The Twilight Zone Tragedy
Lea Purwin D'Agostino became the prosecutor. She was a petite, strikingly attractive woman with dark hair and high cheekbones. Decidedly feminine in appearance, D'Agostino exuded an air of confidence and was known as a tough, aggressive prosecutor with a string of courtroom victories behind her. Some people called her "The Dragon Lady." Others nicknamed her "Queen Lea." In court, she wore designer outfits accented by a golden bumblebee brooch.
The relationship between D'Agostino and the defense attorneys was unusually acrimonious. Attorney Arnold Klein commented, "Since she came on the case, we all want to win twice as bad, not only to prove our clients are innocent of any crime but also because we want to make D'Agostino eat it." An element of sexism may have entered into this enmity. The defendants and their lawyers looked like a proverbial "Old Boys' Club." D'Agostino was bold, assertive and sometimes arrogant.
The jury consisted of seven women and five men. About one-third of the jurors were Asian, black or Hispanic. They included two homemakers, a pallet repairperson, a chemist and a clerk-typist.
Balding and mustachioed Judge Roger Boren presided. He had been the prosecutor in the case of Angelo Buono, one-half of the duo (his crime partner was his cousin, Kenneth Bianchi) responsible for the serial "Hillside Stranglings." Boren was married and the father of five.
She told the jurors they would see footage of the crash. "What you will see is no illusion," she said. "You'll see real fires put out with real water. The helicopter you will see is no toy . . . And they were very, very real deaths, not ones where the people could get up and wipe the ketchup off. You won't see My-ca Le or Vic Morrow walk in from the back of this courtroom and put their heads back on!"
James Neal told the jury that the scene of the fatal shooting had been meticulously planned and carefully rehearsed. "Action films are meant to appear dangerous," he commented, "and proof will show that had this scene gone as planned and rehearsed, there would have been no accident." Unforeseeable events and the mistakes of a technician named James Camomile had caused the tragedy, according to Neal. As Farber and Green wrote, Neal informed the jury that Camomile "had detonated two explosions almost simultaneously, without looking up to check the location of the helicopter, and in direct contravention of the prearranged plan. His error was compounded when one of the blasts misfired and 'married' with the other, creating a fireball far larger than anyone anticipated. Moreover, Neal insisted, the defendants could not possibly have known that the heat generated by this fireball would cause the helicopter's tail rotor to delaminate, since such an occurrence was unprecedented in the history of aviation. It was this delamination — the melting away of the rotor's protective skin — that disabled the craft and forced it to spin out of control."
The prosecutor's first witness, Donna Schuman, acknowledged that testifying against Folsey was uncomfortable for her since he was a personal friend. Nevertheless, she said Folsey told her the children would be hired without the required permits from the labor commission.
Schuman also related statements she attributed to Folsey and Landis that she had not mentioned in testimony before either the grand jury or in the preliminary hearing. She claimed that she had asked Folsey what the penalty was for working kids illegally. She said he replied, "A slap on the wrist and a little fine — unless they find out about the explosives, then they'll throw my butt in jail." She also claimed Landis said lightheartedly, "Arrgghhh, we're all going to jail!"
Under cross-examination, Schuman said that the previous prosecutor in the case, Gary Kesselman, agreed not to ask her about the remarks in prior court appearances out of respect for her feelings about testifying against her friend Folsey. She also said that Kesselman wanted to withhold knowledge of the remarks from the defense. "He said you never put your whole case on until you go before the jury," she claimed, "and that's the only time the defense really needs to have everything."
This testimony was a gift to the defense. Under the rules of discovery, the prosecution must make all evidence available to the defense before the trial. The defense did know about Schuman's quotes from Landis and Folsey before the trial proper but could still claim the information had been wrongly hidden from them before the prior proceedings. As James Neal put it, "We have a witness who is absolutely lying, or we have a prosecutor who is deliberately withholding information from us."
After this troubling testimony, the defense subpoenaed Gary Kesselman. He did not testify in front of the jury since he was not a prosecution witness and the prosecution was putting on its side of the case at the time.
In the hearing before Judge Boren, Kesselman contradicted Schuman's testimony. He claimed that Schuman had never told him that either Landis or Folsey said anything about fearing they would go to jail.
D'Agostino stood by her witness. "I believe Donna Schuman one hundred million percent," she said, "because I can't count any higher. I have to believe Mr. Kesselman's recollections are not as good." At one point, D'Agostino took the stand in this hearing outside the jury's presence. Without naming Kesselman directly, D'Agostino testified, "I figured someone was trying to withhold information from me so I wouldn't be adequately prepared. Possibly I was not the recipient of all the information when the file was turned over to me."
Thus, the defense had successfully diverted attention from the relevant issue of whether or not Folsey and Landis feared jail for their illegal hiring of children to, as Farber and Green put it, "the contest of credibility between Schuman and Kesselman."
The prosecution put red-haired Colleen Logan on the stand. Logan was the deputy labor commissioner who oversaw the entertainment industry's employment of minors. Her office had already levied fines against Landis and Warner Bros. for the illegal hiring of Renee and My-ca.
Logan testified that the regulations of her office forbid children under eight from working past 6:30 p.m. but waivers are frequently granted to allow their nighttime employment. She also testified that she thought it dangerous for children to work near helicopters and special effects explosions. The judge had previously ruled that D'Agostino could not put the hypothetical question to her of whether or not she would have given a waiver to let children work in the specific scene that Landis wanted to film.