Felony Murder Rule

by Sheldon Siegel

  “I was afraid you would think I was looking for money or attention. I’m sorry.”

  “Not as sorry as I am. My parents died without knowing what happened to Tommy.”

  She clenched her fists. “I came here illegally. I was scared of being deported.”

  “I can have your immigration file re-opened.”

  “I had to take a chance. My son needs a lawyer. I didn’t know where else to turn.”

  “How did you know that I’m Tommy’s brother?”

  “My uncle knew your name. Your brother told him that if he made it to the U.S. and got into trouble, he should try to find you.”

  “I became a lawyer after Tommy died.”

  “He said that you’re really smart.”

  Not that smart. “Are you a U.S. citizen?”

  “Yes. I became a citizen after I married Thomas’s father.”

  “How old were you when you got married?”

  “Seventeen. My husband was a Vietnamese-American named Danny Nguyen. He was born here. Danny died in a motorcycle accident when Thomas was a baby.”

  We could verify that part of her story. “I’m going to ask you some questions. If any of your answers are wrong, your son isn’t the only one who will need a lawyer.” I started with an easy one. “What was my brother’s full name?”

  “Thomas James Charles Daley, Jr.”

  Correct. “When was he born?”

  “November 25, 1953, at St. Francis Hospital.”

  Two for two. “Where did he go to school?”

  “Grammar school at St. Peter’s. High school at St. Ignatius. College at Cal. He was the starting quarterback before he joined the Marines.”

  “What number did he wear at Cal?”

  “Nine.”

  She’d done some homework. “What were my parents’ names?”

  “Thomas James Charles Daley, Sr. and Margaret Murphy Daley. Your father was a police officer. Your mother was a homemaker. You have a younger brother named Peter and a younger sister named Mary. Pete used to be a cop. Now he’s a private investigator. Mary is a teacher in L.A.”

  She could have gotten that much from Google or a PI, although it seemed unlikely that she could have afforded one. I upped the ante. “My brother had some distinctive physical features.”

  “He had birthmarks on his right knee in the shape of a square. He had a scar below his left ear where he accidentally hit himself with a hammer when he was a kid. The pinky on his left hand popped in and out from a football injury.”

  All correct. “He had a tattoo.”

  “He had the letters “S” and “I” on his left ankle. They were the initials of his high school, St. Ignatius. He was afraid to tell your parents.”

  All true. In 1970, it was unthinkable for the altar-boy son of a San Francisco cop to have a tattoo. Tommy did it on a dare when he’d pounded a six-pack of Buds after S.I. had won the city football championship. He showed it to Pete and me, then swore us to secrecy. As far as I knew, my mom and dad never found out—or they never mentioned it. “My brother was an all-city quarterback at S.I. and the starter at Cal. A lot was written about him.”

  “I knew him.”

  “Prove it.”

  She reached inside her soiled backpack and took out a scuffed leather box. She set it on my desk, opened it, and removed a gray medallion about the size of a quarter. “My uncle gave this to me when I turned fifteen.”

  I recognized the Vietnam-era dog tag. The first two lines read, “Daley, Thomas J.C.” The third line had his social security number. The fourth said he had Type A+ blood. The fifth confirmed that he was Catholic. The information was accurate.

  I eyed her suspiciously. “You can get replicas on the Internet.”

  “Show it to an expert.” She took out a manila envelope from her backpack and handed it to me. Inside I found a faded black-and-white photo. “It’s the only picture I have. I made copies. You can borrow this one and have it tested, but I want it back.”

  Tommy looked more like our father than the athletic twenty-year-old whose memory was frozen in my mind. His hair was thinner, eyes hollow, face drawn. His body was emaciated, and his right arm—his golden throwing arm—hung limply at his side. His smile hadn’t changed. He was standing next to a woman who looked like a younger version of Melinda. Tommy’s shirt was off. He was holding a baby in his left arm.

  “Where did you get this?” I asked.

  “My uncle found a Polaroid camera in an abandoned American base.”

