Nate sits at the defense table between Rosie and me. He has a legal right to be here and he’s hardly a flight risk. He looks like a retired law professor, in a subdued charcoal suit, but his demeanor is closer to that of a caged tiger. Ilene sits behind him, flanked by her children and Rabbi Friedman. Pete is, of course, conspicuously absent. I talked to him again this morning. His recovery is progressing.
Irwin Grim stands at the prosecution table. It seems appropriate that he’s dressed in a black business suit. Dr. Death will try to poke holes in our presentation. Then he’ll drop back into a prevent defense and try to run out the clock.
Judge Stumpf glances at his watch, flips on his computer, and asks the bailiff to call our case. After that ceremonial task is completed, the judge looks out over his wire-rimmed bifocals at the silent courtroom. “We’re on the record,” he says. “This is a hearing to consider petitioner’s request for a writ of habeas corpus. Unlike a full trial, our sole charge is to determine whether there is sufficient new evidence to prove petitioner’s ‘freestanding innocence.’ In other words, petitioner must demonstrate this evidence clearly proves he did not commit the crime for which he was convicted. Are counsel ready to proceed?”
Grim and I respond in unison. “Yes, Your Honor.”
“Mr. Daley,” the judge says to me, “I take it you will be addressing the court on behalf of Mr. Fineman?”
“Yes, Your Honor.”
Dr. Death adjusts his gold cuff links and addresses the judge without an invitation. “Irwin Grim on behalf of the attorney general,” he announces. “We will be speaking for the people of the State of California.”
All forty million of them. Judge Stumpf is unmoved by Grim’s inflated self-importance. “This hearing is the only matter on my docket today,” he says. “Everyone here understands its magnitude. I have read counsel’s papers and I won’t need a rehash in the form of opening statements. We must conclude by noon. Please call your first witness, Mr. Daley.”
Showtime. “We call Lieutenant Kevin Fitzgerald.”
The deputy at the rear of the courtroom opens the door. Fitz walks forcefully down the center aisle, is sworn in, and takes his place in the witness box. He’s testified in hundreds of trials. He’s in his element. Having ditched his upscale outdoor wear for a stylish Italian suit, he could pass for an investment banker or the president of a Fortune 500 company.
Fitz responds in an even tone when I ask him about his occupation. “I worked for the SFPD in various capacities for thirty-four years.” Everybody wants to believe the distinguished veteran with the ruddy good looks and the commanding voice. “I taught at the police academy for five years after my retirement from active duty.”
“Lieutenant,” I say respectfully, “you spent much of your career investigating cases of alleged misconduct by other police officers, didn’t you?”
“Yes.”
I’ll try to control the pace and direction of his testimony by eliciting short answers. “You were asked to conduct an official inquiry into police misconduct in the Fineman case, weren’t you?”
He corrects me. “Alleged misconduct, Mr. Daley.”
Fine. “You were asked to conduct such an investigation, right?”
“Yes.”
Okay. “Would you agree that Internal Affairs is called in only in the most serious of circumstances?”
“Generally.”
“So the allegations in the Fineman case were serious, right?”
Grim tries to break up my rhythm. “Objection,” he says. “Asked and answered.”
“Sustained.”
“I’ll rephrase,” I say. I haven’t taken my eyes off Fitz. “Lieutenant, were there allegations of serious police misconduct in the Fineman case?”
“Yes.”
“In fact, Mr. Fineman’s attorneys alleged that the police planted the murder weapon, correct?”
Fitz calmly adjusts the microphone. “That allegation was never substantiated.”
“Please answer my question, Lieutenant. Isn’t it true that you were asked to investigate allegations that the police had planted the murder weapon?”
He doesn’t fluster. “That allegation was never substantiated.”
Like a good politician, he’s going to stay on message. “Yes or no, Lieutenant. Did you investigate allegations that the murder weapon had been planted?”
“Yes.” He repeats his mantra: “That allegation was never substantiated.” The experienced pro continues deliberately. “Mr. Fineman’s attorneys made some wild accusations. There was no evidence of any misconduct by our officers.”
He’s good. I shift gears. “Did the police find any evidence of gunpowder residue on Mr. Fineman’s hands or clothing?”
“Objection,” Grim says. “This was covered at trial.”
“Your Honor,” I say, “Lieutenant Fitzgerald’s testimony on this subject is directly related to the information that our new witness will provide shortly.” It’s a bald-faced lie. I’m simply trying to plant another seed with the judge that the cops screwed up.
“I’m going to give you a little leeway,” the judge says, “but I want to hear something new very soon.”
“Thank you, Your Honor.” I turn back to Fitz and say, “Did the police find any gunpowder residue on Mr. Fineman’s hands or clothing?”
He eyes me warily. “No.”
I move in closer to Fitz. “The weapon found underneath Mr. Fineman was shown to be the one that fired the fatal shots at the Golden Dragon, right?”
“Yes.”
“Wouldn’t you have expected to find gunpowder residue on the hands and the clothing of an individual who had just fired that gun?”
“Objection,” Grim says. “Again, this was covered at trial. In addition, Lieutenant Fitzgerald is being asked to testify as to matters for which his expertise has not been established.”
