“Your Honor,” McNulty says, “we can’t be ready on just two days’ notice.”
Sure you can. “Your Honor,” I say, “my client was forced to spend the night in jail. His parishioners depend on him and the holidays are approaching.”
She throws me a bone. “We’ll squeeze you in at nine o’clock on Monday morning.”
I keep pushing. “We’ll need expedited discovery,” I say. “We’d like copies of the police and medical examiner’s reports no later than noon on Friday.”
“So ordered.”
It’s more than I thought she would give me.
McNulty starts to speak and the judge stops him with an upraised hand. “I trust you’ll be prepared to move forward on Monday,” she says to him, “and I expect you to comply with my discovery order.” She closes her calendar and says, “Anything else?”
It’s my turn again. “We’d like to discuss bail, Your Honor. Father Aguirre has strong community ties and lacks the resources to flee. We therefore respectfully request that he be released on his own reconnaissance.”
I would never request anything disrespectfully and it’s just an opening bid. She’s unlikely to go for it, but she may be willing to consider bail.
McNulty is up again. “It is unheard of to release a murder suspect on O.R.,” he says, “and highly unusual to release him on bail. It’s a matter of public safety.”
It’s true. “The judge has discretion to review all of the attendant circumstances and to act in the interest of justice,” I say.
Judge Vanden Heuvel gives McNulty the first score. “I’m not going to release the defendant on O.R.,” she says.
“Your Honor–” I say.
“I’ve ruled, Mr. Daley.”
I start backtracking. “You didn’t rule out the possibility of bail, Your Honor.”
“No, I didn’t.” Her high cheekbones flush and she gives McNulty the first chance. “Do you have anything to say about it?”
His response is predictable. “The People oppose bail,” he says. “The defendant is accused of first degree murder and is a substantial flight risk. He is an expert at fund-raising and would have no trouble finding the means to flee the area or even the country.”
“Your Honor,” I say, “Father Aguirre has no intention of going anywhere and is prepared to surrender his passport. He simply wishes to clear his name and return to work.”
“Your Honor,” McNulty says, “the victim was maliciously stabbed six times in a premeditated act. We’re considering the possibility of adding special circumstances.”
Ramon gives me a desperate look and whispers, “Is that what I think it is?”
I nod. It’s the California euphemism for a death penalty case. I turn to the judge and say, “This isn’t a capital case and Father Aguirre is willing to wear an electronic monitoring device.”
The judge ponders for a long moment before she issues her wisdom. “Bail is denied.”
There is panic in Ramon’s eyes. He turns to me and whispers, “This isn’t happening.”
I grit my teeth and whisper, “Stay calm.” I say to the judge, “Your Honor–”
She stops me. “You can revisit this issue at the prelim, Mr. Daley.”
I’m about to accept the fact that there is nothing I can do until Monday when I hear the distinct sound of F.X. Quinn’s voice. “May it please the court,” he bellows, “we would like to call a witness to testify on behalf of Father Aguirre with respect to the subject of bail.”
He never mentioned this to me and the judge isn’t buying it. “I’ve ruled, Father Quinn,” she says.
“If you would hear me out for just a moment.”
His request is met with an irritated look and a question. “Whom do you wish to call?”
“The archbishop of San Francisco.”
Chapter 8
“I Am the Archbishop of San Francisco”
“This arrest of Father Aguirre is an unfortunate mistake.”
— Archbishop Albert Keane. KGO Radio. Wednesday, December 10. 10:00 A.M.
McNulty shoots up like a roman candle. “Your Honor,” he says, “this is highly unusual.”
Yes, it is, and it puts Judge Vanden Heuvel in a tough spot by raising the age-old question of whether a Catholic judge who is up for re-election is prepared to tell the archbishop of San Francisco to go to hell. There are a lot of Catholics in this town and most of them vote.
The judge makes the call. “I will listen to Archbishop Keane’s testimony,” she says.
I can’t look at Rosie. This is as good as it gets.
Quinn asks for a recess and returns a moment later with Archbishop Albert Keane, a charismatic redhead in his late fifties who played football with F.X. Quinn at St. Ignatius and started his career at St. Peter and Paul’s in North Beach. He’s wearing the traditional collar as he takes the stand with the confidence of a man who could be running a Fortune 500 company.
Quinn stands a respectful distance from the witness box and his tone has the appropriate level of reverence when he says, “Would you please state your name for the record?”
“Albert Keane.”
“What is your occupation?”
As if we didn’t know.
“I am the archbishop of San Francisco.” He says he’s known Ramon for more than twenty years.
“Could you describe Father Aguirre’s character?”
McNulty’s head slumps. You don’t get training in law school about strategies to rebut the testimony of a sitting archbishop.
