“Those discussions were confidential and off-the-record,” Quinn says.
“Not in the context of a murder trial,” I say. This may not be entirely true, but I’m on a roll. “Archbishop Keane spoke with Ms. Concepcion in the days leading up to her death. The status of the O’Connell case and her demeanor during that time are relevant to Father Aguirre’s case. The only items that aren’t fair game are those covered by attorney-client privilege and those which may tend to incriminate the witness.”
Quinn points a finger at me and bellows, “Are you suggesting that Archbishop Keane is a suspect?”
“I’m simply noting that he doesn’t get a free pass just because of his position.”
“That’s preposterous,” he says.
“That’s the law.”
Judge Tsang says, “I’m going to allow Mr. Daley to call Archbishop Keane.”
Excellent.
“But Your Honor–” Shanahan says.
“I’ve ruled, Mr. Shanahan.”
It’s a win for us and I keep my mouth shut.
The judge isn’t done. “There are several other issues that I want to address,” he says. “First, I’m going to ban television cameras from this proceeding. As much as I like being on TV, I want to try to keep the media hype for this case to a minimum.”
The only mild protest comes from Ward, who will lose face time on the news tonight.
“Second,” the judge says, “I’m imposing a strict gag order on everybody involved in this case.” He jabs a finger in my direction and says, “I don’t want to see you on Mornings on Two spreading wild rumors and spewing propaganda.”
Ignatius Tsang isn’t going to let us play this one out in the media.
“Third,” he continues, “I expect all of you to behave in a dignified and professional manner. I will not hesitate to hold you in contempt if you start grandstanding and I won’t let you turn my courtroom into a circus. Understood?”
We reply in unison with an unenthusiastic, “Yes, Your Honor.”
He reminds Quinn and Shanahan that they are on the witness list and are therefore not allowed to be present in the courtroom during the testimony of the other witnesses. Then he stands and heads for the door and says, “Let’s get to work.”
Chapter 43
“All Rise”
“Mr. Daley and Ms. Fernandez should ask for a continuance.”
— Legal Commentator Mort Goldberg. Channel 4 News. Monday, December 15. 8:30 A.M.
A faulty heating duct has left Judge Tsang’s packed courtroom unbearably hot, and the air reeks of mildew from the torrential rains as the bailiff calls for order at nine-thirty. Umbrellas and raincoats are strewn haphazardly and the jury box is filled with reporters. The sketch artists are sitting in the rear, their pencils poised, and Jerry Edwards is perched in his usual spot in the second row, just behind Lita Concepcion. Quinn and Shanahan have to wait in the corridor, but a couple of dutiful associates from Shanahan’s firm are taking copious notes. We can keep witnesses out of court before they testify, but we can’t prevent their colleagues from spying.
McNulty and Ward look like twins who were separated at birth in their matching gray suits. Ramon’s hands are folded as he sits at the defense table between Rosie and me. He’s wearing the traditional collar and black slacks. I’ve instructed him to be attentive and respectful, but to avoid drawing undue attention to himself. In other words, I need him to look like a priest.
“All rise.”
Judge Tsang hustles to the bench and motions us to sit down. He buys a moment to gather his thoughts by turning on his computer, adjusting his microphone and pouring himself a glass of water. He wants to give the impression that this is just another day in the office, but his act is unconvincing. He dons his reading glasses, looks down at his docket and says, “Are counsel prepared to proceed?”
The attorneys inch forward. “Yes, Your Honor,” we recite in unison.
He asks the bailiff to state the case.
“The People versus Father Ramon Aguirre.”
The murmuring stops, the house lights go down and the curtain goes up.
The judge patiently reminds the few people in the gallery who don’t tune in to Law and Order that the purpose of this prelim is to determine whether there is sufficient evidence to suggest that Ramon committed murder. “The threshold for holding a defendant over for trial is significantly lower than to convict,” he notes, “and just because a defendant is bound over does not in any way suggest he is guilty. It is a fundamental principle of our legal system that the accused is presumed innocent until proven guilty beyond a reasonable doubt in a court of law.”
The younger reporters may be impressed by his solemn recitation of the customary legal catechism, but the rest of us are unmoved, and other practical ramifications are left unsaid. Our system is as good as any, but once you’ve been accused of a serious crime, your life is never the same. Ramon’s career probably ended when Judge Tsang banged his gavel.
The seating arrangements in courtrooms are similar to weddings, and Ward and McNulty are akin to the bride’s side of the family. Their guest list is longer than ours and their invitees are jockeying for the seats on their side of the aisle. Our only invited guest is Terrence the Terminator, who is surrounded by a half dozen of Ramon’s parishioners who waited in line over night to get the few seats that are available to the public. Their support is appreciated, but when you cut your teeth in the PD’s office, you get used to being outnumbered.
Judge Tsang asks Ward if she’s ready to proceed, and she responds with a radiant smile. “Yes, Your Honor,” she says.
