MD01 - Special Circumstances

by Sheldon Siegel

  "Objection. Irrelevant." Skipper is on his feet. "This is highly inflammatory. It is an internal memorandum that is privileged communication. Furthermore, we have no basis to verify its authenticity. Finally, this information has not been provided to us by the defense."

  "We produced this memorandum several weeks ago, Your Honor," I say. I don't mention that it was included with those eighteen boxes of S&G financial records that we never planned to introduce into evidence. Skipper glares at McNulty. Somebody on their side missed it.

  "In addition," I continue, "if Mr. Gates is concerned about the authenticity of this memorandum, I am prepared to call Mr. Stern and the head of the firm's labor law department to verify that they got a copy of it. If Mr. Gates were permitted to testify, he would acknowledge that he has seen a copy of it."

  Judge Chen pounds her gavel. "The bailiff will take the jury out. I want to see all the attorneys in my chambers. Now."

  We meet in chambers. Skipper tries to sound incredulous. "What kind of stunt are you trying to pull?" Often, this isn't the right tone in chambers.

  Judge Chen interrupts him. "Be quiet, Mr. Gates. Let me see that memorandum." She puts on her reading glasses. Skipper, McNulty, Rosie and I sit in silence. She scans it quickly and then studies it carefully. "Mr. Daley," she says, "where did you get this?"

  I keep my tone professional. "From Ms. Fontaine."

  "I see. How do you know it's authentic?"

  "She typed it. She'll swear to it under oath."

  "Your Honor," Skipper begins.

  She cuts him off. "Shut up, Mr. Gates. It will be your turn to talk in a minute." She looks at the memo again. She turns to Skipper. "Mr. Gates," she says, "I happen to find Mr. Daley's argument persuasive on this point. Do you have anything to say?"

  He glances at McNulty, then turns to the judge. "There is no foundation proving its authenticity. It could have been cooked up on Doris Fontaine's word processor. It isn't signed. We don't have an original. Before you destroy Art Patton's career, you should consider the ramifications."

  I put both my palms on her desk and push myself up. "Your Honor, if he's accusing us of manufacturing evidence, he's crazy. Doris will swear under oath the document is authentic. I'll swear under oath we obtained it through legitimate means. If I'm lying, you can have my ticket to practice law right now. I will trot out everybody who ever saw this memo. If you insist, I will testify. Our request is legitimate and our evidence is good. And if Skipper thinks it's tainted, he can argue it to the jury. Let them decide whether we made this whole thing up. We'll take our chances."

  "Your Honor, with all due respect to Mr. Daley and his ticket to practice…"

  She holds up her hand. "Mr. Gates, have you ever seen this memo before?"

  He swallows. He looks at McNulty, who raises his eyebrows. "I don't recall," he stammers.

  Judge Chen shakes her head. "I've heard enough. The objection is overruled. The memo comes in. Now all of you get out of here."

  Skipper sits on his hands and seethes the rest of the afternoon while Doris and I go through the memo in detail in front of the jury and destroy what's left of Art Patton's reputation. There is a lesson somewhere in this. The memo reveals Diana had, in fact, reported Patton's advances to the head of the firm's human-resources department, and had threatened to sue the firm for sexual harassment. According to witnesses, Patton had propositioned her at the party in his room. She rejected him and returned to her own room. He followed her. Diana said Patton then grabbed her from be- hind and pinned her to her bed. He tried to muffle her calls for help. She managed to free one of her legs and kicked him in the groin. She ran to Joel's room. About five minutes later, Patton knocked on Joel's door and found Diana there.

  Patton claimed it was all a misunderstanding.

  The report says Patton had been sued for sexual harassment on four occasions and that the firm settled all four lawsuits. The firm also received a dozen other claims that did not lead to formal legal action. In each case, Patton claimed he was misunderstood. In his mind, it was all a problem of perception.

  The other members of X-Com ordered him to have counseling and fined him a hundred thousand dollars. His points were reduced. He was told he would be expelled from the firm if another incident ever took place.

  "Ms. Fontaine," I say, "were there any other developments after this memorandum was issued?"

