by Steven Gore
“The court clerk’s office opens at 8:00 A.M. Why don’t you come by my chambers at 8:15?”
CHAPTER 26
Donnally arrived at the door to Judge McMullin’s chambers in the Hall of Justice at 7:55.
McMullin stepped out of the elevator halfway down the hallway four minutes later.
“You’re early,” McMullin said, walking up.
The defensive edge in McMullin’s voice made him sound as though he’d intercepted the judge on his way to commit a burglary.
Donnally handed him one of the two cups of coffee he’d purchased at the café across the street.
“There are some things I need to take care of in L.A. in the next few days, so I thought I’d get an early start here in case we find something today to go on.”
McMullin gave him a narrow-eyed gaze as though he wasn’t sure whether to believe Donnally, then turned away and unlocked the door.
And Donnally wasn’t sure he believed himself.
Donnally had woken up with the suspicion, distant and faint, that the judge might want to destroy some of his notes, if there were any to be found, ones that might suggest he’d recognized even during the trial that a miscarriage of justice was occurring.
As he was driving over to the Hall of Justice, Donnally followed that hypothesis to its conclusion. For the judge, discovering through Donnally’s work something that had become meaningful with the passage of time and succeeding events would be psychologically safer than the recognition that he’d known it all along and had been afraid to act on it when it would’ve made a difference.
It had been the judge himself who’d admitted that since he’d been new on the bench, he felt he needed to prove himself, to prove, in his words, that he could pull the trigger. But the question now, in the judge’s mind and in Donnally’s, was whether or not that trigger pulling—that sentence of death and the execution that followed—would be justifiable homicide.
Donnally followed McMullin inside.
The judge set his cup on the desk and called the clerk’s office to have the file, including the sealed portions, delivered.
As they sat drinking their coffees and waiting, the judge said, “If you don’t mind my asking, have you made any progress figuring out what’s going on with your father?”
Donnally shook his head, wondering whether the judge was seeking a diagnosis by proxy.
“That’s why I want to go down there. It’s not urgent. He’s still months away from his film’s release date, so there’s no danger yet of him embarrassing himself in theaters or the press.”
“Is that what you’re worried about?”
“No, but it’s the kind of thing he’d worry about. It’s his world.”
“But he’s not worried about it now?”
Donnally wasn’t sure.
If Janie was right and his father was hiding the truth from himself, then no, his father wasn’t worried. Or at least not consciously worried.
If Janie was wrong, then his father would be desperate to outrun the disease in getting the picture finished and into the theaters before he lost the last bit of control over himself and his life.
Maybe his father was even playing the role of Alzheimer’s larger than it was, exaggerating the symptoms in order to engender forgiveness from his investors or sympathy from the public if the film turned out to be a disaster.
“He doesn’t sound worried,” Donnally said, keeping his thoughts to himself, even the ones he had about the judge and whether his sealed notes would be more dangerous to his sense of self-worth and self-confidence than just the test of his memory they might represent.
A knock drew their attention to the door. A clerk entered. She set the folders on his desk and handed him a file request form, already filled out, but for his signature. He signed it and handed it back.
The judge waited for the door to close behind her, then opened the one marked confidential. He looked inside, drew back as though surprised, and then removed a manila envelope that was taped shut, stamped “SEALED,” and marked as “Judge’s Notes.”
He stared at it at length, breathing in and out, as though preparing to begin an ascent. Donnally wondered whether the delay arose from a fear of what might be contained in those notes, what they might reveal about his memory and judgment, his sense of himself, that had blocked him from checking about the notes when Donnally had asked him to.
McMullin finally reached for his letter opener and slit the envelope open along the top. He withdrew about twenty loose pages torn from a legal pad, then looked inside and pulled out three scraps of paper. He read one to himself and smiled.
“I remember this.” The judge held it up. It was a restaurant receipt. “This is from Bucci’s across the bay. It’s on the day I ran away. Back then, it was a great spot to hide out.”
Donnally knew the restaurant. A low-key place in what was once the industrial district of Emeryville near the western anchorage of the Bay Bridge. Red brick. Concrete floors. Italian food and local wines. Now all the surrounding warehouses, factories, and steel mills had been converted or torn down, replaced by high-tech offices, with severe shapes and huge windows, but back then, the judge was right, it was a place of escape.
The receipt offered more evidence to Donnally that he’d been right, that McMullin had spent his whole career in hiding, starting from that day.
The judge could have said it had a great wine selection or was an excellent place to eat. But he didn’t. He’d said hide.
“That was when I suspended the trial so that Dominguez could talk to his lawyer.” The judge pointed at a handwritten telephone number and a few words written on the back. “This must be Paul Ordloff’s and this is the note I wrote to myself to call him and offer him a second day if he wanted. It was after the bailiff heard Dominguez crying.”
“Did he take it?”
“You’d have to check the docket; I don’t think so, but I’m not sure. I do remember that Ordloff was in a hurry to get it over with, and not because he had some other trial to start. Court-appointed capital cases were all that Ordloff and that crew did. Had them lined up like train cars, one after another, every six months. The judges always accommodated their schedules in setting trial dates.”
