MD01 - Special Circumstances

by Sheldon Siegel

  Mort takes a fatherly tone. "You take some lumps when the prosecution presents its case."

  I add, "We haven't had a chance to cross-examine Roosevelt yet."

  Joel is unconvinced. Without a word, he puts his uneaten sandwich into the white paper bag and drops it into the wastebasket.

  The afternoon session doesn't start any better. "Inspector Johnson," Skipper begins, "this morning, we spent a great deal of time discussing how Robert Holmes and Diana Kennedy were killed. We talked about the murder weapon. We listened to incriminating tapes. The defendant's fingerprints were found on a computer keyboard that was used to type a bogus suicide message."

  Enough. "Objection. Mr. Gates is making his closing argument a little early."

  "Sustained. Mr. Gates, do you think you can find a question to ask Inspector Johnson?"

  "Yes, Your Honor." He continues to lecture. "This afternoon," he says to nobody in particular, "we need to discuss why the defendant killed Mr. Holmes and Ms. Kennedy."

  I interrupt again. "Your Honor," I say sarcastically, "is there a question in there somewhere?"

  "Let's get to it, Mr. Gates," she says sharply.

  "Yes, Your Honor." Then he turns back to Roosevelt. "Inspector Johnson, do you have any reason to believe the defendant was angry at Mr. Holmes and Ms. Kennedy?"

  "Yes."

  "Angry enough to kill them?"

  I'm up. "Objection. Inspector Johnson isn't a mind reader."

  "Sustained." She points her gavel at Skipper. "Please, Mr. Gates."

  He's undaunted. "Do you have any reason to believe the defendant was angry at Mr. Holmes?"

  "Yes." Skipper leads Roosevelt through a description of Joel's anger at Bob about the partnership decision.

  "Why would he have been upset at Mr. Holmes?" Skipper asks.

  "Mr. Holmes was his mentor. Mr. Holmes had been assigned the task of telling the defendant he wasn't going to make partner. Apparently, he did not do so."

  "That led to the agitated voice-mail message to Mr. Holmes?"

  "Objection. Speculative."

  "Sustained."

  "I'll rephrase. Do you believe the defendant's voice-mail message to Mr. Holmes related to the fact that Mr. Holmes failed to inform the defendant that he wasn't going to make partner?"

  "Objection. Speculative."

  "Overruled."

  "Yes," Roosevelt says. "I believe the defendant's voice- mail message related to the fact that Mr. Holmes failed to tell him he wasn't going to make partner."

  Joel leans over and whispers, "Can't you object to this? You think I'd kill somebody because I didn't make partner?"

  I signal him to be quiet. I whisper, "The jury's watching us."

  Next, Skipper takes Roosevelt through the evidence that suggested that Joel may have been having an affair with Diana. "Inspector," Skipper says, "are you aware of any reason why the defendant may have been angry with Ms. Kennedy?"

  "Yes. The defendant told us Ms. Kennedy did not complete a set of escrow instructions for the Russo deal. He stated that he was upset because he had to complete the task himself."

  Skipper gives him a puzzled look. "Isn't it odd that the defendant would kill Mr. Holmes because he didn't make partner, and Ms. Kennedy because she failed to complete a legal document?"

  "Objection. Speculative."

  "Sustained."

  "Inspector, are you aware of any other reasons why the defendant may have been upset with Mr. Holmes and Ms. Kennedy?"

  "We believe the defendant was having a romantic relationship with Ms. Kennedy, which she terminated in order to rekindle an earlier romance with Mr. Holmes."

  "Move to strike. Foundation."

  "Overruled."

  Joel looks straight ahead. I look back to the gallery. Rabbi Friedman is rocking back and forth in his chair. Naomi is staring directly into the back of Joel's head. Ruth Fink rubs her forehead.

  Skipper is pleased. After a week of forensics, guns, fingerprints, autopsy reports, computer keyboards and tape recordings, we've finally got some really juicy stuff for the jury. "Inspector, I want to be sure I'm clear on this. Are you saying that Ms. Kennedy, for lack of a better term, dumped the defendant in order to resume a romantic relationship with Mr. Holmes?"

  "Objection. Foundation."

  "Overruled."

  "Yes."

  "Is it your belief that he killed Mr. Holmes in a jealous rage after Ms. Kennedy dumped him?"

