“Probably.” He waits a beat. “You’re grasping.”
Yes, I am. “Please, Roosevelt.”
He looks down at the file again. “Let me see what I can find out.”
# # #
“Now you think Little Joey was involved?” Rosie asks.
“I’m not sure,” I tell her. “All I know is that he’s been getting ten grand a month from somebody.”
“It doesn’t mean it had anything to do with Nate’s case.”
“True enough.”
It’s two-fifteen on Friday afternoon. Rosie’s office is stuffy as we wait for a response from the California Supreme Court and the Ninth Circuit on the petitions we filed this morning.
Rosie looks intently at the bank statements from Little Joey’s currency exchange. Finally, she takes off her glasses and sets them down. “Joey didn’t open his business until a couple of years after Nate was convicted. How could this be relevant now?”
“I don’t know, Rosie.”
“What did Roosevelt think?”
“He didn’t know either.”
“Maybe he knows something, but wouldn’t tell you.”
“He wouldn’t have been that coy—especially so close to an execution.”
“Or maybe the cops really planted the murder weapon. Maybe Roosevelt doesn’t want to point the finger at another cop,” she says.
“He wouldn’t hesitate to point the finger at Little Joey.”
“Unless it also meant pointing a finger at your father.”
# # #
“Where are we?” Nate asks me.
We’ve regrouped in the airless visitors’ area at San Quentin at four o’clock on Friday afternoon. Rosie is sitting next to me. Ilene is waiting outside.
“We’ll call the governor again,” I tell him. “Then we wait.”
Nate is agitated. “For how long?” he asks.
We’ve been hounding the death-penalty clerks at the California Supreme Court and the Ninth Circuit every half hour since ten o’clock this morning. The fact that they’ve waited this long may suggest they’re considering our petitions seriously. Then again, it could mean somebody decided to take a long lunch.
I look at the ancient analog watch that my father wore for forty years while he walked the beat in some of San Francisco’s toughest neighborhoods. He gave it to my older brother when he was accepted at Cal. Tommy gave it to me for safekeeping when he left for Vietnam. He never had a chance to reclaim it. “They promised to respond by the end of business,” I say. “We’ll try again at four-thirty.”
“What’s your gut?” he asks.
“Somebody is going to bite.”
“What makes you think so?”
Because I’m an incurable optimist. “Jasmine Luk is a legitimate new witness.”
“We still have to demonstrate that her testimony would have caused the trial court to have reached a different conclusion. Freestanding innocence is a lot harder to prove than reasonable doubt. We need to show that somebody else did it.”
“We laid it out in our petition. She can place Bryant at the scene. That refutes his alibi. It also proves that the man who took over Robinson’s operations was at the Golden Dragon that night. The courts will be able to put the pieces together.”
At least I sure as hell hope so.
# # #
We’re summoned to the guard station at 4:20 p.m. to take an emergency call from Ted Prodromou. I can tell immediately from his tone that the news is bad. “They were very impressed that you found Ms. Luk,” he says, “but they didn’t think her testimony would provide sufficient evidence to have caused a different result at trial.”
In plain English, it means the California Supreme Court has rejected our habeas petition.
“For what my two cents are worth,” he adds, “I think you made a legitimate argument.”
In this instance, his two cents aren’t worth much. The color drains from Nate’s face when I return to the visitors’ area and break the news to him. We’ve been living on adrenaline and hope for the last week. I remind him that the Ninth Circuit is still considering our latest petition. We sit in silence as we wait.
The call from the Ninth Circuit finally comes in an hour later. I hold my breath as Ken Conroy speaks in a somber monotone. “I am calling to inform you that a three-judge panel of the Ninth Circuit Court of Appeals has ordered an emergency evidentiary hearing at ten o’clock tomorrow morning in the Federal District Court before Judge Robert Stumpf. The purpose is to hear the testimony of a woman named Jasmine Luk. You may call other witnesses to corroborate her testimony. We will expect you to submit a witness list by nine o’clock tonight.”