The judge paused. His vision seemed to turn inward.
“It was the psychological burden that finally got to all those serial death penalty attorneys. The muck of cases like that. Lawyers get sucked down into it. Years preparing for trial. Three months spent picking a jury. The evidence against their client was usually overwhelming. The defendants almost all had horrendous childhoods—abuse, neglect, early malnutrition—every bit of which the lawyer had to pick through, and live with and have nightmares about, trying to find mitigation for the crime.”
McMullin bit the inside of his cheek, then shook his head.
“No wonder some of these lawyers begin thinking the defendant was more of a victim than the person he murdered. It’s crazy, but I can see how it happens and it clouds their judgment.”
“Like Ordloff?”
McMullin nodded. “Some of them even cry during their closing arguments at the end of the penalty phase, real tears. And the pressure during trial is enough to break anyone. Can’t let their attention waver. Can’t fail to make a motion or fail to make an objection or an appellate lawyer down the road will trash him and make him look incompetent. And if the case does get overturned for ineffective assistance of counsel, even because of a half second of inattention in a six-month trial, it would be reported in all the legal papers and he’d get referred to the state bar for discipline. Humiliating.”
Donnally had the feeling the judge was either seeking some kind of reflected sympathy, for the attorneys were not alone in getting sucked into the muck, or seeking a way to delay having to read through his notes and confront what was there.
Then it struck him that not just Ordloff, but McMullin himself had been on trial throughout the appeals. His evidentiary rulings, his jury instructions, his e
very comment, recorded by the stenographer, could, like the spontaneous admission of a criminal, be held against him.
Donnally wondered whether the judge appreciated the courage he was now displaying. Remaining silent about his doubts, not calling Donnally, letting Dominguez go to his death, would’ve put his own trials to an end.
Yet here the judge was, stepping into the crosshairs—almost.
Donnally pointed at the pages. “You want to go through those together?”
The judge looked down and exhaled as though fearing a diagnosis he was about to receive from an oncologist, then looked up again.
“Maybe you should have your own copy.”
The judge rose and turned to the printer-copier on the credenza behind him, fed in the pages and copied the loose scraps, and handed them to Donnally.
The judge looked at his watch, then pointed toward the hallway.
“I’ve got a settlement conference to take care of. I’ll do it in the courtroom. You can stay here.”
Donnally stood up. “Mind if I take them with me?”
The judge shook his head. “Just keep them close. And not just for the sake of what may be in there, but also for the sake of the confidentiality judges need so that the notes they leave to themselves will be truthful and not calculated to protect their reputations down the road.”
Donnally followed McMullin partway down the private hallway running between the judge’s chambers and the courtrooms, then cut away and out through a door leading to the elevators.
He thought about McMullin’s last comment on the ride down, wondering whether the judge, perhaps having doubts about his rulings even during the trial, had used those notes to create a record that couldn’t be used later to embarrass him.
Donnally stepped out of the elevator on the first floor and against the flow of lawyers and their clients trailing them.
Just like when he was sitting in the 44 Double D Club in North Beach, he separated them into categories as he passed by. Those swaggering in hoodies and low-hung jeans, those pale and dry-mouthed, and those who disguised their criminality in suits and skirts. All en route to the courtrooms above seeking . . .
What?
A Sureño with a tattooed number thirteen on his bicep bumped Donnally’s shoulder, then mean-mugged him with a stare and a down-turned mouth. The thirteenth letter of the alphabet—M—meant Mexican Mafia. Donnally ignored him and moved toward the exit.
Donnally wasn’t sure what it was they all wanted, but he was sure that for most of them, like that gangster, it wasn’t justice.
CHAPTER 27
Donnally spotted a business card for Chuck & Chink, Inc. under his windshield after he climbed into his truck parked under the freeway behind the Hall of Justice. The print side was facing him, as if to ensure that only he received the intended message.
When he got back out to retrieve it, he heard footsteps come to a stop behind him.
He turned around.
It was Chen, challenging Donnally with a forefinger pointed at his chest.
“Why are you screwing with me?”
“With you? What does anything I’m doing have to do with you?”
“I knew McMullin was a wimp the first time I walked into his courtroom. And instead of manning up, he’s orchestrating a stay of execution—and that means hanging me out as some kind of coconspirator in a wrongful conviction.” This time Chen’s finger punched against Donnally’s jacket. “But . . . that . . . wasn’t . . . a wrongful conviction. It was righteous all the way through.”
Donnally pushed his hand away. “Do that again, and I’ll break you in two.”
Chen smirked and pointed at Donnally’s hip, never looking more like the thug he’d pretended to be when he’d worked undercover.
“No cripple can do anything to me, especially you.”
A car horn drew their attention to a patrol car pulling up next to them. The driver’s window lowered and the grinning face of an officer from their generation in the department appeared in it.
“Somebody call an old-timers’ convention and I missed it?”
