MD02 - Incriminating Evidence

by Sheldon Siegel

  Payne asks Judge Kelly if she can introduce Nick’s videotape into evidence. I renew my objections. She overrules me. McNasty pulls a TV and VCR in front of the jury. He pops a cartridge into the VCR. They play the video three times. It’s only about fifteen seconds long. First they play it at regular speed, then in slow motion, then at regular speed again. The jury is spellbound. It’s always good to give them something to watch. Nick sounds like a TV announcer as he points out the highlights. He shows a man walking up to the door. The door opens. The man goes in.

  “Mr. Hanson,” Payne says, “is it clear to you that the victim, Johnny Garcia, entered Mr. Gates’s room in the early morning of September seventh?”

  “Yes.”

  “No further questions, Your Honor.”

  It’s late in the afternoon. Judge Kelly asks me how long my cross-exam will last. I don’t want her to adjourn until morning. I don’t want to give the jury the chance to spend the night thinking about Nick’s testimony. “Just a few questions,” I say.

  I approach Hanson and stand right in front of him. “Mr. Hanson,” I begin, “what did you do after you allegedly observed someone enter Room 1504?”

  “We packed up our gear and headed out. We were on our way down the hall, when we saw Mr. Morris and his associate, Mr. Parnelli, in the doorway to Room 1502. We stopped and left the videotape with them.” He smiles. “Needless to say, they were ecstatic.”

  “So, Mr. Morris and Mr. Parnelli were still in Room 1502 when you left?”

  “That’s correct.”

  “Do you know when they left?”

  “No.”

  It isn’t exactly a smoking pistol, but at least he’s placed Morris and Parnelli in the room next door after everybody else left. “Mr. Hanson,” I say, “let’s take another look at your videotape.”

  “Of course, Mr. Daley.”

  I cue the video machine. I run the tape in slow motion. The courtroom is silent as we observe the man Nick says was Johnny Garcia approach Skipper’s door. “Mr. Hanson,” I say, “would you agree that you can see only the back of this man’s head?”

  “I’d have to look at the tape again.”

  I rerun it. The grainy tape shows only the back of the man’s head.

  “It was Garcia,” Nick says.

  “But you would agree that you see only the back of his head, right?”

  “It was Garcia,” he repeats.

  “And you would agree that it was dark and this was taken through a small peephole.”

  He repeats it was Garcia.

  Let’s try something else. I run the video one more time in slow motion. “Mr. Hanson,” I say, “you can’t see who opened the door, can you?”

  “It was the defendant.”

  I rerun the tape one more time. “You can see the door open, Mr. Hanson. But you can’t see who opened it. You can’t see a face behind the door.”

  He’s adamant. “It was Mr. Gates,” he says.

  “Did you hear Mr. Gates say anything?”

  “No.”

  “Did you record any sound from this incident?”

  “No.”

  I give the jury an incredulous look. “This videotape shows nothing more than the back of a man’s head. It shows a door opening. It doesn’t show Johnny Garcia. And it doesn’t show Prentice Gates opening the door.”

  “Objection. Mr. Daley is making a speech.”

  Indeed I am.

  “No further questions of this witness, Your Honor.”

  Judge Kelly adjourns for the day.

  —————

  Outside the courtroom, Nick the Dick is surrounded by reporters. “Tough cross-exam today,” he tells nobody in particular. “I still think we made our points.”

  I tell Molinari and Rosie that I’ll catch up with them at the office. I wait for the media horde to break up. I catch Hanson. “Nick, can I talk to you for a few minutes?”

  “Of course.”

  We stroll to the side of the long corridor, not far from the elevators.

  “Nice work on cross today,” he says.

  “Thanks. I didn’t mean to beat you up.”

  “You were just doing your job.”

  So were you.

  “It was Garcia,” he says. “And I’m sure it was Skipper who let him in.”

  “Nick,” I say, “I want to ask you something. And I don’t know how to do this without being direct, so here goes—”

  “I didn’t dummy up the tape, Mike,” he says. “I’m eighty-five years old. I don’t need to do that kind of stuff. It would be beneath my dignity.”

