Final Analysis: The Untold Story of the Susan Polk Murder Case - Catherine Crier (2007)

Part II. THE INVESTIGATION BEGINS

Chapter 20. BUCKING AUTHORITY

Since her arrest on that October night, Susan was convinced that authorities had targeted her unfairly because of actions she took during her divorce proceedings with Felix. In her mind, the judges were part of a conspiracy and did not want to help her in any way.

“I believe the reason for this animosity is political,” Susan wrote in a letter she later sent to the court:

In October 2002, shortly before my husband’s death, I sent a letter containing an excerpt from my diary to 7 (seven) judges in Contra Costa County accusing Judge Kolin of taking a bribe in a juvenile case involving one of my sons. There were other political statements in my diary, excerpts, which may have given rise to prejudice. I believe Judge [Laurel] Brady received a copy of this letter.

Judge Kolin was called as a prosecution witness at a bail hearing in 2004. He is a friend of Bud McKenzie, my brother-in-law’s attorney, and so testified. Mr. McKenzie, according to Judge Kolin, asked him to help prevent me from getting bail. Judge Dan O’Malley essentially recused himself in October of 2004, stating he had been contacted by a number of De la Salle parents. The Briners, friends of Bud McKenzie with whom my son Gabriel lives, are De la Salle parents. Mr. McKenzie was a De la Salle parent. The O’Malleys are Carondolet parents, the sister school of De la Salle.

It seems apparent that there has been a great amount of discussion and influence among these parties, which has also prejudiced the bench. It should also be noted that De la Salle raised money for my sons following their father’s death. The Psychology teacher at De la Salle, Mr. Otterstadt, was a former patient and trainee of my husband. I am informed and believe it to be true that Mr. Otterstadt organized the De la Salle community in relation to my husband’s death and the case against me.

Susan went on to describe being “attacked” by an officer of the court in August 2003, the day she attempted to file a Faretta motion—a preliminary step to representing herself. The motion is based on a 1975 decision that permitted a defendant to represent himself in a California murder case.

“I was attacked by Deputy Carin, and my arm was broken by him. He hit my elbow with a ‘blackjack,’ a metal rod,” Susan wrote.

Susan went on to claim that the officer assigned to investigate the incident “appears to be related to Judge [Laurel] Brady’s clerk.”

“He refused to take my statement, angrily declaring: ‘I’m not taking anything from you,’ betraying prejudice and animosity,” Susan wrote.

“This beating is relevant to the homicide case in that I intend to show that the investigation was tainted, exculpatory evidence including my diary was destroyed by law enforcement officers. Other examples of tampering with evidence exist. The beating was an attempt to silence me. In fact, Deputy Carin said just before he broke my arm, ‘I told you not to speak in court,’ a major obstacle to a pro per defendant.”

Regardless of Susan’s conspiracy theories, these early bail hearings made it clear that her contempt for authority in the court of law was a much larger problem, one that would prove highly ineffective if carried into the trial. Any progress she made would be reduced when she lashed out at the judges and their subordinates. Her paranoia became increasingly harmful to her case when coupled with her adamant refusal to obey the will of the court. When faced with the choice between controlling herself and lashing out at the bench, she always chose the latter, ensuring that she received no respect from the judges that controlled her fate.

It was a risky path for anyone to take, but for a woman accused of first-degree murder, it appeared almost suicidal.

More than two years of arguing over Susan’s bail status (or lack thereof) did little to improve her situation. Finally, in the fall of 2004, Judge Mary Ann O’Malley conducted a review of Susan’s no-bail status. Prosecutor Tom O’Connor called Adam to the stand on September 10 to clarify a letter he wrote to the court with regard to bail for his mother, a letter which had ended with Adam saying that it was right for the court to release Susan.

“You know, I love my mom. She’s always known that,” Adam said to O’Connor. “I don’t think that she’s a person who belongs in prison. I don’t think she fits into the general public of a prison. However, that being said, I don’t think she belongs in the general public right now either.”

“And why is that, sir?”

“I think that my mom has psychological issues that need to be dealt with that could be detrimental to other people around her…and herself,” Adam said.

“Was it your opinion that prior to what occurred with your father that your mother was delusional?”

“A hundred percent, yeah. I told her every day.”

“Did those delusions focus on one individual?”

“No, I guess the focal point of her delusions was obviously my father. But there’s always something she’s been delusional about for as long as I can remember [that] my father was a double agent for the Israeli intelligence.”

This idea of Susan’s delusions was the focal point of O’Connor’s argument that she should not be allowed out on bail. Focusing on her delusions about Felix’s involvement with Israeli intelligence, her belief that the Briners were embezzling her money, and statements she made about the “Jewish Network,” O’Connor sought to portray Susan as a woman whose mental state was a risk to those around her.

On cross-examination, Susan’s public defender, Jack Funk, an associate of Peter Coleridge, designed his questioning of Adam to convey that Susan’s delusions had a singular focus on Felix. Susan’s delusional behavior did not make her a threat to the public at large, it made her a threat to Felix. Since he was no longer alive, Susan no longer posed a risk to the public.

