“A lifetime of provocation!” Defense attorney Bradley Patton, facing the jury, throws his arms wide to indicate what he calls “the spectrum of the relationship.”
It is the first week of June 1993. The final day of the trial: The State of California vs. Charles T. De Woody in the courtroom of Judge Runston G. Maino, Vista Superior Court. DeWoody is charged with his father’s murder. His arrest nearly a year ago for attempted murder was made without benefit of incriminating evidence or witnesses — only the defendant’s confession.
Patton warms to his closing arguments, becoming more dramatic, alternately hushed and emphatic after some 15 minutes of defining legal terminology for the jury. Later he will wish he had spent more time making them understand the mechanism of “implied malice,” but possibly he sensed he was losing them in the dry jargon, the elaborate charts with categories and subheadings like “malice aforethought,” “unlawful killing,” “burden of proof,” “ordinary prudence,” “reasonable doubt.”
Patton continues, “The flower pots used to kill Mr. DeWoody, Sr., speak to us of spontaneity!”
The statement, jotted hastily in my notebook, reads as if Patton were recounting a particularly clever, if unfortunately deadly party prank.
This is not the case.
Murder trials are an occasion, outside of the theater, to enact a ritual with conventions as rigorous as a kabuki play, Good vs. Evil, each side exhaustively persuading the silent chorus that they champion the first, and their contenders its opposite. In the middle is the defendant: the embodiment of a morally ambiguous soup, a composite of elusive truth or equally shadowed dissemblance, a metaphoric stew signifying the DMZ of passionate human intercourse.
Charles Tremaine “Toby” DeWoody, the metaphoric stew: an emaciated man, looking at any given time somehow older or younger than his 52 years, blinks rapidly into the overhead fluorescent lights. He clutches his arms together, shivering in his burgundy V-necked sweater and button-down, pin-striped shirt, though it is possibly 70 degrees in the courtroom. He has close-cropped salt-and-pepper hair, sunken cheeks, collapsed posture — the air of a sedated disaster victim about him. He looks for all the world like an abused Chihuahua or what he is exactly — the principal, though possibly muzzled player in a modern-day Greek tragedy.
Many of Patton’s remarks to the jury about the long-term abuse Toby suffered at the hands of his “controlling, abusive, martinet” father are punctuated with gestures to the defendant as if to say, “Don’t take my word for it, just look at this guy.” It is not unthinkable that North County superstar defense lawyer Patton built his case around Toby DeWoody’s fragile presence.
Charles T. DeWoody has been held on $1 million since his arrest at Lindbergh Field in September of last year and his subsequent confession to the killing of his father, Charles O. DeWoody. The son beat the older man into a coma with ceramic pots containing orchids – “at least two of them,” the discovery evidence states and Deputy District Attorney James Valliant underscores at every opportunity. Valliant also misses few chances to state that the victim’s mouth and nose were “stuffed full of potting soil.” Enough, according to paramedics, to make up a ball the size of “a standard orange in volume of dirt.”
The senior DeWoody was a retired attorney. He and his wife lived on one of the snaking high roads of Rancho Santa Fe in a multimillion-dollar home where he spent his days lifting weights at poolside and gardening. He cultivated, among other things, the difficult to grow, fleshy, tropical orchids whose containers became the instruments of his sudden death. Whether DeWoody Sr. had long ago planted the seeds of his own violent demise was the pivotal issue in the State of California vs. DeWoody Jr.
The ten-day trial was as much as anything else, an examination and attempted indictment of the victim’s life. The questioning kept returning to the issue of “lifelong abuse” — or “perceived abuse.” The senior DeWoody had “humiliated Toby consistently,” “beat him with a leather moccasin,” and had years ago “stomped a litter of the DeWoody children’s rabbits to death while wearing a pair of work boots.”
Early on, Patton entered damning evidence of the victim’s lifetime of provocation. Expert psychiatric testimony made much of the fact that the defendant’s sister, Penny DeWoody Beargie, committed suicide (an overdose of medication) in 1985 after her father arranged the “kidnapping” (prosecution’s term: “relocation”) of her children from her Virginia home.
Following the kidnapping/relocation, the senior DeWoody alleged the children had suffered abuse at the hands of their mother, his daughter. Testimony from a psychiatrist spoke of a “chain of abuse” in the family.
STATEMENT OF THE FACTS (Pages 2 through 5 of the Trial Record): “On August 31, 1992, at 9:42 a.m. Sheriff’s Communication Center received an ‘open line’ 911 call from the DeWoody’s Rancho Santa Fe home: no response could be heard to the operator’s questions. Male voices could be heard arguing, though no words could be distinguished. After a thump or crash sound the voices ceased. Several seconds later the call terminated from the source of origin.
