Law and Disorder
By Ron Donoho
Death and sadness visit Kelly Hansen's office on a regular basis. He is, after all, a deputy district attorney. But the cold circumstances of November 28, 1995, were somehow different. That's when Danny Palm straddled the thin line between self-defense and murder and gunned down his neighbor-a neighbor who had been terrorizing Palm's Spring Valley neighborhood for more than two years.
"The fact that a person was killed was shocking to me," Hansen now says. "I had talked to Mr. Palm numerous times ... and then he took this action..." His voice trails off.
Palm's actions caused Hansen to cry-right there in his El Cajon office. The young deputy D.A. hadn't exactly been moved to tears because John Harper Jr. was dead; rather, he wept because Palm was the shooter. Hansen and Palm had been allies prior to that stupefying day: About a week earlier, Palm was one of several witnesses Hansen called while prosecuting Harper for using an automobile as a deadly weapon.
Hansen's tears were an anomalous sign of compassion and a curious detail-one of many in the troubling saga of the People of the State of California v. Danny James Palm. The case garnered national attention well before Palm was declared guilty of second-degree murder on June 5, 1996. Coast to coast, it's been debated whether Palm is a vigilante or a hero-and the court of public opinion appears to lean toward the latter.
It's said the universe demands sacrifice in order to avoid chaos. This is true especially when society must choose between justice and disorder or injustice and order. Those who simply believe Palm killed a man and ought to be jailed do not consider the tormented nuances of his situation. Those who think he acted in self-defense and should walk free appear to ignore the letter of the law. Such is the paradox of Danny Palm.
Much has happened since Palm was convicted. As yet unsentenced, the retired Navy commander has a new lawyer. On January 3, defense attorney Elisabeth Semel filed a motion for a new trial. At press time, a hearing had been set for February 26 to 28, at which Semel was expected to argue that a mind-boggling series of circumstances-before and after the shooting-led to Palm's incarceration.
The lawyer's 300-page motion contends that for more than two years Palm had attempted to work with law enforcement agents to bring Harper to justice. Semel alleges that police officers were negligent in handing complaints made by Palm and his neighbors; that when a case against Harper finally went to court, it was mishandled; that a detective overheard Harper threaten as he left a courtroom: "I know the neighbors have done this to me. If they think it was bad before, just wait till they see me now"; that Palm knew of these threats; that Harper left court and drove to Palm's house; that Harper's last words to Palm were: "You and your family are good as dead."
The motion further asserts that Palm's own trial in Superior Court was flawed. It claims that the judge gave improper instruction, the prosecutor crossed the line of propriety, and that Palm's original attorney-who was defending his first murder case-was disturbingly unqualified.
It cannot be overlooked that a man is dead. The Harper family grieves its loss. But those who decry the jailing of Danny Palm share a stirring lament.
"This was a total system failure," says Melody Hurt, whose case Kelly Hansen was arguing in court against Harper the week before Palm shot him. Hurt says Harper rammed her car from behind-as her panic-stricken, 9-year-old daughter wailed in fear-and then chased her for a harrowing 10 minutes. (Palm testified at his own trial that Hansen "did the best he could with what he had." Hansen says his work was "competent." But Hurt states that Hansen "didn't seem too concerned" about the Harper case and handled it "in a fractional way.")
Hurt points out a sad irony: The courts plea-bargained with her tormentor yet convicted a man she views as a victim. Nonetheless, she's optimistic Palm will get a new trial. "To blame Dan solely is a travesty. What's the message being sent here? It's that Harper had the right to terrorize us. What about our rights?" It's as if Harper had to kill someone with his car, she says, before action could be taken. Palm's deed may have caused the deputy D.A. to cry, but it brought a much different reaction from Hurt. "I felt relieved," she says.
Since filing Palm's motion in January, Elisabeth Semel has shunned the press. Media requests are declined with polite diplomacy. Sheltering clients from the spotlight, she says, is her policy.
Semel is a forceful, if diminutive, defense attorney. She's been in this line of work for 21 years. Cagey and guarded, she's cut off Palm from the media, too. Before his 1996 trial, Palm granted interviews to many radio and television outlets. Semel appears to possess a TV-movie- like passion about the case, yet she refuses to help reprise the media circus that preceded Palm's first case.
