Harper got to his feet. “Objection. Mr. Daley is assuming facts not in evidence. He’s also arguing the law. He should be sticking to the facts.”
Yes, I should.
“Please, Mr. Daley.”
“Yes, Your Honor.” It was the proper call. I glanced at Harper. Good to see that you’re paying attention.
“Your Honor, the situation began with what Officer Bacigalupi and his partner thought would be a routine traffic stop.” I explained that Johnny and Murph were driving on Geary when they saw a car with a broken tail light. “Officer Bacigalupi and Sergeant Murphy decided—correctly—to pull the car over and issue a citation. They determined that the vehicle was registered under the name of Juwon Jones’s mother. It was not reported as stolen or involved in criminal activity. The officers called in the traffic stop, activated their warning lights, and pursued the vehicle. Mr. Jones pulled off Geary and parked in the Safeway lot. Pursuant to standard procedure, Officer Bacigalupi approached from the driver side, and Sergeant Murphy approached on the passenger side. Initially, the stop was uneventful.
“After Officer Bacigalupi informed the driver that his tail light was out, he returned to his police unit to check the driver’s license and the car’s registration. Sergeant Murphy maintained his position outside Mr. Jones’s car. Officer Bacigalupi determined that Mr. Jones had a criminal record and an outstanding warrant for a probation violation. He politely asked Mr. Jones to exit the vehicle so that he and his partner could search it. This was both legally permissible and in accordance with standard SFPD practice. If Officer Bacigalupi had failed to take this step, he would have been subject to report.
“Mr. Jones became agitated and disobeyed Officer Bacigalupi’s request. He flashed a handgun, banged the door into Officer Bacigalupi, knocking him down, and fled on foot. Thankfully, Mr. Jones did not shoot Officer Bacigalupi or Sergeant Murphy. Officer Bacigalupi pursued Mr. Jones with Sergeant Murphy close behind. Officer Bacigalupi and Sergeant Murphy radioed for backup and reported that Mr. Jones was armed and dangerous. Other officers were in the vicinity, so help arrived shortly thereafter.
“Officer Bacigalupi chased Mr. Jones up Fillmore to Geary, where Mr. Jones was cut off by a police car driven by Officer Richard Siragusa. Mr. Jones displayed his weapon and disobeyed Officer Siragusa’s order to stop. Mr. Jones turned left and headed west. A half-block later, another police unit driven by Officer Charles Connor stopped him in front of the post office. Mr. Jones disregarded Officer Connor’s commands to halt, and climbed over the gate into an enclosed parking lot. Officer Bacigalupi arrived a moment later and also climbed the fence. Sergeant Murphy and the other responding officers remained outside.
“Officer Bacigalupi found Mr. Jones hiding behind a postal van. Officer Bacigalupi ordered him to put his hands up. At first, Mr. Jones refused. Then he reconsidered and complied. Pursuant to procedure, Officer Bacigalupi announced that he was placing Mr. Jones under arrest and ordered him to lie down with arms and legs spread. Mr. Jones disobeyed the order and said that he was unarmed, which Officer Bacigalupi knew was untrue because he had seen a handgun in Mr. Jones’s possession. Officer Bacigalupi repeated his order to lie down. Again Mr. Jones refused. Officer Bacigalupi repeated it a third time. Mr. Jones lowered his hands to reach for the gun. Officer Bacigalupi feared for his life and had no choice but to shoot Mr. Jones in self-defense. Officer Bacigalupi provided first aid and called an ambulance. Unfortunately, Mr. Jones died.”
No discernable reaction from the judge.
“Officer Bacigalupi’s life was threatened by an armed man with a criminal record who disobeyed orders and fled. A loaded handgun was found under Mr. Jones’s body. Police officers subsequently found twelve AK-47 assault rifles in the trunk of his car. If Mr. Jones had cooperated, this unfortunate incident could have been avoided. If Officer Bacigalupi and Sergeant Murphy hadn’t made the stop, it is likely that the AK-47s would have been used to kill innocent people.”