“Sheriff’s deputies responded to the DeWoody home. The elder DeWoody was found lying, face to the side, on the ground of the side yard. Pieces of broken clay flower pots were about him. A flower pot shard was still embedded in his head.
“Severe lacerations were all over his head. Blood had already coagulated over many of them. The victim could be heard moaning, and blood was coming from his mouth. He was unconscious.
“Paramedics arrived and began rendering first aid. They took turns removing dirt from the victim’s mouth and throat… The victim was life-flighted to Scripps La Jolla. There, more dirt was removed from the airway. Extensive emergency surgery commenced.
“Mr. DeWoody never regained consciousness and died on September 17. The autopsy revealed more dirt, pebbles and twigs in the lungs. The skull had been badly fractured. The medical examiner concluded that death was the result of severe head trauma and suffocation. Several ‘defensive’-type wounds were noted on his arms.
“On the night following the attack Mrs. DeWoody tried to call the defendant to request that he come down [from his home in Northern California]. After several attempts, she reached him at 2:00 a.m. the following morning. Defendant declined to come down, despite his father’s condition, due to a plumbing problem.
“Mrs. DeWoody became suspicious of her son following this conversation. She contacted Sheriff’s detective R.T. Anderson and told him her suspicions and the hostile relationship that existed between father and son.
“She had recently inherited her own father’s Pacific Palisades home and expected a good deal of money from its planned sale. The defendant’s dream, she explained, was to build a house in Nevada City. He had already spent $20,000 for an architect and had made significant plans towards its construction.
“The defendant, age 51, already depended on the income from a trust that his father had previously assigned to him and an additional monthly allowance from her. Nonetheless, he needed at least $200,000, and his mother had indicated she would help with the proceeds from the sale of the Palisades home.
“The elder DeWoody, however, had opposed such financial help and felt that defendant should ‘stand on his own.’ Mrs. DeWoody then agreed with her husband and explained this to her son.
“The defendant’s requests for money were becoming increasingly persistent. She suspected her son of the attack, fearing his frustration over the money.
“On September 5, 1992, Mrs. DeWoody informed Detective Anderson that her son was arriving at Lindberg Field at 5:30 p.m. She explained that she did not want to see him, and she wanted additional precautions taken at the hospital. She asked Detective Anderson to take his message to her son at the airport before he tried coming to her home.
“As the defendant was exiting the ramp after coming off the plane, he was met by two detectives with the Sheriff’s Department. They were not in uniform. One was unarmed. No weapons were displayed.
“The detectives identified themselves and informed the defendant of his mother’s request. They asked if he would be willing to answer some questions at a more quiet location. Defendant simply asked if someone could get his luggage. Nothing more was said.
“The uniformed Harbor Patrol officers who were present were told to leave and did so. Only one remained to drive them to a Harbor Patrol office at the airport.
“Defendant went with the detectives to a marked Harbor Patrol vehicle waiting on the tarmac. It was not a “caged” unit, and doors could be opened by back seat passengers. The drive took moments, and only the two detectives were present during the interview.
“At no time prior to the termination of the interview was defendant handcuffed. No weapons were ever drawn or displayed. Defendant was not told he was under arrest or that he was not free to leave. Defendant never asked if he was under arrest or if he was not free to leave.
“The interview was taped on audio. The defendant was told he was not under arrest prior to any admissions being made.
“Sergeant Robert Plumbly S.D.S.O.: ‘This is a very important time for you. If you did it, then right now, you’re wearing handcuffs. We haven’t told you you’re under arrest because we haven’t got 100% proof…’
“The interview was low-key. No threats were made. Defendant was fully informed of his Miranda rights, despite the fact that he was told he was not under arrest and waived them.
“During the course of the interview, which lasted about 55 minutes, defendant admitted the attack on his father. He admitted he did it because of his frustration over the money…”
Prosecutor Valliant’s case returns as inexorably to “the money” as Patton’s does to “decades of abuse.” The 30ish district attorney’s presence contrasts markedly with Patton’s.
Valliant is cherubic, yet ferl, shrewd, though personable, posturing as the incarnation of human outrage at such familial atrocity. He drives home the portrait of the defendant as an overaged trust-fund baby who had never taken responsibility for his endeavors, aborted ambitions, “his actions.” When Toby came to Rancho Santa Fe to ask his father for money that day in September, he was told by the senior DeWoody, “Not in my lifetime.” In other words, the deputy D.A. suggests, “Over my dead body.” At that point, “defendant may have said to himself — hmmmmm.” Valliant scratches his chin and shifts his eyes back and forth across the room to dramatize heinous premeditation.
Valliant brings up an incident in 1968 in which Toby DeWoody had also attacked his father, breaking two of his ribs.