“Will we be hearing from you or Mr. McNulty today?”
“Both of us.” Her smile gets broader. “Initially, you’ll be hearing from me.”
It isn’t uncommon for the DA to appear in court to provide moral and political support to her subordinates, but it is unusual for her to conduct any real business. The media-savvy Ward recognizes this is a high profile matter that requires serious attention. She’s also interested in generating face time. District attorneys are first and foremost politicians.
Judge Tsang looks over his reading glasses and says, “We’re pleased to have you back in our courtroom, Ms. Ward.”
“Thank you, Your Honor.”
Oh, please.
The judge turns my way. “Will you be addressing us on behalf of the defense, Mr. Daley?”
“Yes, Your Honor.” I glance over at Ward and take a gratuitous swipe. “We are also pleased that the district attorney has decided to take an active role in this case. It’s encouraging to see our tax dollars at work.” I give Ward a nod that says, “If you want action, you’ve got it.” She responds to my trash talk with a magnanimous plastic smile.
The judge decides not to dip his toe into our petty pissing contest. He says to Ward, “Did you wish to make an opening statement?”
Are you kidding? She’s going to play this for all it’s worth.
“Yes, Your Honor.” She nods toward Edwards as she saunters to the lectern, where she stands erect and adjusts the microphone. She tosses her hair back and locks eyes with Judge Tsang. She may be self-serving and compulsively ambitious, but she has charisma. She also has a feel for staging as she works without notes. “May it please the court,” she begins in a crisp voice, “we are here to discuss a serious matter.” She points a finger at Ramon and then looks at the poster-size photo of a smiling Concepcion that she’s placed at the front of the jury box. “We face a difficult situation in which a respected member of our community stands accused of murdering the beautiful woman whose picture appears before you. Maria Concepcion was a successful attorney who was only forty-two years old when her life was tragically snuffed out.”
I want to break up the rhythm of her memorized speech and I take a calculated risk by objecting. “Excuse me, Your Honor,” I say in my most respectful tone. “These proceedings will move along more quickly if Ms. Ward would go a little lighter on the hyperbole.”
The judge looks at our DA, who is rolling her eyes. “Ms. Ward,” he says, “I’m going to overrule Mr. Daley’s objection, but I would encourage you to get to the point.”
She casts a sarcastic glance in my direction. “Your Honor,” she says, “if Mr. Daley is planning to interrupt me at every turn, these proceedings will move at a snail’s pace.”
That’s the whole idea.
Judge Tsang’s tone remains diplomatic. “I would ask each of you to be respectful of opposing counsel,” he says. Good judges are masters of understatement.
Ward goes back to work. “Your Honor,” she says, “we will present sufficient evidence to hold the defendant over for trial for the murder of Ms. Concepcion.”
One more time. “Object to use of the term murder” I say. “I would ask you to instruct Ms. Ward to use the term alleged murder. Now I’m being petty.
I get another nasty look from Ward. “In the interest of having an opportunity to conclude my verybrief opening statement,” she says, “let the record show that I am hereby adding the term alleged to the term murder in my earlier remarks.”
The judge says to me, “Are you happy, Mr. Daley?”
“Yes, Your Honor.” I’ve done what I needed to do. It’s time to sit down and shut up.
“Your Honor,” Ward continues, “we will demonstrate that the defendant was present at Ms. Concepcion’s apartment on the night she died, that the defendant had physical contact with the victim and the murder weapon, and that the defendant attempted to cover up his crime with a clumsy attempt to fake a suicide.”
Somebody coached her to say the words the defendant as many times as she can.
She’s still going. “The defendant has also admitted that he was the father of Ms. Concepcion’s unborn child. This suggests the defendant murdered her to protect his position as a priest. The defendant had motive, means and opportunity and there is sufficient evidence to bind the defendant over for trial for the murder–I mean alleged murder–of Maria Concepcion.”
She sits down. Her workmanlike opening was more than adequate despite my attempts to throw off her pacing, but somewhat south of sensational. Most importantly, it was brief.
The judge turns to me and says, “Do you wish to offer a statement?”
“Yes, Your Honor.” We have the option of opening now or after the prosecution has finished its case. I want to take a few potshots right away.
Rosie leans over and whispers, “Stay on point and keep it short.”
I stand as erect as my six-foot frame allows and I walk to the lectern. I place three handwritten note cards in front of me and look up at Judge Tsang, who eyes me with a somber expression. The courtroom is still as I button my charcoal jacket and address the judge as if he’s the only other person in the room. “Your Honor,” I say, “Father Ramon Aguirre is a respected priest, scholar and community leader, who has been accused of a terrible crime that he did not commit. We will demonstrate that the police and the district attorney have made a colossal error by rushing to judgment without carefully examining the evidence. We intend to conduct a full defense to clear his name so that he may return to his duties at St. Peter’s.”
I pause to see if I can sense any reaction from the judge, but I’m out of luck. He has a better poker face than Tommy.