I expected Harper to object to this statement of pure conjecture, but he did not.
I looked over at Rosie, who closed her eyes. Time to wrap up.
“Your Honor, the prosecution must show that Officer Bacigalupi had the requisite criminal intent to have committed murder. The evidence will demonstrate that he did not. As a matter of law, you must rule that he cannot be bound over for trial.”
Judge Ramsey’s chin rested in the palm of his hand. “Thank you, Mr. Daley.”
I took my seat at the defense table. Johnny leaned over and whispered, “You did good.”
I’m not so sure.
The judge turned to Harper. “Please call your first witness.”
“The People call Dr. Joy Siu.”
It was a logical starting point. Siu was the Chief Medical Examiner.
55
“A VERY RELIABLE WEAPON”
Harper stood at the lectern. “Please state your name and occupation for the record.”
“Dr. Joy Siu. I am the Chief Medical Examiner of the City and County of San Francisco.”
The courtroom was silent as Dr. Siu adjusted the collar of her blindingly white lab coat. From her coiffed hair to her trimmed nails, everything about her embodied understated precision. Now in her mid-forties, the Stockton native and one-time world-class figure skater had traded in her blades to attend Princeton and then Johns-Hopkins Medical School. She earned a Ph.D. at UCSF in anatomic pathology and spent twenty years doing research and consulting on autopsies all over the world. Her credentials were impeccable, and her delivery was pitch-perfect. Thankfully, her role would be brief.
Harper gave her plenty of room. “How long have you held that position?”
“Almost three years.”
“What did you do before that?”
It was textbook technique. You ask simple questions that elicit soundbite responses.
“I was the Chair of the M.D./Ph.D. program in anatomic pathology at UCSF.”
She was good at her job. It was also unusual for our Medical Examiner to appear at a prelim, but this was a high-profile case. Harper wasn’t taking any chances.
“Over the course of your career, how many autopsies have you performed?”
“Hundreds.”
Enough. “Your Honor, we will stipulate that Dr. Siu is an expert in autopsy pathology.”
“Thank you, Mr. Daley.”
Johnny leaned over and whispered, “Did you need to do that?”
“The judge knows that she’s qualified.” And we want to get her off the stand.
Harper introduced Siu’s autopsy report into evidence. He walked over to the witness box and presented it to her as if it was the Rosetta Stone. “Do you recognize this document?”
She pretended to study it. “Yes. It’s my autopsy report for Juwon Jones.”
“When did you perform the autopsy?”
“February ninth at four p.m.”
“Were you able to determine the date and time of death?”
“One-twenty a.m. on February ninth.”
“Can you explain how you were able to calculate the time of death with such specificity?”
“Video footage showed that the victim was shot at close range at one-twenty a.m. Based upon the location and extent of the wounds, I concluded that he died instantly.”
“And the cause of death?”
“Four gunshot wounds to the chest. Two bullets struck the heart. Two more pierced his lungs. He had no chance.”
“No further questions.”
The first points were on the board. A murder charge requires a victim.
“Cross-exam, Mr. Daley?”
“Just a couple of questions, Your Honor. May we approach the witness?”
“You may.”
I walked to the front of the box. “You mentioned that in determining time of death, you relied upon video taken at the scene.”
“Correct.”
“You can’t see the shooter, can you?”
“No. He was standing behind a p
ostal truck. So was the victim.”
“You can’t see the bullets hit the decedent, correct?”
“No.”
“The decedent had a handgun in his possession when he was shot, right?”
“Objection. Mr. Daley is questioning the witness about issues that were not addressed during direct exam.”
Yes, I am.
“Sustained.”
I tried again. “Decedent was in possession of a gun when Officer Bacigalupi reacted and fired his weapon, correct?”
“I don’t know.”
“If the decedent was armed, it would have been reasonable for Officer Bacigalupi to have shot him in self-defense, right?”
“Objection. He did it again.”
Yes, I did. Shame on me. “Withdrawn. No further questions, Your Honor.”
