MD06 - Judgment Day

by Sheldon Siegel

  “We’d also like to hire your brother.”

  He’s done his homework. My younger brother, Pete, was a beat cop at Mission Station before he and some of his colleagues broke up a street fight in the plaza adjacent to the Sixteenth Street BART station with a little too much enthusiasm. When one of the participants filed the inevitable police-brutality claim, the city caved. Pete and two of his buddies were summarily dismissed. He’s been justifiably bitter about it ever since. Now he works as a PI.

  “His rate is a thousand dollars a day plus expenses,” I say. It’s a slight exaggeration.

  “We’ll pay him two thousand.”

  He’s serious about hiring us or he’s desperate—or both. Pete recently became a father for the first time. This may be an opportunity to make amends for the times I’ve strong-armed him into helping me for free. “I’ll call him as soon as we’re finished,” I say, “but I still need to talk to my partner.”

  “What’s there to discuss?”

  How much time do you have? Rosita Fernandez and I have been working together for almost two decades, first in the PD’s office, then for the last seven years in private practice. Rosie is the managing partner of Fernandez and Daley. I defer all financial decisions to her. It’s an important reason why our law partnership has lasted longer than our marriage, which began after a highly enthusiastic romance while we were at the PD’s office, and was called a few years later on account of irreconcilable living habits. Our daughter, Grace, just turned fourteen. Our son, Tommy, is two. Tommy’s arrival was a pleasant and unplanned surprise long after Rosie and I had split up. Old habits––we can’t live with each other, yet we can’t seem to get enough of each other. We wouldn’t have it any other way.

  “We never take on new matters without discussing them first,” I tell him.

  Grace and Tommy live with Rosie in a rented bungalow a couple of miles from here. I have my own apartment three blocks from them. Life with a teenager and a toddler presents logistical and financial challenges. Recently we decided to cut back on our workload to give parenthood more focus.

  The wily old trial lawyer flashes a confident smile. “We’re willing to bet fifty grand that you’ll give it your best shot.”

  “I still have to talk to Rosie.”

  He shifts to flattery. “We’re cut from the same cloth, Mike. We became lawyers to help people. You have a reputation as somebody who is more interested in finding the truth and doing what’s right than making a bundle of dough.”

  My bank account attests to the fact that he’s right. Rosie and I also agreed to avoid capital cases until Tommy is out of diapers. A fifty-thousand-dollar retainer causes me, at least, to revisit that policy. Rosie may be somewhat more flexible, too. She recently persuaded her landlord to remodel her fifties-era kitchen, which will undoubtedly lead to a commensurate increase in her rent. There is also the reality of Grace heading to college in four years.

  Nate is still talking. “We both cut our teeth at the PD’s office. We’ve represented unpopular clients. We’ve handled more than our share of pro bono matters. That makes us kindred spirits––even colleagues.”

  Except I’ve never been convicted of murder.

  His tone turns somber. “I believe everybody is entitled to die with self-respect. Being strapped to a gurney and injected with poison for a crime I didn’t commit isn’t the way I want my wife, children, and grandchildren to remember me. That’s not the legacy I had in mind. Besides, you have a personal interest in the case.”

  What? “How’s that?”

  “Your father was part of the police cover-up.”

  2/ THE PATRON SAINT OF HOPELESS CAUSES

  Friday, July 10. 1:05 p.m.

  8 days, 10 hours, and 56 minutes until execution.

  My ex-wife’s dark brown eyes stare intently into mine as she taps her fingers on her IKEA desk that’s piled high with file folders. Rosie rarely raises her voice and never pulls any punches. “So,” she says, “Nate Fineman and his lawyer think your father was part of a police cover-up?”

  “So they say.”

  “That’s preposterous. Who are they insinuating he was trying to protect?”

