MD02 - Incriminating Evidence

by Sheldon Siegel

  “Then prove it—put him on the stand to explain it.”

  I don’t respond.

  I reach Rosie on her cell phone a little while later. She’s gone to Natalie’s house. “Natalie won’t be coming to court today,” she says. “She isn’t feeling well.”

  “Can you talk?” I ask.

  “No,” she replies flatly.

  “Is she there with you?”

  “Yes.”

  “I have to go see Judge Kelly in a few minutes,” I say. “Can you stay with Natalie? She shouldn’t be alone.”

  “Sure.”

  “We’re going to stipulate to the fact that Skipper had sex with Garcia.”

  “Got it.”

  “I’ll call you later.”

  We’re meeting in Judge Kelly’s chambers. She delayed the proceedings when I requested a conference before the jury was brought in. “I’ve seen the DNA report,” the judge says. “Do you plan to contest it?”

  “No.”

  She raises an eyebrow. “You’re going to stipulate that your client had sex with Johnny Garcia that night?”

  “Yes. And we want to do it as quickly as possible.”

  We discuss the logistics of having a stipulation read into the record. We agree to have the DNA report entered into evidence.

  Judge Kelly glares at me and says, “I would encourage you to discuss a plea bargain with the prosecution.”

  “Judge Kelly,” Payne interjects, “we have attempted to do so.”

  I say, “The prosecution has not offered anything that would be acceptable to Mr. Gates, Your Honor.”

  Payne feigns exasperation. “We’ve told the defense from the beginning that we would agree to second degree with a recommendation of a lenient sentence,” she says. “It’s a very good deal.”

  Judge Kelly looks thoughtful. “I may be speaking out of turn here, Mr. Daley, but if I were to persuade Ms. Payne to offer you a plea bargain for voluntary manslaughter, would you be prepared to recommend it to your client?”

  Tough call. “I’m prepared to deliver such a proposal to my client,” I say.

  “You have to deliver the proposal to your client,” Judge Kelly says. “The critical question is whether you are prepared to recommend it.”

  I stop to consider for what seems like a long time. The chambers are completely silent. The minimum sentence for first-degree murder is twenty-five years to life; second degree is fifteen to life. The minimum sentence for voluntary manslaughter can be as short as three years but could be as long as eleven. In any event, it’s a far better deal than I ever thought we might get. I look at Molinari, who purses his lips. “I will deliver it to my client,” I say, “but I won’t recommend it.”

  Payne’s narrow shoulders droop.

  Judge Kelly sighs. “You seem determined to proceed with this trial, Mr. Daley. I guess we’ll see you in court at one o’clock. I’ll expect to see a draft of your stipulation by noon.”

  Molinari pulls me aside in the corridor. “What were you thinking in there?” he asks.

  “About what?”

  “About the plea bargain. Why won’t you recommend voluntary manslaughter? He could be out in three years.”

  I look into his eyes. “I don’t think he did it, Ed.”

  He takes a half-step back. “You believe him?”

  “Yes.”

  “Are you out of your mind?”

  “He’s already lost everything, Ed. He’s been confronted with the truth about his relationship with Garcia. He’s given up on the election. If he killed him, he would be trying to cut a deal for a plea bargain now.”

  “Do you really think you can win this case?”

  “I do.”

  “Are you serious?”

  “Yes, I am. There was far too much at stake. He took a huge risk to invite Garcia to the hotel. It would have been suicidal for him to have drugged Garcia and killed him. There were too many other people around. And we know that Morris, Parnelli, Holton, Anderson and Turner were at the hotel after Garcia arrived. It isn’t a big leap for the jury to blame somebody else, or at least get to reasonable doubt.”

  “That’s it?”

  “That’s it.”

  “I hope to hell you’re right.”

  Natalie is sitting in the armchair in her living room, a faraway look in her eyes. Rosie leans forward as she says to her, “So you knew about Skipper’s relationships with the male prostitutes?”

  “Yes. I tried to get him to agree to counseling. He refused.”

  “How long have you known?”

