Chapter 18
Still digging for more convincing and substantial evidence that might convince a jury of John Famalaro’s guilt, Chris Evans suffered a setback that made him wonder if his whole case would crumble.
The killer of Denise Huber had twisted her arms behind her back and snapped handcuffs on the wrists. Two of John Famalaro’s ex-lovers informed investigators of incidents in which he had suddenly bound them with handcuffs during sex play, and frightened them out of their wits. In one of the boxes searched at Famalaro’s home, investigators found an empty handcuffs box which apparently contained the ones used on Huber. Evans planned to use the testimony of the two ex-lovers to make it clear to the jury that Famalaro was the killer who had bound Denise Huber with the manacles.
Also, other items collected during the search might lend additional credence to the probability that Famalaro harbored a lingering interest in sexual bondage and domination. Lt. Scott Mascher and his team found an assortment of pornography ranging from Playboy magazines, advertisements for stores offering sexual paraphernalia, dial-a-porn numbers, to hardcore bondage publications. He and Evans were convinced that Famalaro had ordered the handcuffs through one of the publications.
In addition to the lascivious material, videotapes and articles about murder turned up in the house searches. All of the material involving sexual deviance, Evans figured, could strengthen his argument that Famalaro had acted out of lustful urges for sexual dominance of Huber, and had committed the murder to either prevent her from going to the police, or because she tried to reject or resist him. The collection of smut might also be useful in showing a consciousness of guilt or at least an unhealthy interest in the subject. Of course, Evans realized, any number of ordinary people might keep tapes or articles about sex and murder as a general interest. But those folks do not keep nude, frozen bodies of murder victims in storage. The publications containing details of notorious crimes became significant only in combination with other evidence.
Evans wrote, “The newspaper articles reveal Famalaro’s long-standing fascination with homicide and sexual homicide. The articles he collected include one about the so called ‘Barbie-Ken’ murders in Canada. This infamous case included a couple of people who engaged in sexual homicides including sex with a dying or unconscious victim. Other articles contained stories on infamous serial killers, with maps and photos. Defendant also collected articles regarding theft of human remains by a satanic cult, the Manson killings, notorious sexual-serial killer Henry Lee Lucas, and the Orange County 1993 Stuart Tay homicide, where the young victim was buried in a shallow grave in a backyard. Famalaro’s fascination also [dwelled on] human remains. The article collection featured a story about human remains found hanging in tree by a noose. The defendant also kept articles on forensic pathology in Orange the MacDonald’s massacre in San Ysidro, California, and various other homicide articles.”
Along with these “souvenirs” of murder, Evans said, Famalaro kept three articles about the Denise Huber disappearance, and he specifically recorded a television piece on the case.
Pornographic material, Evans argued, “displays defendant’s motive and intent in sexual contact with young women ... Unlike most everyone else, he kept the victim and instrumentalities of his crime, just like he kept his magazines, photos, and articles.”
Acknowledging that the prosecution would depend entirely on circumstantial evidence, Evans wrote, “There will be no direct evidence presented by the People regarding the murder or the sexual assault of the victim. The newsclips and ... the pornography are links of circumstantial evidence that tend to prove motive and intent for the murder, and that the sexual assault occurred—a fact the defendant, no doubt, will strongly contest. Although evidence will be presented that the victim’s body contained two spermatozoa deep in the rectum, it is anticipated that the defense will dispute this evidence or contend that the defendant was not the source of it.”
Defender Leonard Gumlia, vehemently arguing against the inclusion of sexual material or articles about murder found in the possession of Famalaro, pointed out that items the prosecution sought to introduce into evidence were a very small part of the massive volumes of publications kept by his client. Famalaro had been charged with sodomy, but none of the sexual material portrayed that particular sexual act, Gumlia said. And the wide variety of articles about homicide simply showed an interest in the subject, not that he had committed a crime. Gumlia asked, “Is the prosecutor asserting that the presence of this material creates an inference that the defendant intended to kill Ms. Huber?” If so, Gumlia countered, another question must be asked. “Does that mean that the presence of his collected articles on diamonds create an inference that he intended to buy her a diamond? Or, does the presence of his collected political articles create the inference that he intended to discuss the issues of the day with her? As absurd as these assertions are, they are of no greater logical weight than the argument put forth by the prosecution.”
