by Julie Smith
“Because the crime is so serious and the city of San Francisco has been so terrorized,” began the judge, and I knew he was going to deny my motion to quash. I didn’t listen. I ignored Liz’s smug expression. I was already engaging in my favorite morale builder for such moments—drowning my sorrows in appellate remedies. Surely, I thought, if there were anything resembling justice in the world, a conviction would be overturned. It felt momentarily better to think that, but it wasn’t currently the point—the point was to avoid a conviction.
In her opening statement, Liz said she would prove beyond a reasonable doubt that Lou Zimbardo had killed Sanchez, a drunk and helpless tourist from Gallup, New Mexico, and had wantonly brought deadly quarantined mussels to Full Fathom Five, killing Brewster Baskett and causing ten other innocent people to fall ill. She said she would produce the gun with which Sanchez was killed, and a (now frozen) plastic bag of eastern mussels, which he had stolen when he substituted poisoned ones, arrogantly leaving them in the restaurant’s bathroom.
In my own statement, I said I hoped the jury understood the burden of proof was on the prosecution and if any member of that jury had the slightest doubt that Lou Zimbardo was guilty, he would burn in hell if he voted to convict. (I didn’t say “burn in hell,” but I tried to imply it.) I noted that Lou didn’t have to take the stand to answer the charges against him, and that he didn’t have to put on a defense at all. Indeed, I remarked, if the case against my client proved as ridiculously weak as I suspected it would be, I most probably wouldn’t put on a defense. I said I fervently hoped that each member of the jury understood that failure to put on a defense, far from being an admission of guilt, was a choice open to any defendant and should not be considered in their deliberations. The ball, I said, was entirely in the D.A.’s court.
Don’t imagine that, after saying all that, I didn’t feel like the biggest ass in northern California. Liz objected a couple of times, on grounds that I was arguing, and I didn’t blame her. But having no defense, Dad and I had more or less decided not to present one. We were leaving our options open, waiting for Liz to leave us openings, and hoping for a sign from heaven before making up our minds for good; but for openers we couldn’t do any better than that. I’m not proud of it, and probably wouldn’t even mention it, but it’s a matter of public record and can hardly be hidden.
Almost immediately, Liz lived up to her reputation for being colorful—the first witness she called was none other than counsel for the defense.
“Miss Schwartz, were you at Mount Davidson shortly before dawn on Easter morning?”
“Yes, I was.”
“Will you tell the court what you were doing there?”
“I was with my friend Rob Burns. He was covering the Easter sunrise service for the Chronicle.”
“I see. But weren’t you there a little early?”
“We were.”
“May I ask why?”
“Objection, Your Honor.” Dad’s voice sounded tired, as if he had lived long enough to hear hundreds of second-rate lawyers try to get away with irrelevant lines of questioning, and would probably die of boredom if it happened again. His voice fairly begged the judge to spare him such an undignified death, yet somehow simultaneously managed to suggest that he wasn’t begging at all, that his objection was so obvious, so utterly right, that he need hardly bother voicing it. He was wearing a gray suit with more polyester than wool in it, a rumpled blue shirt, and a tie bearing three strategic grease spots. He hadn’t had a haircut in weeks, and his pants were a little too short. Any juror who didn’t love him would have to have a heart of strictly lapidary interest.
“Overruled.”
“Did you tell the police you and your friend were sleeping in the van near the mountain so as not to be late for the service?”
“Objection!”
“Sustained. Strike the question, please.”
But the jury couldn’t strike the question from their minds. Liz had now established me as a loose woman who would sleep on the street with a man to whom she wasn’t married. Bad enough in San Francisco, but this was more conservative San Jose—I began to have doubts about that change of venue.
At Liz’s request, we approached the bench. “Your Honor,” she said, “Miss Schwartz will testify that she heard certain noises which led her and her—friend—to investigate the site at the top of the mountain. In order for the jury to understand the nature and intensity of the noises, I need to establish where the witness was and what she was doing when she heard them.”