  I think he’s telling the truth. “I thought so.”

  “So why did you want to talk to me?”

  “Are you busy the next week or so?”

  “I’m always busy. Why?”

  “Can I hire you to watch somebody for a few days?”

  “A thousand dollars a day.”

  “Deal.”

  He asks me who I want him to watch.

  “Turner Stanford.”

  “It’s a deal,” he says.

  38

  “SEEN ANYBODY YOU RECOGNIZE?”

  “Prosecutors Promise New Evidence Tomorrow.”

  —SAN FRANCISCO EXAMINER. WEDNESDAY, OCTOBER 20.

  That night, Rosie, Tony and I are sitting by the front window at the Pancho Villa, across the street from the Jerry Hotel. Tony has been coming here every night after he closes his shop. He has a regular spot by the window. He brings a book and tries to look like he’s reading. In reality, he’s looking out the window in a last-ditch effort to try to find my attacker. We’re going to have to do something very nice for him after all of this is over.

  I’ve checked in with Pete. He’s still sitting in his Plymouth across the street from the Curtis Hotel. Nobody has come or gone from Room 204 in the last two days. He’s getting impatient. I’m getting frustrated. I’ve told him that if nothing happens in the next day or so, we’ll ask Ron Morales to pull the warrant he promised and find out what’s up there.

  I take a bite out of a steak burrito. “How’s your head?” I ask Tony.

  “Fine. How’s yours?”

  “Okay.” I ask him whether the police have any leads on the man who robbed him.

  “Nope. They won’t find him.”

  Probably not. “You don’t have to come here every night, you know.”

  “I know.”

  Rosie asks, “Seen anybody you recognize?”

  “I recognize everybody.” He acknowledges, however, that he hasn’t seen anybody who resembles the man who hit me or the man who robbed him. He asks how the trial is going.

  “Not great.” I ask him how he’s getting along.

  He takes a drink of soda. “I’m okay,” he says. “It’s a little lonely. I don’t get to see enough of Rolanda. She’s busy with school and the job.” A halfhearted shrug. “It could be worse.”

  I ask him if he ever called his friend’s sister.

  “No. Not my type. Are you still interested?”

  “Maybe next time,” I say. Then I add, “You just need to give it some time. You need to make some new memories for yourself.”

  He finishes his burrito and nods to the young man working behind the counter. “One more soda,” he says.

  An attractive young woman enters the restaurant by herself and smiles at Tony. His eyes light up. He smiles back. “Hi, Louisa,” he says.

  He introduces us to her and she goes up to the counter and places an order. “She’s Hector’s sister,” Tony explains. He adds in a whisper, “And she’s single. We’re going to a movie next week.”

  Rosie grins. “That’s great, Tony.”

  He grins back. “I haven’t been on a date in twenty-five years. I’m a little out of practice.”

  “It’s like riding a bike,” I say.

  “Things have changed since I was young. Will she be offended if I don’t ask her to sleep with me on the first date?”

  I wink at Rosie. She gives me a surrept
itious thumbs-up. “I think you’ll be safe if you take things a little more slowly,” I say. “Besides, if you ask her, Hector will beat the living daylights out of you. You can play it by ear. And don’t stay here all night.”

  To my surprise, the lights are on when Rosie and I return to the office. We find Carolyn sitting behind Rosie’s desk, studying an official-looking document. She’s startled when we walk in. She takes off her glasses. “We have a real problem,” she says.

  “What now?” I ask.

  “The DNA reports came back,” she says.

  “So? We already knew that Johnny Garcia had sex shortly before he died.”

  “That’s true,” she says. “Now it’s been confirmed. The semen on the bed matches.”

  “And?”

  “Page three,” she says.

  She hands me the report and I flip to page three. It says that they found Skipper’s semen on the bed, too.

  I call Ann to let her know and ask her to tell Natalie. She says she’s coming right over. We’re huddling in Rosie’s office when she arrives. “This isn’t happening,” she says. She reports that her mother took the news of the DNA results badly.

