MD02 - Incriminating Evidence

by Sheldon Siegel

  Judge Kelly correctly sustains my objection. “Ms. Payne,” she says, “please limit your remarks during your opening to the evidence at hand.”

  The hint of a grin from Payne. “Yes, Your Honor,” she says. She turns back to the jury. “We are going to show you that the defendant was at the Fairmont Hotel on the night Johnny Garcia was killed. He was, in fact, staying in the very room where Mr. Garcia died. We will demonstrate that the defendant hired Mr. Garcia to provide sexual favors. We will show that those activities got out of hand. And we will prove that the defendant covered Mr. Garcia’s eyes, nose and mouth with tape. Finally, we will demonstrate that Mr. Garcia suffocated.”

  That covers it. I glance quickly at Natalie. Her eyes are shut.

  Payne spends an hour summarizing the physical evidence. She doesn’t leave out any of the sordid details. The jury is entranced. She’s very engaging when she wants to be. They’ll never know that she’s an attack dog outside the courtroom. She takes a step back from the jury box. “It’s no secret that Johnny Garcia was a prostitute,” she says. “His short life was a sad combination of drugs, homelessness and prostitution. His life was a tragedy, but his death was a greater one. He had a job at last. He had a place to live. He was getting his life together”—she turns and points at Skipper—“until this man, a respected law enforcement officer and member of the community, took advantage of Johnny Garcia. He used his money and position of authority and committed the most heinous of crimes. He bound Johnny Garcia to a bed in the Fairmont Hotel. He covered his eyes, nose and mouth with duct tape. And he watched him die.”

  Skipper doesn’t move.

  Payne studies Johnny Garcia’s picture for a few seconds. She turns back to the jury. “Ladies and gentlemen,” she says, “the people of the City and County of San Francisco put their trust and faith in the defendant. He is the chief law enforcement officer of this city. That’s what makes this all the more tragic.”

  I’ll look defensive if I object.

  “The defendant breached that faith,” Payne continues. “He took advantage of his position and his wealth. He paid Johnny Garcia for sex. He drugged him. And then he killed him.” She sighs. “We are going to be reviewing some very disturbing evidence in this case, and I realize that you may be tempted to punish the defendant just because he’s a lawyer and a politician. That’s not your job. All I ask is that you consider the evidence. I want you to do your part in our system to make sure that justice is served. Johnny Garcia can’t find justice for himself, so it is our responsibility to find justice for him. We can’t bring him back, but we can do everything in our power to ensure that the person responsible for his death is brought to justice.”

  She looks at each of the jurors. She glances at Skipper and shakes her head. She returns to the lectern and collects her note cards. She casts a final glance at Johnny Garcia’s picture, then sits down.

  Skipper whispers, “That was a good opening.”

  Judge Kelly looks at me and asks, “Mr. Daley, will you be making an opening statement today?” We have the option of waiting until after the prosecution has completed its case. Sometimes, it’s good to delay your opening if you want to rebut specific parts of the prosecution’s case. On the other hand, if you wait, the jury won’t hear much from you for weeks.

  “We’ll be making our opening statement today,” I reply. I stand and button my jacket. I walk toward the jury and look them each in the eye. Hillary started close to them. So will I.

  “Ladies and gentlemen,” I begin in a conversational tone, “my name is Michael Daley. I represent Prentice Gates, who has been unjustly accused of a terrible crime that he didn’t commit.”

  It’s my standard opening. Payne could stand up right now and demand that I stick to the evidence. She elects to sit tight. It doesn’t play well to the jury to interrupt thirty seconds into somebody’s opening.

  “Prentice Gates was at the Fairmont Hotel on the night of September sixth of this year. He attended a campaign rally.” I explain that the rally ended around eleven-thirty that night and that certain members of Skipper’s campaign team adjourned to a room in the Fairmont tower to discuss the scheduling for his upcoming debates with Leslie Sherman. I tell them that the meeting broke up around twelve-thirty in the morning.

