MD01 - Special Circumstances

by Sheldon Siegel

"Objection. Relevance."

  "Overruled."

  "Yes, it's theoretically possible," Roosevelt says. "However, you would need a key to access those areas."

  "I know. But if somebody had a key, or a stairway door was propped open, it is possible somebody could have gotten upstairs and entered and exited the Simpson suite without passing by the guard desk, right?"

  "That's true."

  "And it's true that there are no security cameras on the stairways or the freight elevator, right?"

  "That's also true."

  "So somebody could have entered the building, gone up the stairs or the freight elevator, killed Mr. Holmes and Ms. Kennedy, and left the same way, without ever being detected, right, Inspector?"

  "Objection. Speculative."

  "Overruled."

  "Yes, Mr. Daley," Roosevelt says. "That's theoretically possible."

  I glance at Rosie, who nods. We have one more item on today's agenda. "Inspector," I say, "we've heard a lot of talk about the personal lives of Joel Friedman and Diana Kennedy."

  "We certainly have," he agrees.

  "You've testified that you believe Joel and Diana were having an affair, which she terminated."

  "That's correct."

  "And you base your conclusion on the testimony of Mr. Patton and Mr. Hutchinson?"

  "Yes."

  "You realize Mr. Patton did not say he actually saw Joel and Diana in bed together."

  "That's true."

  "And you realize Mr. Patton saw Joel and Diana in the same room together immediately after he attempted to attack her?" A bit of a stretch, but I decide to go for it.

  "Objection."

  "Overruled."

  Roosevelt looks right into my eyes. "We questioned Mr. Patton at length. We have no reason to doubt the veracity of his testimony."

  "Mr. Hutchinson claims he saw them in a bar and in a hot tub. Yet Mr. Hutchinson admitted that he was intoxicated at the time. Surely, you must have doubted Mr. Hutchinson's testimony?"

  "We had no reason to question the truthfulness of Mr. Hutchinson's testimony, either."

  Great.

  "Inspector," I say, "Mr. Hutchinson said he thought he saw them in a hot tub from a distance of about a hundred yards away. He could have been mistaken. It was dark that night. He'd had a lot to drink. Other than the highly tentative testimony of Messrs. Patton and Hutchinson, you really don't have any evidence that Joel Friedman and Diana Kennedy were having an affair, do you?"

  Skipper leaps up. "Objection, Your Honor. Speculative. Leading. Asked and answered."

  All of the above.

  "Sustained."

  "No further questions." I return to my seat. The courtroom is silent.

  Judge Chen turns to Skipper. "Mr. Gates, I think we'll call it a day."

  She pounds her gavel.

  Joel, Rosie, Mort and I sit in the consultation room behind the courtroom. I'm beyond exhausted. "Mike," Mort says, "that was nice work on cross today."

  "Thanks. Coming from a pro like you, it means a lot to me." A small lie.

  Rosie's always a step ahead. "We'll move for dismissal tomorrow."

  Joel perks up. "Do you think they'll really dismiss the case?"

  Mort gestures with his cigar. "Maybe. Mike got Johnson to admit they have no hard proof that you fired the gun. He made a lot of points on motive. That's always been the weakest part of their case. They've never been able to prove conclusively that you and Diana were having an affair."

  "That's because we weren't," he replies.

  Mort adds, "I've seen cases tossed for a lot less."

  Joel smiles briefly. "I'm not going to get my hopes up too high," he says.

  "We'll see tomorrow," I say.

  Roosevelt is waiting for me by my car. "Nice work today," he says.

  I toss my trial bag into the trunk. "Thanks, Roosevelt. I'm sorry if I beat you up in there a little today. Nothing personal."

  He glances at the cars roaring by on the 101 freeway. "I hear they've found something. I don't know what it is. You're going to find out tonight and it's going to come down tomorrow."

  I pause. "You think he's innocent, don't you, Roosevelt?"

  "There's a lot of evidence that points in his direction. There are a lot of holes in the case, too." He motions toward the Hall and shrugs. "But it's not up to me. The guy on the third floor is making the decisions."

  I watch a police car drive by on Bryant. He's silent as a uniformed cop walks by us.