  I was sweating. “When was this taken?”

  “A few weeks after I was born.” She pointed at the woman in the picture. “That’s my mother.” Her finger moved over to the baby. “And that’s me.”

  “You’re saying—,”

  “Tommy Daley was my father.”

  3

  “I NEED TO SEE YOU IN MY OFFICE”

  The co-head of the Felony Division stood in my doorway, arms folded. Rosita Carmela Fernandez’s cobalt eyes lit up as her full lips formed the inquisitive half smile that I still found so seductive two decades after we’d met in the old P.D.’s Office and eighteen years since we’d divorced. Her straight black hair used to cascade halfway down her back. A couple of months earlier, she’d had it shortened into a softer look.

  She was fluent in Spanish, but the Mission District native spoke English without an accent. “I’m due in a meeting in ten minutes. You need to talk?”

  “I do.” I introduced Melinda and explained that she was Thomas Nguyen’s mother. “Her son fired Sandy Tran last night. He wants a P.D.”

  “Happens all the time. Sandy knows the drill. She’ll file papers to ensure an orderly transition. In the meantime, you know our procedures.”

  Rosie started backing out the door, but I stopped her. “There are extenuating circumstances.”

  “There always are.” She pushed out the impatient sigh that I’d heard the first time when I was a rookie P.D. and she was a rising star who had just been promoted to the Felony Division. She was spinning out of a bad marriage, and I was flattered that she noticed me. She mentored me on the Byzantine workings of the San Francisco criminal justice system. In her spare time, she provided remedial training on subjects that weren’t addressed at the seminary. We’d covered a lot of territory since then: marriage, birth of our daughter, divorce, formation of our own law firm, her battle with breast cancer, birth of our son, and our return to the P.D.’s Office. Another potential change was in the air. A couple of months earlier, our boss had announced his retirement, and Rosie decided to run for P.D. The election was six weeks away. If you believed the polls, she was favored to become San Francisco’s first Latina Public Defender.

  She took a seat in the swivel chair opposite my desk and spoke to Melinda. “Mr. Daley will set up an appointment with one of our attorneys to discuss intake. Assuming your son qualifies, that lawyer will probably handle your son’s case. Given the timing, we’ll put this on a fast track.”

  “I want Mr. Daley to handle Thomas’s case.”

  “He doesn’t do trial work anymore.” Rosie adjusted the sleeve of her Armani Collezioni jacket. She’d upgraded her wardrobe for the campaign. “If I were inclined to give your son some free legal advice—which I’m not—I would tell him to reconsider. Sandy Tran is an excellent attorney. It’s a bad idea to switch lawyers a few days before trial.”

  “Mr. Daley told me the same thing.”

  “Mr. Daley is also a very good lawyer.”

  Melinda turned to me, eyes pleading.

  I spoke to Rosie. “Melinda just informed me that she’s Tommy’s daughter.”

  Her eyes narrowed. “Your brother?”

  “Yes.”

  “Is he… alive?”

  “No. She says he died in Vietnam in 1978.”

  “He survived the plane crash?”

  “Melinda says he ejected and landed near the village where she was born. Her mother and grandmother helped him recover.”

  “Why didn’t he contac
t you after the war?”

  “He couldn’t.”

  Rosie took a moment to process the information. She pointed a finger at Melinda. “You’re saying that you’re Mike’s niece and your son is Tommy’s grandson?”

  “Yes.”

  “Prove it.”

  Melinda handed her the photo and the dog tag.

  Rosie studied them for a moment before she turned to me. “You’re sure it’s Tommy?”

  “Yes.”

  She turned to Melinda and put on her lawyer face. “How do we know these are real?”

  “I’ll do whatever it takes to prove it.”

  “Are you willing to take a lie detector test and give us a DNA sample?”

  “Yes.”

  “Let’s start with your birth certificate.”

  “I don’t have one. I was born in 1976 in a village called Cib Tran Quang.” Melinda said it was fifty miles southeast of Haiphong near the Gulf of Tonkin. “There aren’t any records.” She repeated her story that her uncle had smuggled her into the U.S. in 1984.

