“And when you win the Pulitzer Prize, you can take me out for a nice dinner.”
*****
Chapter 23
“Even a Dying Man is Entitled to His Day in Court”
“Security will be tight at the Hall of Justice for Leon Walker’s arraignment.”
— Jerry Edwards. Mornings on Two. Monday, June 6. 7:15 A.M.
Judge Elizabeth McDaniel’s courtroom is full and her expression is stoic at nine o’clock Monday morning. There is more than a hint of irritation in her voice when she says to me, “You promised me on Friday that I wasn’t going to see you again for awhile.”
I go straight to the priest voice. “We’ve had some unusual intervening circumstances, Your Honor.”
“Indeed.” She shuffles a stack of papers and pretends she’s oblivious to the press contingent in her gallery. On an ordinary day, defense attorneys and prosecutors would be milling around and waiting for their respective turns to have their two-minute audiences with her. It’s like the line downstairs in the cafeteria. You take a number and get your justice. Today, she’s fully cognizant of the fact that she’ll be operating under the weight of the media’s undivided attention for the next fifteen minutes.
Jerry Edwards is parked in the front row. His column in the Chronicle and his diatribe on Mornings on Twoincluded a reference to Julia Sanders’s illness and a gratuitous swipe at Rosie and me for withholding information. At least he didn’t accuse us of intimidating witnesses.
Leon is sitting between Rosie and me at the defense table. He’s wearing a freshly-washed orange jumpsuit that smells of heavy detergent. We persuaded the deputies to remove his shackles. Ward and McNulty are dressed in their Sunday best and are sitting ramrod straight at the prosecution table. McNulty’s suit, tie, shirt and body look as if they were freshly-starched at the dry cleaners. J.T. Grayson is sitting in the gallery directly behind Ward. Vanessa Sanders has a seat by the door.
Judge McDaniel thumps her gavel once and the murmuring in her courtroom comes to an abrupt halt. She asks McNulty, “Will you be addressing this court on behalf of the people?”
“Yes, Your Honor.”
She turns to me and says, “I take it you will be speaking on behalf of the defendant?”
“Yes, Your Honor.”
“Fine. I have a long calendar this morning, so let’s get started.” She signifies that she’s ready to go to work by donning her reading glasses. She states for the record that this is an arraignment, then she asks her bailiff to call the case.
He recites the docket number and says, “The People versus Leon Walker.”
The house lights go down and the curtain goes up.
The judge looks over the top of her glasses and says to nobody in particular, “In the interest of time, are counsel prepared to waive a formal reading of the charges?”
It’s a perfunctory request and McNulty and I stand and say in unison, “Yes, Your Honor.”
“Good.” She studies her docket and pretends to refresh her memory of the charge. It’s the calm before the battle and she’s giving herself a moment to gather her thoughts. “Mr. Daley,” she says, “does your client understand that he’s been charged with first degree murder?”
All too well. “Yes, Your Honor.”
“Does he comprehend the seriousness of the charge?” She knows the answer.
“Yes, Your Honor.”
“Is he aware that the prosecutors have reserved the right to add special circumstances?”
The death penalty may have little relevance to a man with a terminal illness, but no useful purpose will be served by making a flip remark. “Yes, Your Honor.”
“Fine. How does your client plead?”
“Your Honor,” I say, “there are circumstances surrounding this case that warrant discussion.”
McNulty shoots up like a roman candle. “Your Honor,” he says, “the only purpose of this proceeding is for the defendant to enter a plea.”
Technically, he’s right. Nevertheless, she gives him a stern look and says, “This court is well aware of the purpose of this proceeding, Mr. McNulty.”
She’s making it clear from the get-go that she isn’t going to take any shit from him. Of course, the same would apply to me.
McNulty is still standing. “Your Honor,” he implores, “I have no idea what issues Mr. Daley wishes to raise, but this is not the correct forum to do so.”
“Thank you for your input. Please sit down.”
I try to pick up where I left off, but she cuts me off with an upraised hand. “Mr. Daley,” she says, “I’m prepared to listen to whatever issues you may wish to raise at the appropriate time, but the purpose of today’s proceeding is to permit your client to enter his plea.”
Give her credit for being even-handed. I try again. “But Your Honor–”
“Mr. Daley,” she says, “this isn’t about a shoving match over a chicken. A man is dead and your client has been charged with murder. I have no choice but to abide by our procedures.”
“Your Honor,” I say, “you know that I have utmost respect for this court and for the California Rules of Criminal Procedure.”
I can detect the slightest hint of skepticism in her demeanor.
“With all due respect,” I continue, “my client has a terminal illness and is going to die within weeks. As a result, he cannot possibly obtain a fair trial, let alone receive the benefits afforded under our procedures for filing appeals. He simply isn’t going to live long enough.”
