standing-room capacity, filled with media from all over the world, including the Soviet bloc nations. The tension was so palpable you could skate on it. I wondered how we were playing in the Iron Curtain countries, whose correspondents were feverishly scribbling in their pads, eager to show the "disintegration of a corrupt capitalistic society."
Keene: . . . you tell me in your own words truthfully what occurred in that Hinman house to the best of your knowledge, and I want the truth.
Beausoleil: Judge Keene, you are denying this woman a fair trial according to Miranda v. Arizona, according to the Fourteenth Amendment of the Constitution, the due process clause, according to the rights under the Fifth Amendment, according to her rights to have an attorney present.
Keene: Mr. Beausoleil, your objections, all of them, are overruled.
Beausoleil: All of my objections are overruled, even the ones I'm going to make?
Pretty quick thinking for a non-lawyer, unschooled in trial tactics.
Keene: (to the witness): Go ahead and tell me what happened.
Beausoleil: In other words-
Keene: Mr. Beausoleil, this is the last time I am going to tell you. When I am finished talking to this witness, I will tell you so, and you may ask her some questions. I do not want You to interrupt me.
Bobby stayed a steady course, cool and deliberate. No anger. Just control. It made me wonder how cool he must have been when he ended Hinman's life!
Beausoleil: Your Honor, I have a duty to interrupt you. I have a duty to make my objections.
Judge Keene continues to sidestep Beausoleil. But Brunner won't budge. She tellsJudge Keene she will not answer the question because of self-incrimination.
Keene: You refuse to answer any questions as to what occurred in that house?
Brunner: You've told me-your question was that I tell you everything that went on. That was your question?
Keene: Yes, that's what I want.
Brunner: And if that is your question, I can't answer that because it would be self-incriminating.
Keene: I am instructing you to answer the question.
Brunner: (defiantly): I've answered it.
We had reached an impasse. Judge Keene could proceed no further. The record was a shambles. The court had the option of striking her testimony of recantation because of her refusal to answer all questions on the issue. But, as noted, this was a capital case that must stand the scrutiny of a strongly anti-capital-punishment California Supreme Court-and it was unlikely to pass constitutional muster. Judge Keene found Brunner in contempt of court, and ordered her remanded until she answered the questions. But first he allowed Beausoleil to continue his questioning of Brunner.
Again, Beausoleil's facileness surprised me. Beausoleil was sharp enough to ask her if there was a tape recorder at the sheriffs office when she claimed they told her that if she didn't "bring Charlie into it now that this whole business of immunity would be dropped . . . that her probation would be violated and she would not be able to see her baby when she was charged with murder."
Beausoleil pressed further, asking her whether anyone had turned the tape recorder on. He then got her to say that it wasn't in any written statement she had seen! Not bad. He also wanted to know if anyone had turned the tape recorder off for any interval. Shades of Nixon's secretary, Rosemary Woods, and the infamous "eighteen-minute gap" of Watergate fame. I'd say that was damn good lawyering for a twenty-two-year-old man with little formal education.
Judge Keene stopped the proceedings again, telling Brunner that she had filed an affidavit stating that her testimony before the grand jury and before the Beausoleil jury was false. He now wanted her entire statement. She refused, and was remanded to the custody of the sheriff over the lunch hour. Over her initial objection, attorney Ernest Graves was appointed by the court to represent her, owing to Manis's unavailability. Beausoleil was permitted to have a short meeting with Graves and Brunner.
In the afternoon session, she appeared with Graves. This time Brunner appeared tired and confused. Graves asked for a clarification of Brunner's status, if she were to testify fully and truthfully at this hearing. The immunity agreement was reiterated, with emphasis that she was obligated, as jointly agreed, to testify in future proceedings against Charlie Manson and other family members. Judge Keene, sensing a change, immediately withdrew the contempt charge, making it clear that he would not use this to compel her testimony, and emphasizing that what she was about to do must be totally free and voluntary. Brunner wanted to know if she was free to go back to Wisconsin, "if I testify for the prosecution." We were at a critical point, and Beausoleil looked pale and scared as he sensed what was coming.
Brunner: If I testify, today, then I can just walk out of the courtroom and go back to Wisconsin?
The court told her she could, as long as she remained available for the other trials.
Brunner: Is that the DA's contention, too?
She was told it was. Present in the packed courtroom were Squeaky, Sandy, Catherine Share, and Kitry Lutesinger (Bobby's girlfriend), among others. Brunner was obviously highly stressed. She appeared to be communicating nonverbally with Squeaky and the others. We were all standing on earthen clods, crumbling into a sinkhole of unknown depth. Would Mary turn on Bobby in front of the girls, in front of her "sisters"? Unknown to me at that time was the enormously powerful pull of the family women-these women were the eyes, ears, and legs of Charlie. They also carried buck knives openly displayed on their hips while they camped out at the corner of the Hall of Justice, proudly exhibiting the X's carved on their foreheads, just like Charlie Manson, Sadie, Leslie, and Katie. A1l, X'd out of society. And those knives were virtually identical to the ones used in the Tate-LaBianca massacres. Sandy, Squeaky, Brenda, and Gypsy were fond of rubbing their hands up and down the handles of the knives as I passed them each day on my way to court. Graves, sensing he was losing Mary, asked for some time to confer with her. I began to wonder: What's this justice system all about? Does the foreign press have contempt for all of this nonsense, for our way of justice? I was lost in thought when Graves's voice suddenly startled me.