  “Sometime between twelve-thirty and seven o’clock in the morning, something terrible happened. A young man named Johnny Garcia was found dead in Mr. Gates’s room. The chief medical examiner believes the young man was suffocated, although we will demonstrate that he may have died of a drug overdose.” I look at the investment banker. “There is no doubt that the death of Johnny Garcia is a tragedy. And there is no doubt that a horrible event occurred at the Fairmont Hotel that night. On the other hand, Ms. Payne’s attempts to blame this entire episode on Mr. Gates are wrong.”

  I tell them that Skipper was fifteen points ahead in the polls. I explain that he was going to win the election. I note that he is a bright man and an astute politician. “Bringing a known prostitute to a crowded hotel after a big political rally involved a tremendous risk,” I say. “Mr. Gates’s wife and daughter were at the hotel that night. It makes no sense.”

  I remind them that reasonable doubt is a very tough standard. I tell them that the prosecution has asked for the death penalty, which makes this a matter of life and death. I ask them for their help. “I need you to help me find the truth,” I say. “I need you to work through the evidence with an open mind. After you hear the evidence, you will agree with me that the prosecution cannot prove its case beyond a reasonable doubt.”

  I get very little reaction from the jurors. Some lawyers believe you win cases in opening statements. I’m not one of them. Although you try to deliver your carefully rehearsed speech in a particular way, you never know if the jurors are with you. A million things are racing through your mind as you’re talking. You look for reactions. You worry about the length of your opening. You try to anticipate what will happen during the trial. I give a quick look at Rosie. She closes her eyes. It’s time to finish up.

  I give them my standard closing that I won’t try to mislead or confuse them. It’s a lie. I’d confuse them up the kazoo if I thought it would get Skipper off the hook. For better or for worse, that’s my job. I ask them for their assistance in making the justice system work. I ask them to keep an open mind. “When we’re done,” I say, “I’m sure you will agree with me that Prentice Gates is not guilty of these terrible crimes.”

  I return to the lectern. I gather my notes. I walk to my chair and sit down.

  The judge decides to adjourn for the weekend.

  Skipper is lukewarm in the consultation room a few minutes later. “It wasn’t a great opening,” he says.

  Thanks.

  “I think it got the job done,” Molinari says mildly.

  Ann has joined us. She says, “I was watching the jurors. I think they liked Hillary better.”

  I’m beginning to understand how politicians must feel when the pundits offer instantaneous critiques of everything they say and do.

  “Who’s on their list for Monday?” Skipper asks.

  “They’re going to start with Tom Murphy, the first officer on the scene. Then they’ll call Joseph Wong and some of the security people from the Fairmont. Next are Rod Beckert and some of the technical people.”

  Ann looks at me and says, “Well, I hope you’ll be able to elevate your performance to the next level.”

  Thanks, Ann.

  —————

  It’s Saturday morning. We’ve come to see Kevin Anderson, and we’re sitting in the kitchen of his remodeled flat on Guerrero Street. The building predates the 1906 earthquake. The living room and dining room have been remodeled with pieces from the Victorian era. Kevin’s place was written up in one of those fancy architectural magazines that you see in the reception areas of big law firms.

  Rosie and I are drinking espressos from tiny porcelain cups. Kevin is dressed in a light blue polo shirt and khaki pants
. Classical music plays on the stereo. The smell of croissants wafts from the kitchen. He’s one of the most eligible bachelors in the Bay Area. Life is good, though he wasn’t notably pleased when I called to say we wanted to see him.

  “Kevin,” I say, “we understand that you may be working on a deal with Donald Martinez.”

  He freezes for just an instant. “That’s true. It’s a low-income housing project. We’re trying to get the approvals. The project has been delayed—temporarily.”

  “How is Martinez involved?”

  “He has a lot of experience in the real estate business. He has good connections at City Hall. He’s helping us get entitled.”

  “Entitled?” I ask.

  “Yes. He’s helping us get the building permits we need.”

