MD06 - Judgment Day

by Sheldon Siegel

  Still no discernable reaction. “It wasn’t me,” he repeats. “I was with Yvonne. You can ask her about it if you’d like.”

  She isn’t going to change her story. I push him a little harder. “Mr. Bryant,” I say, “it would make our lives––and yours––a lot easier if someone else could corroborate your whereabouts that night.”

  He pulls his whistle out of his pocket and walks toward his team. “This conversation is starting to sound a little too much like a cross-examination,” he says. “I don’t appreciate your tone or your implication, Mr. Daley.” He blows his whistle and asks the children to line up on the end line. “We have to finish practice.”

  # # #

  Rosie takes a deep breath of the heavy summer air. “You’re smelling a bit raw, Mike,” she says.

  We’re driving down Mariposa Street toward downtown at five-

  fifteen on Sunday afternoon. The good news is that the Giants won. The bad news is that we’re sitting in an un-air-conditioned car in gridlocked ballpark traffic.

  “Sorry,” I say. You don’t always get a lot of time to address some basic human needs when you’re trying to stop an execution. I’ll be making good use of the shaving kit that I keep in the trunk of the car for the next week or so. “I’ll grab a shower back at the office.”

  She holds a finger to her nose. “A clean shirt and some deodorant might be nice, too.”

  “Duly noted.”

  Her eyes never leave the road as she says, “Bryant knows more than he told us.”

  “Yes, he does. So does Chin.”

  “I think Bryant is a better bet. Chin didn’t seem like a guy who would have killed his father.”

  I pull out my cell and hit the speed dial. Pete picks up on the first ring. “Are you still in Chinatown?” I ask him.

  “Yes. Did you get anything from Bryant?”

  “A bunch of denials. I want you to have someone keep an eye on him.”

  “I will.”

  “Anything else?”

  “Maybe. I found a retired cop named Carl Yee who was working undercover in Chinatown on the night of the shootings.”

  “Was he anywhere near the Golden Dragon that night?”

  “We’ll find out. I persuaded him to meet us for dinner tonight.”

  17/ I WAS AN OLD-FASHIONED COP

  Sunday, July 12. 11:00 p.m.

  6 days, 1 hour, and 1 minute until execution.

  Pete’s eyes move rapidly as he devours a plate of roast squid with salt and pepper, the house specialty at Yuet Lee, one of the city’s finest and least pretentious seafood restaurants. As always, the squid arrived piping hot with a little dish of green peppers and two slices of lemon on top. The restaurant isn’t big on atmosphere. It’s located in a nondescript building at the corner of Stockton and Broadway, where Chinatown meets North Beach. The bright fluorescent lights and lime green interior make everyone look twenty years older, but once you start eating, you don’t care. Open until 3:00 a.m., it’s been a hangout for cops, writers, and night owls for years. The place is still packed at eleven o’clock on Sunday night.

  You have to make certain accommodations when you have dinner with a couple of ex-cops. First, you have to let them sit at a table where they can see all of the entrances and exits. Second, you have to deal with the fact that they’re watching everybody around them with unusual scrutiny. Third, you have to chow down quickly, because they eat fast.

  My brother places a piece of his squid on a small plate and pushes it over to our dinner companion. “Try it,” he offers.

  Carl Yee demurs with a polite but firm “No thanks.” The former undercover cop is a compact man in his mid-fifties with intense eyes, large hands, and a prominent scar that runs from the bridge of his nose across his forehead and under his closely cropped gray hair to his left ear. He picked up the souvenir three decades ago in a drug bust that went sideways. He adjusts the sleeves of his black leather bomber jacket and pushes the plate back to Pete. Then he continues to poke at a bland stir-fried vegetable concoction that the kitchen made up specially for him. “Bad stomach,” he says.

  “We appreciate the fact that you came tonight,” I tell him.

  “Roosevelt said you’re okay,” he replies.

  Glad to hear it. “How long were you on the force?” I ask.

