MD02 - Incriminating Evidence

by Sheldon Siegel

  I sense Martinez is already trying to distance himself from Holton. I ask, “Did Mr. Holton ever approach you regarding a potential business deal?”

  “Mr. Daley, people approach us all the time. As you may know, in addition to my other interests, I am the founder and the president of the Mission Redevelopment Fund, which provides subsidies to local businesses to encourage them to hire young people from the neighborhood. The fund is also involved in the development of low-income housing in the community.”

  All very tidy, but he hasn’t quite answered my question, so I try again. “Mr. Martinez, did he ask you for money?”

  His tone remains forthright. “Yes, he did. I remember receiving an inquiry from him about a year ago. I don’t recall the details, although I believe it involved a new Internet software venture.”

  He isn’t being openly evasive, but he isn’t particularly forthcoming, either. Rosie asks if Holton ever demonstrated the software for him.

  “No. We never saw a prototype.”

  There probably never was a prototype. “Did you meet with Mr. Holton about the project?”

  “I believe so. The fund has very specific procedures. We asked him to provide a written proposal and a business plan, which he did.” He adds, “We did not provide funding.”

  “Why not?”

  “As I recall, his business plan was inadequate and we did not believe he had the experience or expertise to operate a start-up company.”

  “Mr. Martinez,” I say, “did you do any checking into his background?”

  “Yes. Our procedures require it. He was very young and had no experience running a business.”

  He judiciously leaves out the fact that Holton was a drug dealer and a pimp. “Mr. Martinez,” I say, “we understand that Mr. Holton may have been involved in prostitution and drug dealing. We also have reason to believe that he was involved in the creation of a pornographic Web site. We’ve seen the pictures, and they are quite graphic and disturbing. We’re trying to determine who may have provided the funding. Do you have any idea?”

  He becomes self-righteous. “The fund does not invest in businesses that engage in pornography. There will always be people like Mr. Holton who try to make a fast buck off the weaknesses of others. I find it appalling. I can assure you that we had nothing to do with it.”

  He’s a little too sanctimonious for my taste. “I wasn’t suggesting that you were involved. Do you know who might have been?”

  “I have no idea. We would never condone any such activities. It’s against my principles.” He pauses and adds, “We would never associate with a hoodlum like Mr. Holton.”

  He certainly wants to put as much space as he can between himself and Andy Holton. I’m sure he’s left no tracks.

  The clock continues to tick. Jury selection begins on Monday. When we get back from Martinez’s office, I spend a couple of hours with our jury consultant. She gives me the conventional wisdom that we should try to load up the jury with idiots. I have worked with dozens of jury consultants over the years, with mixed results. She’s fairly typical in that I find her advice useful and her attitude condescending.

  After she leaves, Carolyn and I go over our witness list. You can get in trouble if you try to call somebody who isn’t listed. California law doesn’t like surprise witnesses. As a result, we have loaded up ours with everybody under the sun who might conceivably be called at trial, and many who won’t. We lawyers tend to be pretty underhanded about the whole thing. By law, we have provided ours to the prosecution, and they’ve provided theirs to us. Ours includes the names of everybody who attended Skipper’s rally and the entire security force at the Fairmont. We’ve even included McNasty and Payne; they were there that night. We’re tweaking them—they know it. Judge Kelly will never let them testify. I ask Carolyn whether anybody was especially upset at receiving our subpoenas.

  “Sure. Morris, Parnelli and Anderson weren’t real excited about it. Donald Martinez was furious.”

  Interesting. He certainly gave us no indication of it earlier today. “And Ann and Natalie, too?”

  “They weren’t happy about it, either,” she says, “but they’re ready if we need them.”

  I hope we won’t. I ask her about the prosecution’s list.

  “They’ve included most of the people you’d expect.” She reads off the names of Tom Murphy, the first officer at the scene, Elaine McBride and Roosevelt Johnson, Rod Beckert and Sandra Wilson. “They’ve included a few of the evidence technicians and the lab guys,” she says.

  “And Dan Morris and Turner Stanford?”