  I pause to gather my thoughts as I look up at the bare walls of the cramped space that doubles as Rosie’s office and the conference room of Fernandez and Daley. We work in a thirties-era walk-up at 84 First Street. It’s above the El Faro Mexican restaurant and down the block from the Transbay bus terminal in what might charitably be described as the pregentrified portion of San Francisco’s South of Market area. It’s one of the last downtown structures where the windows still open––a concept that’s more charming in theory than in reality. Our building is in one of the few pockets of San Francisco with warm summer weather, and we don’t have an air conditioner. We spend July and August trying to decide whether it’s preferable to wilt from the heat or asphyxiate from the fumes emitted from the El Faro’s exhaust fan. “That’s what they want us to find out,” I finally say.

  Rosie’s shoulder-length, jet-black hair is pulled back into a tight ponytail. A cream-colored blouse and a pair of faded Levi’s complement a toned figure that reflects a torturous daily regimen at the gym. Her full lips, chiseled cheekbones, and glowing olive skin belie forty-seven years and the birth of two children. A native of the Mission District and a graduate of San Francisco State and Hastings Law School, she’s fought countless wars with prosecutors, judges, cops, and me. Her toughest struggle came four years ago, when she was diagnosed with breast cancer. She battled through a mastectomy and radiation treatments with stoic determination. We don’t talk about it much, but I can tell you that she’s been cancer-free for three years, nine months, and four days.

  “Come on, Mike,” she says. “For all of his faults, your father was probably the most honest cop in the SFPD.”

  It’s only a slight exaggeration. We rarely agreed on political or social issues, and he had a multitude of shortcomings as a father. Still, he never gave me a reason to question the direction of his moral compass.

  She isn’t finished. “I trust you’d agree that Fineman’s allegations are untrue?”

  “Yes, I would.”

  Arguing with Rosie is like undergoing an intense cross-exam. She frames her questions in a manner that elicits the response she wants.

  “Then why are we having this discussion?” she asks.

  “I can think of fifty thousand reasons.”

  The corner of her mouth turns up slightly. “I have nothing against being paid, but it’s too late for Fineman to change lawyers.”

  “This isn’t some nutcase who walked in off the street.”

  “He made a career out of representing scumbags like Danny Cortese and the Bayview Posse. Not to mention the fact that he was convicted of murdering three people at the Golden Dragon.”

  “Maybe the jury was wrong.”

  She looks up at the ceiling. “Why did I decide to practice law with the patron saint of hopeless causes?”

  “It’s just one of the many ways that I bring excitement to your life.”

  I get the smile I was hoping for. “Hopeless causes aren’t exciting,” she says. She plants her tongue in her cheek. “Did you ever consider the possibility that I like boredom?”

  “Not a chance.”

  Her lips turn down. “I don’t like it, Mike.”

  I’m not crazy about it either, and I’m really not in the mood for a catfight on a Friday afternoon when I have tickets for the Giants game tonight. Though we’ve had our share of high-profile cases over the years, ours is still a nickel-and-dime operation. Our only employee is a former heavyweight boxer and small-time hoodlum named Terrence “the Terminator” Love, who works as our receptionist, secretary, process server, photocopier, and bodyguard. He had also been one of my most reliable customers at the PD’s office. Standing seven feet tall and weighing 320 pounds, the soft-spoken giant retired after four unsuccessful professional bouts to pursue a more lucrative career in theft. He became quit
e adept at breaking and entering, but he was less accomplished at escaping. His rap sheet ran well into its third printing.

  The proceeds from Terrence’s criminal activities went to buy enough booze to keep a three-hundred-pound man in a drunken stupor for the better part of two decades. There was little left over for necessities such as food, housing, and clothing. Things came to a head a couple of years ago, when he was facing a life sentence under California’s so-called three-strikes laws. Rosie and I persuaded the judge to reduce the charges, subject to the condition that we would find him gainful employment and treatment for his alcohol addiction. There wasn’t a huge market for the services of a third-rate prizefighter and second-rate shoplifter, so we hired him with the understanding that we would fire him immediately if he showed up late or started drinking again. He hasn’t missed a day of work and he’s made enough money to ditch his room in the flophouse on Sixth Street for a tiny apartment in the Bayview. In our line of work, we measure progress in baby steps.

