“No can do, Mike. I’m under orders. Nobody talks to Johnny until they take his statement.”
“You know better, Ignacio. You can’t prevent him from seeing his lawyer.”
“As far as I know, he hasn’t asked for one.”
“He is now.”
“Says who?”
“His lawyer.”
“It’s not my call, Mike.”
“Could you please talk to somebody who can make the call?”
He finally put down the paper. He picked up his phone, punched in a number, and held his hand over the mouthpiece so that we couldn’t hear him. He nodded a couple of times, grunted, and hung up. “Can’t help you, Mike.”
“Unless he’s been arrested, you have no legal basis to prevent him from leaving.”
“I’m sorry, Mike.”
“If you refuse to let us see our client, we’ll find a judge who will order you to do so.”
“I’m under orders, Mike.”
“We’ll go to the press.”
“Your client isn’t here.”
What? “Where is he?”
“They took him downtown to headquarters.”
5
“PROTOCOL”
The police officer looked younger than my college-age daughter. “Can I help you?” he asked.
I handed him a business card. “I’m Michael Daley. This is Lucantonio Bacigalupi. And I’m sure you know the assistant chief.”
“Yes, sir.” He stood taller. “Of course.”
Good manners. I like that. I read his name plate. “Officer Dito, are you Phil’s son?”
“Nephew, Mr. Daley.”
I wasn’t surprised. Four of Phil Dito’s brothers were cops. “Your uncle and I were classmates at S.I., David. Please tell him that I said hello.”
“I will.”
We were standing in the otherwise empty corridor outside the chief’s office on the sixth floor of the shiny new police headquarters on Third Street, just south of AT&T Park. Officially known as the “San Francisco Public Safety Building,” the glass-walled edifice also housed the Southern Police Station, a fire station, and a community center. Opened in 2015 at a cost of almost a quarter of a billion dollars, the state-of-the-art facility was an unimaginable upgrade from the old headquarters at the Hall of Justice.
A dozen uniforms had been instructed to sequester the press in the lobby. My mole at the metal detector informed me that Johnny was in the chief’s office. We had made our way upstairs, where we found Phil’s nephew. His only job was to keep passers-by, reporters, and lawyers out.
I invoked my priest-voice. “We were hoping that you could help us.”
“I’ll try, sir.”
I no longer cringed when young people offered me their seats on Muni or addressed me as “sir.” “You don’t need to call me ‘sir.’ ‘Mike’ is fine. I presume you know Johnny B?”
“We were in the same class at the Academy.”
Good. “We need to talk to him. We’re his lawyers.” I let my words hang. I was hoping that the young cop would feel compelled to fill the void.
My patience was rewarded. “Uh, I need to talk to my sergeant.”
Yes, you do. “That’s fine. We need to talk to our client.” I pointed at Gio. “Assistant Chief Bacigalupi hasn’t had a chance to talk to his son. Johnny’s mother is worried. We need your help, David.”
The kid repeated his mantra. “I need to talk to my sergeant.”
“Understood.”
He pointed at a nearby bench. “Would you mind taking a seat for a few minutes?”
“Of course. Given the circumstances, we would appreciate it if you would check with your sergeant right away.”
“I will.”
Gio finally spoke to the rookie cop. “You’re doing a good job, son.”
“Thank you, sir.”
Gio, Luca, and I sat down and waited as David worked his way up the chain of command. Luca and I checked our e-mails and texts. Gio called his wife. Then we sat in silence.
Ten minutes later, the door opened. At forty-eight, Chief Alshon Green still had the erect bearing of a Marine. He nodded respectfully and spoke precisely. “How can I help you, gentlemen?”
“We need to see Johnny Bacigalupi,” I said.
“I’m afraid that’s not possible.”
“I’m his lawyer.”
Luca spoke up. “So am I.”
The chief frowned. “Which one of you is his lawyer?”
“Both of us,” I said. “We need to see our client.”
Gio stood up. “And I want to see my son.”
“That’s absolutely impossible. You know our procedures, Gio. I have to follow protocol.”
“He’s my son.”
“Protocol,” he repeated.
I stepped in front of Gio, who was seething. “Chief Green, Luca and I respectfully demand to see our client immediately.”
“After we’ve finished taking his statement.”
Not good enough. “Unless he’s under arrest, you have no legal authority to detain him. If you question him outside our presence, anything he tells you will be inadmissible in court. It is therefore to your advantage to let us see him right now.”
“I can assure you that he’s fine. We have provided him with a meal and a change of clothes. We’ve offered him counseling. Since he isn’t married, we informed Gio—his closest relative—of his whereabouts and confirmed that he doesn’t require medical attention. He’s been contacted by a CIRT Team to make sure that his immediate needs are taken care of.”
SFPD officers volunteer to serve on so-called “CIRT” teams, which stands for Critical Incident Response Team. They make sure that the officer gets food and clothing and that the needs of his or her immediate family are addressed.
He wasn’t finished. “The POA has spoken to Officer Bacigalupi. They gave him a list of on-call attorneys.”
“We’re his attorneys. You can’t deny us the opportunity to talk to our client.”