  "The day before Christmas, Ms. Kennedy gave her resignation to Mr. Holmes. She had accepted a job in San Diego. She wanted a fresh start." I introduce the resignation letter into evidence.

  "What does this have to do with Mr. Patton?"

  "When she tendered her resignation, she told Mr. Holmes and Mr. Patton that she had retained a lawyer. She was going to sue the firm and Mr. Patton for sexual harassment. Mr. Holmes told me he was going to begin procedures to have Mr. Patton expelled from the firm."

  "Did Ms. Kennedy ever initiate legal action against Mr. Patton?"

  "No, Mr. Daley. She died before she had time to do anything."

  "Ms. Fontaine, would it surprise you to know that Mr. Patton has testified that he had never propositioned Ms. Kennedy?"

  "Yes."

  "Was Mr. Patton telling the truth, Ms. Fontaine?" "No," she says firmly. "Mr. Patton is a liar." "No further questions."

  Skipper asks a few perfunctory questions on cross. As Doris steps down, I write a note to Rosie. "Is it enough?" it says. She whispers into my ear, "I think so."

  That night, we spend two hours at Rabbi Friedman's house arguing with Joel about whether he should take the stand. The conventional wisdom says you never let your client testify unless you absolutely must. A good prosecutor will turn a defendant's story around in a nanosecond. In a circumstantial case such as ours, the entire case could turn on Joel's demeanor.

  "Mike," he pleads, "I don't want to hide behind my lawyer."

  "It's too risky. Skipper could tie you in knots."

  "I'll take my chances. I'm not going to spend the rest of my life wondering if my testimony could have made the difference. I want to tell my story to the jury."

  And maybe piss your life away. We spend an hour going over his testimony, just in case. As I'm leaving, he begs again for a chance to take the stand.

  "Let me sleep on it, Joel. We'll make a final decision in the morning."

  I spend the night consulting my most trusted consigliere. I'm inclined to put Joel on the stand for just a few questions. Rosie is dead set against it. Her instincts are usually better than mine. Randy Long, my mentor from the PD's office, says I should follow the conventional wisdom.

  I decide to make a final phone call at eleven-thirty. "Mort, it's Mike."

  "Long time no talk."

  "How's life as a TV star?"

  "Not all that it's cracked up to be. I have to be up in a few hours for the morning news."

  "The price of fame."

  "Beats working for a living." He chuckles. "What's up?"

  I pause. "I wanted a gut reaction from you."

  "My gut is listening."

  "You think I should put Joel up on the stand tomorrow?"

  Silence. I picture him sitting in his bathrobe, fingering a cigar. "That's a two-cigar question."

  "I know."

  I hear his asthmatic breathing. "The conventional wisdom says no."

  "I know."

  "The conventional wisdom isn't always right."

  "I know that, too."

  He pauses. "I'd put him on. But I'd get him off in a hurry. Just a few questions. Get a good, forceful denial and get him the hell off."

  "Thanks, Mort. I'll be watching you in the morning."

  55

  "JUST KEEP EVERYTHING SHORT AND SWEET"

  "In what court observers are describing as a reckless gamble, Joel Mark Friedman will take the stand in his own defense today in what might be described as the legal profession's equivalent of the Hail Mary pass. Michael Daley should be sued for malpractice."

  —NEWSCENTER 4 LEGAL ANALYST
MORGAN Henderson. WEDNESDAY, APRIL 15.

  "You ready?" I ask Joel the next morning. He's pacing in the consultation room.

  "Yeah. I'm ready."

  "You don't have to do this, you know."

  "I know."

  "And you understand my reservations?" A standard lawyerly CYA question.

  "We've been through it a million times. I'm going to testify. It's my life."

  It's your funeral. "Fair enough. I'll be with you all the way."

  He stares at the wall. "What would you do if you were in my shoes?"

  "I'd listen to my attorney."

  He gives me a knowing smile. "I knew you were going to say that."

  "Just keep everything short and sweet. Just the way we rehearsed it. I want you off the stand in no more than five minutes. Skipper can cross-examine you only on stuff that we've talked about. I don't want to open the whole case. I want you to tell everyone you're innocent, and sit down. Got it?"

  "Got it."

