The Mistrial of Steve Grogan

This is the other relevant chapter from Justice Over-ruled by Burton Katz.

Scared Off by the Manson Family

In many ways, the worst judges are not the corrupt or crazy ones. The worst are decent, well-meaning judges who just are not up to the job. The first time I tried Steve Grogan for the murder of Donald "Shorty" Shea, the case ended in a mistrial because Judge Joseph Call could not keep going when things got rough. When you were dealing with the Manson family, things could get rough.

Judge Call had been appointed to the bench over thirty years before the Grogan trial. Few lawyers were willing to risk a complicated case before Judge Call. As luck would have it, we drew him for Grogan. We were having difficulty finding a judge who could try a case that was going to take as long as Grogan. We reluctantly agreed to Judge Call. It was to prove a costly mistake for both the defense and the prosecution.

During the trial, Nancy Pitman (a.k.a. Brenda McCann), "Squeaky" Fromme, Mary Brunner, Sandra Good, and other Manson family members slept out and "held court" on the corner of Temple and Broadway, just outside the Hall of Justice. Each morning, outside my office, I would encounter the family huddled together picnic-style, looking like innocent suffragettes bonding together for the cause. The Manson girls were as schizophrenic and enigmatic as Charlie himself. Sometimes they were pleasant, even coyly flirtatious. They would invite me to go camping with them at Spahn Ranch so they could reindoctrinate my misguided and corrupt establishmentarian ways of thinking. When things were going poorly for Charlie, they were menacing and dark-spirited, rubbing the sheath knives they kept lashed to their hips. They were always strangely entertaining, Shrouded in mystery, myth, and rumor.

During the Grogan trial, a fierce rumour floated about that the Manson family was going to free Manson, Steve Grogan (the defendant in my trial), and Tex Watson. Death threats had been directed at Judge Call and everyone else involved in the trial - even at the defense attorneys. Security was beefed up. Undercover cops were sprinkled throughout the courtroom audience. I was told I was to dive under the counsel table if a shootout started, because I was (as they delicately put it) "expendable" in any court shootout. The cops' priority was to protect the judge. The DA's bureau assigned a personal bodyguard to protect me and my family, and armed me with a snub-nosed .38, which I carried strapped under my arm. We were all edgy. But Judge Joseph Call came completely unglued. It started in the judge's own chambers.

Fearful that Grogan would accuse him of something sinister if a chambers hearing occurred outside Grogan's presence Judge Call allowed the defendant to be present in chambers during a discussion with counsel. The.judge sat there nervously, jiggling some coins. Grogan sat only a few feet away. As the judge attempted to reassure Grogan he was doing everything he could do to provide a fair trial, Grogan suddenly moved. He knelt in front of the startled judge, his hand on the judge's knee-like a supplicant with a beatific smile, kneeling before Christ.

We all stared, transfixed. At that moment, Grogan could have killed him. The judge's face was ashen; his hands shook. Before the bailiff could help, the judge looked at Grogan for reassurance and said in a quivering voice, as if to convince himself "Steve doesn't mean anything by it." Grogan, looking up at the judge and still smiling, gently replied: "It's okay, Joe, I know you're just trying to be fair. . . you'll do the right thing." From that moment on, the judge began to unravel. All he wanted was to get out of trying this case. The only way he could do that was to declare a mistrial. You will probably not be surprised that he found a way to do precisely that.

Things might have settled down, had there been no further incidents. But it was not to be. Several Manson family members, including Mary Brunner and Catherine Share (a.k.a. Gypsy) tried to rob a gun store. In the ensuing gun battle with the people, over fifty rounds of ammunition were fired, but miraculously no one was seriously hurt. Manson family lore has it that Gypsy's bra was shot right off her by police gunfire ripping through the getaway van in which she was waiting. The police did find a bloody bra in the bullet-riddled van, which amazed me. To my knowledge, Gypsy had never previously been sighted wearing a bra.

Following their arrest, an additional cache of weapons was recovered-weapons that were to be used in freeing Charlie Manson and his faithful followers. Needless to say, we were all on edge as we began the third month of trial. The stage was now set for the showdown on the stand with Brenda McCann. McCann was an important witness because she was present during a conversation between Grogan and Paul Watkins, a Manson family member and close confidant of Charles Manson. After surviving a mysterious trailer fire that nearly took his life, Watkins turned state's evidence. He believed Manson was behind the fire, and he was probably right.

