The Story Behind the Story: The Closing

The Clos­ing was inspired in part by a death penal­ty appeal I worked on in the 90’s. This is what hap­pened in Peo­ple v. Mar­shall.

In 1986, John and Hat­tie Fos­ter awoke before dawn to a woman’s screams com­ing from an aban­doned ware­house behind their apart­ment build­ing in South Cen­tral LA. “Please stop! Please don’t! Please! Please!”

John told Hat­tie to call the police. He grabbed a machete he kept under his bed, went down to the street, and stood in front of the warehouse.

A man dressed in dirty clothes and smelling of liquor came out the front door. Fos­ter con­front­ed him. He denied being with a woman in the build­ing, and Fos­ter allowed him to walk away. He was nev­er seen or heard from again.

A lit­tle lat­er, Sam­my Mar­shall came out of the ware­house. Fos­ter stopped him and detained him until the police arrived.

Mar­shall told the police he’d been in the build­ing but hadn’t done any­thing wrong. He had a cut on his hand and blood on his sweat­shirt. In a pat-down search, the police found a knife. Mar­shall with­drew a piece of paper from his pock­et and tried to toss it away. It was a gro­cery company’s let­ter to Sharon Rawls about a check-cash­ing card.

The offi­cers dis­cov­ered Sharon Rawls’s corpse in the ware­house, her pants pulled down around her ankles and a wad of cloth stuffed in her mouth. An autop­sy lat­er revealed the cause of death to be strangulation.

The police arrest­ed Mar­shall and ran his crim­i­nal record. They found numer­ous felony con­vic­tions, includ­ing rape in 1975 and assaults in 1978 and 1981. They searched his room and found the bus pass of Durneal H. She told them he attacked her in March and dragged her toward the ware­house where Rawls was killed in April. She fought him off, drop­ping her bus pass in the struggle.

Marshall’s tri­al took place in 1988. The prosecution’s evi­dence includ­ed tests match­ing the blood­stain on Marshall’s sweat­shirt to Rawls’s blood type (DNA analy­sis was not avail­able then), expert tes­ti­mo­ny that semen in her vagi­na could have been Mar­shal­l’s semen, his pos­ses­sion of her gro­cery com­pa­ny let­ter, and Durneal H.’s testimony.

Marshall’s court-appoint­ed attor­ney, Ron Slick, put on no evi­dence and called no witnesses.

The jury found Mar­shall guilty and rec­om­mend­ed death. The judge fol­lowed the recommendation.

In Cal­i­for­nia, direct appeal of a death sen­tence to the Cal­i­for­nia Supreme Court is auto­mat­ic. The defendant’s exe­cu­tion can­not go for­ward until the appeal is exhaust­ed. In 1990, there were 350 inmates on California’s death row. About half of them were in death penal­ty lim­bo because they didn’t have lawyers.

Attor­neys don’t line up around the block to take cap­i­tal cas­es. They drag on for decades; the life-or-death stakes take an extra­or­di­nary emo­tion­al toll; and suc­cess­ful out­comes are rare. The state made a des­per­ate plea for vol­un­teers. I agreed to take a case. Peo­ple v. Mar­shall arrived in my office in card­board box­es the fol­low­ing week.

A month lat­er, a prison guard ush­ered me into a max­i­mum secu­ri­ty vis­i­ta­tion room at San Quentin. The barred door on the oth­er side of a glass divider rolled open, and Mar­shall, in his for­ties, aver­age height with a mus­cu­lar build, stepped into the room. He looked appre­hen­sive as he sat down and grabbed the tele­phone receiver.

“Who are you?” he said. I’d sent him a let­ter of intro­duc­tion, but the guards with­held his mail because he wouldn’t sign for it. I showed him the Court plead­ing appoint­ing me as his appel­late attor­ney. This didn’t seem to ease his mind. In the court below, he told the judge he believed his defense coun­sel was part of a con­spir­a­cy to rig his tri­al. He accept­ed my appoint­ment that day, but I don’t believe he ever real­ly trust­ed me.

