Lost Girls (25 page)

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Authors: Caitlin Rother

BOOK: Lost Girls
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Chapter 27
Before Chelsea's body was found, Cathy Osborn, unable to communicate with her son, had retained a private attorney from Orange County. Rudolph Loewenstein drove down to meet with John Gardner at the county jail in downtown San Diego on March 1, at 8:00
P.M.
, to see if Gardner wanted his representation.
Gardner also met with two attorneys from the local public defender's office—Gary Gibson and Richard Gates, the head of the homicide unit—to see if they could get Gardner to tell them where Chelsea was. It could be beneficial to reveal her whereabouts, they told him, if he wanted to try to avoid the death penalty.
When Loewenstein called Cathy the next day, he relayed a message from Gardner: “Do not waste your money on getting me an attorney.”
Cathy still couldn't believe that her son was capable of doing such an awful thing, but once she watched the breaking news story on March 2 that Chelsea had been found, his comment told her all she needed to know. Although the authorities weren't disclosing details, this seemed to be Gardner's way of telling his mother that he had in fact raped and murdered this girl.
But Gardner wouldn't reveal anything to these first attorneys. Although Michael Popkins wasn't in the homicide unit, he had a good relationship with Bonnie Dumanis and Kristen Spieler, and he was subsequently assigned to be the lead defense attorney on the case, with Mel Epley as second chair. They ended up having better luck.
 
 
Fifty-nine-year-old Michael Popkins was a senior attorney in the public defender's office with thirty-four years' experience. Known for being cautious and exercising judgment, he'd had his share of high-profile cases, although never one as big as this.
In 1992, he represented Hai Van Nguyen, a nineteen-year-old who had killed a liquor store owner. Through a plea deal, Nguyen managed to escape the death penalty just days after Robert Alton Harris became the first California prisoner in a quarter century to be executed.
In one of San Diego's most horrific crimes, Popkins also represented Ivan and Veronica Gonzales, the first husband-and-wife killers to be sent to death row together in California. They were convicted of torturing and murdering Veronica's four-year-old niece by scalding her in the bathtub in 1995, while they were high on methamphetamine.
Popkins also had the case of a popular local musician, Kenneth Bogard, known as “the PB rapist,” who was convicted in 1995 of stalking, raping or sexually assaulting seven women in Pacific Beach, a coastal community of San Diego known as “PB.” One of the victims took the stand to describe how her attacker had broken into her apartment at three in the morning, wearing a ski mask and wielding a knife, and she provided details that helped the prosecutor prove the pattern of Bogard's violent acts. (The author interviewed Bogard in jail after his arrest, and he, like Gardner, came off as friendly and nonthreatening.)
In 2008, Popkins was able to win a case of legal insanity for his mentally ill client, Kaijamar “Kai” Carpenter, who had fatally stabbed his mother, an assistant high-school principal. Carpenter pleaded guilty to second-degree murder, and was sent to a state hospital instead of prison.
 
 
At forty-five, Mel Epley had twenty-one years of experience as a defense attorney. Known as quiet and shy, he was a skilled researcher, and one of the office workhorses. Epley had never worked on a high-profile case, although a couple of his cases had made their way into the news.
In 2008, Epley represented Terrence Stamps, nicknamed “Mackvicious,” also known as the “Pimp Killer,” in a case where one pimp killed another in a dispute over having their prostitutes on the same block. Stamps got a sentence of fifty-one years to life.
Then, in 2009, Epley defended Dragon Jones, dubbed the “Backroom Bandit,” who was convicted of robbing twenty small businesses in a monthlong spree by scaring female employees with a gun into not calling police. After pleading guilty, Jones got a fourteen-year prison sentence.
 
 
On March 3, Popkins and Epley headed over to the courthouse, where they first met with Gardner in Department 11, Judge David Danielsen's courtroom, two hours before Gardner's arraignment on the charges filed against him for the murder of Chelsea King, with the special circumstance of rape, which made him eligible for the death penalty. He was also charged with the assault on Candice Moncayo, with the intent to rape her as well.
“Mel and I probably were the first attorneys he trusted,” Popkins said. “He was very guarded at the beginning and then for some reason he just liked us.”
After Popkins and Epley huddled with Gardner in the courtroom's lockup area, Popkins left to speak to the prosecutor, leaving Epley alone with their client. That's when Gardner muttered, “My DNA is all over the body.”
Epley couldn't hear exactly what Gardner had said, but he thought it was something about finding DNA on the body or something about “the other body.” He asked if Gardner knew that the authorities had found Chelsea's body, knowing that Gardner had been on lockdown, with no access to TV or news reports.
Gardner nodded. Epley told him he wanted to follow up on whatever Gardner had said, but they shouldn't do it in the courtroom, because there were microphones everywhere. For the time being, he told Gardner to plead not guilty, which is how virtually all criminal cases begin, and said they would talk more the next day at the jail. Gardner did as he was told.
After the hearing, Epley told Popkins what he thought he'd heard, and the two attorneys agreed they needed to ask Gardner for clarification at their next meeting. They also told their superiors, who asked to be kept updated.
 
