MD01 - Special Circumstances

by Sheldon Siegel

  "No, Mr. Gates, that is not the truth."

  "You did it, Mr. Friedman, didn't you? You'll feel better if you get it off your chest."

  Joel takes a deep breath. "It is not true. I did not kill Bob Holmes and Diana Kennedy."

  "You're lying again, aren't you, Mr. Friedman?"

  I leap up. "Objection, Your Honor."

  "Sustained."

  "No further questions."

  My redirect is brief. I want to leave the jury with a final impression of a calm, collected Joel. I ask him to reiterate once more that he did not kill Bob and Diana. Then I sit the hell down.

  At eleven-thirty Judge Chen looks at me. "Do you have any more witnesses, Mr. Daley?"

  "No, Your Honor. The defense rests."

  "We'll hear motions right after lunch and we'll begin closing arguments first thing in the morning. We're adjourned."

  She pounds her gavel.

  Late that night, Rosie and I are watching CNBC in her living room. "I can't understand why Daley put him on the stand," intones Marcia Clark.

  "It was a terrible mistake," says Morgan Henderson, who has left the comfort of the NewsCenter 4 studio for an appearance on CNBC.

  "I should have left well enough alone," I say to Rosie. "I never should have put him on the stand. It was too risky."

  "He did okay. At least he got it all off his chest. That's good."

  "I don't think the jury bought it."

  "They're a tough group to read. I just can't tell."

  "Want to hear my closing one more time?"

  "Sure."

  The following day, Skipper and I spend the morning engaging in the legal profession's version of hand-to-hand combat. We line up toe-to-toe and deliver our closing arguments. The commentators will describe it as a classic matchup: the charismatic DA against the eloquent defense attorney. Skipper rants for the better part of two hours. He pounds the lectern. He prances like a gazelle. He points at Joel as he describes each piece of evidence. The theatrics are effective. The jury follows his every move.

  I speak for less than an hour. I try to keep my tone measured. I can't compete with histrionics, so I have to try for empathy. The courtroom is a blur of jurors’ faces. I attack each piece of evidence. I plead with them to believe Bob killed Diana and then committed suicide. I remind them that somebody could have entered and exited the S&G suite by the stairs or the freight elevator without being seen on the security tape. Finally, I tell them that if they insist on concluding that somebody killed Bob, they have far better choices than Joel. With glib self-assurance, I try to deflect the blame toward Vince Russo, Chuckles Stern and, above all, Art Patton. I remind them Art had at least thirty million reasons to kill Bob.

  At a quarter to twelve, I thank them and tell them that Joel's life is in their hands.

  When all is said and done, I'm not a big believer that you win cases in closing arguments. If the jury isn't already predisposed to vote your way, your goose is probably cooked. We take a brief lunch break and Judge Chen charges the jury. At two o'clock, she pounds her gavel and sends them to the jury room.

  After four long weeks of trial, it's out of my hands.

  56

  "I OVERREACHED. I JUST KNOW IT"

  "We are very pleased with our closing arguments. We have great faith in this jury and we are confident Mr. Friedman will be acquitted."

  —Live interview on Channel 4 with defense attorney Michael Daley. Thursday, April 16.

  "I bombed, Rosie. I blew it. I overreached. I just know it." Rosie is driving us back to the office after closing arguments.

  "Calm down," she replies, as she pulls onto Bryant and heads east toward our office. "You're overreacting. You did fine."

  I'm looking for any wisp of comfort that I haven't just blown our case into kingdom come. Some lawyers walk out after closing arguments firmly convinced they were so good they could have persuaded the pope to convert to Judaism. I remember all the things I should have said differently, or didn't say at all. "You've got to admit I overreached a little." It's starting to drizzle.

  "You did fine," she repeats. "They were listening and they were with you. I could see it."

  "I hope you're right. You never can tell with juries."

  "You got that right."

  We park in the pay lot across the street from the office. A row of minivans line up on Mission Street. It looks like a taxi stand. I know most of the reporters by name. Rosie and I push through them. I mouth appropriate platitudes about the strength of our case.