The chief lowered his voice. “Can we please dial it down a little?”
No. “We need to see our client—now.”
He feigned exasperation. “It would make everybody’s life—including your client’s—a lot easier if you’d let us take his statement.”
You’re stalling. “We have the legal right to talk to him.”
“Fine.” The chief pointed at me and then at Luca. “You two can come inside.” He looked at Gio. “You’re going to have to wait out here.”
“But Alshon—,”
“I’m sorry, Gio. Protocol.”
6
THE SEVENTH SON OF THE SEVENTH SON
“Where’s my dad?” Johnny asked, his voice tense.
“Downstairs,” I said.
My godson’s muscular arms were folded as he sat in a windowless interview room adjacent to the chief’s office. It was considerably nicer than the consultation rooms at the Hall.
The concern in Johnny’s voice was palpable. “Why isn’t he here?”
Luca spoke to his nephew in a paternal tone. “He isn’t allowed to talk to you, Johnny.”
“He’s the assistant chief.”
“They have to follow procedure—especially since you’re his son.”
Johnny was the sort of kid that I’d like Grace to marry someday. He looked as if he had been transported intact from a fifties-era Life Magazine. At twenty-two, he was clean-cut, clean-shaven, and, as far as I knew, clean-living. His baby face contrasted with the chiseled body of a three-sport athlete. His clear blue eyes reflected an eagerness to please. He wore his jet-black hair in a crewcut identical to his father’s.
“What about my mom?” he asked.
“She’s at my office,” Luca said. “We’ll let her know that you’re okay.”
“Thank you.”
Johnny was holding up better than I had anticipated. Then again, he always made things look easy. Altar boy at St. Anne’s. Eagle Scout. Valedictorian and star athlete at St. Ignatius and USF.
First in his class at the Academy. His nickname at S.I. was “Johnny B. Goode.” And he was good—seemingly at everything. His father liked to say that his youngest son was special because he was the seventh son of a seventh son. In some cultures, it is believed that such individuals have healing powers. It made for a nice story, but I also knew that Johnny worked hard at school, sports, and life. He still addressed his elders as “sir” and “ma’am,” and always said “please” and “thank-you.” Notwithstanding his low-key demeanor, he hated to lose. When I was in high school, I wanted to be like him. Nowadays, I was immensely proud of him.
First things first. “Are you okay, Johnny?”
He nodded a little too emphatically. “Yeah.”
“You should take a little time off.”
A shrug. “I will.”
At the very least, SFPD was going to put him on administrative leave for ten days—maybe longer. “Have you eaten?”
“A little.”
“Do you need us to call anyone?”
“No.”
Johnny lived by himself in the in-law unit behind his parents’ house. It was a rite of passage for the Bacigalupi boys. Each of his brothers had lived in the studio apartment before they moved into their own places.
“When can I go home?” he asked.
That’s always the first question. “Soon.”
“How soon?”
I have no idea. “I’m not sure. They have to finish the process.”
He showed his first hint of irritation. “Everybody keeps talking about ‘the process.’ I told them everything—twice. What else do they need?”
“To make sure that your story lines up with everybody else’s.”
“Of course it will. Why are you here?”
Luca answered him. “They won’t let your father see you.”
“You’re lawyers.”
“We’re family. And they won’t let you talk to anybody other than an attorney.”
“The POA said they would provide a lawyer.”
“We’re family,” Luca repeated.
“Does that mean you’re representing me?”
“Technically, yes. So is Mike.”
The confident façade showed its first crack. “Am I under arrest?”
“No,” I said.
“Then why are you here?”
“Your parents wanted to be sure that you’re okay. So did I.”
“I’m fine.”
“We’ll let them know. In the meantime, they wanted to be sure that you have everything you need.”
“I do.”
“And they wanted you to have a lawyer in case something unexpected comes up.”
“Like what?”
They arrest you. “We’ll worry about it if we have to. In the meantime, we thought it would be a good idea to have somebody available who knows the ins and outs of the system.”
He wasn’t satisfied.
I decided to do a little gentle probing. “Who else was with you this morning?”
“My FTO.”
“FTO” stood for “Field Training Officer.” After trainees complete thirty-two weeks at the Academy, SFPD puts them on the street with one or more FTOs, who train and mentor rookies.
I asked, “How many weeks of field training have you completed?”
“Three.”
“Is this the first time that you drew your weapon?”
“Yes. This is going to screw up my reviews, isn’t it?”
“Not necessarily.” That’s the least of our concerns. “Who is your FTO?”
“Kevin Murphy.”
He was in capable hands. “Murph” was a hardass from the Excelsior who was in Pete’s class at the Academy. His dad was a cop. So were two of his brothers and his sister. “You’re absolutely sure that his story will match up with yours?”
“Of course.”
“Who took your statement?”
“The chief, my commander at Northern Station, and Roosevelt Johnson.”
“Inspector Johnson was my father’s first partner. He’s very good.”
“I’ve heard. I thought he retired.”
“He did. Evidently, he’s agreed to help with this investigation.”
“Why?”
