Lies With Man

by Michael Nava

  “Of course, we’ll help you resettle,” he continued, as if he hadn’t heard her. “But before any of that happens, you have to do something about your drinking. Do you understand, Jessica? What happened tonight can never happen again.”

  “I think you should leave, Bob.”

  He pulled himself to his feet. “We’ll talk later.”

  “If Dan were here—” she began.

  “But he’s not,” Metzger said. “No more of his hippie mumbo-jumbo. We’re in the last days, Jessica. The enemies of the Lord are everywhere. We need soldiers, not sissies. Dan’s death was— providential.”

  ELEVEN

  Theo’s arraignment drew a full house. The media were out in full force. Laura Acosta led a delegation from QUEER. There was also a cluster of conservatively dressed men and women I assumed were congregants from Ekklesia. The two groups made quite a contrast: one tatted and pierced, the other white-bread suburban. In the dark suit, white shirt, and striped tie I’d bought for him at the May Company, Theo would have fit in more easily with the Ekklesia crowd than QUEER’s. He wasn’t quite the all-American boy— there was an unconcealable drop of debauchery in his good looks— but the sedate clothes emphasized his youth, as if he were a boy trying on his dad’s suit. No one would have taken him for a murderer.

  His first words to me when they brought him out were, “My mom came to see me.” He sounded surprised and happy.

  “Is she here?” I asked. A mother in the court was always helpful to the defense.

  He nodded, turned his head to scan the gallery, and turning back to me said, “That’s her in the blue dress in the back row. I won’t point to her because I don’t want anyone to bother her.”

  “I’ll talk to her when we’re done here,” I said. “Discreetly.”

  The bailiff intoned, “All rise. Division 59 is now in session. The Honorable Barry Mayeda presiding.”

  “Be seated,” Judge Mayeda said when he took the bench. He was a slender, youngish man— formerly an assistant attorney general— with a reputation for indecision. He called the case, we lawyers stated our appearances, and then he said, “We’re here today for arraignment. Mr. Latour, you are charged with one count of first-degree murder as to which it is further alleged as a special circumstance that the killing was committed by use of an explosive device. How do you plead to the charge and the special circumstance?”

  “Not guilty,” Theo said.

  “Defendant denies the special allegation,” I added.

  From the gallery a man shouted, “Liar! That man, that deviant, murdered our pastor. How can you let him stand before God and deny it?”

  Mayeda pounded his gavel. “Sit down, sir, or I’ll have you removed.”

  “Perhaps you can remind that mob that Mr. Latour is presumed innocent,” I said.

  Now a woman shouted, “Man’s law is not God’s law! ‘Your eye shall not pity; life shall be for life, eye for eye, tooth for tooth, hand for hand, foot for foot.’”

  “What about our lives!” one of the QUEERs shouted back. “Our lives matter as much as yours.”

  The tooth-for-a-tooth woman hissed, “‘If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them.’”

  Mayeda’s attempts to gavel the court into order were lost in the ensuing screaming match between the two groups, who now approached each other with clenched fists and red faces. Out of the corner of my eye, I saw the bailiff speaking frantically into his phone. A moment later, a half-dozen sheriffs poured into the court and wedged themselves between QUEERs and Christians. One of the sheriffs shouted above the fray, “If you don’t settle down, we’re going to start arresting you!”

  Over the fray, Mayeda shouted, “Clear the courtroom!”

  ••••

  Sometime later, in the now empty courtroom, Mayeda turned to the prosecutor. “Mr. Novotny, are the People seeking the death penalty?”

  Novotny, a shambling bear of a man, pulled himself out of his seat and said, “The capital committee will meet later this week to decide, Your Honor.”

  Mayeda nodded. “Inform the court as soon as a decision is made. I need to know if we’re going to have a penalty phase trial.”

  “Yes, Your Honor.”

  “I also want to know if we are going to continue to have outbursts like the one we had this morning,” he continued, addressing both of us. Then, looking at me, he added, “Mr. Rios, I expect you to encourage your people to keep a lid on it.”

