MD06 - Judgment Day

by Sheldon Siegel

  “Does this mean you’re going to try to prove that he screwed up?”

  Rosie and I exchange a quick glance. “He didn’t do anything wrong,” I say.

  “But you have to look into it, don’t you?”

  “Yes.”

  “And if you find that he did, you have to report it, don’t you?”

  “If it would help our client.”

  “Am I the only one who has a problem with this?”

  It will serve no useful purpose to offer a platitude or be disingenuous. “You aren’t,” I say.

  “Then why are you doing this?”

  “Good lawyers take on tough cases,” I say.

  She waits a long beat, then decides it isn’t worth a fight. “I can deal with it,” she says. “Can I still go to the Giants game with Jake next Saturday?”

  “Of course.”

  As she’s moved into her teens, she’s spending more time with Jake and her other friends. Intellectually, I knew this transition was inevitable. Emotionally, I miss my baby daughter.

  Grace turns to Sylvia. “Looks like we’re going to be spending a lot of time together, Grandma. Maybe we can take Tommy to the mall tomorrow.”

  She never invites me to the mall. I try not to be jealous. There is something special about the relationship between a grandmother and a granddaughter.

  Sylvia smiles. “Sounds fine,” she says.

  Grace is starting to make her way toward her room when she turns around. “Was Grandpa a good cop?” she asks.

  “One of the best,” I say.

  “Did he ever get into trouble?”

  “Only with Grandma,” I tell her.

  She isn’t amused. “Is Nate Fineman guilty?”

  The question catches me off guard. I exchange silent glances with my ex-wife and ex-mother-in-law. It’s Rosie who answers her. “We’ll know more after we look through the files,” she says.

  Grace takes my nonresponse in stride. “Just wondering,” she says, walking away.

  # # #

  Rosie and I are sitting at opposite ends of her sofa at 4:00 a.m. We’ve spent the last three hours poring over appellate records, trial transcripts, and police reports. It’s a tedious slog that will continue all weekend. Time is not on our side, but we can’t afford to miss something important. My capacity for all-nighters dropped substantially when I turned forty, twelve years ago.

  I hear a familiar high-pitched voice behind me. “Hi, Daddy.”

  “Hi, Tommy,” I say. This elicits a gleeful smile as our energetic son bounces into the living room and onto my lap. Except for the fact that Rosie and I are divorced and we have less than eight days to save a condemned man’s life, we could be reenacting a scene right out of Ozzie and Harriet. “Why are you up?”

  “There’s a monster in my room.”

  This is his stock explanation for his frequent appearances in the wee hours. When I used to have nightmares as a kid, my dad always came into my room to chase the bad guys away. It was reassuring to have a father who was a cop. It was also some of the only quality time that we spent together. After he cleared the room of imaginary creatures, we would retreat to the kitchen for a bowl of cereal. Pop wasn’t much of a talker, but he always seemed to enjoy eating Cheerios with me in the middle of the night.

  “What kind of monster?” I ask.

  He holds his arms out wide. “A big one,” he says.

  It’s always a big one. “I saw him a little while ago,” I say. “He went outside to play with the owls.”

  Tommy’s big blue Daley eyes open wider. He still buys everything I say. This certainly isn’t the case with his sister. He gives me the grin that always gets him what he wants. It won’t work nearly as well when he’s sixteen. “Did you go to work today, Daddy?”

  Now I’m sure he’s filibustering. “Yes, Tom. I worked very hard.”

  “I played very hard.”

  “So, we’re even.”

  The smile transforms into a thoughtful look. “Do you ever get to play, Daddy?”

  Not in the middle of a death-penalty appeal. “Sometimes,” I tell him. For the next eight days, I’ll settle for a few minutes of sleep. “It’s more fun to be a kid, when you can play all the time. Why don’t you get back in bed and I’ll come in and check on you in a minute?”

  “Okay, Daddy. I love you.”

  “I love you, too.”

  Tommy hops off my lap and practically sprints to the bedroom he’ll be sharing with Rosie until the remodel is finished. Two-year-olds move at only one speed––fast.