“We will.” My mind races as my heart beats faster. “Any chance we can do it a little sooner?”
“No. I would encourage you to use your time wisely. Judge Stumpf expects you to finish by noon.”
It’s good news. It also means that we’re going to get only one chance to convince Judge Stumpf to grant a stay.
# # #
For the first time since we were hired, we allow ourselves a brief moment of guarded optimism. There are hugs and high fives when we regroup in the visitors’ area.
There is a newfound sense of purpose in Nate’s voice as he reverts to lawyer mode. “Where do we start?” he asks.
“Nick Hanson is going to muster his army of relatives to serve subpoenas to a laundry list of potential witnesses,” I tell him. “Roosevelt has agreed to testify if we need him. So has Patty Norman. It may take a little more persuasion for Floyd Washington. We’ll serve subpoenas on Aronis and Bryant. We’re going to spend the evening trying to prep Tsai and Luk.”
Nate the Great leans back in his wheelchair. The old trial lawyer’s mind kicks into gear. “We have to plan this out carefully,” he says. “We don’t have much time.”
It’s a diplomatic way of saying that we’ll have two hours in court tomorrow morning to save his life. There will be no second chances.
“What’s our strategy?” he asks.
“We need to deal with the fact that this hearing will be different from a full-blown trial. It’ll be short, so we’ll have to watch our time. We’ll be making our presentation before Judge Stumpf, so we won’t need to dumb things down. He’s very bright, and he doesn’t have to worry about a jury. He may give us a little more leeway in our questioning.”
“On the other hand,” Rosie says, “he has a reputation for being a stickler on procedure. He isn’t going to give us carte blanche.”
“Neither will Irwin Grim,” I add.
Nate watches intently as Rosie and I finish each other’s sentences. Finally, he holds up a hand and asks, “Are you going to put Jasmine Luk on first?”
I look around at the drab walls and consider our options. “No,” I say. “I think we should start with Fitz.”
Nate responds with a puzzled look. “Why?”
“I want to establish that the investigation was so hopelessly botched up that they called in IA to investigate.”
“But everybody was cleared.”
“It doesn’t matter. This is theater. I want the judge to understand that the cops were accused of planting the murder weapon. After we hammer Fitz, we’ll put up Nick Hanson. He’ll testify that Wendell Tsai told him that his brother saw an African American man in the alley. Now he can also say that Luk identified Bryant as the man in the alley.”
“That’s inadmissible hearsay.”
“That doesn’t matter either. Everybody loves Nick. He’s a strong witness. I’ll get him to ID Bryant.”
“That’s still inadmissible.”
“The judge will pretend to ignore it, but he won’t be able to purge it from his mind.”
“Judge Stumpf is too smart to fall for a cheap trick like that.”
“Judge Stumpf is as human as the rest of us. He can’t totally disregard the fact that the newspapers will report that the legendary Nick the Dick testified that Bryant was in the alley. He doesn’t want to be second-
guessed by Jerry Edwards on Mornings on Two.”
Nate isn’t entirely convinced. “Then what?”
“We’ll put up Tsai’s brother to confirm what Nick said.”
“That’ll be hearsay, too.”
“We’ll argue that the judge should make an exception to the hearsay rule because of the compelling nature of the testimony. Even if he decides it’s inadmissible, the more times he hears it, the more likely he’ll be to believe it.”
“And after Tsai?”
“We’ll put up Luk to close the deal. I want her to ID Bryant and get off the stand as fast as possible.”
Nate does a brief calculus. “You need more than reasonable doubt to prove freestanding innocence. You need to show that somebody else did it.”
“Then we’ll try to push the blame over to Aronis and Bryant. They’re our best options.”
“How?”
“Floyd Washington and Patty Norman will testify that Aronis was trying to move into the San Francisco heroin market. We’ll put Aronis on the stand and lean on him.”
“He’ll deny everything. Besides, we can’t place him at the Golden Dragon.”
“But now we can place Bryant there. We’ll put Bryant up after Aronis.”