"I appreciate that this story has community and public-safety interest" is the most specific statement Semel will make. "But it's my responsibility to get my client a fair hearing-in the courtroom. I don't want an impression formed that I am trying to influence the court through the press."
Palm's wife, Carol, also has been advised by Semel to keep quiet. During a brief telephone conversation, Carol Palm says, "I only wish people could put themselves in Dan's shoes in this situation."
Her request is intriguing. Per the court's specific direction, Danny Palm's jury was not allowed to step inside his world-gone-awry. So pretend for a few moments you can.
You are Danny Palm, a 6-foot-5, stone-faced man of untidy bulk. You've never had a criminal record. For 52 years, the rules meant everything.
You served 29 years and retired from the Navy as a commander-always obeying the chain of command. As a combat systems inspector, you were trained to keep meticulous notes about machinery that guides nuclear weaponry. The work wasn't glamorous-but it was performed according to specified guidelines.
When it was time to leave the Navy, you settled into a dream home in hilly Spring Valley. It's not the ritziest of neighborhoods, but the views are outstanding. There's gardening to do, a koi pond to install. A grown daughter moves into the house with her young family. From time to time, you and your wife, Carol, go camping. Or socialize with nearby friends like Charles and Sally Smiley. But a problem lurks at the bottom of the hill out back-John Harper Jr.
The first encounter comes on winding Helix Street. Heading into an S-curve, a man driving a white El Camino veers into your lane. The car comes within 20 feet of you before swerving back into the northbound lane. Whew.
Some time later, you and Carol are driving to dinner with the Smileys. Charles is at the wheel. He turns off Highview Lane onto Helix, and there's an El Camino parked on the side of the road. Its lights come on, and the engine roars to life. The car begins tailgating. Smiley pulls over to allow the El Camino to pass. But Harper-you can see now that the long-haired, bearded driver is your neighbor, Harper-pulls alongside and begins cursing. "Don't f--- with me," he says. "I know where you live."
You have two more run-ins with Harper. You later testify in court: "I was frightened. I was shaken. ... I was concerned that there had been ... altercations with the same individual who behaved bizarrely, apparently irrationally, [who] I thought was driving in a manner that was very dangerous to other people."
You are not alone in your fear. Steve Hendrickson, who's just passing through the neighborhood, is run off the road by Harper and hits a telephone pole near the Harper house. There are no arrests; Hendrickson says a police officer on the scene claims it's Harper's word versus that of Hendrickson and his passenger-even though neighbors tell police they'll attest to Harper's bizarre driving patterns.
Neighbor Larry Bunderson is afraid for his family. His family has had several run-ins; Bunderson wants a temporary restraining order against Harper. The Alvarez family-they've had three auto-related incidents with Harper-have to pass Harper's driveway to visit relatives. "I always told the children to duck when we passed the house," says Cindy Alvarez. Other neighbors and passersby complain of screaming tantrums and rock-throwing incidents.
Dave Tingle, your next-door neighbor, has similar experiences. He realizes it's time to organize. Neighbors gather at the Tingle home on May 24, 1995. Also on hand: representatives from the Sheriff's Department and the office of Fourth District County Supervisor Ron Roberts and a crime prevention unit.
Grievances are aired. Tingle notes his concern that police are not being at all helpful in dealing with Harper. "We'd call the Sheriff's Department and they'd refer us to Highway Patrol," says Tingle. "We'd call Highway Patrol and they'd say, 'Call the Sheriff's Department.' That's about all the help we got."
Law enforcement officials recommend starting a citizens' group. Bob Heider, director of Safe Streets Now, is summoned to a meeting at your house. Heider recommends sending a letter to Harper's parents threatening civil action (the 48-year-old Harper lives on his mother and father's property). The neighbors are advised to monitor the activities of Harper. Tingle will keep notes. You are drafted to keep records.
You and Tingle document 150 incidents involving Harper and 42 victims. In one, Melody Hurt and her daughter are rammed. Months after the ramming, Harper is finally arrested for that incident and spends a night in jail. Upon his release on bail on July 1, 1995, a detective hears Harper say, "I know the neighbors have done this to me. If they think it was bad before, just wait till they see me now." You are informed of his words. You learn later that day Harper has threatened a head-on collision with Larry Bunderson.