  “Twenty-six years.” He takes me through his curriculum vitae in clipped police dialect. Born in Chinatown; attended Galileo High; joined the SFPD when he turned twenty-one; spent much of his time undercover in Chinatown; lives in the Sunset; took early retirement eight years ago to start his own security firm. He and Pete could hold an entire conversation consisting of three-word sentences.

  “Did you ever work with my dad?”

  “Yep. Solid cop.”

  I’m not about to disagree with him. I ask him if he was working undercover on the night Nate was arrested.

  “Yep.” He says he was monitoring a delivery of amphetamines in an alley off Stockton Street. He found out about the events at the Golden Dragon the next day.

  “Was anybody else working in the vicinity that night?”

  “Yep.”

  “Who?”

  He picks at his vegetables. “Don’t know.”

  “You must have known about Alan Chin’s organization,” I say.

  “Yep.”

  “Did you know Dave Low?”

  “Yep.” The admiration in his eyes is genuine. “Good cop. Huge loss.”

  “Any black marks on his record?”

  There is an almost imperceptible pause. “Nope.”

  “Was he watching the Golden Dragon that night?”

  “Don’t know.”

  “There were some questions about the handling of the evidence.”

  “That was crap.”

  “The defense claimed the murder weapon was planted.”

  “More crap.” He places his chopsticks on the table. “IA dealt with it.”

  “We’ve been told that Kevin Fitzgerald wasn’t the most tenacious guy in IA.”

  “He did his job.”

  “Did you ever talk to him about the case?”

  “Nope.”

  “The IA file is missing.”

  “I heard.”

  “Do you have any idea who may have taken it?”

  “Nope.”

  Pete puts his chopsticks down. “You know that they found a witness who was in the alley that night, don’t you?”

  “Yep.”

  “You heard he got popped a couple of days later?”

  “Yep. It was a robbery.”

  “Is that what really happened?”

  “As far as I know.”

  It’s a more equivocal answer than I expected.

  Pete studies his former colleague’s eyes. “Let me ask you something,” he says. “Off the record, ex-cop to ex-cop. Why did you really come down here tonight?”

  Yee tenses. “What do you mean?”

  “You could have told us everything you’ve just said in a two-minute phone conversation. Why did you come all the way here to see us?”

  He quaffs his ice water. “I was an old-fashioned cop.”

  “So?”

  Yee’s jaws tighten. “Look at it like this,” he says. “Two drug bosses and a mob lawyer get popped in Chinatown. They find the accused in the alley with a gun in his hand. A potential witness goes down a couple of days later. Call it an old cop’s intuition, but it didn’t feel right.”

  That may be the most words that Carl Yee has strung together in years. Then again, we’ll need more than an old cop’s intuition if we’re going to persuade the California Supreme Court and the Ninth Circuit to stop Nate Fineman’s execution in the next six days.

  18/ DR. DEATH

  Monday, July 13. 12:34 a.m.

  5 days, 23 hours, and 27 minutes until execution.

  “Nice shirt,” Rosie says.

  “Thanks,” I say. “It isn’t new.”

  “It’s reasonably clean.” She winks. “That’s
progress.”

  While Pete and I were eating squid with Carl Yee, Rosie was busy working on our habeas petition. I stopped at her house on my way home to read it. We’re arguing two theories: first, that Lou Cohen’s death will make it impossible for Nate to have adequate representation; second, that the missing IA file brings the integrity of the investigation —and Nate’s conviction—into question.

  I hold up the petition with admiration. “This is good,” I tell her.

  “Thanks. We’ll get it on file when the courts open later today.” Her expression doesn’t change when she adds, “After it’s rejected, we’ll file another one tomorrow.”

