MD01 - Special Circumstances

by Sheldon Siegel

  "Keep looking, Pete."

  My day hasn't gotten any better as I sit in Dan Morris's office at three o'clock. Not surprisingly, the political consultant's office is a monument to his favorite person—himself. Two walls are lined with pictures of Dan grinning with local dignitaries whose political fortunes he's orchestrated. Another wall is adorned with framed political posters for his candidates. A paunchy redhead, Morris is known as the Chameleon in San Francisco political circles because he'll represent candidates of every political denomination, as long as they're able to come up with the four hundred thousand dollars he charges to run a campaign. He isn't a nice human being, but his candidates win. Lately, he has been running a Senate campaign for Edward Cross, a Republican, and a congressional campaign for Leslie Sherman, a Democrat.

  At three-thirty, I'm still sitting in his office, watching him operate. He's been on the phone since I arrived. In the last fifteen minutes, he's raised about a hundred thousand dollars for Cross and another fifty grand for Sherman. He cups his hand over the phone and mouths the word "Sorry." He holds his thumb and index finger about a quarter of an inch apart, indicating that he'll only be a minute.

  Finally, at three-forty, he hangs up. "Raising money is the shits," he says.

  "I understand." Don't feel any obligation to apologize to me.

  "I hate to do this to you, but I've got to run. I'm due at the mayor's office in ten minutes."

  "Can we reschedule for tomorrow?"

  He's putting on his coat. "I'll have to call you. I'm flying to L.A. first thing in the morning."

  "Can't we talk for just a minute?"

  "Can't keep the mayor waiting. I'll call you." He's out the door.

  At four-thirty, I walk into Harrington's, an old, dark, wood-paneled pub on Front Street that's now surrounded by high-rise office buildings. I want to get there before the evening rush.

  Rick Cinelli is an olive-skinned, dark-haired man with a raspy voice and a reserved manner. He's been tending bar at Harrington's for twenty years. He could run for mayor. I take a seat at the bar and he pours me an Anchor Steam. "Haven't seen you in a while, Mike," he says.

  "Been busy, Rick." I sip my beer. "You know I left S and G."

  "I heard." He walks down to the end of the bar to attend to a customer, then he comes back. "Helluva thing about Bob and Diana," he says. "I hear you're representing Joel."

  "Yeah." I pause. "Actually, that's why I'm here. I understand Joel and Diana were here that night. The cops talked to you."

  He nods.

  "Mind if I ask you a few questions?"

  "Ask away. I've got nothing to hide."

  "They say you told the police Joel and Diana had a fight that night."

  "They did. One minute they were ordering dinner. The next minute they were arguing. Next thing I knew, she stormed out. It lasted a minute and a half."

  "That's it?"

  "That's it."

  Now, the important part. "Do you happen to know what they were arguing about?"

  "Nope." He shrugs. "It was busy. They were sitting in the corner. As long as they pay for their drinks, I leave them alone. That's why I've been here for so long."

  It's what I expect him to say. "Could you tell if they were fighting about work?"

  "I couldn't tell."

  "Did you hear anything in particular?"

  He looks across the room. "I heard him say he was going to get her for something. I remember that distinctly. He said it a couple times. I'll get you for this.’ "

  Swell. I pay him for the beer and I thank him. He promises to call me if he hears anything.

  "Mr. Kim, may I speak to you for a moment?" I approach Homer Kim, a young Korean custodian, at the employees’ entrance to the Bank of America Building at five o'clock. The evening shift is about to start. I introduce myself and hand him a business card. He looks suspicious. "I wonder if I can ask you a few questions."

  He looks apprehensive. "Late for work," he says in broken English.

  "It'll take just a minute."

  He looks perplexed. "Okay."

  I explain I'm representing Joel. He recoils. "I understand you spoke to the police."

  He's suspicious. He should be.

  "Did you tell the police Mr. Friedman and Mr. Holmes had a fight that night?"

  His eyes wander. "Yes," he says tentatively. "Mr. Friedman was very angry at Mr. Holmes." He starts to move away.

  "Do you know why?"

  His eyes dart away. "No."

  "What did Mr. Friedman say to Mr. Holmes?"

  He shrugs. "Don't know. I walked by the office. Mr. Friedman was yelling at Mr. Holmes."

