Judge McDaniel gives me a thoughtful look and says, “There is some authority to support Mr. Erickson’s position under current California law. If I hit you with my gavel, it would hurt, but it’s unlikely that I could inflict serious damage. Given your client’s size and strength, the same cannot be said for him.”
True enough. I hope she isn’t going to put her theory to a test by handing her gavel to the Terminator. I start to weave. “Your Honor,” I say, “the cases have construed certain items, such as guns, knives, chains and tire irons, as inherently deadly. Other objects must be evaluated on a case-by-case basis, taking into account the circumstances of their use and the size and strength of the person holding them.”
She isn’t buying it. “Your client is a trained fighter who weighs over three hundred pounds. What’s your point?”
“Other factors should be taken into consideration.”
“Such as?”
“There’s a reason he’s no longer boxing.”
“And that would be?”
“He wasn’t very good at it.”
“Objection, Your Honor,” Erickson says. “Relevance.”
I show a patient smile. “Your Honor,” I say, “Mr. Erickson’s position turns on the issue of whether a chicken became a deadly weapon in my client’s hands.” I turn to the Terminator and say, “Would you please tell the judge your record as a boxer?”
He gives her a sheepish look and says, “Zero and four.”
I feign incredulity. “Really? You fought only four times and you never won a fight?”
His high-pitched voice is child-like when he says, “That’s correct.”
“Did you ever manage to knock anybody down?”
“No. I have soft hands.”
“What does that mean?”
“I couldn’t hit anybody hard enough to knock them out.”
I glance at Rosie, who signals me to wrap up. I say to the judge, “In light of this testimony, we respectfully request that the charges be dismissed as a matter of law.”
Judge McDaniel’s poker face gives way to a wry grin. Erickson starts to talk, but she cuts him off with a wave and asks him, “Are you aware that Mr. Love could be sentenced to life in prison if he’s convicted?”
“Yes, Your Honor.”
She sounds like my third grade teacher at St. Peter’s when she asks, “Do you really expect me to send him away because of a shoving match over a chicken?”
“Mr. Harper had to go to the hospital, Your Honor.”
She looks at the clock and starts tapping a Bic pen on her bench book. She sighs heavily and says to nobody in particular, “Gentlemen, how are we going to resolve this?”
Erickson glances at me for an instant, then he turns to the judge and says, “Your Honor, we’re prepared to move forward.”
He’s exhausted her patience. She points her pen at him and says, “You aren’t listening to me, Mr. Erickson. How are we going to resolve this?”
It’s the opening I’ve been waiting for. “Your Honor,” I say, “I’ve tried to persuade Mr. Erickson that this matter can be resolved without any further intervention by this court.”
“What do you have in mind, Mr. Daley?”
I try to strike a tone of unquestionable reason when I say, “Mr. Love will apologize to Mr. Harper for inadvertently hitting him, and Mr. Harper will apologize to Mr. Love for accidentally taking his chicken. In the spirit of cooperation, my client won’t press theft charges.”
The judge mulls it over and says, “What else can you offer, Mr. Daley?”
I need to sweeten the pot. “In an effort to conclude this matter amicably, I will take everyone, including Mr. Harper and Mr. Erickson and Your Honor, across the street for lunch. The roast chicken is pretty good.”
It takes the judge a moment to warm up to my proposal. Finally, she says, “Sounds fitting.” She turns to Andy and adds, “That’s going to work for you, isn’t it, Mr. Erickson?”
“Your Honor,” he says, “you can’t simply dismiss the case.”
“Yes, I can.” She points a finger at him and adds, “If you plan to work here for any length of time, you would be well advised to keep that in mind before you press felony charges against somebody who got into shoving match over a chicken.”
Andy Erickson’s initiation is now complete.
The judge says to him in a tone that leaves no room for negotiation, “Mr. Daley’s proposal is acceptable to you, isn’t it, Mr. Erickson?”
“I guess so, Your Honor.”
She bangs her gavel. “Case dismissed, subject to Mr. Daley agreeing to take the defendant, Mr. Harper and Mr. Erickson to lunch. I will expect all of you to behave in a civil manner and I don’t want to see any of you back here this afternoon. Understood?”
Erickson and I mumble in unison, “Understood.”
The judge grins at me and says, “I’m going to pass on your generous offer to join you.”
“Perhaps another time.”
“Perhaps.” She stands and says, “It’s nice to have you back, Mr. Daley. You bring a certain practical expedience to our proceedings, along with some badly-needed humor.”
“Thank you, Your Honor.”
The smile leaves her face as she adds, “I trust you won’t be back in my courtroom anytime soon.”
“No, Your Honor.”
“Good.”
*****
Chapter 2
“We Had an Agreement”
“Death penalty cases take on a life of their own.”
— Michael Daley. BoaltLaw School Monthly.