  Inside the door, Rolanda hands me a stack of phone messages. I sift through them quickly. One catches my eye. "Rosie," I say, "I've got to make a couple of calls."

  I dial 1, 242, and the seven-digit number. You don't need to dial Oil, the international access code, to call the Bahamas. The person answers in an elegant British accent. I recognize the voice of Duncan Burton, the concierge at the Graycliff. "Ms. Hogan has left for the airport," he says. "You can reach her at the following number." It's Wendy's cellular.

  I can barely hear her when she answers.

  "It's Mike. Where are you?"

  "O'Hare. We just got in from the Bahamas. Our plane for San Francisco leaves in a few minutes. How are things?"

  "It's up to the jury."

  "You ought to go back to the Bahamas when you can spend more time."

  "Maybe when I have a lot of money to hide. Did you find anything?"

  There's a pause. "The good news is we finally got Trevor Smith to talk. We found out who gets the money from the International Charitable Trust. The bad news, I'm afraid, is the information won't help you much. If you were looking for a magic bullet, I don't think it's here."

  "Try me. Who gets the money?"

  "Bob's kids."

  "That's it?"

  "Yeah. And one other person. Jenny Fontaine."

  "Really?" I stop for a second. Why would Bob leave money to Doris's daughter? But it makes sense, I guess. "Bob always had a soft spot for Jenny," I say.

  "Kind of a thank-you to Doris."

  "I suppose. Is it divided up evenly?"

  "Not exactly. Jenny gets a third of the money. The other kids share the rest equally."

  "Interesting."

  "Yeah, I guess. Any of this going to help you, Mike?"

  "I doubt it. It's too late to introduce any of it into evidence. I can't imagine Bob's kids or Jenny were involved."

  "Yeah." Silent disappointment at the other end of the line.

  "Look, Wendy, I didn't expect you to break the case. You really helped a lot, okay?"

  "Yeah. I guess."

  "When will you be home?"

  "Tonight."

  I look through the bars on my window. I hang up the phone as Rosie walks in. "Find out anything good from Wendy?" she asks.

  "How did you know it was Wendy?"

  "You have that look."

  "What look?"

  "The ‘I wish Wendy would realize how big a crush I have on her’ look."

  "It's that obvious?"

  "Uh-huh."

  "You're not jealous, are you?"

  "Nope." She's lying. At least I think so.

  "You'll see. Nothing will come of it."

  She smiles. "I may not give up my boy toy without a fight."

  A few minutes later, Rosie and I sit in my office. My TV is tuned to NewsCenter 4. Morgan Henderson and Mort Goldberg are arguing about whether I should have put Joel on the stand. They've already declared Skipper the hands-down winner of closing arguments. Henderson is explaining to the world how I've botched Joel's defense and what a horse's bottom I am. "He never should have let his client get up on the stand," he says. "Friedman should have hired a real lawyer."

  "Don't worry," Rosie says. "The only people whose vote counts right now are locked up in a closed room. And they're not talking to anybody but themselves."

  "Thanks," I tell her. "I hope you're right."

  At four o'clock Rolanda walks into my office. "They just called. The jury's in."


  57

  "WHAT SAY YOU?"

  "It's a complicated case. The jury will be out for several days, or maybe even a week."

  —NEWSCENTER 4 LEGAL ANALYST MORGAN Henderson. THURSDAY, APRIL 16.

  "That's quick," Rosie says. The jury was out for less than two hours.

  "I don't like it," I say, more out of superstition than conviction. I know attorneys who never change their shoes while a jury is out. My superstition is simple. I never predict a positive outcome. Then again, I never predict a negative one, either.

  "You never can tell with juries, Rosie," I say yet again. I turn to Rolanda. "What time?"

  "Five o'clock. The clerk said they wanted to give everybody a little time to get back."

  "I'll call Joel," I say.

  "What do you think, Rosita?" I can't leave it. We're in Rosie's car, driving toward the Hall. The radio news- man solemnly intones that the verdict will be read at five.

  "Too hard to predict. I'm too close to it." We turn onto Bryant.