  It’s a realistic assessment. For the next five days, we will be fully engaged in a procedure known as successive petition litigation. It means we’ll be filing a new habeas petition every day until the end. The process will continue until hours or even minutes before the execution. We’ll challenge everything from the handling of the evidence to the inherently cruel nature of the death penalty. Since we are no longer allowed to dispute errors from the original trial record or matters previously raised on appeal, our best bet is to raise the possibility of new evidence. It would, of course, enhance our position considerably if we could actually find some new evidence. The rules now require us to go directly from the California Supremes to the Ninth Circuit without an intervening stop at the Federal District Court. If the Ninth Circuit buys our story, they may send us back to the district court for further proceedings. If they turn us down, we’ll go directly to the U.S. Supreme Court, where our chances are almost nonexistent.

  “Did you get anything from Yee?” she asks.

  “He said there were undercover cops in the area.”

  “We already knew that, Mike. Any specifics?”

  “Pete’s looking.”

  “He needs to look fast. They’ve already asked Nate what he wants for his last meal.”

  # # #

  At six-fifteen on Monday morning, I drag myself over to the Channel Two studios in Oakland for a live one-on-one with Jerry Edwards. I feign indignation at the suggestion that Nate was offered money to murder Robinson and Chin. I try not to come off as defensive or arrogant when Edwards tries to bait me. We volley back and forth as he tries to pin the blame for the missing file on my father. He mugs into the camera and cuts to a commercial just as I’m pleading for new information that might lead us toward identifying another suspect.

  # # #

  At the stroke of nine o’clock on Monday morning, our messenger files our papers with the California Supreme Court and the Ninth Circuit. At ten-thirty, we get a call from Ted Prodromou, who was the smartest guy in Rosie’s law school class. Now he’s the smartest staff lawyer at the California Supreme Court. He’s also the designated death-penalty attorney for our case. It’s always better to work with a bright lawyer––even if he’s on the other side. The Ninth Circuit and the U.S. Supreme Court have each assigned a point person as well. They’ll have the thankless task of coordinating the distribution of our papers to their respective bosses on short notice. By contemporary bureaucratic standards, the system is reasonably efficient.

  “We received your papers,” Prodromou tells us in his soft-spoken manner. “I already got a call from Irwin Grim.”

  We’re required to provide Grim with a copy of everything we file with the courts. I can picture Dr. Death studying our papers in his windowless office. “What did the distinguished deputy attorney general have to say?” I ask.

  I can hear the laid-back chuckle in Ted’s voice. “He sighed.”

  True to form. “I take it this means he plans to respond?”

  “He already has.”

  Impressive. He anticipated our filing and spent the weekend preparing a reply brief. “Did he have any other reaction after he finished exhaling?”

  “Sure. He said your claim was without merit.”

  Big surprise. “Do you agree with him?”

  “Hey, not my decision.”

  “Any hints from the folks in the black robes?” The big guys will make the final call. But they will rely heavily on the opinions of Ted and his cohorts to shape their views. Ninety-nine times out of a hundred, the staff attorneys get it right.

  “I’ll know more in a couple of hours,” he says. “I understand the urgency.”

  Ted is astute enough not to show his cards.

  “I was hoping you might be available to sit down with Irwin and me at one o’clock,” he says. “I want to make sure everyone is on the same page.”

  It can’t hurt to see what Dr. Death has to say. “We’re in.”

  “I have to ask you for another favor.”

  “Which is?”

  “You and Rosie have to promise not to sigh.”

  # # #

  Deputy Attorney General Irwin Grim exhales with a melodramatic flourish at one o’clock on Monday afternoon. His thin tie is wound so tightly around his neck that it’s hard to imagine any oxygen can reach his brain. As always, Dr. Death’s nasal voice is flat. “I am duly sympathetic about Lou Cohen’s death,” he intones. “However, there is no legal authority to delay an execution just because the convicted murderer’s attorney died shortly before it was scheduled. Furthermore, the missing IA file has no bearing on this case.”

  We’re meeting in a workmanlike conference room on the third floor of the Earl Warren Building, a six-story masterpiece on the north side of Civic Center Plaza, where the California Supreme Court has conducted business since 1923. The classic granite edifice is a stylish mix of architectural elements inspired by the Italian Renaissance. Corinthian pilasters and cartouches embellish its southern facade, which is subtly bowed about eighteen inches at either end, thereby giving the optical illusion that the building is flat in elevation. Severely damaged in the Loma Prieta earthquake, the Warren Building underwent a two-hundred-million-dollar restoration that was completed almost ten years later, in 1998. The interior is still utilitarian, although the Supreme Courtroom, on the fourth floor, was restored to its original understated brilliance.

