MD02 - Incriminating Evidence

by Sheldon Siegel

  We argue for another hour. We fight about which crime-scene photos will be shown to the jury. The judge agrees to let the prosecution show only two pictures of Garcia’s body. We discuss whether the prosecution should be able to introduce the photos found in Skipper’s study and his storage locker. I claim that the pictures relate only to Skipper’s character and should not be shown to the jury. Judge Kelly doesn’t buy it. She rules that the prosecution may use the dirty pictures. For good measure, she says they can introduce Skipper’s bookmarked Web sites.

  We break for lunch. As we’re leaving, Ed Molinari leans over and whispers helpfully, “You’re getting annihilated.”

  The afternoon session doesn’t go any better. We challenge the admissibility of the handcuff key found in the toilet on the grounds that it was taken from its plastic packaging and tested. We lose that fight. Our attempts to exclude other evidence on chain-of-custody grounds fall on deaf ears. We fight at length as to whether the prosecution will be permitted to call the two prostitutes who appeared on the Jade Warner show. I argue that Skipper’s past sexual encounters are irrelevant. Payne says that Skipper’s association with prostitutes is relevant to show his propensity for rough sex. Ultimately, Judge Kelly rules against me. I’m disappointed but not surprised.

  Finally, we get to a discussion of whether the trial will be televised on Court TV “Your Honor,” I say, “for obvious reasons, I’m against this. It is difficult enough to empanel an impartial jury and to maintain some sense of decorum without having the entire proceeding beamed live to a worldwide audience.”

  Payne disagrees. “Your Honor,” she implores, “this is an important case. The people deserve the opportunity to observe the criminal justice system at work.”

  Although Judge Kelly might like some free publicity, her better judgment prevails. “I’ll make this simple,” she says. “No TV.”

  Payne argues with her for a moment.

  “I’ve ruled, Ms. Payne,” she says. “Unless there’s anything else on your plates, we’re done. See you next week.”

  Not exactly a day filled with great victories for the good guys.

  There’s a message from Rosie’s brother when I get back to the office. I punch in the number of the produce market.

  “Hector Ramirez stopped by,” Tony tells me.

  “Did he find something?”

  I hear Tony sigh. “No. He got fired.”

  Hell. “Did he say why?”

  “It doesn’t take a rocket scientist to figure it out. Martinez is connected in the neighborhood. He wasn’t happy about some of the questions you guys were asking. He must have found out that Hector was talking to me. Hector is a smart guy who probably knows a lot more about Martinez’s operation than he lets on. He gave me the information about Johnny Garcia because we’re friends. If I had known Martinez was going to haul off and fire him, I never would have asked him about it. This is Martinez’s way of telling Hector to mind his own business.”

  Rosie wanders in a minute later. I explain that I have now managed to get a good man fired from his job because he tried to help us.

  She scowls. “A little message from Donald Martinez,” she says.

  “Is there anything we can do?”

  “Know anybody who needs a good driver?” she asks.

  It gets worse. My phone rings at eleven-thirty that night. Rosie’s voice is cracking. “Tony was robbed,” she says. “Somebody came by the shop as he was closing and slugged him on the head.”

  Jesus. I’m afraid to ask. “Is he going to be okay?”

  “I think so.”

  “Where are you?”

  “At home.”

  “Where’s Tony?”

  “My mom’s house. He called from there.”

  “Call Ron Morales,” I tell her. “I’ll be there in a minute.”

  31

  IT’S A MESSAGE

  “Donald Martinez is a pillar of our community.”

  —ERNESTO CLEMENTE, DEDICATION OF NEW DORM AT THE MISSION YOUTH CENTER.

  Rosie, I and a sleepy Grace speed across the Golden Gate Bridge. It’s after midnight when we arrive at Sylvia’s house. She greets us at the door. Ron Morales is right behind her. “He’s going to be okay,” she says, “but somebody hit him hard.”

  “We’ll take him over to San Francisco General to check him out,” Rosie says.

  Sylvia shakes her head. “He says no. See if you can talk him into it.”

  “I just talked to the uniforms at the market,” Morales says. “They said it looks like it was a robbery. They took all the money and ran. They smashed up the place. It’s a mess.”

