MD01 - Special Circumstances

by Sheldon Siegel

  Rabbi Friedman scowls. I look away. I hate it when the client is right.

  39

  "WE WERE WORKING ON A VERY BIG DEAL"

  "Of course everybody wanted the Russo deal to close. It was good for the city."

  —The mayor of San Francisco. Thursday, March 26.

  Jack Frazier, the pride of Continental Capital Corporation, looks like he's ready for a board meeting when he takes the stand at three o'clock the same afternoon. He's wearing the standard investment-banker uniform. His shirt is so heavily starched, it could walk across the courtroom by itself.

  Skipper is wearing a subdued gray pinstripe today, with huge gold cuff links. "Would you mind telling us why you were present at the Simpson and Gates office on the night of December thirtieth?"

  Frazier gazes past Skipper's left shoulder. "We were working on a very big deal. My company was going to purchase the assets of a conglomerate called Russo International." He explains the deal for a few minutes. "The closing was scheduled for the following morning," he says.

  "Was the deal going to close on schedule?"

  "As far as I knew, yes. All the papers had been signed. Everything was ready."

  Skipper clears his throat. "Why didn't it close?"

  Frazier looks serious. "With the tragic deaths of Mr. Holmes and Ms. Kennedy, there was no way we could proceed."

  "Did you see Mr. Holmes that night?"

  "Yes."

  "Did he appear to be in a good mood?"

  "Yes. He was looking forward to the closing."

  "Did you see any signs that he may have been distraught or stressed out?"

  "Objection. State of mind."

  "Sustained."

  "I'll rephrase. Did Mr. Holmes appear to you to be distraught that evening?"

  "No. Nothing out of the ordinary."

  "No further questions, Your Honor."

  I walk slowly toward Frazier. "There were problems with the deal, weren't there, Mr. Frazier?"

  "There are always problems with big transactions." He glances toward the jury.

  "Fair enough. But this deal had more than its share, didn't it?"

  "Not really."

  "Isn't it true there was substantial doubt about whether your company would approve this deal?"

  "No. The deal was approved." Frazier looks at his lawyer, Martin Glass, who's in the gallery today.

  "Isn't it true your board of directors had an emergency meeting that night to discuss whether they should pull the plug?"

  "It's true that they met. It's not true that they wanted to pull the plug."

  Right. "Isn't it true your board would have voted against the deal if you hadn't been able to negotiate a forty-million-dollar reduction in the purchase price at the last minute?"

  "It's true that I was able to negotiate a reduction in the purchase price. I have no idea whether the board would have approved the deal without the reduction. I wasn't at the board meeting."

  I have no idea why he's resisting. I'm just trying to show that Bob may have been stressed out. Frazier seems to be trying to justify the deal to his superiors at headquarters. "Isn't it true," I ask, "that the seller in the transaction, Mr. Vince Russo, was undecided about whether he would close the deal? And isn't it true that even though all the papers were signed, Mr. Russo told everyone he wouldn't make up his mind until morning?"

  Skipper pops up. "Objection, Your Honor. Argumentative."

  They're trying to avoid mention of Russo's name. "Your Honor," I say, "Mr. Russo was a key player in this transaction. Mr. Frazier has testified that the deal was proceeding according to plan. However, the evidence will suggest that Mr. Russo didn't want to close."

  Judge Chen thinks for a moment, then says, "I'll allow it."

  I glance at Bill McNulty. He's frowning. He realizes this is a significant ruling. It opens the door for me to blame everything on Russo.

  I turn back to Frazier. "Isn't it true that Mr. Russo was waffling on whether he would proceed?"

  Frazier looks toward Glass again. "I firmly believe he intended to close the deal."

  I get right in front of him. "What time did Mr. Russo leave that night?"

  "I don't know."

  "Could you tell us what time Mr. Russo showed up the next morning for the closing?"

  "He didn't show up." He pauses. "He seems to have disappeared."

  "Did he ever call you?"

  "No."

  "Leave a message?"

  "No."

  "Try to get in touch with you?"

  "Objection," says Skipper. "We get the idea."