  “About female prostitutes, at least ten years. He started seeing males only a short time ago, however. He used to make all the arrangements from pay phones. He never used the phone in the house or his cellular. He was very concerned about privacy.”

  I’ll bet.

  “I didn’t know what to do,” she says. “I couldn’t leave him. For all of his faults, I still love him very much—I simply could not destroy him or what’s left of our family.” She turns back to me and asks, “What would you have done?”

  I look at Rosie and I say, “I don’t know, Natalie.” I can’t begin to imagine the magnitude of the pain she has suffered.

  Rosie asks who else knew about this.

  Her lips quiver. “As far as I know, just Prentice and me.” She pauses for a moment. “And Andy Holton, who made the arrangements, and of course Johnny Garcia. He was Prentice’s choice.”

  “What about Turner?” I ask.

  “No,” she says. Then she adds quickly, “Why should he?”

  Indeed. It’s none of his business and Skipper said he didn’t know, yet I sense she’s defensive. That’s strange. Turner has been close to her, but why would she protect him? “Did you know that Skipper was going to invite Garcia up to his room that night?” I ask.

  “Not until I saw the bottle of champagne. Then I knew. He always started with a bottle of champagne.”

  This is curious, too. When I asked Turner who had ordered the champagne, he said he did. And he also said that room service was supposed to bring more glasses but had made a mistake. “Did he ever drug any of the prostitutes with whom he had relations?”

  “Not as far as I know.”

  Rosie asks, “Do you know how the handcuffs and dirty magazines got into his study?”

  “He brought them, I presume.”

  “And you knew they were there?”

  “Yes.”

  Great.

  “Did you know about the materials they found in the storage locker?”

  She hesitates before she says, “I didn’t know.”

  Rosie folds her hands. “Mike has to be in court now, Natalie, but I’d like to stay here with you. It’s been a rough day.”

  “Thank you,” she says.

  The afternoon session doesn’t take long. Judge Kelly explains to the jury that DNA tests have been conducted on the semen found on the bed in Room 1504 at the Fairmont. She asks Payne to read the stipulation into the record. It says that the defense stipulates that it will not challenge the results of the tests, which concluded that Skipper’s semen was found as well as Garcia’s. It also says that the defense does not contest the prosecution’s contention that Skipper engaged in consensual sex with Johnny Garcia.

  After Payne finishes reading the stipulation, the courtroom becomes silent. The jurors turn their eyes to Judge Kelly. “I’m going to adjourn for the day,” she says. “I have some other matters that I must attend to this afternoon.” She turns to Payne. “How many more witnesses, Ms. Payne?”

  “Just one, Your Honor.”

  She’s going to call Elaine McBride to pull their entire case together.

  “We’ll be done by the end of the day tomorrow,” Hillary says.

  Perfect. They’re going to put on their strongest witness on a Friday. Unless I miss my guess, she’ll finish up late in the afternoon. Just in time to give the jury the entire weekend to think about what she’s said.

  40

  INSPEC
TOR MCBRIDE

  “I’ve always had an aggressive philosophy about law enforcement. The criminals need to know you’re serious.”

  —INSPECTOR ELAINE MC BRIDE. SAN FRANCISCO CHRONICLE. FRIDAY, OCTOBER 22.

  “My name is Elaine McBride. I’m a homicide inspector with the San Francisco Police Department.”

  It’s nine A.M. Hillary Payne has conducted a tight prosecution: short, sweet and to the point. She has kept her promise to Judge Kelly that she would finish her case in just one week. The jury is still interested. Bill McNulty should be proud. His protégée has put on a textbook performance.

  Payne walks McBride through her credentials. I interrupt from time to time. Finally, Payne asks her what time she arrived at the Fairmont on Tuesday, September seventh.

  “Seven-twenty A.M.” She says she was escorted to Room 1504 by the Fairmont’s security personnel. Roosevelt Johnson joined her a few minutes later.

  “Would you please describe what you found at the scene?”