CONFESSION TAPE of Charles “Toby” DeWoody, 9/5/92:
“It was in Ohio, the Cleveland area, and it was very much a family crisis. My sister had attempted suicide at that time, and I was in real turmoil, and [DeWoody Sr.] and I were conflicting … He really got physical then. He tried to throw me out of the house. He kicked me and I got angry and beat him up. I broke a couple of ribs. That’s why he had to go to the hospital. But that was the only time.”
During cross-examination, Patton elicts certain details of the event that indicate DeWoody Sr. was trying to throw his son out the front door by placing his knee in the small of his back and pushing, causing the younger man to retaliate. Defense attorney Patton, in what might be construed as a subtly artful display of humanity, wears, if not shabby, certainly less GQ-style rough-cloth suits. His hair is thin and streaked with gray. His face seems pinched, ascetic, almost priestly. He wrings his hands and speaks quietly to the jury, diverting any associations with violence, inviting them to recall their own abusive experiences at the hands of a parent: “Haven’t you ever said, “I could just kill him?”
Valliant listens to the defense and smiles as he makes flamboyant entries on his legal pad. From where the jury sits, it might well appear that Valliant is making extensive notes with which to contradict defense. But from behind the prosecutor, it can be seen he is merely drawing bold asterisks, check marks, and angry doodles.
Sheriff’s Detective R.T. “Tim” Anderson is a powerful-looking, dark-haired man, possibly in his late 30s. His mustache is full, brush-like, his eyes are not harsh but they are intense, absorbing. In any room with him — or say, a soccer field — one would suspect that Anderson is taking in more than you are.
At the Vista sheriff’s office, Anderson shows me crime scene photos of the elder Mr. DeWoody. “These photos were kept from the jury because of their inflammatory nature.” DeWoody had been beaten violently. Deep, wide lacerations score his almost hairless scalp, blood covers much of his face, and a triangular piece of one ear is missing. It was never found.
Anderson also displays the architect’s plan for Toby DeWoody’s home in Nevada City: an elaborate multibedroom house, with a two-car garage and an office with a view. Anderson calls attention to this feature and says, “An office? For what? The guy doesn’t have a job.”
Anderson describes meeting DeWoody Jr. at the airport in September of last year.
“We (Anderson and Sergeant Plumbly) said, basically, ‘We would like to talk to you. Your mother feels that you are a suspect in this, before we go any further, and I would like to advise you of your rights.’ He seemed very placid and compliant, but he said, ‘I’m shocked, I’m shocked.’ We asked him why he was shocked, and he said ‘Because I wouldn’t do such a thing. Why me?’
“He saw all the Harbor Patrol officers and got a nervous look on his face. He went along quietly and I taped the conversation. One thing that was interesting, though I didn’t get it on tape, was when we were in between the Harbor Patrol car and our sheriff’s car, DeWoody said that his father ‘just hated me. He dismissed me like a common person.’ You got the impression this guy thought of himself as some kind of royalty.”
Anderson locates DeWoody’s confession tape, the 911 tape, and a letter from Toby DeWoody to his mother, dated September 17, the same day his father died. “Read this letter,” Anderson suggests. “If this doesn’t piss you off by the time you finish it, then you can’t get pissed off.” The letter reads:
Dear Mom — It has hurt me very much that you stopped communicating, even refusing to accept my phone calls. I presume that you received the message from my lawyer about a weekend visit, but in anticipation of you not coming, I’m writing this letter. The last of many, you’ll be glad.
Mom, you have every right to feel much anger and spite toward me. Anyone would agree. However, vindictiveness I would have never associated with you until this morning. I was told that trust payments have been suspended indefinitely so I have no means of paying bills. If your intention is to “strangle me into submission” that will surely do it. As a person who has always been responsible about financial obligations, it will force me into the shame of bankruptcy plus be forced to sell the lot I struggled so long and hard to acquire.
Mom, I want you to know how much remorse I do feel about what happened and I cry myself into a fitful sleep almost every night thinking about what you’re enduring watching father slip away. Even though I understand he won’t recover, I pray for that anyway. Also, it’s clear that my life is ruined, will never have a normal relationship and spend a few years in prison. My God, isn’t that enough punishment? But is I’m forced to rely on the public defender’s office instead of a competent, experienced attorney like Bradley Patton, “a few years” could become a life sentence. Right now, you may in fact feel that is what I deserve. Mom, please consider that these feelings could change in the future and maybe we could have a relationship again although that would be difficult if I’m still behind bars.
I just want the chance to defend myself against the “premeditated” accusation (which is not true). If you won’t talk to me, would you be willing to meet with Mr. Patton? He’s a very articulate, kind gentleman whom I know you’d like. He even suggested that someone (like your sister?) may have influenced you to take this action against me. Perhaps you could get an intermediary so we can communicate in some fashion. Also he’s going to pick up my suitcase from police and bring it to the house if that’s okay.