  "Sustained. Move along, Mr. Daley."

  "What time did you leave the building that night, Mr. Frazier?"

  "About one thirty-five."

  "And was Mr. Russo still in the building when you left?"

  "As far as I know."

  "When was the last time you saw him?"

  "Around one o'clock. He was with Mr. Holmes."

  "What were they doing?"

  "They were talking."

  "About what?"

  "Objection, Your Honor. Hearsay."

  "Your Honor, I'm not trying to establish precisely what was said or the truth of what was said. I'm simply asking Mr. Frazier to report on the subject that was being discussed."

  "Overruled."

  "They were talking about the deal."

  "Is it possible Mr. Russo told Mr. Holmes that Mr. Russo did not intend to close the deal?"

  "Objection. Speculative."

  "Overruled."

  Frazier holds up his hands. "It's possible. I just don't know."

  "And was that the last time you saw Mr. Russo?"

  "Yes."

  I take a deep breath. "Isn't it possible, Mr. Frazier, that Mr. Holmes may have become distraught and killed himself if Mr. Russo told him that he didn't want to close the deal?"

  Judge Chen looks at Skipper, who should object. I've just asked a highly speculative question.

  "It was just a business deal," Frazier says. "It may have been a big deal, but it wasn't worth committing suicide for."

  Good point. "Isn't it possible that Mr. Russo's disappearance can be explained by the fact that he killed Mr. Holmes and Ms. Kennedy, and that he fled after he committed these terrible acts?"

  "Objection," Skipper shrieks. "Highly speculative."

  Look who woke up.

  "Sustained."

  I turn back to Frazier. "Isn't it true that you really didn't want the deal to close?"

  He looks incredulous. "Of course not."

  "Isn't it true you figured out that you couldn't make the profit margins on the deal that you had originally anticipated?"

  "No." He's indignant.

  "Isn't it true, Mr. Frazier, that if you killed the deal, you would have had to pay Mr. Russo a fifty-million-dollar breakup fee?"

  "Objection. Relevance."

  "Overruled."

  "Your Honor," Frazier implores, "the terms of the deal are confidential."

  She looks right through him. "Mr. Frazier," she says, "a moment ago you were trying to impress us with the enormous size of this deal. You can't have it both ways. Answer the question."

  His jaws tighten. Another promising corporate career is heading for the Dumpster. "The breakup fee was fifty million dollars," he says. The suits in Stamford just got a severe case of indigestion.

  I glance at the jury. "Just so everybody understands this, Mr. Frazier, if you pulled the plug on the deal, your company would have had to pay Mr. Russo fifty million dollars. Is that correct?"

  His shoulders slump. "Yes."

  "And if Mr. Russo pulled the plug, you wouldn't have owed him a penny, right?"

  "Right."

  "And you wouldn't have had to buy a company you really didn't want."

  "We wanted the company, Mr. Daley."

  "Right. You could have saved your company a fifty-million-dollar breakup fee and you could have avoided buying a company you really didn't want if you could have found a way to g
et Vince Russo to kill the deal. Isn't that about it, Mr. Frazier?"

  Skipper's up. "Objection. I don't believe there was a question there."

  He's right. There wasn't.

  "Sustained."

  "No further questions."

  Ed Ehrlich from the city attorney's office is next. "Mr. Ehrlich," Skipper says, "you were representing the city of San Francisco in connection with the Russo deal, weren't you?"

  He looks nervously through his thick glasses. "Yes," he replies. A member of the board of supervisors is here to make sure he doesn't screw up.

  "And the city had agreed to provide financing for the deal, right?"

  "Yes." Good answer. Keep it short. Stick to the facts.

  "When did you leave the Simpson offices that night?"

  "Around ten o'clock."

  "And did you expect the deal to close?"

  "Yes. All the papers were signed."

  "And, as far as you knew, everything was on schedule to close?"

  "Yes."

  Skipper gets Ehrlich to say that Bob was in a good mood that night and was looking forward to the closing. Then he sits down.

  "Mr. Ehrlich," I say, "the mayor had some serious issues with this deal, didn't he?"

