MD01 - Special Circumstances

by Sheldon Siegel

  Skipper and Mort volley back and forth for another ten minutes. Finally, Judge Chen says she's heard enough. "Gentlemen," she says, "I've come to my decision. I find Mr. Goldberg's argument slightly more persuasive." She turns to Skipper. "Mr. Gates," she says, "if you want to introduce evidence of these tawdry events at the trial, you'll have to do so through witnesses who can be cross-examined by the defense." She's ruling in our favor, but sending a message. He can't use the tapes, but he can call witnesses who will testify about their contents. "For example," she continues, "I see no reason why Mr. Gates couldn't call as a witness the individual who was operating the camera."

  There's nothing we can do to prevent Skipper from calling Brent Hutchinson to testify that he saw Joel and Diana kissing—even if it was through the lens of his video camera. Of course, there's nothing to prevent us from going after him on cross.

  Skipper attempts to plead his case one more time. "But, Your Honor," he begins.

  She holds up her hand. "I've ruled, Mr. Gates." She starts to stand.

  "Your Honor," I say, "there's one other thing. Mr. Gates has requested that this trial be televised. For obvious reasons, we're against it. We saw what happened at the Simpson trial."

  Skipper is mortified. He's expecting free TV time. "Your Honor," he says, "I realize there was some fallout from the Simpson trial. However, the public has a right to observe the criminal process at work. We should televise this trial to win back the faith of the American people in the justice system."

  And crown thy good with brotherhood, from sea to shining sea. I want to throw up.

  "Your Honor," I say, "I'm only thinking of the interests of my client and the interests of justice. I don't want my client tried in the media. Mr. Gates's leaks have already contributed to a potentially irreversible tainting of the juror pool."

  If you don't have a better argument, always try invoking the interests of justice.

  She looks troubled. "I knew this was going to come up," she says. "I have mixed feelings. In my judgment, it is possible to televise a trial without turning it into a circus. Nevertheless, I'm inclined to agree with Mr. Daley."

  "But Your Honor," Skipper says.

  "I've ruled, Mr. Gates. I'll see you next week to begin jury selection. We're done."

  This round goes to the good guys, but not by much.

  Skipper and McNulty stop us outside the courtroom. "Nice work on your motions, Mort," Skipper says.

  Mort waves him away. "It's all part of the process," he replies.

  Skipper stares at Mort. "You know," he says, "we'll get all the stuff from the tapes into evidence at the trial. There's no doubt. We were planning to call Brent Hutchinson anyway."

  "At least we'll be able to cross-examine him," I say. "Hutch can be a little jumpy. He hasn't spent a lot of time in court the last few years."

  He laughs. "All the more reason for us to spend a little extra time in preparation."

  Mort turns to McNulty. "You guys have any more evidence you'd like to share with us? I'm sure you aren't planning any surprises at trial."

  "Nothing yet," McNulty says. "You've seen everything we've seen."

  "Did the results of the paternity test come in?" I ask.

  "Not yet," Skipper replies. "You aren't nervous, are you, Mike?"

  "Nope."

  "Good. I'm sure your guy was telling you the truth when he said he wasn't the father."

  "Me too."

  "It's a good result," Mort says to me as we're pulling out of the parking lot. "At least we got the goddamned videotapes out."

  "Nice work," I say. "Let's go back to the office and call Joel with the good news." I pause. "What do you think that was all about in the hallway? You think they know something?"

  He takes out a cigar. "Probably," he says.

  31

  "WHAT ELSE CAN YOU TELL ME, ROOSEVELT?"

  "We have been asked to prepare papers to have Mr. Russo declared legally dead."

  —Charles Stern. San Francisco Legal Journal. Tuesday, March 10.

  Tuesday, March 10. We get to take a break from our trial preparation to attend to an equally depressing matter: Wendy's custody hearing. Her ex-husband, Andy, has filed papers to revise their custody agreement. Wendy and I wait outside divorce court at ten o'clock in the morning. We're joined by her divorce attorney, Jerry Mills, a quiet, rational man in his mid-fifties with a gray mustache. Wendy is nervous. I don't blame her. I haven't been in this corridor in five years. It brings back some unpleasant memories. It was in this very corridor that I gave up on my lamebrained idea that I was better suited to have custody of Grace. I'll never forget the look of relief on Rosie's face. It was the only time during our divorce that she allowed herself to cry.

