MD01 - Special Circumstances

by Sheldon Siegel

  I'm still lying awake at one o'clock in the morning when my phone rings. "Mike, it's Naomi." Her voice breaks. She's been crying.

  "Hi."

  "Mike," she says slowly, "I just don't know what to do."

  "You don't have to decide tonight."

  "I know. I just can't believe he'd lie to me."

  I have no response. "Maybe we should talk about it in the morning, Naomi."

  She tries to catch her breath. "I can't go to court tomorrow. It will be too humiliating."

  I pause. "I understand."

  "No, you really don't," she replies sharply. "You really don't."

  "I know things will be tough for you. But it would help us if the jury sees you there."

  "I don't know if I can."

  "Let's talk about it in the morning. We'll stop by on our way in."

  Five minutes later, the phone rings again. "It's Rabbi Friedman." He clears his throat. "This isn't good news."

  "No, it isn't."

  "How reliable are these tests, Michael?"

  "Very."

  "What would you suggest?"

  I pause. "We're going to ask for more time to let our expert review the evidence. The judge may not give it to us.

  At the very least, we'll find another expert and blow some smoke at the jury." I regret saying it as soon as I've said it.

  "You mean you think we should lie?"

  "No. It's my job to get the jury to reasonable doubt. If I have to trot out an expert for three weeks of testimony, that's what I'll do."

  He clears his throat. "This is very difficult."

  "Maybe we should talk about it in the morning."

  43

  "THE PROSECUTION RESTS"

  "District Attorney Prentice Gates is expected to call his final witness today."

  —KCBS news radio. Tuesday, March 31. 7:40 a.m.

  It's pouring when I reach Rabbi Friedman's house at seven-thirty the next morning. Joel and his parents are ready to go. Nobody says a word about last night.

  "Michael," Rabbi Friedman says, "we don't want to be late for court."

  "Rabbi, may I have a word with Joel in private?"

  "Of course."

  I pull Joel into the kitchen. "You okay?"

  "As okay as I'm going to be."

  "What about your parents?"

  "They're pissed off."

  "And?"

  "They're still my parents. They're embarrassed and they'll probably kill me after the trial is over. Until then, they're going to play out their roles."

  This helps. "What about Naomi?"

  "That's tougher. She said she didn't want to go to court this morning. She may take the kids down to her mother's in Southern California until the trial's over."

  "One step at a time."

  We gather our umbrellas and raincoats. As Rabbi Friedman opens the heavy front door, I see Naomi and Rosie walking up the steps under a large umbrella. Even though it's dark out and it's raining, Naomi is wearing sunglasses.

  "What are you all looking at?" Naomi snaps. "It's time to go to court."

  Joel tries to give her a hug, but she pulls away. "We have a lot to talk about when the trial's over," she says to him.

  Rosie repeats firmly, "It's time to go to court." I give her hand a quick squeeze as we walk down the steps toward our cars.

  "Your Honor," I say, "the prosecution has just provided some new and potentially inflammatory evidence. We need some time to review it." We're sitting in Judge Chen's chambers. I asked for a meeting as soon as we got to court and before the jury was brought in.

  Judge Chen isn't in a particularly gregarious mood this morning. She gives Skipper a sharp look and demands, "What's this all about, Mr. Gates? It's a little late to bring in new evidence."

  He smiles confidently. He hands her a copy of the lab report. "Your Honor," he says, "we just got this. We would have introduced it sooner if we'd had it, but the defendant insisted on an early trial date." He clears his throat, but he's still grinning. "The defendant was the father of Diana Kennedy's unborn baby."

  Silence. She puts on her reading glasses and studies the report.

  "Your Honor," I begin.

  She holds up her hand. "Let me look at this, Mr. Daley."

  Rosie remains silent. Mort studies the judge. Skipper and McNulty exchange satisfied looks. I'm waiting for the high fives to start.

  After what seems like an eternity, she puts down the report. "This is serious," she says. "These tests are very reliable."

  Skipper agrees vigorously. "Very reliable, Your Honor. Close to one hundred percent."

  "Thank you, Mr. Gates."