To allow such irrelevant evidence into the trial, Gumlia argued, would waste a great deal of time, would be of “minimal probative value” and would be outweighed by its prejudicial effect on the jury.
Giving special mention to the videotape Famalaro had kept of Inside Edition, in which the parents of Denise made a nationwide plea for information about their daughter, Gumlia admitted that it fell into a different category. But, the defender protested, it could not be shown to the jury in its entirety. He wanted certain portions excised, including tape sequences of Denise during her life, statements by her father expressing his personal feelings, information Gumlia termed “false” about the flat tire, and conclusions from an investigator that there had been a kidnapping.
To the dismay of Chris Evans and several outraged cops, a judge agreed with the defense and ruled in their favor. The evidence about Famalaro’s collections of sexual material, literature about murder, and much of the Inside Edition tape would not be allowed in the upcoming trial.
Round one went to Leonard Gumlia, and took some of the sting out of punches Evans planned to throw.
During the ongoing battle over what evidence a jury could hear in the murder trial, the Huber family set in motion a separate issue very important to them. Along with legions of Americans, the Hubers had heard stories of convicted killers profiting from their crimes by selling their stories to magazines, books, or movie producers. Dennis and Ione decided to block that eventuality before it could happen by filing a lawsuit against John Famalaro. From their new home in North Dakota, they asked prominent Orange County attorney Jeoffrey Robinson to initiate the civil action.
Robinson explained the reasoning, pointing out that the Hubers had anguished long and hard over the decision. Based on the charges against Famalaro, he said, the Hubers “will not rest until their every legal right is exhausted. Even if they don’t collect a dime, it sends a message to him reminding him of what he has to face.”
In January 1996, while snowdrifts covered the eighteen-month-old grave of Denise Huber, an Orange County judge awarded her parents a judgement against John Famalaro of $1,000,000, plus $10,000 in damages. As Robinson had said, the Hubers would probably never collect one single dime of the money.
The Hubers’ move to North Dakota provided some of the expected relief, but not as much as they had hoped. Selling computer software to mortgage bankers, Dennis experienced moderate success, while Ione fared reasonably well in the real estate business. They purchased a 1916 vintage home in Bismarck and embarked on the hard work of restoring it to its original luster, with plans to move in and sell the newer house. It closed escrow on November 12, 1996, their late daughter’s 29th birthday.
Haunting pain, though, did not fade away with the relocation. “I don’t know if these days are any different,” said Ione. “Sometimes I get angry why it all had to happen. You kind of go through different phases, mood swings.” Now and then, they would catch sight of a rental truck, and a terrible thought would plague them. Is that the one in which Denise was found?
The growing popularity of cellular phones acted as a reminder to Dennis. “I know if she would have had a car phone, she’d be alive today.” He also wondered if he had taught Denise how to continue driving on the rim in case of a flat tire, would that have prevented the tragedy?
Memories of Denise came to mind frequently. “I think of her many, many times every day,” said Ione. “I always think of the good times. She was a likeable person and a joy to raise. I miss her a lot ... We’re struggling. It’s never going to go away.”
Ione’s eyes glistened with moisture. “I will always remember the last time we saw Denise. She was happy. She stuck her head around the corner and said, ‘I love you, Mom and Dad.’ ”
A visitor cheered them in September 1996. Nancy Streza, with Jeff’s permission, brought with her little Ashley Denise Huber. For years, Nancy had been not only a dear friend, but a spiritual inspiration for them. They took her and the child boating on the Missouri River and spent the fall evenings reminiscing about the good times. After a week, Nancy returned to Orange County, but the granddaughter stayed longer.
Interminable delays in establishing a trial start date kept the Hubers in exasperating suspense. After being told that it had a good chance of starting in November 1996, they made plans to travel to California. Once again, a postponement forced them to cancel the arrangements.