  I try an appeal to Rosie’s practical side. “You’re always on my case for not bringing in enough paying clients,” I say.

  “Obviously, that isn’t a problem here. I can’t even get a countertop for my kitchen in eight days and you want to try to free a man on death row?”

  “It will enhance the visibility and reputation of our firm.”

  She shakes her head with authority. “I’d rather not get a high profile for a lost cause. We’ll have to go around the clock. There isn’t a realistic chance we’ll be able to do anything for him. It’s a waste of our time and his money.”

  “He wants to die with dignity.”

  “It smells.”

  “We’ve handled smellier stuff. He was one of the best lawyers who ever worked at the PD’s office. He started the Legal Aid Society. His reputation was stellar until that night at the Golden Dragon.”

  “He’s no saint, Mike. He played fast and loose when he represented Cortese. They said he was paying people to intimidate witnesses during the Posse case.”

  “Those charges were never proven.”

  “Get real, Mike.”

  “We’d be out of business if we start ducking cases because we think our clients are scum.”

  She responds in the sanctimonious tone that I’ve found profoundly irritating for two decades. “I’m well aware that it’s our job to represent scumbags,” she says. “On the other hand, they found his prints on the murder weapon. He admitted that he organized a meeting of a couple of drug bosses. Nobody bought his story about a phantom masked shooter who disappeared into the night. What makes you think the jury was wrong?”

  “I’m prepared to work through the process to try to find out.”

  “Don’t be naïve, Mike.”

  “Don’t give up so easily, Rosie.”

  “It’s a case we can’t win.”

  “That’s never stopped us.” I think of the faded citation hanging on the wall of my office. The Nathan Fineman Award used to be given by the San Francisco Bar Association to an attorney who demonstrated exemplary commitment to community service. Though the commendation is no longer named after Nate, it’s still one of my most prized possessions. “I used to admire him,” I say.

  “So did I.” Rosie glances down at the engraved gavel that her colleagues gave her as a going-away present when she left the PD’s office––another tradition that Nate started. “This couldn’t come at a worse time. I’m buried with other work. There will be contractors at my house for the next two weeks. My life is a zoo right now.”

  Every home-improvement project takes on a life of its own. Her weeklong kitchen-remodel job is already well into its second month. She declined her landlord’s offer to put her up in a hotel for a couple of weeks because she didn’t want to uproot Grace and Tommy––a decision she says she now regrets.

  I offer a morsel. “I’ll help with your case load. We’ll eat out. We could use the extra money. You know your rent will go up as soon as the new appliances are in.”

  “If my landlord doesn’t sell it to the highest bidder,” she says, “which isn’t going to be us unless we win the lottery or we get a substantial infusion of cash from another source.”

  “All the more reason to do it. There’s an unwritten rule that new clients only call when it’s hopelessly inconvenient. It isn’t as if we have a lot of prospective cases to choose from right now.”

  “A last-minute death-penalty appeal isn’t exactly what I had in mind, Mr. Rainmaker.”

  “Do you have anything more interesting in the pipeline?”

  “At the moment, no.”

  “Then I think we should go for it.”

  Her scowl becomes more pronounced. “Lou Cohen is bringing us in for a reason,” she observes. “Maybe he’s trying to set us up to take the fall in a last-minute IAC claim.”

  Asserting an Ineffective Assistance of Counsel claim is a standard legal tactic in death-penalty cases. If you have nothing more convincing, you argue that the attorneys screwed up. It’s one of the reasons trial lawyers rarely handle appeals for their clients––it puts them in the awkward position of having to assert IAC claims against themselves.

  “There isn’t enough time,” I tell her. “It won’t fly in a habeas petition.”

  “Lou is a smart lawyer.”

  “He also admitted that we aren’t going to stop the execution with esoteric legal theories.”