  "Me too." I look out at the auto-body shops and bail bondsmen. "I know I'll regret saying it out loud, but I just can't see how they can vote to convict." Even superstitious people have moments of weakness. And moments of wishful thinking, perhaps.

  "Juries are funny," she says. "They make decisions for different reasons. I had one jury vote to acquit because they didn't like the way the prosecutor dressed. In this case, they might vote to convict just because Joel is a lawyer. Or they may not like guys who cheat on their wives. You just never know."

  A dozen white TV minivans are parked bumper to bumper on the north side of Bryant in front of the main entrance to the Hall. At least two dozen TV reporters from the local and national media have staked out spots on the front steps and are broadcasting live. There's barely enough room for all of them. Mobile satellite transmitter trucks line the south side of Bryant. I heard that one enterprising bail bondsman is renting his tiny driveway to a cable station for a thousand bucks a day.

  The horde surrounds Rosie and me as we walk through the police line toward the front door.

  "Mr. Daley, how do you think the jury's going to decide?" "Mr. Daley, doesn't it seem like the jury was out for a very short time?" "Mr. Daley, do you plan to appeal?" "Mr. Daley, do you think your client got a fair shake?" "Mr. Daley? Mr. Daley? Mr. Daley?"

  We push our way inside. Joel and Naomi are waiting with Rabbi and Mrs. Friedman by the metal detectors. Naomi gives me a hug. "This is it," she says.

  "Everything's going to be all right."

  Rabbi Friedman and I shake hands, but we don't speak. We take the elevators. They seem even slower than usual.

  We huddle outside the courtroom. "Listen," I say, "no matter what happens in there, we'll have no comment today. There'll be plenty of time to talk to the reporters."

  As we're about to walk into the courtroom, Rosie touches my arm and motions down the hall with her eyes. "Check this out, Mike," she says.

  I see Skipper and his entourage. McNasty is at his side. A few print reporters follow them. For some reason, Art Patton and Charles Stern are with him. Moral support from his old partners, I suppose. They look grim and I get an uneasy feeling in my stomach.

  "What do you make of that?" she whispers.

  "Beats me."

  Skipper sees me and nods. Chuckles's face is unreadable. Patton looks daggers at me.

  We walk into the courtroom. The bailiff escorts us to the defense table. Naomi and the Friedmans sit in the first row of the gallery.

  "Mike," Joel says, "I guess this is it. What do you think?"

  "They haven't been out very long. That's usually a good sign. Remember, the O.J. jury was out for only a few hours."

  "And they made the wrong decision."

  I don't respond.

  "What's your gut?" he asks.

  I look him in the eye. "Innocent." There's no point in telling him the truth. I just don't know.

  We take our places. The court reporter is already seated. We rise for the judge. She recites we're on the record. She asks Harriet Hill to bring in the jury. Time slows down.

  Joel looks at the jury as they walk in. They aren't looking at him. Not a good sign. Naomi is wearing her sunglasses. Rabbi and Mrs. Friedman hold hands. Rosie sits perfectly still. I'm glad she's here. My stomach churns.

  Judge Chen turns to the jury. "Have you reached a verdict, Madam Foreperson?"

  The phone company supervisor stands. "Yes we have, Your Honor."

  We watch the ceremonial passing of the paper from the phone company supervisor to Harriet Hill to the judge. She looks at the verdict impassively. No discernible sign either way.

  "Will the defendant please rise."

  Joel, Rosie and I stand. So does Skipper. McNulty stays seated. Out of the corner of my eye, I see Naomi and the Friedmans. Their eyes are closed.

  Here we go.

  Judge Chen turns to the jury. "What say you?"

  I can hear myself breathing.

  The phone company supervisor takes a deep breath. Time stops. "Not guilty on all counts, Your Honor," she replies without emotion.

  Pandemonium in back of me. Reporters sprint to the door. Joel falls back into his chair. Judge Chen pounds her gavel. "The jury is excused with the court's thanks. The bailiff is instructed to release Mr. Friedman at once. We're adjourned."

  Joel turns to me with a bewildered look. "Does that mean what I think it means?"

  "Yeah. It's time to go home, Joel."

