THREE

The case of People v. Palliko and Stockton commenced the morning of November 18, 1968, in Department 110 of the Los Angeles Superior Court. Sandra walked into the courtroom appearing disoriented and nervous, unsure whether to remain standing or to sit, until Terry Callas held her chair for her and nodded. When I looked over at her, her blue eyes darted from mine. Quite often during the trial I would glance over at Sandra to see how she was reacting to whatever was being said from the witness stand, and every time she avoided my look. Not once during the thirteen-week trial did she allow our eyes to meet.

Sandra’s jailers thought she was an icy, dyed-blonde Jezebel. I do not doubt that a cold calculation was a part of Sandra Stockton, but during the course of the trial I saw another side of her as well. Every morning when she and Alan were brought in and seated at the counsel table, all of this before the jury entered the courtroom, Sandra would lean over the railing to embrace her mother. Harriet Bingham did not miss a day of the trial; Sandra’s father, Ted, could rarely come because of work. Mrs. Bingham often handed Sandra changes of clothing over the railing, and almost always the first words from Sandra’s mouth were: “How’s my Kyle?”

She often gave letters to her mother to take to her son. One of the first was just a short note: “I am from grandma. You are from me. And we are like a circle. You and me and grandma.”

One of the most difficult parts of being a prosecutor is, without doubt, witnessing the suffering that a defendant’s family must go through. It is the one part of the job I never quite learned to live with.

When Alan walked into the courtroom, he was a picture of self-assuredness. With his charcoal grey suit and tie and his attaché case, he had the air of a man who was being inconvenienced. In the “holding tank” behind the courtroom, other prisoners sat literally at his feet while he expounded on the law.

Throughout the trial, Alan was seen smiling and winking at the attractive women in the gallery. That was all, of course, before the jury filed in. As soon as they did, Alan turned back to the front of the courtroom and assumed his expression of earnestness.

Alan’s parents came to court every day of the trial. Whenever they began to wave at their son, they had to let their half-raised hands fall back to their sides, for nearly every time, Alan turned his head away, refusing to acknowledge them. It was sad.

Young attorneys fresh out of law school are quickly disabused of the notion they can pick jurors who will be favorable to their clients just by noting the prospective jurors’ outward appearance, their manner of speech, or even by the answers they give during voir dire (the questioning of prospective jurors by the court and counsel to determine their competence and impartiality). Although still the common subject for joking back in chambers is that prosecutors are always looking for crewcut, Nordic types, defense lawyers for long-haired fellows with wide red ties, most trial lawyers realize that the greatly limited scope of allowable questions on voir dire reduces jury selection to one third art and skill and two thirds guesswork. Even in the area of art and skill, however, I have never felt particularly adequate, having never been a terribly good judge of people early on. But I really believe that despite assertions by some well-known trial lawyers to the contrary, it is extremely difficult for any lawyer to get a good insight into someone after just a handful of questions. Clarence Darrow once said he’d never pick a juror whom he was unable to make smile.

I was rather unhappy with the panel of seventy-five prospective jurors called for the Palliko-Stockton case. It was a totally “virgin” panel. Not one of the prospective jurors had any previous jury experience in a criminal case. Prosecutors generally prefer jurors who have had some prior jury experience, partly because virgin jurors have the misconceived notion that guilt must be proven “beyond a shadow of a doubt,” i.e., not just beyond a reasonable doubt, but beyond all doubt. If that were so, very few defendants would ever be convicted of any crime.

In California, when the prosecution is asking for the death penalty, we have what is known as a “bifurcated” trial. If the jury finds the defendant(s) guilty of first degree murder, those same jury members remain for a second, generally much shorter trial called the penalty trial, at which the issue for them to decide is whether the defendant(s) should receive life imprisonment or the death penalty.

In the Palliko-Stockton case, a heavy part of the voir dire questions concerned the prospective jurors’ views on the death penalty, and I ended up facing a jury whose majority of members stated that, although they had a conscientious objection to the death penalty, they could bring themselves to vote for it if the circumstances of the case were sufficiently aggravated.

One could have anticipated many of the other questions asked during the jury selection: Would you be likely to give more or less weight to the testimony of a police officer simply because he was a police officer? (The answer should be neither more nor less); could you vote a first degree murder conviction even if there were no eyewitnesses? (I hardly need mention who asked that question); would you be “prejudiced” against a defendant who you learned to be adulterous? (Nor need I point out which side asked that question.)

