by Jim Dutton
“Please listen carefully Madame Foreperson. Please tell me how the jury split on the last vote on the two counts. Don’t tell me which of the two numbers went for guilty, or which of the two numbers went for not guilty. Just tell me the numbers.”
“Eight to four on both counts.”
“Do you think, with additional deliberations, there’s a reasonable chance you can reach verdicts on the two counts?”
Madame Foreperson looked around to gauge her fellow jurors. Most nodded their heads in the affirmative. The rest were nonresponsive. “I believe so Your Honor.”
“Okay, we’ll send you back for further deliberations. But before we do, we’ll hear your verdicts on the other counts.” The bailiff had already collected the verdict forms and had given them to the court clerk. The court clerk gave them to Judge Orsini. He spent a few minutes going over the verdicts. “They are all signed and look in order.” He gave them back to the clerk. “Please read the verdicts.”
Nick felt his stomach knot up. Two years of work comes down to this. Most of the jurors smiled when they looked in his and Josh’s direction. Several of the jurors avoided looking at the defendants. That was positive.
The first verdicts read by the clerk concerned the Continuing Criminal Enterprise count, the drug conspiracy count and the money laundering conspiracy count. All of these counts came back guilty as to each of the three defendants. Nick relaxed. He didn’t feel joy, or even vindication, just relief. That meant that the jury would come back with guilty verdicts against each defendant on all of the individual drug distribution and money laundering counts.
The only two counts that Nick had to worry about were the murder conspiracy count and the assault with a deadly weapon count against defendant Rael Trujillo-Sanchez. It didn’t look good. If the jury was hung up on those counts against Lopez where there was more evidence than against Sanchez, they’d probably acquit Sanchez of the counts. Nick was right. The clerk read not guilty verdicts for Sanchez on the counts. Even though Nick expected it, he felt a deep anger rise within him. Those counts were personal. Ana almost died. It was one thing to sell heroin and marijuana, and launder the proceeds, but when the cartel tried to take out a protected witness and almost killed Ana, it was an entirely different matter.
After the verdicts were read, and each juror was polled about the verdicts being their true verdicts, they were excused for further deliberations. Judge Orsini informed the prosecutors and attorney Lipman that if verdicts on the two counts weren’t reached by 11:30 tomorrow, they were all to come back at 11:45, including defendant Lopez, to discuss whether Judge Orsini should declare a hung jury and grant a mistrial on the two counts.
Nick didn’t want a mistrial. It would mean that the two counts against Luis would probably be retried. Although it would likely be just a one month trial, instead of two, both Felicia and Lester would have to be brought back to testify. Nick didn’t know if Felicia could hold up for another trial. The evidence certainly wouldn’t go in as well a second time.
At 11:45 the next morning, they were back in Judge Orsini’s courtroom. Judge Orsini told them, “Still no verdicts. What do you want to do?”
Lipman said, “Can I have a few moments to discuss this with my client?”
“Go ahead.”
A couple of minutes later, Lipman spoke in a surprised tone, “My client insists that we give the jury more time. He says he had nothing to do with the shooting.”
Judge Orsini looked at the prosecutors, “What are your thoughts?”
“Fine by us to give the jury some more time,” responded Nick. Nick was pleasantly surprised by the defendant’s insistence to give the jury more time. He knew that Lipman personally wanted a hung jury and a declaration of a mistrial. This would constitute a “victory” for the defense. Lipman knew that many problems can arise for the prosecution before a retrial. It might never happen. Also, if the jury split ran strongly in favor of the defense, like ten to two, or eleven to one for acquittal, Judge Orsini may not let the prosecution try the case again. It’d be an enormous drain on public resources, especially when the defendant had already been convicted on multiple counts, one being the CCE count that carries a sentence of 20 years to life.
“Okay gentlemen, I expect you back at 2:30. I’ll allow them to deliberate some after lunch, but I want to hear from the jury how deliberations are going at that time.” Judge Orsini then addressed the bailiff, “Will it cause any trouble for the jail staff to bring defendant Lopez back and forth?”