As Mr. Patton says, I too will be fighting for my life in court. Although you are not sympathetic at this time, would you really want to lose both of us?
I assure you I wouldn’t survive a long term confinement, even doing poorly now with Candida problem (intestinal yeast infection). I apologize for shifting the emphasis toward me at a time when your focus is with father, but above matters need to be handled.
Mom, I wish for many things: that he and I could have had a normal father/son relationship, that you both would have been fully supportive of my dream to build a house. But I have recognized the futility of a personal visit etc. etc. Although unworthy of it, I would very much like some indicator that you care at all about me — Toby.
A source close to the DeWoody case indicates that the DeWoody fortune Toby stood to inherit, even with a manslaughter conviction, would be “in the millions, though probably less than ten. Mr. DeWoody Sr. was a very wealthy lawyer, but Mrs. DeWoody has the real money.”
Mrs. DeWoody’s home in Pacific Palisades sold for $1.6 million. Her half of that community property was, prior to taxes, $723,000. Anderson found the escrow papers in a search of the Rancho Santa Fe home. “Still,” Anderson says, “I didn’t know this was a motive in this case. I got some calls from the Ranch, some of them anonymous, saying, ‘You know, the DeWoody’s have a son. It’s odd that he’s not down here.’ I thought so too. They went on to expound that this guy was kind of an oddball. Still, he wasn’t a suspect in my mind. I was just storing stuff away.
“Finally I met with Mrs. DeWoody and her sister Sally. Sally is a fiery woman, I like her a lot. We thought, Toby can’t come down here because of a water leak in his house? His father is on the verge of death. There was no evidence, but it just didn’t sit right. I thought, This stinks. So I gave Mrs. DeWoody my pager number and said, ‘When he comes down, I want to talk to him.’ This was on Friday. On Saturday, I got a page. By this time Mrs. DeWoody had an opportunity to think about this…
“I thought, if the son did do this to the father, what’s to keep him from doing the same thing to his mother? I called my sergeant, and he agreed we should meet this guy at the plane.”
Anderson: Toby, the reason why we’re here is the problems you’ve been having with your father and your mother over money … or building your house.
Plumbly: Was it a spur-of-the-moment type thing? A reaction in anger? If it was planned, it’s a lot more serious. You have the right to remain silent. You have the right to an attorney…
In the prosecution’s closing arguments, Valliant would rail at Detective Anderson, who sat next to him throughout the course of the trial, thundering more than once, “The detective’s were the authors of his defense!”
Anderson: You must be curious about this. Your father doesn’t have an enemy in the world. I’ve been talking to people, combing the street for three days, and I can’t get one person to say anything bad about him…
DeWoody: Do you want to know about any of the previous stuff [the 1968 attack on his father]?
Sgt. Plumbly: The previous stuff we’ll talk about later.
Defense points out that “later” never came, and so the story of DeWoody Sr.’s attempt to throw his son out of the house was not introduced in the discovery material or pleading papers.
Patton calls to the witness stand psychiatrist Dr. Gail Waldron. The defense’s expert witness is a heavyset, formidable-looking woman, with white hair pulled severely back, eyebrows that almost appear to have been bleached. She is examined by Patton, cross-examined by Valliant for more than one-and-a-half days. She would charge the defense $150 an hour for more than 20 hours of interviews with Toby DeWoody, as well as $900 for trial preparation and her testimony.
In response to Patton’s questioning, Waldron describes the senior DeWoody as “militaristic… He used a whistle to summon the children like Colonel von Trapp. He was abusive to children… cruel to animals…”
During cross-examination, Valliant refers several times to “the rabbit,” until Waldron restates Toby’s testimony that it was a litter of rabbits, not a single animal that DeWoody Sr. had crushed to death with heavy shoes.
Waldron goes on to describe incidents where the senior DeWoody hit his children with “a big set of keys.” He would “pull their pants down in public and spank them.” Waldron speaks of “scathing diatribes” inflicted on the DeWoody children and “holding off on punishment in order to create tension.” She describes an incident in which DeWoody senior ran over a child’s bow with a lawn mower and then beat Toby with the broken toy.
In her interviews with him, Waldron said, Toby “understated the abuse. He has a history of coping by detaching,” which is typical in such cases. It is “characteristic of automatic behavior,” she says, and DeWoody Jr. developed “a serious order of detachment.” She describes the defendant as “ego dystonic” and suffering from “dysthymia, a chronic depressive neurosis.” She speaks of “a borderline personality.”
“Was there abuse?” Patton asks straight out.
