A second change of venue sent the future Tom Yu trial from Fresno to Santa Barbara, a small city of 75,000, which rests on a shelf in Southern California between the Santa Ynez Mountains and the Pacific Ocean. The town, begun as a Spanish military fortress, or presidio, in 1782, retains its Iberian heritage in whitewashed walls, red-tile roofs, and street names, as well as in its own name, derived from Father Junipero Serra's Mission Santa Barbara, one of a string of lovely old church complexes marking the trail of the good priest's Christianization of the Indians.
The second change of trial location for Tom Yu might have offered an omen to a soothsayer, for there would not be just one trial for Tom in the sunny coastal community, but two. The first, started in August 1979, resulted in a hung jury. The second commenced in January of 1980.
The evidence phase of the second Tom Yu trial ended much like the first--a few perfunctory witnesses called by defense attorney Robert Sheridan in the hope of establishing that others besides Tom had a motive for killing Kenneth Kin Louie, and impeachment of their credibility by the prosecution. Then, after nearly two months of trial in each instance, both sides concluded evidence.
In neither trial did Tom take the stand.
How could he?
With the prosecution ready to offer in rebuttal the videotape of the meeting held in the Sheraton at Fisherman's Wharf in February 1978, he could not risk revealing his readiness then to send teen-age hit men to Hawaii in a cold-blooded plot to commit double contract murder. Such evidence was too strong a refutation of his defense that he was NOT a leader, and, thus, could not possibly have been the orchestrator of the Golden Dragon massacre. Judge John Westwick ruled in both trials against the People's offering the tape in evidence against Tom in the prosecution's case-in-chief, but opined that, if Tom Yu took the stand and "opened the door," Levine might well be permitted to use the tape in rebuttal.
Tom's defense remained substantially the same in both trials--meager, and best expressed in Tom's lame statement, "I wasn't even there."
The ultimate burden of persuasion, however, that the lack of Tom's physical presence at the holocaust inside the Golden Dragon was as untelling as would have been a public performance of the Ninth Symphony while Ludwig von Beethoven sat alone at home, fell heavily on the shoulders of Hugh Levine.
From the beginning, he had known that one issue he would have to deal with was the defense contention that the Gang Task Force and the prosecution--meaning Levine--had "framed" Tom Yu. From the outset, Levine had realized that every tactic employed to build the case against Tom would be subjected to close scrutiny by defense counsel. He had harped on one subject throughout the investigation: every feasible investigative technique had to be tried, and every possible source of additional evidence had to be exhausted before bringing Tom Yu to trial.
The case against Tom gradually strengthened after the prosecutions began, primarily because of Chester Yu's inability, under cross-examination in the shooters' trials, to hold to his story that Sai Ying Lee, rather than Tom, was the real mastermind. Every damaging admission defense attorneys wrung from Chester about Tom's involvement, Levine, in his turn, was able to wring out when the boy eventually testified in his older brother's trial. That testimony comprised not only some of the most damaging evidence against Tom, but also, on account of its source, the most credible.
The prosecution had climbed a long, steep road to the point of convicting Tom, a long way from that April day in 1978 when Levine had been forced to let the architect of the Golden Dragon massacre walk away from George Walker's office because of a lack of evidence. Levine now stood at the summit of what truly had become, for the prosecution, Gum San, "Golden Mountain," the name applied to California by Chinese 1849ers.
When Judge Westwick recessed the court after both sides had rested, in the late afternoon of Monday, March 3, 1980, Levine was left with the remainder of the day and a night to hone his summation for the jury. The case had been tried twice; quite likely, there would be no third chance.
In his motel room that night, he sat among cartons containing the Golden Dragon investigation files, transcripts of this and all the preceding trials, volumes of his summations, and reams of notes. He was not, by any stretch of his imagination, alone with these artifacts of investigation and trial.
There were ghosts with him: Paul Wada, resplendent in the promise of an unfulfilled career at the bar; Denise Louie, heroic soul adrift in a sea of humanity, loving and caring for all; Donald Kwan, tall and proud and, even in death, so well loved; Calvin Fong, his voice stilled on Earth, but opened in heavenly choir; and, over all, the strains of a sonata softly bowed on a violin above the whisper of Fong Wong's last words, "I am dying, I am dying."