  Tony is lying on the sofa, holding an ice pack to the back of his head, when we walk into the living room. The TV is tuned to ESPN. Rolanda is sitting next to him on the old leather chair that was reserved for Rosie’s dad for years.

  Rosie gives him a hug. “How’re you feeling?” she asks.

  “I’m fine.”

  “Why don’t we take you over to the hospital? Somebody should take a look at that.”

  “I’m fine,” he repeats.

  Rosie persuades him to let a neighbor who is a doctor come over and examine him. Tony grudgingly agrees. “Is the market okay?” he asks. “How much did they get?”

  “The uniforms said the register was empty,” Morales says.

  “We’ll have to get things cleaned up right away,” Rosie adds.

  Tony sighs. Rolanda gives him a gentle hug. Rosie, Sylvia and I glance at each other. Morales asks him whether he saw the guy.

  “He hit me before I could get a look at him.”

  “Any guess who might be trying to tell you something?”

  “I have a pretty good idea,” Tony says. “It’s the way Donald Martinez tells people to mind their own business.”

  We camp out for the night at Sylvia’s. I lie on the sofa but can’t sleep. At five o’clock in the morning, I’m drinking coffee in the kitchen when Rosie walks in. She rubs my cheek. “What are you thinking about?” she whispers.

  I swallow. “Nothing. I couldn’t sleep.”

  “Come on.”

  “Oh, Rosie, everything stinks,” I say at last. “We keep getting people hurt—Tony got slugged, Hector got fired, and just because they were trying to help us. And look at us. We’re beat up ourselves. I’ve already spent one night in the hospital. We’re spending twelve, fourteen hours a day on the case, nothing but the case. I get up every morning and take three aspirin and two Pepto-Bismols and see whether my head or my stomach starts hurting first. What kind of life is that? Zilch.”

  “I don’t argue that,” Rosie says, “but we have to do what we have to do. It’ll be over soon. We committed to the case, Mike—you can’t stop now. Wait till it’s finished and I promise: We’ll take a hard look at ourselves.”

  I’m not buying it. There’s too much misery, too much sleaze, no pleasure in it, much less any joy. I push at her again. “We’re all screwed up,” I say. “Look at Grace. Our only kid—how much time do we really spend with her? We shuttle her from your house to your mom’s so we can work on the trial. Here she is, growing up before our eyes, and we’re able to fit in what? An hour or two max. When was the last time we spent an entire Saturday or Sunday together?”

  “A couple of months ago,” she says almost in a whisper. “But, Mike, listen, we can’t stop for this now, we’ve got a murder trial on Monday.”

  “I’m aware of that,” I say, interrupting her. “You don’t have to worry; I promised to take it to the finish line, and I will. But, Rosie, we’ve got to change things when it’s done. This is no way to live. I have to have more time for Grace. For me. For what you and I do together.”

  She takes my hand. “I agree with you, okay? But now isn’t the time. Let it wait until the trial’s over—there’s too much to do now.”

  “There’s never a good time. There’s always another case, something else to do. I’m tired of spending my entire life taking on everybody else’s problems. I�
�ve been doing it for twenty years and look at the scoreboard. We blew our marriage. We blew our pleasure in each other. Here we are, both of us single and still hopelessly dependent on each other, and we’ve got a daughter we love whom we can’t make time for. Grace is spending the night here—again. She should be at home. We should be at home. We’re missing it, Rosie. We’re missing a lot of things.”

  She chews on her lower lip. There are tears in her eyes. Finally she says, “I think you’re right. I know you are. But it’ll take us time to work it out. We can’t do it tonight.”

  “As long as we make the time—okay. But the minute this case is over, I want to talk about it.”

  She holds out her arms. “We will,” she says. “Mike, we’re going to get through this.” And as I come to her, I realize I’m saying to myself I hope so.

  32

  LET THE GAMES BEGIN

  “Jury selection in Gates trial begins today.”

  —SAN FRANCISCO EXAMINER. MONDAY, OCTOBER 11.