  When a client is acquitted, the defense lawyer becomes an extraneous observer in a matter of seconds. Joel, Rosie, Naomi and I get together in the front of the courtroom for what Grace likes to call a group hug. Naomi is sobbing. Then Joel climbs over the rail and hugs his parents.

  The reporters have already left the courtroom. I give Rosie a big hug of her own. "Thanks," I manage to say. I barely notice the tears in her eyes. I feel the tears in mine. I pause for a moment before I gather my papers. "What the hell just happened?" I say.

  "You won, Mike."

  Skipper strides toward me, the three-million-dollar smile plastered on his face. He shakes my hand forcefully. "Nice job, counselor," he says.

  "Yeah. Thanks, Skipper." Let's go out for a beer sometime.

  He turns and addresses the gallery. "Obviously, we're disappointed with the result. However, we believe in the system and we must accept the jury's verdict. I'll be holding a press conference in my office in twenty minutes." I tune it out.

  I turn and see Bill McNulty sitting at the prosecution table, shaking his head. He hasn't moved. He's looking straight ahead, and he's muttering over and over, "Jesus fucking Christ."

  58

  MY LAST CONFESSION

  "We still have faith in the criminal justice system."

  —Skipper Gates. Larry King Live. Thursday, April 16.

  There are no victory laps or trips to Disneyland for victorious defense attorneys. A few get interviewed by Larry King. Some get book contracts. Most are held up to universal scorn and are cited as the reason for the collapse of the justice system and, by extension, the moral fabric of our society.

  I seem to be one of them. As Rosie and I drive from the Hall to Joel's house for an early-evening celebration, the Monday-morning quarterbacks on the radio are already proclaiming I'm a social pariah. "In local news, in a stunning conclusion to the trial of the decade, accused double murderer Joel Mark Friedman was found not guilty. District Attorney Prentice Gates expressed his disappointment with the verdict, but said he would abide by the result. Friedman's attorney, Michael Daley, said he was pleased and had no further comment. KCBS news time is six-ten."

  Rosie turns off the radio. "Enough," she says. "This case will be held up as a textbook example of what's wrong with the justice system."

  "And the American way of life," I add. "Actually, Rosie," I wax, "I doubt anybody will be thinking about it in a couple of days."

  "You're probably right. By the way, did the judge have anything to say?" />
  "Skipper and I talked to her for a few minutes right after the verdict was read. She said it was the most disgusting display she had ever seen in a courtroom. It seems she isn't real fond of lawyers who hide evidence and bring witnesses back from the dead. It violates her sense of fair play." I smile. "She said she hopes she'll never see any of us again."

  "You're running out of judges, Mike."

  "I know. Well, you know the old saying. ‘So many judges, so little time.’ "

  Rosie grins. "Actually, I thought she did a good job."

  I agree. "She did. She's going to be a good trial judge."

  "Did you interview the jurors?" After a trial is over, the lawyers are permitted to ask the jury about the case and how they reached their decision.

  "Briefly. They thought it was a suicide. They didn't buy Beckert's theory that Bob was knocked unconscious."

  "What did they think about you and Skipper?"

  "They said Skipper was arrogant. And they thought I was whiny."

  "Sounds about right," she replies. "What about Joel?"

  "That's interesting. They were impressed that he had the guts to get up on the stand." I look out at City Hall. "And they didn't really believe a word he said."

  "Why?"

  I grin. "He's a lawyer."

  "Got it." She chuckles. "Did you get anything out of Skipper or McNasty?"

  "Not much. I talked to them after we interviewed the jurors. Skipper was extolling the beauty and wisdom of the criminal justice system. McNasty kept saying he couldn't believe it."

  "He's such a jolly guy."

  "You know, he may be a sourpuss, but at least he's an honest one."

  "You're not going soft on prosecutors in your old age, are you?"

  "I'd take a hundred Bill McNastys ahead of Skipper Gates anytime."

  We drive in silence north on Van Ness and turn west on Geary and head toward Joel's house. We're reversing the route I took in January when I made my mad dash to the Hall of Justice the night he was arrested. It was only four months ago, but it seems like years.