The Magazine

JUSTICE DENIED

How To Avoid a Mass-Murder Trial for 13 Years, At Taxpayer Expense

Sep 14, 1998, Vol. 4, No. 01 • By DEBRA J. SAUNDERS
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In June 1985, two former Marines turned would-be survivalists -- Leonard Lake and Charles Ng -- were caught shoplifting a $ 75 vise from a hardware store in South San Francisco. Ng managed to flee. His friend Lake, while in custody, wrote a note to his exwife, then killed himself, swallowing a cyanide pill he kept in case of emergency. When police discovered that the two had been driving a stolen car belonging to a missing San Francisco man, they obtained a warrant to search Lake's home in Wilseyville, Calif., in Calaveras County (of Mark Twain jumping-frog fame). There they found charred bones, shallow graves, a sexual torture chamber, Lake's diary, and videotapes of women who were forced to serve as sexual slaves during the short remainder of their lives.


Authorities believe Ng and Lake killed as many as 19 men, women, and children -- the men, in order to steal their cars, video equipment, and other belongings; the women for sexual torture; and two babies because they were unfortunate enough to be in harm's way. Two entire families -- Harvey Dubs, his wife Deborah, and their baby, Sean, as well as Brenda O'Connor, Lonnie Bond Sr., and their baby, Lonnie Bond Jr. -- were killed. Ng was eventually charged with the murder of 12 victims, a capital offense. That was in the summer of 1985: Ronald Reagan was president, Bruce Springsteen's "Born in the U.S.A." topped the charts, and Charlie Ng was a 24-year-old fugitive from justice.


Today, 13 years and two presidents later, 37-year-old Charlie Ng has still managed to avoid going to trial, even though he was in custody within a month. Witnesses have died, evidence has moldered, defense lawyers and judges have come and gone, while Ng has pulled out every stop in the justice system to delay his day in court -- an odd strategy, it might seem, for a man who claims to be innocent. With any luck, his trial will begin later this month in an Orange County courtroom. But already, California's prosecution of Ng is the most expensive in the state's history, with costs approaching $ 10 million. The case has become a monument to a criminal-defense system run amok.


"We hope we live long enough to see the trial," Lola Stapley said last year. Stapley, 70, believes Lake and Ng tortured and shot her youngest son, Scott, on April 22, 1985. But even if Ng is "found guilty and is given the death penalty," she said, "we fully don't expect to live that long" -- since the death-penalty appeals could easily last another decade.


How has Ng done it? Cunning, luck, and exploitation of every legal loophole he could find.


Ng's first smart move was to flee to Canada. That's where police picked him up a month after Lake's suicide. Ng was arrested when he shot a security guard who spotted him shoplifting food in Calgary. He was tried and sentenced to four and a half years in a Canadian prison. California sought extradition, but Canada, which abolished the death penalty in 1976, was reluctant to deport Ng to a country that executes mass murderers. Nonetheless, in 1991, rather than turn Canada into a haven for fugitive murderers, the Canadian Supreme Court ruled that Ng could be extradited to the United States without soiling Canada's commitment to human rights. Still, Charlie had won six years.


The day of the court's ruling, Canada shipped Ng back to California. The San Francisco Chronicle reported, "Once Ng is arraigned, prosecutors say they hope he will face trial soon." Wrong.


Prosecutors in Calaveras County did put Ng through a preliminary hearing to determine whether he should be held for trial. Because the Hong Kong native was caught with escape paraphernalia and was considered extremely dangerous, he appeared at the hearing handcuffed, shackled, and placed in a steel security cage. In photos, his lean body seemed to be itching to leap out of his prison jumpsuit.


During his years in captivity, Ng mastered the art of tying up the courts. By 1994, when the trial venue was changed to Orange County, he had gone through five judges, some of whom tossed the case from their benches like a hot potato. The state supreme court had ruled on his representation eight times. Ng had even found time to slap two of his taxpayer-funded lawyers with a $ 1 million civil malpractice suit, claiming that he would not have been charged with murder if they had done a better job.


Ng's best friend was the "Marsden motion," used by a defendant to request a new defense lawyer. Ng has used this device repeatedly to postpone his day of justice, going through at least 10 taxpayer-funded attorneys. This abuse of process naturally angers judges. But so what? Ng has turned this to his advantage, managing to rid himself of judges, too.