  "I've got to run," he says. "It'll be my ass if anybody sees me talking to you." He turns and walks away.

  "Thanks, Roosevelt," I call out to his back.

  42

  THE FACTS OF LIFE

  "District Attorney Prentice Gates says he'll call only one more witness tomorrow. Court watchers expect Friedman's defense attorneys to move for dismissal."

  —KCBS news radio. Monday, March 30. 6:00 p.m.

  Rosie's secretary, Rolanda, hands me a large manila envelope when I return to the office at six o'clock the same evening. Theoretically, she's supposed to be working just for Rosie. During the trial, she's been helping me out, too. "Thanks for sticking around," I say.

  "You did a nice job on cross, today. Even the bitchy woman on CNN said so."

  Small consolation. "Thanks."

  I tear open the envelope and pull out a thick stack of paper. "Skipper didn't call, did he?"

  "No. But McNulty did. Said it was important. He left his pager number."

  "Thanks." I rifle through the pages.

  "What is it, Mike?"

  I give her page 5 of the report. "Read this," I say.

  Her eyes get bigger. " ‘The blood and DNA tests conclusively prove that Joel Friedman was the father of Diana Kennedy's unborn child.'" She stares at the report. "Shit," she whispers.

  "Yeah." I think Rolanda's going to go to law school after she finishes at City College. "I'll call McNulty. Could you see if you can get Mort and Pete to come down here? Rosie's on her way."

  "I'll be here as long as you need me tonight. You okay, Mike?"

  Just great. We've built our defense on the fundamental proposition that my client wasn't sleeping with the victim and therefore had no motive to kill her. I've probably created enough doubts in the minds of the jurors to get an acquittal. And now I realize he was probably lying all along. "I'll be okay. It may be a long night."

  "Bill McNulty speaking." Even on a cheap cellular phone, his delivery is crisp.

  "It's Mike Daley." My voice is hoarse as I cradle the phone in my shoulder.

  "You get the lab results?"

  "Yeah."

  "We're going to introduce it into evidence tomorrow."

  "I'm going to ask the judge for some time to study it and have our own experts look at it."

  "She won't go for it. You pushed for the early trial date. You're going to have to live with it."

  "If she doesn't give us some extra time, we'll appeal."

  "We'll take our chances."

  I would, if I were in your shoes. "It doesn't change anything, Bill. You guys still can't prove your case beyond a reasonable doubt. You still can't show he pulled the trigger."

  "We'll take our chances."

  Asshole.

  Pete arrives first. He walks in with authority, dressed in blue jeans and a black leather bomber jacket. He glances at the report. "Looks like we've got a problem," he says.

  "You got that right. You know any good DNA guys?"

  "Not really."

  "I'll ask Mort." I rub my eyes. "We had them. We were going to move for a dismissal."

  "They said on the radio your cross on Johnson was really good."

  It was. "Anything new on the search for the elusive Vince Russo?"

  "Nothing. We've drilled a bunch of dry wells. They're supposed to be looking for him at border crossings. Fat chance."

  Rosie is already here when Mort walks in. He's heard. "So," he says, "turns out our client was the father after all."

  "Se
ems that way, Mort," I reply. I show him a copy of the paternity test in the report.

  "You realize, of course, we're completely and totally fucked."

  Rosie snaps, "That's helpful. Got any other suggestions, Mort?" She may as well have added, "you asshole."

  "Easy, Rosie," Mort says. "I'm not ready to throw in the towel just yet. We've still got some cards to play."

  "He's right," I say. "When in doubt, go back to the evidence. Point one: If we can put on a good enough expert to rebut Rod Beckert, we can argue it was a suicide. We could win the case right there."

  Mort smiles. "Now you're starting to think like a lawyer again."

  "Our expert better be good in court," I reply.

  "He's the best. Full professor at UCSF. And he's my brother-in-law, for God's sake. If he fucks up, he's going to have to listen to me piss on him at the Passover seder for the next twenty years." He turns serious. "Wait till you see him in court. He's beaten Beckert. He can do it again."

  Rosie's quiet. She's thinking.

