MD01 - Special Circumstances

by Sheldon Siegel

  "I can't tell for sure," Pete says. "On the other hand, he doesn't look like the kind of guy who gets twenty-thousand-dollar checks in the mail from Publisher's Clearing House. When we ran the search on his bank accounts, we saw one big deposit come in. It went out the next day. We don't know where the money came from or where it went. He's had some gambling problems."

  "Stay with him, Pete," I say.

  "There's something else," he says. "You remember Beth Holmes said her private eye caught Bob with another woman at the Fairmont in December?"

  We remember. The infamous mystery woman.

  "Well," he continues, "I talked to her private eye. You know she hired Nick Hanson?"

  I do. Mort and Rosie don't. They burst into laughter. "Nick the Dick!" Mort shouts. "She hired Nick the Dick?"

  Wendy's bewildered. "I give up," she says. "Who the hell is ‘Nick the Dick'?"

  Mort, Rosie and I glance at one another. Mort grins at Wendy. "Honey," he says, "Nick Hanson is a legend. Maybe you're too young. He was the lead investigator for a defense lawyer named Nunzio Delia Ventura. Nunzio wasn't the best lawyer in town, but he was one of the most flamboyant. He had a storefront office on Columbus Avenue in North Beach for fifty years. The prosecutors hated him. Nunzio was quite a character. So's Nick."

  "You have to see him to believe him," Pete says.

  "That's right," says Mort. "He may be all of five feet tall. Always dresses impeccably. Quite the man about town. Always has a fresh flower in his lapel. You'd look at him and you'd be inclined to underestimate him. And you'd be making the biggest mistake of your life. He's the most tenacious private eye I've ever met. He's in his eighties. Still a pistol. Still lives in North Beach. Still working every day."

  "He's written several mystery novels based on cases he's worked on," I add. "One was made into a movie. I think Danny DeVito played him."

  "I'll look for him next time I'm at the bookstore," Wendy says. "So, what did Nick the Dick find out about Bob?" she asks.

  "Just what you would have thought. Nick saw Bob with a woman in a room at the Fairmont in late December. He couldn't ID her. He was in the building across the street. The drapes were partially closed and the lights were dim. By the time Nick got to the hotel, she was gone. He took some pictures. He promised to let me see them."

  "Will he testify?" I ask.

  "Of course. This is a high-profile case."

  Rosie looks puzzled. "How does that help us?"

  "If it wasn't Diana, it undercuts Skipper's argument that Joel acted in a jealous rage," I reply.

  "On the other hand," she points out, "if it wasn't Diana, it may undercut our suicide argument. If Bob already had another girlfriend, he couldn't have been too distraught about his breakup with Diana. In that case, it doesn't seem logical that he would have killed himself." As always, Rosie sees the situation with great clarity.

  "Unless," I say, "the mystery woman was just a rebound for Bob and she blew him off, too. Who knows? Maybe she was a hooker."

  Rosie is skeptical. "Seems like a stretch to me," she says.

  It begs the obvious question. "Pete, can you talk to the staff at the Fairmont to see if you can get an ID on the woman?"

  "I'm already working on it," he says.

  "Good." I look at my notes. "We're missing something. I'm sure of it." I turn to Pete. "Any leads on Vince Russo?"

  He winks. "Maybe. You remember his car was found at the Vista Point at the north end of the Golden Gate Bridge? His overcoat washed up at Fort Baker yesterday. He wasn't wearing it."

  "Do you think he might still be alive?"

  "It's possible," he says. "I talked to the cab companies in Marin County. Marin Taxi had a pickup at the Vista Point at about three A.M. on December thirty-first. The dispatcher and the driver both confirmed the fare was taken to the international terminal at San Francisco International. The driver said the passenger was a heavyset male in his thirties or forties, who paid cash."

  "Did you show the driver a picture of Russo?"

  "Yeah. He wasn't sure."

  "You think it was Vince?"

  "You bet your ass I do."

  Pete usually has very good instincts about these issues. Rosie hits the nail on the head when she says, "Sounds like we may have to bring a key witness back from the dead."

  30

  "YOU CAN'T CROSS-EXAMINE A VIDEOTAPE"

  "Judge Shirley Chen will hold a pretrial conference at ten o'clock today to discuss scheduling and evidentiary issues. The trial will start in one week."

