Dikē: Murder Will Out

justice-james-marchianoThe grim-faced court reporter in Department 47 read back selected testimony to Judge Raymond Carlton as he stiffened in his chair and carefully reviewed his trial notes in preparation for the jury instruction conference with counsel before final argument. Judge Carlton double-checked his notes against the reporter’s real time transcript to help resolve some contested instructions. In his many years on the bench, a dismayed Carlton had never presided over first degree murder allegations that presented such cold-hearted evidence, as if the perpetrators were devoid of any moral conscience and had lost their connection to humanity. The eight day trial caused the judge to conclude palpable evil exists, and vividly brought to life the concepts of malice aforethought and malignant heart. Case law defined a malignant heart as a “callous disregard for human life.”

The Greeks called her “Dikē.” The Romans, “Justitia.” From his classics education, Judge Carlton knew this goddess of justice uncovered concealed wrongdoing, brought to light dark dealings, and often dispensed justice in unexpected ways so that unforgivable acts received due recompense.

As he looked at his trial notes, Judge Carlton realized Dikē might have been working relentlessly, like a pursuing bloodhound, to rectify treachery. He could sense traces of her fingerprints on the case. The court reporter’s notes revealed the following.

Martinez is a quiet, middle-class town of 35,000, with a number of inexpensive rentals downtown, near tree-lined Berrellesa Street. Bobby Joe Harrington, Will Johnson, and Phil Cotter were roommates in a small, two bedroom unit. Harrington and Johnson, friends from high school, were 19-years-old, and Cotter was an 18-year-old high school dropout. A somewhat overweight, hulking figure, Bobby Joe Harrington was accustomed to bullying others. He and Will Johnson were inseparable, with Johnson usually following Harrington’s lead. When the two of them had a difficult time meeting their monthly rent, they brought in Phil Cotter, a small-framed introvert whom they met at the Rack-Up Pool Hall. Cotter worked part time at menial jobs, needed a place to live, and agreed to pay one-third of the rent and cable television bill in return for the smaller bedroom.

The relationship went awry within three months. Cotter was often short on his share of the rent. He kept his room slovenly, infrequently washed his clothes, bathed once a week, was often up late at night with his loud rap music, and left his food dishes unwashed, attracting ants. Harrington and Johnson argued daily with him about his repulsive living habits. The arguments grew louder and more contentious. Cotter refused to move out, even after he lost his last job and stopped paying any expenses. Harrington and Johnson were consumed with hatred for him, with a fury that had no bounds.

To solve their dilemma, Harrington and Johnson decided upon an easy solution: kill Cotter to put him out of their lives forever. Their twisted minds crept into a dark recess and devised a perfect crime. Cotter had few friends, was estranged from his family, and unlikely to be missed by anyone. No one would care if he were alive or dead. Harrington recalled reading somewhere that a victim struck on the skull with a hammer would not leave much blood. So the two coldly and methodically carried out the plan by placing an extra thick sheet on the couch where Cotter often fell asleep while watching television. They waited several days for the right night when Cotter seemed to fall into a deep sleep. Harrington smashed Cotter’s forehead with a claw hammer, battering, again and again, and told Johnson to hold down Cotter’s reflexive, defensively raised hands. After many savage blows, Cotter moaned and went limp as his life force slipped away. Harrington handed the hammer to Johnson to strike one final blow. Several pieces of Cotter’s skull tumbled to the floor. Johnson put the flesh and bony fragments in a garbage bag and threw the bag into a trash can. They then emptied his pockets and wrapped the body in the sheet, dropped him down on a rug by the couch, and rolled the rug around him, like a tight shroud around a corpse. Some blood oozed onto the wooden floor which Johnson wiped off.

Disposing of the body was the linchpin to their perfect crime. Jacob Pierce, a close friend, owed them a favor. They had provided weed to him in the past and loaned him some money. Johnson telephoned Pierce and asked him to bring his Toyota pickup to the apartment to transport something late that night. When Pierce arrived, they calmly told Pierce they killed Cotter whom Pierce also disliked. Pierce seemed to care less and agreed to help. Friendship knew no bounds. The three of them lifted the wrapped body into the bed of the pickup, threw in a shovel, and drove four miles to an isolated, unlit area of the Carquinez Strait Drive, where the roadside was covered with thick bushes and trees. The only thing interfering with the heavily concealed area was a low lying pipeline running from the Martinez Refinery, along the river, through the town of Crockett. Harrington had hiked along the remote road during high school.

They walked a long distance away from the road, with flashlights, crossed over the pipeline, dug a shallow grave and covered the body where no one would ever find it. Johnson heaved the hammer into the black hole of darkness, never to be found. The three then went back to the apartment to wash up and celebrate with a six pack of beer and some weed. Harrington told Jacob Pierce he could have anything from Cotter’s room, but there was nothing worthwhile to take. Harrington and Johnson had already taken the only thing Cotter had – his life.

On the next morning, Johnson scrubbed up small blood traces that had trickled onto the hardwood paneled floor, and straightened up the room. If anyone asked about Cotter, they agreed to say he left early the night before with a duffel bag of clothes and never came back. But who was likely to care or inquire? Cotter would be quickly forgotten like a discarded photograph that no one wants to keep or remember.

Harrington and Johnson went about their business that morning, confident in their deception. It was a warm July 1 in Martinez.