  “Yup. Along with Jason Parnelli and Kevin Anderson.” She notes that everybody from the meeting in Skipper’s room also appears on the prosecution’s list.

  “What about Nick the Dick?” I ask.

  “Are you kidding? Absolutely. If they didn’t put him on their list, he’d be down there begging.”

  At three o’clock, I gather the troops in the martial arts studio, which is beginning to look like the backstage area of a theater. We’re laying out our props. We’ve set up easels around the room. We’re trying to anticipate the prosecution’s case. This is necessary, but by and large, it’s an exercise in pure speculation. You never get used to the uncertainty of it.

  Pete is the master of ceremonies when we talk about the physical evidence. He’s been through this drill many times. He stands at the first easel and reads off the list of everything that was found at the Fairmont. “Handcuffs and the roll of duct tape with Skipper’s fingerprints,” he recites. “The key in the toilet. Skipper said it didn’t work.”

  “But when the police tested it,” I interject, “it did, in fact, open the handcuffs found on Johnny Garcia.” When I asked Skipper about it, he had no answer.

  Pete ticks off the other items found at the scene. Garcia’s naked body. The champagne flutes and the duct tape that covered Garcia’s eyes, nose and mouth. Then he goes through the other items relating to the events at the hotel. Garcia’s fingerprints on the phone and the doorknob. The phone records. Nick Hanson’s videotape. The traces of GHB found in the champagne flutes.

  “There is something about the champagne flutes that’s bothered me since we got the police reports,” I say. “Why did they find GHB in both flutes? Doesn’t that seem strange to you? I can see why they might claim that Skipper spiked Garcia’s drink, but why would he spike his own? Do they think he knocked himself out?”

  “We need to hammer on that,” Rosie says.

  Damn right. Pete runs through the evidence found at Skipper’s house and in his storage locker. The magazines. The Web sites. The photos of the prostitutes. “They’re going to try to show he was a pervert,” Pete concludes.

  The room goes silent. “They’re going to put the two prostitutes on the stand,” I say. “We’ll need to discredit them without attacking them.” A delicate dance, indeed.

  We discuss Beckert’s autopsy report. I explain that our medical expert will testify that Garcia died of something other than suffocation. “At the least, we’ll give the jury something to think about,” I say. Of course, the jury may still decide Skipper is guilty if they conclude he gave Garcia the GHB. Then again, if we can convince them that he died of a heroin overdose, we all get to go home.

  Carolyn asks, “What about the urine and the semen found on the bed?”

  “We’re supposed to get the DNA reports next week,” I say. I don’t say it aloud, but if there’s a match to Skipper’s DNA, we’re going to have a very tough time arguing that he wasn’t engaged in sex with Johnny Garcia that night. I face a room full of silent stares. Everybody is thinking the same thing.

  I ask Carolyn whether she found anything about the ownership of the Boys of the Bay Area Web site.

  “The domain name of the Boys of the Bay Area Web site is registered in the name of El Camino Holdings, a California corporation,” she says. “The only address shown in the corporate paperwork is a filing service downtown, which wouldn’t provide any addition
al information. The company has not filed a list of officers and directors with the secretary of state, and the names of the shareholders are not a matter of public record for a privately held concern.”

  “Somebody is paying the bills to maintain the corporation and the Web site,” I say.

  “That’s true. The problem is that somebody could be anywhere in the world with a computer modem.”

  I ask her what she’s found on the Donald Martinez Charitable Foundation or the Mission Redevelopment Fund.

  “They’re legit. Their corporate filings seem to be in order. Martinez and members of his family make up the boards of directors of both entities, and they’re both in good standing with the secretary of state and the attorney general.”

  “Keep digging.”

  “I am.”

  “What about other suspects?” Rosie says. “Let’s see where we might be able to deflect blame.”

  We have gone through this exercise on many occasions. We discuss the various motives that Dan Morris, Jason Parnelli, Turner Stanford and Kevin Anderson might have had. We dismiss Nick the Dick, McNasty and Hillary, though they were all in the building at least until midnight.