“Miss Hughes, I’m going to ask you to abandon this line of questioning.”
The jury murmured among themselves. The judge had saved me from testifying that I was attempting to pee in public when I heard the noises, but now imaginations were free to run rampant—the very proper all-white, middle-class jurors probably thought I’d been copulating in the van with my “friend.”
“Did you in fact hear noises, Miss Schwartz?”
“Yes. A crash, and then a sound like a person saying ‘oof.’ ” Mild laughter in the courtroom. The judge gaveled.
“And did you investigate?”
“Mr. Burns and I did, yes.” Normally I hate the courtroom formality of referring to everyone by last names, but under the circumstances I felt it necessary to restore a little dignity to the Schwartz-Burns camp.
“Will you tell the court, please, what you found at the top of the mountain.”
This was a tricky one. She now had me, counsel for the defense, in the unhappy position of having to describe the gory murder scene. I had to be truthful, yet hold back as much as I could. “I saw a man on the cross, apparently dead.”
“Could you explain what you mean, please, by ‘on the cross.’”
I was starting to sweat. “His wrists had been nailed to the cross.”
“Could you demonstrate the position, please?”
Dad spoke: “Your Honor, I think everyone gets the idea.” Mild laughter—release of tension. Good old Dad.
“No further questions, Your Honor.”
On cross-examination, Dad tried to reestablish my good name in the minds of the jurors by having me tell about climbing the ladder, trying to find out if the man was dead: “What did you plan to do if he wasn’t?”
“I didn’t know. I just thought I ought to do something.”
“And what in fact did you do?”
“I’m afraid I fell off the ladder.” Laughter in the courtroom.
“How did you happen to fall off? Did something startle you?”
“Yes. A woman’s voice said, ‘Hold it right there.’”
“‘Hold it right there.’ Was she a police officer?”
“She said she was making a citizen’s arrest. She had her hand in her pocket, as if she had a gun.”
“And what did you do?”
“I held out my hand for the gun and said, ‘Let’s talk it over.’”
“Did she give you the gun?”
“No. She hit my hand with it—without taking it out of her pocket.”
“And what did you do then?” Dad asked this question because we didn’t want Liz asking it—it would look better if I admitted voluntarily that I’d hit Miranda.
I said: “I fought her for it.”
“You fought her for it?”
He sounded absolutely amazed.
“Yes.”
“Well! You look properly brought up.” The courtroom broke up. Dad knew he’d get reprimanded, but he’d scored big with the jury. I was more or less respectable once again, and had a funny father who joked with me in public. As for Dad, he was the cutest thing since Sam Ervin, and every juror who’d resisted his charm so far was now deeply in love. It wouldn’t win the case, but it couldn’t hurt.
The judge, naturally, was fuming. After restoring order, he said, “Mr. Schwartz, I’ll ask you please to remember that this is a murder trial in a court of law and not a forum for stand-up comedy.”
“I apologize, Your Honor.”
It would have been great to leave them laughing, but we still had to get Miranda out in the open. Rob hadn’t ever been able to write a word about her, but he could if her story came out in the trial. Then maybe someone who knew her would see the story and phone us. It was a big if—I was horribly afraid she was dead—but we had to try. It wouldn’t hurt to establish an element of mystery in the case as well, to send the jurors’ imaginations in directions of reasonable doubt. “Who won the fight?”
“No one. The Reverend Ovid Robinson, who was scheduled to give the sermon, turned up and broke it up.”
“Well, I’m sure you would have won.”
Dad was really pushing it. Again, the judge gaveled for order. “Mr. Schwartz, my patience is not on trial here. Please confine your paternal feelings to your home.” He said that, but his face was all twisted up from trying not to smile. “Did the woman tell you her name?”
“She told Mr. Burns—Rob.”
“And did you hear her?”
“Yes. They talked for several minutes. She said she’d been with a man—apparently her boyfriend. She hid in his car, and he drove to the Yellow Parrot, a bar on Castro Street. He went in, but she remained in the car, drinking. Then she fell asleep. When she woke up, she was still in the car, but it was parked near Mount Davidson. She heard noise and came up the hill. She tried to arrest me because she thought I’d killed the man on the cross.”