  “I wish it were that easy with Grace,” Rosie says.

  “At least she’s out of diapers. Wait until Tommy turns fourteen.”

  “There’s always military school.”

  “It isn’t a bad option.” I close a heavy black binder that’s filled with appellate briefs. “Did you find anything that might be grounds for a stay?”

  “Lou Cohen found the stronger appealable issues.” Her eyelids flutter as she yawns. “We’ll come up with a few creative arguments for another habeas petition. You know what it’s like with last-minute death-penalty appeals. We’ll just keep throwing stuff at the courts.”

  It’s true. In the final days before an execution, you argue anything and everything that you can think of and hope a sympathetic judge will bite. The odds are always stacked against you.

  “In the meantime,” she adds, “it would make our lives a lot easier if Pete can find something—even if it’s just some credible evidence of police misconduct.”

  “He’s already looking.” The pedal is about to hit the floor.

  Rosie leans over and kisses me softly.

  “What’s that for?” I ask.

  “For getting us into this mess.”

  “I’ll make it up to you.”

  “Yes, you will.”

  I pull her toward me and kiss her back. “How’s that?” I ask.

  “Not nearly good enough.” I lean forward and try again, but she pulls away. “I don’t think so,” she says. “We have to stay focused.”

  I wink at her and say, “I am.”

  “We have to think about our client’s best interests. You’re a better lawyer when you’re desperate for a little action.”

  “I’m plenty motivated, Rosie.”

  She squeezes my hand. “We’ll continue this discussion after the case is over. By then you’ll have even greater motivation to think about my best interests, too. There may be something extra in it for you.”

  I may be having a second birthday this year.

  Her smile disappears as she turns back to domestic matters. “Grace is handling this pretty well,” she says.

  “So far.”

  “She’s more interested in hanging out with Jake than with us.”

  “Don’t count us out just yet.”

  She gets a faraway look in her eyes. “Do you think she’ll ever become more communicative with me?”

  “Maybe after she gets out of college. I’m told that parents tend to get a lot smarter when their kid turns twenty-five.”

  I get another smile. “Where are you going to start later this morning?” she asks.

  “With Mort the Sport.”

  6/ MORT THE SPORT

  Saturday, July 11. 11:07 a.m.

  7 days, 12 hours, and 54 minutes until execution.

  “How the hell have you been?” Mort “the Sport” Goldberg rasps. His customary greeting hasn’t changed in sixty years, though his once authoritative voice is now a hoarse whisper.

  “Fine, Mort,” I say.

  His tired gray eyes are hidden behind huge aviator-style glasses as his attendant wheels him into a sun-drenched atrium in the sprawling Jewish Home for the Aged. The inveterate glad-hander was once among the most dynamic defense attorneys in the Bay Area. His face is now drawn, his complexion pasty. At seventy-six, he’s one of the younger residents in a facility where the average age is eighty-eight. His right hand convulses uncontrollably. His left arm doesn’t move. T
he legs of the onetime expert skier are limp appendages that must be delicately hand-lifted onto his wheelchair. They’re covered by a red and gold 49ers blanket.

  His tone turns melancholy. “It’s been a long time.”

  “Yes, it has.” It’s also been a long morning. Rosie and I started the day at San Quentin, where Nate took the news of Lou Cohen’s death with grim resignation. Rosie went to the office to meet with Cohen’s associate. I came here to see Mort.

  “I expected to see you last night,” he tells me point-blank.

  “We weren’t hired until yesterday afternoon.”

  “That was almost twenty-four hours ago. You don’t have time to screw around.”

  He hasn’t lost his edge. “I just saw your old client,” I tell him. “He’s holding up pretty well under the circumstances.”

  “This isn’t the Ritz,” he says, “but it still beats the hell out of the Row.”

