Serve and Protect (Mike Daley/Rosie Fernandez Legal Thriller Book 9)

by Sheldon Siegel

  “Right.”

  “But you’re saying that the gun was still in his hand as he pulled himself over the fence?”

  “I believe so.”

  Don’t equivocate, Charlie.

  “You recorded the events in the parking lot on your body cam, right?”

  “Right. As I mentioned, we couldn’t see Officer Bacigalupi or the perpetrator because they were behind a postal van.”

  “You heard Juwon tell the defendant that he was unarmed, right?”

  “He was lying.”

  “He said it three times. The audio was recorded on your body cam.”

  Connor tried to sound more forceful. “He was lying.”

  “You’ve watched the video, right?”

  “Right.”

  “You can see Juwon’s hands above the roof of the postal van, can’t you?”

  “Yes.”

  “And you would agree that there was no gun in either of his hands, right?”

  “Right.”

  “If there was no gun in his hands, why did Officer Bacigalupi shoot him?”

  “He was reaching for a gun.”

  “So you say.”

  “You think I’m making it up?”

  “As a matter of fact, I do.”

  “Objection,” I said. “Mr. Harper is testifying.”

  “Sustained.”

  Harper returned to his seat. “No further questions, Your Honor.”

  “Redirect, Mr. Daley?”

  “Just one question. Officer Connor, just so we’re clear, did you see a gun in Mr. Jones’s hand when he ran in front of your unit and then climbed over the gate into the parking lot?”

  “Yes.”

  “No further questions.”

  The judge looked at his watch. “I’m going to recess until ten o’clock tomorrow morning. Do you plan to call any more witnesses, Mr. Daley?”

  “Just one, Your Honor.” I looked at Johnny. “We plan to call Officer Bacigalupi.”

  62

  “JUSTICE IS ELUSIVE”

  Johnny’s hands were clasped, eyes red. “You said I wasn’t going to testify.”

  “Change of plans.”

  Johnny, Luca, and I were sitting around a dented table in the sweltering consultation room down the hall from Judge Ramsey’s courtroom. Nady had gone to the office to begin preparations for tomorrow. Rosie had returned to the P.D.’s Office.

  Luca’s expression was grim. “What made you change your mind?”

  “We aren’t going to get the charges dropped based on today’s testimony. The burden of proof is low, and the judge is required to give the prosecution the benefit of the doubt. We have nothing to contradict the video showing Jones with his hands up.”

  “Three cops testified that he had a gun.”

  “It should get us to reasonable doubt at trial, but it won’t stop the proceedings now.”

  “Why put Johnny on the stand?”

  Because I don’t have any better ideas. “If Johnny is convincing enough, the judge may rule in our favor. If not, maybe the prosecution will come to their senses and drop the charges—or reduce them.”

  “What are the chances?”

  Not great. “Hard to say.”

  “Why didn’t you ask for bail again?”

  “That would have suggested that I thought the judge was going to rule in favor of the prosecution.”

  Luca nodded.

  I turned to Johnny. “In the morning, I’m going to ask you three questions. First, did Jones have a gun when he got out of the car? Second, did he have it while he was running down the street? Third, did he still have it in the parking lot? The correct answers are yes, yes, and yes.”

  “Got it.”

  “Try to get some sleep. I’ll see you in the morning.”

  ✽ ✽ ✽

  “When was the last time you slept?” I asked.

  Nady took off her glasses. “Probably around the same time that you did.”

  The conference room in Luca’s office was quiet at eight o’clock on Monday night. The TV was tuned to CNN, the sound down. Anderson Cooper was standing under the awning in front of a currency exchange on Fillmore. Rain pelted his windbreaker as he reported that things were calm—for now.

  I gulped down the remnants of my Diet Dr Pepper. “If you keep this up, you’re going to burn yourself out.”

  She smiled. “I don’t think so. I take a lot of vacations.”

  “Millennials.”