“Objection.” Valliant speaks clearly but not loudly and does not look up from his notes. “Argumentative and vague.” During cross-examination, Valliant will insist upon referring to Waldron and a later witness, psychologist Sheila Bastion, as “Ma’am” rather than “Doctor” in an indulgent tone that suggests he’s humoring well-intentioned but fuddled aunties discussing witchcraft.
“Overruled,” Maino mutters into his own paperwork at the bench. He tugs at his hair and scribbles notes furiously through much of the trial. He has, for the most part, the look of an unhappy parent listening to his children blame each other for burning down the house.
Patton puts the question again, and Waldron indicates there was abuse. He asks her to describe Nancy DeWoody’s role durin her children’s formative years. Waldron describes Mrs. DeWoody as “passive. Dominated by her husband.. and alcoholic and socialite… very much into appearances.”
These factors in Toby’s life, Waldron suggests, were compounded by his sister’s suicide, his own “deteriorating health since the early ‘80s [yeast infection and allergies to gluten, wheat, and dairy products], the long-term loss of self-esteem, and sense of loss – he never gave up hope that some mutual caring might be established with his father – and financial pressures, direct and significant to aggravating physical ailments and psychosocial stress factors.” All these brought the defendant to a state of “compromised impulse control” On that last day in August 1992.
The D.A. objects strenuously to the phrase “impulse control,” and the objection is sustained.
Waldron concludes that “from babyhood on, [the defendant] was cared for financially by a trust. That trust represented a birthright, a legacy.”
Anderson: Last Monday morning at exactly 9:40 a.m., your father looked up the hill. As was his custom, he was out in the back working out with his weights, watering the back hill, and he saw something that alerted him. Something that was not enough of a threat for him to run off or hide, but somebody he knew he was going to have problems with.
Your father went into the downstairs suite, opened the door, stepped inside, and took the phone off the hook, and decided to dial 911. Now if people come to your house and you don’t recognize them, you don’t dial 911. You only dial 911 if you’re going to have a problem. Well, he knew he was going to have a problem.
He walked outside again. He was outside for approximately 35 seconds talking to this other person. There were a couple of times in there [911 tape] where the voices raised. You could hear yelling outside the house. Then the person hit him over the head with a pot. We can hear it on the tape.
DeWoody: Oh my God. Oh my God. I don’t want to hear the details about it. I just dread seeing him… Why me?
Anderson: The deputy assigned to this case got to the house at 9:53. Thirteen minutes after the initial 911 call. Probably within 11 minutes of when your father went down. She walked… around the house, and she saw your father wearing his red bathing suit, lying face down with a broken pot over his left shoulder. Blood was coming from his head, and pieces of shard were embedded in his scalp. There was a guy kneeling or squatting over him. The guy was described as thin of stature, gray hair, a yellow bicycle helmet, T-shirt, and bicycling shorts. The guy was described as being between 50 and 60 years old.
It looked to her like the guy was rendering aid, helping him out. She called out to the guy, “Hey, you watch him” and ran up the hill to use her car radio to call for an ambulance… She was gone not more than 10 seconds and this guy was gone.
DeWoody: Yeah, they had told me there was a cyclist who had stopped there.
Anderson: I understand you’re a cyclist.
DeWoody: Yeah, I ride…
[Anderson would later admit there was another bicyclist in the neighborhood who matched the description and that it may not have been DeWoody at all. But by DeWoody’s own testimony, he had brought his bicycle down with him from Nevada City. At this point on the tape Sgt. Plumbly tells the suspect that “this is a very important time for you” and asks DeWoody if his act was planned or spontaneous.]
DeWoody: [voice shaking, adolescent, on the verge of tears] I should never have gone down there – I, I – just had a lot of anger. I just had too much. I shouldn’t have gone to talk with him, but I didn’t know what else to do. I was just so damned frustrated…
Anderson: I know it’s rough, but let’s try and get it out once, complete. That's the first step in getting it behind you.
DeWoody: I didn’t plan it. I didn’t mean for it to happen…
Plumbly: Don’t tell us what you think we want to hear.
DeWoody: I’m very remorseful about it. I drove down and uh, I’ve been through a lot of emotion lately because … you already know the details of the house and things…
Plumbly: I can imagine that you’ve gone through hell…
Plumbly: Now you drove down [on the night of August 30, 1992] in what?
DeWoody: A Ford Probe.
Plumbly: What were you going for at that time?
DeWoody: I think I just wanted to talk to him one last time… I mean, I was getting nothing on the phone. He was shutting me off and not talking to me. I thought I’d go down and just talk to him.
Plumbly: What amount were you asking for?
DeWoody: Well, I’m trying to build a house and I – I’ll try not to get too much into the earlier stuff but – I was led to believe that it was going to be financed. My mother was going to do that and I got myself out on a limb with the architect and all these expenses. I was thousands of dollars in debt and all of a sudden I’m hearing it’s not gonna happen that way.