 
It was no coincidence that Amber's father, Moe Dubois, attended Gardner's arraignment, after which a well-attended news conference had been set up. Moe asked for permission to speak to the reporters after Bonnie Dumanis and Kristen Spieler answered questions.
“We will be trying this case and presenting evidence in open court, not in the public or the media,” Spieler told reporters.
Dumanis, who was meeting Moe for the first time, gave him a hug before and after he gave his comments. Reading the fear on his face—that no one would remember his daughter, when so much focus was on Chelsea King—Dumanis's heart went out to him and she felt compelled to whisper her assurances: “We will not give up on Amber,” she said.
Gardner's preliminary hearing date was set for March 18. A week later, when the defense asked to move the prelim to the fall, the judge agreed on a compromise of August 4.
In a press release after the arraignment, Dumanis put out an edict that Spieler would
not
be available to the media, at any time, and that all inquiries should go through Dumanis's press office.
Echoing the tone of Dumanis's gag order e-mail, this release was yet another signal that the rampant media coverage would get no more help from law enforcement. But that only sent reporters to find stories elsewhere—in Riverside County and beyond. This one was too big to take no for an answer.
 
 
Reporters soon learned that back in October, the Riverside County Sheriff's Department had been called to investigate an attempted kidnapping and armed assault on a sixteen-year-old girl in Lake Elsinore. At seven o'clock in the morning, October 28, 2009, a man driving a gold Pontiac asked her for directions, showed her a gun and demanded that she get in the car. The girl refused and ran away.
With her help, the RCSD developed a composite sketch, which somewhat resembled John Gardner. By calling the Department of Motor Vehicles, reporters connected the dots: Gardner had been cited by the California Highway Patrol (CHP) in June 2009 for driving a gold Pontiac without insurance.
After Gardner was arrested, the girl recognized him from the TV news as her attacker. Even though the RCSD wouldn't confirm that he was a suspect in that case, the media ran his booking photo next to the sketch for the public to draw its own conclusions. Through his attorneys, Gardner declined an interview with Riverside County authorities.
“This man is a monster, and we would have gone after this monster like any other monster in the world and taken it out,” James Asgher, a Rancho Bernardo resident, told KABC-TV, the ABC affiliate in Los Angeles. “We did not know. We haven't slept. We're stressing. Our hearts are hurting.”
 
 
Meanwhile, Internet vigilantes continued to rage. A group called “Scared Monkeys” posted photos of Gardner's twin boys and of Cathy's car and her license plate on the Web, which angered and frightened her and her family. Cathy called and reported the photos to the SDPD at the satellite station in her neighborhood, where she'd already reported her garage graffiti incident. She also ordered the Web site to cease and desist.
At the same time, sexually explicit photos of Cathy's running group, a local chapter of the international Hash House Harriers, started popping up. Members of the global group, which calls itself a “drinking club with a running problem,” pick their own sexual nickname such as “Absolut Whore,” “Village Tool,” “Foreskin Gump,” “Bone of Arc” and “Princess of Incest.” These runners, appearing in half-nude poses, started popping up on the Internet and subsequently on the TV news as reporters jumped on this sexually charged aspect of the high-profile case. The photos apparently did not show Cathy topless, but they were still so lurid, newscasters said, that they had to pixelate the runners' exposed private areas.
First thing Thursday, March 4, Michael Popkins met with John Gardner alone until Mel Epley could join them after dropping his kids at school. They explained that he'd missed his opportunity to give up the location of Chelsea King's body, and he should really think about the impact a death penalty case would have on his mother and his sons, if the defense was unable to settle this case. Epley said he didn't think Gardner really wanted to die, especially the slow death of confinement on California's death row, where more than 700 prisoners are waiting to be executed because the state has had a moratorium on state-ordered killings since 2006. If he wanted them to save his life, they explained, he needed to tell them if he had killed Amber Dubois and point them to her body.
Gardner became defensive. “I am not talking to you about anything else but Chelsea's case,” he said.
“I thought I heard you say, ‘They are going to find the other body,'” Epley said.
“I said they would find my DNA all over
the body,
” Gardner said, not
the other body
.
“I don't know if you were involved in this other one or not,” Popkins said, “but if you are, the best time to tell us would be now, because giving the authorities where the body is located may be our best chance in this case.”
After a few minutes of reasoning with Gardner, who looked pained and uncomfortable, Gardner finally came out with it. “All right, I did it. I can't tell you where she is, but I will show you.” Asked if the body was in San Diego County, Gardner said yes, in the northernmost part. But again, Gardner said smugly, he would have to show the authorities, because they would never find her on their own.
As Popkins asked Gardner if he was lying, and Gardner assured them he was telling the truth, Epley felt sick to his stomach.
“They told me to keep my mouth shut and not talk to anybody,” Gardner recalled later.
 
 
Michael Popkins wasted no time in getting this news into the right hands. He immediately got in touch with his boss, Public Defender Henry Coker, who arranged a meeting with District Attorney Bonnie Dumanis for that afternoon.
“I didn't want to wait,” Popkins said. “I didn't know where the body was.”
He and Epley didn't want to run into the same problem as the defense team that had represented David Westerfield. Those attorneys had been in the process of negotiating a deal—a guilty plea and the location of seven-year-old Danielle van Dam's body in exchange for a sentence of life without parole—when a group of searchers found the girl's remains on their own. Westerfield, the van Dams' next-door neighbor, was convicted of killing Danielle after abducting her from her bedroom in Sabre Springs, a community near Poway.

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