Archbishop Keane’s demeanor is calm, almost serene. His bearing is erect and his high-pitched voice is soft, yet authoritative. The courtroom is silent as he addresses Judge Vanden Heuvel directly, and there isn’t the slightest suggestion in his deferential tone that she will burn in hell for all eternity if she doesn’t grant bail. “I appreciate your taking the time to hear me, Your Honor,” he says.
Her expression indicates that she approves of his tenor. “Thank you, Archbishop Keane.”
His delivery is flawless. “Your Honor,” he says, “Father Aguirre is an honest, moral and hardworking priest, and I am sure these unsubstantiated charges will be proven false. We are prepared to offer whatever dispensation as may be necessary to ensure that he is not required to spend time in jail while he is awaiting his opportunity to rectify this egregious error.”
Just the way Quinn scripted it for him.
“Your Honor,” he continues, “the archdiocese is prepared to post bail and to allow Father Aguirre to stay at our headquarters until his legal proceedings have concluded. I will personally guaranty his appearance at the appointed time.”
It’s a defense attorney’s dream: the archbishop is swearing my client will appear at trial. Judge Vanden Heuvel turns to McNulty and says, “Do you wish to respond?”
What can he say? All eyes, including those of the archbishop, turn to McNulty, who addresses her in a subdued tone. “We have great respect for Archbishop Keane,” he says.
It’s a good sign when your opponent acknowledges the moral authority of your witness. McNulty is Catholic and may be reluctant to tweak a guy who has a pipeline to God.
“But,” he continues, “it is highly unusual for bail to be granted in a murder case that may involve special circumstances.”
It’s true. The Penal Code says bail cannot be granted in a capital case if the proof is evident and it is likely the defendant is guilty. Then again, this isn’t a capital case–at least not yet–and so far, the proof of Ramon’s guilt is hardly evident to me.
Quinn lays it on thicker. “Your Honor,” he says, “the purpose of bail is to ensure the defendant will appear at the designated time. The archbishop is willing to vouch for my client’s character, provide a verifiable place for him to stay and to post bond.”
The judge nods, but doesn’t say anything.
McNulty reads her expression and begins damage control. “In the circumstances,” he says, “bail should be substantial and conditional upon the
defendant being remanded to the personal custody of the archbishop.”
Quinn says, “We’re prepared to accept those conditions, Your Honor.”
Judge Vanden Heuvel has the opening she needs. “Bail is set at one million dollars,” she says, “and the defendant is ordered to remain at the headquarters of the archdiocese, except when he is required to appear in court. The attorneys will work out the details for implementing an appropriate monitoring regimen.” She pounds her gavel and adds, “We’re in recess.”
Rosie leans over and whispers, “Do you think we could persuade the archbishop to provide similar testimony for some of our other clients?”
Chapter 9
“Parlor Tricks Don’t Work in Murder Trials”
“I don’t believe in luck. I believe in preparation.”
— William McNulty. San Francisco Chronicle.
The grimace on the face of San Francisco’s most cantankerous ADA is more pronounced than usual and the sarcasm has its customarily pointed edge when Bill McNulty says to me, “Are you planning to call the archbishop to testify at your client’s trial?”
Understatement has never been his forté. “Only if it would help our case,” I say.
“Parlor tricks don’t work in murder trials.”
“The truth does.”
“The truth is that your client murdered Ms. Concepcion.”
“Then you shouldn’t have any trouble proving it.”
McNulty’s boss holds up a delicate hand in a conciliatory gesture. Our mediagenic District Attorney, Nicole Ward, is pouring herself a designer water at the wet bar in the corner of her elegant office on the third floor of the Hall. The deep gray carpets, soft leather sofas and dark oak paneling are a lasting testimonial to the uncontrollable ego of her predecessor, Prentice Marshall Gates III, a megalomaniac whose tenure came to an unceremoniously abrupt end a few years ago after he was accused of murdering a male prostitute in a room at the Fairmont. Gates paid for the upgrades on his own nickel and the city doesn’t have the spare cash to tear them out. Not surprisingly, Ward hasn’t insisted on returning her office to its former bureaucratic splendor.
She takes a seat behind her desk between the Stars and Stripes and the California state flag. She sips her Perrier and flashes the airbrushed smile that adorns the cover of this month’s San Francisco magazine. Her lineage is impressive and her political aspirations have been well-documented. She passed up a chance to run for mayor last year to train her sights on a shot at the U.S. Senate. The forty-year-old is more than a pretty face, and the conviction statistics of the DA’s office have gone up significantly since she took the job.
Her stated purpose for calling this impromptu summit conference was to set ground rules for the expedient exchange of evidence, but that was an entirely transparent pretext. In reality, she granted us an audience to try to smoke out information. Turnabout being fair play, we’ll see what we can get from her. My defense shield is up and my phasers are set on stun. The chances she’ll reveal anything meaningful are slim.