“Redirect, Mr. Harper?”
“No, Your Honor.”
I took my seat. Johnny leaned over and said, “Was there anything else that you could have done?”
I could have forgone cross and gotten her off the stand a little quicker. “It’s early, Johnny. The prosecution always has better cards at the beginning.”
✽✽✽
The silver-haired sage exuded authority as he handled the gun encased in a clear evidence bag. “SIG Sauer P226. Forty caliber. Magazine holds twelve rounds plus one in the chamber. A very reliable weapon. Popular with law enforcement.”
Harper stood in front of the witness box. “Would that include SFPD?”
“It would. It’s the sidearm used by most of our officers.”
And that’s that.
Captain Jack Goldthorpe was a meticulous seventy-year-old who had plied his trade in an immaculate office in the basement of the Hall for forty years. From his full head of hair to his snow-white Egyptian cotton shirt to his charcoal Wilkes Bashford suit, he was a study in exactness. If you had a question about matching bullets to weapons, calculating trajectories, or analyzing distances from muzzles to bodies, “Captain Jack” was your guy. On the stand, he was a combination of expertise and geniality. Judges and juries loved him. More important, they believed him.
I stipulated to his expertise. There was no reason to let Harper lead him through his impressive resume.
“Is this an SFPD weapon?” Harper asked.
“Your Honor,” I said, “we will stipulate that it is Officer Bacigalupi’s service weapon.”
Harper was pleased. “Will you also stipulate that the defendant was carrying this weapon on the morning of February ninth?”
“Yes.”
“And that he used this weapon to shoot the victim, Juwon Jones?”
“In self-defense,” I said.
“We’ll discuss his state of mind later. Are you prepared to stipulate that your client used this weapon to fire the shots that killed Juwon Jones?”
“Yes.”
Harper had earned another point. He had identified the weapon used to kill Jones. He took the SIG from Goldthorpe and handed him another tagged evidence bag. “Do you recognize this firearm?
“Kel-Tec PMR-30 handgun.”
“Were you able to identify the registered owner of this weapon?”
“No. The identifying information was removed.”
“Is it legal to possess this weapon in California?”
“Yes, but it is illegal to remove the identifying information.”
“Where was it found?”
“Allegedly under the body of the deceased, Juwon Jones.”
“Allegedly?”
“Objection,” I said. “Calls for speculation.”
Harper held up a hand. “We’ll explain all of this momentarily.”
The judge wasn’t impressed. “I’m going to overrule the objection, but I want to hear the explanation now.”
Harper nodded to Goldthorpe, who took the cue. “According to the defendant and his partner, they found this firearm under the deceased’s body. We have no video or eyewitness evidence to corroborate this assertion.”
I stood up again. “You have eyewitness testimony of the defendant and his partner.”
The judge nodded. “Duly noted, Mr. Daley.”
Harper pretended to ignore us and continued with Goldthorpe. “Did you find Sergeant Murphy’s fingerprints on this weapon?”
“We did.”
“No further questions.”
“Cross-exam, Mr. Daley?”
“Yes, Your Honor.” I stood, buttoned my jacket, and walked to the front of the box. “Captain Goldthorpe, did you find any prints other than Sergeant Murphy’s on this weapon?”
“The victim’s.”
“So Mr. Jones handled this weapon?”
“Yes, although it’s possible that his fingerprints could have found their way onto this weapon if somebody had put it into his hand.”
True. “Other than Mr. Jones and Sergeant Murphy, did you find anybody else’s fingerprints on this firearm?”
“Nothing identifiable.”
“There were smudged prints, right?”
“Yes.”
“So somebody else could have handled this weapon on the morning of February ninth?”
“It’s possible.”
Smoke and mirrors. “Would you acknowledge that Sergeant Murphy probably got his fingerprints on this weapon when he picked it up and logged it into evidence?”
“Objection. Speculation.”
“Overruled.”
Goldthorpe shrugged. “It’s possible.”