  Her grin broadened. “You Boomers blame us for everything from short attention spans to global warming. Look in the mirror. You went to college and bought your houses on the cheap. You’ve started a bunch of wars and destroyed the environment. Then you killed the economy when we were getting out of college. Thanks for dumping your trash on us.”

  Guilty. “For what it’s worth, I think you have a legitimate point that our stewardship of the world has been somewhat less than exemplary.”

  “We’re going get the last laugh. We’re going to inherit all of your money.”

  Yes, you will. “Not gonna happen. We’re going to spend it all on ourselves.”

  “Like you’ve been doing for the past fifty years?”

  “Pretty much.”

  She turned serious. “How is your closing argument coming along?”

  “Not bad.”

  “What’s the narrative?”

  She was a quick study. “Self-defense.”

  “You can’t see a gun in Jones’s hand in the video on the street or in the parking lot. He told Johnny that was unarmed—three times.”

  “Three eyewitnesses testified that he had a gun. Johnny will make four.”

  “They’re all cops.”

  “The judge may be reluctant to rule that they were all lying.”

  “Don’t be so sure. And they’re all white.”

  “Doesn’t matter.”

  “Yes, it does.”

  Yes, it does.

  “Are you really going to put Johnny on the stand?” she asked.

  “If I can’t come up with anything else.”

  “You think it will help?”

  “Some.”

  “Enough to get the charges dropped tomorrow?”

  “Probably not. The prosecution’s burden of proof is low.”

  She exhaled. “How do you deal with this stuff?”

  “I’ve been doing it for a long time.”

  “I’m serious, Mike. Everybody thinks our client is guilty. There are riots in the streets. People are burning cars and throwing rocks. You’re getting annihilated in the papers and on cable. Doesn’t it make you a little crazy?”

  Yup. “This isn’t a popularity contest. I can’t worry about what’s going on outside. I try to focus on doing my best for Johnny.”

  She wasn’t convinced.

  I tried again. “You saw how it went in court. This isn’t like a real estate contract that you edit a thousand times. Defense work is a combination of improvisational theater and making sausage. You make judgments on the fly and keep adding new ingredients. If everybody in court does their job and respects the process, there’s a reasonable chance that you’ll end up with a decent result.”

  “You really believe that, don’t you?”

  Most of the time. “Yes.”

  “What about justice?”

  “Justice is elusive.”

  “What about O.J.?”

  “We don’t always get it right.”

  “Are you going to be able to get it right this time?”

  I answered her honestly. “I don’t know. If not at the prelim, we’ll have another chance at the trial.” I looked across the table. “For what it’s worth, you’d make an excellent defense attorney. You’re smart, strategic, and practical. And Lord knows, you’re willing to work hard. Let me know if you’d like to give it a try. You aren’t going to get rich or famous, and you’ll work harder than you’ve ever worked, but the experience is unbelievable, and you’d be making a difference.” I gave her a knowing look
. “And it beats pushing paper all day.”

  “I’ll think about it.”

  Pete’s name appeared on my iPhone. I hit the green button and said, “This would be a good time for you to provide some information that would help our case.”

  “How soon can you get down to the Fillmore?”

  “Twenty minutes.”

  “Meet me in the backroom of the Boom-Boom Room. Make sure that nobody is following you and come in through the alley.”

  “Is Gio with you?”

  “No.”

  Uh-oh. “What’s going on, Pete?”

  “Dwayne wants to talk to us.”

  “The homeless guy from the plaza?”

  “There’s more to the story.”

  The line went dead.

  Nady eyed me hopefully. “Your brother?”

  “Who else? I need to get down to the Fillmore.”

  “I’ll come with you.”

  “It could be dangerous.”

  “My mother and I got chased out of Uzbekistan when I was four years old with no money in our pockets and just the clothes on our backs.”

  And I complain when the internet goes out for ten minutes. “Get your jacket and umbrella. Let’s go see if we can make some sausage.”