  "Mr. Kim, do you know what they were arguing about?"

  "Don't know. Late for work."

  "Did you hear any shots?"

  "No. Late for work." He pushes his way around me. A good prosecutor will get him to say exactly what he wants.

  At six o'clock, I'm in my office with Rosie when Pete calls. I put him on the speaker phone. "You guys get something?" he asks.

  "Nothing useful," I reply.

  Rosie says, "Me neither."

  I ask Pete if he's found anything.

  "I had someone watching your friend Arthur Patton last night." I can hear the grin in his voice. "You were right about his divorce. He and his wife separated a couple months ago and he's living in an apartment on Russian Hill. Around eight last night, he went over to pay a condolence call to the Widow Holmes." He pauses. I look at Rosie. "It was a long condolence call. He didn't leave until seven this morning."

  If I ever get married again, I swear I'll never cheat as long as Pete's still breathing.

  At seven o'clock in the evening on the following Monday, Rosie, Mort and I meet with Joel and his father in Rabbi Friedman's dining room. The preliminary hearing is set for ten o'clock tomorrow, with motions at nine.

  Rabbi Friedman is not happy. "So," he says, "are you saying you won't be able to get the charges dropped tomorrow?"

  "It looks that way, Rabbi. They've probably got enough to take the case to trial."

  Mort nods. "Rabbi," he says calmly, "it doesn't mean they have a strong case. It just means they have enough to get to trial."

  Rabbi Friedman doesn't look mollified.

  Joel is edgy. "So what do you plan to do tomorrow?" he asks. "Roll over?"

  "No," I reply. "We'll challenge their witnesses. We won't make it easy for them. But we won't tip too much of our hand. We don't want to give them anything they can use at the trial."

  "You're going to get that so-called confession knocked out, right?"

  "Yes. That's the first thing on the agenda. We're going to talk to the judge in chambers before the hearing starts. If he lets the confession in, we'll go straight to the appellate court for a writ. I don't want it to see the light of day."

  Rabbi Friedman shakes his head. Joel turns to his father. "They're doing everything they can, Dad. The legal system doesn't work so well sometimes. And it never works very fast."

  Thanks, Joel. It's nice when your client defends you. Things usually work better when it's the other way around.

  Rosie breaks the silence. "Do you think we should ask for a change in venue? There's been a lot of press coverage. It may be tough to get an unbiased jury."

  We've talked about this a couple of times. The defense often asks for a change in venue to a galaxy far, far away, where the potential jurors haven't seen all the press coverage.

  Mort chimes in first. "I still think we should stay here," he says. "San Francisco is a liberal town. I'd rather try a murder case here than almost anywhere else in California."

  Rosie nods and I add, "I agree. You wouldn't want to try this case in Bakersfield or Orange County. I'd take my chances with a San Francisco jury."

  Joel says, "Then, I guess we'll stay here?"

  "Yes."

  Rosie says, "There's something else we should talk about. Assuming this moves forward, we need to think about trial dates. We'll need to prepare witnesses,
get experts, talk to jury consultants. It could take some time." She turns to Joel. "I'm sure you'll want to waive the rule that says they have to start the trial within sixty days."

  Mort agrees. "I've never had a case where the defendant didn't waive time."

  Joel sets his chin. "I'm not going to waive time."

  "Can we talk about this, Joel?" I ask.

  "We can talk about it all you want," he replies. "Bottom line, I'm not waiving time. My life has been turned upside down for something I didn't do. My reputation has been destroyed. My wife and kids are going through hell. As much as I like staying here at my parents’ house, I want to go home. This case isn't complicated. I didn't do it. I'm not going to give Skipper a year to practice for this trial. I want a trial date as soon as possible. Tell the judge tomorrow I'm not waiving time."

  "Joel," I say.

  He stops me. "No. I'm the client. What I say goes. I'm not waiving time."

  19

  THE PRELIMINARY HEARING

  "NewsCenter 4 has learned from reliable sources that Joel Mark Friedman has confessed to the murders of two colleagues. Judge Kenneth Brown will preside at the preliminary hearing at ten o'clock today."

  —Rita Roberts. NewsCenter 4 Daybreak. Tuesday, January 20.