  A moment later, we are joined by Wendy's ex, Andy Schneider, a high-strung advertising executive in his late thirties with slicked-back hair, who is dressed in a flashy double-breasted suit and a loud designer tie. He is accompanied by his attorney, a fiftyish asshole named Craig Sherman, who bears an uncanny resemblance to a rattlesnake.

  In my experience, divorce attorneys come in two species. Most of them are rational people like Jerry, who act more as counselors than adversaries. Some have a knack for defusing tense situations. The really good ones steer their clients toward counseling and sometimes salvage marriages. Then there are people like Sherman, who relish the role of barracuda. He represents only men. He actually has a picture of a shark on his business cards. If you're going to war with your ex-wife, he's your guy.

  Sherman says, "You guys don't think the judge is actually going to believe this crap that Wendy has her own law firm, do you? We're going to call in child-custody services to review this case."

  Nice guy.

  Mills looks at him. "We have an agreement, Craig. It's been approved by the court. It isn't going to change."

  Sherman cracks his knuckles. "Sure, Jerry," he says. "I've had this judge modify custody orders for a lot less than this."

  And you wonder why people hate lawyers. In reality, he's probably bluffing. In California, custody orders can be modified only if there is a significant change in circumstance. A change in one spouse's economic situation generally isn't enough.

  Wendy glares at Andy. "You're an asshole," she says quietly. "You aren't fit to take care of a hamster, let alone a six-year-old."

  He tugs at his tie. "At least I've got a job."

  I get between them and glance at my watch. "It's time for court," I say calmly. Andy winks. Wendy moves closer to Mills.

  We turn toward the heavy double doors to the courtroom when Pete walks up, soaking wet. "Sorry I'm late," he says. "I got hung up."

  Sherman looks at him. "I didn't realize we were going to have a family reunion."

  "Craig," Pete says, "can I see you and Andy in private for a moment?"

  Sherman throws up his hands. "What the hell is this all about?"

  "Thirty seconds," Pete says. "That's all I need."

  "Humor him," Andy says confidently.

  Pete, Andy and Sherman walk down the hall about thirty feet. Pete takes out a manila envelope from under his jacket and hands it to Andy. They huddle. They argue. Sherman gesticulates wildly. Pete remains stone-faced. A moment later, the arrogance leaves Andy's face.

  Wendy turns to me. "What's this all about?" she asks.

  "Beats me."

  Five minutes later, Pete, Andy and Sherman return. Sherman looks at Wendy, then he turns to Mills. "Jerry," he says, "we've decided not to pursue any changes in the custody deal. We're going to drop our motion." He looks at me and wags a menacing finger. "You and your brother are both assholes." He and Andy walk down the hall toward the elevators.

  I turn to Pete, who arches his eyebrows. Wendy walks over and gives him a hug. He hugs her back uncomfortably. "I don't know what you gave them, Pete," she says, "but it worked."

  Pete gives us a wicked grin and pulls out a stack of snapshots. "Sorry I didn't get here sooner," he says. "I took these last night and it took a l
ittle longer to get them developed than I thought."

  He starts flipping through the pictures, the way little kids flip through baseball cards. "Here's Andy's executive assistant, Karen." It's a picture of an attractive woman going into a large house in Pacific Heights. "Here's Andy going into the house. Here's Andy taking off his clothes. Here's Karen taking off her clothes." He says, "The next few pictures are a little tough to see." He shuffles through them quickly. "Here they are rolling around on the floor."

  Wendy is smiling. "We get the idea, Pete," she says.

  Pete glances at me. "You know," he says, "it seems Karen is married to Andy's boss."

  "I was not aware of that," I say.

  "I'd say we're holding Andy's career right here in the palm of my hand," Pete says.

  Jerry Mills is admiring. He asks Pete for a business card. "You guys play in a different league," he says.