Dikē seemingly intervened as only she could. Once a year, only on July 1 and at no other time, a refinery engineer on foot inspected the couplings of the Carquinez pipeline to ensure public safety. By late afternoon, a weary Charles McCollum had inspected and photographed three miles of connections and was about to leave for the day, when something seemed to turn his gaze through the underbrush to a disturbed area of piled up dirt, about fifty yards down from where he was. He felt compelled to walk over to the fresh mound and kicked a protruding corner of a rug. McCollum kicked some more with his steel-toed work boot and exposed a recently dug hole, with dirt and leaves covering a six foot carpet. A red tennis shoe extended out of one end. The carefully concealed body was discovered less than twenty-four hours after the slaying. The perfect crime had not survived a day.

The Sheriff’s investigating detectives arrived, sealed off the crime scene, and looked for identification on the body. But there was no wallet, nothing to identify the battered, young male victim except part of a tiny, wadded up receipt from a Martinez pool hall, stuffed deep in the bottom of a pocket. A sheriff’s aide felt an impulse to reach into the pocket a second time, pushed her small fingers down to the bottom and fortuitously found the thin, crumpled piece of paper. The coroner’s office took charge of the body.

Later, the forensic pathologist determined death was due to severe traumatic head injuries, caused by multiple blows from a blunt instrument. With the help of X-rays and the pathologist’s input, a sketch artist drew a depiction of Cotter’s reconstructed face. A detective contacted Rack-Up Pool Hall, with the receipt and the sketch. The manager quickly identified a teenager “Phil,” who hung out with two other young guys. Phil wore red tennis shoes. Other patrons said Bobby Joe Harrington was one of Cotter’s companions. Harrington was found through a warrant check revealing unpaid traffic fines.

Detective Louis Marquez went to the Martinez apartment and questioned Harrington about Cotter and his whereabouts. Harrington nonchalantly said his ex-roommate left the night before with a duffel bag, without any explanation of his plans. Constructing a defensive wall, Harrington spoke evasively about Cotter and provided little information about someone he knew casually, who kept to himself, and came and went irregularly. Harrington basically stuck to his story and appeared unconcerned about Cotter’s death. As the detective stood up to leave, he somehow happened to notice by a couch a darkened rectangular area on the sun bleached floor, the same size as the rug that covered Phil Cotter. Marquez asked Harrington about the whereabouts of the other roommate Will Johnson.

Marquez located Johnson at his workplace and invited him to the Sheriff’s office for an interview. Johnson reluctantly agreed and was placed in an interrogation room. At first Johnson said Cotter had abruptly left and he had no idea where he might be. The cover up was soon torn to shreds by an inspired, skillful Marquez who knew how to prod and when to ease-off to coax out information. When Johnson elaborated a bit, but stuck to his story that Cotter had left with a duffel bag, Marquez suggested Bobby Joe Harrington told him a different version. Johnson, perspiring, began to change the story’s chronology, added inconsistent details, and contradicted himself. Finally, Marquez told him a rectangular rug was missing from his apartment that had been wrapped around the body. Like someone suddenly falling through an old, collapsing trapdoor, Johnson rapidly blurted out that he didn’t kill Cotter, but only helped a bit and merely flung away the hammer. During the next, intense forty-five minutes, prodded by Marquez, he nervously recounted what happened from his perspective and told of Jacob Pierce’s involvement. Will Johnson’s exposed, guilty conscience had nowhere to hide.

Detective Marquez obtained a search warrant and hurried back to the apartment with criminalists who discovered slight traces of blood in the grooves of the floor. The blood type matched Phil Cotter’s. Rug fibers on the floor by the couch matched the rug wrapped around Cotter’s body. A persistent search found the hammer in the underbrush.

Jacob Pierce was detained and said he had nothing to do with the murder, but was only helping out some buddies. Under probing questioning, a visibly anxious Pierce became scared and then voluble as he filled in details of what he knew. He recalled Bobby Joe Harrington telling him how they carefully killed Cotter, while Johnson smiled and nodded in agreement with what Harrington recounted. Johnson’s nod was a perfect adoptive admission of complicity and guilt for evidentiary purposes at trial.

The three were arrested. Bobby Joe Harrington and Will Johnson were charged with first degree murder and the special circumstance of lying in wait, and Jacob Pierce with being an accessory after the fact. To avoid the maximum state prison time as an accessory, Pierce agreed to a plea bargain in return for his testimony against his friends. Self-preservation trumped friendship.

Due to Aranda/Bruton evidentiary problems involving interrogation statements implicating one other, Harrington and Johnson were tried separately, with Johnson’s trial scheduled first in Judge Carlton’s court room. Harrington refused to testify in Johnson’s trial. Johnson’s defense was he acted under the influence of drugs and did not knowingly help kill Cotter. But his purposeful conduct that night was a powerful countervailing force that belied lack of intent.

As Judge Carlton thought about depravity, the legal concept of a malignant heart, and studied the jury instructions on premeditated, first-degree murder with malice aforethought, he thought he felt the evanescent presence of Dikē meting out justice, as she shone light onto darkness. Dikē was not blindfolded, but an ever-vigilant goddess with an avenging sword, who brought about a day of reckoning to assure Phil Cotter was not forgotten.


Justice James Marchiano (Ret.) was a trial lawyer until appointed to the Superior Court of Contra Costa County in 1988, where he served for ten years, primarily as a civil and criminal trial judge. In 1998, he was appointed to the California Court of Appeal, First District, Division One, where he served as a Presiding Justice, for 15 years. This story is part of Stories from the Bray Building series of fictionalized court cases based on real cases that can be found at www.cccba.org/attorney/cclawyer-articles/.


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