Rosie and I are sitting on the overstuffed couch adjacent to her expansive mahogany desk. Quinn and Shanahan are parked in tall chairs on the other side of the oriental rug. Johnson and Banks are standing as sentries on either side of Ward’s leather chair.
Ward’s plastic smile is replaced by a practiced sincere look that plays more convincingly on TV than in person, and she starts by addressing Quinn. “We’re sorry that we have to meet again in such trying circumstances,” she says. “You have no idea how difficult this is for us.”
I can’t imagine.
Quinn responds with a tempered nod. “This is difficult for all of us,” he says.
Ward darts a glance at McNulty, then she turns to me and says, “That brings us to the murder of Ms. Concepcion.”
“Alleged murder,” I correct her. “We think it may have been a suicide.”
“We don’t. Has your client provided you with an explanation of his whereabouts on the night she died?”
I recite the correct legal answer. “You know we’re under no obligation to provide information to you about our discussions with our client.”
“Yes, we do.” She rests her elbows on the polished mahogany and shakes her chestnut locks. “Frankly,” she says, “we have no great desire to prosecute another priest.”
Except for the fact that you’ll be the lead story on the news for the next year.
She tugs at the sleeves of her St. John knit suit and adds, “These cases are difficult and we were hoping to find common ground to resolve this matter before things get out of hand.”
Shanahan’s interest is piqued. “What did you have in mind?” he asks.
“If your client is prepared to come clean, we would be willing to negotiate this down to second degree with a recommendation for a reasonable sentence. It’s the best we can offer.”
McNulty interjects, “It’s a good deal and the Chronicle will crucify us for offering it. If I were in Nicole’s shoes, I wouldn’t be doing it.”
He isn’t in her shoes and his observation sounds rehearsed. A cynic might suggest Ward is looking to make political capital by trying to elicit a quick confession in a case that could cut against her if things get ugly. That cynic would be me.
Shanahan opts for a tempered response. “We’ll take it back to our client and consider all the ramifications before we make a final decision.”
It’s a rational thought, but it isn’t enough for me. “I won’t recommend it,” I say.
Ward’s chiseled features become more animated. “He murdered Ms. Concepcion.”
“No, he didn’t, and you can’t prove it.”
“Yes, we can.”
I’m not egging her on just to hear the sound of my own voice. Well, maybe a little, but if I can keep her talking, she might reveal some useful information. I lower the volume and say, “How do you figure he did it?”
She measures her words carefully. “He stabbed her and tried to make it look like a suicide. A neighbor saw him exit the victim’s apartment at ten o’clock that night.”
I could resume the argument about the semantics of whether she should be calling Ramon a murderer, but I’m more interested that she mentioned a witness. “Who’s the neighbor?” I ask.
“Her name is Estella Cortez. She lives across the alley.”
Banks interjects, “I’ve talked to her and she’s very reliable.”
He’s an excellent judge of character, but we’ll interview her just the same. I ask Ward if Cortez saw anybody else enter Concepcion’s apartment.
“No.”
“Was she watching the apartment the entire night?”
“Of course not.”
Good answer. “Then it’s possible somebody else went inside without being seen.”
“Anything is possible, Mr. Daley.”
Precisely.
“We found his fingerprints on the murder weapon,” she says.
“Doesn’t mean a thing,” I say. There’s no reason to hide the ball. “Father Aguirre told us he was at Ms. Concepcion’s apartment that night for a counseling session. He used a knife to cut an apple.”
She stops for a beat. “You don’t know that it’s the same knife.”
“We’ll take our chances.”
Her seemingly airtight case may have sprung its first leak and her smug tone has a hint of concern. “You can’t prove he’s telling the truth.”
“I don’t have to. You have to prove beyond a reasonable doubt that he murdered Ms. Concepcion. It isn’t our job to show that he didn’t.” It’s a tidy legal argument, but juries are good at connecting the dots. “Ms. Concepcion was a distraught woman with serious personal issues whose case against the archdiocese was falling apart. Her wrists were slashed and there was no evidence of forced entry or a struggle. How can you possibly rule out suicide?”
“Dr. Beckert said it wasn’t. He gave us a preview of is report. Ms. Concepcion sustained a blow to the back of her right shoulder that rende
red her unconscious. Then the murderer placed her in the bathtub and slit her wrists. She bled to death before she regained consciousness.”
Ugh–doesn’t sound too good. I feign exasperation. “Come on, Nicole, there isn’t a shred of evidence that Father Aguirre had any contact with her.”
“Yes, there is.” And now she’s smiling. She’s been waiting to spring this on me ever since I walked in: “Dr. Beckert found your client’s thumbprints on the back of her neck.”
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