Six years ago, state public defender George Mertens was paying a routine visit to a death row inmate in San Quentin prison. But the visit -- to William Kirkpatrick Jr., the man now at the center of a controversy over California's death penalty -- turned out to be anything but routine.
The two men were sitting at an elevated table in a visiting room when Kirkpatrick got up to light a cigarette with matches kept at the guard station behind Mertens.
"The next thing that I knew, he was pounding on the right side of my head," says Mertens, who cites attorney-client privilege in refusing to describe what precipitated the attack.
Kirkpatrick stabbed Mertens 22 times with a sharpened toothbrush, puncturing the then 33-year-old lawyer's eardrum in four places. "I was soaked in blood," Mertens recalls.
After the attack, Mertens spent four or five months off work and finally took disability retirement from his job, plagued by permanent hearing loss and post-traumatic stress.
After collecting a $15,000 workers' compensation award, he did not practice for more than a year. "I just suddenly had this distaste for law," Mertens explains.
Now a solo practitioner in the Placer County town of Lincoln, Mertens still defends accused murderers and visits clients in prison. But he no longer takes capital cases.
The attack on Mertens was only the most dramatic of the violent incidents that have marked Kirkpatrick's life behind bars in the nearly 12 years since he was sentenced to death for shooting two young men during the 1983 robbery of a Burbank Taco Bell restaurant.
Earlier this month, it looked as if Kirkpatrick could become the first man executed in California in more than two years. He had declared that he wanted to drop his appeals and accept execution, which had been scheduled for last Friday.
But nearly two weeks ago, the 35-year-old prisoner changed his mind and Los Angeles federal Judge William Keller stayed the execution. Then Attorney General Dan Lungren made headlines by accusing lawyers from the publicly funded California Appellate Project of bringing Kirkpatrick around with gifts, including tennis shoes and cookies.
CAP said no public money was spent on the items -- and noted that Kirkpatrick has every right to seek further review of his case.
Once his federal habeas corpus petition is filed, it could be years before Kirkpatrick's case is resolved.
A Cruel Crime
The crime that sent Kirkpatrick to death row was a cruel one, and the prosecution case -- presented by Terry Green, now an L.A. Superior Court judge -- was "fairly compelling," recalls one of Kirkpatrick's two court-appointed defenders, defense lawyer Rayford Fountain of Pasadena's Fountain & Hattersley.
The shooting victims, L. Wayne Hunter, 27, and James Falconio, 16, were found in a closet at the Taco Bell at midnight on Sept. 17, 1983. Each had been shot once in the head with a .22-caliber bullet, and $625 was missing from the safe and cash register. Hunter, an assistant manager, was dead; Falconio, an employee, died almost two weeks later.
Kirkpatrick had once worked at the same Taco Bell -- and had told an acquaintance he wanted to kill Hunter and another manager for transferring him to a different store, according to court records.
When Kirkpatrick was arrested five days after the shooting, police found three .22-caliber cartridges in his car and a stereo equalizer stolen eight days earlier from a North Hollywood gas station where Kirkpatrick had once worked.
A .22-caliber pistol had been taken in the same gas station robbery, and two of Kirkpatrick's acquaintances said that soon after the Taco Bell shootings he told them he had killed two people.
But Kirkpatrick denied committing the murders, saying the shells had been left in his car by gang members who had borrowed it to shoot heroin. The night of the shooting, he said, he was buying a new battery at a gas station -- but testimony by another gas station customer suggested Kirkpatrick had actually been there hours later than he claimed.
None of Kirkpatrick's relatives testified for him during the penalty phase of his trial, because Kirkpatrick told his lawyers he did not want them involved. But he spoke for himself, telling the jury that he hoped to become a published writer.
The penalty phase also produced evidence of a scary streak, however. A 17-year-old boy testified that months earlier Kirkpatrick had forced him into oral sex, threatening to kill him if he did not comply. A 16-year-old boy testified that Kirkpatrick tried to choke him when he refused to help out with a robbery.
And a woman testified that Kirkpatrick threatened her and her daughter, and later poisoned her dogs, because she did not return a calculator she had borrowed from him.
A jury deliberated for nearly two days before recommending death.
A co-defendant, Eddie Salazar, who participated in the robbery but did not pull the trigger, is serving 25 years to life for first-degree murder.
Automatic Appeal Denied
In June 1994, the state Supreme Court unanimously denied Kirkpatrick's automatic appeal. By then, Kirkpatrick was represented by Edward Horowitz, a Los Angeles private attorney who was assigned to the case after the state public defender asked to be relieved in the wake of the Mertens assault.
Horowitz argued that his client's rights were infringed when L.A. Superior Court Judge Coleman Swart refused to let Kirkpatrick serve as co-counsel during the guilt phase of his trial or represent himself during the penalty phase.
Swart did, however, let Kirkpatrick serve as co-counsel during the penalty phase. Kirkpatrick cross-examined penalty-phase witnesses and argued to the jury.
The Supreme Court said Judge Swart did not abuse his discretion in finding that Kirkpatrick's self-representation motion came too late in the trial. But the court did chastise Kirkpatrick's lawyers for opposing their client's motion, noting, "Defense counsel's primary role is to represent the accused."
Despite his record of later prison violence, Kirkpatrick was relatively well-behaved during his trial, says former defense counsel Fountain.
"He was actually much more cooperative and pleasant than a lot of other clients I've had," says Fountain, whose memories of the trial are dim more than a decade later.
But after the conviction, Kirkpatrick's relationship with his lawyers began to break down, Fountain recalls.
That moment "would have been the beginning of the shift, once he realized that the system had now condemned him," Fountain says. "Perhaps that was the beginning of his real anger at the system."
No Prior Felonies
Kirkpatrick had not been in much serious legal trouble before the Taco Bell shooting. The child of a Mexican mother and an African-American father he never met, he grew up in Brooklyn, N.Y. His stepfather was a New York City police sergeant.
Kirkpatrick dropped out of high school after 11th grade and worked a variety of odd jobs, including as a driver and a cook. According to the corrections department and the Supreme Court, his criminal record consisted solely of misdemeanors -- two drunken driving convictions and two convictions for receiving stolen property.
But in San Quentin, Kirkpatrick has broken prison rules more than 20 times, sometimes by fighting with other inmates or threatening staff, according to Department of Corrections records. He was not prosecuted for the Mertens assault because of his condemned status, but he lost prison privileges, the corrections department says.
Even before the attack, Kirkpatrick was living in the prison's "adjustment center," where troublesome inmates are punished with sharp restrictions on privileges such as outdoor exercise. Although it is possible for inmates to move back to the regular death row if they behave, Kirkpatrick has been in the adjustment center ever since, said San Quentin spokeswoman Lt. Joy Macfarlane.
Kirkpatrick still maintains he is innocent, CAP said earlier this month. But that claim, like Kirkpatrick's decision to continue his appeals, has not always been so firm.
In July 1995, Kirkpatrick wrote to the U.S. Supreme Court, addressing the justices as "Dear sorry white trash." In the obscenity-filled letter, Kirkpatrick said he was guilty and wanted to proceed to execution.
"I feel no remorse!" he wrote. "Give me my execution date and kill me!!!"
(The Recorder is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
