MD01 - Special Circumstances

by Sheldon Siegel

  Skipper is no longer pleased. "I resent the implication that this information was leaked from my office," he says.

  Brown looks right through him. "Mr. Gates," he says, "I expect the statement on my desk by two o'clock. If it isn't, I'll hold you in contempt. Do you understand?"

  "Yes, Your Honor."

  "Good."

  "Your Honor," Mort says, "I think Mr. Gates should be sanctioned for this irresponsible leak." The bull is sprinting at full speed through the china shop. I glance at Rosie. The corners of her mouth turn up slightly.

  "Your Honor," Skipper implores, "we didn't leak anything to the press."

  Mort turns to him. "Oh, and I suppose you think we did?"

  Judge Brown taps his pencil. "Children, please. In the spirit of cooperation, I'm not going to sanction anybody right now."

  "Your Honor," I say, "I would ask you to issue an order that would prohibit any such leaks in the future."

  He glares at Skipper. "I'll do better than that, Mr. Daley. As of this moment, I am issuing a total gag order. I don't want any of you talking to the press. Do you understand?"

  We nod in unison.

  "Good," he says. "Because if anybody violates the order, I'll put them in jail for contempt. I mean it. Fines don't mean anything to you. I'll put you in jail. For a long time. Understood?"

  We nod again. It's like kindergarten. When the bell rings, we get to go to recess. "I'll see you in court," Brown says.

  "Nice work, Mort," I say. Joel, Rosie, Mort and I are sitting in a small consultation room just behind Judge Brown's courtroom.

  "It's a good result," Mort says. "We didn't get everything, but we got the confession out."

  "What does it mean for the prelim?" Joel asks.

  "The good news," I say, "is they'll have to show more of their case."

  "Can you get the charges dropped?"

  Rosie, Mort and I glance at one another. "It doesn't look good," I say. "They don't have to show very much. They've got you at the scene. They've got your fingerprints on the gun and the keyboard. They've got the phone messages. That's probably enough to get this to trial."

  "But we can explain all that stuff." He's pleading his case to us.

  "I know. But we don't want to telegraph our defense too soon."

  "So you're saying we're going to trial."

  "Looks like it."

  He looks up at the ceiling, and says nothing.

  "All rise." Judge Brown enters his small, packed courtroom and takes his place on the bench between the Stars and Stripes and the California state flag. Reporters fill the jury box. There's barely room for a few courthouse groupies. Joel sits at the defense table between Rosie and me. Mort is at the end of the table. Rabbi Friedman and Naomi sit silently in the first row. Joel's mother is home watching the children.

  The case is called and Skipper and I state our appearances for the record. Judge Brown reads the charges and says the defendant has entered a plea of not guilty. He reminds us this is a preliminary hearing for the purpose of determining whether there is sufficient evidence to hold the defendant over for trial. Skipper gives a brief opening statement summarizing the evidence. I give an even shorter statement that says, in effect, there are too many gaping holes in the state's case to hold Joel over for trial. Then Judge Brown instructs Skipper to call his first witness.

  "Please state your name and occupation for the record," Skipper says.

  "Dr. Roderick Beckert. Chief Medical Examiner for the City and County of San Francisco."

  "How long have you held that position?"

  "Thirty years."

  Skipper starts to run Beckert through his credentials. Undergrad at Harvard. Medical degree from Stanford. I interrupt and stipulate to his expertise. Skipper is disappointed. He was just getting to the part where Beckert delivered the tablets at Mount Sinai.

  Skipper hands Beckert a copy of his autopsy report. Beckert glances at it briefly. His testimony doesn't take long. He confirms Bob and Diana died from gunshot wounds. Skipper sits down. He's played just enough cards for a prelim. McNulty has coached him well.

  "Dr. Beckert," I say, "your report says the wounds to Mr. Holmes may have been self-inflicted."

  "Yes it does."

  I need to be careful with the next question. "Dr. Beckert, it is possible that the wounds were, in fact, self-inflicted, right?"

  "Yes, but…"

  I interrupt him. "Thanks, Doctor. You've answered my question. I have no further questions."