“No, Your Honor. We had the jail pack defendant a bag lunch. We’ll keep him under guard on this floor.”
Nick and Pepe decided to have lunch at the courthouse food court. No sense going back to the office for a couple of hours, only to return. However, Josh had to go back and clean up something on another case.
Pepe and Nick were just finishing up their leisurely lunch of fish tacos and fries, when Pepe noticed several deputy marshals rush out the front door of the courthouse. They were yelling into radios attached to their chests, but Pepe and Nick couldn’t make out what they were saying. Moments later, Nick’s cellphone rang. It was the court clerk. Her voice was trembling, “Judge Orsini needs you here right now.” Nick thought, What in the hell is going on? Did someone have a heart attack?
Nick and Pepe rushed to the elevator and entered the courtroom a couple of minutes later. Judge Orsini looked like all the blood had been drained from his face. Nick asked, “Are you all right, Your Honor?”
“I’m fine, but defendant Lopez has escaped!”
“What? How could that happen?!” yelled Nick.
“That’s what I want to know. Lipman is on his way. He was down the street having lunch. My bailiff will be here shortly to give us a preliminary report.”
Lipman and the bailiff came into the court at the same time. Nick told him that his client had escaped and the bailiff was going to fill them in. Lipman look shocked. He muttered, “That dumb, arrogant son-of-a-bitch.”
Nick replied, “Finally, we agree on something.”
The bailiff told them that Lopez had been kept in the courtroom next door because it was convenient and wasn’t being used. They took off one of his handcuffs so he could eat lunch and cuffed it to a wooded strut. He was eating his baloney sandwich when his guard stepped out of the courtroom to take a phone call. Five minutes later, he stepped back in and Lopez was gone. One cuff was still attached to the wooded strut, the other was empty. The inside of the empty cuff had some sort of lubricant on it. It looked like mayonnaise. An all points bulletin had already been issued. Marshals were interviewing all personnel at the various exits. A marshal at the rear exit of the courthouse remembered a guy wearing a dark suit, fitting Lopez’ description, walking past him and out the back, courthouse door. Lopez was wearing a dark suit to be presentable to the jury. The marshal thought he was another attorney. Attorneys and law enforcement were the only people who were supposed to know about the rear exit.
Judge Orsini in a controlled, commanding voice told his bailiff, “I want Lopez found. Use whatever resources are needed to bring him in.” He then turned to Nick and Lipman. “We’ll allow the jury to continue their deliberations. Maybe this can be salvaged. If Defendant Lopez is captured by the end of the afternoon, the jury doesn’t need to know it ever happened. Be within 20 minutes reach.”
Pepe and Nick went to Pepe’s car. Pepe had driven Nick to the courthouse. Nick called Rona to tell her what was happening and to fill everyone else in. Nick turned to Pepe, “Let’s see if we can track this baloney sandwich loving asshole down.”
“I’m with you, boss man. Where to?
“Where would I go if I were him? He hasn’t any money. I think he’d go the one place close where he has someone he can trust, someone with money. That one person and place is his cousin Jaime at the Purple Flamingo restaurant under the Coronado Bridge. It’s only a couple miles from here. He has
about a 15 to 20 minute head start on us. Let’s go check it out.”
“Sounds good. But this could get dicey. You’re an old man with bad knees. Are you sure you’re ready to chase him down.”
“Shut up, you upstart. I got my Glock in my overcoat in the back seat.”
“That’s great. But do you remember how to use it?”
“I may have creaky knees, but I go to the range every month, except for the last few.”
In ten minutes, they were parked down the street from the restaurant. Pepe said, “I’ll go through the front of the restaurant, you go around to the alley and cover the back door. If you see him, try to get him to stop and yell for me.”
