Inmate who was wrongfully imprisoned thanks the lawyer who saved him - by removing some symbols of hatred
by Tricia Cambron
San Francisco Chronicle
November 14, 2003
Etched into his skin with an ink made from charred wood, water and toothpaste, the 5-inch-by-3-inch swastika on Buddy Nickerson's left forearm is hard to miss -- and impossible to ignore. Nickerson got the tattoo, which includes a "White Power" insignia and hangman's noose, while in prison for a Santa Clara double murder he did not commit. He served 19 years before a federal judge released him in March.
Today the swastika and many similar tattoos on Nickerson's arms, neck and back are fading. Having them removed with laser surgery is painful, but it's the only way Nickerson can think of to repay the attorney who worked for 13 years to prove his innocence.
Many things have changed in those 19 years, from the relatively insignificant ("the burgers got smaller and the people got bigger," Nickerson says) to the more tragic (his children grew up and his mother died without him being there), but perhaps the most profound change was how Buddy Nickerson, who went into prison full of hatred for anyone who didn't look like him, came out as a tolerant man.
The impetus for this change, Nickerson says, was "a short curly headed guy" who is Jewish and wears a bowtie.
That guy is M. Gerald Schwartzbach, whose legal career has been studded with ground-breaking activism. He is probably best known as the attorney who won an acquittal for Stephen Bingham when the activist-lawyer-turned-fugitive returned for trial after fleeing in the aftermath of the 1971 San Quentin Massacre, in which black revolutionary George Jackson, two trustees and three prison guards were killed. He is also responsible for the law that gives indigent death penalty defendants in California the right to two lawyers, and in 1981 he was one of the first attorneys to establish the battered woman syndrome defense, winning an acquittal for a woman accused of shooting her police officer husband.
Schwartzbach grew up in a middle-class neighborhood near Wilkes-Barre, Pa. His parents were the children of immigrant Jews from Poland and Austria. His father's family was cultured, well read and educated. Schwartzbach spent his youth excelling not only in school, but also in sports. He and his wife, photographer Susan Homes Schwartzbach, and son Micah, a first-year law student, have lived in Mill Valley since 1985.
Born in the heart of the Silicon Valley, Glen "Buddy" Nickerson spent his youth working on motorcycles, not micro-systems. A high school dropout and petty drug dealer, he was fat, poor and, at 29, faced with spending the rest of his life in prison.
These two radically different men met when Schwartzbach was representing Murray Lodge, one of Nickerson's co-defendants. When he began investigating the murder case, Schwartzbach heard from more than one source that Nickerson, who was already convicted and serving life without parole, was innocent. As he looked at the evidence, including that a witness had described the assailant purported to be Nickerson as a man of "average size and weight" -- Nickerson weighed 425 pounds then -- Schwartzbach became convinced that Nickerson had been wrongly convicted.
The call reporting shots being fired at Rhonda Drive came a little after midnight on Sept. 14, 1984. When police arrived, they found John Evans lying in the doorway of his home, shot in the head. Mickie King, also shot in the head, was lying on the kitchen floor with his hands cuffed behind his back.
Michael Osorio, handcuffed and lying on the living room floor, was shot in the neck. Evans and King were dead, but Osorio was alive and coherent enough before he went into surgery to identify the assailants as three white men of "average build." Detectives said that later, in an interview in his hospital room following brain surgery and while under sedation, Osorio named Nickerson as one of the men he had seen. There was no record of the interview.
Other witnesses told police that night that they saw three men running from the home, including one who jumped a fence and one who was holding his abdomen and trailing blood. Eventually, police arrested four men, none of whom matched the blood trail: Murray Lodge, Bret Wofford, Dennis Hamilton and Nickerson.
Wofford pleaded guilty to a misdemeanor for purchasing the handcuffs. Lodge and Hamilton, both close to six feet tall and weighing around 200 pounds, were charged with the murders, as was Nickerson, who was twice their weight.
Hamilton and Nickerson were tried and convicted together in 1987. Hamilton was sentenced to two consecutive life sentences with the possibility of parole. Nickerson was sentenced to life without possibility of parole. After two mistrials and years of delays in the legal system, Lodge was eventually convicted in 1994 and sentenced to life without possibility of parole.
In 1999, the blood of William Jahn was matched to the trail of blood left at the scene through DNA analysis. Jahn was convicted of the murders in 2001.
During his years in prison, evidence of Nickerson's innocence continued to mount. Eyewitness Brian Tripp, who was 18 at the time of the murders and who went on to become a Colusa County deputy, recanted his identification of Nickerson.
