by Steven Gore
CHAPTER 35
Paul Ordloff was standing behind his desk when Donnally walked into his third-floor office. His arrival had been announced by the receptionist just inside the entrance of the restored Victorian a few blocks from San Francisco City Hall.
The Frederickson Building was known in the legal community as housing indigent defense lawyers. Nearly every cop who’d worked in San Francisco knew the place since they’d all received subpoenas from one or more of the twenty who worked in the building.
“Have you found a sword I can fall on?” Ordloff said, as Donnally shook his hand.
Ordloff wasn’t smiling. His eyes were bloodshot and the flesh around them dark.
Donnally pointed at the file box on his desk. “Maybe it’s in there.”
“That’s a different sword.”
At first, Donnally thought Ordloff was hungover, having extended his binge past the three days of what he’d termed the Death Festival and late into the week, but on second look, he just seemed weary.
Donnally had called from the Burbank airport and asked Ordloff to contact the federal practitioners in his building and obtain copies of the discovery materials they’d received over the years in connection with Hispanic gang cases.
The affidavits he’d read had been too cryptic, concealing and disguising specific facts that might reveal the sources of the information used to obtain the wiretaps. Donnally hoped the underlying reports, however much redacted, even with sentences and possibly whole paragraphs blacked out by the prosecutor, might disclose more.
“All these 302s and 6s came with protective orders,” Ordloff said, staring down at the box.
The numbers were shorthand for the report forms used by federal law enforcement. The FBI 302 and the DEA 6.
“My friends could get disbarred for giving them to me and I could get disbarred for giving them to you.”
Donnally was grateful for Ordloff’s help even though he didn’t trust the lawyer’s motives. He knew they were focused less on resolving the issues troubling Judge McMullin than on his continuing terror of living the remainder of his life with the knowledge that one of his clients had been executed.
“I’ll be careful. Did you have a chance to read through it all?”
“Not really. I figured my time was better spent organizing it for you. You’re in a better position to make sense of it, and you sounded on the telephone like you knew what you were looking for.”
Donnally shrugged. “I may have sounded more sure than I was,” and then he described following Rosa Gallegos on the previous day and what she had told him at her house.
“An internal Norteño power struggle and not a Sureño takeover attempt?” The shock seemed to weaken Ordloff. He reached for the chair armrest behind him and sat down. “Nothing like that was even hinted at during the trial. Nothing.”
“But it’s probably not true. It seems like misdirection. Her playing messenger for the Norteños casts doubt on everything she told me. It would be pretty close to snitching, and she doesn’t want to end up buried in an artichoke field.”
As he said the words, Donnally felt his stomach tense. He remembered a line in the letter Israel Dominguez had written to Judge McMullin. It was something like, “the D.A.’s theory was wrong.” He now wondered whether that was the most important sentence in the entire thing, and he’d missed it.
But if it was, why hadn’t Dominguez laid it out to him during his visit to San Quentin?
The investigation into the murder of Edgar Rojo Sr. might have all been about the ID of the killer, but underlying the prosecution was the question of motive, a theory of the case.
Ordloff pointed at the box. “There’s also some DVDs in there. Not for all the cases, just some. Years ago, the defense started making motions in these high-volume paper cases to get as much as they could scanned and get the wiretap data downloaded into spreadsheets. Makes it easier to search, though I suspect most of what you want, the older stuff, is probably only in hard copy.”
Donnally reached down to pick it up.
“Careful. It weighs a ton. There’s about five thousand pages in there.”
“Five thousand?”
“You wanted everything. I got you everything.”
CHAPTER 36
Rosa Gallegos wasn’t as much of a liar as Donnally had thought.
It was true an internecine war had broken out within the prison-based Nuestra Familia and that it had been exported onto the streets in the form of oscillating shootings among rival factions of the Norteños.
Except the murder of Edgar Rojo Sr. had nothing to do with it.
All the intelligence reports and debriefings of the Norteños who’d become government informants during the years after the murder had said the same thing. It was nothing other than the Sureños trying to break the Norteño chain between the Mexican cartel and the San Francisco street corners and to become the new link.
Donnally leaned back in his chair at the kitchen table and surveyed the thousands of pages stacked in piles in front of him. It had been four hours and he’d only covered three years of the twenty. He remembered how many days it took him to read Crime and Punishment in college, and he was looking at the equivalent of ten of them.
The other problem was that few of the characters in the stories he was reading had names. Many just had informant numbers and those numbers had different formats than the ones in the wiretap affidavits he’d read down at the National Archives.
He had been able to match up a couple.
Informant SSF-88-V0097 in a DEA 6 debriefing report had become Informant A in the initial affidavits.
Informant SSF-90-Z0234 in an FBI 302 had become Informant B.
Names of gang members and other informants and witnesses were redacted in the intelligence and debriefing reports and on surveillance logs, blacked out to conceal their identities.