  —NewsCenter 4 Daybreak. Monday, March 9.

  March 9 is a day for the lawyers to argue about evidentiary issues, legal motions and scheduling. We'll also get our first taste of Judge Shirley Chen. The tenor of the trial will be set by the decisions she makes today. Rosie, Mort and I park in the pay lot next to the Hall and lug our heavy trial briefcases through the daily El Nino downpour. Skipper's Lincoln is parked illegally in front of the main entrance to the Hall. The minicams are out in force. Rita Roberts stands under a large umbrella with the NewsCenter 4 logo. The wind is howling at thirty-five miles per hour, but her hair doesn't move. I shrug when she asks for a comment. We push our way into the building, shake our umbrellas and walk through the metal detectors. It would be bad form to be late.

  Judge Shirley Chen is in her mid-forties, although she looks younger. She began her career at S&G twenty years ago. It seems as if every judge in California started at S&G.

  She moved to the San Francisco District Attorney's Office three years later. I tried two cases against her when I was a PD. I won one and I lost one. She was an ambitious prosecutor. She'll bring the same tenacity to the bench.

  Her chambers are sterile. Her law-school diploma hangs on the wall, but her books and files are still in boxes. I'm reminded she's single as I notice there are no pictures of a spouse or children. There's a plaque on her wall from the San Francisco Women's Bar Association. There's a gavel from her alma mater, the Hastings College of Law in San Francisco, which indicates that she was named distinguished alumna three years ago. There's a small picture of her with the California attorney general.

  Skipper and McNulty arrive a few minutes after we do. Everybody is decked out in their Sunday best. Skipper's navy blue pinstripe looks as if it was delivered earlier this morning from Wilkes Bashford. McNulty is wearing charcoal gray. We can't compete on clothing. Besides, the rain has taken the starch out of our best going-to-court clothes. Skipper plays with his MontBlanc pen. McNulty sits quietly.

  "Let's get started," Judge Chen says. "You're not the only people on my schedule today."

  We nod in unison. No chitchat.

  "First," she says, "let's talk about scheduling." She looks at me. "May I assume, Mr. Daley, that your client hasn't reconsidered his position concerning the timing of his trial?"

  "That's correct, Your Honor. My client doesn't intend to waive time. We're ready." Or as ready as we're going to be.

  She isn't happy. "Very well," she says. "We're scheduled to start one week from today, on March sixteenth." She looks at Skipper. "Mr. Gates, how many trial days would you estimate for the prosecution's case?"

  He turns to McNulty. "One moment, Your Honor," he says. He and McNulty whisper to each other. Skipper turns back to the judge. "I don't think it will take us very long, Your Honor. If Mr. Daley is reasonable, we won't need a lot of time qualifying our witnesses as experts."

  She holds up her hand and asks impatiently, "How many trial days, Mr. Gates?"

  "No more than ten, Your Honor," he says. "And perhaps substantially fewer," he adds quickly. "We think jury selection may take longer than our case."

  "You may be right about that, Mr. Gates." She turns to me. "What do you estimate for the defense, Mr. Daley?"

  This is tricky. With a little luck, we won't have to present a lengthy defense. On the other hand, we may be here for weeks if they trot out a slew of experts. "No more than a week, Your Honor," I say. Then I add, gratuitously, "Maybe less."r />
  She seems pleased. "Very well, then. We'll begin jury selection one week from today."

  "Your Honor," I say, "we did present several motions on evidentiary issues."

  "I was just getting to that, Mr. Daley." She glances at Mort's papers. She says she'll give us some leeway in the jury-selection process, called voir dire. She asks us for draft questionnaires to be given to the potential jurors. McNulty and Rosie have agreed on most of the major points. She reiterates Judge Brown's gag order with respect to the media.

  "Your Honor," I say, "there are some matters regarding the prosecution's witness list."

  She cuts me off and wags her right index finger at me. "Let's keep this very simple," she says slowly. "Nobody in this room is going to be a witness at this trial. Period."

  Skipper and I glance at each other. Skipper smiles.

  "Your Honor," I say, "we have a very significant issue here."