As a government witness, he had testified to a stunning confession made by Grogan in that conversation:

Charlie told me cut his [Shorty Shea's] head off. So I had this big machete and I chopped his head off and it went, bloop, bloop, bloop and rolled over out of the way. . . it was real groovy. . . .

Grogan told watkins that he had brood splattered all over him, and it was all warm, and he had it all up his arm.

Watkins then asked Grogan if he felt guilty. Grogan replied,

Any guilt that I have is my changes [a term used in scientologyl because in reality one baby should be able to kill another baby and then reach over and eat his shit. . . any guilt that I have is something I have to work out with myself.

Defense attorney Charles Weedman called Brenda McCann as a witness in an effort to refute the damning confession. she claimed she had heard the same conversation, and denied that Grogan had ever confessed to the murder of Shorty Shea. In an effort to discredit Watkins, she claimed he boasted that he was avoiding the draft by feigning mental instability epilepsy, and seizures. Further, she said that Watkins claimed he had learned to mock up cancer in his lungs so that an X ray would reveal a black spot! she also added that he claimed to be a homosexual. The last point was hilarious inasmuch as the jury had just observed the extremely handsome and youthful Watkins on the stand for several days, regaling them and the court with his tales of lust for the family females, who, like honey attracting bees, had induced this adventuresome youth to join the family.
Watkins testified,

Well, when I first met Charlie, I was all alone and I wandered into a house and then there was Charlie and. a couple of other guys and ten girls, and that was what I had been looking for. I knocked on the door and three girls met me at the door, and right away I recognized the smell of marijuana, and they asked me to come in. And so then when I went in, it was [sic] some people didn't have their
clothes on, and so right away I felt the free atmosphere, and I was overcome by a feeling of this is what I was looking for.

Watkins was as homosexual as John F. Kennedy.

I began my cross-examination. I wanted to show the jury this witness was completely untrustworthy because of her Manson family affiliation. The attitude of the "family" toward conventional values was
summed up as follows in their own words:

Whatever is necessary, you do it. When somebody needs to be killed, there's no wrong. You do it, and then you move on. And you pick up a child ancl you move him to the desert. You pick up as many children as you can and you kill whoever gets in our way. That is us.

Virtually from my first question, I knew it was not going to be easy, as Charles Weedman and the court kept jumping in. I began to focus on the subject of her being a member of the Manson family, and her obvious loyalties and biases. Here is some of that testimony:

Katz:You understand at this time Mr. Grogan is on trial for his life, don't you?

McCANN: Yes.

Katz: You understand the significance of your testimony, don't you?

McCANN: Yes.

Katz: You understand . . . if the jury believes you they might acquit the defendant; isn't that right?

McCANN: Yes.

Manson and his followers had disavowed society's rules and laws; they X'd themselves out of society. I explained to the judge that, during the Tate-LaBianca trials, Charles Manson, Susan Atkins, Katie Krenwinkle, and Leslie Van Houton had carved X's on their foreheads. other family members quickly followed suit, symbolizing the family's rejection of society rules and conventions. Hence I felt it was appropriate to ask whether Brenda recognized. her duty to tell the truth under oath.

Katz: [You would do anything you could, you would lay down your life for Clem [Grogan]; wouldn't you?

McCANN: Yes.

Katz: As a matter of fact, Brenda, with respect to the so-called establishment and society as we know it, you have X'd yourself out from society, haven't you?

WEEDMAN: Oh, Your Honor, for heaven's sakes. How long is this going to go on?

The court said it was not proper cross. I then asked her if she believed in the law against perjury. More objections were sustained by the court. I now turned my attention to the actual conversation between Grogan and Watkins. on direct, I had deliberately refrained from asking Watkins about the entire conversation in which Grogan and McCann had talked also about killing Frank Retz, who owned property next to Spahn Ranch. Retz had physically thrown Manson, off his property and advised George Spahn strongly to kick the family off Spahn Ranch. He was regarded as an enemy of Manson. I believed that this information was irrelevant to the confession and arguably too prejudicial. However, when Weedman made a tactical mistake in asking Brenda McCann on direct whether she had described the whore conversation, to which she replied yes, the door was open wide enough to accommodate two elephants and a rhino. The law allowed me to elicit the entire conversation, which included the damning death threats to Retz. I asked McCann whether she and Grogan had talked about killing Frank Retz. Of course, I expected her to lie about it, and she did. Before I could ask a follow-up question, Weedman jumped up and asked to go into chambers. The testimony was reread. Weedman argued that this was impeachment on a collateral matter and highly prejudicial. He then made a brief argument and a halfhearted motion for a mistrial. Judge Call had been terrorized with the news of the gunstore shootout just five days earlier. Weedman's mistrial motion was just what the judge had been waiting for-a way to get himseif out of this case.