Although both sides seek to excuse jurors who have prejudices which will work against their side, ironically, to ask a juror that very question, i.e., if he is prejudiced against something, is almost pointless, as a juror will rarely admit he is “prejudiced” against anything. Phrases like “lean towards,” “preference for,” or even “like” or “dislike” have to be employed in related but indirect questions to expose the bias.

David Goldin, a young attorney with a premature paunch and the constantly amused smile of an observer of humanity, asked a good line of questions of one of the prospective jurors.

Q. “Have you ever watched the Perry Mason program?”

A. “Yes, I have.”

Q. “Something always happens in Perry Mason that I have never seen happen in court, and that is usually when somebody is on the stand in the middle of cross-examination, somebody will stand up—usually in the audience—and say, ‘Yes. I confess; I did it. I couldn’t help myself.’”

I sat back and smiled.

“Do you then get a good feeling from the program,” Dave went on, “because not only was the person charged found not guilty, but you also found out who did it? Do you have the feeling in this trial that we have to solve the crime?”

A. “No, I don’t.”

Q. “You don’t feel you will have a tendency to say, ‘Well, if they didn’t do it, who did? I want an answer to that question before I will find them not guilty’?”

A. “No.”

Invariably, jurors sit wooden in the jury box during a trial, believing they are never supposed to change their expressions, as though participants in a black-tie poker game. This extreme decorum on their part while amidst a completely foreign atmosphere of officialdom starts with voir dire, making them hesitant to speak their mind. Urging them to relax, I tell them that if they disagree with any of the rules of law I refer to, it is important they speak up then, not back in the jury room at the end of the trial. If they do not disagree, I get a commitment under oath from each juror (which I remind all of them of during my summation) that they will faithfully apply the law of the case during their deliberations.

Perhaps the most important question I asked the prospective jurors pertained to the “vicarious liability” rule of conspiracy. In non-legalese, this rule provides that when people conspire to commit a crime, the criminal act of one is the act of all (unless, of course, the act had nothing to do with carrying out the objective of the conspiracy). In this case, even though we were not alleging that Sandra killed Henry or was even present at the scene, if, as we did allege, she and Alan conspired to murder Henry, and Alan subsequently did the actual killing, Sandra would be equally guilty of the murder.

Likewise, with respect to Judy’s murder, if Alan, as we believed, had someone kill Judy for him, by definition, he had to have conspired with that person. And under the law, even if the identity of this other party were never ascertained, Alan would be equally guilty of the murder.

It has been my experience from questioning jurors that some people are disinclined to assign equal guilt and/or punishment to the conspirator who does not actually perpetrate the crime. With this in mind, I asked each juror if he or she understood the rule of vicarious liability, and if they would unhesitatingly apply this rule if they found a conspiracy existed.

At the end of six and a half days, we had our jury, five women and seven men: four housewives, a machinist, an advertising director, an electrician, a forklift operator, a social worker, a furniture craftsman, a production control manager, and an engineer. An unremarkable, black and white picture of a city that is usually thought of in Technicolor. The three alternates, often referred to by trial lawyers as “spare tires,” were a civil engineer, a housewife, and a phone company maintenance worker.

After the jury and alternates were sworn in, Judge Young recessed the court until after lunch. At 1:45 P.M. the prosecution and defense would give their opening statements (a lawyer’s preview to the jury of the highlights of the case he intends to present), and I would begin my case by calling my first witness to the stand.

Although I sometimes waive opening statement, feeling that, among other things, it takes the edge off my witnesses’ testimony when the jury has already heard the story from me, the evidence in this case was so fragmented and scattered in its times, places, and events, that I made a brief, fifteen-minute statement to the jury to enable them to better follow the evidence as it came from the witness stand.

On the subject of the second murder charge, I stated: “We intend to prove by very strong circumstantial evidence that Alan Palliko was responsible for the murder of his wife, Judy.” The flexible word responsible, I had chosen carefully since I knew very well I was not prepared to prove that Alan had actually pulled the trigger himself, but at the same time I did not want to box myself in by saying that Alan had definitely had someone else kill Judy for him. While the trial was going on, the investigation was continuing, and new evidence might emerge that Alan did, in fact, kill Judy himself. Thus, the word “responsible.” Lawyers have to be careful in their opening statement so they do not have to contradict themselves or retract by trial’s end.