  Molinari leans back in his chair and says, “Natalie and Ann were there that night.”

  “Ed,” I reply, “I just can’t see it. Neither of them ever even heard of Johnny Garcia. There is no way Natalie could have managed it, planned it, even putting aside for the moment how emotionally frail she is. As for Ann, sure, she’s tough and hot-tempered—but to set up her own father? And don’t forget how the scandal smears the Gates name—it’s tabloid heaven. Apart from the risk of being caught, there’s the effect on her own political aspirations. Mayor Ann Gates? Daughter of the notorious pervert DA?”

  Molinari sighs and says grudgingly, “Your points are well taken. Nevertheless, we shouldn’t rule anything out. We may need to give the jury some alternatives. Who’s your favorite? Who would you blame?”

  I look around me at the silent faces. “If we have to pick somebody,” I say, “then I would go with Holton. He’s the most viable option. We know he was there that night.” I leave out the fact that there isn’t a shred of physical evidence placing him in Skipper’s room. “Moreover, he can’t defend himself. It’s a perfectly legitimate and tried-and-true defense.”

  Molinari asks, “What defense is that?”

  “When in doubt, blame it on the dead guy.”

  30

  JUDGE KELLY

  “Lawyers for the prosecution and District Attorney Gates will meet with Judge Joanne Kelly today to discuss evidentiary issues. The trial is scheduled to begin on Monday. Sources familiar with the case believe the defense is fighting an uphill battle.”

  —CNN’s BURDEN OF PROOF. FRIDAY, OCTOBER 8.

  “You can’t be serious about calling Bill and me as witnesses at the trial,” Hillary Payne says. It’s Friday, October eighth. Monday is D-Day. Molinari, Rosie and I are meeting with the Princess of Darkness in her office first thing in the morning. As always, she tries to put us back on our heels before we get started. Hillary wakes up every morning in attack mode. For that matter, she isn’t much for civility, either. She hasn’t even asked us to sit down. “Judge Kelly will never allow it,” she says. “You know it as well as I do.”

  We were invited here on the pretense of trying to narrow the evidentiary issues to be addressed at our pretrial hearing later this morning. In reality, I think Hillary wants to see if she can elicit a preview of our defense. I accepted for the same reason—perhaps we can glean a little about her strategy. My guard is up. In addition, as with any meeting with Hillary, we are giving her a free opportunity to snipe at us. I suspect she’s been up all night looking forward to this. I decide to use similar tactics. “You were there that night,” I say, pointing a finger at her. “You were in the room where Garcia died. You know what happened. You should tell your story.”

  “We left at midnight. We didn’t see a thing.”

  “And you both went straight home?”

  “Yes.”

  “And somebody can corroborate your story?”

  She’s indignant. “Of course.” McNasty dropped her off at twelve-fifteen at her apartment on Russian Hill and he went straight to his apartment a few blocks away.

  “How do you know where he went?” Rosie asks. I know the answer.

  “He told me.”

  Figures. “What were you doing in Skipper’s room?”

  “We were showing some face time for our boss. You have to make nice-nice sometimes.” She makes little quotation marks with her hands as she says this. “I hate this stuff. So does Bill.”

  So do I. “We’re still going to raise the issue with Judge Kelly, Hillary. I don’t think it’s appropriate for you to try this case if you were there that night.”

  “She’ll never go for it.”

  This is true. For almost an hour, we argue about the admissibility of various items of evidence. We have a particularly heated discussion about Nick’s videotape and the photos of the prostitutes. Hillary doesn’t give an inch. Neither do I.

  We go to war.

  Eleven o’clock. Rosie, Molinari, McNasty, Payne and I are sitting in the well-worn chairs in Judge Joanne Kelly’s airless chambers. We are about to begin a catfight about the witnesses to be called and the evidence to be shown to the jury. We’ll also get a preview of what the judge thinks about this case. Her decisions today will have a substantial impact on the course of the trial.