  “That was a long time ago. Why didn’t you contact Mike?”

  “I came here illegally. I was afraid of being deported.”

  “Seems you aren’t afraid anymore.”

  “My son needs help. I’ve been a U.S. citizen since 1995.”

  “And it’s just a coincidence that you’re claiming to be the niece of the co-head of the Felony Division of the Public Defender’s Office four days before your son is going on trial?”

  “Yes.” Melinda turned to me. “I understand why you won’t help me, but I was hoping you’d help your brother’s grandson.”

  “I don’t know for sure that he is.”

  “I expect you to verify everything I’ve told you.”

  I exchanged a glance with Rosie, who was fingering the yellowed Polaroid. She grabbed a legal pad and took out a Bic pen. She rolled up her sleeves and spoke to Melinda in the tone that she reserved for hostile witnesses, unprepared judges, lazy cops, obnoxious reporters, and me. “What’s your legal name?”

  “Melinda Nguyen.”

  “Date of birth?”

  “1976. My uncle said it was July 14, but I don’t know for sure.”

  “Social security number?”

  Nguyen recited it.

  “Address?”

  “497 Ellis.”

  “Your name wasn’t Melinda Nguyen when you were born.”

  “My birth name was Xuan Ho. I became Melinda Nguyen when I got married.” She filled in the gaps in her biography. Married at seventeen. A mother at eighteen. A widow at nineteen. Tried to make ends meet as a single parent in the Tenderloin. Fought depression, alcohol, drugs, and a debilitating back injury. A stint at a massage parlor ended badly after her boss raped her—a crime she hadn’t reported.

  Rosie listened attentively, interrupting occasionally. “What was your mother’s name?”

  “Lily Ho. She died when I was a baby. My uncle was Lu Ho.”

  “Brothers or sisters?”

  “None. No children besides Thomas.”

  Rosie glanced at me.

  “Melinda, what do you remember about my brother?”

  “Little things. He was tall. And handsome. And kind. He spoke a little Vietnamese. He had a big smile. He had trouble walking. He could barely lift his right arm. He smelled like cigarettes.” There were tears in her eyes. “Will you represent your great-nephew? Please?”

  “We need to make some calls.”

  Her voice cracked. “I know where my father and mother are buried. I don’t know if there are markers, but I can tell you where to look.”

  “You were only two when Tommy died. How can you possibly remember?”

  “My uncle and I visited their graves every Sunday.”

  “Tell me now.”

  “Not unless you handle Thomas’s case.”

  “We don’t trade legal services for information.”

  The stuffy office filled with an intense silence. Finally, my ex-wife, former law partner, and soon-to-be Public Defender of San Francisco spoke to the woman purporting to be my niece in her best closing-argument voice. “Here’s how we’re going to proceed. We need to confirm every detail that you just told us. If anything is untrue, we’ll have you arrested. Understood?”

  “Yes.”

  “You’re going to write down the exact location where Mike’s brother is buried right now.” Rosie’s lips turned down. “Last chance. Do you want to change your story?”

  “No.”

  “Good. If it checks out, and if we determine that your son is eligible, and if a judge orders us to represent him, then we’ll talk about staffing.”

  “I want Mr. Daley to handle Thomas’s trial.”

  “This isn’t a negotiation.” Rosie turned to me. “Please take Ms. Nguyen to see an attorney about intake. Then I need to see you in my office.”

  4

  “YOU CAN’T BE SERIOUS”

  Rosie took a sip of coffee and set the white mug on her desk. “You can’t be serious.”

  I tried not to sound defensive. “I’m just doing my job.”

  “We have procedures.”

  “Which I’m following. Melinda is talking to one of our attorneys. If her son qualifies and the judge approves—which appears likely—we’ll assign somebody to handle it.”

  “Our procedures provide that the intake attorney handles the case.”