  She looks at me skeptically. "Come on, Mr. Daley. You know I'm not going to let any of you testify at the trial. Let's not waste our time."

  Skipper's grin gets wider.

  "Your Honor," I say, "have you seen the security videos?"

  "Your Honor," Skipper interjects.

  She stops him. "I'll tell you when it's your turn to talk, Mr. Gates."

  "But, Your Honor…"

  She cuts him off again. "Mr. Gates, the rules here are simple. I get to tell you when it's your turn to talk. I get to interrupt you. You don't get to interrupt me. Are we clear on that?"

  I like it. An early show of control.

  Skipper nods submissively. "Yes, Your Honor."

  "Good." She turns back to me. "I haven't seen the security videos, Mr. Daley."

  "Your Honor," I implore, "Mr. Gates was there that night. He was in the building. We can put the tapes on right now, if you'd like."

  She shakes her head. "I know he was there. The police reports said there was a reception for him at the office."

  "No," I say. "He came back later that night. Much later. He was in the building at one o'clock when Diana came back. He was there when Bob and Diana died."

  Skipper shakes his head contemptuously. "Mr. Daley was there too, Your Honor. I'll withdraw his name from our list in the interests of justice."

  "For God's sake, Skipper," I say, "I left at eight-thirty that night. You know it. I didn't come back at one in the morning at exactly the time you claim Bob and Diana died."

  He turns to Judge Chen. "Your Honor," he says, "I resent Mr. Daley's implication."

  "Your Honor," I reply, "he's brought charges against my client for the murder of two people. I can prove he entered the building around the same time Diana Kennedy did. He has to be a witness, Your Honor. I need him. Frankly, I don't understand why he wasn't considered a suspect at the time."

  A little over the top, but so be it. At least she's interested now.

  "Mr. Daley," she begins.

  I decide to break the cardinal rule and interrupt her. "Judge Chen," I implore, "he came back at twelve-thirty in the morning. He was there at the time he claims Bob and Diana were killed. It's right there in the security tapes." I'm pushing myself up on the arms of my chair.

  She looks troubled. She turns to Skipper. "Is this true, Mr. Gates?"

  "Yes, Your Honor," he replies. "I was in the office for a few minutes around one o'clock to pick up my briefcase. I didn't see or hear anything. My office wasn't even on the same floor as Bob's."

  "He was there for almost an hour," I say. "It was a lot longer than just a few minutes."

  She stares silently at her diploma. "This isn't good," she says slowly, her jaws clenched. "This is a mess. The district attorney could be a witness." She looks at Skipper. "And you actually plan to try this case yourself, right?"

  "Absolutely, Your Honor."

  "If this doesn't beat everything," she mutters. She looks at me. "Do you really think you're going to need his testimony?"

  I don't hesitate. "Absolutely, Your Honor."

  She turns back to Skipper. "And I don't suppose you'd agree to let Mr. McNulty handle this case?"

  "No, Your Honor," he says quietly. "It's too close to the trial."

  "And I don't suppose you'd be willing to testify about what you saw that night?"

  "For obvious reasons, Your Honor, you know I would prefer not to. You know it confuses the jury if a lawyer is both an advocate and a witness."

  "And what, if anything, did you see that night, Mr. Gates?"

  He looks right at her. "Your Honor, I went to my office on the forty-sixth floor, picked up my briefcase and left. That's it." He pauses. "And if you want me to testify to that effect, I guess I'm prepared to do so. Everybody is going to look very silly if we proceed in that manner, however."

  He's right about that.

  She gets a faraway look. "I'm going to take this under advisement," she says. "I'll give you my decision by the end of the week." She looks at Skipper. "Mr. Gates," she says, "I'd suggest that you think very carefully about your testimony, in case I rule in favor of Mr. Daley." Then she turns to me. "Mr. Daley, I'd suggest you think long and hard about whether you want to call the district attorney of the city and county of San Francisco as a witness."

  We nod in unison.

  "Finally," she says, "we need to address the motion to quash the presentation of two videotape recordings of certain activities at the Simpson and Gates firm retreat in October of last year."

  "Yes, Your Honor," I say. "We believe those videotapes are highly inflammatory and should not be shown to the jury."

