The Mendenhall Chronicles: Part IV (The Confrontation)

Note: With the exceptions of a few statements made by Augustus (Gus) Mendenhall, the following account of what transpired on that Halloween Day is based entirely on the deposition testimony Edward Delaney and five Carmel police officers gave on June 15, 2010 as well as the State’s probable cause affidavit. Finally, it should be noted that the younger Mendenhall is referred to as “Gus” in this account so as to not confuse him with his father Burke Mendenhall who is also discussed in these Chronicles.

“Victor White” aka Augustus (Gus) Mendenhall phoned Ed Delaney at his law office in late October 2009. Victor said he represented Russian investors connected to California who were interested in investing in real estate located in Carmel. Gus Mendenhall’s version of the telephone call was more sinister - that he told Delaney he was with the Russian mob and he was interested in laundering money through real estate investments. Delaney said that they may have discussed a $10,000 retainer. They decided to meet the meet the morning of Halloween 2009, which that year fell on a Saturday.

A subsequent email from Victor confirmed the meeting. At the bottom of the email Victor invited Delaney to wear a Halloween costume. When asked if he thought the invitation to wear a Halloween costume was strange, Delaney said he did not remember reading that part of the email.

The two met at Christ Episcopal Church in Carmel at approximately 10 a.m. on Halloween 2009. When Delaney drove up to the church building, Victor, aka Gus, walked over to Delaney’s car. According to Delaney, Gus was dressed strangely. He wore a reddish-orange, long-haired wig, a “ski jacket,” and gloves which a Carmel police officer later described as heavy, insulated winter gloves. Gus was carrying a small gym bag. Delaney thought it was strange that Gus was dressed for very cold weather on a day in which the temperature was around 50.

According to Delaney, Gus explained his presence on foot by saying he had a driver who had gone on an errand. He asked to get in Delaney’s car so they could drive to the potential investment property a short distance away.

Given the strange way Gus was dressed, one might have expected that Delaney would not allow him in the car and would have driven off. Delaney though did allow Gus into his car and, at his request, Delaney drove to a nearly abandoned housing development. There they stopped to talk. According to Gus Mendenhall’s latter account of events, the first ten minutes with Delaney in the car was spent trying to reassure the state legislator that their meeting was not part of some elaborate FBI sting operation. Delaney though denied ever asking Gus if he was with the government in his deposition. Instead, Delaney said Gus reached into the overnight bag and pulled out a zip-lock bag containing a gun.

According to Delaney, the gun in the plastic bag sat on Gus’s lap, pointed toward him. Gus asked Delaney if he was “right with God” to which Delaney testified that that was “between [him] and her” and that he did not discuss those matters with other people. Then Gus asked if Delaney had ever used a lawsuit to hurt people. Delaney responded that that was not sort of thing he would do.

Delaney said Gus put his hand on the outside of the zip-lock bag holding the gun. Delaney testified that he said two prayers at that point and hit Gus in the face with one hand, while at the same time grabbing for the gun with the other.

Delaney testified that his hitting Gus precipitated three rounds of fighting with Gus over the gun. According to Delaney after that first round, Gus “put the gun up against my left side of my head and he moves his finger and the gun moves against my head twice and I don’t die.” Delaney said the gun was not pointed perpendicular to his head.

While they were still in the car at the housing development, another car approached. Delaney recognized the passenger in the car as a former Barnes & Thornburg secretary, Cathy Palmer. Her husband was driving. Delaney said Gus pointed the gun at and instructed him not to talk to the Palmers as their car approached. Delaney responded he would have to talk to them since he had known them 20 years. While exchanging brief pleasantries, Delaney made an obscene gesture, an attempt he said to alert Cathy Palmer to the fact something was wrong. The Palmers drove off but would alert the police.

Delaney testified that Gus had previously taken his wallet and got his bank PIN number. Now they drove off to a more secluded area. There Delaney jumped out of the car and attempted to slam the driver’s door on Gus as the younger man scampered after Delaney. The last round of fighting took place outside the door on the ground. According to Delaney, during the fight Gus was working furiously through the plastic bag trying to get the gun to work. At this point, Delaney says he saw two bullets in the chamber which were misaligned and that the gun was jammed. Delaney never testified that he saw or heard a trigger on the gun pulled, but rather concluded that the earlier pushing of the gun against his head was an attempt by Gus to fire the gun which had failed only because it was jammed.

At that point, the police drove up and Gus took off running. An officer quickly tasered him, knocking Gus down. During the fall, the wig came off his head. He still had his heavy winter jacket on though. Gus also still had his gloves on as he lay on the ground. Police observed that there was blood on the fingers of the gloves.

Delaney’s testimony is consistent throughout that the gun never left the plastic zip-lock bag. There was no testimony that Gus ever took off his heavy winter gloves during his altercation with Delaney and then put the gloves on at some point when he ran from police. According to Delaney, while Gus had Delaney pinned down he was at the same time trying desperately to clear the jam in the gun working through a zip-lock plastic bag while wearing thick winter gloves.

The Carmel police officers in their depositions testified that the gun was actually found in Gus’s gym bag, and was not out as Delaney had testified it was during the altercation, including their third round of fighting. The only way to reconcile the two positions is to assume that, when suddenly confronted by the police during his third struggle with Delaney, Gus had taken the time to put the gun back in the gym bag. However, none of the Carmel police officers or Delaney testified they saw that happen.

The depositions of five Carmel police officers suggest possible mishandling of the key evidence, i.e. the gun. A photo taken at the scene showed the gun in the zip-lock bag with the safety on. A later photo taken by another officer showed the gun out of the plastic bag with the safety switched to “fire.”

The handling of the gun jam was also questionable. Ben Fisher of the Carmel Police Department testified that when he examined the gun he decided to clear the “double feed” malfunction, thus altering critical evidence in the case. His explanation for removing the jam was that it was for safety because the gun could still fire while jammed.

The depositions reveal substantial questions about the state’s attempted murder case which was based on Gus pointing the gun at Delaney's head and pulling the trigger, with Gus’s intent to kill only being thwarted by the jammed gun. First, Delaney never testified that he saw or heard Gus pull the trigger on the gun and he stated that the gun was not pointed directly at his head. Delaney consistently testified that the gun never left the plastic zip-lock bag and the chain of events everyone testified to meant Gus would have been wearing heavy winter gloves while trying to manipulate the gun through the plastic bag. Then you have the inconsistency that the gun was in fact found in the plastic bag in the gym bag which contradicted Delaney's claim that Gus had the gun with him during their three rounds of fighting, including the last one which was interrupted by the police. The gun was also initially photographed with the safety on.

The probable cause affidavit though never mentions the plastic bag or any of the other inconsistencies. Instead the affidavit made it sound like a simple case of Gus placing the gun to Delaney’s head and pulling the trigger with the gun jamming.

Next up we will examine Gus Mendenhall's trial on attempted murder.