  The Jewish Home’s bright hallways lack the pungent odor typical of similar facilities. Located in four reasonably cheerful buildings at the corner of Mission Street and Silver Avenue, just south of the 280 freeway, it was founded in 1871 as a residential care center for a dozen seniors in a neighborhood that once had a significant Jewish population. The Jews fled to the suburbs decades ago. The Jewish Home didn’t.

  Mort cuts to the chase. “How are you going to stop the execution?”

  “We’re already looking for new information,” I say. “At the moment, we’re focusing on claims that the cops may have planted the murder weapon.”

  “I couldn’t prove it,” he says.

  “We’re going to try. If that fails, we’ll need to find another way to prove freestanding innocence.”

  “That isn’t going to happen unless somebody steps forward and confesses.”

  The years and the ailments haven’t dulled his lawyerly instincts. “We’ll throw everything into the next round of habeas petitions,” I say.

  “Maybe.” His right eyebrow darts up over the top of his thick glasses. “You’ll come up with something. As I recall, you used to be a pretty good lawyer.”

  Ever the schmoozer. His ancestors came to San Francisco during the gold rush. They started a successful men’s clothing business that was bought by the prominent Magnin family. He grew up in the Richmond District and became the president of Temple Beth Sholom at Fourteenth and Clement, where he and Nate served together on the board. The childhood friends became genial rivals and occasional collaborators who ran competing law practices at opposite ends of the sixteenth floor of the Russ Building. They could be seen lunching together on petrale sole in a booth at Sam’s a couple of times a week.

  Mort mellowed considerably with age. Eventually, he developed a reputation as a “pleader”––a defense attorney who was more interested in cutting deals than trying cases. Ultimately, he became a full-time TV commentator on Channel 4. “Mort’s Torts,” as his daily segment was known, was a freewheeling cross between Court TV and David Letterman. It gave him a platform to expound upon everything from political issues to the Niners’ quarterback. He pretended to have an ongoing flirtation with the attractive young traffic reporter, even though it was common knowledge that he’d been married to his childhood sweetheart for more than fifty years. He worked at Channel 4 until he suffered the stroke that paralyzed his left side. His wife died a short time later. The longtime benefactor of the Jewish Home took a room in the wing that bears his name.

  I move in closer. “We had some sad news last night,” I say. “Lou Cohen passed away.”

  His pained expression indicates that he hasn’t heard the news. He struggles to clasp the unlit Cuban cigar that’s attached to his wrist by an elastic cord. He isn’t allowed to light up, but they can’t deprive him of his favorite prop. “That’s bad,” he says quietly. “Too many of my friends are dying. When’s the service?”

  “Monday.”

  He glances at his attendant. “Let’s see if we can make arrangements to go.”

  The young man nods.

  Mort jabs the cigar in my direction. “I spend a lot of time going to funerals,” he says. “I’m going to fool my doctors. I’m going to outlive them all.”

  He just might. Mort stormed the corridors of the Hall of Justice for more than five decades. After hours, he held court at the legendary Cookie’s Star Café, a dive on Kearny Street where prosecutors, defense lawyers, cops, judges, politicians, criminals, and reporters used to gossip, make book, and dole out informal justice over beers, dice, and cigars. Its colorful and profane proprietor, Lawrence “Cookie” Picetti, provided a needed demilitarized zone for the warring factions in San Francisco’s criminal-justice system. Defense lawyers conducted informal discovery there. A dwindling group of Cookie’s old regulars still gather on his birthday every year to hoist a few beers in his memory. Like Cookie’s place, Mort the Sport is a part of San Francisco that’s fading into history. There are good lawyers who will pick up the gauntlet. But there are few bigger-than-life characters left in our profession.

  I’ve been warned that his memory fades in and out, so I have to get what I can during his lucid moments. I start by easing him into a discussion of his favorite topic––himself. “How are you feeling?” I ask.

  The frustration in his voice is palpable. “I can’t hold my cigar without a spotter.” He shoots an appreciative smile toward his attendant. “If I light up, he’s supposed to light me up. You’d think the doctors would understand that I’m not going to die young.”

  The young man touches his arm gently. “You know the rules, boss,” he says. “Do you want some tea?”