  63

  “A WIN FOR EVERYBODY”

  Dwayne eyed me with suspicion. “Did anybody follow you?”

  “No.”

  He was sitting at the manager’s desk in the cramped backroom of the Boom-Boom Room at eight-thirty on Monday night. Pete was guarding the door. Nady was sitting next to me. The floor vibrated from the pulsating sound of a hip-hop band.

  I looked at my brother. “Why isn’t Gio here?”

  “He can’t be here.” He didn’t elaborate.

  The door opened, and Roosevelt entered. “Dwayne.”

  “Inspector.”

  Roosevelt closed the door behind him and stood guard—as if somebody else could have squeezed inside. “I understand that you have some information for us.”

  “I might.”

  Too coy for me. “Do you and Inspector Johnson know each other?”

  “We’ve met.”

  I looked at Roosevelt, who held up a hand. I waited.

  Dwayne pulled out a throwaway “burner” phone and placed it on the desk. “I took this video on the morning of February ninth.”

  Pete, Nady, and I leaned over to watch. Roosevelt looked over my shoulder.

  Dwayne pressed the Play button. The video was grainy. There was no audio. I recognized the plaza. A tall African-American man sprinted across the screen. Dwayne stopped the video.

  “Jones?” I asked.

  “Yes.” He restarted the video and stopped it a second later. He zoomed in on Jones’s right hand. “You can see a handgun.”

  I wasn’t going to disagree.

  Roosevelt took off his glasses and studied the frozen shot. He didn’t say anything.

  “There’s more,” Dwayne said.

  He continued the video. Just after Jones ran by the Subway, he skidded on the wet bricks, lost his balance, and fell face-first to the ground. He got up, looked around for an instant—as if he had dropped something—and then continued out of sight.

  I looked at Dwayne. “He dropped the gun.”

  “Looks like it.”

  He pressed Play again. We watched Johnny sprint across the plaza, weapon drawn. He ran by the Subway, turned onto Fillmore, and disappeared. Twenty seconds later, Murphy lumbered by. He stopped beneath the Subway sign, kneeled, and reached down. He picked up an object and put it into his pocket. Then he, too, disappeared into the night.

  Dwayne hit the red Stop button. We stared at each other in silence as the music pounded through the walls.

  I finally spoke up. “This proves that Jones had a gun.”

  Dwayne nodded. “Yes, he did.”

  “He dropped it near the Subway. Johnny ran by it without seeing it. Murphy stopped and picked it up.”

  “So it seems.”

  Roosevelt cleared his throat. “If that’s the gun that they allegedly found under Jones’s body, it proves that your client shot an unarmed man.”

  “Johnny didn’t know that Jones had dropped the gun.”

  “Jones told him that he was unarmed—three times.”

  “Johnny had a legitimate belief that Jones was lying.”

  “It doesn’t explain how the gun got under Jones’s body.”

  I was happy to throw somebody other than Johnny under the bus. “Murphy planted it.”

  “You don’t know that.”

  “He was the last person to have the gun in his possession.”

  “You don’t know that, either. Johnny must have known that Murphy planted it. Or maybe Murphy gave it to him and he planted it himself.”

  “You won’t be able to prove it.”

  “We’ll lean on Murphy. He’ll roll on your client if we offer him immunity.”

  That’s a potential problem. “The D.A. will never give immunity to a cop who planted a gun and lied about it in court.”

  “She might.”

  No, she won’t. “Either way, this is a game changer. Johnny thought that Jones still had the gun when he shot him. He was acting in self-defense—or at least he thought he was. It takes the murder charge off the table.”

  “You’ll need to have that conversation with our D.A.”

  Yes, I would. “Siragusa and Connor testified that Jones was holding a gun when he ran by them. We now know that Jones dropped it beforehand. It means that they were lying under oath. That’s perjury and obstruction of justice.”

  Roosevelt’s eyes narrowed. “Maybe they were mistaken. All we know is that Jones dropped a gun, and Murphy picked it up.”

