Playing Hardball

The Feds pitch a shutout in the area's first 'three strikes' case

Mark Linnear Hays sat beside his defense attorney in federal court two weeks ago, arms folded across his chest, face drawn and sullen.

So far, it had not been a good day. It was halfway into his trial--U.S. vs. Hays--and a string of forensics experts had spent the morning testifying how blood, hair, and fibers found on a 9mm pistol and clothing linked him to an armed robbery of an East Dallas Eckerd Drug store 14 months earlier.

When the parade of government witnesses had finished, Hays--who all week had raised churlish behavior to an art form--muttered something about wanting to sort through the evidence himself. U.S. District Judge Sidney Fitzwater patiently complied with the request and removed the jury. Then the sinewy man with the turned-up nose, known as the "Ninja Bandit" in police circles from California to Georgia, strolled to the evidence table at the front of the courtroom. Flanked by four federal marshals, Hays fingered the gun; a thick, knotted rope; a police scanner; a knit ski cap; and everything else in the government's arsenal against him.

He then moved to a huge poster board showing magnified microscopic samples of his head and pubic hair--a stunning visual aid for the jury.

"This is just superficial trickeration!" Hays growled, and told his court-appointed attorney, Tom Mills, to demand that the two photos be separated and clearly noted as different pictures for the jury. Mills dutifully registered the complaint with Fitzwater, and the prosecutors agreed to divide the photos.

Mark Hays, 39, had fled from a previous trial in Los Angeles in August 1993, and--police believe--had spent the next two years roaming the country, pulling off finely tuned armed robberies of drug stores, supermarkets, and check-cashing outlets. With a criminal record stretching back to age 15--for car theft--Hays was no stranger to the courtroom. He had, in fact, been schooled in the ways of The System, raised as he was by a father whom California police had dubbed the leader of "The Rooftop Gang," a band of 20 or so Hays friends and family members suspected of committing at least 60 violent armed robberies in the San Diego and Los Angeles areas in the late '70s.

Hays had made a nice life for himself off of other people's misery. Had he a resume, he could have listed his occupation as "career criminal." The Feds really wanted this guy.

Indicted on four counts last year involving conspiracy and armed robbery, Hays had become the poster boy for the federal "three strikes, you're out" statute, a pet piece of President Bill Clinton's 1994 crime bill. The federal law (similar statutes are also in place in several states, including Texas) allows a judge to sentence a twice-convicted criminal facing a third jail term for a "serious, violent felony" to life in prison.

So certain of Hays' guilt was the government that Paul Coggins, U.S. attorney for the Northern District of Texas, tried the case himself--his first courtroom appearance since Clinton appointed him to the post more than three years ago. If convicted, Hays could become the first three-time felon in North Texas sentenced to life in prison under the "three strikes" statute.

So there was Hays, up to his eyebrows in legal trouble, an avalanche of evidence rumbling toward him. Yet he seemed bent on lending a helping hand to the prosecutors who wanted to put him away. He whined endlessly about Mills' representation, and more than once demanded a new lawyer. He frequently blurted out confused comments from the defense table. As trials go, U.S. vs. Hays did not shake the world. A few blocks away, there were showier doings as Michael Irvin's lawyers tried to stall his grand-jury indictment on drug charges. A few miles north, Dallas City Councilman Paul Fielding faced accusations of fraud and influence peddling. But Hays was a more typical courtroom drama--a neat little window on the state of ordinary, everyday justice.

The jurors, of course, knew nothing of what the principal players had at stake in the case. The intricacies of Hays' past crimes were withheld from them, and would only be raised if and when he was sentenced. They missed most of Hays' outbursts, too. And they didn't know how badly Coggins wanted, once and for all, to strike Mark Linnear Hays out.

As always, 33-year-old Lynn Thompson drove his van to work on the morning of April 24, 1995. He pulled into the parking lot of the Eckerd Drug at 6110 Samuell Boulevard--where he had worked as manager for five years--and let himself in at 7:40 a.m.

According to his court testimony, Thompson, a tall and slender father of three, went to his office, deactivated the store alarm, and activated the time lock on the store safe. It was set to open in nine minutes.

"I was at the back [cash] registers, and I heard a very loud crashing noise," Thompson testified in a strikingly calm voice. "I'm walking very fast to the front of the store...and I see debris hanging from the ceiling, rope coming through the ceiling, and a person standing there wearing dark clothing and all.

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