  The courtroom buzzes. The gallery is packed. Naomi sits between Rabbi and Mrs. Friedman in the first row behind us.

  Skipper has given VIP passes to three big contributors from the Republican caucus. The gossip columnist from the Chronicle is here. It's the biggest local news event since the Niners were eliminated from the playoffs in January.

  We rise as Judge Chen enters the courtroom. Harriet Hill brings in the jury. "Mr. Daley," Judge Chen says, "will this be your last witness?"

  "Yes, Your Honor. The defense calls Joel Friedman."

  Joel looks lawyerly. His hair has more gray than it did four months ago. His features are drawn, if not gaunt. Yet his eyes are clear. After four long months, he's going to tell his side of the story. I've told him not to drink any water unless he has to. It makes you look nervous.

  "Mr. Friedman," I begin, "you were assisting Robert Holmes on a deal for Vince Russo on December thirtieth of last year?" I like to start with an easy, leading question.

  "Yes, Mr. Daley."

  I ask Joel to provide a brief summary of the deal. We talk about his dinner with Diana at Harrington's. He says she left because they got into an argument about the deal. He says he returned to the office and Diana went home.

  "What did you do when you got back to the office?" I ask.

  "I assembled all of the final documents for the closing. The papers were signed by twelve-thirty. I went to see Mr. Holmes. I explained to him that the escrow instructions that Ms. Kennedy was working on had not been completed and that I was going to finish them. Mr. Holmes was in the middle of a heated discussion with Mr. Russo at the time. Mr. Holmes instructed me to call Ms. Kennedy and tell her to come back to the office."

  "And it was that telephone call from you to Ms. Kennedy that was tape-recorded on Ms. Kennedy's answering machine?"

  "Yes."

  I stop for a moment. "Did you see Ms. Kennedy after she returned from her apartment?"

  "No."

  "Mr. Kim, the custodian, testified that he heard you and Mr. Holmes having a rather intense discussion about twelve-thirty on the morning of the thirty-first. Do you recall that discussion?"

  "Yes. Mr. Kim overheard us discussing the closing and certain issues involving my career."

  "What career issues?"

  "I was told on the thirtieth that I was not going to make partner."

  "And were you upset about that?"

  "Yes."

  "And did you convey your feelings to Mr. Holmes?"

  "Yes, I did."

  "And what was his response?"

  "Objection. Hearsay."

  "Sustained."

  I continue. "Let's try this another way. On the evening of the thirtieth, were you given an indication that you would be put up for partner the following year?"

  Skipper stands. He's trying to figure out which objection to use. Before he can speak, Joel says, "Yes, I was promised that I would be put up for partner the following year."

  "And did Mr. Holmes promise to support your election to the partnership the following year?"

  "Objection. Hearsay."

  Judge Chen looks perplexed. "I'll allow it this time, Mr. Daley. Then I want you to move on."

  "He promised to support me," Joel responds.

  "Mr. Friedman," I say, "could you please tell us what happened the following morning?"

  Joel describes how he and Chuckles got the keys to Bob's office from Doris's desk. He says he got sick and went to the bathroom and threw up. When he returned, he opened the gun and took the three remaining bullets out. "I had shot the gun at the range," he says. "It was sensitive and unreliable. I disarmed it so that nobody would be injured. I thought it was the right thing to do."

  "Could you describe your relationship with Diana Kennedy?"

  "Yes. We were colleagues. And we were friends." He pauses. This is going to get tough. "And, for a very brief period of time, we were lovers. It's not something I'm proud of."

  "How long did your affair with Ms. Kennedy last?"

  "One night during October of last year." He looks at Naomi. "I'm embarrassed. I've let my family down. I've let myself down." He looks appropriately contrite. You could put a scarlet A on his chest right about now. "I'm sorry, Naomi," he says.

  "Joel," I say quietly, "did you know she was pregnant?"

  "Yes, I did," he whispers. "She told me in early December."

  "And were you aware that you were the father of her baby?"

  "No. She told me that I wasn't the father. I guess she was wrong."

  "Were you aware that Diana had decided to move to San Diego?"

  "Not until the night of the thirtieth."

  "When did she tell you?"

  "When we were having dinner at Harrington's."

