A Criminal Defense

by Steven Gore

  The door lock made the kind of hollow click that sounds when a room is empty, and this was.

  And dark. Lit only by the diffused light from the street below and the windows of after-hours workers in the opposite building.

  Donnally felt a little foolish doing it, but he pulled the Velcro strap on his holster free and gripped his gun as he flipped on the reception area light switch. The fluorescent flicker and burst of light illuminated nothing but office furniture. He passed through and into Hamlin’s inner office. Nothing there but dead wood. The only thing new was a manila envelope lying in the center of the desk blotter. He secured his gun, then dropped into Hamlin’s chair and slid the contents out. A DVD. He spun it around to read the label.

  Frank Lange Investigations

  People v. Thule

  Interview of John Gordon

  Confidential Attorney/Client Material

  Donnally knew what the secret recording would show even before he listened to it. John Gordon had not confessed to Lange that it was his idea to use the defective Chinese steel in the mall walkway.

  And he suspected it was Jackson who’d left it for him.

  Perhaps because of the fresh recollection of the gun at his back, the kind of incident whose lingering memory can transform fear into paranoia, he found himself wondering whether the recording was a bread crumb that would lead him to the reason for the murder or whether it was a form of misdirection to take him down a false trail away from something that might implicate her directly.

  At some point, Hamlin’s crimes and professional misconduct would slop back on Jackson and she had to start protecting herself, one way or another, maybe just by diverting his attention to someone else.

  Hamlin’s misdeeds were certainly about to slop back on Frank Lange. In his cross-examination, the prosecutor would’ve asked Lange whether he’d taped the interview of Gordon, and Lange would’ve lied. And the proof of his perjury was lying on the blotter and would end Lange’s career.

  It was just the kind of leverage Donnally was looking for to get backdoor access to parts of Hamlin’s work that were either hidden from Jackson or that she was afraid to talk about for fear of self-incrimination.

  Donnally called Hannah Goldhagen on her cell phone. He could hear background restaurant noises of rumbling conversations and rattling dishes. He then suffered what he knew was an irrational thought, based on an irrational connection, that she was sitting in Café La Maison down the block. He suppressed it and asked:

  “Hypothetically, if you could prove the defense used forged or fraudulent evidence to get a not guilty verdict in a state court case, could you somehow avoid the double jeopardy problem and get it moved into federal court and retried?”

  Goldhagen laughed. “I don’t think you mean hypothetically. You’re just not willing to tell me who did it and what case they did it in.”

  “And the answer?”

  “No, we couldn’t get it into federal court unless it could be construed as a civil rights case.”

  “It can’t. But, hypothetically, you could keep it in state court and pursue obstruction of justice against the defendant if you could prove he was involved.”

  She laughed again. “Not hypothetically, actually, and we can ask for penalties as heavy as for the original crime. Hold on.” The restaurant sounds were eclipsed for a few moments, then she asked, “And when am I going to find out which case it is?”

  “It may not even be in San Francisco. You may have to find out about it in the newspaper.”

  “I think not.” Her voice stiffened. “Be careful, Donnally, I know you’re doing a lot of poking around and have been playing things close, but pretty soon push is going to come to shove and some of this stuff has to come out.”

  He threw it back at her. “And the sooner you get Sheldon Galen signed on, the sooner you can get to pushing and shoving.”

  “It’ll be done tomorrow. He lawyered up as though he wanted to fight, but then caved. He’s supposed to be in at high noon. I’ll send him your way right afterwards.”

  Chapter 31

  Donnally looked up Frank Lange’s address on the Internet, located his photo in the San Francisco Chronicle archives, and then headed out. A half hour later he slowed his truck near a three-story Victorian where Castro, Divisadero, and Waller came together, just three blocks east of Buena Vista Park. Mark Hamlin’s apartment was on its opposite side. He verified the address, then drove on until he located a parking spot a couple of streets away, and walked back.

  Any thought of confronting Lange with the tape got drowned out by party noises emanating from the house. From the recessed doorway of an apartment building across Divisadero, Donnally watched too many people in a dining room under a too bright chandelier jostle for places near the buffet table.

  He didn’t recognize anyone and didn’t see Lange.

  Donnally took a couple of photos with his cell phone, then worked his way around the perimeter of the Y intersection until he obtained a view of the Waller side of the house. He spotted Lange standing in the living room looking like a politician surrounded by reporters. The head shot Donnally had found on the Internet disguised Lange’s girth. That, combined with his red sports jacket, made him look like a child’s party balloon. It seemed to Donnally to be the perfect match of ego and physique.

  Lange wasn’t an investigator who relied on stealth. And if Jackson was right about the kind of work he did for Hamlin and for other attorneys like him, he didn’t need to be furtive. It didn’t make any difference whether witnesses or victims could see him coming, for he’d either just make up what he wanted victims or witnesses to have said, or try to intimidate them into saying it or into silence.

  Lights were off on the upper floors. Donnally imagined Lange’s bedroom and office were on the second story and that he used the angle-roofed third floor as storage. The ceiling seemed too low for regular use.