  Show time. It’s overcast when Rosie and I arrive at Natalie’s house at eight o’clock Monday morning. Ann’s face is grim when she answers the door. We’ve decided to go to court together today. It’s a show of support for Skipper. Besides, I want to be sure Ann and Natalie don’t get cold feet.

  Ann is dressed in her corporate-lawyer costume: a gray suit, her blond hair pulled back, a faint blush of rouge on her cheeks. Natalie makes an appearance a moment later. “Do I look all right, Michael?” she asks.

  “You look perfect, Natalie.” She does.

  “Is there anything you want me to do in court?”

  I’m far more concerned about your daughter. “Just act natural. It’s okay to show a little emotion here and there, but you don’t want to distract the judge or the jury.” I don’t tell her that she’s supposed to play the role of the dedicated wife. I kind of want her to be a little like Nancy Reagan.

  “It’s time for court,” Rosie says.

  —————

  We get to the entrance to the Hall a few minutes before nine. Molinari walks up a moment later. I ask Natalie and Ann to wait inside and I turn and face the reporters. Rosie stands to my left, Molinari to my right. Everybody will get some footage from the front steps of the Hall today. I look into the nearest camera. A dozen microphones are held up to my face, and I utter the usual platitudes. Reporters shout questions to my back as I walk into the building.

  We regroup with Natalie and Ann just inside the door and walk through the metal detectors toward the elevator. The Hall is swarming with cops. Security is tight.

  We enter Judge Kelly’s windowless courtroom, where the gallery is packed. Her bailiff surveys the scene from in front of the bench. It’s noisy. Skipper is already sitting at the defense table. Ann and Natalie greet him and then take their seats in the first row of the gallery, just behind the defense table. Although they are on our witness list, we persuaded Judge Kelly to let them sit inside. A moment later, I see Turner strolling down the center aisle. He greets Natalie warmly and shakes hands politely with Ann, then he shakes my hand and gives me a perfunctory smile. He pats Skipper on the back and gives him a thumbs-up. He, too, is on the witness list, so the judge won’t let him stay in the courtroom. As he wishes us luck and leaves, I can’t help thinking that I don’t trust the arrogant son of a bitch. We’re going to watch every move he makes, I decide. I’m going to find out what he and his client, Donald Martinez, are up to. I’ve assigned Pete to keep an eye on Martinez. I’m tired of getting pushed around—we’re going to start pushing back.

  I take the seat closest to the center aisle. Skipper will sit between Molinari and me. Rosie is sitting at the end of the table. In all likelihood, neither she nor Molinari will say a word during the trial. Molinari has placed a fresh pad of paper on the table in front of him.

  Hillary Payne and Bill McNulty are at the prosecution table to my right, closest to the jury. A young ADA has joined them. Presumably, she will help Hillary present the evidence. Neither Payne nor McNasty glances in my direction. Let the games begin.

  The bailiff orders us to stand. Judge Kelly walks quickly to her tall leather chair on the bench. She pounds her gavel once and tells us we may be seated. She calls for order. The courtroom becomes silent. “Any last-minute issues?” she asks.

  “No, Your Honor,” Payne and I say.

  “Let’s pick a jury.”

  Three days later, we’re still at it. The crowds have dwindled. The press coverage is minimal. Jury selection isn’t great theater. In California, the judge has the authority to ask the jury panel questions during the voir dire. While it speeds up the process, it gives the attorneys more heartburn and less wiggle room. Judge Kelly is putting the same questions to dozens of potential jurors, who may or may not answer them honestly. I’m a firm believer that most trials are won or lost during jury selection. The tricky part is that you never know whether the potential jurors are telling the truth. The odds of getting a jury you like are a little better than winning at roulette, but not much.

  We haven’t made as much progress as I’d like, though my jury consultant keeps telling me that we’re doing fine. She claims she can pick a sympathetic jury by looking at the jurors’ body language. I have my doubts. Nevertheless, you don’t want to go into a major trial without a jury consultant whom you trust. She keeps reminding me that I should try to fill the jury with women and uneducated men. The women will tend to be more open-minded, she says. The men might be easier to confuse.