Graves: Your Honor, I believe the witness is again prepared to meet the question whether she is prepared to testify, in this case.
Keene: What's your decision, now, Miss Brunner?
Brunner: I'll testify.
Keene: . . . Do I have your assurance that anything that you are going to testify to at this time is going to be the truth and nothing but the truth, so help you God?
Keene: In its entirety, without question-is that correct?
Brunner: That's right.
Mary told the court why she filed the false affidavit.
Brunner: Bobby got the gas chamber, and that to me, is the same-you're doing the same thing to him as he did to Gary, and you made me a part of the second one, too. . . . So I filed it hoping that Bobby could get a retrial and not get the death penalty.
The court again asked who had stabbed Gary, and who had sliced Gary's face with the sword, to which she replied it was Bobby and Charlie. Keene turned over the examination to me. I wanted to nail down her testimony against Charlie, Bruce Davis, and Susan Atkins, to give her less wiggle room when she was called to testify at their trials. She confirmed her earlier testimony. I had her confirm that she andSusan put the pillow over the dying Gary's face to silence his death rattle. I also wanted to pin her down on her alleged reason for filing the false affidavit.
Katz: You contrived the fact that you would execute a false affidavit to secure a new trial for Mr. Beausoleil in the hopes that he would nor receive the death penalty; is that correct, as you told Judge Keene.
Her pithy "Yeah" locked her in, or so I thought. I then directed a series of short questions on key points to forever lay to rest the accuracy of her testimony: Did she have any doubt that Beausoleil stabbed Hinman? any doubt that she and Susan Atkins put a pillow over Gary's head? any doubt that she drove to Hinman's house with Susan Atkins and Bobby Beausoleil? any doubt that Charlie Manson and Bruce Davis arrived together at Hinman's house? any doubt that Manson struck Hinman with a sword, severing his left ear? Finally she admitted that the affidavit she had filed was false.
A disheartened Beausoleil gamely tried to come back, but Mary wouldn't look at him. "Mary, look at me, please. . . ." He suggested that she was testifying this way because of the same fear she had felt before, with Guenther and Whitely, that she would be charged with a capital murder and would lose her baby. Bobby decided to go for it.
Beausoleil: Okay, I'll ask one question and hope that I do get the truth. You testified in my trial previously in April that you saw me sanding over Gary,s body, but you didn't actually see me stab Gary, but you saw me standing over Gary's body with the knife. Was that statement correct or incorrect?
Brunner: That I saw you standing over - it's like one of those questions, Bobby, that the DA feeds me, you know, and it comes out, well, could it have happened this way, you know, but I can'r say that it did happen that way. Right now what happened at Gary's house, you know-like well did I actually see you standing over him? I can't recall right now. I can't picture it right now.
Mary was at the point of emotional collapse, and Bobby took a final shot at her.
Beausoleil: would you lie to save your child? would you please tell me the truth?
Brunner: It's a hard question to answer.
Beausoleil: That isn't an answer.
Brunner: What did you say?
Beausoleil: That isn't an answer.
Brunner: You're right, it isn't an answer.
Beausoleil: Would you give me the answer to the question? Mary, look at me. Would you give me the answer to the question and give me the truth. you know the truth, and you know that I know the truth.
Brunner: Bobby, you know I,d do anything.
Beausoleil: Anything for the child?
Beausoleil: Including lying for him-isn't that correct? Is your answer yes?
Bobby, having nothing to lose, takes another stab at it:
Beausoleil: I want the truth. Did I kill Gary Hinman? And please look at me when you answer me.
We all waited for the answer. Then Mary's lawyer made an objection. The court jumped in, over Beausoleil's protest. Beausoleil was forced to surrender his witness to the court for the last time. The stakes were too high.
Keene: Did he stab Mr. Hinman?
For now it was over. But not for Mary Brunner-she was to perjure herself in the penalty phase of the trial of Charles Manson for the Tate and LaBianca killings, and once again in the Hinman prosecutions. And she was to be charged with the murder of Gary Hinman and with perjury, just as Guenther and Whitely and I had promised. Howard Weitzman and James Patterson now represented Brunner. They filed a motion to dismiss the charges, contending that Brunner had fulfilled her obligations under the immunity agreement. To my amazement, the court agreed. We appealed, and the appellate court upheld the trial judge's ruling, likening the conditional offer of immunity to a simple contract in which the people had substantially received what they had bargained for. The appellate court was to note that, even with her false recantation, she had unwittingly helped the prosecution by setting the groundwork for the use of her grand-jury and Beausoleil trial testimony in the subsequent trials. Legal sophistry notwithstanding, we could not prosecute Brunner. To this day I still don't understand why the DA is not free to enter into a voluntary agreement with a witness, who is represented by counsel, and offer immunity conditioned on her truthful testimony in multiple proceedings, regardless of where it may fall. In such a situation there is no more danger of inducing an untruthful story than there is when someone is offered immunity for her testimony in a single proceeding. But who am I to say?