  There is undoubtedly more to this than Kevin is telling us. The permit procurement process in San Francisco may be the most byzantine political construct in the western hemisphere. There are severe limits on development, and everything must be approved by the planning commission, which is supposed to be a group of independent experts but in reality is often populated by political cronies of the mayor. Most major development projects include competing proposals that are submitted in a “beauty contest” to the planning commission. Each contestant hires a juice lawyer and one or more consultants who can bring political muscle to bear. Martinez has as much muscle as anybody in the city.

  “Who’s funding the project?” I ask.

  “That’s confidential.”

  Rosie sighs. “Kevin,” she says, “we can go downtown and pull the permit applications. Is your father funding this deal?”

  “No. We’re trying to fund it ourselves. My dad wasn’t real excited about it.” He explains that his father thinks the returns on low-income housing projects are marginal.

  “I take it Turner is representing you?”

  “Yes. He’s the best.”

  I ask him what’s holding up the process.

  “Funding. We need to raise about five million dollars to start predevelopment. It’s going a little more slowly than we had hoped. We have to raise the money by the end of the year or our option to purchase the property will expire.”

  “Do you have any funding sources lined up?”

  “We’re working on it.”

  “Did you also go to Donald Martinez for cash?”

  He hesitates and says, “Yes.”

  “What did he say?”

  “He’s thinking about it.”

  Pete calls Sunday night. He says Turner was at Martinez’s office today. I tell him about my conversation with Anderson and suggest that perhaps they were discussing the low-income housing deal. I ask Pete if he saw anything unusual.

  “Maybe. They went for a walk late in the day.”

  “So?”

  “They walked around the corner to a residential hotel on Valencia Street. They stayed there for just a few minutes.”

  “Maybe they’re thinking about buying it.”

  “I doubt it. It’s a dive.”

  “What’s it called?”

  “The Curtis Hotel.”

  I’ll add it to my list. The Jerry, the Royan and now the Curtis. What would Donald Martinez and Turner Stanford be doing at a joint like that?

  33

  THE LEADOFF HITTER

  “The prosecution will call the first officer at the scene and the San Francisco medical examiner today.”

  —NEWS CENTER 4 LEGAL ANALYST MORT GOLDBERG. MONDAY, OCTOBER 18.

  “Please state your name and occupation for the record,” Hillary Payne begins on Monday morning.

  “Officer Thomas Murphy. I’ve been a patrolman with the San Francisco Police Department for almost twenty-five years.”

  Tom Murphy was the first officer at the scene. Not the sharpest tool in the shed, but a hardworking street cop. He’s mid-forties and still looks as though he just stepped off the boat from Dublin. His uniform is pressed. He’s likable—a good opening act. Payne is going to build her case slowly. First, she’ll show that Skipper was there that night and that he had motive and opportunity. Then she’ll demonstrate that he had direct contact with the materials used to suffocate Garcia. I expect her to make all the pieces fit. That’s what good prosecutors do.

  “What time did you arrive at the Fairmont?” Hillary asks.

  “Seven-fourteen A.M. I responded to a 911 call.” He explains that Dave Evans, the head of security at the Fairmont, met him at the front desk and escorted him to Skipper’s room. That’s where he found Skipper, Joseph Wong and other members of the Fairmont’s security staff.

  The first score goes to Payne. She’s placed Skipper at the scene. “What did you do when you arrived at Room 1504?” She’s letting Murphy and the jury settle in.

  “I called for assistance. I cordoned off the area.” He describes the SFPD’s procedures for securing a crime scene. He says that reinforcements began to arrive within five minutes.

  Payne asks the judge to allow her to introduce a schematic drawing of the fifteenth floor of the tower into evidence.

  “No objection,” I say.

  Payne asks Murphy to describe the scene in Skipper’s room.

  He walks to the diagram and gestures with his index finger. “We found the victim in Room 1504,” he says. He explains that Garcia’s body was lying on the bed. He points to the chair in front of the TV, where Skipper was sitting. He shows the locations of the bathroom and the doorway leading to Room 1502.

