Neither did I. When Leslie withdrew from the case, Judge McDaniel was drafted to hear some motions we filed yesterday. This is more than an academic exercise. The decisions she makes today will have a substantial bearing on the direction of Angel’s case.
I try to sound respectful. “We appreciate the fact that you were able to make yourself available on short notice.”
This gets a quick glance from Rosie. We got back from Napa ten minutes ago. We hadn’t anticipated the events at the winery when we scheduled this hearing. I changed into my suit in the bathroom down the hall. After Monday’s debacle, Rosie decided to let me try to work my magic today. Perhaps Judge McDaniel will be more receptive to a fresh voice.
The judge leans back in her chair and scans her crowded courtroom. She looks at Nicole Ward and holds up her hands in the universal gesture of frustration. Then she turns to me and says in an even tone, “I’ve read your papers. Where do you want to start?”
To her credit, at least she’s going to give us a chance–however brief–to tell our story. I jump right in. “Your Honor,” I say, “our first issue relates to the production of evidence by the prosecution. On Monday, you ordered Ms. Ward’s office to comply with discovery as expeditiously as possible.”
Ward is still seated when she interjects, “We’re complying, Your Honor.”
Judge McDaniel turns to me and says, “What’s the problem, Mr. Daley?”
“The prosecution has not been forthcoming with police records and other evidence.”
Ward is now on her feet. She strains to keep her tone even when she says, “That’s completely false, Your Honor. We’ve been providing everything as fast as we can process it.”
It’s the reaction I wanted. I’m trying to put Ward on the defensive. We’ll have more important issues to discuss in a minute.
Judge McDaniel tells Ward to sit down. Then she turns back to me and says, “You’ll have to be more specific.”
Carolyn hands a list to Rosie, who passes it over to me. “Police reports, Your Honor. Inspector O’Brien informed us that he filed his first report on Monday. We still haven’t seen it.”
Ward leaps in. “We haven’t had time to inventory it, Your Honor. We’ll provide it to Mr. Daley within twenty-four hours.”
“Your Honor,” I say, “we’re already seeing a pattern of delay.”
The judge sets down her reading glasses. She points to Ward and says, “I expect you to make every effort to catalogue evidence right away and provide it to the defense. Understood?”
Ward is seething. “Understood.”
Judge McDaniel turns back to me and says, “As for you, Mr. Daley, two days isn’t a pattern of delay. Let’s try to be realistic here.”
It’s a fair response. “Yes, Your Honor.”
“What else?”
On to the main events. “Your Honor,” I say, “we have some serious issues to consider. My client’s constitutional rights have been violated.”
This elicits an arched eyebrow from Judge McDaniel, but she says nothing.
“In particular,” I continue, “my client was not properly Mirandized until well after she was taken into custody. Anything she said prior to that time is clearly inadmissible. The fact that she was given the Miranda warnings so late means she was not afforded her fundamental protections.”
Judge McDaniel interrupts me. “And so, Mr. Daley, I take it you’re suggesting that I dismiss the charges?”
She certainly cuts right to the chase. “Yes.”
The corner of Judge McDaniel’s mouth turns up in a sardonic half-smile. She looks at Ward and says, “What do you have to say about this, Ms. Ward?”
“Your Honor,” Ward begins, “the defendant was properly Mirandized at the Hall of Justice before she was questioned about her husband’s death.”
“Your Honor,” I say, “the Miranda warnings are required prior to questioning. The officer who found Ms. Chavez informed her of her husband’s death. How can Ms. Ward possibly suggest that Ms. Chavez wasn’t questioned at the bridge? Ms. Ward’s argument completely undercuts the purpose of the Miranda warnings. My client was stopped, given a breath test and taken into custody. She was not read her rights until an hour later at the Hall of Justice. If you accept Ms. Ward’s interpretation of the law, it makes the Miranda rules meaningless.”
Ward comes right back. “Your Honor,” she says, “Mr. Daley is correct in that the Miranda warnings must be given prior to questioning. However, the events at the bridge and the subsequent ride to the Hall did not constitute questioning. It’s well-established that voluntary statements made by defendants who are not being questioned are admissible even in the absence of the Miranda warnings. The defendant’s rights were respected at all times.”
I search for an incredulous tone. “So,” I say, “you’re suggesting that Ms. Chavez and the police officers were just chatting?”
“I’m saying that her statements were voluntary.”
Hell. The answer to the question of whether certain statements were made voluntarily or in the course of questioning is often an elusive one. That’s why criminal defense attorneys tell their clients not to talk to the cops. We joust over the latest Supreme Court rulings on the Miranda warnings. Ward doesn’t give an inch. Neither do I.
Finally, the judge says, “I am not going to drop the charges. I’ll take it under advisement and issue a written ruling if I determine that any of Ms. Chavez’s statements should be excluded.”