  "There were some concerns about our ability to obtain sufficient funds to finance the deal."

  "How serious?"

  "Not serious," he says slowly.

  "Yet you were prepared to move forward."

  "Yes."

  "And you believe Mr. Russo and Mr. Holmes were prepared to move forward?"

  "Yes."

  "And you were aware that Mr. Russo had serious reservations about proceeding with the deal?"

  "I knew he had some issues."

  "Isn't it true, Mr. Ehrlich, that the mayor had instructed you to do everything in your power to terminate the deal?"

  He looks at the mayor's henchman from the board of supervisors. "No."

  "Isn't it true that the mayor determined that the city didn't have sufficient funds to conclude the deal on the original terms?"

  "There were cash-flow issues. But we wanted to close the deal and keep the jobs in the city."

  I may have him cornered. "Mr. Ehrlich, where was the city going to get the money to conclude the financing of the deal?"

  "From sources within the San Francisco banking community."

  "What was the interest rate?"

  "Prime plus four."

  "And what rate were you charging the buyer?"

  "Prime plus one."

  "So the spread was three percent?"

  "Right."

  "And how big was the loan?"

  "A hundred million dollars."

  "I see. The spread at three percent is three million dollars a year, right?"

  "That's right."

  "And how many jobs would you have saved for the city?"

  "About three thousand."

  "By my math, that's about a thousand dollars a job."

  He nods. "I guess you could look at it that way."

  "And you're sure this was okay with the mayor?"

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

  "Sustained."

  "And it's your testimony that throughout all of this, Bob Holmes was in a great mood."

  Ehrlich takes off his glasses and rubs his eyes. "He did not appear upset to me."

  Add the city to the list of parties that look like idiots. "No further questions."

  The parade continues a few minutes later when Dan Morris takes the stand and smiles confidently. "I was present that evening," he replies to Skipper's first question. "The mayor asked me to assist with the closing. He wanted to be sure it got done. A lot was riding on it."

  "What time did you leave the office, Mr. Morris?"

  "Around one-thirty-five." Skipper gets him to say that Russo and Holmes were ready to close the deal. According to Morris, everybody was in a great mood.

  "Did you have any indications from Mr. Holmes or Mr. Russo that they would not proceed with the closing?"

  "None."

  "No further questions."

  I stand. "Mr. Morris, isn't it true that the city couldn't afford the deal?"

  He shrugs. "I'm not sure I understand the question."

  "Isn't it true that the city didn't have enough money to fund the deal? And isn't it true that the mayor sent you and Mr. Ehrlich to the Simpson and Gates offices to try to torpedo it?"

  "That's ridiculous. It was a good deal for both parties."

  "If it was such a good deal for Vince Russo, why did he disappear?"

  "Objection. Argumentative. Speculative. Foundation."

  "Sustained."

  "Did Mr. Russo appear agitated to you that night, Mr. Morris?"

  He's smug. "He always appeared agitated."

  "Do you have any idea why Bob Holmes committed suicide?"

  "Objection," Skipper says. "Move to strike the suggestion that Mr. Holmes committed suicide."

  "Sustained."

  "I'll rephrase." I look him right in the eye. "Come on, Mr. Morris. Level with us. Two people are dead and another person disappeared. Why did it happen? Why were so many people unhappy about this deal?"

  "Objection. Speculative."

  "Sustained."

  "Certainly, you must have a theory, Mr. Morris?" "Objection. Speculative." "Sustained."

  There's nothing else I can do. I've planted the seed with the jury. "No further questions."

  40

  "I'VE BEEN A HOMICIDE INSPECTOR FOR THIRTY-SEVEN YEARS"

  "They've finished the preliminaries. Gates is going to bring in his cleanup hitter, Inspector Roosevelt Johnson."

  —NEWSCENTER 4 LEGAL ANALYST MORGAN HENDERSON. FRIDAY, MARCH 27.

  The next morning is Friday, and Skipper goes to his strength. Roosevelt looks directly at Skipper. "My name is Roosevelt Johnson. I've been a homicide inspector for thirty-seven years."