Nick headed for the alley. It was just wide enough for a small delivery truck to get through. There were a number of garbage cans. The back sides of three-story buildings rose up on either side. The sun was blocked, it was dark and the garbage stank. Nick could feel adrenalin kick in. Nick thought, Just my luck, with my heightened sense of smell, the stench is overwhelming. There was nobody around. Nick stood behind a large garbage can by the restaurant’s back door. A few moments later, he saw a slender man, wearing dark clothes, turn into the far end of the alley. The man was walking rapidly towards where Nick was crouched behind the can. As the man got within ten feet of the back door, Nick stepped out, raised his arm and pointed his Glock. “Hello, Luis. Stopping in for some Mexican food on the house?”
“Well, if it isn’t Mr. Prosecutor. What a surprise.” Luis saw the angry glare in Nick’s eyes as Nick pointed the gun at the center mass of his body. Luis stopped and raised his arms over his head. “You got me. You wouldn’t care to have lunch before you take me in. Jaime has great homemade tamales and serves savory Cadillac margaritas. Of course, on the rocks, not blended.”
While Lopez was spouting off, acting cool, Nick thought about what he had done in the case. The ultimate scum, a sociopath. Not caring what he took, who he abused or who he killed. He was as responsible for shooting Ana as if he had pulled the trigger. It might as well have been him who launched the rockets into the Topeka safe house, murdering Deputy Marshal Perkins, and again exposing Ana to deadly force. He also probably had something to do with Nacho’s murder and Pepe’s kidnapping. This scum was going to walk on the counts that mattered the most, the assault and the murder conspiracy.
Lopez’ face took on a worried expression. “Hey, what gives? What’s with the brooding silence? Take me in, you’re the good guy.”
“That’s where you’re wrong. I’m not a good guy today.” Nick fired his gun, a double tap, two bullets entered Luis’ heart. He crumpled to the ground, in the stench. Hearing gunfire, Pepe yelled for everybody to stay inside the restaurant before he burst out the back door. With a glance, Pepe took it all in. He shouted for Nick to put down his gun as Pepe knelt at Lopez’ side. Pepe put on the Teflon evidence gloves he had in his pocket and removed a second gun he had strapped to his inner right leg, just above his ankle. It was a snub nosed, 38 caliber pistol, loaded. He wiped the gun down with his handkerchief. He put the 38 in Lopez’ right hand. Pepe then stood up and went over to Nick.
“Calm down Nick. I know you’ve never shot anyone before. I’ll get you through this. Just listen to me. I put my throw down gun in Lopez’ hand. It’ll only have his prints. You saw him walk down the alley. You told him to stop. He went for his gun. You had no choice. You had to shoot him. It was self-defense.”
“No, no, Pepe. That isn’t what happened. I had to kill the bastard. He had to be stopped. He had gotten away with so much, Ana almost died. And Felicia and Lester would never be safe until he was dead.”
“You’re too good of a person to go down for shooting scum. Look at it as a mercy killing for society. Remember! You had to shoot him. He had a gun. It was self-defense.”
Something clicked in Nick’s mind. He came back to being a clear-thinking attorney. “He better not be left handed.”
“Boss, you know me better than that. I never take a chance. I watched him at trial writing notes with his right hand. I’m going to call this in. We’ll wait right here for the police. Touch nothing, do nothing.”
Five minutes later, San Diego police were on the scene. Everything was cordoned off. They wanted Nick and Pepe to come down to the central station on Broadway for questioning. They allowed Pepe to drive his car. He ditched his ankle holster in the trunk. Nick was politely escorted to the station in a police car.
Nick held up well under the questioning at the station. Nick told them that he and Pepe decided to check out the Purple Flamingo, knowing that Lopez’s cousin owned the place. Lopez came down the alley. Nick raised his gun and told him to stop. Lopez continued to walk towards him and pulled a gun. Nick had to shoot. It was self-defense.
Pepe waited until they had finished questioning Nick. Nick got into Pepe’s car. As they were driving away, Pepe looked at Nick with compassion, and said, in a soft voice, “I don’t know if you want to hear this right now. I just spoke to Josh.”