It’s less than I had hoped for, but it’s about what I had expected. I didn’t think she’d drop the charges, although she may still limit the admissibility of some of the statements Angel made at the bridge. Overall, her ruling doesn’t help us.
Judge McDaniel is becoming impatient. She gives me a sharp look and says, “Anything else, Mr. Daley?”
Now for the main event. “Your Honor,” I say, “the prosecution proposes to introduce a significant piece of evidence that was obtained as a result of an illegal search. An academy award statue was found in the trunk of the car. Ms. Ward thinks it’s the murder weapon. We believe that it was obtained illegally and should be excluded.”
I glimpse of Ward out of the corner of my eye. She stands for an instant, then reconsiders and sits down.
Judge McDaniel gives me a serious look. “How was the search illegal?”
“Ms. Chavez was stopped for driving on an expired license and a DUI charge. The officer at the scene opened the trunk. There was no probable cause to have searched the trunk.”
The judge turns to Ward and says, “Why did the officer open the trunk, Ms. Ward?”
“The officer found a baggie containing a suspicious substance on the front seat of the defendant’s car. It turns out it was cocaine.”
The judge isn’t going to make it easy. “Where’s the probable cause to open the trunk?”
Ward pauses to regroup. She understands the gravity of the situation. If Judge McDaniel rules against her, she won’t be able to produce the murder weapon and her case will probably collapse. She searches for a tone of reason when she says, “Your Honor, the officer faced a situation where the driver of the car was intoxicated and perhaps high. The Breathalyzer test clearly bore out the fact that Ms. Chavez was driving under the influence. He found illegal drugs in plain view. The defendant’s behavior was erratic. In the circumstances, it is not unreasonable to suggest that the officer had probable cause to search the trunk of the car for other illegal substances.”
I interject, “He didn’t know the substance he found in the car was illegal.”
“He was experienced,” Ward replies. “He knew exactly what was going on.”
Judge McDaniel looks at me and says, “Does your client dispute the fact that the Oscar was found in the trunk of the car?”
“She doesn’t know how it got there,” I say.
“Answer my question, Mr. Daley. Does she dispute the fact that it was in the trunk?”
I have no choice. “No, Your Honor.”
“And you recognize that a decision was made to take Ms. Chavez into custody.”
“That’s true.”
“As a result,” the judge continues, “the car was impounded.”
“Yes.”
“And you know that as part of the process of impounding a car, it is standard procedure to inventory its contents, including the trunk. Correct?”
I give Rosie a helpless look. “Yes, Your Honor.”
“So, you’re asking me to exclude the Oscar even though you freely admit your client does not dispute that it was in the trunk and that it would have been found anyway in connection with a legitimate impoundment of the vehicle.”
I have no choice. “Yes, Your Honor.”
Judge McDaniel heaves a sigh. “I’m not going to exclude this evidence, Mr. Daley.”
“But Your Honor. . .”
“I’ve ruled, Mr. Daley.
Hell.
Judge McDaniel gives me the grandmotherly grin and says, “Anything else, Mr. Daley?”
I’m not quite finished. “Your Honor,” I say, “This case has received extensive press coverage and publicity.” I shoot a quick glance at Jerry Edwards, who is sitting in the front row. “It will be impossible for our client to empanel an impartial and unbiased jury here in San Francisco. We would therefore request a change of venue.”
It’s a standard request. Judges are usually pretty willing to comply, although the costs of moving a full-blown trial to another town are substantial.
Ward is up again. “Your Honor,” she says, “it’s too early to discuss this issue. We haven’t completed the prelim. Surely, this is something we can address later.”
Ward doesn’t want to move the trial. It will create logistical issues she’d rather not deal with and she may end up in a tiny media market. It’s a mixed bag for us. The media scrutiny will be just as intense if we move the trial to Chico. Moreover, San Francisco juries are usually well-educated and pretty liberal. On the other hand, Rosie and I decided that the wall-to-wall coverage and the small potential juror pool in San Francisco will make it difficult to empanel twelve people who aren’t predisposed to convict Angel.
The judge reflects for a moment and says, “I’ll take it under advisement. We can discuss the venue for the trial after the prelim.”
Not good enough. “Your Honor,” I say, “this case has been getting round-the-clock coverage on all of the local TV stations and has been the lead story on page one of all of the major newspapers. Surely, this is an issue that bears discussion sooner rather than later.”
“Mr. Daley,” the judge says, “I understand your concerns about the potential effect of pre-trial publicity on the juror pool. We’ll discuss it after the preliminary hearing next week.”
“Your Honor,” I say, “the location of the trial will have a material impact on our strategic decisions. In fairness to our client, I believe we should resolve this issue as soon as we can.”
