Audio By Carbonatix
“I’ve been waiting two days to get on the stand,” Chuck Diettrich says.
He is a husky man in a dark blue pinstripe suit. He paces slowly up and down the nearly empty corridor on the thirteenth floor of the Central Courthouse in downtown Phoenix.
Diettrich, 50, is waiting to take his turn on the witness stand in Superior Court Judge Frederick Martone’s courtroom. His testimony will be crucial in a hearing to determine whether John Henry Knapp should be set free or tried a third time.
“What are you doing these days?” he is asked.
Diettrich smiles nervously.
Once, he was one of the most aggressive trial attorneys in town. The pressure got to him. So did alcohol, then cocaine. He has been disbarred not once but twice. But there is a genuine spark of decency about him. In his wildest days, Chuck Diettrich never hurt anyone except himself.
His father was a symphony orchestra conductor, and Diettrich majored in English literature before attending law school at Salem College in Oregon.
Diettrich swallows hard. He smiles again, still all nerves. He lifts his chin, attempting to move his neck an inch higher up, freeing it from the tight collar of his white button-down shirt.
“I’m living outside of Payson in a cabin I built by myself about ten years ago,” he says. “Guess I’d have to say my life is at a standstill right now.” Diettrich ducks his chin in a nervous gesture. He has said all there is to say for now.
U.S. District Judge Charles Hardy, who presided over the Knapp case in Arizona Superior Court, twice recalled for Steven Brill of The American Lawyer how it brought on Diettrich’s decline:
“I’d say this case had a lot to do with it. This is what did him in. A man just shouldn’t get involved the way he did.” In the present hearing, Diettrich is pitted against his old nemesis Charles Hyder, formerly Maricopa County attorney and now an assistant U.S. attorney.
No one has ever derived more seeming satisfaction from being tough and belligerent in the courtroom than Hyder, who made his prosecution of Knapp the cornerstone of his legal career.
A man with a permanently glowering expression, Hyder ran for county attorney by jokingly telling voters: “Elect your own Hit Man as County Attorney.” Hyder has had his own share of troubles. The son of Fred Hyder, who was a Superior Court judge more than twenty years, he lost part of his right leg when he was struck by a falling power pole. Three years before the Knapp case, Hyder’s ten-year-old son died of cancer. Several years after the Knapp case, Hyder’s wife called him one day to tell him that he must hurry home. When he arrived, he found his wife had shot herself to death.
For years Hyder kept a scrapbook devoted to the Knapp case in his office. He would open the book with its photographs of the disfigured Knapp children and show it to visitors. He delivered speeches about it to legal groups. His conduct in this case made him proud, and he was called one of the best prosecutors in the entire country.
Now it hangs around his neck like a millstone. He has made himself unavailable to answer questions about his conduct for weeks.
Judge Hardy has also recalled Hyder’s role:
“He definitely got too involved in this one,” the judge said. “You could see the hate in his eyes.” In addition to this hearing, Hyder also faces a complaint filed against him before the Arizona State Bar Association. There is a possibility he could not only lose the Knapp case but his law license as well.
The public rarely learns about complaints filed against lawyers before the bar association. In this case, the matter became public knowledge only because Hyder asked for county funds to pay for a lawyer to defend him before the bar association. Donald Daughton, a former Superior Court judge, was hired at $200 an hour, and he now sits in on the hearing in Judge Martone’s court every day, listening to the allegations pile up against Hyder.
No prosecutor can face a tougher barrage of charges than Hyder faces. The lawyers who are lined up against him say that he railroaded John Henry Knapp to a cell on death row. They accuse Hyder of secreting a substantial body of evidence that could have set Knapp free years ago.
FC
|||
FL
Written by Larry Hammond and Jon M. Sands, the motion to dismiss for prosecutorial misconduct has a literary quality so devastating that it bears comparison with Emile Zola’s J’accuse penned against the French army’s conspiracy to ruin Captain Alfred Dreyfus in 1894 by framing him to a life sentence on Devil’s Island.
It reads in part:
“This is a sordid story; an account of prosecutorial misconduct perpetrated by government officials and hidden from view for seventeen years. Three times warrants for the execution of John Knapp were issued; once the execution date was a mere 36 hours away. If Knapp had kept any one of his appointments with death, the facts we are about to describe would never have been known.” The brief goes on to cite several ways in which the state falsified the case against Knapp:
1. Fingerprint evidence that would have shown that Knapp’s fingerprints were not on a gasoline can described by the state as the “murder weapon.” 2. Knapp’s confession was coerced by sheriff’s deputy Robert Malone, and the police knew the confession was wrong because it was based on the fact that Knapp had set the fire that killed his children by using a gasoline can on which his fingerprints did not exist.