In summary, that’s what happened. All of a sudden there’s a different change of tune; they’re not gonna do it. I was desperate and destitute. Plus, there was the dream that I thought was gonna happen. And I’m miserable where I’m living now, and there was a lot of stuff that led up to it…
Plumbly: You came down to talk.
Anderson: You wanted to convince your dad to help you out with the money.
DeWoody: Or that he should not inhibit my mother from wanting to do that. My father’s a very controlling person and…
Plumbly: You didn’t come down with the thought of attacking him physically”
DeWoody: I did not.
Anderson: All right, so you get to the house.
DeWoody: I parked in the driveway.
Anderson: Was your bike in the back of the car?
DeWoody: Inside the car.
Plumbly: What happened after you got out of the car?
DeWoody: I went down into the house and I didn’t see anyone inside so I presumed they were outside. I found my father down at the pool doing his exercise. [Long silence] First of all, he said he was surprised to see me. I said, “I decided to see you and talk to you in person… I’m just really depressed, and I thought this house thing was gonna come through, and do you really want to stop me? Why? How can you do this to me? Is there anything I can say or do or make it different or … I know you don’t think very much of me, but I’ve really gone all out in personal labor and finance to make this thing happen. Can’t you let her do this for me? Let her finance this thing and let this dream come true?
He said, “Not in my lifetime. Not in my lifetime.” And I believed that. He was so controlling. I believed that’s what it would be.
I was angered, enraged. He said, “Why don’t you just get out of here?” I just grabbed him and said, “I can’t accept that.” At that point he got inside and dialed 911… I could see that I meant nothing to him. That he could just call somebody else to deal with the problem. I didn’t know he was calling the police.
Plumbly: He just dismissed you?
DeWoody: Yeah, that’s what happened. It triggered something, I just lost it.
Plumbly: Just like that? No planning whatsoever?
DeWoody: Yeah… I just felt sudden rages coming over me. I lost control and started attacking and beating him. I was grabbing him like this [gestures], and then he ran off and started to go up the stairs.
Plumbly: So you struggled man to man for a while?
DeWoody: [almost enthusiastically ] Yeah.
Plumbly: You didn’t have a weapon?
DeWoody: I didn’t. I didn’t bring a weapon.
Plumbly: But you fought.
DeWoody: [again, almost with pride] Yeah! I mean, I know there’s an age difference, but he lifts weights.
[Here Plumbly asks DeWoody if his father had hit him or hurt him. DeWoody could not remember. He had an injury to his shin that may or may not have been a result of the struggle.]
DeWoody: I knocked him down and I grabbed the pot. I guess you know the rest of that.
Anderson: What happened when you caught up with him? Did you wrestle some more and get him down? Was he conscious when you hit him with the pot?
DeWoody: Yeah, somewhat.
Plumbly: He was somewhat struggling? He wasn’t just lying there passed out, inert?
Anderson: Was he facing you when you hit him with the first pot?
Plumbly: Or was he facing down?
DeWoody: [emotionally] Sir, I’m trying to be exact as I can… because I…
Plumbly: He was hit several times so it’s hard to, I realize that. But do the best you can.
DeWoody: I… it was … like… it wasn’t even me that did it. I snapped or something.
[DeWoody is asked to close his eyes and remember.]
Plumbly: Do you remember shoving dirt in his mouth?
DeWoody: [sighing] No. I heard about that. I remember something related that could explain that. I don’t know.
The man on trial for patricide faces 25 years to life for first-degree murder. His attorney hopes for a verdict of second-degree manslaughter. In either case, DeWoody is likely to spend years in prison. By the time of his trial, he has been incarcerated for nine months and appears extremely unlikely to serve much more time easily. When he is called to the stand and sworn in, his pants sag from his hips, a result of pronounced weight loss.
Today DeWoody’s testimony on the stand on June 3, 1993, keeps, in most every particular, to the story he told the sheriff’s detectives on the confession tape. Some variations arise in the courtroom version of the events, such as DeWoody Sr. suggesting that his son buy a “prefab” house.
At the point in his testimony where he describes the attack on his father, Toby begins to weep tiredly. “It wasn’t me doing it,” he says, “but it was.” The tears seem genuine and unforced, but if it has occurred to DeWoody to help his cause with a calculated demonstration of remorse, clearly here it would have maximum effect.
During cross examination, the D.A. asked DeWoody about attacking his father at the telephone during the 911 call. The D.A. maintained that DeWoody wiped blood from the instrument before hanging up. The 911 tape indicates some handling of the receiver before hang-up. DeWoody could not remember wiping blood from the phone but did not deny it. DeWoody also testified that on the day of the attack he stopped his car somewhere outside San Bernardino and threw his bloody clothes into a dumpster. He would be unable to locate that dumpster again, he said.