I’m not just blowing smoke. San Francisco juries are different than those in other parts of California. The location of the trial will have a significant impact on the tone of our case.
Judge McDaniel gives me a thoughtful look. While she isn’t buying my argument entirely, she seems receptive to continuing the discussion. “Do you have any empirical evidence that the media coverage in this case has already tainted the potential juror pool?”
“Yes, Your Honor. We’d like to submit a study prepared by Professor Stephen Harris of the University of California.” I explain that Harris is an authority on statistical analysis and one of the leading political pollsters in California. “We have asked Professor Harris to join us to explain his conclusions.”
Ward rolls her eyes. Judge McDaniel says, “Let’s hear what the professor has to say.”
It takes just a moment to run Steve Harris through his credentials. Although he’s a full professor of mathematics at UC Berkeley with an expertise in statistical sampling, the bulk of his income comes from political consulting. He’s done polling on every major statewide campaign for thirty years. Although he’s a millionaire many times over, he still looks the part of a college professor. He’s barely five feet tall, with a full head of hair, a bushy gray beard, John Lennon spectacles and a chatty demeanor. Carolyn bought him a new striped tie to go along with his ancient sport jacket. Ward doesn’t challenge his qualifications.
I want to keep this short and sweet. “Professor Harris,” I begin, “did you conduct a telephone survey yesterday concerning the ongoing case involving Angelina Chavez?”
“Yes.”
“And could you briefly describe the methodology of your survey?”
“Yes.” Harris explains that he took a poll of four hundred randomly-selected registered voters in San Francisco. He is completely disarming as he talks in mathematical and layman’s terms about such esoterica as sample size, standard deviations and margins of error. Judge McDaniel’s stern look softened as soon as he started talking. She seems intrigued and amused.
I ask Harris, “How many questions did you ask?”
“Just one.”
“What was that?”
“Do you think Angelina Chavez is guilty of murdering her husband?”
I glance at Nicole Ward for an instant. Then I turn back to the professor and say, “What was the response?”
“Seventy-eight percent said yes.”
Perfect. “No further questions.”
Ward is up immediately. “Professor Harris,” she says, “you’d be the first to admit that informal polls such as the one you took have certain inherent limitations, wouldn’t you?”
Harris remains congenial. “That’s true.”
“In fact, they have varying margins for error, don’t they?”
“Of course.”
“So, it would be fair to say that the results of your poll may not be reliable.”
Harris pauses. His gentle smile disappears. “No, Ms. Ward,” he says, “my methods are statistically very reliable. The only limitations are the size of the sample and the time we have to ask the questions and compile the data.”
Ward isn’t ready to concede. “But you would acknowledge that the results could be flawed if the sample size was too small or the respondents were not telling you the truth.”
“That is theoretically possible,” he says. “However, it is highly unlikely.”
They joust for ten minutes. Harris holds his ground. Finally, Ward says to Judge McDaniel, “Your Honor, before you make a final decision on this issue, we would request the opportunity to retain our own expert and conduct our own poll.”
“Objection,” I say. “Ms. Ward has already stipulated to Professor Harris’s expertise.”
Judge McDaniel ponders for a moment and says, “Overruled.” She looks at Ward and says, “I’ll withhold judgment on this issue until the end of the week. I’m going to give until Friday to find your own expert.” Then she turns to me and adds, “No matter what my findings on this issue, Mr. Daley, the preliminary hearing for this matter will be held in this courtroom as scheduled next week. Understood?”
It isn’t a day for great victories, but it’s be best we can do for now. “Yes, Your Honor.”
“Anything else, Mr. Daley?”
“Yes, Your Honor. In an effort to prevent further tainting of the potential juror pool, we request that you impose a gag order on everyone involved in this matter.”
It’s an easy call for her. “So ordered,” she says. She raises her gavel and adds, “We’re adjourned.”
# # #
Rosie is driving me to the airport a short time later. We’re sitting in traffic on 101 at Hospital Curve as the radio announcer confirms that Little Richard died instantly and three others were injured in the ensuing explosion and fire. Little Richard’s prized car collection was destroyed and there was three million dollars’ worth of damage. The newsman concludes by saying, “Authorities believe the fire was started when a spark ignited some flammable materials in the garage. Although the fi
nal results of the investigation are pending, it is anticipated that MacArthur’s death will be ruled accidental and no charges will be filed.”
As usual, Pete was right.
I ask, “What did you think about the judge’s ruling on the Oscar?”
“It didn’t surprise me. We knew it was a long shot. If she ruled in our favor, it would have undercut Ward’s case. Judge McDaniel wasn’t going to do that. She’s a good judge, but she still has the mentality of a prosecutor. She doesn’t want to be perceived as soft.” She reflects and adds, “If this case goes to trial, we’re going to have to deal with the Oscar.”
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