Felony Murder Rule

by Sheldon Siegel

  “Don’t be so sure.”

  “Then we still have four days to prepare. We used to do it all the time.”

  “Not for a murder case. We aren’t as young as we used to be.”

  “Sleep is overrated. And we aren’t that old, Rosie.”

  “A girl with purple hair and a nose ring offered me her seat on a Muni bus last week.”

  “It doesn’t mean you’re old. The kid had good manners.”

  “We have a policy against representing family members.”

  “We’ll make an exception. At the very least, I’m going to talk to Thomas. There’s no rule against conducting a preliminary interview with a potential client.”

  “It violates our protocol.”

  “For God’s sake, Rosie. You sound like a bureaucrat.”

  “I am a bureaucrat, Mike.” She grinned. “It’s only going to get worse if I win the election.”

  “When you win.” I returned her smile. “And you’ll never be one of them.”

  “I hope you’re right. Are you going to see Thomas now?”

  “I want to talk to Pete first.”

  5

  “HE LOOKED JUST LIKE YOUR FATHER”

  The heavyset bartender’s pale blue eyes twinkled as he tossed a soiled dishtowel over his shoulder. “What’ll it be, lad?”

  “Just coffee, Big John. Heard from Pete?”

  “On his way, Mikey.”

  My uncle, John Dunleavy, was born eighty-two years earlier at St. Francis Hospital. According to family lore, he was dubbed “Big John” when he weighed in at eleven pounds.

  “You okay, Mikey?” He’d never been outside the U.S., but he could summon an Irish brogue at will.

  “I’m fine.”

  “You look like you saw a ghost.” He arched a bushy gray eyebrow. “Never lie to a barkeep—especially your favorite uncle.”

  “I’m fine,” I repeated, “and you’re my only uncle.”

  His jowls shook as his face transformed into a whimsical smile. He grabbed a chipped mug from the shelf behind the weathered Monterey pine bar that my dad had helped him build more than a half century earlier. Smoking was no longer permitted inside the neighborhood watering hole, but the smell of cigarettes was baked into the paneled walls of the narrow room in a stucco building on Irving, three blocks from the house where I’d grown up in the Sunset. Big John’s grandson, Joey, now handled the day-to-day operations and lugged the kegs up from the basement. My uncle still showed up six days a week to brew the coffee and make his not-so-secret batter for the fish-and-chips. During the daytime, Dunleavy’s had become a gathering spot for the community’s seniors. It was a quintessential San Francisco experience to watch Big John serve tea and tell bawdy jokes to a dozen septuagenarian Asian-American men and women sitting in booths decorated with faded photos of Willie Mays and Juan Marichal.

  My uncle’s expression turned serious as he poured me a cup of scalding Folger’s. If you wanted Starbucks, you had to go down the street. “What brings you here at this hour, lad?”

  “Family business.”

  “A little coy for my taste, Mikey. Everybody okay at home? My darlin’ great-niece still happy at USC? My little great-nephew still striking out everybody in Marin County?”

  “They’re fine, Big John.”

  “Glad to hear it. And how about our soon-to-be Public Defender? You still spending a couple nights a week at Rosie’s house?”

  “It makes things easier with Tommy—especially during the campaign.”

  Rosie’s house was two blocks from my apartment in the leafy enclave of Larkspur, about ten miles north of the Golden Gate Bridge. After Rosie finished treatments for breast cancer a decade earlier, we became a permanent—albeit unmarried—couple. When Grace was in high school, I started spending two nights a week at Rosie’s house. The demilitarized zone between our respective residences became essential for our sanity.

  Big John gave me a sly grin. “Why don’t you two give up this ridiculous charade and get married again?”

  “We weren’t good at being married.”

  “You’re older and wiser now, Mikey.”

  “Definitely older. Not sure about wiser.”

  “My sources tell me that Rosie is going to win the election.”

  “They’re usually right.”

  “They’re always right, lad.” He gestured with the meaty hand that hauled in touchdowns when he was an all-city tight end at St. Ignatius six decades earlier. “Come November, she’ll be your boss. Gonna be okay with that?”