  Judge Kelly is a large woman in her early sixties with a gruff bearing and a no-nonsense manner. She has broken a lot of new ground for women in the San Francisco legal community. She was one of the first women to make partner at a large San Francisco law firm, and she was appointed to the bench twenty years ago. She’s very funny when she’s telling war stories at bar association functions. When she’s on the bench, however, she’s all business, and when she’s in chambers, she can be a terror. “Mr. Daley,” she says before I can open my mouth, “have you and the prosecutors huddled to see if there’s any chance that we can dispose of this case?”

  “We have discussed the possibility of a plea bargain,” I say. “We have not reached any common ground.”

  She rolls her eyes. I expect to see a lot of this expression in the weeks ahead. “Let’s start looking a little harder,” she says. “Are you ready to proceed?”

  Five heads nod.

  “Scheduling first,” she says. She puts on her reading glasses. “We’re set to begin jury selection on Monday. Mr. Daley, your client hasn’t reconsidered his decision on the timing of this trial, has he?”

  “No, Your Honor. He will not waive time.”

  She’s annoyed. “Fine.” She turns to Payne and asks her how many trial days she’ll need.

  “No more than five,” she says.

  “Perhaps somewhat shorter,” McNasty interjects.

  Judge Kelly glares at McNasty. “Mr. McNulty,” she says, “I am assuming that Ms. Payne will act as your spokesperson today.”

  “Yes, Your Honor,” McNulty replies docilely.

  She turns to me and I tell her that we’ll need no more than five trial days. She seems pleased. “All right,” she says, “what are we doing here this morning?”

  “Witness lists and evidentiary issues,” I reply.

  Another eye roll. “I’ve read your papers, Mr. Daley. Do you wish to add anything?”

  “Yes, Your Honor,” I say. “The first issue relates to the question of whether we can call Mr. McNulty and Ms. Payne as witnesses at the trial.”

  We’ve just started and I see I’ve already hit a nerve.

  “As Your Honor is aware,” I continue, “Mr. McNulty and Ms. Payne were present at the gathering in the very room where the victim, Johnny Garcia, was found dead the next morning. It is critical to our case that we be given an opportunity to cross-examine them at the trial.”

  She cuts right to it. “Forget it, Mr. Daley,” she says. “I’ve reviewed their affidavits
. I’m not going to allow any of the attorneys in the case to testify at the trial.”

  “But, Your Honor—”

  She cuts me off with a wave of her hand. “No way. I’m not going to allow any of the attorneys in this case to testify at the trial,” she repeats.

  “Your Honor—”

  “I’ve ruled, Mr. Daley.”

  I catch the hint of a grin from Payne out of the corner of my eye.

  At times like this, you have to approach your job in the same manner that you attack standardized tests like the SATs. If you miss a question, you move on. Nick the Dick’s videotape is up next. “Admission of this videotape would be highly prejudicial,” I say. “We have no basis to authenticate it other than the word of the man who claims he shot it. It may have been edited or fabricated. We simply don’t know. We have no way to verify that it was taken that night and at the times alleged by Mr. Hanson.”

  “Mr. Daley,” the judge says, “isn’t it true that the tape shows the time and date it was taken?”

  “The tape purports to show that information, but you can reset the timer. If we were videotaping this meeting today, I could manipulate the timer to show any date I’d like.”

  She ponders for a moment and says, “Mr. Daley, we have no evidence that Mr. Hanson attempted to manipulate the timing device.”

  “Your Honor,” I say, “we cannot verify that either the victim or the defendant appears on the tape.”

  Judge Kelly’s irritation turns to full-blown anger. “Come on, Mr. Daley,” she snaps. “It’s a videotape. That’s why our rules allow for cross-examination. You can ask Mr. Hanson about the circumstances surrounding the taping. You can bring in expert witnesses to show that it may have been altered. You can let the jury decide whether the defendant and the victim appear in the tape. The tape comes in.”

  I try again. “But, Your Honor,” I say, “this tape is highly inflammatory.”

  She holds up her hand. “The tape comes in, Mr. Daley.”