Silence. "I have to consider what's best for my son. I'll talk to him about it."
"I understand your concerns. This is a very important decision. It's up to Joel. If he wants to hire another lawyer, I'll be disappointed, but I'll understand." And Rosie will kill me.
He pauses. "Maybe there's an alternative. How would you feel about having another lawyer assist you?"
"What do you have in mind?" I ask slowly.
"I thought that maybe one of the lawyers from my congregation could help you. I know you don't have a lot of lawyers in your new firm."
This is delicate. "I'm always happy to have help. I figured Rosie would sit second chair. We were a great team at the PD's office."
"I see."
"We criminal defense lawyers get a little protective about our territory. I'd be happy to consider having someone else involved, but only with the understanding that I'd make the final decisions."
Silence. "I understand." He clears his throat. "Michael, let me discuss it with Joel."
Joel is less than enthusiastic about the possibility of a plea bargain when I explain Skipper's proposal to him at five o'clock the same day. "Plead guilty to second-degree murder? You've got to be fucking kidding me. No way. No fucking way. Tell Skipper to go fuck himself."
"I didn't say you should take it. I just said that they offered it, and I have an obligation to tell you about it. I'm not recommending it to you."
He regains his composure. "Fine. I'm instructing you to reject the plea bargain."
"Good."
"What did you find out from Skipper?"
This isn't going to be easy. I tell him about the phone calls, the bartender at Harrington's and the phone messages to Diana and Bob.
"Doesn't mean anything," he says. "It shows we were working on a deal. Nothing else."
"I agree with you." I watch him carefully. "There's something else. Diana was pregnant."
He looks down. "I know," he says quietly.
"Come again?"
"I know she was pregnant."
"How did you know?"
"How do you think I knew? She told me."
"When?"
"About three weeks ago."
"Did you tell anyone?"
"Of course not. She asked me not to tell anyone." He looks me in the eye. "When people tell me something in confidence, I don't repeat it. Do you know how many people have told me they're looking for a new job? I listen to them. And I keep my mouth shut. I didn't ask to be the father confessor for the entire firm. It just seems to have worked out that way."
I look right at him. "Joel," I say quietly, "you know I've got to ask."
"The answer is no, I'm not the father. Unless, of course there was some sort of immaculate conception. You Catholics are big on that stuff. We don't buy into it."
I look at the ceiling. This isn't going to get any easier. "There's more," I say.
"What else? Yesterday, I was just a garden-variety killer. Today I'm also an adulterer. Tomorrow, I'll be a sex offender and a child molester, too."
"They have a witness who saw you and Diana together in your room at Silverado at the firm retreat last year. He says she didn't have any clothes on."
"Patton," he murmurs. "He saw Diana in my room." He goes on, "There was a party in Patton's room. Art was drunk. He tried to put the moves on Diana. She blew him off. She went back to her room. He followed her. Depending on who's telling the story, either he asked her nicely to sleep with him, or he attacked her. At about two in the morning, there was banging on my door. Diana came rushing in. She said Patton tried to rape her. Two minutes later, he showed up. He said he heard some noise. He saw Diana."
"He set you up."
"Yeah. If Diana pursued it, Art could say she was in my room with me. He was protecting himself. And he was protecting the firm from a sexual-harassment suit."
Great. "Can anybody else corroborate any of this?"
"Probably not."
"Diana never pursued it?"
"There was an investigation. As far as I know, she didn't push it. She didn't want to torpedo her career."
"You think Patton is the father?"
"I don't know. It could've been Patton. It could've been Bob. Hell, it could've been anybody."
This is serious. The only person who can contradict Patton's account of the events of that night is Joel. And he isn't going up on the stand unless we're desperate. "Does Naomi know about this?"
"No," he says quietly. "And she doesn't need to know."
"It's going to come up," I tell him. "I'd rather she heard it from you."
"I'll talk to her."
I hope so.