During Lodge's first trial, Judge Robert M. Foley declared a mistrial based on his finding that the investigating officers, Brian Beck and Jerry Hall, had suppressed evidence and made false statements. But it still took Schwartzbach and co-counsel Edward Sousa six years and thousands of pages of legal briefs to finally get Nickerson released from prison in March.
Schwartzbach first interviewed Nickerson in 1990 at Tehachapi State Prison, as part of his preparation for defending Lodge.
"By this time Buddy had lost all his appeals," the attorneyrecalled. "It was over for him. He was doing life without parole, and he was not a very happy camper. When he came out, he looked big and mean. He sat down and I told him that I represented Murray. Well, he hated Murray, he was facing life in prison for something he didn't do, and I was defending the man who did it. And I'm a Jew. So he was pretty nasty."
Schwartzbach, a defense attorney for 34 years, wasn't fazed. "I said, 'Look, man, if you want, I'll leave, but if I walk out now, your last chance of ever leaving here other than in a box goes with me.'
"Buddy began to mellow out a little bit after that."
The two talked for a couple of hours. "The whole time I was talking to him, he had his chin on his fist and his forearm was showing and there was this huge swastika on his forearm. He had a ton of tattoos, but that one was quite prominent and it was just facing me the entire time we were talking."
Schwartzbach knows about tattoos. As a child, he saw the numbers tattooed on the wrists of relatives who survived the Nazi concentration camps. He had no illusions about Nickerson's attitudes toward Jews.
"Yes, he was a racist and anti-Semite. Did I like it? No, I wasn't crazy about it. Did it mean anything to me in terms of what I thought were my ethical and moral obligations as a lawyer? No. He was innocent and I had the knowledge and skill to try to get him out."
But at the end of that first interview, he told Nickerson, "Look, I don't know if I'm going to be able to do anything to get you out, but if I do, you've got to do something about that swastika."
Thirteen years later, just months before being released from prison, Nickerson wrote his lawyer reminding him of that day and pledging to get rid of the tattoos. Prominent among the framed photographs and banner headlines that line Schwartzbach's office walls is that letter -- hand-scrawled on a paper torn from a yellow legal pad -- in which Nickerson writes, "You've taught me to judge people based on who they are and not what they are. And I'll get the tattoos removed like I said, because I know of no other way to show you that I have very high respect for you and your family."
Shortly after his release, Nickerson began a series of laser surgeries to remove the tattoos. South Bay dermatologist Bruce Saal, who is also Jewish, agreed to remove them free of charge, partly out of respect for Schwartzbach and partly because of his belief that Nickerson really wants to change.
Nickerson's tattoos were drawn with an ink made by burning the wooden pieces of a chess set and capturing the carbon on the cardboard backing from a Snickers bar package. The carbon was scraped off the cardboard, mixed with a little water and toothpaste and applied with a tattoo gun made from the motor of a cassette player, a guitar string, a pen and some tape. The tattoos are actually easier to remove because they are so crude, says Saal. Four or five treatments at six-week intervals will virtually erase them.
Schwartzbach is impressed and appreciative of the effort -- and pain -- Nickerson has gone through to keep his word. But he is more impressed by the psychic change that has accompanieed the removal of the tattoos.
"Buddy grew up in a redneck environment where you were taught to hate anybody that wasn't of your race, and Jews were just white niggers," Schwartzbach says. "And while he was certainly no choirboy when he got arrested in this murder case -- he used to steal cars, use drugs, sell some drugs, get in fights -- he's one of the most principled people I've known."
Today, Nickerson isn't exactly close to being a card-carrying member of the American Civil Liberties Union, but he is light years away from where he was when he went to prison.
"I hated niggers," he said. "I wanted them to know that I hated them. I had a T-shirt that said 'f -- niggers' on it with three sixes that I wore into a bar in East Palo Alto. Those were my beliefs at that time. Then this litttle short curly headed guy came into my life and f -- ed all that up.
"Don't get me wrong, everybody is racist about something. There's no getting around that. But I was a very, very verbal person about it, and if you didn't like it, f -- you. Now I look at each person individually, and Gerry, in his weird little way, made me see that. He was the one -- how doo you put it? -- who put the crack in the wall."
Now, Nickerson says, "I don't care if you've got nine heads and are 128 different colors. If you carry yourself with respect, I'll give you your respect no matter what color you are.'' Nickerson isn't a religious person, but he says, "I believe everything happens for a reason. There's somebody out there running the show, so to speak, you can call it God or whatever you want to want to call it."