“And what did she say her name was?”
“She said it was Miranda Warning.”
“No further questions,” said Dad, and left them laughing, after all.
Liz came back strong on redirect. In chambers, she’d fought to keep out the testimony about Miranda, but the judge felt it was relevant. Naturally, she was going to belittle the tiny seeds of doubt we hoped we were sowing.
“What happened to Ms.—uh—Warning?”
“She ran away before the police came.”
“Why didn’t you try to stop her?”
Dad objected in his world-weary voice.
“Very well. I’ll rephrase the question. Did you try to stop her?”
“Of course. I chased her until Inspector Martinez threatened to blow my head off.” Score one for me.
“I beg your pardon?”
“When the police came, Inspector Martinez couldn’t see what was going on. He yelled, ‘Freeze, or I’ll blow your head off.’”
“And you froze.”
“Yes. But Miranda—Miss Warning—got away.”
“Tell me something about Miranda Warning. What did she look like?”
I could have tried to be cagey, but ultimately Liz would have got what she wanted. I spat it out: “She looked bedraggled and rather unhealthy. Her clothes were very poor. And she reeked of alcohol.”
“Alcohol!”
“Yes.”
“Did you get the impression she was a derelict?”
“Objection—counsel is calling for a conclusion.”
“Sustained.”
“No further questions.”
I was shaking when I left the stand. Rob was to be the next witness and the plan had been that I’d cross-examine him, but Dad took one look at me and said he’d do it. Things had gone no worse than we expected, but then we’d expected the worst. The only good thing that had happened was that Dad had made the jury love him; but he always did that. On the down side: They probably weren’t too fond of me even though I was the daughter of their hero, and I was sure they hated Miranda. I realized that when our turn came, we could call the Reverend Ovid Robinson to confirm my testimony, and we could have Lou testify that he had no girlfriend and no car, but there wasn’t a chance in hell the jury’d believe him. Also, once we got him on the stand, if he made just the tiniest reference to having been in prison, if any little inkling of it slipped out, we were done for. My morning was off to a completely lousy start.
Liz called Rob. He told about chasing someone down the hill after we heard the ladder fall, and then admitted getting the first Trapper note when he wrote the story about Sanchez. Liz introduced the note as People’s Exhibit A.
“After getting that note, Mr. Burns, did you then go to Pier 39?”
“Yes.”
“Did anything unusual happen while you were there?” She really had us: first me describing the grisly sight of a man on the cross at Mount Davidson, and now Rob on the subject of mass poisoning at Pier 39.
“I heard sirens, and followed the noise to Full Fathom Five.”
“And what did you see there?”
“I saw paramedics remove some people on stretchers.”
“Could you see any of the peoples’ faces?”
“Yes.”
“Were any of them speaking, or making any kind of noise at all?”
“Some of them were trying to catch their breath.”
“Would it be fair to say, from looking at their faces and hearing them trying to catch their breath, that these people were suffering horribly?”
“Objection!” Dad and I shouted together. I’d forgotten he was supposed to be taking over.
“Very well; I withdraw the question. Mr. Burns, did you later get another letter signed ‘Tourist Trapper’?”
“It was just signed ‘The Trapper’.”
“Is this it?” She produced Exhibit B.
“It seems to be.”
“Will you read it for us, please?”
She was unbelievably tricky—you can’t have a witness read something he didn’t write. “Objection,” I said, trying to sound as world-weary as Dad. “Hearsay.”
“Sustained.”
“Very well, Mr. Burns. Can you tell us in your own words what the note said?”
“It said the writer had had nothing but trouble since he’d come to San Francisco and the whole city was going to pay. Then I think it said something like, ‘What would this crummy joint be without tourists? Too bad a few of them have to suffer for the sins of Sodom and Gomorrah.’ And then it said that the people who stayed away would be better off in the long run, and that they’d thank him. And the last line was something about closing the city down.”