“During your lifetime…do you know of any other time in which your mother has attacked or threatened any other person?”

“No.”

“And do you have any reason to believe that if your mother were released, upon whatever appropriate security, that she would threaten or attack any other person?”

“I believe the only answer I can give to that question is, I don’t know. I don’t think it’s a fair question to ask me because I don’t know what happened in the cottage that night…. My honest opinion on my mom is that she is an 80 percent sane and rational person and she’s 20 percent delusional, and that 20 percent is completely unpredictable. There’s no way for anybody to know what’s going to happen next, and that’s why I think she needs to be getting help somewhere…. She should not be in prison. She should be getting help somewhere so she can come out and be a fully functional member of society.”

Shortly after the hearing in September 2004, Judge O’Malley set bail for Susan at $1,050,000, but Susan’s time on the outside was brief. Within seven months of posting the monies, she was back behind bars at the West County Detention Facility for violating the terms of her release.

On October 6, 2004, Adam filed a “wrongful death civil suit” against Susan seeking $1 million dollars in damages in addition to other declaratory relief. Eli Polk and Felix’s twin brother, John, who was executor of the Polk estate, were named as codefendants in the suit. Andrew and Jennifer Polk declined to participate in the legal action, according to the court papers.

“As a result of the intentional wrongful death of their father, Plaintiffs Adam and Gabriel suffer damages by way of lost love, care, comfort, and support of their father, in an amount no less than $1 million, to be proven at trial,” the suit read.

In addition to monetary compensation, Gabe and Adam were seeking declarations from the court that John Polk be named proper trustee of the Trust and that Susan have “no right, title, or interest in Trust, which may be funded by assets having a net total value of $1 million dollars.” Furthermore “‘upon conviction of murder or finding of felonious and intentional killing’ that Susan have no property right or interest in the Estate of Felix Polk or in any asset enumerated in the 1996 Polk Trust, and that she have no right or interest in Felix’s share of any community property asset, including Felix’s pension plan and the Orinda residence at 728 Miner Road.”

As a condition of her bail, Judge O’Malley set a no contact order forbidding Susan from having any contact with her son Gabriel, Dan and Marjorie Briner, Felix’s friend Barry Morris, and family lawyer Bud McKenzie. Despite harsh warnings about the repercussions of contacting any of these individuals, upon learning of the filing, Susan sent a flurry of letters to her sons. Although Gabriel refused to respond to her, Susan sent him twenty-four e-mails during this time. Her actions landed her back in jail at the West County Detention Facility in April 2005 with $5 million bail.

Susan told the court that she was simply responding to the civil suit when she contacted her youngest son via e-mail. In a letter to the court, she railed at Judge O’Malley’s April 19 decision to revoke her bail, claiming she had written to Gabriel only after her lawyers, Peter Coleridge and Jack Funk, advised her that the no contact order did not apply to legal correspondence.

“However, I was charged with 24 counts of contempt of court for 24 e-mails to Gabriel and reincarcerated and placed on a no bail hold by Judge Mary Ann O’Malley,” Susan complained in the letter.

Susan subsequently fired Peter Coleridge in May 2005, and announced her intent to act as her own counsel. Since her arrest, she had fired all three of her criminal attorneys—William Ousterhadt, Elizabeth Grossman, and now Peter Coleridge—supposedly because of disagreements over the handling of her defense. She had repeatedly refused to entertain an “insanity” defense or one using “battered woman syndrome.” She had spent much of her life running from a diagnosis of mental illness and she wasn’t about to hide behind such a claim now.

Susan would represent herself pro per. In an interview with the Contra Costa Times in the summer of 2005, she told the newspaper that she was convinced she was not going to get the defense she wanted unless she represented herself. “If I’m going to lose when represented by counsel, I might as well represent myself,” she was quoted as saying. “At least I’ll give them a fight.”

While self-representation is not a good idea for any defendant, in Susan’s case it was a particularly bad choice. In Contra Costa County, women who choose to represent themselves are at a severe disadvantage in comparison to their male counterparts. The women who are housed in the West County Detention Facility are not permitted to use the jail’s “Male Only” law library, despite many administrative complaints from defendants facing felony charges. This restriction greatly limits the amount of research that they can undertake on their own.

This fact may have played a role in the abrupt change Susan announced in late July 2005 when she asked a judge to appoint Oakland defense attorney, Daniel Horowitz, to her case. Horowitz had gained notoriety as a TV legal analyst during the Scott Peterson murder trial by stationing himself at the courthouse to offer legal commentary to cable stations in need of a sound bite. He soon became a regular on Court TV, providing analysis for the Peterson case and later in the Michael Jackson molestation trial.

Representing Susan Polk at her upcoming murder trial would be another opportunity for the lawyer to grab the media spotlight. While Horowitz had represented more than one dozen defendants in capital murder cases during his two decades as an attorney, the majority of his practice was at the Federal level, involving white-collar crimes such as money laundering and embezzlement.