How Schwartzbach's entry into his life became part of that plan, Nickerson doesn't know. "He must have been really mean to his parents in the past," he says.
When Nickerson was originally charged with the murders, he faced the death penalty. Before going to trial, he was offered a sentence of 12 years, out in six, if he pleaded guilty. He turned the offer down. If he had taken the deal, he would have been out Christmas 1990 -- about the same time he met Schwartzbach.
"Do you remember the very first story you ever wrote: You had everything covered, you couldn't have done it any better, nobody could find a dot out of place, nothing wrong with it, OK? The feeling you had?" Nickerson asks. "That's the feeling I had knowing I was right. Nobody could have came and I don't care if they talked till they were blue in the face; nobody was making me take a deal. You don't think my parents, when I was facing the death penalty, didn't say, 'We know you didn't do it, but . . .'? Life is black and white to me; there's no gray area. There's only one of two ways it goes, either great or in the (toilet)."
In March, Federal Judge Marilyn Hall Patel vacated Nickerson's convictions and released him on bail pending retrial. Two months later, Santa Clara County District Attorney George Kennedy said he would not retry Nickerson, but cited circumstances other than Nickerson's innocence as the reasons for his decision.
"The Santa Clara County District Attorney's office holds a stronger case for Nickerson's guilt than that publicized by Nickerson's appellate lawyer and found in Patel's Memorandum and Order releasing Nickerson," he said at the time. Kennedy didn't elaborate, but did say that the factors weighing against a potential retrial were the failing health of the surviving victim, plus that Nickerson had already served 19 years in prison and that the two "main shooters" were both serving life sentences.
Kennedy's statement doesn't mention the loss of credibility of his two investigating officers, which weighed heavily in Patel's decision and in Foley's declaration of a mistrial in the Lodge case. Foley, who had also been the judge in Nickerson's trial, said during the Lodge case that Detectives Beck and Hall had suppressed evidence during the murder investigation.
In declaring that mistrial, Foley said, "I believed and trusted these officers for seven years, and I just can't believe they did this, but with the facts that I have before me, there is no other conclusion that I can reach." When discharging the jury, he said, "It is my belief that the officers willfully perjured themselves in your presence."
In her findings, Patel stated that Nickerson was "more probably thannot innocent of the crimes for which he was convicted. When considered in sum, the evidence indicates that the manipulation of evidence and failure to disclose exculpatory materials pervaded Beck and Hall's investigation and the evidence at trial. There is almost no evidence in the case against Nickerson which cannot reasonably be questioned as potentially the product of improper police conduct."
Nickerson said he is particularly bitter that the district attorney and sheriff have never admitted that they made a mistake in prosecuting him. "All they cared about was a conviction, and now they don't even have the class to admit they were wrong."
Nickerson doesn't know what he's going to do with his life, but knows what he would have done if he had been a free man the last 19 years. In a voice as soft and sad as it was loud and angry a moment before, he says, "I'd have watched my kids grow up and been out when my mom died."
He has two children, a 21-year-old daughter and 18-year-old son. His daughter lives in California and won't talk to him. "They've always been out of bounds. My son I never touched until I got out this year. I seen him when he was about 2 months old through glass at the county jail, and the next time I seen him was up in Santa Cruz when he was 18 1/2 years old."
His life after prison is not entirely dark, but it's not rosy, either. In the next year, Nickerson is scheduled for hip and knee replacements and a hernia operation. He hasn't been able to find a job, and is particularly irked that he had to get a learner's permit before he could drive.
The outside world is foreign to him in many, many ways. Space -- both too much and too little -- is a big consideration. His first night out of prison, he stayed at his father and stepmothher's condo in Foster City. His parents had prepared a bedroom for him, but Nickerson ended up spending most of that night on the porch or in the smaller, more confined bathroom. On a recent trip to Reno, he was miserable because of all the people bumping into him.
The relationship between Schwartzbach and Nickerson continues to evolve. During the first weeks of freedom, they talked several times a week as Nickerson adjusted to the outside. Now their contact is less often, and less paternal on Schwartzbach's part. Although the lawyer has helped him with the tattoo removals and with getting some other counseling, Nickerson is on his own now.
"It is enormously difficult for someone who has spent a substantial amount of time in prison to come out and adjust in a free world," Schwartzbach said. "The longer you were in, the more difficult it is. He was in for 18 1/2 years.
"But now, he's making the adjustment. It's going to be a long road. Is he going to make it? I hope so. I really hope so."
©2003 San Francisco Chronicle