  "Your Honor," Mort begins, "we have three very serious issues." At nine o'clock in the morning on Tuesday, January 20, Rosie, Mort and I sit in Judge Kenneth Brown's cramped chambers. Skipper and McNulty are with us. Brown's desk is littered with files and law books. There's a picture of him shaking hands with the governor on his credenza.

  Judge Brown is late fifties, with a lanky frame, a salt-and-pepper beard and narrow eyes. He's a former prosecutor and political ally of the mayor. He's bucking for an appointment to federal court. At the moment, he's stuck listening to motions and conducting preliminary hearings. Unlike Judge Levin, Brown actually reads the California statutes from time to time and is viewed as an up-and-comer. The scouting report suggests he's never met a prosecutor he didn't like. "What's the problem, Mr. Goldberg?" he asks. He's all business.

  This morning's motions will be Mort's show. If he can't convince his poker buddy Judge Brown to exclude the confession, we're in big trouble. It's the closest we will come to having home-field advantage. Mort's actually very good on evidentiary issues. "First," he says, "Inspector Marcus Banks has alleged Mr. Friedman confessed. He didn't. Second, Mr. Friedman wasn't Mirandized when he was questioned. Even if we assume he did, in fact, confess—which he didn't—the confession is inadmissible. Third, somebody from Mr. Gates's office leaked the alleged confession to the press. The potential juror pool has already been tainted. We have no choice but to move for dismissal."

  He'll never dismiss the case. Not a chance.

  "Your Honor," Skipper begins.

  The judge cuts him off. "Mr. Gates, I'll tell you when it's your turn to talk."

  Skipper nods submissively. "Yes, Your Honor."

  The judge turns back to Mort. "Let's take this one step at a time. I've read your motion. I'm not in a position to determine what was said. For purposes of this hearing, I have to let Inspector Banks testify about what he heard—unless I'm pretty sure he's committing perjury."

  Skipper grins.

  "But, Your Honor…" Mort says.

  Brown raises his hand. Mort stops midsentence. "On the other hand," he continues, "your other charges are considerably more serious."

  Skipper stops grinning. The judge points his pencil at him. "Mr. Gates, was the defendant properly Mirandized before the interview took place?"

  Skipper looks at McNulty. "No, Your Honor," he says. "He wasn't Mirandized because he wasn't a suspect at the time." McNulty nods in agreement.

  Brown frowns. "How long was Mr. Friedman questioned?"

  Skipper clears his throat. "A couple of hours, Your Honor," he murmurs.

  "I'm sorry, Mr. Gates, I didn't hear you."

  "A couple of hours, Your Honor." He says it louder this time.

  I interrupt. "Actually, the interview took four hours. This issue came up at the very end."

  "I see." Brown turns back to Skipper. "Did the defendant volunteer the information or did Inspector Banks ask him if he committed double murder?"

  There's a pause. Skipper looks at McNulty. "I believe he responded to a question."

  "Mr. Gates," says Brown, "perhaps we should invite Inspector Banks in so he can tell us exactly what happened."

  "That's a good idea," Skipper replies.

  Judge Brown asks his bailiff to summon Banks, who strolls in confidently a moment later. He's well dressed, in a double-breasted gray suit. His French cuffs are adorned with large gold cuff links. I don't know how he can afford his wardrobe on his salary. He takes the one empty chair.

  "Inspector Banks," Brown says, "we understand you interviewed Mr. Friedman."

  "Yes, Your Honor."

  "And toward the end of the interview, you claim he confessed to committing the murders of Robert Holmes and Diana Kennedy?"

  He doesn't hesitate. "Yes, Your Honor. That's right."

  "Was the interview taped?"

  "Yes, Your Honor."

  "Was this alleged confession taped?"

  He pauses briefly. "Well, no, Your Honor."

  Brown opens his eyes wide. "Why not?"

  "My partner, Inspector Johnson, and I had concluded the formal part of the interview. We had turned off the tape recorder."

  "And after you turned off the tape recorder, Mr. Friedman confessed?"

  "Yes."

  Brown taps his pencil on the desk. "What a coincidence. Where was Inspector Johnson when Mr. Friedman allegedly confessed?"

  "He was outside the room."

  "And why was that?"

  "He went to get Mr. Friedman a drink of water."