  “You understand there’s no way to correct a mistake if you execute an innocent man,” I say to Grim.

  “I do.” He leans across the oak conference table. “That has no bearing on our interpretation of the law as long as your client is represented by competent counsel.”

  “This isn’t a purely academic exercise,” I say. “A man’s life is at stake. You can choose to interpret the law to meet the needs of justice and fair play.” He can’t possibly argue with justice and fair play, right?

  Wrong. “It is my policy to leave those decisions to the courts.”

  There’s no convincing Dr. Death.

  Ted Prodromou takes a sip of black coffee as he studies his notes. His unblemished features and trim, athletic build make him look younger than fifty. “The purpose of this meeting is to discuss the status of the pending habeas petition,” he says to nobody in particular. “I am not in a position to comment on the substance of your arguments at this time. I want to be sure this case is handled in an orderly manner.”

  We nod in unison.

  “When are you going to rule on the petition they filed this morning?” Grim asks.

  “Soon.”

  “How soon?” I ask.

  “Very soon,” Prodromou says. “The standard is quite clear: we need to be sure that your client is adequately represented by competent counsel. I know for a fact that the attorneys in this room are all highly qualified.”

  As hard as I might try, it will be difficult to persuade him that I’m an idiot. He can’t say it out loud, but he’s telling us that our argument is a loser.

  Prodromou consults his notes. “You’ve been through the drill,” he continues. “We will make every effort to accommodate you. I can’t stop you from pleading your case to the media. However, I would remind you that only the courts and the governor can rule upon this matter.”

  “What about the missing file?” I ask.

  “As far as I can tell,
there was no evidence of any irregularities in the investigation. Lieutenant Fitzgerald’s agreement to provide a sworn summary of its contents mitigates the damage.”

  “It’s going to be impossible for us to do anything meaningful in five days,” I say.

  “Legally, your client’s position hasn’t changed significantly since Mr. Cohen’s death. Your petition is under submission. The fact that a new defense team will be handling the final stage is largely irrelevant to the legal ramifications of his case. Of course, our justices will take into account the seriousness of the charges and the finality of the consequences.”

  This time Grim doesn’t sigh. In fact, a barely perceptible sideways grin crosses his face. He knows his cards are better than mine. He’s perfectly content to run out the clock.

  19/ I WAS GOING TO CALL YOU TONIGHT

  Monday, July 13. 3:30 p.m.

  5 days, 8 hours, and 31 minutes until execution.

  Mort the Sport is holding court from his wheelchair, which is perched on the front steps of Temple Beth Sholom, at Fourteenth and Clement. Despite more pressing matters, Nate insisted that Rosie and I attend Lou Cohen’s funeral. The overflow crowd represented a multigenerational cross section of everybody who has ever been anybody in the San Francisco legal, political, and Jewish communities over the last half century. Rabbi Friedman delivered a heartfelt eulogy. Lou was the type of lawyer that I aspire to be. The rabbi is the type of clergyman that I never was.

  Mort gestures to me with his unlit cigar. “Come over here, Mike,” he says.

  Despite the post-funeral setting, Mort pulls me down close to his face and starts firing questions. “Tell me quick––have you figured out a way to stop the execution?”

  I don’t want to have this conversation on the front steps of a synagogue fifteen minutes after the conclusion of a funeral service. “We’re working on it.”

  “Work faster.”

  Thanks for the advice.

  We watch in silence as Cohen’s family walks past us. We have a full agenda, and I’m desperately looking for a polite way to make a fast exit. Cohen’s son, Ben, looks like his father. He helps his mother into the limo, then moves toward us. He leans over Mort’s wheelchair and extends his hand. “Thanks for coming,” he says to him.