  They’ve rehearsed their presentation. “The uniformed officers had secured the scene,” she says. “The body was still on the bed. The coroner’s unit had been called.” She points to a chart of the fifteenth-floor room on an easel in front of the jury. She shows where the body was found. She points to the nightstand. “Here’s where we found the duct tape that the defendant used to suffocate the victim, Johnny Garcia.”

  “Objection. Move to strike. There is no foundation for Inspector McBride’s conclusion that the duct tape was used to suffocate the victim.” It’s a legitimate objection. It’s also an attempt to break up their rhythm.

  “Sustained. The jury will disregard Inspector McBride’s conclusion that this duct tape was used to suffocate the victim.”

  Sure they will. Payne rephrases the question. McBride restates her answer, leaving out the conclusion this time.

  Payne asks what happened next.

  McBride describes her interviews with Joseph Wong, the police at the scene and the paramedics and the technicians from the coroner’s office. She says that Garcia was pronounced dead at the scene at seven twenty-five. “We talked to the building security guards. We prepared lists of everyone who had been present on the fifteenth floor that night.”

  “Did you interview the defendant?”

  “Yes.”

  “Could you describe his demeanor?”

  “Agitated and confused.”

  “Was he belligerent?”

  “Objection. Leading.”

  “Overruled.”

  “Yes, he was. The defendant was very upset.”

  I steal a glance at Skipper, who nods to himself.

  “When did the defendant become a suspect?”

  “Immediately. He was at the scene. He had no explanation as to how the victim got into his room. He had no explanation for how the victim died. He was uncooperative.”

  “Move to strike. Inspector McBride is commenting on the defendant’s state of mind.”

  Judge Kelly is unimpressed. “Overruled.”

  Payne walks toward the evidence cart and turns to McBride. “Inspector,” she says, “I’d like to take a few minutes to ask for your assistance in identifying some of the physical evidence found in Room 1504 of the Fairmont that night.”

  “Of course, Ms. Payne.”

  Molinari whispers into Skipper’s ear. I can make out the words “Stay calm.”

  Payne starts with the first set of handcuffs, wrapped in plastic. She hands them to McBride and asks her to identify them.

  “These are the handcuffs found on Johnny Garcia’s right wrist,” she says, “which was handcuffed to the bedpost.” They go through a similar exercise for the three other sets of handcuffs that were used to bind him. Then Payne leads her through an identification of every piece of evidence found in Room 1504: the duct tape, the handcuff key, the champagne flutes, the champagne bottle, the fingerprints on the phone and the doorknob. They go through the telephone records from Room 1504. I object from time to time. I remind Judge Kelly that all of this evidence has already been introduced. It’s an exercise in futility.

  At a quarter to twelve, Skipper leans over to me and says, “We’re getting killed.”

  “Be quiet,” I say.

  At noon, Judge Kelly asks Payne if she’d like to take a break.

  “Yes, Your Honor,” she says. “We’re almost done. We should finish early this afternoon.”

  “All rise.” Judge Kelly’s courtroom is called to order after lunch. The shuffling in the gallery stops. The A-list reporters are here. They’re waiting for Hillary’s wrap-up.

  McBride returns to the stand. Judge Kelly reminds her she’s still under oath. Then she nods to Payne, who is standing at the lectern.

  “Inspector McBride,” Payne begins, “were you present at the Pacific Heights residence of the defendant when it was searched on Tuesday, September seventh?”

  “Yes.”

  “Would you mind describing what was found?”

  “Objection,” I say. “All of the materials found at Mr. Gates’s home have already been introduced into evidence.”

  “Overruled.” Judge Kelly glances at Payne. “Let’s keep things moving, Ms. Payne.”

  Hillary nods. She leads McBride through a brief description of everything found in the study: the handcuffs, the pictures of the bound prostitutes, the copies of Hustler, the bookmarked Web sites. For good measure, she takes her through a detailed inventory of the photos and magazines found in Skipper’s storage locker. Although they have heard most of this before, the jurors look very troubled.