  Thursday, March 12. Four days before the start of jury selection. We've spent the last week interviewing witnesses, rehearsing my opening and working on jury-selection strategy. The clock is ticking—and we don't have anything that will give us an acquittal.

  The process of preparing for trial is far more of an art than a science. You spend a lot of time honing your presentation. While the law professors and commentators like to talk about the pursuit of justice, when you cut to the chase, it's all theater. In our MTV world, you can't just inform the jury; you have to entertain them and, if possible, dazzle them with special effects.

  Unlike real theater, a trial attorney has to perform all the important roles: producer, director, lead actor, costume designer, special effects supervisor, production accountant and, perhaps most importantly, food provider. We have created an impromptu "war room" in the narrow hallway just outside my office. Exhibit binders, easels, enlarged pictures, diagrams and charts are everywhere. It will take a minor miracle just to put everything in order for presentation at the trial. My biggest worry is that our stuff will get soaked as we lug it from the parking lot to the courtroom.

  Rosie, Mort and I spend the day with our jury consultant, Barbara Childs, who is considered an up-and-comer in a growing field. I've worked with her on a couple of cases. She's a little full of herself, but you have to be in her line of work. I take her suggestions with a grain of salt. We don't have the time or the resources to do a full mock trial.

  At three in the afternoon, I walk past Wendy, who is poring over some S&G financial records at a table just outside Rosie's office. "Find anything we can use?" I ask.

  "Nothing yet." She looks at me. "Where are you going? I would think you might have a few things to do today."

  "I thought I'd take the afternoon off," I reply. "You know—conserve my strength for trial."

  "Really, Mike. Where are you off to?"

  "I'm going to take one more run at Roosevelt. Maybe he's found something that'll help."

  I meet Roosevelt in the back of a cop bar not far from the Hall. The cops and detectives respect each other's private space here. The place is run by a heavyset man named Phil Agnos. It's sort of a cross between a saloon and a halfway house for Greek immigrants. Phil is the only person permitted to handle the money. Every three weeks or so, there's a new, large young man with a toothpick in his mouth standing at the grill. Since the only English words he ever knows are "cheeseburger" and "double," your culinary options are somewhat limited. I opt for a single cheeseburger today.

  Roosevelt is sitting in the back room, nursing a cup of coffee and reading the paper. A picture of Joe DiMaggio hangs on the wall behind him. He stands to greet me when I walk in. "I was just reading about you in the paper," he says.

  "What are they saying now?"

  "The usual. You're spending all your time on a hopeless disinformation campaign in a feeble attempt to find some technicality to get your client off. Typical stuff for a defense attorney."

  "I knew they'd get my number sooner or later." I take a bite of my cheeseburger. "Have you guys found anything else?"

  He sips his coffee and wipes his mouth with a paper napkin. "Nothing I haven't told you already. Skipper has poor Bill McNulty living with two jury consultants. One of them told me Skipper has practiced his opening in front of two different mock juries."

  "How are the test audiences playing?"

  "Pretty well. For all his faults, the man has charisma."

  Indeed. Believe me, I know. "What else can you tell me, Roosevelt? Anything else I can use?"

  "Not a thing, Mike. You're doing everything you're supposed to be doing. Once you got the confession knocked out, it turned into a circumstantial case. It isn't an easy one."

  For either side.

  He wipes his glasses and gazes at the Yankee Clipper. "Why don't you ask for more time? Your client isn't rotting in jail at the Hall. Why the hell are you rushing to trial?"

  "He won't listen to reason on that particular subject."

  "So I gather."

  "Any new leads on Vince Russo?"

  "Nope. His story went cold at the Golden Gate Bridge."

  "Pete thinks a cab driver may have picked him up and driven him to the airport," I tell him.

  "That's more than we've found."

  Great. Just great.

  Mort calls me at the office at five o'clock the same afternoon. "I got a fax from the judge," he says.

  "And?"

  "She ruled we can't call Skipper as a witness at the trial."

  "No big surprise there, Mort."

  "Nope. I was surprised she didn't rule against us on the spot."

  Four days until trial. On Monday, we start playing for keeps.

  32

  OPENING CEREMONIES

  "We are extremely confident."

  —Michael Daley. NewsCenter 4. Monday, March 16.