  Donnally watched Lange and a skinny woman at least twenty-five years younger than Lange’s early fifties turn together and walk toward the interior of the house. A minute later a light burst on in a second floor room. The angle of view was such that he couldn’t tell what it was used for.

  They faced each other.

  She was glaring at him, her thin arms folded across her chest.

  He stood with his hands extended.

  Soon they were both jabbing fingers and waving hands.

  From the violence of her gestures, Donnally guessed she could be angry enough at Lange to disclose some of his secrets, if she was in a position to know any.

  Donnally snapped a photo, thinking that Jackson or Navarro might be able to identify her.

  Lange reached for her shoulders. She stepped back. He reached again. She slapped him, then spun away. He stood there for a few seconds rubbing his cheek, then followed her out of Donnally’s sight and the light went off.

  Donnally took more photos of the people in the living room, then slipped his phone into his pocket and surveyed the third floor windows.

  Assuming Judge McMullin would accept the argument that Lange kept his own copy of the Gordon interview recording in storage, Donnally didn’t think it would be long before push did come to shove, and Navarro would be kicking in Lange’s door to serve a search warrant.

  Donnally leaned against the brick wall behind him. He’d expected his discovery of the perjury would give him a feeling of solidity, of having found a foothold; instead it was one of vertigo, of losing focus on what he’d been asked to do: figure out who killed Mark Hamlin—and not go on what McMullin had called a fishing expedition, even though Donnally guessed that he could pull some monsters from the deep—for who knew how many similar tapes might be discovered in Lange’s storage room.

  Forget the search warrant fantasy, he told himself. It wasn’t going to happen, or it would come too late. He needed the recording as leverage to find out whether Lange knew, or even suspected, who the killer was—even at the risk of incriminating himself in other crimes.

 
; But the danger of confronting Lange was—no, the consequence would be—that he would move anything incriminating out of his house.

  Donnally pushed off from the wall. The chess game in his head continued while he walked back to his truck. He leans on Lange, then has Navarro spot on the investigator’s house to see if he tries to sneak any boxes of records out, then follows Lange to where he stashes them.

  Nope. Not worth the risk. What if Navarro gets caught? The defense bar goes haywire, the department gets embarrassed, and both Donnally and Judge McMullin get ripped in the press, Donnally for playing cop when he was supposed to be acting as a special master and McMullin for appointing him.

  A guy like Lange, who does what he does and has so much to hide, always has to be looking over his shoulder.

  Always.

  Nobody will be sneaking up on Frank Lange.

  Chapter 32

  I went to a conference today over at the USF Medical Center,” Janie said when Donnally walked into their bedroom. She was propped up in bed, drinking tea, and reading Lemmie Hamlin’s latest book. “I asked around about whether anyone had ever worked on any cases for Mark Hamlin.”

  Donnally kissed her on the forehead. “I suspect no one would admit it now.”

  Janie smiled. “You wouldn’t make a very good shrink. The urge to confess relationships with victims seems to follow like a vulture in death’s wake.”

  “Very literary.” He pointed at the book. “Is that where you got that line?”

  “No. It just stirred my creative juices.”

  Donnally grinned and raised his eyebrows. “Any other juices get stirred?”

  “There was a great sex scene in chapter seven, but I didn’t need the stirring.” She grinned back. “You know me.”

  “Let me take a shower and I’ll see what I can do.”

  “Don’t you want to know the gossip?”

  Donnally nodded and sat down on the edge of the bed.

  “Those who do forensic psychology in criminal cases are trapped in a weird conflict. They’re proud to be known for their expertise, but they’re embarrassed to have been chosen for their pliability. It hit me while I was listening to them how it really works. It’s kind of like the way people adopt whatever religion they’re born into, embrace it as though they’d chosen it themselves, and then become willing to kill and die for it.”

  “And these shrinks adopt the point of view of whoever calls them first,” Donnally said, “and are willing to scheme and lie for it.”

  “That’s the implication.” She smiled. “And very poetic.”

  Donnally had watched dozens of those hacks in homicide cases, especially capital cases in which psychologists and psychiatrists were called by the defense for what the law calls mitigation, to testify about how a murderer’s unhappy childhood caused him to plan and execute a robbery murder, or even a series of them.

  It angered him, even though he was no fan of the death penalty and would never vote for it himself either on a referendum ballot or as a member of a jury. And the advantage of working in San Francisco was that the DA rarely charged special circumstances and paid attention to a detective who argued against seeking death in a case.

  At the same time, he hated the self-deceptions of the cottage industry that built up around capital cases. It was made up of attorneys, private investigators, mitigation specialists, psychologists, and social workers who always found a way to convince themselves that their particular crook’s life was worth saving.

  And it was absolute bullshit.

  Murders have nothing to do with unhappy childhoods and everything to do with power.

  Individually, none of the guilty defendants was worth saving. They were disgusting human beings who knew what they were doing, knew that it was wrong, and got a thrill out of doing it.

  “I’ve never understood how people could do that kind of work,” Donnally said. “They delude themselves and deceive juries about what these guys really are.”