Levine fell asleep just before dawn, his head nodding in exhaustion over the notes he had prepared, but he knew what he had to say.
The next day, because Tom Yu's family had been in court during the last days of the trial, his mother and sisters often in tears, Levine sought to diffuse some of the sympathy this might have engendered in the jury. For this reason, he began his summation by saying: "This is not a sympathy contest or an emotional exercise. If it were, I think the People's case would start out at a vast advantage in view of the enormity of the tragedy we are dealing with here. If we had wanted to, we could have filled this courtroom with the bereaved relatives of the dead to come and cry for you, and with the anguished relatives of the wounded. We could have filled this courtroom to overflowing, and perhaps out into the halls."
He then reviewed specific counts of the indict-ment, recounting the basically uncontested evidence that the killings were, in fact, murders of the first degree and the assaults, in fact, felonious.
Levine spoke about the victims and their wounds, about the shooters' motives and intent as they loosed their fusillade of gunfire. He had come to know the wounded survivors well during the course of presenting their testimony in the myriad preliminary hearings and trials. He had learned details about their lives both before and after the incident, and had seen the continuing physical and emotional impact on them not only of the wounds, but also of the indelible memories of that bloodbath. Every time when, at his bidding, they had flown in from around the country to take the witness stand one more time--although they kidded about another convention of the "Golden Dragon Massacre Survivors Club"--Levine knew they would once again relive, in testimony, harrowing moments they would rather forget.
To convey graphically his critical theme about the Joe Boys' money motive, Levine tied it into his description of the victims' wounds. He spoke of "Wendy Suto, who arrived at San Francisco General Hospital medically dead, with no vital signs, and who was saved by a good medical team...Wendy Suto, who underwent numerous operations, and had to wear a cast on her hip and leg for months afterward, and then graduate to crutches.
"Can you imagine the effect, on that pretty young girl, of all the surgery scars that must cover her body from neck to feet, and what she has to bear and suffer for the rest of her life...because Tom Yu and his Joe Boys wanted to drive the Wah Ching and the Hop Sing Boys out of Chinatown so they could take over those crime profits in Chinatown?
"And Carolina Sanchez, who was trying to crawl behind this pillar for some shelter, but she could not get there because there were so many people already using that little pillar to try to escape the barrage of bullets. She crawled along the floor with a chair in front of her, and then turned her head and was struck in the jaw by a bullet. She told you how she was choking on her own blood.
"And you saw the X-rays of her shattered jaw, and you heard Dr. Stephens' opinion on how it could not be corrected other than by extensive surgery. You can imagine the scarring underneath that bandage she wears, and what her pretty face will have to bear for the rest of her life...because Tom Yu and his Joe Boys wanted to be able to extort merchants in Chinatown; wanted to be able to protect illegal gambling places in Chinatown; wanted to make money from crime in Chinatown.
"And then there is Dr. William Alexander, the psychiatrist from Tiburon who was dining out with the comedy team of Phil Proctor and Peter Bergman. He was struck in the leg. The bullet traveled from his heel all the way to behind his knee. It is still there. He has a little lead memento in his leg...of Tom Yu and his Joe Boys' desire to drive the Wah Ching out of Chinatown, kill as many as they could, to make money from extorting merchants and protecting illegal gambling and dealing in illegal fireworks."
For a couple of hours, Levine then reviewed the evidence the prosecution had presented, why it was credible, and how it established Tom Yu's guilt of the charges.
Afterward, Sheridan (himself a former San Francisco prosecutor) summed up the defense for seven hours over the next two days. He made two especial contentions in his client's favor: Tom wasn't even there, and many of the co-defendants or co-participants had been given immunity or plea-bargains with lesser sentences (Dana Yu and Carlos Jon got immunity; Bert Rodriguez got probation on the Sonoma County dynamite charge). It was therefore not fair that Tom should be subjected to prosecution for first-degree murder with its mandatory life sentence. Such deals as those given by the prosecution and the Gang Task Force had induced witnesses to implicate Tom, an innocent bystander caught up in the maelstrom of the massacre.