“The Terminator seemed very appreciative,” Rosie says. Her full lips form a magic smile and her cobalt eyes gleam as she’s sitting on the windowsill in my cramped office at two o’clock the same afternoon. Her short, jet-black hair is backlit by the sunlight that’s pouring in through the open window.
“He always says thank you,” I tell her.
I just got back from my lunch with Terrence Love, Ed Harper, and my new friend, Andy Erickson. Terrence and Ed didn’t speak to each other the entire time, but it wasn’t a total waste. I found out that Andy shares Giants’ tickets with a couple of the other junior DAs. Even bitter adversaries are willing to put aside their differences every once in awhile to sit in the lower deck behind first base at AT&T Park. Regrettably, I was unsuccessful in my attempt to negotiate a couple of seats for the Dodgers series next week.
Rosie’s grin turns sly and the lines at the corners of her eyes become more pronounced as she deadpans, “I’m sure our former colleagues at Boaltwill be writing law review articles about your state of the art, ‘Assault with a Deadly Chicken’ defense.”
“It’s nice to know the magic tricks are still working.”
“You got a good result for him.”
Yes, I did. I take a long drink of my Diet Dr Pepper and soak up the ambiance of our elegant surroundings. The world headquarters of Fernandez, Daley and O’Malley is housed in a rundown eyesore a half block north of the Transbay bus terminal in one of the last remnants of an era when this was the earthy side of downtown. We’re surrounded by office towers that were built in the go-go days of the late nineties.
The prior occupant of our space was Madame Lena, a tarot card reader who put her professional skills to good use when she correctly predicted the dot-com collapse six months before it happened. She made a killing on the NASDAQ and now tells fortunes from a condo on a golf course in an upscale retirement community outside Palm Springs. As a small token of her appreciation for our agreement to take over her lease, she gave me a faded poster of the signs of the zodiac that still hangs on the wall above my metal desk. We have a slightly better view than we did at our old place around the corner on Mission Street in a now-demolished former martial arts studio. The smell is better, too. Instead of inhaling the pungent odors of the offerings from our old neighbor, the Lucky Corner Chinese restaurant, we enjoy the aroma of burritos from El Faro, the Mexican place downstairs.
Rosie hasn’t fi
nished her post mortem on this morning’s proceedings. She plants her tongue firmly in her cheek and says, “You were very entertaining. The only thing missing was a big box of popcorn and a Diet Coke.”
“If the law thing doesn’t work out, I can always try stand-up.”
She leans across my desk, pecks me on the cheek and says, “In my capacity as the managing partner of this firm, I’m compelled to ask you an important question.”
“And that would be?”
“Is the Terminator planning to pay us?”
Always the unyielding voice of practicality. We met at the San Francisco Public Defender’s Office. I was an idealistic new lawyer who had survived three difficult years as a priest, and she was a savvy PD who had survived three difficult years in a bad marriage. She taught me how the criminal justice system works and provided some remedial lessons on certain practical matters that I had neglected during my years in the Church. You might say she was a full service mentor. In a moment of great romance and questionable judgment, we got married after a brief and highly acrobatic courtship. Grace arrived a couple of years later. Then things went south. We still love each other in ways that most people can only dream about, but we can get on each other’s nerves in ways that would give the same people nightmares.
We left the PD’s office when our marriage broke up. Rosie opened her own firm and I went to work for Simpson and Gates, a tony downtown shop at the top of the Bank of America building. Our professional paths intersected again four years ago when the Simpson firm showed me the door because I didn’t bring in enough business. I subleased an office from Rosie and asked her to help me when one of my former colleagues was accused of murder. It was an unlikely genesis for a law firm, but we’ve always been good at working together.
Living together has been a bumpier ride. We’ve tried on countless occasions to go our separate ways, but we seem to be drawn back to each other by forces that we can’t control, as well as a compelling bond in Grace. Things came to a head about a year ago when Rosie was battling breast cancer. In terms of raw fear and anxiety, it was far more difficult than the darkest times of our divorce. She’s been cancer-free for eight months, but her emotional battle scars are taking longer to heal. She freely acknowledges that her mood swings can be difficult to predict. We’re dealing with it. After a brush with mortality, we finally acknowledged something that everyone around us had been telling us for years: we’re going to be a permanent couple. It’s unlikely that we’ll ever remind anybody of Ozzie and Harriet and we still have separate places in Marin County. It’s a long shot that we’ll ever live under the same roof and the chances that we’ll get married again are slim, although neither of us would rule it out completely. It’s nice to have sex from time to time, too–especially with somebody who is as skillful at it as Rosie.
I tell her, “Terrence was a little short. He said he’d try to get it to us next week.”
This elicits the familiar eye roll. “Same old story,” she says. “He’s going to have to steal the money to pay us, isn’t he?”