  He looks at the judge. His eyes plead for a chance to explain. Brown tells him to step down.

  Sandra Wilson is next. Skipper quickly walks her through her resume. Undergraduate and masters degrees from UCLA. A nine-year veteran of the SFPD. I'll look like an ass if I interrupt her.

  She calmly describes the physical evidence. As the sportscasters like to say, we can't stop her—we can only hope to contain her. Skipper takes her through chain-of-custody issues. She leaves no doubt the gun and the other evidence were handled and catalogued in accordance with police procedures. She describes the fingerprints on the gun and the keyboard. She says they're a perfect match for Joel's. She introduces the tape from Diana's answering machine and a recording of Joel's voice mail to Bob. Joel leans over and whispers whether there's anything we can do. I shrug. Skipper sits down. He probably doesn't need to call any other witnesses.

  "Ms. Wilson," I say, "did you test the defendant's hands or clothing for gunpowder residue?"

  "No."

  "Why not?"

  "He wasn't a suspect at the scene. By the time he became a suspect several days later, his hands and clothing would have been cleaned and the tests wouldn't have shown anything."

  "So you can't prove he fired the gun?"

  "His fingerprints were on the gun, Mr. Daley."

  "I understand. But you can't show that he fired it."

  "That's correct."

  "Just one more question. Did you find Joel Friedman's fingerprints on the trigger?"

  I'm sure she expected the question. She pauses briefly and says, "There were smudged fingerprints on the trigger, Mr. Daley. We were unable to positively identify them."

  "So, you can't affirmatively demonstrate that Mr. Friedman pulled the trigger?"

  "We could not identify the fingerprints on the trigger, Mr. Daley," she repeats.

  I argue with the judge for a few moments that she's being unresponsive. He finally gets her to admit that the physical evidence does not conclusively show that Joel pulled the trigger.

  "No further questions," I say. It's helpful to have an ex-cop like Pete on our side. He notices things.

  Roosevelt takes the stand. He confirms Joel admitted he was in the S&G offices the night of the incident. He describes the scene in Bob's office. He provides copies of the phone records showing the call from Joel's office to Diana. His testimony is all factual. And all true. I see McNulty's influence. He figures he doesn't need to show very much to get this case to trial. I can't punch a hole in anything Roosevelt says. I'll save it for the trial. I decide not to cross-examine him.

  Skipper trots out a straightforward Rick Cinelli to talk about the fight at Harrington's and an edgy Homer Kim to talk about the argument in Bob's office. On cross, I get each of them to admit that they didn't know what the arguments were about. I get Cinelli to admit Joel and Diana may have been talking about business. I get nothing out of Kim.

  I figure Skipper is about to wrap up when he calls Art Patton. The courtroom is silent as the Enormous One walks forcefully to the front of the courtroom.

  "Mr. Patton," Skipper says, "were you at the Simpson and Gates firm retreat last October?"

  "Yes." His tone is measured.

  "And during that retreat, did you have an opportunity to see the defendant and Ms. Kennedy?"

  "Yes. I saw them many times."

  "I would like to ask you about one particular time. Did you see the defendant and Ms. Kennedy at approximately three A.M. on Saturday, October twenty-fifth?"


  "Yes, I did."

  "And can you tell us the circumstances of that meeting?"

  I'm up. "Objection, Your Honor. I fail to see the relevance."

  "I'll allow it," says Judge Brown.

  Patton tries to look sincere. "I heard noises from Mr. Friedman's condo. I was concerned, so I knocked on his door. Mr. Friedman answered. I asked him if everything was all right, and he said yes. Then I saw Ms. Kennedy in Mr. Friedman's bed. She didn't appear to have any clothes on."

  There are shuffling sounds in the back of the courtroom. I steal a glance at Naomi, who is looking down.

  "And what did this lead you to conclude, Mr. Patton?"

  "Objection," I say. "Speculative."

  "Sustained."

  "I'll rephrase," says Skipper. "Did you observe Mr. Friedman and Ms. Kennedy having a physical relationship in his room that night?"

  "Objection, relevance."

  "Overruled."