  Mort playfully pretends to burn his finger with the unlit cigar. “I’d like some scotch.”

  “It’s a little early.”

  “I suppose. Let me have a moment with Mr. Daley.”

  The attendant gestures toward a woman whose wheelchair is parked down the hall. “I’m going to check on your girlfriend,” he says. “I’ll be right here.”

  “Thanks.” Mort turns back to me. “He’s a sophomore at City College. I’m trying to convince him to go to law school. I promised to teach him everything I can remember. Hell, if I can find my Rolodex, I can get him some clients.”

  I take a seat on the bench next to him. “How are you really feeling?” I ask.

  He looks down at his useless legs. “I have a few good days and a lot of bad ones. First it’s cataracts, then it’s a stroke, then your kidneys quit.”

  I offer a weak platitude. “You have to keep plugging.”

  “You’re still a kid. I’m in worse shape than they’re telling me. It’s always a bad sign when your doctors whisper to each other.”

  “It’s probably nothing.”

  He forces a chuckle. “It’s always something, Mike. If you’re living here, you aren’t going to get better. You just hope you don’t get worse too quickly, and you pray for a painless end. I try not to dwell on it. Sometimes I think Nate has a better deal. We’re getting to the finish line––at least he knows when the race is going to end. The only saving grace is that half the time I can’t remember what it was like to be healthy. You caught me on one of my good days. If you come back tomorrow, I might not recognize you.”

  “My mom used to say that getting old isn’t for sissies.”

  “She was very wise.” His eyes light up. “You want some free advice?”

  I’d like some free information, but I can’t possibly stop him. “Sure.”

  “You’ll want to write these down.”

  I prepare to take notes. “I’m listening.”

  “Mort the Sport’s three rules to live by. Number one, don’t get old. Number two, don’t get sick. Number three, don’t get old and sick at the same time. It’s bad for your health.”

  I’m glad I caught him on one of his good days.

  “So,” he says, “I presume you’re here to talk about Nate’s appeal.”

  “I am.”

  The affable expression disappears. “His case didn’t
make my personal highlight reel.”

  It was the only murder trial that he ever lost. “The execution is a week from tomorrow. I was hoping I might persuade you to help us.”

  His scowl becomes more pronounced. “I haven’t talked to Nate in years. I didn’t appreciate it when Lou Cohen filed that IAC claim against me.”

  He can remember every slight from fifty years ago. “It was a legal strategy,” I say. “It wasn’t personal.”

  “It was a losing argument and a gratuitous swipe. If I’d been running the case, Nate would have gotten a new trial by now.”

  “You can help us remove the only blemish from your otherwise perfect record.” I give him a sly grin. “It would also give us a chance to work together again.”

  “I’m no longer licensed to practice law.”

  “We’ll hire you as a consultant.”

  His tired eyes twinkle. “Are you really willing to pay me for my time?”

  “Sure.” I can be magnanimous with a fifty-thousand-dollar retainer. Besides, he doesn’t need the money.

  “You can’t expect me to remember the details of Nate’s case.”

  “I think you can remember the details of every case you ever tried.”

  He gives me a knowing look. “Lou brought you in to take the blame if the last appeal fails,” he says.

  “I prefer to think he hired me because I have a long-standing relationship with Roosevelt Johnson––and with you.”

  “He should have done it sooner.”

  I put a gentle hand on his shoulder. “Better late than never,” I say.

  The wheels start turning. “Can you persuade a judge to delay the execution because of Lou’s death?”

  “We’re going to file papers on Monday morning.”

  “On what grounds?”

  “Among other things, ineffective assistance of counsel.”

  “Against Lou?”

  “Against ourselves.”

  His quivering lips transform into a smile. “Is there any legal authority?”

  “Not really.”

  “You’re still going to have to prove freestanding innocence.”

  I give him an admiring nod. Mort didn’t get to be one of the best hired guns in town on his good looks and family connections. “I’m in a tough spot,” I tell him. “You know this case better than anybody. I could really use your help.”