At one point in the defendant’s day-long testimony, a jury member asks permission to pass a note to Judge Maino. Maino allows the unusual request and reads the note to the defendant: “When did Toby stop loving his father, if he ever did?”
DeWoody responds by saying, “There was never anything between us.”
When court reconvenes, Nancy DeWoody is called to the stand. Her hair is in a tight winged wave at her ears; large-framed glasses magnify a glazed, yet determined expression. She wears a blue denim blouse and matching skirt. She is sworn in and never once looks in his direction. She is on the stand briefly, possibly only ten minutes.
Asked to characterize her late husband as a parent, she uses the words “patience and firmness.”
Prosecutor Valliant asks, “No physical beatings or abuse?”
Mrs. DeWoody: No.
Valliant: Did you hear complaints from the children about the rabbits?
Mrs. DeWoody: Not that I know of.
Valliant: Did he demean the children?
Mrs. DeWoody: No, he was supportive.
Valliant: Did he insult the children?
Mrs. DeWoody: Never.
She also never saw any marks on the children that might be a result of physical abuse. She knows nothing of discipline with keys or any other object other than “a slipper, a leather slipper.” And that was “very rare.”
When Bradley Patton questions Mrs. DeWoody, it is about her suicidal daughter Penny. He asks if her daughter had sought therapy or counseling as a young woman. Mrs. DeWoody allows that she had but referred to it as “school trouble.”
Patton: What of Penny’s self-inflicted wounds?
Mrs. DeWoody: Not at that time.
Patton asks about her alcoholism. Wasn’t it true she was hiding vodka bottles around the house and was oblivious to much that was going on?
Mrs. DeWoody answers simply, “Not then.”
At the end of the day, I find myself in the courtroom with the defendant and the bailiff. The defendant turns to face me. The bailiff, wearing a toupee that looks like a coral formation, is on the phone. While he speaks, he stares at the pictures on his desk. One is a photograph of himself and Ronald Reagan, the other a photo of Ron and Nancy Reagan waving from a helicopter.
DeWoody smiles and pulls up his pants.
“How do you feel?” I ask him.
He clutches his shoulders and smiles again, “Cold.”
The bailiff slams down the phone and barks that I am breaking the law.
The jury members, an equal number of men and women, appear to be over 40 years old, with two possible exceptions. Much gray is in evidence in coifs and beards. In general, their clothing signifies “middle class.” Nu Gucci shoes, no Armani jackets, no Versace vests. The 12 men and women and two alternates seem acutely attentive. No one drifts off or even closes his eyes.
What did defense attorney Patton look for when selecting jury members?
“I wanted to exclude generally, younger people. Because I don’t think they have life’s experience such that would allow them to evaluate the emotional issues here.”
Any particular income group?
“No, we don’t really have that luxury. I tried to exclude older people, people in their 70s or so, who might feel the vulnerability that Nancy DeWoody feels. Beyond that, I was looking for women because I like women jurors. They tend to evaluate things with their hearts as intellectually.
“I think the two most important things that came out [of the psychiatric testimony] from a defense point of view is the propensity of Toby DeWoody to understate the severity of his own background. I think one of the problems I had when Toby testified, and I anticipated this, was his inability to describe in any graphic detail what really happened to him as a child – because he doesn’t want to remember any of that stuff.
“What we accomplished today was to put in perspective what really happened. What’s important is, that now gives the jury the opportunity to reflect on the background information as it really happened and then put that into the perspective of ‘What was this man carrying with him by way of emotional baggage when he confronted his father?”
When prosecutor James Valliant is asked what he selected for in a jury, he pauses. “That’s a real good question. I sometimes think that picking a jury is a mystical process. Part of it is what I call a gut test. It has to do with a series of objective impressions. Whether or not a person might be able to make a decision about someone else’s life. It’s a very important thing we ask them to do. Some people are very uncomfortable coming to decisions of this magnitude. I’m looking for people who are willing to make judgments about other people. Obviously you want a certain variety of life experience. Frankly, income level was not a consideration. I don’t know if it’s proper to tell you that, but no.”
Changing the subject with agility, Valliant continues, “Premeditation and deliberation are, I think, misunderstood. In a matter of seconds, this can happen. Even if the factors [Toby] considered were delusional, as long as he considered what he was doing and then went ahead and did it. The evidence, I think, does show that.”
Valliant, in his closing argument to the jury, goes to great lengths to define the difference between premeditation and deliberation. He enacts the final seconds of a hypothetical Chicago Bulls game. The clock is ticking and Jordan has the ball. He has three, maybe four seconds to decide whether to make a long shot or pass to Pippen. Valliant bounces an imaginary ball, strides left and right in a tight four-foot circle, his eyes shifting between the basket (the bench) and Pippen (the defendant and his attorney).