Prosecutor Chris Evans kept in close contact with Dennis and Ione as officials repeatedly entered new trial dates on calendars, then marked them out. He patiently explained the cause of each delay. Jeff Huber still lived within a short drive of Orange County, and Evans also spoke with him frequently. Evans’ own father, whom he had admired so deeply, Had passed away in 1993, making the prosecutor even more aware of the bond between parents and offspring. With Jeff, Evans established a rapport that transcended the upcoming trial. Both men had strong interests in music. In his own youth, Evans had played the guitar and trombone. The urge struck him to renew and hone his guitar skills, so he consulted Jeff, who went with him to offer guidance on the purchase of a Gibson brand instrument. Huber even threw in a few lessons, and Evans attended some of Huber’s gigs. By this time, Huber had adopted the shoulder-length hairstyle of young men in the music business, with matching blond chin whiskers and a light mustache. He too anxiously awaited the upcoming trial.
Because of the huge volume of evidence and the complex legal wrangling, the Orange County public defender followed the usual policy of assigning two lawyers to difficult cases. An intelligent, dedicated and experienced attorney, who shared the same given name as the victim, joined Leonard Gumlia early in the process to help analyze evidence and plan court strategy. Denise Gragg had fought tenaciously against the death penalty throughout her career, consistent with her firm belief that no one has the right to kill people, other than in self-defense, not even the state.
In contrast to the tough, emotionally draining arena of criminal trials, Gragg’s second-floor corner office reflects her romantic side. Posters of Gone With The Wind along with life-size cutouts of Clark Gable as Rhett and Vivien Leigh as Scarlett, and a Scarlett doll, decorate her workplace. As a youngster in the sixties, she loved taking a bus from Orange County to LA to visit a great aunt who would take her to the ornate old movie palaces in Hollywood, sometimes two or three a day. “I’ve lost count, ” she says, “of how many times I’ve seen Gone With The Wind. But my favorite actor was Jimmy Cagney and my second favorite movie is White Heat. ”
A native Texan, Gragg became a Californian early when her father, a U.S. Naval ROTC officer, moved to Palo Alto to become a computer systems analyst They soon gravitated to the southland where Gragg attended school in Yorba Linda and Fullerton, then Pomona/Claremont College. To obtain her law degree, she returned to the San Francisco Bay area and matriculated at prestigious Boalt Hall, University of California, Berkeley. She passed her bar exam in 1981. Her partner for the Famalaro case, Gumlia, expressed the greatest respect for Denise Gragg. Once, upon hearing someone compliment his intellectual abilities, he pointed to Gragg, and said, “There’s the intelligent one. She’s so bright it’s scary.”
Asked how she can rationalize putting intense effort into defending beasts who have committed heinous crimes, Gragg thoughtfully responded. “You know, I really haven’t met any client I would regard as a true beast. Some of them have done beastly things, but each and every one of the defendants I’ve met also has a human side.” If people accuse her of resorting to technicalities or trickery to get criminals off, Gragg rejects the notion. “I do not say anything in court that is untrue, and when I walk out of there, I have a perfectly clear conscience. Just because the state brings charges against a defendant, it does not mean the person is guilty. Without people like me, our system would fail. We would have kangaroo courts like some other countries. The founding fathers didn’t put those guarantees into- the Constitution because they liked crime.”
In her role as supervisor of writs and appeals in the P.D.’s Officer, Gragg has convinced more than one courtroom opponent that she knows the law and can present it effectively in court.
Recognizing that the Famalaro trial could be extremely emotional, during which the jury could probably be brought to tears more than once, Gumlia and Gragg filed a motion to disallow so-called victim impact testimony. Such testimony is applicable only if the defendant is found guilty of murder and the trial goes into a penalty phase to determine appropriate punishment. The issue had been controversial for years. California, and several other states, had passed legislation allowing victims’ families to tell juries how much the loss of their loved ones negatively impacted their lives. The California law, though, had been written five months after the murder of Denise Huber.
The U.S. Constitution forbids the enactment of ex post facto laws, which means that it precludes, for the most part, retroactive application of new laws. So, reasoned Gragg and Gumlia in a fourteen-page motion, victim impact testimony by the Hubers should not be allowed in the pending trial of John Famalaro, in case it advanced to a penalty phase. Noting exceptions to ex post facto, the judge denied their motion.
The delays, motions, and conflicts of schedule had stretched the patience of Orange County residents long enough.