“He’ll deny everything, too.”
“Then I’ll hammer him.”
“And if that doesn’t work?”
I’ll have to wing it. “We’ll throw everything we can think of at the judge and see if anything sticks.” I don’t say it out loud, but in reality this is going to be two hours of high-stakes improvisational theater.
47/ GOOD LUCK
Saturday, July 18. 1:07 a.m.
22 hours and 54 minutes until execution.
“Are you ready?” Rosie asks. Her voice is tired. Her eyes are red as she looks at me through the reading glasses that replaced her contacts a couple of hours ago.
“Ready as I’m going to be,” I tell her.
It’s the calm before the storm. We’re sitting at opposite ends of her sofa. Sylvia is in the kitchen, preparing a fruit salad. Grace is in her bedroom, talking on the phone with Jake. We’re pretending not to hear her. Tommy is asleep down the hall. He’ll reappear for his nightly visit in a couple of hours.
We’ve had a frantic night of serving subpoenas and preparing Jasmine Luk and Wendell Tsai for their testimony. The degree of difficulty of our task was compounded by the fact that Luk is terrified and Tsai speaks limited English. Rosie and I won’t say it aloud, but we know that their direct exams tomorrow will be a crapshoot. Their ability to withstand Grim’s cross is an even bigger question. All things considered, we’re still in better shape than Nate, who is spending what may be his last night in a holding cell next to the execution chamber.
Rosie is wearing a sweatshirt and no makeup—and she still looks beautiful to me. She studies the handwritten list of witnesses. “You’re absolutely sure that you want to start with Fitz?” she asks.
“Yes.” I’m not absolutely sure about anything. If I can’t persuade Judge Stumpf to grant a stay, I’ll be second-guessing myself for the next twenty years. “I want to establish that the cops were accused of planting the murder weapon.”
She responds with a skeptical look. “There’s nothing new about that claim. Besides, Fitz isn’t going to roll over. He’ll testify that he conducted a full investigation and everybody was cleared.”
“I’ll go after him.”
She bites down hard on her lower lip. “And tell me again how that will prove freestanding innocence?”
“It won’t. It will give the judge a little more ammunition to grant
a stay.”
“He’s going to follow the law.”
“He’s also human. At the end of the day, he’s going to have to decide whether Nate lives or dies. I want him to think about how it will play in the papers if he sentences Nate to death after we’ve shown that the cops botched the investigation.”
Rosie shakes her head. “It’s nowhere near enough.”
“It isn’t intended to win the case. It’s just setting the table.”
The dark circles below her eyes become more visible as she scowls. “You’ll need to cut it short if you can’t get to him in a hurry.”
“I will.”
She looks down at her list again. “Then you want to put up Nick?”
“Yes.”
“He has nothing new to add.”
“He’s a strong witness who is credible and engaging.”
“He wasn’t there.”
“That doesn’t matter. I want him to prime the pump. I’ll get him to testify that Wendell told him that his brother saw an African American man in the alley. Then he’ll testify that Jasmine recently confirmed it was Bryant.”
“That’s all hearsay. The judge won’t allow it.”
“We went through this with Nate. We’ll argue that the interests of justice trump the technical provisions of the hearsay rules.”
“There’s no assurance that Judge Stumpf will agree with us.”
“All we can do is try. In any event, I want the judge to hear from three different people that Bryant was in the alley: first from Nick, then from Wendell, then from Jasmine. By third time, he might actually start believing it.”
“It doesn’t get us to freestanding innocence.”
“Floyd Washington and Patty Norman will smear Aronis. We’ll put Aronis on the stand and pound on him. Then we’ll ask Bryant what he was doing in the alley on the night of the shootings.”
“They’ll deny everything. Besides, it doesn’t place Bryant inside the Golden Dragon.”
I look down at my watch. “We’re going into court in less than nine hours. I’m well aware of all of the potential holes in our case.”