"What else did you find out from Skipper?" he asks.
"They think Bob was sleeping with Diana."
"I've heard that one many times."
"And they seem to think you were, too."
"Great. Only two people know the truth—Diana and me. Diana is dead. That leaves me. And I presume you don't want me to testify."
"That's right."
"So I'm fucked."
Reality is at hand. "It doesn't look like we'll be able to get the charges dropped on Monday."
"What's the prognosis on bail?"
"Not great. If Skipper charges you with first-degree, bail will be tough, but not unheard of. If he goes for special circumstances, bail's out."
He turns white. My bedside manner lacked finesse. "The death penalty," he whispers.
"We have to be prepared for it. Skipper was talking about it. He may not decide until after the arraignment."
"Dammit."
I pause to let him get his bearings. "One other thing. I talked to your father. Seems he's gotten a few suggestions that I may need a little help on this case."
"Do you?"
"Yeah. I thought I'd handle it with Rosie. We were a good team at the PD's office." I explain that murder trials in California are divided into two phases. The first involves a determination of guilt or innocence. If there's a guilty verdict, the trial moves to the so-called penalty phase, where the jury decides whether to impose the death penalty. It's customary for the penalty phase to be handled by a different attorney, so the jury gets to see a new face. In addition, when all else fails, the penalty-phase attorney argues that the trial attorney was incompetent. If the trial attorney handles the penalty phase, the trial attorney may be put in the uncomfortable position of having to argue that he screwed up. The penalty-phase attorney is known as Keenan counsel. I tell him I'll handle the trial phase and Rosie will be Keenan counsel.
He stops to ponder for a moment, then he says, "I want to think about it. I know you and Rosie are good. I want to be sure you have enough firepower. My dad's pretty well-connected."
"I know."
"I'll let you know in the next day or so."
"He wants to hire another lawyer as co-counsel?" Rosie is slicing pizza in her small kitchen later the same evening. Grace is watching TV in the living room.
"Yeah. I'm beginning to see why Joel needed some space from his dad."
"He's worried, Mike."
"I know."
"You're going to need some help on this. Probably lots of help."
"I know that, too."
"What did you have in mind?"
"I figured I'd take the lead and use Pete as the primary investigator."
"Keep it in the family. I like that."
"He's good, Rosie."
"I know. What about Keenan counsel?"
"I took the liberty of recommending you. I hope it was okay. Joel deserves the best."
"I thought you'd never ask." She smiles. "One question. Do I have to marry you again?"
"Nope. No more mixing business and pleasure."
"It's a deal."
"Great. I'll check with Joel." I pause. "And his father, I suppose."
"So I gather."
"One other thing—I get to make all the final decisions in the trial phase."
"Of course."
Joel's lucky.
He's just hired the best defense team from the San Francisco PD's office in the last twenty years. Of course, he's also hired two people who reenacted the War of the Roses only five short years ago. We're a mixed bag. And the arraignment is in just two days.
14
"NOTHING EVER HAPPENS AT AN ARRAIGNMENT"
"Plea bargaining isn't just a part of the criminal-justice system—it IS the system."
—Criminal Defense Attorney and Adjunct Professor of Law Morton R. Goldberg. Continuing legal education seminar. MARCH 30,1982.
Two days later. Monday, January 12. The television coverage for every arraignment begins essentially the same way. First, there's footage of an unshaven, handcuffed, jumpsuit-clad defendant being led into court looking guilty as hell. Next they show a clip of a grim-looking prosecutor (almost always a middle-aged white male) marching into court with his minions, uttering platitudes about the strength of his case and his faith in the criminal-justice system. Finally, the scene shifts to the front steps of the courthouse, where a smarmy-looking defense attorney boldly proclaims his client's innocence and castigates the DA for bringing trumped-up charges against a pillar of the community.
At nine-thirty in the morning, the smarmy-looking defense attorney standing in the drizzle on the front steps of the Hall of Justice is me.