Donnally knew from his own experience that cops and agents needed to protect not only their informants and witnesses, but also continuing investigations. At the same time, prosecutors were obligated, under the U.S. Supreme Court’s Brady decision, to turn over investigative work underlying the indictments and anything that might be viewed by the court as exculpatory.
And it was the Brady motion Israel Dominguez had focused on in talking to Donnally on San Quentin’s death row that he said he hadn’t understood at the time Ordloff filed it on his behalf.
Ultimately, it was in the hands of the prosecutor to decide what got turned over, what got withheld, and what got redacted—
Except when an agent held something back because he didn’t trust the prosecutor’s judgment.
Sometimes a homicide detective at SFPD kept dual investigative logs, one to keep track of his actual investigation and another one to give to the prosecutor to pass on to the defense. This second log was structured to make it appear that all trails had led to the defendant. He’d never done it himself, but understood the way in which the manipulated log prevented a defense attorney from discovering information that might lead to an argument that the wrong suspect had been arrested.
Donnally’s cell phone rang. He didn’t mind the interruption. He glanced at the number that showed on the screen just before he answered. It didn’t mean anything to him.
“Just listen,” a male said just after Donnally answered. The voice was muffled. “Say a single word and I’ll hang up and you’ll never hear from me again.”
Donnally remained silent.
“I’m going to give you an informant code number.”
The man paused, as though testing to see if Donnally would respond. He could hear the man’s breathing even through the cloth he must be using to alter his voice.
Donnally wondered how the man knew he was focused on just that issue.
He decided he’d better pass the current test if he wanted a chance to find out later. He said nothing.
“Write it down if you have a pen, otherwise just hope you can remember it.” The man paused again, then said,
“SSF-94-X1112.”
Donnally wrote the code down.
The man repeated it two more times, then said, “Figure out who it is and you’re halfway to where you’re trying to get.” And he disconnected.
Donnally looked at his cell-phone call log. The area code was 415. The exchange 239. He ran both through a telephone search site on the Internet. It was a pay phone.
He imagined the man walking away, maybe wondering whether he’d done the right thing, maybe wondering whether Donnally would act on the information in the way he expected, or maybe just walking away, his part of whatever it was, done.
Donnally thought of the man’s voice. It sounded familiar, despite the disguise.
Likely it was someone who had found out, or at least suspected, that Donnally had been to the archives.
For a moment, he wondered whether it might have been Judge McMullin. But McMullin wouldn’t have access to an FBI informant number. Any state-level warrants or affidavits passing across his desk would use local police informant numbers.
Maybe it was Chen. He’d worked some joint federal-state wiretap cases targeting Hispanic gangs. He’d know the informant numbers and who they belonged to, but there was no way he’d give all that up to Donnally.
Maybe it was Grassner. Except the ex-narcotic cop wouldn’t hide behind a disguised voice. He would’ve said it straight out, laughing, maybe in person with slap on the back and a “Fuck all them motherfuckers.”
Maybe it was Ordloff, hiding his guilty knowledge, information he should’ve brought forward himself but didn’t because he feared a new trial might reveal his incompetence; so he did it anonymously, so that it would seem to come as a surprise when it appeared in the press.
“If I’d only known . . .”
Maybe it was one of the attorneys from whom Ordloff had collected the old files, someone who’d learned something from a client, something privileged that the person wasn’t supposed to reveal and didn’t want to get caught disclosing.
How many attorneys had heard confessions from clients about murders they’d committed that others were already serving life sentences for, but were forced by ethical rules to remain silent about even as the innocent lives were wasted doing someone else’s time?
Providing the code number as a lead, rather than disclosing the name of the informant, might have been a compromise the attorney could live with.
There were too many possibilities, and too many dangers. It could be a diversion or a trap or even a trapdoor. In any case, or perhaps in all cases, it had to have been someone who either wanted to help Dominguez or wanted to hurt someone else.
And Donnally hoped that someone else wasn’t him.
CHAPTER 37
Donnally began searching through the FBI 302s and DEA 6s looking for the informant with the code letters SSF-94-X1112. A hundred pages into the five thousand, he thought of Crime and Punishment again. It was like trying to find every time the name Dunechka showed up.
He glanced over at the DVDs lying near the far corner of the table. Maybe . . . He grabbed the top one and slid it into the laptop drive. After clicks and whirls, a screen appeared asking whether he wanted to install the CaseLinks application. He pressed yes and followed the directions and the program activated. It invited him to do a Boolean search in a blank field, but he wasn’t interested in ands, ors, or nots, only in the exact sequence “SSF-94-X1112,” and he entered it. Fragments from the FBI and DEA reports appeared on the screen, snippets of text with the informant number highlighted.
Although he wasn’t present at the time of the shooting, SSF-94-X112, later overheard a Sureño identified as . . .
SSF-94-X112 has received a total of $62,250 in informant payment since March 12 . . .
The undersigned agent received a telephone call from SSF-94-X112 stating that following the . . .
SSF-94-X112 had information about a Norteño killing of a Sureño gang member, Felix Heredia . . .
Next to each snippet was a link to activate the underlying report.