By now you are emotionally distressed. There are sleepless nights; bouts of stress-induced diarrhea. Still, you've offered to testify against Harper in the Hurt case. To this point, you've done what's come naturally-followed the rules.
Harper's case ends just before Thanksgiving in a hung jury. Rather than retry, prosecutor Hansen accepts a plea-bargain a few days later for misdemeanor reckless driving. Harper pays a $500 fine, is placed on probation and walks out of the courtroom.
At 11 a.m. that day, neighbor Louis Szuch calls to warn that Harper is coming. Carol yells, "He's out front!" You are terrified. You worry that he's on drugs (and later you're proven right-a high level of methamphetamine is found in Harper's system). You don't know what to expect. You've documented so many of Harper's transgressions; you recall hearing that his wife died in a fire of suspicious origin.
"I was thinking there might be a Molotov cocktail coming," you later testify.
After a few minutes Harper pulls his El Camino out of your driveway. You grab a .45-caliber pistol and two clips of ammunition. Getting into your tan Acura, you drive down your road to where Harper has come to a stop. He gestures. You're panic-stricken. A hot, pressing sensation wells inside your head. You're hyperventilating. You wave the gun at Harper. He looks at you and says, "You and your family are good as dead."
You don't remember firing the first shot-though you do recall a faint popping noise. Neither do you recall getting out of the car and pumping eight more bullets into his body, stopping once to reload. You drive away. Before going home, you hide the gun. At home you take a shower, then crawl in bed with Carol. When the police arrive and ask where the gun is, you respond, "What gun?"
Saturdays and Sundays are visitation days. Carol Palm faithfully makes the short trip from Spring Valley to the downtown jail, where for the past nine months she's been allowed to see Dan one hour each weekend. It's been this way ever since San Diego Superior Court Judge William D. Mudd ordered him to stand in court last summer after the verdict. That's when a telling scene unfolded: With assistance from defense attorney Elliott Kanter, Palm stripped off his belt, tie, shoelaces and much of any remaining dignity.
Elisabeth Semel believes Harper's death should have been ruled an accident-not second-degree murder. In her unusual motion for a new trial, she argues that the judge, prosecutor and Kanter all erred in some fashion. Especially Kanter. One observer compares Kanter's courtroom performance to that of the country-bumpkin lawyer played on TV by Andy Griffith: "Kanter was Matlock, only without the wit and humor."
The motion states: "Elliott Kanter presented this, his first murder trial, as a self-defense case. After the court denied his request for a self-defense instruction, Mr. Kanter argued that Mr. Palm should be acquitted because he was 'unconscious' when he killed Harper. Mr. Kanter suggested that at most his client might be guilty of the lesser included offense of voluntary or involuntary manslaughter. However, he made little mention of these theories in his summation." After noting several other specifics from the case, the motion says, "The courts have recognized that a new trial motion may be granted based upon grounds ... such as a claim that trial counsel was ineffective."
Kanter refuses to rebut specifics mentioned in the motion. He haltingly declines comment, saying only "I don't want to jeopardize Danny in any way."
The motion states that the prosecutor, Deputy District Attorney Blaine Bowman, gave incorrect instruction and information to the jury: "The prosecutor also argued that in considering a voluntary manslaughter conviction, the jury would have to measure Mr. Palm's actions by those of an ordinary person and could not put themselves in Mr. Palm's shoes, as Mr. Kanter had urged. This statement is simply wrong... Jurors judging the applicability of heat-of-passion manslaughter must indeed place themselves in the shoes of the defendant."
Bowman argued the state's case-as a national Court TV audience watched-with polished confidence. Tall and thin with boyish good looks, Bowman resembles a college basketball guard more than a deputy district attorney. But Bowman aims for murder convictions-not three-pointers.