Knapp was brought back to his ruined home for questioning. Because of the fire there was no electricity. The interrogation was led by Malone and his men by the light of glaring flashlights shone into Knapp’s face.
Judge Hardy later said about the confession:
“You know I was really kind of going on instinct. I know I’d never admit to killing my children no matter what the police did to me, unless I killed them. Sure, the police worked him over a bit. I’m sure it wasn’t quite what they said it was. .|.|. C’mon, we all know that fire was set by one of them.” Judge Hardy is now reportedly residing in Utah and studying Chinese in preparation for undertaking a Mormon mission to China.
3. A taped telephone call Knapp made to his wife, Linda, explaining that he had confessed only to protect her was never turned over to the defense attorneys. In a hearing before the start of the first trial, Hyder had assured Judge Hardy: “I can avow that there is no tape recording.” This tactic explains what Hyder meant when he said once to an interviewer: “The law is the law and in any case you use it to the best of your advantage.” 4. A videotaped re-enactment of the fire made by the prosecution was destroyed.
5. Interviews conducted by Hyder’s chief investigator Michael Elardo were never identified and turned over to the defense.
Among these interviews is a key session with a witness who claimed that she saw the Knapp children playing with matches and that the older one was capable of lighting the entire book and then discarding it; a possible explanation for the fire.
6. All during the trial Hyder made much of the fact that Knapp failed to display any grief. However, the new evidence reveals something astonishing.
Only days before the trial began, Hyder conducted a telephone interview with a witness who told him of Knapp’s “going to pieces” and becoming emotionally undone after seeing pictures of his two dead daughters.
The tape has been played in court and Hyder’s voice is clearly identifiable as the questioner who expresses surprise at Knapp’s display of grief.
This critical tape was never turned over to the defense.
And Hyder went on to hammer at Knapp’s “absence of grief” 33 times in his closing argument.
The motion of the lawyers from the combined law firms of Meyer, Hendricks, Victor, Osborn, and Maledon, and Henze, Ronan, and Clark ends with a Conradian flourish:
“The heart of the Knapp story is much darker. The horror at the dark heart of this case is that the prosecutor himself, aided by those who assisted him in the prosecution, chose to lie to hide from view the evidence of Mr. Knapp’s innocence.” FC
|||
FL
Ken Basham walks through the rear door of the courtroom and approaches the defense table where Knapp sits making notes on a legal pad. No matter what time Basham walked through the door he would have found Knapp making notes.
Knapp is 44 going on 60. A broken man, he is like the character in Charles Dickens’ A Tale of Two Cities who spent his final catatonic years doing nothing but perpetually repairing the same old pair of shoes.
Basham wears aviator glasses and a dark blue uniform with two stripes on each arm. He is a pilot for USAir and flies out of Los Angeles.
He was Knapp’s first defense lawyer but became so disenchanted with the law after his experience in this case that he quit practicing and switched to a new career.
“Hello, John,” Basham says. “It’s been a long time. Hope you’re well.” Knapp gets up from his chair. They are both tall men. Basham is slim. Knapp, who has been on and off death row for years, is soft. His actions are tentative. His skin is creamy white. He has gained so much weight from eating starchy prison food that his blue short-sleeved prison shirt is much too tight.
“It’s good to see you, Ken,” Knapp says. “Thanks for coming. I really appreciate it.” Larry Hammond, professorial and preternaturally calm, heads the present Knapp defense team. He leads Basham through a series of questions that reveal the details of his law career and his unhappy experiences defending Knapp.
Basham had been a lawyer in the public defender’s office only a year in 1973 when the Knapp case was assigned to him.
It was his first murder trial and he was pitted against Hyder, even then an experienced, aggressive prosecutor who had built himself into a rage over Knapp’s alleged murder of his two small girls by setting them on fire.
Hammond asks him if Hyder actually had an “open file policy” about handing information over to the defense:
“That would have been the last thing Hyder would have done,” Basham says. “That wasn’t his style. He opposed everything we did from start to finish.”
Hammond plays the tape recording of Hyder’s voice with the witness who tells him of Knapp’s emotional breakdown. The courtroom is silent as everyone listens intently.