I met with his tri­al attor­ney, Ron Slick. He was coop­er­a­tive, but he remem­bered vir­tu­al­ly noth­ing about the case and couldn’t answer any of my ques­tions. I was sur­prised to learn lat­er that he’d been appoint­ed dur­ing the 80’s as tri­al coun­sel for a string of death penal­ty defen­dants. By the mid-90’s, eight of his for­mer clients sat on death row, a Cal­i­for­nia record at that time.

Giv­ing up on find­ing any new evi­dence, we culled through the legal pro­ceed­ings in search of reversible error. The effort dragged on for years. I left my law firm to become an exec­u­tive, and one of my part­ners took the lead and filed the appel­late brief.

From 1992 to 1997, the Court affirmed 84 death sen­tences and reversed only one. In 1997, Peo­ple v. Mar­shall became num­ber two. The Court held that the tri­al judge failed to give the jury a prop­er instruc­tion on intent, reversed Marshall’s death sen­tence, and remand­ed the case to LA for a new trial.

We don’t know if Mar­shall ever learned that his death sen­tence had been over­turned. My partner’s let­ters didn’t reach him because he con­tin­ued to refuse to sign for his mail. When the guards came to remove him from his cell for trans­port to LA for the tri­al, he may have thought they planned to exe­cute him. What­ev­er his rea­son, he resisted.

The cells on death row are win­dow­less con­crete box­es, about five by nine feet with very lit­tle head clear­ance. A strong man can mount a for­mi­da­ble defense from a rear cor­ner. The guards couldn’t get Mar­shall out of his cell with nor­mal force.

Inmates said the guards donned riot gear, shoved him against a wall with shields, and pep­per-sprayed him while he screamed, “Please don’t kill me!”

Mar­shall died dur­ing the struggle.

My firm con­tact­ed a prisoner’s rights lawyer, but noth­ing came of it. San Quentin found no wrong­do­ing, list­ing Marshall’s cause of death as a “heart attack while being pep­per-sprayed.” He was 51 when he died.

Mar­shall was from rur­al Louisiana. His father was a coun­try preach­er. He grew up work­ing on farms. He moved to LA in his twen­ties. Start­ing in his late twen­ties, he was con­vict­ed of a series of crimes, most of them involv­ing vio­lence against women. With each offense, he would plead out, go to jail, be released, and start in again. I found no hint in the file about what, if any­thing, trig­gered the violence.

In a crowd­ed field of vex­ing prob­lems posed by the Mar­shall case, California’s admin­is­tra­tion of the death penal­ty trou­bled me the most. The over­bur­dened low­er courts seemed unable to do more than move Mar­shall along a con­vey­or belt of con­vic­tions, but once he was sen­tenced to death, the state poured more resources into his appeal than it spent on all the pre­vi­ous pro­ceed­ings combined.

This approach has not worked for Cal­i­for­nia. It leads all states with 750 peo­ple sit­ting on death row. The aver­age direct appeal now takes 22 years to move from sen­tenc­ing to a deci­sion. Tack­ing on lengthy fed­er­al appeals, a Cal­i­for­nia death sen­tence is tan­ta­mount to life with­out parole. The state hasn’t exe­cut­ed any­one since 2006 and 90 inmates are over 65 years old, some of their crimes dat­ing back 40 years.

Mean­while, Cal­i­for­nia spends a for­tune defend­ing death sen­tences it will nev­er car­ry out. The cost aver­ages 140 mil­lion dol­lars per year, well over four bil­lion since 1977, mon­ey the state could bet­ter spend on stem­ming the tide of vio­lent crime. No mat­ter what your opin­ion of cap­i­tal pun­ish­ment, the death penal­ty in Cal­i­for­nia sat­is­fies no one’s goals and should be abolished.

Post Script: I used a few of the basic facts of the Mar­shall case to spin a very dif­fer­ent sto­ry in The Clos­ing. In the nov­el, Ken­neth Deather­age sits on death row in Vir­ginia in the 60’s, a time and place when exe­cu­tions actu­al­ly went for­ward and death row inmates were afraid for their lives. Deather­age claims local offi­cials con­spired to frame him. When Nate Abbitt, Deatherage’s lawyer on appeal, uncov­ers hints of cor­rup­tion in the coun­ty jus­tice sys­tem, the pow­ers that be come after him and he finds him­self fight­ing for his own life, as well as his client’s.