Donnally activated each one in turn and printed out the associated document. He then retrieved the remaining DVDs and did the same. He read through the stack of thirty pages he printed, turning each sheet with rising expectation—
Until falling off a cliff edge.
SSF-94-X112 had said nothing about the murder of Edgar Rojo Sr.
Nothing.
There was no indication he’d even been asked about the murder.
Somebody wasn’t trying to hurt him or help him, Donnally decided, only divert and delay him.
Donnally removed the final DVD from the drive and reached to close the laptop lid. His hand held there, inches away. He again got the feeling that he was missing something, something right in front of him. He folded his forearms on the desk and stared at the screen, the icons seeming to float against the desktop background image of a night sky. His eyes lost focus for a moment, then settled on a link to the San Francisco Chronicle, thinking he should do an archive search on the names that showed up as connected to the informant. He reached for the mouse and clicked.
A headline shot out at him.
CALIFORNIA SUPREME COURT REJECTS DOMINGUEZ FINAL APPEAL
CHAPTER 38
Donnally found Junior at the outreach program at the Willie Mays Boys and Girls Club in Hunters Point. Donnally sat down next to him in the first row of the bleachers where he was supervising a basketball game.
Junior looked over. He didn’t react to Donnally’s presence until after he returned his gaze to the court.
“What’s up?” Junior asked.
“I need some information about the Twenty-Fourth Street killing of Felix Heredia ten years ago.”
It was the only incident Donnally had found in the discovery materials that Junior seemed to have a connection to.
Junior shook his head. “I told you when we first met, I ain’t no snitch.”
“I’m not asking you to snitch on anybody. I know all you’ve got is secondhand information. You couldn’t testify anyway.”
Donnally was lying, but he didn’t feel all that bad about it. Junior’s so-called outreach wasn’t penance enough for the kinds of things he had done in his life.
The truth was that coconspirator statements, ones against someone’s penal interest, were an exception to the hearsay rule.
“Then I ain’t gonna be your domino falling on someone else.”
Donnally ignored the comment and showed him a copy of a paragraph he copied from the affidavit on which he had redacted the code for the informant. Just to ensure that Junior couldn’t read it by holding it up to the light, Donnally had blacked it out, then copied it and blacked it over again.
Junior read it, then held it up to toward the high gym lights.
“Smooth. You don’t miss nothing.”
Then he read it to himself.
. . . has information about the incident in which Sureño Felix Heredia was gunned down on 24th Street by Chico Gallegos who had come up from Salinas.
Donnally’s cell phone rang. He answered. It was Judge McMullin.
“I just had—”
“Hold on.”
Donnally covered the mic, then pointed at the page. “You may want to study that a little.” Then he walked to the door beyond the end of the bleachers and stepped outside onto the sidewalk. “What’s going on?”
“I just had a visit from Judge Madding. Calling it a visit makes it sound more pleasant than it was.”
Donnally didn’t like the way the judge’s voice sounded, strained and exhausted. He felt protective, almost fatherly, and didn’t like the feeling.
“He found out?”
“And is pissed. Grassner told Chen you said I’d asked you to look into this and then Chen told Madding.”
“Chen already jammed me up outside of the Hall of Justice. Real hard and way overboard.”
“So is Madding. He’s saying that I should’ve come to him first and that the governor is about to appoint him to the court of a
ppeals and he doesn’t want to be seen in the press as being second-guessed by another judge.”
“You’re not second-guessing him. You’re second-guessing yourself.”
“That’s what I told him, but he doesn’t see it that way. He spent his career wanting to be seen as the crusading prosecutor, but now that a promotion is on the horizon he wants to be seen as an impartial, dispassionate agent of justice with a capital A and a capital J.”
“What do you want to do?”
The judge paused. Donnally envisioned an old man, even older than McMullin really was, on the other end of the call.
Donnally knew what he would want to do. When he got pushed, he wanted to push back.
But he wasn’t McMullin, or whoever McMullin was becoming.
“I don’t know.” His voice weakened. “I just . . . I just don’t want you to be disappointed in me.”
The words struck Donnally like heartbreak. The judge was a man in pain, aching under the burden he’d taken on.
“It’s not about disappointment. You’ve shown a whole lot of courage, more than any judge I’ve ever known. But it may be out of our hands.”
“What do you mean?”
“You see the news?” Donnally didn’t wait for an answer. “The California Supreme Court turned down the Dominguez appeal.”
“Which means the U.S. Supreme Court will rule in a day or two.”
“Which means the Supreme Court will rule against him in a day or two and it will go to the governor.”
Donnally thought of Junior sitting inside with the FBI 302 excerpt.
“Where are you going to be later?” Donnally asked.
“I don’t know. I’ve got to get out of here . . . maybe home.”
“I’ll swing by when I’m done with what I’m doing.”
Donnally disconnected, then walked back inside. Junior was still staring at the page, almost squinting at it like he was trying to see through it and into the events it represented. Donnally sat down next to him and pointed at it.