“Your Honor,” I say, “Lieutenant Fitzgerald spent thirty-four years in high-ranking positions with the SFPD. He spent several years thereafter teaching at the academy. Surely he is qualified to provide an expert opinion with respect to a basic issue about the residue left by an expended firearm.”
“Overruled.”
Fitz invokes a clinical tone. “Ordinarily, one would expect to find such residue.”
Was that so hard? “Thank you, Lieutenant,” I say.
“I’m not quite finished,” he says.
“You’ve answered my question.”
This time the judge interjects. “Let him finish, Mr. Daley.”
Fitz can’t hold back a smile. “It is likely that any identifiable traces of gunpowder residue were washed away by the rain.”
“But you don’t know that for sure.”
“No, I don’t. However, my investigation revealed no wrongdoing on the part of our highly professional officers.”
“It is also possible that no gunpowder residue was found because Mr. Fineman never fired the weapon, isn’t it?”
“Objection,” Grim says. “Speculative. Argumentative.”
“Sustained.”
“Which officers did you talk to?” I ask.
“Everyone who helped secure the scene.”
“That would have included David Low, Joseph D’Amato, and Thomas Daley?”
“And several others.”
“Did you consider the possibility that they covered for each other?”
“Objection,” Grim says. “Speculation.”
I’m trying to plant the idea that the cops invoked the Code of Silence. “Your Honor,” I say, “I’m not asking the lieutenant to speculate as to whether they actually did cover for each other. I’m merely asking if he considered the possibility.”
“Nice try, Mr. Daley. The objection is sustained.”
It’s the right call. Time to move on. “When did you conduct your investigation?”
“After the conclusion of the trial.”
“How long did that take?”
“About a week.”
I invok
e a skeptical tone. “You were able to get statements from all of the relevant witnesses and complete a full investigation in just a week?”
“Yes.”
“You’re very efficient.”
He responds with a patronizing half smile. “I like to think so.”
“You prepared a report on your findings, didn’t you?”
“Yes, I did.”
“That report was placed in a permanent confidential file within the Internal Affairs Division, wasn’t it?”
“Yes, it was.”
“We subpoenaed a copy of that report, didn’t we?”
“Yes, you did.”
“But you were unable to provide it to us.”
“That’s correct. The file is missing.”
“The file is missing,” I repeat. “So we’ll never have an opportunity to review its contents, will we?”
“It appears that way.” He can’t contain a smirk. “According to the records, the last person who checked out the file was Officer Thomas Daley.”
“You’re referring to my father?”
“Yes.”
“The record also indicated that he checked in the file, didn’t it?”
“I believe so.”
“Are you suggesting he had something to do with its disappearance?”
“I’m not suggesting anything.” His smirk broadens. “I’m simply noting that he was the last person who checked out the file.”
Bullshit. “And neither you nor the records division have been able to locate it?”
“No, but I was asked to provide a written summary of its contents.”
“Which means you’re asking us to take your word for it.”
He nods with authority. “Yes.”
“Which also means my client’s life rests on whether you did your job back then and whether you’re telling us the truth now.”
Grim stands. “Objection, Your Honor. Argumentative. I must also object to this line of questioning. Lieutenant Fitzgerald has provided a written statement under oath as to the contents of the file. Courts at the state and federal level have already concluded that Lieutenant Fitzgerald’s written statement is an adequate substitute for the file.”
“Your Honor,” I say, “the information in that file has direct bearing on the issue of whether my client is going to be executed in less than fourteen hours.”
Grim sucks up to the judge. “Your Honor,” he says, “we’re prepared to waive any objections if Mr. Daley wishes to call additional witnesses who have knowledge of the contents of that file.”
It’s a hollow gesture. “Your Honor,” I say, “we can’t possibly know who to call, because we can’t examine the file.”
Grim fires back. “Your Honor,” he says, “we’ve made every possible effort to locate that file. Lieutenant Fitzgerald has provided a comprehensive list of every person that he interviewed.”
“We’ll never know if that list is complete,” I say. “If we find a new witness tomorrow, it will be too late.”
“Lieutenant Fitzgerald submitted the statement under oath,” Grim snaps. “If Mr. Daley believes he’s committed perjury, he can bring charges. In the meantime, we are offering the testimony of the man who prepared it––Lieutenant Fitzgerald.”
Who is going to repeat himself until he’s blue in the face: everybody was exonerated; everybody was exonerated. “Your Honor,” I say, “it is an egregious miscarriage of justice to proceed with my client’s execution without giving us an opportunity to review the investigative file concerning this case. We will never be able to know all of the facts unless we obtain that file.”
Judge Stumpf has been taking in our sniping contest with his chin resting in the palm of his right hand. “The objection is sustained,” he finally decides. “The best evidence that we have with respect to the contents of that file now comes in the form of Lieutenant Fitzgerald’s sworn statement, which I have already admitted into evidence.”
“Your Honor—”
“I’ve ruled, Mr. Daley. Anything else for this witness?”