The judge started talking about a whole series of small matters he claimed were prejudicial, things that had not even come up as objectionable at the time of the testimony, things that were not even the basis of Weedman's motion. what is absolutely amazing is that he was ignoring virtually indestructible, well-settled rules of evidence. I then asked for a recess so I could prepare a brief on the law permitting such questions to be asked. This was summarily denied. It was clear where Judge Call was going, and he wanted no impediment to his decision to jettison the case by declaring a mistrial. The judge said "I am serious on the question of a mistrial. I am serious about it. I think it is highly prejudicial, highly inflammatory, and it can't be otherwise."

Dejected, I went home. The next morning I appeared in court. Weedman and I were locked out of chambers for two hours. I had case citations with me establishing that my cross-examination about Retz had been entirely proper. But Judge Call never heard about those citations because he did not want to hear anything that interfered with his decision to get out of the case. At 10:50 A.M. we were ushered into chambers. The judge immediately started picking over the entire transcript of the previous day's proceedings. He read into the record minor points having nothing to do with the subject of Weedman's mistrial motion, and even alluded to questions asked of a witness other than McCann. This nitpicking went on for nearly three hours. Then the judge stated. This is my final summation. I do grant the motion for mistrial.As the old song goes, you should be careful what you wish for, because it may come true. Weedman was horrified. I know he had moved for a mistrial. The judge had just granted his motion. Why was he upset? In truth, a mistrial was the last thing he wanted. All he was trying to do was set up an issue on appeal. Basically, he had moved for the mistrial so he could argue to an apellate court later that he should have gotten a mistrial he did not really want. Defense lawyers do this all the time. This was nothing different.

What was different was having such a weak motion granted by the court. Weedman frantically tried to backpedal. First he asked the court if he could confer with his client before the jury was dismissed. The judge was ready to discharge the jury, but Weedman asked for another chambers discussion in which Grogan was present. Craftily, Weedman then told the judge that while he did not necessarily agree with his client's assessment, Grogan had expressed a "feeling that some of these matters could be sufficiently cured so as to insure [sic] him of a fair trial in this matter". Weedman mentioned that this had been a long trial, and it had been a considerable strain on Grogan; that while he believed the errors could not be cured, he needed more time to discuss the ramifications of a mistrial with Grogan, who might disagree that a mistrial was necessary. Weedman had cleverly placed the court in a vice, on the one hand suggesting his client might object to a mistrial, even though he, as his lawyer, believed it was warranted. A declaration of mistrial over the strenuous objection of the defendant can result in double jeopardy, barring a retrial. The trap was being set.

Judge Call quickly began to reiterate, apparently for the benefit of Grogan, how devastating the supposed prosecutorial error had been:

Your jury is prejudiced. I'm telling you my opinion again. It is deadly. I think it has created irreversible prejudice in the minds of those folks. You should, go out and get new jury on this and a new judge; let somebody else rule on it. I'm out of it. I mean, in a new trial, they should. get somebody else in.

Note Judge Call's insistence that he personally should be re-moved from the trial. The usual rule is that the trial judge at the first trial also presides over the second. Because he is already familiar with the evidence and the raw pertaining to that case, the rule saves time and makes good sense. But Judge Call was the senior judge. He was not worried about anyone junior to him telling him he had to retry this case. Nor on your life. Weedman took one last stab. First he told the judge he had no objection to his continuing in this trial. Then he was allowed to confer once again with Grogan. Upon returning, he asked that the court delay the discharge of the jury until the following Monday (it was Friday) with a view toward withdrawing his mistrial motion. The judge refused. The jury was dismissed. The case was over, as far as Judge Call was concerned. The jurors were confused, shocked. Not one juror understood the reason for the mistrial. Not one thought the question about Frank Retz was that important. Fortunately the case was quickly reassigned to the very competent Judge James Kolts.

He conducted a fair and expeditious trial. The case was tried swiftly and without incident to a conviction and a death-penalty verdict which Kolts reduced to life in lieu of granting a motion for a new trial.