Hammond asks Basham if he could have used the tape in Knapp’s defense.
Basham shakes his head.
“There is no way to walk around that tape,” he says. “It’s unforgettable. If I had that tape, I would have used it as soon as I could.” FC
|||
FL
Diettrich still seems nervous as he takes the stand.
He tells Hammond under direct examination that he had handled perhaps 120 felony cases by the time he was hired by Knapp’s mother to participate in the defense. He had already tried a dozen murder trials.
“Were there disputes with Hyder over discovery in the Knapp trial?” Hammond asks.
Diettrich smiles.
“There certainly was. We went to court. Judge Hardy ruled we had a right to things. We never got them.” “When did you finally found out that Hyder had never given you the discovery documents you were entitled to in your defense of John Knapp?” Diettrich shakes his head in amazement. He stares at Hammond momentarily before answering.
“Not until you showed them to me in your office the other day.” That was seventeen years after the case had ended.
Hammond asks Diettrich about the tapes of Knapp’s calling his wife from jail and Hyder’s tape with the witness who talked of Knapp’s heartbroken scene.
“If I had that tape in my grasp,” Diettrich says, “I would have used it like a sword to defend my client. It is a simply unforgettable piece of evidence. If I had it, I could have contradicted Hyder’s evidence.” David White of the Pima County Attorney’s Office is acting as the prosecutor in the hearing. It is White’s job to make Judge Martone believe that the fault for the Knapp case belongs to Diettrich, who didn’t press vigorously enough for disclosure from Hyder.
White is a big man who is considered one of the best trial lawyers in Tucson. He has a windmill style in the courtroom. He moves about from his desk continually waving documents in the air like a vendor selling hot dogs at the ballpark.
There is a certain homespun quality about him. He wears winter-weight sport jackets in summertime.
Clearly, White had decided in advance that Diettrich must be his main target. If he could discredit Diettrich, perhaps he could make Judge Martone forget everything the prosecution had failed to disclose.
If White badgered Diettrich enough about his own transgressions, perhaps the fact that the prosecution had broken all the rules would be forgiven.
So White sits erect in his chair staring intently at Diettrich as Hammond questions him.
When Hammond sits down, White rushes to the lectern.
“You were disbarred in 1981, right?” Diettrich admits that he was.
“You were disbarred a second time in 1988, right?” “You also have a felony conviction, right?” It goes on like this for perhaps a half-hour. It is painful to watch, but Diettrich bears up well.
White drags out of Diettrich the fact that he has not worked for more than a year and suffers from a manic-depressive condition that provides him a small pension on which he lives.
“Is it true you are an alcoholic?” “I was a person who would work intensely and then indulge when I put my work aside,” Diettrich says.
“How many drinks would you have?” “Are you still drinking, sir?” “Have you been drinking this week?” “Did you drink last night?” “How many drinks did you have last night?” “You have been diagnosed as an alcoholic and yet you continue to drink?” “Is it true you were drinking during your preparation for the Knapp trial?” “And you were in full control of your faculties at this time?” Diettrich laughs.
“Why are you laughing?” “I’m not laughing at your question. I’m laughing at your tone.” White says, “You used to be a lawyer. You know how this works. Simply answer yes or no.” White again: “Mr. Diettrich, listen to the question.|.|.” Judge Martone breaks in.
Looking at White, the judge says: “You need to let him finish his answer.” White finished up a few minutes later. He did so with one final cheap shot.
“But you don’t have to worry about these things, Mr. Diettrich, do you? You’re not a lawyer anymore, right?” Diettrich looks up at White and stares him right in the eyes.
“That’s right,” he says, “I’m not.” The battle was over. White had done everything in his power to make Diettrich come unglued on the stand. He had failed.
Diettrich may not hold a license to practice law anymore. But he certainly hasn’t lost the skills.
There was something Judge Hardy remembered about Diettrich that sticks in the mind. It happened after the guilty verdict was returned against Knapp on November 19, 1974.
“Diettrich sat there in court, crying like a baby. He must have sat there for fifteen minutes.” The interrogation was led by Malone and his men by the light of glaring flashlights shone into Knapp’s face.
“If I had that tape in my grasp,” Diettrich says, “I would have used it like a sword to defend my client.”
If White badgered Diettrich enough about his own transgressions, perhaps the fact that the prosecution had broken all the rules would be forgiven.