  “My people, Your Honor? The gay and lesbian spectators? It was that mob from the church that started the disturbance. Is there an issue of bias here, Your Honor?”

  That struck home. “I assure you, Mr. Rios, I have no bias against the gay and lesbian community,” he said, “and I apologize if I gave you that impression. I certainly intend to bend over backward to conduct a fair and impartial trial of this matter.” Abruptly, he stood up and declared, “We’re adjourned.”

  Theo said, “I don’t want that judge on my case.”

  “No,” I said, “it’ll be fine. Mayeda doesn’t want to look like a bigot. By calling him out just now, I’ve pretty much guaranteed that any close calls he has to make at trial will go our way.”

  “If you say so,” Theo replied, skeptically. “What about the death penalty? You said you thought they wouldn’t charge me with it.”

  “They haven’t, yet,” I said, “and I’m going to talk to Novotny. We’ll talk later, okay?”

  “Sure,” he said, “and thanks for the suit.”

  ••••

  After the bailiff escorted Theo into lockup, I strolled over to the prosecutor’s table where Ralph Novotny was gathering up his papers.

  “Ralph,” I said, extending my hand. “You have some discovery for me?”

  He pushed a couple of thick file folders toward me. “This is everything I got so far. You understand, the investigation is ongoing.”

  “Sure,” I said, taking the files. “What are the chances your office will be asking for the death penalty?”

  “Legally, pretty good. Morally, a little iffy, political, a toss-up.”

  “Let’s start with legally,” I said.

  “Legally, it’s a no-brainer. Your guy blew up a church and killed a preacher.”

  “He didn’t mean to kill anyone.”

  “Two words: felony murder.”

  “I understand that,” I said, “but we both know the felony murder rule was invented for crimes like robberies where the perp was face to face with his victim, had a split-second choice whether to pull the trigger, and went ahead and pulled it anyway. Not enough time to prove intent, much less premeditation, but still some degree of intentionality. In this case, the victim’s death was accidental. There shouldn’t be the same kind of culpability.”

  “We also both know the felony murder rule is a lot broader now than when it was created, and it’s way broad enough to nail your guy. Culpability, that’s a moral issue, not a legal one.”

  “Fine, let’s talk about the moral dimension. Theo didn’t think anyone would be in the church that night.”

  “And I should believe you, why?”

  “Because I’m telling you.”

  “You’re his lawyer; what else are you going to say?”

  “It’s the truth, Ralph. I’ve got the church’s calendar for that week. There was nothing official scheduled for that night.”

  “Herron’s wife told the cops he did counseling on Thursday nights in his office.”

  “Theo didn’t know that.”

  “So you say.”

  “He also didn’t plan the bombing or make the bombs. That was— someone else.”

  “Thanks for the preview of your defense, but the investigation hasn’t implicated anyone except your client.”

  “Maybe the cops didn’t look hard enough,” I said.

  “Maybe you’re full of shit,” he replied amiably.

  “You said
moral was iffy. Why?”

  “The DA’s a good Catholic. The church condemns capital punishment. He struggles with it.”

  “He’s charged it before.”

  “Only where his conscience is completely satisfied it’s the right thing to do.” He dropped his files into his briefcase and snapped it shut. “I don’t think charging someone who bombed a church is going to keep him awake at night.”

  “And the political issue?”

  “Also the DA,” Novotny said. “He wants to run for attorney general, and he sees himself as governor someday. He’s a Democrat. He’s got some big gay contributors, but he doesn’t want to alienate religious voters.” He grinned. “Not that many Democrats are churchgoers. Godless secular humanists, the whole lot of them.”

  “I take it you’re a Republican.”

  “Card-carrying Dem,” he said. “Anything else?”

  “When will the capital committee be meeting?”

  “Friday.”

  “I’d like you to postpone consideration of Theo’s case for a couple of weeks.”

  “Why should we?”

  “To give me a chance to gather evidence to persuade your boss not to charge him. Two weeks won’t make any difference. This case won’t be going to trial for months.”

  “It’s high profile,” Novotny said. “But I’ll ask for the time. That’s all I can do.”