  The afternoon session wears on. Payne keeps lobbing Softball questions to her and McBride keeps slamming home runs. She describes her interviews with the people who attended the summit conference. They go into further detail on the items found in Skipper’s storage locker. They paint a portrait of Skipper as a pervert. Finally, at a quarter to three, Payne steps back to the lectern and asks McBride to summarize her conclusions for the jury. I object on the grounds that the question is speculative. Judge Kelly overrules my objection.

  McBride looks at the jury and says, “I believe the defendant lured Johnny Garcia, a seventeen-year-old male prostitute, into his room at the Fairmont. I believe he drugged him, handcuffed him to the bedposts and covered his eyes, nose and mouth with duct tape. I believe he engaged in sex with the victim while the victim’s eyes, nose and mouth were covered with tape. The victim died of suffocation in that room that night.”

  Then Payne turns to Judge Kelly. “No further questions, Your Honor.”

  I stand up immediately. The last thing I need right now is for the judge to decide to recess until Monday. I don’t want the jury to have two days to think about McBride’s testimony. I walk past the lectern and position myself in front of her. I want to get right in her face.

  “Inspector McBride,” I begin, “you said you arrived at the Fairmont at seven-twenty A.M. on September seventh, and you said Mr. Gates was agitated and confused.”

  “That’s correct.”

  “Yet he answered all of your questions, didn’t he?”

  She hesitates and says, “Grudgingly.”

  “And if he answered all of your questions, Inspector, it’s fair to say that your characterization earlier of Mr. Gates as uncooperative and belligerent was not entirely accurate, right?”

  She sighs. “Mr. Gates answered our questions only after he concluded that he had no other choice.”

  “Move to strike. State of mind.”

  The judge tells the jury to disregard McBride’s statement. McBride then acknowledges that Skipper did, in fact, remain in the room and provide the police with a full description of the events of that night. It’s not a huge point, but it helps. “And did it occur to you that Mr. Gates may have appeared agitated and confused, and perhaps even belligerent, because he had been drugged?”

  McBride is indignant. “It did not appear to me that the defendant’s demeanor was consistent with that of an individual who had been
drugged.”

  It’s the answer I expect, but it still gives the jury something to think about. I get her to say that she did not request that Skipper take a drug test after he was arrested. “Inspector McBride,” I continue, “you have testified that you found his fingerprints on the handcuffs and the duct tape used to bind Johnny Garcia.”

  “That’s also correct.” She acknowledges that nobody saw Skipper put the handcuffs on Garcia, and that he may have gotten his fingerprints on them when he tried to remove them. It’s a small victory and I don’t belabor it—the jury has heard a lot about the handcuffs already.

  We volley for about an hour about the evidence found in Skipper’s room. For the most part, McBride doesn’t give an inch. We argue about the handcuff key. She insists that the champagne glasses show that Garcia sipped champagne spiked with GHB.

  “Inspector,” I say, “you have concluded that Mr. Garcia was unconscious, right?”

  “Yes.”

  “And Mr. Gates drugged him in order to induce him to have sex.”

  “That’s true.”

  “Yet we know that Mr. Garcia entered Mr. Gates’s room voluntarily and Mr. Gates had made arrangements to have sex with him.”

  “That’s true, too.”

  I give her a puzzled look. “Inspector, if the victim, Johnny Garcia, had come to Mr. Gates’s room and they had already agreed to have sex, why in the world would Mr. Gates have needed to drug him?”

  “Objection. Speculative.”

  “Sustained.”

  It’s a legitimate objection. I decide to go just one step further. “If they had agreed to engage in voluntary sex, Inspector, why would Mr. Gates have given him a narcotic that causes unconsciousness?”

  “Objection. Speculative.”

  “Sustained.”

  I glance toward the defense table. Skipper is nodding. Molinari remains stoic. Rosie scratches her left ear. It’s time to move on.

  We pound on each other for the rest of the afternoon. I challenge the handling of the evidence. I ask whether McBride had seriously considered any other suspects.

  “All of the evidence pointed toward Mr. Gates,” she insists.