  "Your Honor," I say, "we just got the report last night. We haven't had an opportunity to review it with our expert. And we certainly haven't had an opportunity to conduct an independent test."

  "That could take weeks," Skipper protests. "If they wanted to verify the results, they should have made the request months ago. They pushed for the early trial date. We're ready to conclude our case. We can't wait six weeks while their experts redo the paternity test. It isn't fair. We'll lose the jury. They're going to come back with the same results, anyway."

  The judge looks at me. "Mr. Daley, you really should have made your request sooner."

  She's right. I've made a significant blunder. I believed my client when he told me he didn't have an affair with Diana Kennedy. "In the interests of fundamental fairness, Your Honor," I say, "we would request that you give us at least a few weeks to examine the report and consult with our expert." When all else fails, I try fundamental fairness.

  She shakes her head. "I'm not going to put this jury on ice for a month."

  "Judge Chen," I say, "I won't ask for a few weeks. But you have to give us a couple of days."

  "I don't have to give you anything."

  "I know. But all I'm asking for is just a few days."

  She turns to Skipper, who's whispering to McNulty. "Mr. Gates," she says, "it's Tuesday. I was planning on a couple of short trial days this week so I can attend to some other business. Would you object if we recess until Monday so the defense can review the lab report?"

  "Your Honor," he replies, "I think we should proceed. I see no purpose for this delay."

  "Mr. Gates," she says, "it looks like the rain may stop for a while this afternoon. Why don't you and Mr. McNulty go out and hit some golf balls?"

  Skipper gets the message. "When you put it that way, Your Honor, I guess we might be in a position to adjourn until Monday."

  "We're done," she says. Skipper and McNulty dart out the door. As I'm packing my trial case, she says to me quietly, "He lied to you about Diana, didn't he?"

  I swallow. "Yeah."

  "There isn't much I can do about it, you know."

  "I know."

  "Mike," she says, "I know you'll be tempted to try to get me to declare a mistrial so you can start over and retool your case."

  I'm silent.

  She looks right at me. "I won't let it happen. Don't push my buttons on this one, understood?"

  "Understood."

  "Good. I'll see you Monday."

  We spend the rest of the week trying to fill some of the holes in our case. On Thursday, Mort's DNA expert from UCSF confirms what we all expected. The paternity tests were conducted by a reputable lab. Unless we can demonstrate that there were some shenanigans, it's virtually certain that Joel was the father. Pete and Wendy leave for the Bahamas on Friday.

  I have one bright spot on Friday. I take Nick Hanson out for lunch at Moose's, an upscale eatery on Washington Square in North Beach. At eighty-something, he's still a character. He assures me that he'd be delighted to testify, as long as we agree to pay him for his time at his standard hourly rate.

  I spend all day Saturday and most of Sunday working with our medical expert, Dr. Robert Goldstein, on his testimony to rebut Rod Beckert. At seven o'clock Sunday night, Rosie, Mort and I regroup in our office. Joel has agreed to stipulate that he's the father. I phone Skipp
er with the news. He's pleased. Within fifteen minutes, McNulty faxes a draft stipulation to us. We agree on the language.

  Mort inspects a fine Cuban cigar. "It's the best we can do. We'll get the issue off the table as quickly as we can."

  I'm not so sure.

  Rosie and I drive home on Sunday night. As we head northbound on the Golden Gate Bridge, I turn to her and say, "How did you get Naomi to come to court the other day?"

  "She's tougher than you think. I told her she and Joel have big issues to work out, but that it would help Joel if she waited until after the trial."

  Rosie is one smart cookie. "You think they'll be able to hold it together after all this is over?"

  "Tough to predict. They're going to have to make some changes." She looks out the window and tugs at her hair.

  I've learned there are times when I shouldn't ask too many questions. We drive in silence.

  On Monday morning, Judge Chen is pleased when we inform her in chambers that we've agreed to stipulate about the paternity test. We've just saved a couple of weeks of trial time. She has Skipper read our stipulation to the jury as soon as they're brought in. Although there are a few raised eyebrows among the jurors, there isn't much reaction. They're getting tired.

  "Mr. Gates," Judge Chen says, "do you have anything further at this time?"

