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 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.