“Maybe the active inspectors are busy. Would you mind telling us what you told him?”
“Murph and I stopped for burgers at Mel’s on Geary. We finished a few minutes before one. We were driving east on Geary when we saw a Honda Civic with a broken tail light.”
“You were driving?”
“Yes. Murph told me to pull him over. I put on my overhead lights and he got off Geary Boulevard at Steiner. Murph ran the plate through our dash computer. The car wasn’t reported as stolen. It was registered to a woman named Vanessa Jones, whose address was on Turk. Thirty-eight. No criminal record or outstanding warrants. We thought it would be fix-it ticket. The driver parked in the Safeway lot on Webster.”
“Was Vanessa Jones driving?”
“It was her son, Juwon. Eighteen. Lived with his mother.” He said that he and Murphy followed procedure. Johnny turned on his spotlight and aimed it at the side mirror to obstruct the driver’s vision. Murphy shined his spotlight through the back window. “I grabbed my flashlight and nightstick and approached on the driver side. Murph came up on the passenger side.”
“Did you try to open the trunk?” I learned this trick from Pete. The cops try to get a free look if the trunk pops open.
“It was locked. I approached the driver and turned on my body cam. I was the contact officer, so I introduced myself and asked him to make sure the ignition was off, and the car was in Park. I requested license, registration, and evidence of insurance, which he provided. I determined that the driver was, in fact, Juwon Jones. He said the car belonged to his mother. Nobody else was in the vehicle. No sign of a weapon. No alcohol or drugs in the car.
“I returned to our unit and ran Jones’s information through our dash computer. His driver’s license was valid. He had a conviction for grand theft auto and a 10-35.”
It meant that Jones had a probation violation which allowed the police to search his car.
“On my way back to Jones’s car, I told Murph about the 10-35. He said that I should follow standard procedure. I positioned myself at the driver-side door and asked Jones if he was on probation. He didn’t answer. When I asked him again, he acknowledged that it was true.”
“How was his demeanor?”
“He was calm at first. Then he got agitated. I politely asked if he would let us search his car, but he refused. I told him that because he had a probation violation warrant, we had the legal right to search the vehicle.”
This was true. They also had the right to handcuff him. “And?”
“I asked him to get out of the car. I informed him that if the vehicle was clean, I was planning to issue him a fix-it ticket and let him go.”
Seems reasonable.
Johnny’s right hand clenched into a fist. “Initially, he refused to get out of the car. On the second request, he got angry. As he started to exit the vehicle, I saw a handgun in his hand. He banged the door into me and I fell down. He ran across the plaza to Fillmore. I radioed for backup, drew my weapon, and pursued him on foot. Murph followed me.
“He ran north on Fillmore, but he was cut off by a backup unit at Geary. He turned left and headed west past the old Fillmore Auditorium. Another unit closed him off in front of the post office, where he climbed over the gate into an enclosed parking lot. I followed him over the fence and cornered him behind a postal van.”
“He still had the gun?”
“Yes.”
“Did he point it at you?”
“No.”
“Was it in his hand?”
“It was in his pocket.”
“You said that it was in his hand when he got out of the car. When did he put it into his pocket?”
“I’m not sure. Maybe when he climbed over the gate. It was definitely in his pocket when I cornered
him.”
“How do you know?”
“Because we found it under his body.”
“Let’s take a step back. What happened when you cornered him?”
“I followed standard procedure and tried to de-escalate the situation. I ordered the suspect to put his hands up. On the second request, he complied.”
“Did he say anything?”
“He said, ‘Don’t shoot.’ I told him that I was placing him under arrest. I informed him that I would shoot him if he did not follow my commands. I ordered him to lie down on his stomach with his arms spread.”
“Did he?”
“No. I repeated the command, which he disobeyed. The third time, he started to reach into his pocket for the gun.” He swallowed. “I thought he was going to kill me, so I shot him in self-defense.” He waited a beat. “I had to, Mike.”
“You sure he was reaching for his gun?”
“Yes.” He repeated, “I shot him in self-defense.”
Okay. “You did what you had to do.”
Luca spoke to his nephew. “You didn’t do anything wrong, Johnny.”
“I killed him, Luca.”
“You had no choice, son.”
I leaned forward. “You explained all of this to the chief and Inspector Johnson?”
“Yes.”
“And you’re sure that your FTO and the other officers will corroborate your story?”
“Yes.”
I hope so. “I know this is tough, Johnny, but from a legal standpoint, your actions were completely justified.”
“That’s good, right?”
“Right.” My mind raced. “You said that you were wearing your body cam, right?”
“I was.” He confirmed that his car was not equipped with a dash cam.
“So there should be footage of everything.”
“Most of it.”
“What about the part where you shot Jones?”
“No. The camera came off when I jumped the fence to get into the parking lot.”
“Have you seen the video?”
“No. We aren’t allowed to look at it before we give our statement.”
I was aware of this policy. They didn’t want the cops to adjust their stories to match up with what they’d already seen on tape. “Are you sure that we’ll be able to see a gun in Jones’s hand when he got out of the car?”
Higher Law Boxset, Volume 3 Page 28