  "So Inspector Johnson didn't hear this alleged confession."

  "No he didn't."

  "And nobody else heard it?"

  "No."

  "Your Honor," I say.

  He stops me. "It will be your turn in a minute, Mr. Daley. Inspector Banks," he continues, "how long have you been with the department?"

  "Thirty years."

  "And how many murder suspects have you interviewed in thirty years?"

  He thinks. "Hundreds. Maybe thousands, Your Honor."

  The judge points a menacing finger toward him. "And you've heard of the Miranda rules?"

  He swallows. "Yes, Your Honor."

  "Inspector Banks, here's my problem. We understand you didn't give Mr. Friedman his Miranda warnings when you questioned him. Is that correct?"

  He glances at Skipper. "Yes, Your Honor. That's correct."

  I'm impressed with his truthfulness. He could have lied and said he read Joel his rights. It would have been his word against Joel's.

  "And may I ask why not?"

  Without hesitation, he says, "He wasn't a suspect at the time of questioning."

  "I see." He gestures at Banks with his glasses. "Inspector, did Mr. Friedman volunteer this information, or did he respond to a question?"

  "I believe I asked him a question."

  "And what was your question?"

  Banks looks directly at the judge. "I asked him if he did it."

  "You asked him if he did it?"

  "Yes, Your Honor."

  "But he wasn't a suspect."

  "No he wasn't, Your Honor."

  "And how did he respond?"

  "He responded affirmatively."

  "Affirmatively?"

  "Yes."

  "In other words," Judge Brown says, "he said yes."

  "That's correct."

  Mort interrupts. "Your Honor," he says, "in point of fact, Mr. Friedman did not say yes. He said the word ‘right’ in a sarcastic tone. He was being facetious."

  Brown turns to Banks. "Is that your recollection of the conversation, Inspector?"

  "No, Your Honor. I distinctly asked Mr. Friedman if he did it, and he responded affirmatively."

  Nice dance, Marc
us. But not good enough. "Your Honor," I interrupt, "Mr. Banks did not answer your question." I turn to Banks. "Isn't it true, Inspector Banks, that in response to your question, Mr. Friedman responded by sarcastically saying the word ‘right'?"

  "That's not the way I remember it."

  McNulty leaps in. "Your Honor," he says, "even if Inspector Banks asked the defendant if he committed the acts in question, he didn't need to be Mirandized because he wasn't a suspect."

  Brown is unhappy. "Mr. McNulty," he says, "it seems to me it's a pretty long stretch to suggest Mr. Friedman wasn't a suspect if Mr. Banks was asking if he committed these crimes." He turns to Banks. "If he wasn't a suspect, Inspector, why did you ask him if he did it?"

  I'm trying to find an opportunity to continue my argument that Joel didn't really confess at all. I glance at Rosie. She gives me the "shut up" look. Mort keeps his eyes on the judge.

  Banks shrugs. "I'm not sure, Your Honor. I guess I just wanted to know."

  Judge Brown looks at Skipper. "Mr. Gates, may I assume you have enough evidence to present today without this ‘alleged’ confession?"

  Skipper hesitates. The correct answer, of course, is yes. "Yes, Your Honor," he finally says. "But it really would help me to get this confession in."

  "Then Inspector Banks should have followed the Miranda rules," he shoots back. He looks at Banks. "The defendant's motion is granted. The alleged confession is out. I don't want to hear a word about it today at the prelim." He turns to Skipper. "Mr. Gates," he says, "you had better be prepared to move forward without it."

  "We are, Your Honor," Skipper replies. He glares at Banks.

  Round 1 goes to the good guys.

  Mort's expression doesn't change. He's still a warhorse. "Your Honor," he says, "we have another problem. This bogus confession was leaked to the press. I've already received inquiries from several television reporters. In fact, I saw it on the news this morning. The potential-juror pool has been irreparably tainted. I have no choice but to ask that the charges be dropped."

  It never hurts to ask. He'll never go for it.

  Brown's grin is almost imperceptible. "If that was a motion to have the charges dropped, Mr. Goldberg, it's denied. Nice try, though." Skipper looks pleased. He continues, "I am ordering Mr. Gates to issue a statement saying there was no confession. I will approve its contents. I expect it on my desk by two o'clock."