At trial, this may have been enough to get us to reasonable doubt. At a prelim, it was just another piece of evidence. “No further questions.”
The judge glanced at his computer. “I need to call a recess until after lunch.” He looked over at Harper. “How many more witnesses, Mr. Harper?”
“Just one, Your Honor: Inspector Roosevelt Johnson.”
56
“HE MAY NOT NEED ANYBODY ELSE”
Johnny ignored his turkey sandwich. “That didn’t go well.”
I inhaled the stale air in the consultation room down the hall from Judge Ramsey’s courtroom. “It’s just two witnesses. The prosecution always gets a leg up.”
“Harper said that he was going to call only one more witness: Inspector Johnson.”
He may not need anybody else. “We’ll see. He’s going to show as little as possible. That’s how prelims work.”
“Maybe doing this so fast was a mistake.”
“Barring new evidence, it’s our only chance to get the charges dropped quickly.”
He didn’t respond.
Johnny, Luca, Nady, and I were squeezed around a table at one o’clock on Monday afternoon. A frustrated Gio had gone with Maria and their sons to find lunch across the street. Court wouldn’t resume for another hour. I was hoping to hear from Pete. Rosie had gone back to the office. She promised to return later in the afternoon. It felt like we were attending a wake.
Johnny’s eyes narrowed. “Why didn’t they call Murphy?”
“His testimony runs counter to their narrative. They’re saying that you guys planted the gun. Murph will testify that you didn’t.”
“It’s the truth,” Johnny said.
“I know.”
“You should let me testify.”
“It’s too risky.”
“What do we have to lose?”
Everything. “Let’s see how things go this afternoon.”
“You aren’t going to do it.”
Not until trial.
He turned to his uncle. “You’re a lawyer, too. What do you think?”
Luca fiddled with his eighteen-carat-gold cufflinks. “Mike’s the expert.”
Not exactly a full-throated endorsement. “I’m going to check in with Pete. Then I want to go over our witness list once more.”
✽✽✽
Cigarette smoke enveloped me on the steps of the Hall as I stood in the smokers’ area and pressed my iPhone to my ear. “Can you talk?”
“Briefly.” Pete’s voice was gravelly. �
�How did it go this morning?”
“About as well as expected. They’re going to call Roosevelt next. Then we’re up. What’s going on in the Fillmore?”
“The situation is fluid. Things could change depending on what happens in court. If the judge binds Johnny over for trial, it will probably stay quiet. If you get the charges dropped or the judge grants bail, things could get out of hand.”
Terrific. “You’re saying that if I get a good result for my client, everybody loses?”
“Something like that, Mick.”
Swell. “You got anything that we can use?”
“I’m working every angle. You aren’t giving me much time.”
“I don’t have much time, Pete. What are the odds?”
“Not great.” There was a hesitation. “When was the last time you talked to Gio?”
“About an hour ago.”
“He texted me a few minutes ago. He’s coming down here. Did he say anything to you?”
“No.”
“Try to slow-walk things at the prelim this afternoon until I find out what’s going on.”
✽✽✽
Two familiar faces were waiting for me at the door to the courtroom. Rosie was standing next to Maria. Their muted expressions matched. I motioned to them to join me near the windows, where there were fewer prying ears.
Rosie acted as spokeswoman. “Gio went down to the Fillmore.”
“I heard. He’s going to meet Pete.”
“I’m going to sit with Maria this afternoon.”
“That’s good.” And reassuring. I turned to Maria. “Did Gio tell you anything?”
“He said that somebody may have seen something. He also said that it might be nothing.”
“He’s good at his job, Maria. So is Pete.”
“I know.” Her eyes locked onto mine. “You need to get my son out of here, Mike.”
I desperately wanted to reassure her. “I will.”
Her determined expression didn’t change as she turned and walked into the courtroom.
Rosie waited behind. “You okay?” she asked.
“Couldn’t be better.” I reached over and squeezed her hand. “My lucky charm is here.”
Higher Law Boxset, Volume 3 Page 46