  "Point two," I say. "Even if the jury decides it wasn't suicide, they still can't show Joel fired the gun. Maybe he handled it, but they can't prove he fired it. Reasonable doubt right there."

  "Another perfectly legitimate argument," Mort agrees.

  Rosie still isn't biting.

  "Point three. They've got a problem with the computer keyboard. Joel's fingerprints are all over it. But Bob's aren't. It doesn't make sense. If Joel was going to try to fake a suicide, why would he get his fingerprints all over Bob's keyboard?

  "Point four. The paternity test will prove Joel and Diana had an affair. They're going to argue he killed her because she broke it off to get back together with Bob. If we can show that Bob and Diana weren't together at the end of the year, it blows a big hole through their motive."

  Rosie shrugs. "It's tough to prove a negative, Mike."

  "I know. But we've got to try." I look at Pete. "Are you thinking what I'm thinking?"

  "The mystery woman at the Fairmont?"

  "Exactly. If we can prove she wasn't Diana, we've got a pretty good argument that Bob and Diana never got back together. It might be a good time for you to have a talk with Nick the Dick."

  "He'll testify," Pete says. "He has another book coming out this fall. It's free publicity."

  I stop to think for a minute. "The one thing we haven't considered is the possibility that Joel isn't the father. We could argue the test results were flawed. How reliable are these tests, anyway?"

  Silence. Rosie finally says, "Ninety-nine percent."

  Mort adds, "It probably means we're ninety-nine percent fucked. On the other hand, I know a guy at UC who's good. I can get him to confirm the test results. It'll take a little time, though."

  "You guys got any better ideas?" I ask.

  Mort says, "You forgot point five."

  "Point five?"

  "Yeah. If everything else fails, we'll use the S-O-D-D-I defense."

  "SODDI?" Pete asks.

  "Some Other Dude Did It. We need to try to pin it on somebody else. Give the jury a choice."

  He's right. It may be our best shot. "Vince Russo's perfect," I say. "He's dead. He can't defend himself. If he didn't do it, why did he jump off the Golden Gate Bridge? Art Patton's a great candidate, too. For one thing, he's a first-rate asshole. For another thing, he's been sleeping with the Widow Holmes. And he put the moves on Diana. We don't have to prove anything. We just have to suggest it to the jury in a plausible manner to give them something to let them reach reasonable doubt. Hell, we should try to find a way to work in the fact that Skipper was there that night."

  "You're stretching, Mike," Rosie says.

  Mort tells her, "You'll see, Rosie. It works."

  She isn't convinced. I've always trusted her instincts.

  Mort rubs his fingers around a cigar. "Well," he says, "what should we do first?"

  "Rosie, I need you to prepare papers to get things delayed until we can find our own expert and do our own tests. Mort, I want you to call your guy at UC. Pete, I want you and Wendy to go to the Bahamas right away and see what you can dig up before Trevor Smith gets back. Before you leave, I want you to set up a meeting for me with Nick Hanson. And I need you to pound on a few more witnesses to see if we can nail Art Patton. And anything you can get on the whereabouts of Vince Russo would be greatly appreciated."

  "What are you going to do tonight?" Rosie asks me.

  "I guess it's time for me to have a little talk with our client about the facts of life."

  "We need to talk." I meet Joel at the front door of his father's house at nine-thirty that evening. I try for my best subdued tone. He seems to be in a pretty good mood. Then I remember that the last time we spoke, we were suggesting that we may be able to get the case dismissed tomorrow.

  "Whatever you need, Mike." He smiles. "Great job on cross today."

  "Thanks." My eyes dart. "Your mom or dad around?"

  "No. They're at an Israel Bond dinner."

  Relief. "Good." We walk into the living room and sit down. The TV is tuned to CNN. "Something's come up. It's serious."

  His smile vanishes. His eyes bore in on mine. I look right back into his. "I thought things went pretty well today." He finds the remote and turns off the set.

  "They've gotten the test results back on Diana's baby."

  The color leaves his face. "And?"

  "I think you know."

  He takes his glasses off and rubs his eyes. "It's me, isn't it?" he whispers.

  "Yeah."