Then the officer noticed the expressions on their faces and his grin faded.
Donnally forced a smile and walked over. “We were just talking about old times. Thankfully, they’re all behind us.”
The officer’s grin came back. “Almost for me, too.” He glanced in his rearview mirror at traffic backing up behind him. “Until then, it’s same old, same old,” and accelerated away.
Donnally turned back.
“The only way you can delay Dominguez’s execution,” Chen said, “is if you claim you’ve got new evidence and go to the governor. And the only way you can do that is if you say me and the D.A. held something back.”
There were lots of other kinds of official misconduct, or even just plain errors, Chen could’ve offered as possibilities for getting a stay. It sounded to Donnally as though Chen was confessing to the fact of a concealment, but not the content of it, and implicating the D.A. along with himself.
“And it’s got to be big enough to change the outcome of the trial. But there ain’t nothing. All you can do is try to invent something to make it look that way.”
Donnally stared at Chen, stunned by what seemed like desperation.
“Whatever you think is going on,” Donnally said, “is all in your head. I’m not trying to do anything to anyone. I don’t care what happens to Dominguez. He’s not my problem.”
“Then what’s it about?”
“It’s about McMullin being a good guy. He deserves to be able to sleep at night.”
“Then he needs to grow up. If he didn’t have it in him to be a judge and live with it”—Chen pointed past Donnally in the direction of downtown—“then he should’ve stayed in the financial district fiddling with contracts.”
Chen stared at Donnally and raised his hand again, then lowered it and rested on his belt.
“You ain’t gonna do to me what those assholes did to Manny Washington.”
Now Donnally understood why Chen believed the accusation would be one of hiding evidence.
For six years, appeals lawyers had accused Washington of concealing exculpatory evidence in a capital murder case. Washington had failed to turn over to the D.A. statements and forensic reports in what he had considered at the time to have been an unrelated homicide, but which had a similar pattern. A kidnapping off the street, a rape, multiple stab wounds, and nothing stolen from the victim. In Washington’s mind, the differences in time, location, and nature of approach and attack outweighed the similarities and he didn’t want to compromise his investigation into the still-unsolved other case by making the details public.
One court after another had agreed that while Washington should have disclosed the information and that while failing to do so was a Brady violation, the error had been harmless since the evidence, no matter how the defense might have chosen to employ it, wouldn’t have changed the outcome.
After the appeals ran out, the defendant’s attorneys demanded DNA tests, claiming they would prove the defendant’s innocence. Movie stars and musicians held a benefit concert in the Giants’ ballpark to publicize the case and to attack Washington and the courts and to pressure the governor.
The early morning after the governor granted a stay of execution and celebratory parties were held in Beverly Hills and New York and hounded by the media, a humiliated and distraught Washington drove to the summit of the antenna-topped Mount Sutro overlooking the city and blew his brains out.
Six months later, the DNA tests confirmed that the defendant had, in fact, been the killer.
“You hear what I’m saying,” Chen said, raising his hand again, this time fixing his forefinger inches away from Donnally’s chest. “That ain’t gonna happen to me.”
CHAPTER 28
From the moment he started walking from the house to his truck the next day, Donnally recognized the trip he was taking was, as Janie might have said in the psychoanalytic jargon of her trad
e, overdetermined.
And later, driving down toward Salinas in the Central Valley, past the ethereal high-tech world of San Jose, the garlic farms of Gilroy, and the dirt and dust of the lettuce and artichoke fields of Watsonville, Donnally still wasn’t sure what he was doing.
Satisfying himself that he’d looked into everything?
Resisting being intimidated by Chen, even though he suspected he was probably wasting his time?
Or maybe just delaying the inevitable confrontation with his father?
The reason, or maybe the justification for the trip, Donnally wasn’t sure which, was to find out whether the second witness in the case against Israel Dominguez, Chico Gallegos, had contradicted his testimony in anything he might have said to anyone after the trial and whether his murder a year after he testified was connected either with the murder of Edgar Rojo Sr. itself or with his testimony.
The judge’s notes had revealed a great deal about what he’d been thinking during the trial or, perhaps, what he wanted others later to believe he was thinking, but little about what had been troubling him then and what had troubled him since.
The scribblings mostly related to case law that he’d researched, to factual conclusions he reached based on the forensic evidence and the witnesses’ testimony, and to notes regarding possible jury instructions.
Included among the notes were three charts.
One showed the elements of the crime of first-degree murder with special circumstances and check marks indicating that sufficient evidence had been presented to meet the legal standard for each: willfulness, deliberation, premeditation, express malice, and lying in wait.
The second showed the elements of the crime of the nonspecial circumstances, second-degree murder, implied malice and reckless disregard for human life, with no check marks, indicating, in Donnally’s mind, that the defense had presented insufficient evidence to meet the legal standard.
The third showed the elements of manslaughter, including sudden quarrel and heat of passion, also with no check marks, indicating that the defense had presented insufficient evidence, or even no evidence at all, to meet the legal standard.