  "Objection. Speculative. State of mind. Foundation." The kitchen sink.

  "Sustained." Judge Chen gives Skipper a sharp look. "Let's stick to the facts, Mr. Gates."

  He barely blinks. He's getting to all the sordid goodies now. "Inspector, let's take this one step at a time. What evidence do you have that Mr. Holmes and Ms. Kennedy were romantically involved?"

  "Mrs. Holmes's private investigator confirmed that he had discovered that Mr. Holmes and Ms. Kennedy were having a romantic relationship." He testifies that Beth stated she had found out about the affair in early December and told Bob she would file divorce papers if he didn't break it off. He terminated his relationship with Diana at that time.

  "Yet on December thirtieth, Mrs. Holmes served divorce papers on her husband."

  "Yes. The private investigator observed Mr. Holmes having a rendezvous at the Fairmont with a woman other than Mrs. Holmes."

  "Was the private investigator able to identify the woman?"

  "He wasn't absolutely sure. He said the woman may have been Diana Kennedy. That led to the filing of the divorce papers by Mrs. Holmes."

  Skipper glances at the clock at the back of the courtroom. "You also determined that the defendant was having a romantic relationship with Ms. Kennedy, did you not?" I glance at Ruth Fink.

  "Objection. Foundation."

  "Overruled."

  "Yes. We interviewed several partners at the Simpson and Gates firm who attended the firm retreat at Silverado last fall." He confirms Hutch's accounts of the hot-tub incidents. He reiterates Patton's story about finding Diana in Joel's room at three in the morning.

  Naomi looks at the floor. This is going to be the bloodiest cross-examination I've ever done.

  Skipper asks, "Inspector, if the defendant and Ms. Kennedy were romantically involved, why would the defendant kill her?"

  "Objection. Speculative."

  "Sustained."

  "Inspector, do you have a theory as to why the defendant would have killed Ms. Kennedy?"

  "Objection. Speculative."

  Judge Chen glances at her bench book. "Overruled."

  Roosevelt takes off his glasses. "We believe Ms. Kennedy was the woman in the hotel room with Mr. Holmes. We believe she told the defendant that she had resumed her relationship with Mr. Holmes. And we believe she told the defendant that she no longer wanted to see him."

  "Objection. Move to strike. There's no foundation for any of this."

  "Overruled."

  "So, Inspector, you believe that the defendant was so upset about the end of his relationship with Ms. Kennedy that he killed Ms. Kennedy and Mr. Holmes in a jealous rage?"

  "Yes."

  Joel starts to stand up. I grab his arm and pull him back into his seat. "Stay calm," I whisper.

  Skipper spends the rest of the afternoon lobbing softball questions to Roosevelt, who keeps pounding out winners. He describes his interviews with Rick Cinelli and Homer Kim. I object frequently and, for the most part, inconsequentially. Skipper stretches out Roosevelt's testimony until four-thirty.

  Judge Chen looks at her watch and says, "I think we should break here until Monday."

  It's a bonanza for Skipper. The jury has all weekend to mull over Roosevelt's testimony.

  Judge Chen looks at me. "I trust you're prepared to begin cross-examination on Monday?"

  "Absolutely, Your Honor."

  She pounds her gavel.

  41

  "THE CROSS-EXAMINATION OF A LIFETIME"

  "After Inspector Johnson's devastating testimony on Fr
iday, Michael Daley better be at the top of his game today."

  —NEWSCENTER 4 LEGAL ANALYST MORGAN HENDERSON. MONDAY, MARCH 30.

  We spend the weekend preparing for my cross-examination of Roosevelt. Mort keeps pounding on the idea that we have to give the jury a reason to think somebody else did it. Our best bet is Vince Russo. As Mort leaves on Sunday night, he summarizes our defense succinctly. "When all else fails," he says, "blame it on the dead guy."

  Monday morning arrives too soon. I'm watching Morgan Henderson give his daily sermon on Channel 4 at six-forty-five. "You know," he says, "it might be a good idea to let Mort Goldberg handle Johnson's cross. Goldberg's an old war-horse. He has more capacity for all-out war than Daley does."

  Thanks, Morgan.