“Tell me. What did he say?”
“The bailiff told Josh that in the early afternoon the jury reached verdicts on the two counts and the foreperson signed the forms. Because of the escape, the verdicts were never presented to the court. The jury came back guilty on both counts against Lopez, the murder conspiracy and the assault, with the great bodily injury enhancement.”
“Oh shit! He wasn’t going to walk on those counts.”
“Are you okay Nick? How do you feel?”
“When I pulled the trigger, I was sure Lopez was going to get off on those counts.” With a weak smile, Nick said, “I guess you never know what a jury is going to do. I’m going to call Ana. I just want to see her. Can you drop me off at her condo?”
“Sure.”
Nick dialed Ana’s number. “You’re home. I need you.” Nick closed his cellphone and turned to Pepe. “She’s home.”
EPILOGUE
Nick was reveling in the blueberry pancakes that Ana had prepared for him. He couldn’t remember when he had ever had breakfast in bed. A steaming cup of piñon nut coffee from New Mexico and freshly squeezed orange juice topped off the decadent eating experience. Ana dropped the front pages of the Union Tribune and the Los Angeles Times on his lap. “Don’t get used to this service. It may never happen again. But you had a big day yesterday. It’s not often a person gets to do everyone a big favor and in self-defense.”
Nick hadn’t told Ana the true story of the shooting. He didn’t want to burden Ana, or anyone else over it. Also, for Pepe’s sake he couldn’t speak about it. And to be honest, for his sake. Nick didn’t want to be prosecuted. He didn’t know the exact impact his shooting of Lopez would have on his psyche, but he did know, one way or another, he’d pay a steep price. It was a secret he and Pepe would keep to their deaths. To forestall further introspection, Nick asked, “So what’s in the news?”
“What do you think is in the news? You are. Front page stories. They’re calling you a hero. One headline, Prosecutor Pursues Justice Inside and Outside the Courtroom. Another, Modern Day Wyatt Earp Gets His Man. The article compares what happened in the alley to the shoot out at the O.K. Corral. There’s an editorial column about how few heroes we have. It ends, Finally, a person stands up for our safety.”
“I don’t feel like a hero. The only aspect comparable to the O.K. Corral was the stench. I imagine there was a lot of horse shit at the corral.”
“Stench or no stench, you better get used to being a hero.”
Ana’s cellphone rang in the kitchen. “I better get that Nick.”
“Go ahead, mine has been turned off since I called you after leaving the police station. I didn’t want to speak to anyone except you.”
“Nick, it’s Pepe. He needs to talk to you.” Ana handed Nick the phone.
“What’s up Pepe?”
“Sorry to bother you, but things are crazy around here. Th
e Attorney General has been calling everyone since last evening trying to find you. I played dumb as long as I could. But the pressure is really on. Will you call him?”
“Yeah. Even though it may ruin the rest of my breakfast.”
Nick got his cellphone out of his jacket and dialed the General. “Hello General. I heard you’re looking for me. It’s Nick Drummond.”
“Nick, where have you been? I’ve been worried about you.”
“I had my cellphone turned off. I had a pretty traumatic day. Wait a minute. You’re worried about me? Is this the same Attorney General who fired me a couple of weeks back?”
“That’s all water under the bridge. I’ve moved on. In fact, I want to have a press conference with you. Everyone is calling you a hero. The public deserves to hear from you. It’ll be great for our office.”
“General, I am sure it’d be great for you. But, as I said, it was quite traumatic. I’m so tired. I need bed rest. I’ll have to get back to you. Good-bye General.”
MY THANKS AND GRATITUDE TO
My wife, Heidi Weisbaum, for her assistance and support; and
My colleagues and friends, Bill Salisbury, Barry Klein,
Bonnie Friedman, Gary Mitchell, Dan Voge, and
Anita DuPratt, for their valuable input; and
My colleague and friend, Nona Seaman, and my sons,
Nick and Josh, for their technical assistance.