  “Of course.” I took a sip of bitter coffee and smiled. “I’ve been working for Rosie for twenty years.”

  The gregarious bartender let out a throaty chuckle. Then the back door swung open and a rare bolt of sunlight flashed across the autographed photo of Willie McCovey above the pool table. My younger brother strode in purposefully, gave our uncle a hug, and sat down on the stool next to mine. Pete was a stockier version of the standard Daley family model. His full head of hair and thick mustache used to be a half-shade darker than mine, but now both were silver. The bags under his eyes were more pronounced than usual. Without a word, Big John poured him a cup of black coffee.

  “Cheating wife?” I asked Pete.

  “Cheating husband. Pays the bills, Mick.” His voice was raspier than usual as we exchanged abbreviated pleasantries. He reported that his wife and six-year-old daughter were fine. He took off his bomber jacket, set his iPhone on the bar, and scratched the stubble on his chin. “You said it was an emergency.”

  “You heard about the Thomas Nguyen case?”

  “Yeah. Vietnamese kid at a liquor store in the Tenderloin. The shopkeeper popped his accomplice. Felony murder. Slam dunk for the D.A.”

  “The trial starts Monday. Nguyen fired Sandy Tran last night. Our office is going to pick up the case.”

  “Lucky you. I hope you aren’t looking for help. My plate’s full.”

  “Nguyen’s mother came to see me this morning. She wants me to handle the trial.”

  “I thought you weren’t trying cases.”

  “I’m not.”

  My younger brother scowled. “I’m busy, Mick. What’s this about?”

  “I need to show you something.” I put Tommy’s photo and dog tag on the bar. Pete and Big John almost bumped heads as they leaned forward to look at them.

  My uncle put on the reading glasses hanging from a Giants lanyard around his neck. The color drained from his face as he studied the faded Polaroid. “My God. He looked just like your father. Tommy had aged twenty years.”

  “You sure it’s Tommy?”

  “I was in the waiting room when he was born. When was this taken?”

  “Two years after his plane went down. Nguyen’s mother said that he ejected and landed in a village in North Vietnam.”

  My uncle swallowed. “Is he… still… alive?”

  “No. Nguyen’s mother said he died in ’78.”

  “Where was the U.S. Army?”

  “They couldn’t find him. Melinda claimed her mother and grandmother nursed him back to health. He died of jungle fever.”

  Pete was tugging furiously at his mustache. “Why didn’t he contact us?”

  “He couldn’t. It was a remote village.”

  “Can Nguyen’s mother prove any of this?”

  “That’s where you come in.”

  My mom always said that Pete had gone to the police academy just to show our dad how tough he was. Pop knew how to bend the rules without getting caught. He retired on his fifty-fifth birthday and died of lung cancer two years later. Pete bent the rules, too, but he always got caught. Things came to a head when he and his partner at Mission Station used a little too much muscle breaking up a gang fight on Capp Street. The nephew of a member of the Board of Supervisors ended up with a concussion. The city caved and threw Pete and his partner under a bus when they settled the inevitable lawsuit. Pete was still bitter about it.

  I fingered the dog tag. “She gave me the
location of Tommy’s grave.”

  “How’d she know? You said she was just two when Tommy died.”

  “Her uncle showed her the spot.”

  “Where’s he?”

  “Dead.”

  “Figures. You really think you’re going to find something?”

  “I don’t know. Got any contacts in Vietnam?”

  “The Peter Daley Investigative Agency has operatives everywhere, Mick.” He pointed at the Polaroid. “Where did Nguyen’s mother get this picture?”

  “From her uncle.” I filled in the details. “She says she’s Tommy’s daughter. If she’s telling the truth, it makes us her uncles.”

  “And it makes Thomas Nguyen our great-nephew and Tommy’s grandson.” Pete shot a skeptical glance at Big John, who responded in kind.

  My uncle removed the towel from his shoulder and pretended to wipe a non-existent spill. The phony Irish lilt disappeared. “She telling you the truth, Mikey?”