In 1995, superior court judge Robert R. Fitzgerald made it plain that he was going to try the Ng case. Instead, Fitzgerald became the third judge to be ousted from the case. It started with -- what else? -- a Marsden motion Ng filed to dismiss his public defender, William G. Kelley, so as to serve as his own defense counsel. Ng told Fitzgerald, "I don't -- I can't say for sure, but I lost the trust and confidence that I think I need to, uh, to have him as my counsel."


Perhaps because Fitzgerald didn't want to give Ng grounds for appealing a conviction, the judge gave Ng what he had petitioned for. Presto, change-o. Ng decided that he didn't want to boot Kelley after all. Fitzgerald told Charlie, tough potatoes: He couldn't have Kelley back.


Three other lawyers then petitioned for Ng to get Kelley back and have Fitzgerald removed from the case. Taxpayer-funded psychiatrist Dr. Gary Dylewski testified that Ng now "realized he had misplaced his frustration upon those persons who were making their best efforts to prepare his defense." In other words, Charlie Ng wasn't trying to delay his trial; his little feelings were hurt. Amazingly, the state court of appeals ruled in Ng's favor, not only restoring Kelley, but also ousting Fitzgerald, in part because of what the higher court deemed Fitzgerald's unusual interest in trying the case.


Charlie's little tricks bought him another two years. Fitzgerald originally set the trial for September 6, 1996. The trial was put off first when Ng became his own attorney, and again when he had to wait for a new judge. Ng finally may have met his match, though, in Judge John J. Ryan, who has succeeded Fitzgerald and scheduled the trial for September 1, 1998.


Having won Kelley back, but finally facing a real trial date, Ng decided once more that he wanted to defend himself. Another day, another Marsden motion. Ryan agreed to let Ng represent himself but insisted that Kelley and another attorney serve as stand-by and advisory counsel. That way, if Ng changed his mind again or proved incompetent to represent himself, the trial could proceed as scheduled. But then Ng outdid himself. He asked for a pre-trial hearing delay because, he said, his new glasses gave him headaches when he read. (The prosecution procured affidavits from deputy sheriffs who attested that Charlie seemed to read just fine.) He also asked the court, for the umpteenth time, to change the venue to San Francisco. He whined, "It's not my fault," when he showed up at a hearing unprepared, blaming his paralegals. Then, after delaying for 13 years, Ng claimed he needed another six months to complete DNA tests on the victims' bones.


The clock may finally have run out on Charlie Ng. Ryan did postpone the trial, but only until September 14, and this time at the request of the jury commissioner, so that more than 1,000 prospective jurors could be reviewed for the trial, which is expected to last up to nine months.


Time has transformed the once buff and wiry Ng. He has hit middle age. The electric-shock belt he wears under his clothes adds to his girth. He sits slumped as he represents himself. When asked questions, he answers in halting English. Lola Stapley believes he's playing stupid. There is a comeuppance here. The criminal who did such a splendid job challenging his lawyers' competence sits slack-jawed and ineffectual in court. In August, after Ryan asked Ng if he wanted to represent himself, the former survivalist couldn't even muster an answer. Ryan ruled: Kelley is defending Ng. Again. And again, on August 28, Ng asked Judge Ryan to be allowed to represent himself. No dice.


At last reckoning, Calaveras County administrator Brent Harrington figured the cost of prosecuting and defending Ng has mounted to $ 9.3 million. It will undoubtedly go much higher. The trial will not be a simple one. After the 1985 investigation, police accidentally destroyed evidence in a related case. The mother of victim Kathleen Allen has died, as has the father of victim Debbie Dubs; both would have been witnesses. Investigative sheriff Claude Ballard and another potential witness have also died.


A friend of the Dubses e-mailed me in 1997 after one of Ng's many delays. Harvey Dubs was an abrasive guy, she wrote, but so big-hearted that he once drove 70 miles to the University of California at Davis to have his cat's leg amputated so that it could live. Debbie was "a dear, gentle person" whose life revolved around her son, Sean. Sean was 18 months old when the family disappeared. "It is as though they never existed," the friend wrote. "They simply vanished. They never had funerals. We never said good-bye to them."


And they call this a fair trial?




Debra J. Saunders writes a nationally syndicated column for the San Francisco Chronicle.