  “Thanks, Ralph.”

  ••••

  Theo’s mother was sitting on a bench outside in the corridor. Yellowish light poured in from a bank of grimy windows, and the other benches outside the other courtrooms were occupied by cops and civilian witnesses waiting to be called in to testify, some bored, some impatient, and some terrified. His mother’s face was a mask of anxiety. When she saw me, she stood and said, “Excuse me, sir? Can I talk to you?”

  “Of course,” I said. “You’re Mrs. Latour?”

  “Mrs. Phillips,” she replied. “I divorced Theo’s dad when Theo was three and remarried. You’re his lawyer, Mr.—”

  “Rios. Henry Rios. Call me Henry. Thank you for coming to the arraignment, Mrs. Phillips.”

  “Kim,” she said.

  I guessed mid-forties, minimal makeup, unpolished nails, plain dress— a working-class woman— but remarkably attractive. I saw where Theo got his looks.

  “This has all been a shock to me,” she said. “After Theo left home, I didn’t hear from him for a long time, and then it was just a phone call here and there. He called me. I never had his number. When I read about his arrest, I drove down from Lancaster where we live now to visit him in the jail. It’s an awful place and— you know, he’s sick.”

  “Sick?”

  “AIDS,” she said in a low voice. “Theo has AIDS.”

  “You mean he has the virus,” I said. “Has he actually been sick? Had pneumonia or some other disease related to HIV?”

  She looked puzzled. “I don’t know about all that. All I know is he told me he had it.”

  “The virus is not itself a disease, but it does make him more susceptible to diseases. Serious ones.”

  “The jail’s so dirty, there have to be a lot of germs there. Things that could make him sick.”

  She wasn’t wrong. LA County Jail was a stink-hole, the worst place in the world to be HIV-positive.

  “I promise I’ll do what I can to protect his health while he’s there.”

  The glimmer of a smile quickly faded. “That other lawyer, he said Theo could get the death penalty. I know what he did was terrible, but he didn’t mean to kill that man. He told me he didn’t know there would be anyone at the church.”

  “The thing to remember is that the DA doesn’t have to seek the death penalty. I’m working on trying to get them to take it off the table.”

  “Even if you can,” she said, “it sounds like he might never get out of jail.”

  “That may be true.”

  She gave a sad little cry. “This is my fault. I let Charlie, Theo’s stepdad, throw him out of the house when he found out Theo was a homosexual. I sent him to live with my parents, but my dad wasn’t much better with him than Charlie, and one day Theo ran away. He was only sixteen. Later he told me he lived on the streets here in LA, and, well, the life he described wasn’t very pretty. I should have fought for him. If I’d stood up for him when he was sixteen, none of this would have happened.”

  “You’re here for him now,” I said.

  She looked at me, eyes filling with tears. “Am I too late?”

  “Theo’s fighting for his life. You’re just in time.”

  She wiped her eyes and smiled the hopeful, grateful, heartbreaking smile I’d seen on the faces of other mothers in other courthouses, the smile I had so often had to disappoint.

  ••••

  Downstairs in the courthouse cafeteria I got a cup of coffee and looked for a quiet table where I could do a preliminary review of the files Novotny had handed me in court. I picked up the discarded front page of the LA Times at an empty table and glanced at the headline: AIDS INITIATIVE IN DEAD HEAT 8 WEEKS BEFORE ELECTION, NEW POLL SAYS.

  Outside, a yellow leaf fluttered in the air and scraped the window before sinking out of sight. Summer was ending. Eight weeks to November 6. The polls had been moving in our favor until the church bombing. After the bombing, the Yes campaign had released TV commercials showing burning churches and the LA chief of police talking about homosexual terrorists, and the numbers began to reverse.

  I’d been fielding hate calls for representing Theo from both sides: the bigots who advised me I’d burn in hell, and gay people who called me a traitor for defending a terrorist. Wendell Thorne had apologetically dropped me from the lawyers’ roundtable devising legal strategies to fight the initiative, saying some of the members objected to my presence.