  "I'm scared to death, Rosie," I say. "I haven't been this nervous in a long time." We're driving toward Rabbi Friedman's house in a light rain on the morning of Monday, March 16. El Nino's giving us a small respite today, but the gray skies further dampen my mood.

  "First-day jitters," she replies. "You're like a baseball pitcher. After you make it through the first inning, you'll be fine." We pull into Rabbi Friedman's driveway. She gives me a peck on the cheek. "Go get ‘em," she says. "Once the trial starts, there's no looking back."

  The rabbi meets us at the door. He looks grim. Per my instructions, Joel and his dad are dressed in dark business suits, with white shirts and subdued ties. Joel's mom and Naomi are wearing conservative clothes, no jewelry and a minimal amount of makeup.

  I gather everyone in the dining room. "I know we've gone over this," I say, "but I want to remind you one more time that trials are theater. It sounds paranoid, but you have to assume everything you say and do will be scrutinized by the jury. I want you to act normal, but be careful. An inappropriate gesture could have greater impact than you'd think."

  They listen attentively. "Michael," says Rabbi Friedman, "are we allowed to show any emotion?"

  Tough call. Generally, histrionics don't play well in the courtroom. They tend to distract the jury and irritate the judge. "It won't hurt to shake your head every once in a while. I don't want you to draw unnecessary attention to yourselves. I want to keep the jury focused. And I don't want the judge to think we're trying to disrupt her courtroom. She's very businesslike."

  Rosie looks at her watch. "Time to go," she says.

  Joel and Naomi hold hands in the back of Rosie's car as we drive to the Hall. I can only imagine what's going through their minds. As Rosie makes a left onto Bryant, I turn around and face them. He's stoic, almost serene. She's tugging her hair. "It's going to be all right," I say. Joel is silent. Naomi says quietly, "I know." We pull into the pay lot next to McDonald's. Joel's parents take the spot next to us a moment later. They huddle under a large black umbrella while Rosie and I pull our trial cases out of the trunk.

  Even though it's now raining steadily, reporters from all the local stations are waiting for us on the front steps of the Hall. The nerd
y guy from CNN is here. The arrogant woman from Court TV who's been calling me an idiot for the last six weeks has left the comfort of her studio to insult me in person. A dozen police officers form a human barricade for us. The cameras and reporters follow us. It starts to rain harder. We're pelted with questions and rain as we push our way to the doors.

  "Mr. Daley, is it true you're discussing a plea bargain?" "Mr. Daley, is your client going to take the stand?" "Mr. Daley, is it true you're going to have a surprise witness?"

  "Mr. Daley? Mr. Daley? Mr. Daley?" As we reach the door, I turn back and face the nearest camera. Channel 7 will get the best footage tonight. Two dozen microphones are held up to my face. "Ladies and gentlemen," I say, "we are extremely confident Mr. Friedman will be fully exonerated of these outrageous charges." I turn and walk into the building. Reporters continue shouting questions to my back.

  Mort is waiting for us inside. We make our way through the metal detectors and up the elevators. Police mill around. Security is tight. As I turn to open the heavy wooden doors to Judge Chen's courtroom, I see Skipper's smiling countenance as he strides forcefully toward us, reporters nipping at his heels. If he's nervous, he isn't showing it. It's sound-bite time. I can't hear what he's saying, but I'm sure he's extolling the strength of his case and his faith in the criminal justice system. I catch his eye. It's opening day. Let's play the National Anthem and start the game.

  The small, windowless courtroom is packed. The roar is deafening. The hot, heavy air smells of mildew. Umbrellas and raincoats are strewn about. McNulty and two law clerks lug in four trial bags. Skipper and McNulty take their places at the prosecution table near the jury box. Joel sits between Rosie and me at the defense table and Mort sits at the end. Mort has his game face on. He sits quietly, looking forward intently. His eyes are moving constantly. He's looking for any nuance or advantage.

  The gallery is full. Naomi and her in-laws are in the first row, directly behind us. Diana's mother sits right behind Skipper. The courtroom artists have their sketch pads poised. Reporters and onlookers crowd into the remaining seats.