Her glasses come off. “What are you asking me to do, Mr. Daley?”
Here goes. “In the context of this case, I believe that it would be appropriate to make certain allowances in order to serve the interests of justice.”
“Are you suggesting that we ignore the California Rules of Criminal Procedure?”
Actually, I’m suggesting that you dismiss the charges altogether. “I would ask you to interpret them in a manner that will give my client a chance of having his case heard as expeditiously as possible. Even a dying man is entitled to his day in court.”
The judge exercises her usual judicial restraint. “This court is sympathetic to your client’s illness,” she says, “but the issue of whether there is sufficient evidence to continue these proceedings is to be decided at a preliminary hearing, not an arraignment. The only question to be addressed today is whether your client wishes to enter a plea of guilty or not guilty.”
“Your Honor,” I say, “there is no useful purpose to be served by prosecuting a terminally ill man.”
She isn’t buying it. “Our procedures don’t permit me to dismiss the charges at this time.”
If I were in her shoes, I would have made the same call. Judges have to run for re-election and get criticized if they make up new laws on the fly. I decide to try once more, if only to garner a bit of the sympathy vote from the cynics in the gallery. “Your Honor,” I say, “the fundamental interests of justice suggest that it is morally repugnant and economically inefficient to prosecute a dying man.”
McNulty is up again. “Mr. Daley is suggesting that we should ignore the rule of law because his client is ill.”
Yes, I am, but I have to come up with a supportable legal argument, so I go with an old standby. “The judge has the authority to exercise discretion to serve the interests of justice.”
She can’t argue with justice, right?
Judge McDaniel has heard enough. “Mr. Daley,” she says, “the interests of justice also require me to weigh the rights of the victims and their families. I am sympathetic to your client’s health problems, but I am not in a position to dismiss the charges at this time.”
“But Your Honor–”
“How does your client plead?”
I’ve lost the first battle. “Not guilty.”
“Thank you.”
Out of the corner of my eye I can see McNulty giving Ward a triumphant nod.
“Your Honor,” I say, “there are other issues that we had put forth in ou
r papers.”
“I’m listening.”
“First, we respectfully request that you reconsider Judge VandenHeuvel’s decision that Mr. Walker be held without bail.”
“What did you have in mind?”
Let’s forget about it altogether. “In light of my client’s health and his limited means, we request that bail be set at an amount commensurate with his economic status and that he be remanded to a hospice where he can receive treatment in humane surroundings.”
McNulty is up again. “We oppose bail. The defendant has nothing to lose by fleeing.”
“Your Honor,” I say, “my client doesn’t have the economic means or the physical ability to flee. He has lived in San Francisco his entire life and has family and friends in the community. He will abide by strict limitations on his movement and wear an ankle bracelet or other monitoring device so the police will know his whereabouts at all times.”
McNulty’s voice goes up a half octave. “The defendant is being provided with health care and will be moved to San Francisco General if necessary. It would be very unusual to set bail in a first degree murder case. We therefore respectfully oppose it.”
I’m still swinging. “The court always has the discretion to set bail, subject to whatever reasonable limitations you may wish to impose.”
She stops me with an upraised hand. “Mr. Daley,” she says, “I find Mr. McNulty’s position to be more persuasive than yours.” She points her gavel at me and says, “I’m ordering that all necessary steps be taken to accommodate the defendant’s medical needs. I will not, however, reconsider Judge VandenHeuvel’sdecision on bail.”
“But Your Honor–”
“I’ve ruled, Mr. Daley. Bail is denied.”
Now I’m zero for two. It’s time to raise an issue that I have a fighting chance of winning. “Your Honor,” I say, “in light of the urgency of the circumstances, we ask you to schedule a preliminary hearing as soon as possible.”
“How soon can you be ready, Mr. Daley?”
“We’re prepared to start right now.”
Her look of astonishment is matched by McNulty’s. He exchanges a panic-stricken glance with Ward and says, “We can’t be ready on a moment’s notice.”
“Your Honor,” I say, “the code says my client is entitled to a prelim within ten court days. We want to start ASAP.”
She studies her calendar and says, “We don’t have a courtroom or a judge available.”
“Then we’ll be ready first thing tomorrow morning.”
She shows her first outward display of exasperation. “Mr. Daley,” she says, “you know our system is overworked and overcrowded. We would encourage you to think about whether it’s in the best interests of your client to insist on proceeding so quickly.”
“You and I have the luxury of conducting our affairs in an orderly way, but Leon Walker does not.”
“I’m aware of the urgency, but we don’t have a courtroom available tomorrow morning.”
I lay it on the line. “When is the earliest you can get us in, Your Honor?”
“How much time will you need?”