  "No, Your Honor." He turns toward the jury. "The prosecution rests."

  "Very well." She looks at the jury. "The prosecution has completed its presentation. We're going to take a short break while the attorneys discuss some legal issues." She nods to Harriet Hill, who leads the jury out. "Mr. Daley," she says, "I presume you'd like to make a motion at this time."

  "Yes, Your Honor. The defense moves that all charges be dropped." The motion is routine. The defense always moves for dismissal at the end of the prosecution's case.

  "On what grounds?"

  "As a matter of law, the prosecution has failed to prove its case beyond a reasonable doubt."

  Skipper stands. "Objection."

  "Sit down, Mr. Gates." She turns to me. "Mr. Daley, your motion is denied. The defense should be prepared to call its first witness tomorrow morning."

  44

  THE BRAIN TRUST

  "After two weeks of damaging testimony from the prosecution's witnesses, Friedman's attorneys will begin their defense. I hope they have a few rabbits in their hats."

  —NEWSCENTER 4 LEGAL ANALYST MORGAN HENDERSON. MONDAY, APRIL 6.

  "Have you heard anything from Pete and Wendy?" Joel asks. We're meeting in Rabbi Friedman's dining room at two o'clock the same afternoon. Joel looks intense. Rabbi Friedman is in a contemplative mood. Mort fingers a cigar. Rosie is drinking iced tea.

  "The banker isn't back in town yet, but Wendy was able to sweet-talk his secretary into giving her copies of some of the correspondence in the file. She's faxing it to us tonight." Joel scratches his head. "So, who goes first?" "We'll start with our medical expert, Dr. Goldstein." Rabbi Friedman glances at Mort. "He's good," Mort says.

  "I worked with him on his testimony over the weekend," I say. "If he can persuade the jury it was a suicide, we can all go home."

  "And if he can't?" Joel asks.

  "We'll attack the physical evidence. If we have to, we'll show the jury that Russo and Patton had a lot more motive and opportunity than you did. If things get really tight, we'll put some of my former partners on the stand and try to deflect the blame over to them."

  "What about me?" Joel asks.

  "What about you?"

  "When do I go on?"

  "We'll see how it goes. If things are going well, you don't."

  "I want to testify, Mike." He pauses. "I need to testify."

  Over my dead body. "We'll decide when the time comes."

  We conclude our discussion after an hour or so and I begin to gather my notes. Rosie starts to put on her coat. Mort clears his throat. "There's something I'd like to bring up," he says.

  "What is it, Mort? Did we forget something?"

  He takes a drink of water. He chews the ice. He looks at Rabbi Friedman and then he turns to Joel. "No," he says, "we didn't forget anything. I wanted to discuss something."

  Joel's eyes narrow. Rosie looks puzzled.

  Mort glances around the table. "I wanted to discuss this privately with Joel, but it doesn't appear that I'll have an opportunity to do so. So, let me explain the situation to all of you."

  Rosie's expression turns to a severe scowl. "What situation, Mort?" she asks.

  "After we got the results of the paternity test, I decided to talk to the DA."

  What? I lean across the table and say firmly, "You didn't have the authority, Mort."

  He holds up his hand. "Hear me out," he says. "In light of the test results, I thought it would be in Joel's best interests to feel out the DA about a possible deal." He looks at Joel. "I think we need to explore all of our options."

  My heart races. It's all I can do not to leap out of my seat and grab him. Rosie's eyes are on fire. She doesn't say anything, but her eyes say, "Light up this asshole."

  I struggle to keep my tone measured. "Why didn't you tell me you were going to the DA?"

  He doesn't flinch. "Because I knew you wouldn't agree to it."

  "That's not true. We would have discussed it. We would have consulted with Joel. Then we would have made a decision."

  He shrugs. "I doubt it."

  "Bullshit," I reply. "You should have told us," I shout.

  "Look," he says, "I talked man-to-man with Skipper. He thinks his case is shaky enough that he'd be willing to let Joel plead to voluntary manslaughter. He'll say it was heat of passion. It takes the death penalty off the table. And he's willing to recommend a fairly lenient sentence."