  He folds his hands and looks out the window for a moment. In my family, such news would have been met by at least twenty minutes of world-class histrionics, followed by another half hour of assignment of blame. When you're the rabbi's son, you aren't allowed such luxuries.

  We sit in silence. "Are they sure?" he finally asks.

  "Ninety-nine percent."

  He rubs his index finger across his lips. "I was afraid of that."

  "Did you know?"

  "I wasn't sure." He scratches his head. "Diana said it was possible."

  "I see." But I really don't.

  "What am I going to tell Naomi?" he says to nobody in particular.

  "You might start with the truth," I reply. I realize my tone is harsh as I say it.

  He swallows hard. "You don't understand," he says through gritted teeth. "You just don't fucking understand." He stands up and walks toward the kitchen. I follow him. He pulls a glass from a cabinet and fills it with water. He leans against the refrigerator and I lean against the counter. We're barely five feet apart. There's a look of desperation in his eyes.

  "Then explain it to me," I say. "If you want me to defend you, I have to understand."

  "You can't."

  "Maybe not. But I can try."

  He blinks back tears. "You don't know what it's like being the rabbi's son, Mike. You live in a fishbowl. Everything gets blown out of proportion. If you get sent home from school, you aren't just another little kid getting in trouble. You're the rabbi's son getting in trouble. If you aren't dressed perfectly for services, it's viewed as a poor reflection on the rabbi and on the entire Jewish community. People notice." He looks away. It's hard to believe he's the same guy who was working on a billion-dollar deal a few weeks ago.

  I don't say anything.

  "Naomi is more fragile than she lets on," he says. "She's been on antidepressants. I didn't mean to sleep with Diana, Mike. It just sort of happened. And it only happened once. It was stupid. And I have to live with it."

  "Joel," I say, "for the moment, you have to remember you're a defendant in a murder trial. You can't dwell on the fact that the Jewish community may find out about your relationship with Diana. You have to tell Naomi and your parents tonight. They're going to introduce the lab report in open court tomorrow. I may not be able to stop them."

  "I'm completely fucked," he says. The stress overwhelms him. He dissolves into tears. He knocks his glass of water off the counter. I
put my arm around his shoulder. The sobs are long and loud. "What am I going to tell her?" he repeats several times.

  For a guy who thinks he has all the answers, I'm speechless.

  I hear the front door open behind me. I hear Mrs. Friedman's voice. "Anybody home?"

  Rabbi Friedman says, "Joel, are you still up?"

  I see that Joel has miraculously regained his composure. His parents find us in the kitchen. We stand in silence for a moment.

  "What is it?" Joel's mother asks.

  Joel looks at me. Then he turns to them. "Something's come up. We need to talk."

  "How did he react?" Rosie asks later that night. We're watching the news in her living room.

  "Not well," I reply. "He broke down. He's humiliated. His marriage is falling apart."

  She closes her eyes. She and I were down the same path not so long ago. "Did he tell Naomi?"

  "They were talking when I left. They were both crying. She wasn't as angry as I thought she'd be. I don't think she has the energy to be angry. She looked so sad."

  "And his parents?"

  "He told them, too."

  "How did they take it?"

  "Stoic. It's the way they are."

  "Shit."

  "Do you think I should have stayed there, Rosie?"

  "Probably not. You have to deal with some things in private."

  "Would you do me a favor?" I ask. "Would you stop by Naomi's on your way in tomorrow? I think she's going to need some support. It might be better if it comes from you."

  "Sure."

  "Thanks."

  She turns off the TV. "What are you going to do in court tomorrow?"

  Beats me. "We have two choices. We can ask for a continuance and get Mort's expert to challenge the validity of the paternity test."

  "Medical science isn't perfect."

  "Paternity testing is pretty close. I'm sure he's the father."

  "What's the other choice?"

  "We stipulate that Joel is the father. We get to the truth quickly without a lot of hysterics."

  "Why would we do that?"

  "To avoid pissing off the jury with three weeks of expert testimony on the unreliability of paternity tests that we know are accurate."

  "Tough choice. What does Joel want to do?"

  "He wants to stipulate. He's ready to come clean." "You think he's lied about anything else?" "I don't think so." I don't add that I'm not sure. "Let's talk in the morning with Joel."