Undoubtedly.
“Doesn’t it bother you that he pays us with stolen cash?”
Defense attorneys try not to probe too deeply into the sources of our clients’ funds. “I never ask him where he gets the money. I don’t know for sure that it’s stolen.”
“Yes, you do. He’s going to call again next week. Sometimes I think he wants to go back to prison.”
Sometimes I think she’s right. “It keeps him away from the booze,” I say. “He gets medical attention, three squares a day and nobody bothers him. Prison is still one of the few places where size really does matter.”
She gives me a sardonic grin and says, “We gave up a sophisticated death penalty practice to cut deals for guys like Terrence the Terminator.”
We’ve covered this territory and I go with the old standby. “It pays the bills,” I say. “Terrence isn’t a bad guy. He’s never hurt anybody.”
“He’s a career criminal.”
“You’re always telling me we aren’t supposed to judge our clients.”
“We’re allowed to do it after they’ve been convicted a dozen times.”
I let Rosie have the last word on the moral ramifications of Terrence Love’s career choice and I shift to a more pleasant subject: our plans for the weekend. Grace has her Little League championship game tomorrow and I promised Rosie that we’d go out for dinner to celebrate her birthday. We told Rosie’s mom that we’d take her to the cemetery on Sunday.
My private line rings and I pick it up. “Michael Daley,” I say.
A confident baritone says, “It’s Marcus Banks.”
My antenna goes up. The dean of San Francisco homicide inspectors didn’t pull my name out of a hat and I’m reasonably sure he isn’t calling to congratulate us on the opening of our office. “What can I do for you, Marcus?”
“I have somebody who needs to talk to you.”
Uh-oh. “Who?”
The line goes silent for a moment, and the next thing I hear is a raspy, “Michael Daley?”
I can’t place the voice, but I can tell immediately when one of my former clients is out of jail and looking for me. The fact that he’s with a senior homicide inspector isn’t a good sign. My heart starts to beat faster as I say, “This is Michael Daley.”
“It’s been a long time.”
Why do they always call on Friday afternoon?
Rosie gives me a circumspect look. She takes a sip of her ever-present Diet Coke and mouths the word, “Who?”
I cup my hand over the phone and whisper, “I’m not sure.”
She holds up her right index finger and asks, “Category One?”
Rosie divides the world into two broad groups. Category One consists of people who make her life easier, and Category Two includes everybody else. It’s a useful, albeit imperfect, rating system. Depending on her mood, I can switch from one category to the other several times a day. Every once in awhile, I seem to be in both groups simultaneously.
I hold up two fingers, then I put the phone back up to my ear and say, “Who is this?”
“An old friend.”
I hate cat-and-mouse. “Which one?”
“Leon Walker.”
I can feel a knot starting to form in the bottom of my stomach. Walker is another career criminal, but unlike Terrence the Terminator, he isn’t such a nice one. Rosie and I represented him ten years ago when we were PDs. He and his brother were accused of killing a convenience store clerk in a botched armed robbery. It wasn’t an experience that will make our personal highlight reels. I say, “It’s been a long time, Leon.”
A look of recognition crosses Rosie’s face. She makes no attempt to lower her voice when she asks, “Are you serious?”
I nod.
I see her jaws clench, but she doesn’t say a word.
I turn my attention back to the phone, where Walker’s voice is becoming chatty. “I was afraid you’d forgotten me,” he says.
Not a chance. “What do you want, Leon?”
“I need your help. I’ve been arrested.”
“For what?”
“Murder.”
I give Rosie a helpless look and tell her, “They’re saying he killed someone.”
She stares daggers at me and says, “We aren’t going to represent Leon Walker again.”
“Let me find out what’s going on.”
Her eyes narrow. “You’ll have to refer it to somebody else. We had an agreement.”
Yes, we did. When we left academia, we decided that we wouldn’t take on any murder cases. They’re emotionally draining and horrifically time consuming. Rosie’s energy still isn’t what it was before her cancer treatments and there will be fifty candles on the cake when I celebrate my next birthday. Most accused murderers don’t have a lot of spare cash to pay their lawyers. I cup my hand over the mouthpiece and repeat, “Let me find out what’s going on.”
Her tone turns emphatic. “Don’t let your benev
olent instincts overrule your better judgment. I’m not going to try to deal with a murder case, menopause and breast cancer at the same time. We aren’t going to represent Leon Walker again.” She walks out of my office.
It’s great to be back in private practice. I say to Walker, “I’m going to have to refer you to somebody else.”
He gulps down a deep breath and says, “Can you come down here just for a few minutes? I’ll pay you for your time.” His voice is filled with the unmistakable sound of desperation when he adds, “Please, Mr. Daley. I don’t know who else to call.”
MD04 - Final Verdict Page 2