  I sorted through the investigative documents. Because the investigation was ongoing, what Novotny had given me wasn’t the final case compilation that LAPD called the “Murder Book.” I only had initial crime reports, the autopsy, the search warrant for Josh’s apartment, the list of evidence recovered in the search, and some forensic analyses.

  I skipped the crime reports for now and read the warrant. At first glance it seemed legit, but I’d give it a closer look later to see if I could find any basis to challenge it in a suppression motion. I read through the long list of items seized from Josh’s apartment. The packaging from the double A batteries, wrappings for two electronic timers, electrician’s tape, a length of copper piping, and traces of gunpowder confirmed that the bombs had been constructed in the apartment. The cops had also found a crumpled Polaroid of the entrance to the church with markings where the bomb had been planted. That confirmed the placement had been premeditated.

  I paged through to the fingerprint analyses. I found the report that matched a single partial fingerprint found on a fragment of the bomb that blew up the building where Daniel Herron died to one of Theo’s prints; they were in the system because of his earlier arrest for drug possession. It was only an eight-point match when the standard was ten to sixteen, leaving me room to challenge its reliability with my own fingerprint expert. But Theo’s prints had also been solidly matched to prints found in the apartment and, especially damning, on the photograph. Thus, he could be placed at both locations— where the bombs were constructed and where they’d been planted. The inference drew itself.

  Other unidentified prints had been lifted at the apartment, but none were matched to Freddy Saavedra. This was a surprise. It seemed likely that some of those prints were his. If they’d been lifted and run through the system there should have been a match from his assault arrest. Had the cops simply stopped looking once they zeroed in on Theo? I’d request all the prints in discovery, get a match to Freddy from my own expert to put him in the apartment, and rake the cops over the coals for conducting a sloppy investigation. That was something anyway, a tiny crack in the prosecution’s strong circumstantial case. I already knew I wasn’t going to drop some dramatic
game-changing revelation at the trial. If we got to trial, it would be a war of attrition. I’d be chipping away at the prosecution’s evidence, looking for the weak spots that might cumulatively amount to reasonable doubt in the mind of at least one juror.

  ••••

  “Nothing?” I said, disbelievingly.

  Freeman shook his head. It was a quarter to two. The lunch crowd had left the Code Seven where my investigator and I were sharing a booth and a late lunch two days after the arraignment. The Code Seven was cop talk for meal break, and while it was both a bar and grill, the strong, cheap drinks were what attracted its cop clientele. The food was famously bad. I had confined myself to a grilled cheese sandwich, but Freeman had ordered the day’s special: a big chunk of gray meatloaf and a mound of mashed potatoes covered with gray gravy with canned green beans on the side.

  “Nada,” he said, digging into his lunch.

  He had just informed me he’d been unable to find any kind of criminal record for either Freddy Saavedra or any variation of his name: Frederick, Federico, Alfredo, Fico or Fede.

  “Maybe he used an alias when he was arrested for ADW.”

  “The cops would have figured that out and listed it as an a.k.a,” he replied through a mouthful of mashed potatoes. “Nothing came up. Are you sure about the arrest warrant?”

  “I heard about it from the people who were with him when he was picked up,” I said. “What about Home Depot? Anyone recognize him from the photo?”

  Freeman shook his head. “It’s a big store with a lot of workers. So far no bites, but I still have a few more to track down.”

  “Find Freddy,” I instructed him.

  “I thought you didn’t want me to find him.”

  “At this point, I just want to be sure the guy exists.”

  ••••

  From the Code Seven I headed to the county jail to see my client. Theo was housed in High Power, a bank of cells reserved for inmates deemed potentially dangerous or especially notorious. The unit bordered the main kitchen, subjecting the inmates to a massive cockroach infestation and regular blasts of hot, greasy, fetid air. The inmates were individually celled, with meals delivered by the guards. On the rare occasions when they were allowed on the roof for exercise time, they were not allowed to commingle. High Power was basically solitary confinement, but safer for Theo than general population where the charges against him might have made him a target for retribution and his looks and youth a target for rape.