According to his attorney profile, Horowitz was “a defense attorney with an extensive computer and business background” and 90 percent of his practice was devoted to litigation. Nevertheless, he was anxious to take Susan’s case to trial. In August, he asked Judge Thomas Maddock to allow him to bring his cocounsel, Ivan W. Golde, on board for the case. Judge Maddock agreed, under the condition that the county pay only Horowitz’s fee.

While Horowitz was lead counsel on the case, it was Ivan who actually persuaded Susan to meet with them. He made the initial contact while visiting a client at the West County Detention Facility where Susan was being held. During their brief conversation, Ivan convinced Susan to sit down with him and his partner, Dan, to discuss her case.

Born and raised in San Francisco’s East Bay, Golde followed in his father’s footsteps by attending law school and becoming an attorney. Unlike his dad, prominent Alameda County Superior Court Judge Stanley P. Golde, Ivan was not interested in a career on the bench. Instead, he had carved out a niche in the world of professional sports, providing legal counsel to members of the Oakland Raiders Football Club and to baseball great Ricky Henderson. Like Horowitz, Golde enjoyed the media spotlight. According to his web page, he had “done battle with Nancy Grace on Court TV…and has commentated on the Scott Peterson and Michael Jackson high profile cases.”

Susan liked Golde. He was easygoing and down-to-earth, and the two shared a common background; both had grown up in Oakland and attended the same high school (although Susan’s time there was far more limited than Golde’s). During Golde’s initial meeting with Susan, however, she had made it clear that she was not interested in being represented by counsel. She reiterated that position during the subsequent meeting with Golde and Horowitz, informing the lawyers she was not likely to change her mind.

Still, she listened intently to their advice during a series of additional meetings.

It is not known what finally led Susan to allow the lawyers to take over her case. Perhaps she was growing concerned about her ability to manage her own defense or maybe she sensed that Horowitz and Golde truly believed in her and were willing to do the work necessary to present the case she desired. Media reports claimed that Susan settled on the Horowitz/Golde team after they agreed to present a straight self-defense case and go easy during their questioning of Susan’s youngest son, Gabriel.

Once on board, it was Golde who visited Susan in jail and responded to her countless phone calls. Golde quickly developed a friendship with Susan, but over time even he grew weary of her constant needs. At one point, her demands became so great that Horowitz assigned an office assistant named Valerie Harris, whom he had met at the Scott Peterson trial, to handle Susan’s calls. At the Peterson trial, Harris had earned a reputation as something of a trial groupie because of her constant presence in the courtroom. Dan admired her interest in the case and asked her to join the firm.

When Adam Polk learned that his mother had asked Horowitz and Golde to take her case, he admonished the lawyers to be careful.

“The first time I met Dan and Ivan, I told them, ‘Listen, in two months, you guys are going to be unemployed,’” Adam later explained. “My mother has, throughout her life, for as long I have known her, exhibited a pattern of warming up to outsiders and then completely turning on them.

“I have experienced it my whole life. She is a lady who values control and when somebody else maintains control over her life, I believe she contrives fantasies. Rather than use the word ‘delusion,’ I like to use ‘contrives fantasies’ to gain control of the other people [outsiders].”

In spite of Adam’s warning, the two attorneys forged ahead with their defense of Susan. In September 2005, Dan Horowitz and Ivan Golde filed a motion on her behalf, claiming Susan was the victim of legal maneuvering that was tantamount to bribery and extortion in connection with the civil suit. Horowitz claimed that Bud Mackenzie, the lawyer representing the Polk estate, was trying to put a “squeeze play” on Susan—raising the possibility that the Orinda house would go into foreclosure if she didn’t act. However, when Golde went back to the attorney and offered to put up his own money to halt the pending foreclosure proceeding, Mackenzie reportedly said the house was not in danger.

The motion alleged that Adam Polk was aware that the Miner Road house was not at risk but wanted his mother to believe it was in order to push her to settle. It also claimed that Susan had received veiled threats from an unnamed party that Adam and Gabriel would “testify with great anger and fear about the financial ‘situation’” if she did not agree to settle the suit.

While that motion as well as several others that the Horowitz/Golde team filed were denied, the civil suit was settled shortly thereafter, presumably in hopes that Adam and Gabe would be more friendly to the defense on the witness stand during the criminal case.

With the civil trial moving along, Horowitz and Golde began to hone their strategy for the murder trial. They publicly declared they could win Susan an acquittal at trial. Horowitz told ABC’s Good Morning America that he had no intention of presenting an insanity defense or a battered woman/burning bed syndrome. Susan was a woman who was abused regularly by her therapist husband, and she truly believed Felix intended to kill her the night the two argued in the couple’s guest cottage, the lawyer maintained. Dan Horowitz would argue a straight self-defense case on Susan’s behalf—or at least that’s what he intended to do.