  “I’m not sure. She knew stuff about Tommy.” I told them about the birthmarks and the tattoo.

  Big John clutched his reading glasses. “Where has this woman been for the past forty years? Your mom and dad were never the same after Tommy died. At the very least, we might have given Tommy a proper burial.”

  “Maybe we’ll have a chance to do it now.”

  Pete wasn’t convinced. “This picture could have been made with Photoshop. The dog tag could be fake.”

  “That’s why I called you first.”

  “I can verify whether the photo was taken with a Polaroid. I know a guy who can do a chemical analysis to tell us roughly when the film was manufactured.”

  “That’s a start.”

  “What’s your gut, Mick? You think she’s legit?”

  “I took her through her story three times. She didn’t change a single detail.”

  “She could be a really good con artist.”

  His instincts were as finely tuned as Rosie’s. “How soon can you check out her story?”

  “Gimme a couple of hours to talk to my sources at ICE. It may take a day or two to get somebody on the ground in Vietnam.”

  I handed him a sealed evidence bag. “This is a lock of Melinda’s hair. I need your guy at UCSF to compare it against Tommy’s baby teeth to see if she’s his daughter.” I gave him a card with a swab of Thomas Nguyen’s saliva. “And I need him to tell us if Thomas is Melinda’s son.”

  “I’ll have it by the end of the day. Where you going now, Mick?”

  “To meet my new client.”

  6

  “I WAS JUST SITTING IN THE CAR”

  Thomas Nguyen’s hollow eyes stared at me across a metal table in an airless interview room inside the Stalinesque San Francisco County Jail #2, which had been shoe-horned between the old Hall of Justice and the 101 Freeway in the nineties. The wags at SFPD dubbed the monstrosity at Seventh and Bryant the “Glamour Slammer.” While he didn’t appear agitated or violent, there was no way that I could have stopped him if he had leapt across the table to come after me.

  The sullen young man spoke to me in a monotone. “You really my great-uncle?”

  “Don’t know. You really my great-nephew?”

  “That’s what my mom tells me.”

  “She telling the truth?”

  “Don’t know.”

  “Neither do I.” I couldn’t tell if the attitude came from teenage angst, genuine indifference, or the fact that he had spent nine months in jail. He wouldn’t be a sympathetic witness if we had to put him on the stand. “Keep your voice down. They’re listening.”

  “I got nothing to hide.”

  “Yes, you do.”

  His soft features were similar to his mother’s, but his broad shoulders and blue eyes hinted at the possibility of Daley genes.

  “Can you get me out of here?” he asked.

  That was always the first question. “No.”

  His eyes darted over my shoulder. “You my lawyer?”

  “Not yet.”

  “Then why are you here?”

  I wanted to see if he looked like Tommy. “Your mother requested a Public Defender.”

  “You gonna handle my case?”

  “If you qualify, our office will represent you. We’ll decide on staffing later.”

  He finally looked me in the eye. “What if we can prove that you’re my great-uncle?”

  “I’ll consult with my superiors. In the meantime, if you want me to consider the possibility, you need to tell me the truth about everything. It’s my only absolute rule: you lie, you die. Understood?”

  “Yeah.” He leaned forward. “Where do you want to start?”

  “Why did you fire Sandy Tran?”

  “She wanted me to take a plea for second degree murder.”

  “Might have been the best deal you were going to get.”

  “I was just sitting in the car.”

  “That’s enough to get you convicted of felony murder.”

  “I’m not going to trial with a lawyer who thinks I’m guilty.”

  Tommy might have said the same thing. “What were you doing in Tho’s car?”

  “We were going to a party in Daly City.”

  “How well did you know him?”

  “Pretty well. He was a couple of years ahead of me at Galileo.”

  “Why did he drop out of school?”

  “He didn’t quit. They threw him out for selling weed. He needed the money. His dad left when he was a baby. His mom is addicted to crystal meth. She lives in a shelter.”

  “Where did he live?”

  “With his mother when she had a room. Sometimes on the street. He stayed with us a couple of times.”