  “Which means our only hope is to prove freestanding innocence in the next eight days. As a practical matter, that also means we’ll have to find the real killer––assuming it isn’t our potential new client. That isn’t going to happen unless we find some guilt-ridden soul who pops out of the woodwork and confesses.”

  “Not necessarily,” I say. “We just need to find enough new evidence to persuade the California Supremes or the Ninth Circuit to order an evidentiary hearing.” Easier said than done. “If we can delay the execution, we might be able to come up with something more substantial.” Or Nate could die of natural causes before they can get around to rescheduling his execution.

  This elicits the all-too-familiar eye roll that I’ve always found so infuriating––and infatuating––since our days at the PD’s office. “Come on, Mike,” she says.

  “I know it’s a long shot. You have to admit, though, that if we pull off a miracle, we’ll be heroes. If we don’t, Fineman is no worse off than he is today. Either way, we’re fifty grand to the happy side. Plus, we might be able to save a dying man’s life.”

  She acknowledges that I have a point, then treads into murkier water. “Did you ever talk to your father about the case?”

  “Not much. Fineman was arrested during one of our noncommunicative periods.”

  We had many of them. Thomas James Charles Daley Sr. was born seventy-four years ago at St. Mary’s Hospital. He grew up on Garfield Square in the Mission District. Pop married his high school sweetheart the week after they graduated. The newlyweds moved into a furnished one-bedroom apartment two doors from her parents. My dad joined the SFPD on his twenty-first birthday. My mom stayed home to take care of us.

  When I was ten, we moved to a small house in the Sunset, where our family dynamics were closer to the Osbournes’ than the Brady Bunch’s. My older brother, Tom Jr., was a star quarterback at St. Ignatius and Cal before he volunteered to go to Vietnam and never returned. I was the rebellious second son who protested the war, in Berkeley. When the antiwar movement didn’t provide enough answers after Tommy died, I ended up in the seminary. My father didn’t talk to me for a year after I left the priesthood to attend law school. We made an uneasy peace when I graduated. We took another hiatus from communication when I joined the PD’s office. My mom spent years conducting shuttle diplomacy between the two of us. Pete was the diligent third son, whose greatest transgression was that he wasn’t a jock like Tommy or an excellent student like me. He became a cop to show our old man that he was just as tough as he was.

  “My father was one of the first office
rs at the scene,” I say, “but he didn’t testify at the trial. Evidently, they had more than enough evidence without him.”

  “What did your father think of Fineman?”

  “Every cop in San Francisco hated his guts—especially after the Posse case.”

  “Didn’t Fineman’s lawyers make some allegations of police misconduct during his trial?”

  “They claimed the cops had planted the murder weapon. The charges were never substantiated. Internal Affairs did an investigation after the trial was over. Everybody was cleared—including my father.”

  She isn’t satisfied. “Would he have lied to protect another cop?”

  “Absolutely not.” I try not to sound too defensive. “He wasn’t that kind of a cop. He was old-school, but he was his own man. He did what he thought was right. It’s one of the reasons he was never one of the more popular guys on the force.”

  She gives me a skeptical look. “If we take this case,” she says, “we’ll have to revisit his involvement.”

  “There’s no legal conflict of interest. It’s part of our job.”

  “How do we figure out if he was telling the truth?”

  “We’ll talk to Roosevelt.”

  “He has a vested interest in protecting the conviction––and himself.”

  And maybe my father, too. Loyalty runs deep at the SFPD. “Roosevelt wouldn’t cover up evidence if somebody was about to be executed for a crime he didn’t commit.”

  “Are you prepared to attack your father’s reputation to defend our client?” She always goes straight to the heart of it.

  “I’ll deal with it,” I tell her.

  “Sure you will.” She glances at the framed photo of our daughter that sits on the corner of her desk. “What about our promise to Grace that we wouldn’t take on another death-penalty case for the foreseeable future?”

  “The circumstances are unusual.”

  There’s an interminable hesitation. “You’re absolutely sure about this, Mike?”