During closing arguments, Bowman asked the jury if Harper deserved the "death penalty." Was Harper so notorious a character as to deserve a death sentence from Palm, Bowman wondered out loud. Was Harper a threat like Cleophus Prince? (Prince raped and killed six women.) How about Bernhard Hamilton, who killed a young mother of two, then chopped off her head? Or Robert Alton Harris? This was a man who kidnapped two teens, took them to a field, shot them, then returned to the youths' car to finish their Jack-in-the-Box hamburgers. John Harper Jr., on the other hand, had simply been found guilty of misdemeanor conduct, Bowman pointed out.
Semel argues that these are not cases with which Palm legally should have been associated.
Bowman's office in the downtown Hall of Justice is crowded with boxes of case-related material. One shelf is cluttered with letters from all over the country. Among the printable suggestions in the letters is one from a man in Massachusetts, who hopes Bowman will use future work time to bring "real" miscreants to justice.
"I did receive threatening phone calls during the course of the trial," says Bowman. "I don't take them personally. And I can understand why people feel the way they do." Still, he says, a crime was committed, and consequences must be suffered.
San Diego District Attorney Paul Pfingst oversaw the prosecution. He says sternly, "We can't begin taking the law into our own hands and say, 'I've had enough, therefore I'm going to execute someone at high noon in the middle of the street and everybody should leave me alone to go about my business.' That's not our system of justice."
Harper's younger sister, Juanita Luiz, sees her brother as a victim. "No one has the right to pick up a gun and shoot someone else," Luiz told the San Diego Union-Tribune. "They call my brother a wacko, but I never saw that. John was not the wacko who chased my brother down a road and pumped bullets into an unarmed man... I don't know what the cause was, but I do know what the effect was. It's destroyed my mother and father. Those vigilantes took the law into their own hands, and my brother's murder is the result."
Harper's father, who still lives on the property near the Palms' house in Spring Valley, says he's aware Palm is attempting to get a new trial. But he has no comment.
All our lives have been touched in some way by heroes and villains. Danny Palm, it seems, is either the darkest of heroes or the most unlikely of villains.
His second-degree murder conviction carries a minimum sentence of 15 years in prison. An additional gun charge could tack on 10 years. If Palm is granted a new trial, he could subsequently accept a plea-bargain. Semel and the district attorney's office both decline comment on possible plea-bargain options. The sentence for a voluntary manslaughter conviction is from three to 11 years; involuntary manslaughter, two to four years.
"You can't set Dan Palm free; he should do some time," says Bob Heider of Safe Streets Now. "But he does deserve a new trial and a lesser sentence." Heider is especially pained by all this. Safe Streets Now is a nonprofit organization, and he is a subcontractor whose salary is paid by the city of San Diego. President Clinton and Bob Dole both dropped by to praise Heider's activities during campaign stops in San Diego.
"Dan Palm did everything I told him to do," says Heider. "I asked him to document the situation. He did it very professionally." Heider says he works with thousands of community leaders, and Palm was "among the top four or five."
Several sources indicate Palm was all but abandoned by local law enforcement. In a memo dated December 6, 1995, County Supervisor Ron Roberts wrote to Sheriff Bill Kolender that Harper "terrorized over 40 victims for a period of two to three years" but that little help was forthcoming. Roberts blames a communication breakdown and lack of clarification of jurisdictional boundaries: "Promises made by the [Lemon Grove Sheriff] station's administrators (all of whom [now] are working elsewhere) of an 'open door policy' to discuss the actions of John Harper Jr. and how the neighbors could more effectively work with the Sheriff's Department were not carried out."
Lieutenant John Walker, formerly of the Lemon Grove substation and now commander of the Alpine station, thinks media coverage of the case has been slanted against law enforcement. He has little to say now about the whole situation. "Everything that occurred was aired in court," he says.
In essence, though, law enforcement seems to have left Palm and his neighbors on their own.
We'll now see if the universe is on the side of what many regard as justice-and not just order. Dave Tingle seeks justice and mercy for his next-door neighbor. Tingle is overseeing a defense fund for Palm and has collected close to $7,000. "Dan and I were in this thing together from the beginning," he says. "I'm not going to desert him now."
The neighborhood, Tingle adds, is quite peaceful these days.
The address for the Dan Palm Defense Fund: P.O. Box 1613, Spring Valley, CA 91979.