  My mind went into overdrive. The video resolved the issue of whether Jones had a gun when he fled. But it also proved that Jones didn’t have it when Johnny shot him, but Johnny didn’t know it. If Johnny reasonably believed that Jones was still armed and was reaching for a gun, we had a strong case for self-defense.

  We would also have to deal with the fact that the gun must have been planted. We would argue that Murphy planted it. Murphy would argue that Johnny planted it. The D.A. would argue that they conspired to plant it. Johnny was still at risk on charges of filing a false police report and obstruction of justice. Murphy was already guilty of the former and almost certainly guilty of the latter. And Siragusa and Connor were possibly guilty of perjury and obstruction, although their lawyers would argue that they were simply mistaken about seeing a gun in Jones’s hand.

  Bottom line: it was hard to envision a scenario where all of the cops would get through this unscathed, but I was concerned about only one: Johnny.

  I turned to Dwayne. “We’ll need to provide this video to the D.A.”

  “Fine.”

  “And we’ll need you to authenticate it and testify.”

  “I can’t do that.”

  “Why not?”

  “It’s complicated.”

  “We can subpoena you.”

  “You won’t be able to find me.”

  “We’re very resourceful.”

  “We’re more resourceful.”

  What the hell? “I take it that your name isn’t Dwayne?”

  “No, it’s not.”

  “And you’re not really homeless?”

  “Let’s just say that I have another job.”

  “FBI?”

  “Could be.”

  “Why are you talking to us?”

  “I’m trying to make sure that the truth comes out.” He pointed at Pete. “Your brother and Assistant Chief Bacigalupi figured out that I wasn’t just another homeless guy. In exchange for not blowing my cover, I agreed to talk to you.”

  Pete’s expression didn’t change. I would find out how he managed this later tonight. “And Inspector Johnson?”

  “My superiors determined that it would be advisable to talk to people on both sides of this case. We’re trying to avoid compromising a three
-year investigation of one of the biggest heroin distributors on the West Coast. If our covers are blown, our investigation will implode, and there’s a good chance that some dedicated law enforcement officers will die—including me. I trust you can see why we’d like to avoid that scenario.”

  “I can.”

  “Now you understand why I can’t appear in court.”

  “You should be talking to the D.A.”

  “We don’t trust her.”

  Neither do I.

  Dwayne was still talking. “We decided to talk to you first. Your brother has a reputation as a stand-up guy. So does Inspector Johnson. And so do you.”

  Good to hear it. “You should have been coordinating with SFPD.”

  “We can’t.” He glanced at Roosevelt. “Some cops are dirty.”

  “Why haven’t they been arrested?”

  “We’re still building our case. We plan to announce arrests of major drug players and some people in law enforcement in the next few months.”

  “If you can’t testify, this doesn’t help my client.”

  “This video does. Take it to the D.A. and cut the best deal that you can. This should be enough to persuade her to drop the murder charge.”

  “She’s going to need verification of the legitimacy of this video.”

  “That’s why Inspector Johnson is here. He’ll have to handle it.”

  I turned around and looked at Roosevelt, who nodded.

  Dwayne wasn’t finished. “The events of the past week have jeopardized our operation. Some of our suspects have left town. Having an army of cops, National Guard, and protesters in our territory is making our job harder. I’m willing to give you the video, but you need to keep us out of it. If you do your job, my people will stay safe, the bad guys will be arrested, the truth will come out, and your client won’t go to jail for murder.”

  “There’s no guaranty that I can persuade the D.A. or my client to accept a deal.”

  “I hear that you’re a very good lawyer.”

  “What’s to prevent me from revealing your identity to the D.A.?”

  “Nothing, but we’ll deny everything and say that you made the video yourself. Then you and your client will be in worse shape than you are now. Your client will be tried for murder, and you’ll be charged with manufacturing evidence. I suspect that you’d like to avoid that scenario.”

  “We would. I could give the video to Jerry Edwards at the Chronicle.”