“Yes, Your Honor.” I turn back to Fitz and bore in. “Lieutenant, isn’t it true that several of the officers who secured the scene at the Golden Dragon had been involved in an investigation of a group of drug dealers known as the Bayview Posse?”
“Objection,” Grim says. “That investigation has nothing to do with this case.”
“Your Honor,” I say, “I will show a direct connection in just a moment.”
“Overruled.”
“Yes,” Fitz says. “Several of the officers who secured the scene at the Golden Dragon were also involved in the Bayview Posse investigation.”
“That would have included an undercover officer named David Low?”
“Yes.”
“And Officers Joseph D’Amato and Thomas Daley?”
“I believe so.”
“The investigation of the Bayview Posse led to the arrest of several individuals in connection with the deaths of three students at Galileo High School from heroin overdoses, didn’t it?”
“Yes.”
“Were those defendants ever convicted?”
“No.” Fitz takes a deep breath. “The charges were dropped.”
“Why?”
His voice fills with contempt. “Legal technicalities,” he mutters.
“The Posse hired Mr. Fineman to represent them, didn’t they?”
“Yes.”
“Mr. Fineman got the charges dropped when he convinced the court that the police had conducted an illegal search of a house owned by the Posse’s leader, didn’t he?”
Fitz’s nostrils flare. “The judge made a mistake,” he says through clenched teeth. “He set a group of killers free.”
Grim stands again. “I fail to see the relevance, Your Honor.”
“Please, Your Honor,” I say, “I was just getting to the most important part.”
“Proceed, Mr. Daley.”
“Lieutenant Fitzgerald, isn’t it a fact that the officers involved in the Posse investigation were extremely upset that their efforts did not result in a conviction?”
“That investigation had nothing to do with this case.”
“Answer the question, please.”
“Everybody involved in the investigation was disappointed.”
“In fact, they blamed Mr. Fineman for the disaster, didn’t they?”
Grim is up again. “Objection. Lieutenant Fitzgerald isn’t a mind reader.”
“Sustained.”
I keep pushing. “Isn’t it true that the police who investigated the Posse held a grudge against Mr. Fineman?”
“Objection. Speculation.”
“Sustained.”
I’m just starting to ask speculative questions. “Isn’t it also possible that the police framed Mr. Fineman for murder and closed ranks as a payback for the botched investigation several years earlier?”
Grim is still standing. “Objection,” he shouts. “This line of questioning is pure speculation.”
Yes, it is.
“Sustained.”
I make one more blatant play to the gallery. “It’s possible, isn’t it, Lieutenant?”
“Objection. Speculation.”
“Sustained.”
I’ve done everything that I could to plant the seed of police misconduct. “No further questions, Your Honor.”
“Cross-exam, Mr. Grim?”
“Just one question, Your Honor.” Grim addresses Fitz from his seat. “Just so we’re absolutely clear about this, did you find any evidence of any wrongdoing of any kind on the part of the hardworking officers who helped secure the scene at the Golden Dragon, and who helped put a vicious murderer in prison?”
It’s my turn to stand. “Objection to Mr. Grim’s characterization of my client as ‘vicious,’” I say.
“Sustained.”
A smug Grim rephrases the question. “Lieutenant, did you find any wrongdoing on the part of any of the officers involved in securing the scene?”
“No further questions, Your Honor.”
“Please call your next witness, Mr. Daley.”
The table is set. It’s time to go on the offensive. “We call Nicholas Hanson, Your Honor.”
49/ INDEED I DO
Saturday, July 18. 10:17 a.m.
13 hours and 44 minutes until execution.
Nick the Dick stretches to his full height in the back of the courtroom. He tugs at the lapels of his navy suit and begins a slow saunter down the center aisle in a dead-on imitation of Edward G. Robinson in Little Caesar. Any lingering effects of his recent knee surgery are not discernable. He sports a broad grin as he works the room like a seasoned politician, pausing to shake hands with people seated along the aisle. I gesture to him to speed up. Evidentiary hearings aren’t like soccer games, where extra time is added at the end to compensate for minutes lost during stoppages of play.
When he reaches the front of the courtroom, he greets the bailiff by name and raises his right hand. The bailiff recites the words that every devotee of Law and Order can repeat by heart: “Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”
“Indeed I do.” Nick climbs into the heavy wooden chair in the witness box. He pours himself a glass of water. He leans forward in anticipation as I button my jacket.
“May we approach the witness?” I ask the judge.
“Yes, Mr. Daley.”
I’m halfway to the witness box when I hear Grim’s voice from behind me. “A word, Your Honor?”
“Yes, Mr. Grim?”
I haven’t started and he’s already whining. In fairness, it isn’t a bad strategic move. The clock is running in his favor.
Grim takes a deep breath. “As I mentioned during Lieutenant Fitzgerald’s testimony, the sole legal purpose of this hearing is to bring forth new evidence that was not introduced at trial or during prior appeals. There is nothing in Mr. Daley’s papers to suggest Mr. Hanson has anything new to add. His testimony therefore has no place in this proceeding.”
The only way to respond to this sort of bellyaching is with a tone of unquestionable reason. “Your Honor,” I say, “Mr. Hanson is here to offer brief testimony as to new information that was not addressed at the trial.”
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