  Joel tenses. Naomi scowls. Rosie eyes Roosevelt. Mort studies the jury.

  "Inspector Johnson," Skipper begins, "could you tell us what time you arrived at the Simpson and Gates offices on the morning of December thirty-first of last year?"

  "Eight-thirty-seven." His tone is authoritative. The courtroom is silent.

  "Would you please describe what you found at the scene?"

  Skipper's approach is textbook. You lob open-ended questions to strong witnesses like Roosevelt. This will allow him to tell his story the way he's rehearsed it. I'm going to have to try to figure out ways to break up his flow.

  Roosevelt clears his throat. He turns slightly toward the jury. He's not just going to tell his story. He's going to tell his story to them. "The office was in a state of chaos and shock. Word had spread throughout the firm of the homicides."

  I stand and interrupt. I try to sound respectful. "Your Honor, there's no foundation for Mr. Johnson's characterization of the events that day as ‘homicides.’ We must move to strike."

  She turns to Roosevelt. "Inspector, please limit your testimony to factual matters. We'll determine whether the deaths of Mr. Holmes and Ms. Kennedy should be characterized as homicides."

  "Yes, Your Honor," Roosevelt says.

  She tells the jury to disregard his characterization of the deaths as homicides. She looks at me with a pained expression, as if to say, "Are you happy now?"

  "Inspector," Skipper continues, "you were telling us what happened when you arrived."

  He describes his interviews with the police on the scene and his discussions with the paramedics and the technicians from the coroner's office. He confirms that Bob and Diana were pronounced dead at 8:22. He describes the all-hands meeting in the reception area. After twenty minutes, he concludes by saying, "We knew this was an important case. We wanted to make sure we got everything right."

  "Inspector Johnson," Skipper says, "what happened next in your investigation?"

  "We interviewed witnesses and gathered evidence." He says the police obtained statements from everyone who was pr
esent that night. They talked to building security and impounded the security videos.

  "Did you interview the defendant?"

  He takes off his glasses. "Yes. He confirmed he was at the office that night."

  "Was he a suspect on December thirty-first?"

  "No. Originally, we thought this case was a murder-suicide. It wasn't until later that we began to focus more closely on the defendant." He never mentions Joel by name.

  "Inspector, when did you first begin to suspect the defendant may have been involved?"

  Roosevelt says they became suspicious of Joel when they received the coroner's report and began to examine the physical evidence.

  Skipper picks up the cue. He signals to McNulty. "This would probably be a good time to turn to the physical evidence."

  Rosie whispers in my ear, "We're going to take a pounding for a while." She's right.

  Skipper picks up the gun and hands it to Roosevelt. "Do you recognize this weapon?"

  "Yes. It's the weapon that fired the bullets that killed the victims, Robert Holmes and Diana Kennedy."

  Time moves slowly for the next two hours. Skipper has Roosevelt describe every piece of physical evidence in detail. Ten minutes on ballistics. Fifteen minutes on fingerprints. Fifteen minutes on the message on Diana's answering machine. Ten minutes on the voice-mail message to Bob. Ten minutes on the fingerprints on the computer keyboard. I object frequently, ferociously and, for the most part, futilely. We have a fundamental problem with the physical evidence. It all points toward Joel.

  At eleven o'clock, they're still going strong. Skipper's on today. Roosevelt and the jury seem like old friends. Rita Roberts sits quietly in the gallery. Rabbi Friedman stares straight ahead. Naomi is stoic. At eleven-forty-five, Skipper asks Roosevelt to summarize his views on the physical evidence.

  "We concluded the defendant fired the shots that killed the victims. In a clumsy attempt to cover up his crime, he typed a bogus suicide message on Mr. Holmes's computer."

  Judge Chen looks at her watch and says, "This is a good time to break for lunch."

  Joel ignores his sandwich. "We're getting killed, Mike," he says. We're sitting in the cramped consultation room behind Judge Chen's courtroom. Mort eats a corned beef sandwich. Rosie drinks a Diet Coke. I hold a can of Diet Dr Pepper. There won't be much fine dining until the trial is over.