“Would you like to look at the note to refresh your recollection?”
Rob flushed. He’d spoken almost in a monotone, keeping it as low-key as possible, and he’d paraphrased as well as he could. But of course he knew the note by heart. “No, thanks,” he said. “I remember. The last line was, ‘Watch me close this hellhole down.’”
A literal gasp went around the room. I’d heard about courtrooms being electrified, but I hadn’t seen it before. Probably most of the jurors and spectators had read the note in the paper, but hearing those words like that gave you that same sickish feeling in the viscera as a fingernail on a blackboard.
“Was there a postscript?” asked Liz.
“Yes. The writer said he hoped the tourists liked the local mussels and noted that he had put what he called ‘the good ones’ in the cabinet in the men’s room.”
“And how was the note signed?”
“The Trapper.” Rob’s voice was very low.
Liz left it there. She’d played Rob like a violin—like a kazoo, really; it had taken no skill at all. She was just lucky the man who got the letters happened to be the defense lawyer’s sweetie; coming from him, the Trapper’s words packed about three times the normal wallop.
After that, Terry Yannarelli and the bartender from the Yellow Parrot testified that a man resembling Lou, about the same height and weight, at any rate, had left the bar with Sanchez. I made a big point of their being unable to give a positive I.D., but considering the fact that the Trapper had worn a beard, shades, and a pulled-down hat, they’d really gone about as far as they could go toward putting Lou away for the next five hundred years, give or take.
The afternoon testimony made my throat close. Martinez told the court he’d found Exhibit C, a nasty-looking .44 Magnum, in Lou’s monk’s cell of a room; and then a ballistics expert assured us all that the gun had killed Sanchez.
/> All day Lou sat quiet in the new suit we’d gotten him for the trial, looking stony and sullen and utterly unlike anyone for whom a juror would muster up a shred of sympathy.
When we left the courtroom, Art Zimbardo, sitting in one of the back rows, followed Dad and me with his amazing eyes, not speaking, just smoldering in that resentful, vulnerable way that got to me every time.
16
Rob had left shortly before the session was adjourned for the day—to write his story, I supposed. We’d been seeing each other three or four times a week. Tonight I was avidly looking forward to hashing over the day and, not to put too fine a point on it, to crying on his shoulder. But he wasn’t home when I called and didn’t return my call.
I had to get up at six o’clock to make it to San Jose on time, and I was bleary-eyed in the morning when I picked up my Chronicle. The headline woke me up: “Damaging Testimony in the Zimbardo Trial.” Oddly, the by-line wasn’t Rob’s, but Charlie Fish’s. I’d seen Charlie hanging around the day before, assigned to help Rob, I thought. Come to think of it, though, they hadn’t sat together.
The story all but convicted my client, made both Dad and me look like asses, and portrayed Rob as practically an accessory to the Trapper’s crimes. Some excerpts: “In a highly unusual move, Assistant District Attorney Liz Hughes called defense attorney Rebecca Schwartz as her first witness.
“Schwartz, who, along with Chronicle reporter Rob Burns, discovered the body of the Tourist Trapper’s first victim, showed no emotion as she told the court, ‘Jack Sanchez’s wrists had been nailed to the cross.’
“On cross-examination by her father, Isaac Schwartz, she disclosed that she exchanged blows with a woman who then appeared on the scene and tried to detain Miss Schwartz in what the woman said was a citizen’s arrest for the murder of Sanchez. The Reverend Ovid Robinson of the Third Baptist Church, arriving to give the Easter sermon, broke up the fight, Miss Schwartz said.
“The defense attorney said the woman told her and Burns a story about being in a car with a man who drove to the Yellow Parrot bar (where the murderer apparently met Sanchez), falling asleep in the car, and waking up to find the car parked at the foot of Mount Davidson. Isaac Schwartz, who bantered with his daughter as he might at the dinner table, seemed to be trying to establish the mystery woman as a suspect in the Trapper killings.