“Jordan has no time to deliberate,” Valliant says. “But he has to premeditate his move, even if that premeditation consists of seconds.” His point is not likely to be missed by anyone: Jordan aims for the basket; Toby takes his chance with the jury. How could it be premeditated; I hit him with flower pots? Valliant points out that the defendant was sure to have previous knowledge of other weapons at hand — his father’s free weights, stones from the garden, tools.
The jury deliberates for three days before returning a verdict of second-degree murder. A perfect compromise, it seems, between the defense’s objective and the prosecution’s. Convicted of second-degree murder, the defendant could not hope to profit from the estate of the man he admittedly killed. Nor could the message from the judicial system be interpreted as, If your father is enough of an asshole, killing him may be an option, if one that’s officially frowned upon.
“The jury told me that they did not believe he had the intent to kill his father,” Patton says by phone the day after the verdict is delivered. “They used a notion called implied malice to reach their verdict, and they had questions concerning the crossover between ‘heat of passion’ and ‘implied malice.’ It seemed clear to me that they jury had a great deal of difficulty understanding the legal technicalities of implied malice and how they relate to [the lesser charge of] manslaughter through the ‘heat of passion.’
“The jury instructions are horribly confusing. They asked for clarification, but there really isn’t any that is available. My impression is that they were very divided among themselves. At least one juror has already written to the court expressing concern over the result and having second thoughts about the decision.
“I think if they had understood the concept of implied malice, they would have agreed that either manslaughter was the correct verdict or they would have been unable to reach a verdict.
“Undoubtedly, the case will be appealed,” Patton concludes.
Deputy D.A. Valliant comments, “I thought the verdict was a very thoughtful and well-considered one. I spoke with the jury, so I know from them that they believed there was an intent to kill. The part they had a hard time with was ‘careful deliberation,’ that’s in the instructions. They weren’t too sure how carefully [Toby] deliberated it, so they gave him the benefit of the doubt on that one. But from the nature of the attack and motive and everything else, they had no problem with an ‘intent to kill.’ We’re very happy with the verdict.”
As to Patton’s statement that had the jury understood implied malice more thoroughly, they would have been deadlocked or arrived at manslaughter?
“I disagree. I think the jury understood the instructions and applied them properly. I spoke to them afterward and confirmed that in my own mind.”
At the sentencing July 12, William Fletcher sits in for Brad Patton. DeWoody is brought into the courtroom wearing navy blue jail pants and shirt. The defense makes a motion to delay sentencing for 30 days in light of questions that have since arisen with jury members. Maino acquiesces, saying, “I don’t want to get overturned. It hasn’t happened yet.” He resets the sentencing date for August 16.
Two days later, a brief interview with Brad Patton in the Union-Tribune indicates that the juror who had written to the court expressing doubts about the verdict felt that her vote for second-degree murder had not been rendered freely. “We knew there were serious problems during deliberation,” the article quotes Patton. He describes the first jury foreman asking the judge’s permission to be relieved. “In 18 years, I’ve never seen anything like it,” the article quotes Patton. He describes deliberations as “tainted by a pattern of hostility, that at times almost came to physical confrontation… By the end of the second full day, this one juror had been broken down. She was in tears and didn’t want to talk to the jurors or be talked to by them. It became personal.”
According to the same interview, “Patton said that at one point during deliberations the judge’s instructions were literally thrown at a female juror… ‘The next day, she caved in.’” Two male jurors were cited as the source of pressure, “one of whom discounted the defense contention that the father’s abusiveness caused the son to crack. He told them, ‘What’s the big deal? I throw my son against the wall…’ The other jurors were taken aback.”
On the juror intimidation issue Valliant comments, “So far there is no indication that there was true jury misconduct. The psychological pressures that are on jurors in the course of a trial are significant. In a murder case, the pressures are even greater. When do these pressures get to the point of intimidation? Unless there are actual threats of harm or actual violence or they’re flipping a coin or something, we must take their vote.
“We asked each individual juror in open court if that was their vote, and each juror unanimously stated that, beyond a reasonable doubt, that was their vote. We’ve got to leave that as final unless there’s new evidence that’s come up, a mistake of law, or evidence that was improperly introduced. Jury verdicts must remain final.
“Currently we have investigators in the employ of the district attorney’s office asking every single juror what their impressions were about the process. Just because voices get raised does not mean we can challenge the authenticity of the verdict. So far we have nothing more than people getting distressed at other people’s comments… I think the judge bent over backwards to make sure that evidence in [Charles DeWoody’s] favor came out. He was given a very fair shake, one of the fairest trials since Moses.”