At the conclusion of my remarks, I asked that all the jurors take as detailed notes as possible during the trial. When they deliberated on their verdict some three months hence, they would be grateful they had, I told them.

Terry Callas waived opening statement. Dave Goldin gave one of the shortest opening statements I have ever heard—and also one of the most startling.

MR. GOLDIN: “Your Honor, Mr. Callas, Mr. Bugliosi, ladies and gentlemen of the jury. I will be even more brief than Mr. Bugliosi.

“I expect—I have very high hopes—that the evidence, all of the evidence offered, will show the identity of the person who did kill Judy Palliko and Henry Stockton.

“It was not Alan Palliko.

“Thank you.”

I gazed hard at Dave. Had I heard correctly? Goldin was telling the jury that not only was I unjustly prosecuting his client, but that he thought he knew who the actual killer was. Dave sat down nonchalantly, as if not even hearing the sudden rustling throughout the courtroom.

If Goldin had evidence to support his claim, as much as I wanted it, he had no legal obligation to furnish me with it. Under the law of pre-trial “discovery,” although the prosecution has to permit the defense to inspect and/or copy virtually all of the evidence the prosecution has gathered, the defense does not have to reciprocate. The rationale for requiring discovery from the prosecution is the defendant’s constitutional right to a fair trial. The courts have held that the prosecution should not be permitted to sandbag the defendant by the surprise tactic of introducing evidence at the trial which the defense had no prior knowledge of and against which it had no reasonable opportunity to prepare a response. The reason the defense does not have to reciprocate and turn over its evidence to the prosecution is that the defendant might then be furnishing evidence which the prosecution could use against him. Such a forced disclosure would violate the defendant’s right against self-incrimination under the Fifth Amendment to the U.S. Constitution.

The one bit of discovery I was able to get from the defense was a list of the witnesses they had subpoenaed. Not what they were going to testify to, just their identity. But even this was valuable. I immediately attempted to have every defense witness interviewed. If they gave a statement to us, I could use it as a basis for impeachment at the trial if their testimony was in conflict with the statement they gave us. Even if they were unwilling to give us a statement, this too could work to our advantage. On cross-examination, this refusal to give a statement can be brought out to show the bias of the defense witness.

More than anyone else in the courtroom, I wanted to know just who Dave Goldin was intending to prove was the true murderer of Henry Stockton and Judy Palliko.

My first witness was Elbert Thompson, the Stocktons’ next door neighbor, who testified to discovering the fire and to his wife’s calling the fire department. On cross-examination, Goldin asked Thompson if he had noticed whether Henry Stockton had any visitors over that night. Thompson had not.

When Merle Pugh, Senior Investigator for the L.A. Fire Department’s Arson Investigation Section, took the stand, he could only say there was a “possibility” that the fire was a result of arson.

Terry Callas cross-examined:

Q. “You do not have an opinion as to the cause of the fire, do you?”

A. “I have classified it as suspicious, sir.”

Q. “Which, as an arson investigator, is really no opinion at all, right? In other words, you can’t eliminate factors or say that one cause is more probable than another in this case?”

A. “That’s correct, sir.”

I did not bother belaboring the question of arson on redirect examination. It was obvious to anyone that it would have taken an extremely bizarre coincidence for a fire to have started accidentally in the bedroom around the very same time Henry was shot five times in the head and chest in the living room.

Sgt. Joe Aguirre testified to his observations when he arrived at 5:30 A.M. that Sunday morning—the gunshot wounds to the body that still lay out on the front lawn, the splattered blood on the living room chair and the wall behind it, the absence of any signs of forcible entry (I would later argue to the jury that Sandra had probably furnished Alan with a key), et cetera. I intended to recall Aguirre to the stand the next day to testify to his interview with Sandra upon her arrival back from Twentynine Palms, but before I could introduce that testimony of Aguirre’s, I anticipated a tussle with defense counsel in the judge’s chambers over its admissibility.

This first, abbreviated day of testimony concluded, the judge left the courtroom and then the jury filed out. When it was time for the defendants to leave, the bailiff, Gary Booker, put his hand on Alan’s shoulder from behind. Alan’s body jerked as if touched by an electric wire.

“Don’t ever touch me!” he snarled at Booker. “Tell me what to do, but don’t ever . . . ever touch me.”