  “Is somebody with your mother tonight?” I ask.

  “Yes. I asked Turner to come.” She pauses. “But she may not make it to court tomorrow. I’m worried.”

  “What are our options?” Molinari asks.

  “None that are good,” I say. “We can’t argue that Skipper’s semen was planted. That’s absurd. We can’t challenge the validity of the DNA tests; everyone knows they are reliable.”

  “Maybe he can deny it,” Ann suggests.

  There’s a great idea. Let’s just say the problem doesn’t exist and hope it goes away. “You know that won’t work,” I snap. “We’ll lose what little credibility we have left if we do so.”

  She doesn’t respond.

  I hold my hand up and say, “We have no choice. We have to admit that Skipper engaged in sex in that bed that night.”

  Molinari asks, “And how would that help us?”

  Rosie interjects, “That’s irrelevant. Mike’s right. If we come up with some absurd argument or look like we’re trying to hide it, the jury will turn on us. We’ll have to find other ways to get to reasonable doubt.”

  I look at Ann, who says, “Father will never admit that he had sex with another man.”

  “Maybe he’s going to have to,” I reply.

  It’s almost two in the morning as we drive across the Golden Gate Bridge toward Marin County. “Do you think Skipper really had sex with Garcia?” I ask Rosie. The fog is heavy. The radio is turned to jazz.

  “Do you have any other remotely plausible explanation?”

  “Nope.”

  “Neither do I. Is there anything we could have done to have avoided this disaster?”

  “Probably not,” I say. I recall Ed Molinari’s observation that Skipper will admit the truth only when he’s caught in a bald-faced lie. Then again, human nature being what it is, it doesn’t surprise me that he waited to see if the DNA tests would implicate him. Who knows? Maybe he used a condom and thought nothing would turn up.

  “I’m exhausted,” Rosie says.

  “So am I.”

  As we pass through the Waldo Tunnel, she observes, “This case makes no sense. I can understand why they think Skipper put the GHB in Garcia’s glass, but there is no plausible explanation for the GHB in Skipper’s. I can’t believe he spiked his own drink.”

  “There were a lot of people who had the opportunity.”

  “Yes, but it would have been very risky. The people who were there aren’t reckless idiots. They’re very calculating.”

  “Maybe it was an act of opportunity. It wouldn’t have been that difficult to put a few drops of GHB into the glasses.”

  “Maybe, but it would have been impossible for somebody to have orchestrated everything else that happened. If Skipper really was set up, somebody had to have gotten Garcia upstairs or known he was coming, spiked the drinks, bound Garcia to the bed, planted semen from both of them and left the building without being caught—all in a crowded hotel right after a big campaign rally. It just doesn’t add up.”

  “You’re assuming, of course, that the same person orchestrated everything. Maybe more than one person was involved.”

  “I’ve thought about it,” she says. “If you start considering conspiracy theories, the permutations are endless.” She yawns and adds, “I’m too tired to try to work them out tonight.”

  “So am I. Would you do me a favor in the morning? My God, that’s only six hours from now. Would you stop at Natalie’s house on your way in? I think she’s going to need a lot of support in the next few days. I’m not sure Ann is up to it.”

  She says of course she will.

  39

  THE DAY OF RECKONING

  “It is the policy of the district attorney’s office to treat all employees with dignity and respect regardless of their gender, race, religion or sexual orientation.”

  —STANDARD CLAUSE IN LETTER FROM SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE TO NEW EMPLOYEES.

  Molinari, Ann and I have just told Skipper about the DNA report. We’re in the consultation room behind Judge Kelly’s courtroom, and his initial reaction is stony silence. Then he says, “What are our options?”

  “We can challenge the validity of the report’s findings,” I say. “I must tell you, however, that these tests are very reliable. You know that.”

  He doesn’t respond.

  “We can argue that the evidence was tampered with or planted,” Ed adds.

  Skipper sighs. “That won’t work,” he says. “They won’t buy it.”