  “Officer Murphy,” Payne continues, “was anybody else staying on the fifteenth floor that night?”

  “Objection. Foundation. Officer Murphy has testified that he arrived at seven-fourteen. He doesn’t have any personal knowledge of who was staying on the fifteenth floor that night.” It’s a minor point. I just want the jury to know I’m paying attention.

  “Sustained.”

  Payne is undaunted. “I’ll rephrase. Did you find any other guests staying on the fifteenth floor that night?”

  “No.” He explains that they checked the hotel records later on and determined that there were no other registered guests staying on the fifteenth floor that night.

  “Thank you,” she says, sounding pleased. “Did you have an opportunity to interview the defendant when you arrived?” She isn’t going to mention Skipper by name.

  “Yes.”

  “Could you describe his demeanor?”

  “Objection. Speculation.”

  “Your Honor,” Payne says, “I wasn’t asking Officer Murphy to speculate about how the defendant felt. I’m asking him to describe how the defendant looked and acted.”

  “Overruled.”

  Murphy turns toward the jury. “He was uncooperative. He appeared tired and confused.”

  “How was he dressed?”

  “He was in pajamas and a bathrobe.”

  “Was he belligerent?”

  “No. Just uncooperative.”

  Payne stops. Not the answer she wanted. “What else did you observe in Room 1504?”

  “The victim was handcuffed to the bed.”

  “And there was duct tape on the victim’s face, wasn’t there?”

  “Objection. Leading.” Might as well let Hillary know we’re listening.

  “Sustained.”

  She tries again. “Did you find duct tape on the victim’s face, Officer?”

  “Objection. Leading.”

  “Overruled.”

  “No. Mr. Gates indicated that he had removed tape from the victim’s face. Mr. Joseph Wong, the room service waiter, also indicated that the duct tape had been used to cover the victim’s eyes, nose and mouth.” He explains that he found a wadded-up ball of used duct tape on the nightstand and an unused roll, along with a telephone. He describes the handcuffs, the champagne glasses and the champagne bottle. He says all of the items were catalogued into evidence.

  “Did the defendant offer any explanation for how the victim got into his room?”

  “No, ma’am.”

 
“Did he open the door and let him in?”

  “He didn’t explain, ma’am,” he says again.

  “Did the victim have his own key?”

  “I don’t know, ma’am.”

  “Did someone bring him into the room?”

  Enough. “Objection. I’m sure Ms. Payne can list at least a hundred other ways that the victim didn’t get into Mr. Gates’s room.”

  “Sustained. Move along, Ms. Payne.”

  “Officer Murphy, did Mr. Gates have any explanation, plausible or otherwise, for how the victim got into his room?”

  “No, ma’am.”

  “And how he died?”

  “No, ma’am.”

  “No further questions.”

  I approach the witness box. “Officer Murphy,” I say, “you’ve testified that Mr. Gates was uncooperative and confused when you arrived.”

  “That’s true.”

  “Did it occur to you that Mr. Gates may have been drugged?”

  “Objection. Speculative.”

  “Your Honor,” I say, “I’m not asking Officer Murphy to speculate as to whether Mr. Gates may have been drugged. I’m asking him whether he considered the possibility.”

  “Overruled.”

  Murphy pauses. “That went through my mind,” he says.

  “But you didn’t insist that Mr. Gates take any sort of blood or alcohol test to determine whether there were any substances in his system?”

  “No.”

  It’s the answer I wanted, although he was under no legal duty to require Skipper to take such tests. You try to make small points early in the case. “And neither did any of your colleagues, including the homicide inspectors.”

  “Not as far as I know.”

  So far, so good. “Officer,” I continue, “did you see the tape on the victim’s face?”

  “No. The tape had already been removed.”

  “I see. So you have no firsthand knowledge of how the tape was removed from the victim’s face, or whether it was ever on his face at all.”