  Slow though it seemed, by the end of the day on Thursday we’ve picked our twelve jurors and six alternates. It isn’t a dream jury. Nine women and three men. Six of the women and two of the men went to college. So much for the theory that we should be trying to pick idiots. Three of the women are Asian, one is African American and one is Hispanic. One of the men is African American. There are four homemakers, three retirees, a waiter, a woman who works for a telecommunications company, a BART supervisor, an investment banker and a lawyer. Of those who were picked, all but one tried to give some excuse to get out of serving.

  After the last alternate is seated, Judge Kelly turns to Hillary Payne and asks her if she’ll be ready to give her opening statement tomorrow morning.

  “Yes, Your Honor.”

  The best thing about hiring consultants is that they tell you what they think you want to hear. “You picked a great jury, Mike,” ours assures me back at the office later that evening.

  “Thanks, Barbara,” I say without enthusiasm. “They’ll be all right.” In reality, I’m not so sure. Many expressed a great deal of animosity toward politicians and lawyers. One of the retired women expressed venom toward anybody who had ever run for office but then backed off. Judge Kelly wouldn’t let me excuse her for cause.

  “It will be okay,” Molinari assures me. “You never know with juries.”

  Rosie agrees.

  We speculate for a few moments about which jurors appear to be favorably disposed toward our case. “Anybody you didn’t like?” I ask.

  “The investment banker,” Rosie and Ed say almost in unison.

  I have the same instinct.

  —————

  That Thursday night, I’m sitting with Pete and Tony in Tony’s market. We finished cleaning the place up while Tony was staying at his mom’s house. He reopened yesterday. The bump on his head has gotten much smaller. He’s trying to act as if it’s business as usual. There are two changes, however. The gun that he used to keep below the counter and out of sight is now tucked into his belt. He wears a light wind-breaker to hide it. Technically, this violates California’s law against carrying concealed weapons, but I’m not inclined to make it an issue. In addition, he has decided that he won’t work alone anymore. He’s hired a temporary security guard who attends State at night. He used to be the starting middle linebacker on the Mission High football team.

  I ask Pete if Donald Martinez had any visitors today.

  “Just one,” he says. “Kevin Anderson.�
�

  Now, that’s interesting. Pete’s going to see if he can find out more.

  On Friday morning, Judge Kelly addresses Hillary: “Are you prepared to deliver your opening statement, Ms. Payne?”

  “Yes, Your Honor.” Hillary is dressed in navy blue today, with an open collar and tiny gold earrings. She walks to the lectern. She’s holding a stack of note cards but doesn’t look at them. She gives the jury a quick smile. She’s sizing them up. They’re doing the same to her. She approaches the jury box. She’s going to get intimate with them right away. The jurors shift in their seats. I can hear myself breathing.

  “Ladies and gentlemen,” she begins, “my name is Hillary Payne. I am an assistant district attorney for the City and County of San Francisco. I’m here to ask you for your help. I need you to find the truth in a very serious matter. If we work together, I know we’ll be able to do so.”

  The jurors’ eyes are focused on her. Skipper keeps his eyes straight ahead.

  Payne walks toward an enlarged color photo of a smiling Johnny Garcia that she has placed on an easel in front of the jury. She points to the picture and says, “This young man was a tragic victim. His name is Johnny Garcia. He was only seventeen years old when he died in the early morning on September seventh of this year.” She pauses. “Just seventeen years old,” she repeats.

  She scans the faces of the jurors. Her melodramatic tone doesn’t seem to impress them, at least not yet. “Johnny Garcia cannot be here to tell us what happened, so we must find out for ourselves. It is our solemn duty.”

  I’m tempted to object on the grounds that she’s supposed to stick to the facts in her opening. I remain quiet. There will be plenty of time to try to break up her flow.

  She points at Skipper. “The man sitting over there at the defense table is Mr. Prentice Marshall Gates the Third. He is the defendant. He’s the reason we’re all here today. He murdered Johnny Garcia.”

  “Objection,” I hear myself say in a measured, almost apologetic tone. “The determination of whether Mr. Gates murdered Mr. Garcia is a factual decision to be made by the jury. I would ask Your Honor to remind Ms. Payne to stick to the facts in her opening statement.”