  Patton tries to look embarrassed. He turns to the judge. "I'm uncomfortable discussing the personal lives of members of the firm."

  Bullshit.

  Brown says, "I'm going to have to ask you to answer the question, Mr. Patton."

  Patton exhales melodramatically. "It appeared that they had been in his bed together."

  "No further questions."

  Nice move, Skipper. It'll be tough to unring that bell. I glance at Naomi as I stand up. She's still looking down. The rabbi is frowning.

  "Mr. Patton," I say, "did Mr. Friedman let you into his room?"

  He looks at me through his small, round glasses. "No. I stayed outside."

  "I see. And did he open the door all the way?"

  "No, he didn't."

  "How far did he open the door?"

  He stops to think. "Maybe halfway."

  "Really. Halfway's about a foot, maybe a foot and a half, right, Mr. Patton?"

  "I guess so."

  "I'll bet you couldn't see much of Mr. Friedman's room through that twelve inches."

  "I could see most of it."

  "And how long was the door open?"

  "About a minute."

  "And what was Mr. Friedman wearing?"

  "I don't recall. I think he was wearing a sweatshirt and sweatpants."

  "Was the light on?"

  He scowls. "No."

  "Did you see Mr. Friedman touch Ms. Kennedy?"

  "No."

  "And was Ms. Kennedy under the covers?"

  "Yes. The covers were pulled up over her body."

  "I see. Yet you just testified that Ms. Kennedy appeared to be naked."

  "Yes. From where I stood, she appeared to be naked."

  "But you just said she was under the covers."

  "I could still see her."

  "But she may have been wearing clothes or pajamas or a sweat suit, right?"

  "I suppose that's possible."

  "And you were looking through a twelve-inch gap in the door into a dark room?"

  "Yes."

  Now, the kill. "Mr. Patton, did you actually see Mr. Friedman and Ms. Kennedy in bed together that night?"

  "No."

  "Did you see them have any physical contact that night?"

  Skipper's up. "Asked and answered, Your Honor."

  "Overruled."

  "No," Patton says, "I cannot confirm that they had any physical contact that night."

  So far, so good. Now, we'll see if Skipper is awake over there. "Mr. Patton, isn't it true there was a social gathering at your room that same night?"

  "I don't recall."

  Skipper, wake up. You should start objecting now. "Mr. Patton, I was there that night. I can provide a copy of the invitation for the party that night." It's nice of Skipper to let me testify. He should be up on his feet screaming. I glance over and McNulty's whispering frantically into his ear.

  "Yes, Mr. Daley," Patton says. "There was a party in my room that night."

  "Good. And was Ms. Kennedy there?"

  "Yes."

  "Isn't it a fact, Mr. Patton, that Ms. Kennedy left the party because she was upset?"

  "I don't recall."

  "Let me refresh your memory. Isn't it true she left the party because she was upset when you demanded that she sleep with you?"

  The courtroom roars. Brown pounds his gavel. Rabbi Friedman whispers to Naomi.

  "Objection, Your Honor. There's no foundation for this."

  Look who woke up.

  "Overruled."

  Patton is grinning. "I haven't the slightest idea what you're talking about."

  "Isn't it true, Mr. Patton, that you followed Ms. Kennedy to her room after she rejected your advances?"

  Skipper's up. "Objection, Your Honor. The witness has indicated that he doesn't know anything about this alleged incident if, in fact, it took place."

  "Overruled."

  "Isn't it true, Mr. Patton, that you attacked Ms. Kennedy in her room, and she went to Mr. Friedman's room for protection? And isn't it true you went down to Mr. Friedman's room so you could tell everyone you saw Ms. Kennedy and Mr. Friedman in bed together if Ms. Kennedy ever accused you of sexual harassment?"

  Skipper starts to get red in the face as he screams his objection. Before the judge can rule, Patton stands up and shouts, "That's a lie!"

  Judge Brown slams his gavel on the little wooden base. I look at Naomi, who gives me an approving nod. Patton regains his composure and sits down.

  Judge Brown looks at me. "The objection is sustained," he says in a measured tone.

  "No further questions, Your Honor." If Joel is going on trial, Simpson and Gates is going on trial with him.