  The former talk-show host who now fancies himself a serious newsman furrows his brow under his blond, blow-dried hair. "Who do you think's winning, Morgan?"

  "The prosecution has scored a lot of points, but they haven't delivered a knockout blow."

  "Any predictions?" the anchorman asks.

  "It's looking pretty good for the prosecution," Henderson says. "I wouldn't want to be wearing Michael Daley's shoes today."

  Frankly, neither would I.

  The reporters swarm around me today when we get to the Hall because they know I'll have a major speaking role. I remind them I'm not permitted to talk about the case. That doesn't stop them. I utter the usual platitudes about my faith in the justice system. I can't ignore them. On the other hand, I don't want to say anything that may get me in trouble. The judge watches the news, too.

  The routine in court is familiar to us all. Joel takes his seat between Rosie and me. Mort sits at the end of the table. Harriet Hill asks us to rise. The judge takes her seat. The jury is brought in. Roosevelt is called back to the stand. The judge reminds him he's under oath. Then she turns to me and says, "It's your turn for cross-examination, Mr. Daley."

  I walk to the lectern. "Good morning, Inspector." I turn to the judge. "May I approach the witness?" I want to appear respectful. She nods. I walk toward Roosevelt. As of this moment, the battle is now fully engaged. "Inspector," I say, "I'd like to go over a few of the items you discussed on Friday in a little more detail."

  Our eyes lock. "Of course, Mr. Daley."

  I pick up the revolver from the evidence cart. I go over to the jury box and slowly hold it in front of them. Then I walk back to Roosevelt. "Inspector," I say, "you have identified this revolver as the weapon that fired the bullets that killed Mr. Holmes and Ms. Kennedy, did you not?"

  "Yes."

  I hand it to him. "And you've testified that Joel Friedman's fingerprints were found on the revolver, right?" I'm trying to elicit one-word answers.

  "Yes."

  "When you arrived, Officer Chinn told you Mr. Friedman had informed him that he had picked up the revolver and disarmed it when he found the bodies, right?"

  He pauses. "That's true."

  "So it's possible Mr. Friedman may have gotten his fingerprints on the revolver when he picked it up and disarmed it, isn't it?"

  "Objection. Speculative."

  "Overruled."

  Roosevelt looks at Skipper and shakes his head. "Yes. It's possible," he says.

  One small victory for the good guys. I hold out my hand and he gives me the revolver. "Inspector, you've studied the lab reports on this gun, haven't you?"

  "Yes."

  I hand it back to him. "Would you mind showing us exactly where Mr. Friedman's fingerprints were found on this revolver?"

  He asks to see the lab report. Rosie hands it to me, and I turn it over to him. She's marked Sandra Wilson's diagram of the location of the fingerprints on the revolver. I direct him to the correct page. He puts his glasses on the top of his head. I turn to Rosie, who turns on the overhead projector. The diagram appears on a screen I've placed in the front of the courtroom. "Inspector," I say, pointing toward the screen, "is this the diagram that you're looking at?"

  "Yes."

  "Would you please show us where Mr. Friedman's fingerprints were found on the revolver?"

  He holds up the revolver and fumbles with it. He goes through the same exercise that Kathleen Jacobsen, the evidence technician, went through last week. He explains that fingerprints from Joel's thumb, middle finger, ring finger and pinky were found on the handle. He says the fingerprint from Joel's index finger was on the cylinder. He shows the jury how Joel was holding the gun.

  "Inspector," I say, "could you please show us how Mr. Friedman would have fired the revolver with his hand in that position?"

  "He couldn't, Mr. Daley. His finger wasn't on the trigger."

  "Thank you, Inspector."

  "But, Mr. Daley…"

  "You've answered my question, Inspector." I nod to the jury. "Just so we're clear about it, isn't it a fact that you didn't find Mr. Friedman's fingerprints on the trigger?"

  "We found smudged, unidentifiable fingerprints on the trigger, Mr. Daley."

  "I understand. But you couldn't identify Mr. Friedman's fingerprints on the trigger, could you?"

  "That's true."

  "So, it's fair to say that you have no evidence to demonstrate that Mr. Friedman pulled the trigger. Isn't that true?"

  "We have no identifiable fingerprints of Mr. Friedman on the trigger. That's all."