I don't particularly care for this sideshow. I'd just as soon avoid becoming a media star. On the other hand, in our TV culture, you try to make points whenever you can with what we attorneys like to call the potential-juror pool.
An army of reporters and cameramen fight for space. It's a great day for the hair-spray industry. With Naomi standing to my left and Rosie to my right, I look directly into the cameras and say, "Ladies and gentlemen, we are shocked and dismayed Mr. Gates has chosen to proceed with these unsubstantiated charges. We are certain Mr. Friedman will be fully exonerated."
We push our way through the throng of shouting reporters.
"Mr. Daley, is it true your client has been offered a plea bargain?" "Mr. Daley, is it true your client is going to plead guilty?" "Mr. Daley, is it true your client tried to commit suicide last night?" "Mr. Daley, is it true your client was having an affair with Diana Kennedy?" "Mr. Daley? Mr. Daley? Mr. Daley?"
I run interference for Naomi and Rosie elbows Rita Roberts and her Channel 4 microphone.
"Is it always going to be like this?" Naomi asks.
"Probably for a while," I reply.
We head toward the elevators. I turn to Naomi. "Rosie will take you to the courtroom. I'm going to see Joel."
"Can I talk to you about something for a minute, Mike?" Joel and I are sitting in the holding area just behind the courtroom a few minutes before the arraignment is supposed to start.
I don't want any surprises today. "Of course, Joel." It's not like either of us is going anywhere with two sheriffs deputies standing just outside the door.
"I was talking to my dad," he says. My ears begin to buzz. "He thinks it might be a good idea if we get you some help."
I knew this was coming. "As I told you on Saturday, I was figuring I'd take the lead and Rosie would sit second chair. Pete will be our lead investigator." I add halfheartedly, "Of course, we'll do it however you'd like."
He rubs his chin. "You know Mort Goldberg? He's the president of the temple."
Oy. Mort Goldberg. Mort the Sport. Smart. Shrewd. Well-connected in the Jewish community. In his day, he was one of the more successful criminal defense lawyers in town. He taught criminal procedure and evidence at Hastings for years. Unfortunately, his day ended about twenty years ago. These days, he spends most of his time cutting deals on drunk-driving cases.
"I've met him. He's been at it for years. Solid reputation." There's no point pissing on him.
"Dad and I thought Mort might be able to help. Do the research. Maybe take a few witnesses."
Look over my shoulder. Second-guess every decision I make. Sounds great. "Let me be honest. He's what we defense lawyers call a pleader. He's not a trial guy. He's a plea-bargain guy."
"Is he good at strategy?"
"Yes, but he's not a strong trial lawyer."
"That's why we have you, right?" He leans back in his chair. "I've given this a lot of thought. I want him involved. I thought he could help at the arraignment. He's waiting outside."
Jesus. "He's here?"
"Yeah. And he's available today."
"Joel, nothing ever happens at an arraignment. You plead not guilty and you sit down."
"I know, but I need to get bail. You have to get me out of here."
"The arraignment starts in five minutes. We can't start talking strategy now."
"I understand. Let me bring him in. I'll tell him he's just going to be an observer today."
"Fine." It's a done deal; what else can I say?
He motions to the deputies and they bring in Mort and Joel's father. Mort is a stocky sixty-three-year-old with a large, bald head and thick aviator-style glasses. A natural back-slapper, he shakes hands with Joel and greets me like we've been pals for years. Give him credit. He's an operator.
"Joel," he says, "don't worry about a thing. Mike and I will have you out of here by noon."
Rabbi Friedman beams. Temple board meetings must be a riot.
Mort turns to me. "Glad we'll finally have a chance to work together. I always admired your work at the PD's office. If I knew you were going to leave, I'd have asked you to work for me."
Smooth. Always start with flattery.
"We're due in court in about thirty seconds," I reply.