“At least two court days, maybe longer. We plan to put on a full defense for our client.”
Her annoyance becomes more pronounced. Prelims are generally perfunctory shows where the DAs put on just enough evidence to demonstrate that there is a reasonable basis to support the charges. The judge taps her pencil and says, “You may wish to consider whether it would make more sense to conserve your resources until the trial.”
I strive for a respectful tone when I say, “We’re never going to get there, Your Honor.”
She gives me a thoughtful look as she considers what I’ve just told her. She studies her calendar for another long moment and says, “We can start Thursday morning.”
“We’ll be ready.”
McNulty is not nearly as enthusiastic. “Your Honor,” he says, “we’ve been investigating this case for only three days. It will be difficult for us to prepare on such short notice.”
“Your Honor,” I say, “we’re prepared to provide witness lists and all relevant information by the end of the day tomorrow, and we would expect the same from Mr. McNulty. In the interest of justice, he should be willing to move forward on an expedited basis.”
McNulty makes another effort to buy time. “Given the workload in our office and the schedules of our investigators,” he says, “it will be very difficult for us to begin the defendant’s preliminary hearing before Tuesday of next week.”
I fire right back. “They’re stalling,” I say. “This is the ultimate example of the old saying that justice delayed is justice denied. They’ve arrested a dying man and now they’re trying to run out the clock. They know they won’t have to prove their case beyond a reasonable doubt because we’ll never get to trial. In such circumstances, the principle of being innocent until proven guilty is turned on its head. I’m not asking you to bend any rules. The statute says that Mr. Walker is entitled to a preliminary hearing within ten court days.”
She takes it in with measured stoicism and says, “The prelim will begin in this courtroom at nine o’clock on Thursday morning.” She says to McNulty, “I will expect you to be ready.”
“But Your Honor–”
Her glasses come off. “I will expect you to be ready, Mr. McNulty.”
He feigns contrition and says, “We will.”
“Good. Anything else?”
McNulty folds his arms and says, “We respectfully request that all parties involved in this matter be subject to a gag order. We don’t want this case tried in the press.”
I glance at Jerry Edwards and say, “We oppose limitations on our access to the media.”
The look of surprise on the judge’s face is again only matched by that on McNulty’s. She leans forward and asks, “Why?”
This is one of those rare occasions where I won’t have an opportunity to try the case in court, so I may want to try it in the press. I would never say such a blasphemous thing to the judge. “Your Honor,” I say, “the purpose of a gag order is to ensure that the pool of potential jurors will not be tainted by adverse pre-trial publicity. As a result of my client’s illness, this case will not go to trial.”
“You don’t know that for sure, Mr. Daley.”
“Yes, we do, Your Honor.”
McNulty is fuming. “Mr. Daley isn’t qualified to practice medicine,” he snaps.
“No, I’m not, but I’ve consulted Mr. Walker’s doctor. He’s assured me that Mr. Walker will not be available for a trial.”
The judge is still skeptical.
I play another angle. “My client is also prepared to waive his right to a jury and accept a bench trial. As a result, there will be no potential juror pool to taint.”
The judge wasn’t expecting this and tries to buy time. She looks at Leon and says, “Mr. Walker, do you understand that your attorney has just agreed that your case will be tried by a judge instead of a jury?”
He glances at me for an instant and I nod. “If it’s okay with my attorney,” he says, “it’s fine with me.”
McNulty responds by whining. “It is unwise to allow unfettered access to the press,” he says. “We’re prepared to abide by a gag order and we think the defense should do the same.”
I play to the reporters in the gallery and try to butter up the judge. “Your Honor,” I say, “this is a basic first amendment issue. We believe that the public’s right to information outweighs any countervailing concerns. We have every confidence that you will be able to maintain decorum and that the proceedings will be held in a fair and dignified manner. As a result, we would once again voice our opposition to any limitations on our access to the press.” I don’t know if she’ll agree with me, but this is one of those rare occasions where I’m not just blowing smoke.
She thinks about it for a moment and says, “In light of the fact that the defendant has waived his right to a jury trial, I’m inclined to agree with Mr. Daley. I’
m not going to impose a gag order at this time.”
“Your Honor–” McNulty says.
“I’ve ruled.”
I’m not exactly on a roll, but I decide to take one more swing. “We would also have no objection to televising these proceedings.” If Ward and McNulty want to prosecute a dying man, I want them do it on live TV.
McNulty says, “We are strongly against televising these proceedings, Your Honor.”
The judge listens to our arguments and makes the call. “I believe that televising legal proceedings provides useful information to the general public, but I have found that everyone in the courtroom acts differently when the cameras are on. I am therefore ruling that no portion of this matter will be televised, but seats w ill be reserved for courtroom artists.”
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