She doesn’t respond. Neither of us will verbalize the cold, harsh reality: the odds of proving freestanding innocence are still very long.
I reach across and take her hand. “I’m going home to try to get some sleep,” I tell her, knowing that I’ll be up all night again.
“That’s a good idea,” she whispers, knowing that she won’t be sleeping, either.
We’re still looking at each other when Grace walks in and takes a seat on the floor. She’s wearing a pink sweatshirt and matching sweatpants. Her voice is melancholy. “So,” she says, “it will all be over by this time tomorrow.”
“Yes, it will,” Rosie replies.
Our daughter tugs at her hair as her voice fills with genuine concern. “Are you ready?”
Rosie’s voice is barely audible. “Yes.”
Grace turns to me. “What about you?”
“As ready as I’m going to be, honey.”
Her eyes narrow. “Are you going to be able to stop the execution?”
I answer her honestly. “I don’t know, Grace.”
“They said on the news that you found a witness who might be able to place somebody else at the scene.”
She’s been following this case more closely than she’s let on. “That’s true.”
“Does that mean you know who the real murderer is?”
“We aren’t sure.”
She eyes me closely. “You have no idea how this is going to go down, do you?”
I hold my palms up. “Nope.”
She responds with a shrug, then stands and heads toward her room. As she’s about to disappear from sight, she turns around and says, “Good luck.”
“Thanks, honey.” We’re going to need it.
48/ ALL RISE
Saturday, July 18. 10:00 a.m.
14 hours and 1 minute until execution.
“All rise,” the bailiff intones.
The Honorable Robert J. Stumpf Jr. walks purposefully to the bench in his workmanlike courtroom on the nineteenth floor of the Federal Building at precisely ten o’clock on Saturday morning. The native of southern Indiana is a lanky man in his mid-fifties who played high school basketball against Larry Bird. A consummate professional with boyish good looks, a businesslike tone, impe
ccable academic credentials, and a nearly perfect judicial temperament, he takes his responsibilities seriously. He also injects healthy doses of self-deprecating humor into his courtroom. Because he is widely regarded as one of the finest wordsmiths on the federal bench, his name comes up every time there is an opening on the Ninth Circuit. He takes his seat in a tall leather swivel chair between the Stars and Stripes and the California state flag, taps his gavel, and motions us to sit down. With only fourteen hours until Nate’s execution, the final chapter in this story is going to be written this morning.
Unlike the artfully restored California Supreme Court and the majestic Ninth Circuit Court of Appeals, the unremarkable building that houses the Federal District Court typifies the mundane architecture of the fifties and sixties that gave our city such uninspired landmarks as Candlestick Park and the Bank of America tower. Judge Stumpf and his colleagues dispense justice in a drab, boxy structure that resembles a steroid-laden PG&E substation. The building’s appearance became even more Stalinesque when the Feds erected unsightly concrete barriers on the entrance plaza to reduce the threat of terrorist attacks.
It’s a slow news day in the middle of a slow news summer, but the stuffy courtroom is packed. There’s nothing like a two-hour hearing to decide whether a man will live or die to get people up early on a Saturday morning. The fourth estate is well represented by reporters from the usual local and national TV and radio outlets. Jerry Edwards is sulking in the first row. The strident woman from Court TV is sitting next to the bellicose lawyer who represented Scott Peterson’s mistress. They’re competing for seating space with the beautiful former ADA who used to be married to our mayor. She now works for Fox News.
The legal establishment is here in force, too. The attorney general came down from Sacramento to garner some sound-bite time. Ted Prodromou and Ken Conroy are sitting together in the third row. The ADA who lost the Bayview Posse case is sitting stoically near the door. His colleague who put Nate away in the first place is sitting in front of Mort Goldberg, whose wheelchair is parked behind the back row. They haven’t said a word to each other.
Jasmine Luk is sequestered in an office down the hall, under Roosevelt’s watch. Our other witnesses are lined up outside, away from the prying eyes of the media. They won’t be allowed inside the courtroom until it’s their turn to testify.
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