  It was true. Our office operated on a system of “vertical representation,” which meant that the same lawyer usually handled intake, arraignment, preliminary hearing, trial, and research. “Not in all cases,” I said. “The circumstances are unusual because of the timing.”

  “You want to do it yourself.”

  Yes, I do. “We’ll see.”

  “Yeah, right.”

  She knew me better than anybody on Planet Earth. I sat down on the armchair opposite her desk. Rosie’s office was the same size as mine, but it felt more spacious. She was a better housekeeper and she’d bought her own furniture. Her files were stacked neatly on the credenza next to her laptop. A campaign poster was propped against the wall.

  I pointed at the framed Little League picture of our ten-year-old son, Tommy, who looked like his namesake uncle. “All good in fifth grade?”

  “Status quo. He’s still spending a little too much time playing video games, but he likes his teacher and his grades are solid.”

  “He has a game on Saturday.” Tommy had inherited his uncle’s throwing arm. He was making me the smartest Little League coach in Marin County. “Can you make it?”

  “I have a fundraiser.”

  “Another time.” Her schedule had been packed before she’d decided to run for P.D. Nowadays, her evenings and weekends were crammed with political events. I understood the necessity, and I tried not to be resentful. It wasn’t as if we were married. I pointed at the high school graduation photo of our eighteen-year-old daughter, Grace, a freshman at USC, who was a dead ringer in appearance and temperament for her mother. “Heard anything?”

  “Not much. I check her Facebook page every day, but I don’t post. I can’t deal with the humiliation of being unfriended again. You?”

  “She responds to texts occasionally. You still good to go to Parents’ Weekend?”

  “For now. Do we have to go to the football game? Cal is going to get killed.”

  “Part of the program for an Old Blue like me.”

  Rosie was an alum of San Francisco State and Hastings Law School. I went to Cal for undergrad and law school. We were still trying to wrap our heads around the fact that our daughter had turned down my beloved Golden Bears to go to USC. The mighty Trojans had cushioned the blow by awarding Grace a President’s Scholarship—in essence, a four-year free ride. It wasn’t quite Reggie Bush money, but it helped. As a token of my gratitude, I no longer referred to USC as “The School of the Devil.”

  Rosie returned to the matters at hand. “You really think Melinda is your niece?”

 
“She knew stuff about Tommy.” I told her about the birthmarks and the tattoo.

  “If she’s telling the truth, he died when she was two. Somebody fed her the information.”

  “It must have been her uncle.”

  “We still have to go through the process. We can’t give special treatment to a family member.”

  “It wouldn’t be the first time.”

  “Appearances are important when you’re running for office. How are you planning to verify her story?”

  I held up a sealed evidence bag containing two strands of Melinda’s hair. “We’ll start by doing a DNA test to see if she’s Tommy’s daughter.”

  “You have her DNA.”

  “We have Tommy’s, too. My mother kept a couple of his baby teeth.”

  “The county lab is backed up for weeks.”

  “Pete plays softball with a guy at UCSF who’ll do it today. It isn’t official, but he’s always right. We got a DNA sample from Thomas when he was arrested. I want to make sure he’s Melinda’s son.”

  “And if he is?”

  “I plan to welcome my niece and great-nephew into the family. I will also respectfully request that you appoint me to handle this case.”

  “I need you to run the office. The campaign is sucking up every spare minute.”

  “I’ll do everything I can to help you.”

  “It’s a bad idea to represent family members.”

  “This is no different from the time we represented Angel.”

  Ten years earlier, Rosie’s niece had been accused of bludgeoning her husband to death during a drug- and alcohol-induced rage. The conventional wisdom says you shouldn’t represent relatives. In that case, Fernandez family loyalty trumped the conventional wisdom.

  Rosie wasn’t buying. “We were still in private practice. We got to choose our clients.”

  “We’re going to be appointed to represent Thomas. It’s our job to decide on staffing.”

  “There was no question that Angel was my niece.”

  “I won’t handle this case unless we can prove that Thomas is my great-nephew.”

  “His trial starts on Monday.”

  “We’ll get an extension.”