  “Was he ever arrested?”

  “Once or twice. He never did any time.”

  “You got the name of his supplier?”

  “We never talked about that stuff.”

  “Work with me, Thomas. The D.A. will be more accommodating if you give her something.”

  “I got nothing.”

  This wasn’t helpful. Then again, it was never ideal to try to garner favor from the prosecutors by having your client snitch. The D.A. might not believe him. More important, it could get your client killed. “You lived with your mom?”

  “Yeah.”

  “How far was the liquor store from your apartment?”

  “Couple blocks.”

  “How often did you go to the liquor store?”

  “Every once in a while.”

  “What about Tho?”

  “Don’t know.”

  Short answers were unsatisfying. “Did either of you know the owner?”

  “I’d seen him a couple of times. I don’t know about Duc.”

  “What happened at the store?”

  “Don’t know. We stopped to buy beer. Duc went inside. I stayed in the car.”

  “Did you give him money?”

  “No. He was going to pay.”

  Sure he was. I asked what happened next.

  “A police unit rolled up and a cop went inside. A few minutes later, two more cop cars showed up. One of the cops stuck me in the back of a squad car. They said Duc was dead.”

  “Did you hear any shots?”

  “No. I had my earbuds in.”

  “Anybody leave the store while you were waiting outside?”

  “Don’t know. I wasn’t paying attention.”

  We’d look for witnesses. “Who shot Tho?”

  “The store owner.”

  “How do you know?”

  “He admitted it.”

  “Any chance it could have been somebody else?”

  A shrug. “I guess.”

  “The news said Tho pulled a gun.”

  “Don’t know.”

  “You could see it in the security video.” This was a bluff. I hadn’t seen it.

  His tone turned more emphatic. “I don’t know, man.”

  “They found a gun on the floor. Tho’s prints were on it.”

  “I don�
��t know how it got there.”

  “You didn’t know that he was packing?”

  “No.”

  “Come on, Thomas.”

  The telltale hesitation. “I knew he had a gun, but I didn’t think he had it with him that night. Like I said, we were going to a party. You don’t bring a gun to a party.”

  “Was he planning to sell weed?”

  “Maybe. Don’t know.”

  “Did you know he was going to rob the store?”

  “No.”

  “And you never asked.”

  “Right. We just wanted to get some beer for the party.”

  Enough. “I’ve spent twenty years representing guys like you and Tho. I’ve heard every line from people who are a lot better at lying than you are. I don’t care if you’re my brother’s grandson. If you aren’t telling the truth, this is the last time you’re going to see me. Understood?”

  His Adam’s Apple bobbed. “Yeah.”

  “Last chance. Did you know that Tho had a gun?”

  “No.”

  It’s your story and you’re sticking to it. “How’d the gun get onto the floor?”

  “Beats me.”

  “Any chance it was planted by the owner of the store or the cops?”

  “Don’t know. Maybe.”

  “If Tho didn’t have a gun, why did the owner shoot him?”

  “Ask him.”

  “I will.” I stood and turned toward the door.

  “Where you goin’?” he asked.

  “To talk to the lawyer you fired last night. I want to know if you lied to her, too.”

  7

  “THE PATRON SAINT OF LOST CAUSES”

  Sandy Tran sat behind a second-hand desk piled with files. The streetwise defense attorney was barely five feet tall. Her salt-and-pepper hair was pulled back into a pony tail, exposing hoop-style earrings. “Tag, you’re it,” she deadpanned.

  “We haven’t even been appointed as Nguyen’s lawyer.”

  “You will.” The former Deputy P.D. glanced at a white board listing six dozen active cases. She had just erased People vs. Nguyen. “Otherwise, you wouldn’t be here.”

  True enough.

  Trial exhibits, storage boxes, and sandwich wrappers were strewn about her stifling office above a dry cleaner down the street from Hastings Law School in the Tenderloin. It reminded me of the original offices of Fernandez and Daley in a remodeled martial arts studio above a Chinese restaurant around the corner from the Transbay bus terminal.