  What made their lives worth saving was simply that they were human beings; that and the fact that errors were built into the system and it was wrong to exact absolute punishment without absolute certainty.

  There wasn’t such a thing.

  Nobody with a half a brain needed an Innocence Project to teach them that lesson.

  And by the time a capital case got to court, it wasn’t about truth anymore, but about winning.

  “It’s not just the defense,” Janie said. “These people also work for the prosecution.”

  “And that pisses me off, too. The DA’s playing the same self-deluding game.”

  Prosecutors would match defense attorneys in lying to themselves and to juries, arguing this defendant, more than the defendants doing first-degree murder sentences or life-without-parole sentences, deserved death—even when the worst of the worst never got it.

  Son of Sam. Charles Manson. Jeffrey Dahmer.

  Kill two. Get death.

  Kill ten. Get rewarded with life for just telling the cops where all the bodies are buried.

  In Donnally’s experience, the more maniacal the crime, the more likely the jury would be looking for reasons why the defendant got so twisted. And once the jurors started down the psych road, it was hard for them to think of the killer as a willing, thinking, choosing human being, and that prevented them from seeing him as the murdering son of a bitch he was.

  “Hamlin knew how to play these people and do a little psychological dance with them,” Janie said. “He’d drop by their office and present the case hypothetically—”

  “I tried that today with Goldhagen. She wouldn’t go for it.”

  “All the people he hired did. He would describe the murder, straight police report kind of stuff. The blood and guts and the premeditation and planning. The psychologist would lean back in his chair and stroke his pasty chin and say, ‘I don’t see anything there. That seems awfully cold-blooded. Not much chance of finding any mitigation. I’m not sure I’m in a position to assist you.’

  “Then Hamlin would tell him that the defendant’s mother was a dope addict, that he was abused as a kid, that his father ran off when he was two, that he got beat on the head when he was six, that he was molested by this uncle when he was ten—that kind of thing. Then the psychologist would lean forward again, furrow his brow, and say, ‘I think I was mistaken. Clearly, this is not the sort of defendant the death penalty was enacted for.’ ”

  “I thought shrinks were supposed to see through those kinds of games,” Donnally said, “not get self-justifications out of them.”

  “All three I spoke to who’d worked for Hamlin described having to be convinced to get involved in the case, and none of them realized they were all telling the same story and confessing to the same rationalization.”

  Jamie stuck a bookmark in her place and folded Lemmie’s novel closed. Donnally took this as a sign she was about to hit the punch line.

  “Hamlin hired one of them in a rape-murder case down in San Jose. It happened about two years ago. The defendant stalked the victim for months. At her home, at her office, even at the grocery store. She got a restraining order and the police arrested him twice for violating it. The defendant’s parents were Silicon Valley, new-money types. They retained Hamlin with only one instruction. It was okay to lose in the guilt phase, they didn’t care whether he got convicted of the crime, but it was a must-win at penalty phase. They weren’t going to have a kid of theirs on death row and have the case coming up and coming up in the press over the next twenty years.”

  “I take it that it wasn’t just the victim’s family who wanted what people all call closure, but the defendant’s.”

  Donnally hated to say the word. Closure was the concept of choice for death penalty supporters. It seemed to him minds were more like windows than doors, and a victim’s family watching the execution of her murderer through the green room glass couldn’t thereafter shut in, or shut out, the past.

  Janie nodded. “Exactly. The case finally got
to trial about four months ago. Hamlin used the guilt phase as a long sentencing hearing. He didn’t argue about the facts of the crime, only used it to set up the penalty phase. He didn’t object to anything the DA wanted to use in evidence; even made himself look incompetent by seeming to stumble into letting the DA’s own witnesses bring in crazy stuff the defendant did that the DA hadn’t known about.”

  “And the DA didn’t see it coming.”

  “Nope. By the time the jury was done finding him guilty, they were primed for the psychologist’s testimony and he wove together everything into the story Hamlin wanted to tell.”

  “And the jury bought it.”

  “Back in an hour with a life-without-parole sentence. The psychologist told me he foolishly showed up to hear the verdict and needed the bailiffs to escort him to his car afterwards. The victim’s father and brother tried to fight their way through the phalanx of officers in order to get to him.”

  “Did they bother him later?”

  “A few calls and threatening notes. He got a restraining order, but he got one last call a month afterwards. A woman’s voice saying that it wasn’t over and he better watch his back.”

  “What about—”

  “And that Hamlin better watch his, too.”

  Chapter 33

  Reaching for the ringing cell phone by the bedside, Donnally felt like he was fighting his way to the surface of a murky lake under a moonlit sky, except the moon was his screen. He looked at the time: 5 A.M.

  “What were you doing outside of Frank Lange’s house last night?”

  It was Ramon Navarro and he hadn’t waited for Donnally to say hello.

  Donnally walked into the hallway and closed the door behind him.

  “Making a dry run, it turns out. I was hoping to talk to him, but he had a party going on.”

  “Talk to him about what?”

  “Perjury he committed in a case.”

  “That may have led someone to kill Hamlin?”

  “I don’t know.”

  “Then what got you started—”