"It just isn't fair," the attorney for the defense implored, "it just isn't fair!"
After Sheridan's summation, Levine rose for rebuttal. He began by answering the Sheridan contentions:
"What's not fair...is what happened to five innocent people who were killed and 11 other innocent people who were wounded. THAT is what's not fair!
"...There is the suggestion in Mr. Sheridan's appeal that 'Hey, they got the three shooters...so forget about Tom Yu.' ...That's about like saying that they got the people who did the murders in the Charlie Manson case, so forget about Charlie Manson." Sheridan had referred to the Manson case in his argument, so Levine next made an effort to turn the many similarities between that case and the Golden Dragon affair into persuasion of the jurors to convict Tom of his non-violent activities some 15 miles away from the scene of the murders and assaults.
"And what was Charlie Manson's defense in that case?" asked Levine, answering his own question by pointing out to Tom Yu's jurors that Charlie Manson "claimed, through defense argumentation, 'I was miles away from the Hollywood Hills when those three crazy girls, who weren't under my control, went there and killed those people...I am not responsible for what they did; they did this thing on their own, this butchery that they did out there. I had nothing to do with it.' ...And the defense in that case argued on behalf of Charlie Manson, who did not take the stand...everything the defense argued in this case...and the jury went out, deliberated, and Charlie Manson is today where he belongs, in state prison, found guilty of murder and conspiracy to commit murder."
Sheridan had referred continually to the central figures in the Golden Dragon conspiracy as "boys" and contended that their gang wars were part of the "syndrome of high school boys" who went around "shooting at cars."
Thus, in his rebuttal Levine felt compelled to say:
"We are not talking about a conspiracy to kill cars...We are not talking about five dead Chevrolets in the Golden Dragon Restaurant...We are not talking about 11 wounded Volkswagens....
"...these bumbling little boys...are wiping fingerprints off bullets before they put them in guns. Not bad! Stealing a car to use, a car not identified with them. Pretty clever! And a backup car. ...They are switching clothing around among themselves to thwart an identification. ...They are going to wear masks...over their faces."
Sheridan had concluded his summation with a contention that Tom had "withdrawn from the ultimate conspiracy" and "opted out" after Carlos Jon's call, but before the shooters left Bert's house.
Levine wound up like a major-league pitcher for that one and told the jury that Sheridan's was wishful thinking, a grasp at a last straw by a drowning defense. If Tom had, in reality, "opted out" before the massacre, he would have left Bert's house so as not to be connected with the others if they got caught that night. But he had stayed on, awaited their return, slept there, and breakfasted on won-ton soup from the Golden Dragon the following morning. He had been present when the weapons were cut up and when his brother, Chester, and Tony Szeto took them away to dump in the Bay. He had then gone to Los Angeles to help tuck two of the shooters into hiding with the Joe Boys down South.
With the spectre of the hung jury in the first trial hanging over him like the sword of Damocles, Levine approached the end of his rebuttal summation by referring to our civilization's rule of law. "You and I must live by that law. So must Tom Yu. He cannot make his own law."
He contended that the defense had conceded to the facts of the prosecution by admitting to the existence of a conspiracy and then had argued unsuccessfully that Tom Yu had withdrawn from it. Levine understood such an admission to compel the conclusion that Tom was legally responsible for five acts of first-degree murder, 11 acts of assault, and two of conspiracy.
He spoke then of conscience, that he would leave the courtroom with his conscience untroubled because he had done his job to the best of his ability--presenting the facts for the jury's determination.
He begged that the jurors ask themselves the question: "If you return the verdict that the defense seeks in this case, will you be leaving here with a clear and untroubled conscience?"
He added: "There is only one conscience in this courtroom...that should be burdened. Not ours, not yours, [but] Tom Yu's."
Hugh Levine resumed his seat at the counsel table.
I have just given the best summation of my career, he thought, one that I'm proud to have left as my own personal memorial to those who died in the Golden Dragon massacre.
The second Santa Barbara jury convicted Tom Yu for his orchestration of the worst mass killing in the history of San Francisco. He was sentenced to life in prison, as had been Peter Ng and Melvin Yu before him.