  Skipper begins to interrupt me and she holds up her hand. "Not yet, Mr. Gates," she says. "It'll be your turn in a minute." She turns back to me.

  "Actually, Your Honor," I say, "I'd like to let my colleague, Professor Goldberg, make our presentation on this matter." We've rehearsed this. I want Mort to play the part of the gray-haired sage on legal and evidentiary issues. Although I'd never say it out loud, the truth is that I trust him to speak for only a few minutes a day. I pause for effect, and add, "You know Mr. Goldberg was an adjunct professor of criminal procedure and evidence at Hastings."

  She gives me a knowing look. "I'm familiar with his credentials. I was a student of his. It's my turn to see if he's prepared for class." She turns to Mort. "What do you have to say, Professor?"

  He smiles at her. "Your Honor," he says, "may it please the court." His diction is a little slurred. The words "Your Honor" come out as a single word, which sounds like "yawner." "We have a potentially serious evidentiary matter concerning two videotapes from the Simpson and Gates firm retreat last fall."

  She stops him. "Mr. Goldberg," she says, "I've read your motion and looked at the tapes. You don't need to describe the tapes to me and you don't need to summarize your motion. Let's cut straight to the chase. If you don't have anything new to tell me, I'll rule based on your papers."

  "Very well, Your Honor." He acts as if he was expecting this. Give him credit. He doesn't fluster. "The prosecution would like to introduce into evidence a highly edited videotape of activities at the Simpson and Gates retreat last fall. In addition, all of the original sound in the tapes was edited out and replaced by the theme music from a popular television show. In all likelihood, the events in the tapes will be taken out of context. And it's all but certain that the events in the tapes will have an inflammatory and highly prejudicial effect on the jury."

  Nice work, Mort. Concise. Direct. And you didn't use the words "kissing," "hot tub," "sex" or "affair."

  She gives him a skeptical look. "Mr. Goldberg," she says, "isn't it true that the tapes really do, in fact, speak for themselves?"

  Like all good lawyers, Mort pretends he's agreeing with her, while he's actually disagreeing. It's patronizing, but it works. "In general, Your Honor," he says, "that's true. What better evidence could there be than a videotape? On the other hand, when the videotape has been tampered with, as this one has, or there is a substantial likelihood that it could be taken out of context, it co
uld be unfairly damaging evidence."

  She isn't convinced. "Mr. Goldberg, these videotapes show a man and a woman kissing. Coincidentally, the man is the defendant and the woman is the victim. Doesn't that speak for itself? They were kissing. Nothing more. Nothing less. A jury can figure out what was happening."

  Mort takes off his glasses to gesture. "Let's face it. The people who serve on juries are only human. They see news stories about politicians having affairs and doing indiscreet things. They think it's the truth if they see it on TV. If they're like most of us, they'll jump to the conclusion that something was going on. It isn't a great news flash that Mr. Gates is going to claim our client was having an affair with Ms. Kennedy. He has no evidence except for these tapes. And if he shows these heavily edited tapes out of context, it will have an enormously prejudicial effect on the jury."

  She looks at Skipper. "What do you have to say about this, Mr. Gates?"

  "Your Honor," he says, "Mr. Goldberg is blowing this issue entirely out of proportion. We believe the videotapes do, in fact, speak for themselves. The jury will be free to draw whatever inferences it chooses. That's what juries are supposed to do—figure out what happened. The tapes are the best evidence of what happened. It isn't our fault the defendant and Ms. Kennedy were caught on tape kissing. It would be irresponsible to ignore it. We acknowledge that a part of our case will be to demonstrate that Mr. Friedman and Ms. Kennedy were having an affair. We believe the breakup of the affair led Mr. Friedman to murder two people. The tape speaks for itself. It is what it is."

  It is what it is. It's actually a very effective legal argument.

  She turns back to Mort. "Your Honor," he argues, "the problem, quite simply, is that you can't cross-examine a videotape. If Mr. Gates thinks he can demonstrate that Mr. Friedman and Ms. Kennedy were having an affair, let him bring forth witnesses at trial. Let us have an opportunity to cross-examine them."

  She seems to be absorbing this thoughtfully. I watch Mort carefully. He's staying true to his word and keeping the discourse on a professional, if not scholarly, level. He can still play law professor when he wants to.