  Careful now. "You know, Joel," I say, "some people might think that your argument with Diana at Harrington's may have had something to do with the fact that you were the father of her baby and she was leaving town. Some might suggest that she dumped you and demanded support for the baby. Is that what really happened that night at Harrington's, Joel?"

  He looks serious. He says, in a perfectly level tone, "No, Mr. Daley, that's not right. Diana and I were arguing about work. Our relationship was over long before the evening of December thirtieth."

  "One final question. Let's put all of our cards right on the table. Did you kill Robert Holmes and Diana Kennedy?"

  His words are perfectly measured. "No, Mr. Daley. I did not."

  I glance at the phone company supervisor. No discernible reaction.

  "No further questions."

  Skipper can't wait. "Mr. Friedman," he begins, "do you remember having a conversation with Inspector Roosevelt Johnson on January eighth?"

  "Objection, Your Honor. Mr. Gates is attempting to introduce into evidence matters that were not addressed in direct exam."

  "I'll tie it together," Skipper pleads.

  Judge Chen grimaces. "Overruled. But I want to see some direct relevance right away."

  "Thank you," Skipper says. He turns back to Joel. "Do you remember the conversation with Inspector Johnson?"

  "I had lots of conversations with Inspector Johnson."

  Easy, Joel. Don't get cute. Just answer the questions.

  "Well, Mr. Friedman, let me refresh your memory. According to Inspector Johnson's police report, you had an interview with him at the Hall of Justice. Do you recall the meeting?"

  "Yes I do."

  "And do you recall at that meeting Inspector Johnson asked you whether you had ever had a sexual relationship with Ms. Kennedy?"

  "Yes, I recall that he asked."

  "And how did you respond?"

  Joel looks at me. "I told him we had never had a sexual relationship."

  Skipper is pleased. "We later found out that you were the father of her unborn child, didn't we?"

  "Yes."

  "So, Mr. Friedman, when Inspector Johnson asked you about your relationship with Ms. Kennedy, you lied, right?"

  It's pointless to object.


  Joel casts his eyes downward. "Yes, I did," he says quietly.

  "What other things have you lied about, Mr. Friedman?"

  "Objection. Argumentative."

  "Sustained."

  I twist in the wind for the next forty-five minutes as Skipper cross-examines Joel. He gets Joel to admit the fight at Harrington's was a big one. He gets Joel to acknowledge his voice-mail message to Bob sounded ominous. He gets Joel to admit that he didn't tell the cops about his phone call to Diana until he was confronted with the tape. I object every three or four questions, just to break up Skipper's rhythm. The jury is riveted. Naomi stares at the floor. Rabbi Friedman sits with his hands folded. I second- and third-and fourth-guess my decision to put him on the stand.

  Joel acknowledges his affair with Diana. His explanation is credible. When you're the father of two kids and the rabbi's son, you don't necessarily want to admit adultery. He explains his love-hate relationship with Bob.

  After a seemingly endless string of questions, Skipper gets right in Joel's face. "Mr. Friedman," he says, "as Mr. Daley so eloquently said, let's put our cards on the table. Let's admit what really happened that night. We'll all feel better about it."

  Here we go. Stay the course, Joel.

  "Mr. Friedman," Skipper continues, "what really happened that night is that Diana Kennedy dumped you at Harrington's. She told you she didn't want to see you again. And she told you she was going to resume her relationship with Bob Holmes. Isn't that the truth, Mr. Friedman?"

  "That's not true," Joel says evenly. He looks Skipper right in the eye.

  "And," Skipper says, "you went back to the office that night and got into a big fight with Bob Holmes. Oh, it may have started out as a fight about business, but eventually it turned to a fight about Ms. Kennedy. Turns out she was two-timing you. She was sleeping with Mr. Holmes."

  "That's not true, either," Joel says. He glances at Diana's mother.

  "Come on, Mr. Friedman. We've seen you lie when things get tough. You lured her back to the office and you killed both of them with Mr. Holmes's gun. And you tried to make it look like a suicide. Except you got a little sloppy. You left your fingerprints on the keyboard. And you didn't realize your message to Ms. Kennedy had been recorded. Isn't that the truth, Mr. Friedman?"