  I'm not going to wage a war of semantics. Juries hate it. "Isn't it a fact, Inspector, that the locations of Mr. Friedman's fingerprints were consistent with the act of unloading the revolver?"

  "Objection. Foundation."

  "Overruled. Inspector Johnson is capable of giving an opinion on whether the fingerprints are consistent with the act of unloading the gun."

  "Mr. Daley," Roosevelt says, "I believe that Mr. Friedman left a smudged fingerprint on the trigger of this revolver when he fired it. On the other hand, his fingerprints were in a position that might have been consistent with the act of unloading it."

  Good answer. "Thank you, Inspector. You're also aware that when a gun is fired, it emits a cloud of gas and particles of gunpowder fly into the air."

  "Yes, Mr. Daley, that's correct."

  I ask him whether any such traces were found on Joel's hands or clothing.

  The room is silent. He confirms Kathleen Jacobsen's testimony that they didn't test Joel's hands or clothing. "By the time he became a suspect, he had showered several times and his clothes had been laundered or cleaned. As a result, we would not have found traces of gunpowder or other chemical substances."

  "So you decided not to do the tests because you thought you wouldn't find anything."

  "Objection. Asked and answered."

  "Sustained."

  I've made my point. For good measure, I add, "And you can't show that Mr. Friedman ever touched the trigger of the revolver."

  "Objection."

  "Overruled."

  "That's true," he says quietly.

  We hammer at each other for the rest of the morning and into the afternoon. I challenge the handling of the evidence and the phone messages. We argue about the finger- prints on the keyboard. At three o'clock I glance at Rosie, who tugs on her left ear. "Inspector," I say, "did you ever seriously consider any other suspects?"

  "Yes. We ruled them out very quickly. Not enough evidence."

  "For example, Inspector, did you ever consider Vince Russo as a potential suspect?"

  "For a brief time, yes. But we ruled him out."

  "But you knew, of course, that Mr. Russo had been at the Simpson and Gates offices that night, and that he was very upset about the deal that he was supposed to close the next day."

  "Yes."

  "He was so upset that he drove to the Golden Gate Bridge and has not been seen since."

  "We're aware of the circumstances, Mr. Daley."

  "He may even have jumped off the bridge."

  "We don't know that, Mr. Daley."

  "Yet you didn't consider him a serious suspect?"

  "Objection. Argumentative."


  "Sustained."

  I'm blowing smoke. "Is it possible he fled because he killed two people?"

  "Objection. Speculative."

  "Sustained."

  "You would at least acknowledge Mr. Russo had a substantial motive to commit this terrible crime, wouldn't you, Inspector?"

  "No."

  "Come on, Inspector. Mr. Russo was very unhappy about this deal. By killing Mr. Holmes and Ms. Kennedy, he had an opportunity to disrupt the deal and flee the country."

  "Mr. Daley, we have no evidence to that effect."

  "You haven't found his body, have you, Inspector?"

  "No."

  "And it's possible, isn't it, that he may have faked his suicide and fled the country?"

  Skipper's up. "Objection. This is all hopelessly speculative."

  It certainly is.

  "Sustained."

  "Inspector, there was evidence confirming that Mr. Russo was in Mr. Holmes's office that night, wasn't there?"

  Roosevelt eyes me slowly. "Yes, Mr. Daley. We found his fingerprints on the desk of Mr. Holmes. However, we have no way of knowing what time he was in Mr. Holmes's office, and we did not find a single shred of evidence that suggests that he was involved. His fingerprints were not on the weapon. His fingerprints were not found anywhere near the bodies of Mr. Holmes or Ms. Kennedy. As a result, we ruled him out as a suspect."

  Sure. "Inspector," I say, "you were able to determine who was present in the building that night by reviewing the security tapes, right?"

  "Yes."

  "And you were able to rule out several individuals as suspects because the security tapes indicated that they left the building, right?"

  "That's correct."

  Now, for some serious smoke and mirrors. "Inspector, are you aware that it is possible to get into the building without passing by the security desk in the lobby? In fact, it is possible to enter the building by the stairways or the freight elevator, isn't it, Inspector?"

  "The stairways and the freight elevators are kept locked," he says.

  "I understand. But it is theoretically possible for some- one to have entered and exited the building via the stairways or the freight elevator without passing by the security desk, isn't it?"