  After brief closing arguments, Skipper makes his motion to bind Joel over for trial. I move for dismissal. Skipper's motion is granted and mine is denied.

  "Mr. Daley," Judge Brown says, "I assume you'll want to move for a change of venue."

  "No, Your Honor, we're perfectly happy to stay here in San Francisco."

  He's surprised. "May I assume your client will waive time?"

  I don't hesitate. "No, Your Honor, my client will not waive time. We want a trial date as soon as possible. We want to go in sixty days—sooner, if we can."

  I don't know who looks more dumbfounded—Skipper or the judge. Skipper stands up and says, "Your Honor, we have a very tight schedule at the DA's office. It is highly unusual for a suspect not to waive time in a trial of this complexity. Highly unusual."

  "Your Honor," I say, "this is a simple case. My client has a statutory right to a trial in sixty days. We'll take the first trial date you've got. If Mr. Gates insists on proceeding with this unsubstantiated case, we want to clear Mr. Friedman's name right away. Mr. Gates just started at the DA's office. He couldn't have filled his schedule yet." I get a smattering of chuckles from the gallery.

  Judge Brown gives me a skeptical look. "Mr. Daley, are you sure about this?"

  No, I think my client is out of his mind. "Yes, Your Honor. We won't waive time."

  "Very well." He looks at his calendar and confers with his clerk. "I'm setting trial for March sixteenth in superior court before Judge Shirley Chen."

  I frown. Brown looks at me. "Is there a problem with that, Mr. Daley?"

  "No problem at all." Judge Chen is a newly appointed superior court judge. She's another former prosecutor who will be presiding over her first murder trial. Another lousy draw for us.

  "Good. Pretrial motions on March ninth." He pounds his gavel and says, "We're done."

  20

  MOVIE NIGHT

  "We have no intention of discussing a plea bargain."

  —Skipper Gates. NewsCenter 4 Daybreak. Wednesday, January 21.

  Lights! Camera! Movie night! We have gathered in Rabbi Friedman's living room at six o'clock the next evening to view the security videotapes from the night of the "incident," as we have taken to calling it. True to her word, Sandra Wilson has provided six hours of grainy footage. Hopefully, we'll be able to use the fast-forward button liberally. All things
considered, I'd rather be over at Joel's house watching The Lion King video with his kids.

  Joel fiddles with the VCR. His father sits in a tall, uncomfortable-looking chair in front of the TV, drinking a Sprite. Rosie and I sit on the sofa, our notepads poised. Mort is in a side chair near the TV. He won't be taking notes. He reminds us he's terribly nearsighted. Joel's mother is watching the kids again, so Naomi has joined us. She sits on the floor in front of the TV, her legs crossed. I haven't talked to her since the hearing yesterday. She seems to be holding up reasonably well. It must be tough on the kids. In a modest concession to whimsy at this otherwise stoic gathering, she's made popcorn.

  Pete stands behind the sofa, clutching a clipboard with a printout listing all the people who ran their security cards through the computer scanner to check in or out of the Bank of America Building on the night of December 30. He has a separate list of those who signed in or out by hand. He studies his lists. We're trying to confirm what time everybody came and went. And we're looking for inconsistencies between the tapes and the lists, if there are any.

  During the evening hours at the Bank of America Building, pedestrian traffic is funneled toward one exit door in the lobby and toward the escalator to the garage. There are two video cameras in the lobby, one on each side of the guard desk. There's a camera by each of the six elevator banks. There is a service elevator that stops at every floor, but you need a key to use it. There are stairs, of course, but the access doors to the office floors are kept locked. There are cameras by the entrance and exit to the garage. It would be pretty tough to leave the building undetected. So they say.

  Pete's interviews with the security guards revealed there are no cameras in the elevators or stairs. Too expensive. Except for a few acts of vandalism, there isn't much crime in elevators. Nobody uses the stairs.

  Joel hits the play button. The quality of the black-and-white video is similar to the videos of convenience-store robberies you see on shows like America's Most Wanted. The time is stamped in the lower-left corner in block white numbers. The cameras don't move. It feels like we're eavesdropping.