  I look at Joel. Joel glares at his father. They both turn to me. Joel breaks the silence. "Seeing as how I'm on trial, maybe you guys would be interested in my opinion."

  Mort interrupts him. "Look, Joel. I know how it sounds. But I was doing it for your own good. I think you should consider all your options."

  "You think I'm guilty, you asshole." Joel's father looks away.

  "I didn't say that," Mort replies. "I just thought it was important to know your options."

  "How could you possibly think I might agree to a plea bargain?"

  "Look at their case. You're an admitted adulterer. You're an admitted liar. How big a leap is it for the jury?"

  "You're right," Joel says sharply. "I am an adulterer. I'm not proud of it. I lied about it. I'm not proud of that either.

  But I am not a murderer. I did not kill two people. If the jury wants to convict me for something I didn't do, so be it. But I'll be goddamned if I'm going to admit to something I didn't do. Period." He stares Mort down. Then he glares at his father.

  "Give it some thought," Mort says.

  "I've given it all the thought that it deserves, Mort," he replies. "No deal."

  Mort nods. "Okay," he says. "I understand." He reaches for his briefcase.

  "There's one other thing," Joel says. He looks directly at Mort. "Your assistance on this case is no longer required. You're fired."

  Mort glances at Rabbi Friedman, who closes his eyes. Mort turns to Joel. "I thought you might have that reaction." He picks up his briefcase. "Good luck, Joel. No hard feelings." He hesitates for a moment, then says, "I can show myself out."

  After the door shuts, I turn to Joel. "You okay about this?"

  "Yeah," he answers quietly. "I'm fine."

  Rosie and I sit in her office later the same evening to talk about strategy. The hallway is lined with binders, charts and exhibits. It looks like the backstage area of a theater. "Well, Rosita," I say, "it's just you and me again." "Just like old times," she says. "You ready?" "You bet. We've got them right where we want them." She grins. "You've never been at a loss for self-confidence."

  "I just hope we don't have any more surprises." I pause. "And I sure wish Pete would find that goddamned Vince Russo."

  45r />
  OUR TURN

  "Friedman Defense Begins Today."

  —San Francisco Legal journal. TUESDAY, APRIL 7.

  I knock on Rosie's door at seven the next morning. "Come in for a minute," she says. "You won't believe this." She opens the door. Grace is eating a bowl of Froot Loops at the kitchen table. She's happy to see me. I say hi to Rosie's mom, who has been logging overtime with Grace as the trial has continued. Being a trial lawyer isn't a nine-to-five job. I remind myself that we'll have to do something nice for her after the trial is over.

  Rosie leads me into the living room. The TV is tuned to Channel 4. Morgan Henderson is delivering his daily sermon. "The defense will begin its case today," he intones.

  "So what?" I say to Rosie.

  "Just a sec," she says. She turns up the volume.

  "As we reported earlier this morning," Henderson continues, "last night Professor Morton Goldberg resigned from the defense team. His office said his departure was the result of ‘philosophical differences.'"

  "Philosophical differences my ass," I say.

  "Just wait," Rosie says.

  Henderson smiles at the morning anchorwoman. She bats her eyelashes. "Susan," he says, "Mr. Friedman's loss is our gain. I'm pleased to introduce the newest member of our legal team here at NewsCenter 4." His grin widens. "We are joined by Professor Morton Goldberg, who will be providing commentary on the trial for the duration."

  "For the love of Jesus Christ," I say.

  Rosie grins. "Unbelievable."

  The camera shifts to a beaming Mort, who is in a separate studio, fiddling with a small earphone. "Is that you, Morgan?" he stammers. "What did you say?"

  Henderson looks down at his monitor. "Uh, Professor Goldberg will join us in a moment."

  The picture stays on Henderson, but Mort's voice is heard. "I'm ready, Morgan."

  They're going to have to decide who's going to play Laurel and who's going to play Hardy.

  "Mort," Henderson says, "what are your thoughts on the beginning of the defense's case?"

  The camera shifts to Mort. The bright lights reflect off his huge glasses. "You know, Morgan, I want to remind our viewers that I've just terminated my association with the defense team for philosophical reasons. I have to be careful not to divulge any client confidences."