In California, criminal arraignments used to be handled in municipal court. In a court reorganization a few years ago, the muni courts were consolidated with the superior courts. As a result, arraignments are now conducted in superior court. Judge Samuel Levin is a dour bureaucrat who's in his late fifties. He's worked his way from traffic court down the hall to superior court in his twenty-some years on the bench. He spent the early part of his career defending insurance companies, which gave him tremendous skill in the art of expedience. He's not really a judge. He's more like a legal-system processor. Now semiretired, he doesn't sit through long trials anymore. He's found a home hearing motions and setting bail. He keeps the wheels of justice turning. We won't see him again after today. It's probably just as well.
The courtroom is packed. Reporters fill the jury box. The roar is deafening. Lawyers and police mill around. We aren't the only arraignment on the calendar this morning, but we're the biggest media event. We rise as Levin enters. The case is called. Skipper and I state our appearances.
Levin wastes no time. "Mr. Daley, does your client understand the charges?"
"Yes, Your Honor."
"May we dispense with a formal reading?"
"Yes, Your Honor."
He turns to Joel. "On the charge of murder in the first degree, how do you plead?"
I nod to Joel, who stands and says in a clear voice, "Not guilty, Your Honor."
Levin looks at me. "By statute, I am required to set a preliminary hearing within sixty days." The preliminary hearing is also held in superior court. At the prelim, the prosecution must show that there is "probable cause" to believe Joel committed a crime. Joel can accelerate the process by demanding that the prelim be held within ten days. Most defendants choose to "waive time," which means they give up their right to require the prelim within ten days. Ordinarily, the defense loses little by waiving time, because it gives them additional time to prepare or, in many cases, cut a deal with the DA.
"Mr. Friedman," I say, "chooses not to waive time."
Levin looks at me over the top of his reading glasses. His face turns somewhat more dour than usual. "May I ask why you believe it would be in your client's best interest to proceed so quickly?"
"My client's life has been severely and needlessly interrupted by these outrageous charges. We are prepared to proceed with his defense as soon as possible so that we may clear his name."
He grimaces. He's about to p
unt this matter to another judge, anyway. Then, after the prelim, we'll move to the slightly more grand surroundings in one of the trial courts upstairs. Levin looks at his calendar. He consults with his clerk. They have a somewhat heated discussion for a few moments. "The preliminary hearing will be one week from tomorrow in Judge Kenneth Brown's courtroom." Brown is a former prosecutor. Not a great draw for our side. Levin turns to Skipper. "Mr. Gates, I trust you're prepared to move forward next week?"
"Let me check my calendar, Your Honor," he replies.
"Mr. Gates," he snaps, "you are supposed to check your calendar before you enter my courtroom. I will assume you'll be there." He turns to me. "Mr. Daley, are you prepared to proceed?"
"Yes, Your Honor."
"See you next week." He raises his gavel and starts to stand.
"Your Honor," I say, "we would like to discuss bail."
He shuffles his papers. "Do I understand, Mr. Daley, that no bail has been set in this case?"
"That's correct, Your Honor. We request that bail be set for Mr. Friedman. He is a respected member of the community and he is hardly a flight risk."
Skipper is up like a shot. "Your Honor, the people oppose bail. The defendant is charged with first-degree murder. We may ask for special circumstances. He is dangerous and bail should not be granted."
Levin's jowls wiggle as he looks first at Skipper and then at me. "Your Honor," I say, "Mr. Friedman is an attorney with one of the most respected law firms in the city. He has lived here his entire life and has significant community and family ties. He is clearly entitled to bail."
"Your Honor," Skipper says, "we are considering special circumstances. It would be highly unusual for bail to be set in a capital case. Highly unusual."
Levin looks at his bench book. He hasn't had a capital case in front of him in some time.
"With all due respect, Your Honor," I say, "the state has not added special circumstances. As a result, at this point, this is not a capital case. The judge has discretion to set bail in this case."
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