“Your Honor,” I continue, “our only objective is to find the truth.” This is complete bullshit, but I want to try to win a few credibility points by acknowledging certain indisputable facts. “Father Aguirre visited Ms. Concepcion’s apartment to provide counseling on the night she died. He used a kitchen knife to cut an apple. Coincidentally, it appears the very same knife was used to slash Ms. Concepcion’s wrists. Ms. Ward will introduce evidence suggesting Father Aguirre inflicted those wounds, but we will show that he didn’t.” I don’t want to telegraph the portion of our defense where our medical expert will testify that she committed suicide–it’s too early in the game. “I would ask you to keep an open mind and weigh the evidence carefully.”
I have a tendency to try to provide for all of the holes in our case before the prosecution points them out and Rosie gives me a signal to speed it up. We agreed that I would also address the most damaging issue. “Your Honor,” I say, “it has been reported that Father Aguirre is the father of Ms. Concepcion’s unborn child.”
The courtroom is hushed and Judge Tsang leans forward.
“In the spirit of finding the truth, I can confirm that he is, in fact, the father of the unborn fetus. He has admitted it and he has no reason to lie–about anything.”
I get a muted reaction from the back of the courtroom.
“Your Honor,” I say, “Father Aguirre is deeply saddened by the death of Ms. Concepcion and his unborn child. He attempted to help a parishioner who was desperate to have a baby by acting as a donor so she could be artificially inseminated. The procedure was successful and Ms. Concepcion became pregnant. Father Aguirre acted out of compassion, and any suggestion that this matter was the result of a sordid affair is absurd. The accusation that he murdered Ms. Concepcion is an unsubstantiated claim of the worst kind. Those are the facts, Your Honor. Two lives have been lost. Let us not compound this tragedy by sending a moral man to prison for a crime he did not commit.”
# # #
Johnny Nevins is a good cop and a great character. The outgoing younger brother of one of my classmates at St. Ignatius has a quick smile and a glib manner. At five-five and a wiry hundred and thirty pounds, Johnny was a lightning-fast running back who still holds several school records. He was also the guy who organized the illicit beer parties with the girls from St. Mary’s. His dad and four older siblings are all cops, and it was preordained that he would end up with the SFPD. Johnny developed a deft touch for undercover work that has taken him to some of the seamiest corners of San Francisco. Now in his mid-forties, he gave up Vice a couple of years ago after he took a bullet in a drug bust. He trains new recruits at his old stomping grounds at Mission Station, where the kids can’t keep up with him.
Ward approaches the witness box and Johnny greets her with an affable smile. His crow’s feet and graying hair reveal his age, but the boyish eyes haven’t changed. He tells her he’s been a cop for twenty-two years. “I enrolled at the academy on my twenty-first birthday,” he says, “just like my dad and my brothers.”
It’s Ward’s turn to beam. You can’t find a more engaging witness. She furrows her brow in a manner that suggests she’s attempting to elicit great wisdom when she asks, “Were you the first officer called to the victim’s apartment on Monday, December first?”
“Yes, ma’am.”
He uses the term “ma’am” only when he’s in court.
“What time was that?”
“Nine-thirty-six A.M.” He says he responded to a nine-one-one call placed by Concepcion’s mother. “I was driving by myself toward Mission Station when the call came in. I was returning from an errand.”
“Where?”
“The donut store.”
A smattering of laughter. Johnny can charm the chrome off a tailpipe.
In response to Ward’s question about what he did when he arrived, Johnny leans back and says, “I followed standard police procedures for securing a crime scene.”
I didn’t expect him to say he stole all of Concepcion’s valuables.
He adds, “I provided comfort to Ms. Concepcion’s mother and I called for help.”
“I trust you didn’t disturb any evidence?”
I need to put an end to this love-fest. “Objection, Your Honor,” I say. “Leading. We’ll stipulate that Officer Nevins complied with all applicable rules in securing the scene.” I’m not going to win any claims that Johnny mishandled the evidence.
“Sustained.”
Ward remains unfazed and asks him if he checked the body for a pulse.
“I did.” He glances at Lita and his tone turns solemn when he says, “Unfortunately, I was unable to find one.”
Ward lets the answer han
g. The fact that he found the body is no bombshell, but from a prosecutorial perspective, she’s ticked off the first item on her checklist: there is a victim. Johnny confirms that the paramedics took the body out of the bathtub in an unsuccessful effort to revive her. “Inspector Banks and Inspector Johnson of the homicide division arrived a short time later and took over responsibility for the scene,” he says. “We assembled a team and we began to canvass the area for witnesses.”
“Did you find any?”
“A neighbor heard the defendant and Ms. Concepcion arguing at approximately nine-forty-five the previous night. Another witness saw the defendant leave Ms. Concepcion’s apartment at ten-oh-two. A third witness, Mr. Nicholas Hanson, saw the defendant return to Ms. Concepcion’s building at approximately eleven-forty-five P.M., and leave a short time later.”
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