  I’m glad he’s realistic about that. I tell him we can agree to stipulate that the semen found on the bed was, in fact, his.

  Skipper puts his elbow on the table and rests his chin in his hand.

  Ann breaks the silence. “Father,” she begins, then stops. “Daddy,” she says, “is there something we need to talk about?”

  Skipper sits up at last and looks her in the eye. “Yes, honey,” he says. “I’m afraid there is.”

  His explanation takes only a few minutes and he never takes his eyes off Ann. He says he and Natalie had stopped sleeping together over twenty years ago. They agreed that they would not divorce, but that they were both free to see other people. Skipper did so. Natalie didn’t. He says he had affairs from time to time but mostly sought gratification from prostitutes. About ten years ago, he developed a bondage fetish. With the advent of the Internet, he was able to satisfy most of his needs.

  Ann is looking down as she asks, “What does all of this have to do with a male prostitute?”

  “About six months ago, I began an experimental phase. I became interested in young men. I started turning to male prostitutes.”

  “And that’s how you found Johnny Garcia?”

  “That’s how I found Andy Holton. He posted pictures of male prostitutes on his Web site, Boys of the Bay Area. Johnny Garcia was the second one he provided. I had a private phone number that I would call. He took care of everything.”

  Molinari and I glance at each other. “Does Natalie know about this?” I ask.

  “Yes.”

  “Does anyone else?”

  “No.”

  Ann is grim. She swallows and struggles to find the correct words. “Daddy,” she says, “were you … safe? Did you … use protection?” She finally blurts out, “Did you use a condom, for God’s sake?”

  Skipper nods. He says he flushed it down the toilet.

  Ann heaves a sigh of relief.

  Molinari says, “You realize that this is now going to become a matter of public record?”

  “I understand.”

  “And you’re prepared for that?”

  “No.” He pauses. “But I have no choice.”

  He looks at Molinari, then turns to me. “I never hurt anybody,” he says. “I’m prepared to withdraw from the attorney general’s r
ace. But I didn’t kill that kid. I hired him to come to my room. I had sex with him. I handcuffed him to the bed. I taped his eyes and mouth. But I didn’t drug him and I didn’t put the tape over his nose. No way.”

  “What do you want us to do, Skipper?” I ask.

  “Stipulate to the fact that I had consensual sex with Garcia.”

  “I’ll go talk to Payne.”

  Molinari and I sit in Payne’s office a few minutes later. “I trust you received the DNA reports last night?” she says.

  “Yes, Hillary,” I reply.

  “Is your client willing to reconsider a guilty plea?”

  Keep the tone measured. “He didn’t do it, Hillary,” I say.

  She lowers her voice and tries to sound conciliatory. “Come on, Mike. Let’s stop the posturing. Let’s put all the cards on the table. Notwithstanding your attempts to discredit Nick Hanson, the jury has already accepted the fact that Skipper invited Garcia into his room. His fingerprints are all over the handcuffs and the tape. His fingerprints are on the champagne flutes.”

  “But, Hillary—”

  “Be reasonable, Mike.”

  “Hillary, he is now prepared to admit that he had consensual sex with Garcia. He’s humiliated and his life is in ruins. He has nothing left to hide. If he killed Johnny Garcia, I’d be in here begging you to cut a deal. He didn’t do it.”

  Her green eyes gleam. She looks like a panther. “Oh, come on,” she says. “His sexual escapades got out of hand. He handcuffed him. He taped his face. He killed him.”

  So much for the conciliatory tone.

  “It doesn’t make sense,” I say.

  “How do you figure?”

  “If he hired Garcia to have consensual sex, why would he have needed to drug him?”

  “Maybe Garcia changed his mind.”

  “So you think Skipper poured a glass of GHB-laced champagne down his throat?”

  “Who knows what turned him on? Maybe he liked to have sex with people who were unconscious.”

  “Why was there GHB in the other flute? Do you think Skipper drugged himself?”

  “I don’t know. Maybe he made a mistake and put it in both of them.”

  “That’s bullshit.”