Felony Murder Rule

by Sheldon Siegel

  “What about the little points?”

  “Ortega and Tony insisted that Tho reached for a gun inside his pocket. Both admitted that they didn’t actually see it before Ortega started shooting.”

  “That’s consistent with the video. They’ll claim that they thought he was pulling a gun. What about the security guard?”

  “He was looking out the window when Tho walked in. He didn’t see anything, but he heard Tho demand money.”

  “That lines up with his uncle and his cousin.”

  “Except he was talking on his cell phone.”

  “How did he hear Tho?”

  “I guess he heard him out of the other ear.”

  “Right. Anything else?”

  “Ortega’s nephew said that his uncle has a temper. The deliveryman said that Ortega had flashed a gun a few times and he had issues with the Vietnamese community.”

  “It may prove that Ortega is a hothead who likes to show off a weapon. If he reasonably thought that Tho was pulling a gun, it’s probably enough to support self-defense. The fact that they found the gun on the floor with Tho’s prints suggests that their concerns were legitimate.

  “Ortega’s prints were on the gun, too.”

  “He admitted that he picked it up and disarmed it.”

  “If we can show that the gun was planted or that he acted unilaterally, we might mitigate his self-defense claim.”

  “And how do you plan to do that?”

  “I’m not sure.” I took a bite of pizza. “Let’s go back to the evidence. Is there anything proving that Ortega shot Tho?”

  “He admitted it.”

  “He could be lying to protect his son or his nephew or even his daughter. If we can suggest with some credibility that somebody else shot Tho, it calls into question Ortega’s self-defense claim and changes the narrative. It also shows that he’s a liar. Did the cops check his hands for gunpowder residue?”

  “Yes.”

  “Did they check anybody else for gunpowder residue?”

  “No.”

  “Then we’ll ask them why not.”

  “They found gunpowder residue on Ortega’s shirt.”

  “We’ll argue that he could have been standing next to the shooter.”

  “Get real, Mike.”

  “There were at least three people within a couple of feet of each other behind the counter—Ortega, Tony, and Hector. If any one of them fired the shots, it’s possible that gunpowder residue would have landed on Ortega’s shirt.”

  “The ballistics report indicated that Tho was hit in the chest from shots fired from behind the register.”

  “Then we’ll need to find an expert to argue that he was still turning when he was shot.”

  “Why?”

  “If he was moving, it broadens the theoretical radius from which the shots were fired by a few feet. We can argue that Tony or maybe even the security guard shot him. Is there anything on the video proving that they were standing where they said they were?”

  “No. You can’t see any of them in the video when the shots are fired.”

  “Good.”

  She responded with a puzzled look. “Why is that good?”

  “If we can make a decent argument that Ortega, Tony, or Hector is lying about anything, it will impair their credibility on the self-defense claim and cast doubt on everything they told the cops. Juries don’t like to convict people based on perjured testimony.”

  “It will be hard to prove perjury.”

  “We don’t need to prove it. We just need to suggest it. And we will have no trouble bringing the security guard’s credibility into question because he was arrested last night for buying crystal meth from an undercover cop.”

  “How’d you find out?”

  “Ortega told me. Turns out he’s lending Hector money for bail and a lawyer.”

  My niece smiled. “Would you lend me money if I’m ever arrested?”

  “Absolutely.”

  “That’s why you’re my favorite uncle.”

  “I’m your only uncle.”

  Rolanda wiped her glasses. “Do you think Ortega is saying that he shot Tho in self-defense to protect his son or his nephew?”

  “I doubt it, but we may want to make the argument. If we can catch him in a lie—any lie—it will work to our advantage.”

  “Rosie says you’re good at the little things.”

  I hoped that she was referring only to my qualities as a lawyer. “Little things add up to acquittals.”

  “What about truth and justice?”

  “That stuff is nice, too, but our job is to find holes in the prosecution’s case and cast doubt on the credibility of their witnesses. Then we let the jury decide.”

  “Have you always been this cynical?”

  “Ask your aunt. I’m just a humble pawn playing in an imperfect legal system. Did you find any dirt on Pham?”

  “A couple of shoplifting charges and a speeding ticket. No convictions.”

  It wasn’t much. I asked about Odell Jones.

  “He did time for armed robbery thirty years ago. Nothing since.”

  “He was carrying a gun when Pete and I met with him.”

  “He’s the licensed owner of several handguns. It doesn’t mean that he shot Tho.”

  “Anything on Ortega’s ex-wife or daughter?”

  “Working on it.”

  I didn’t need to explain the urgency. “Did you talk to Candace?”

  “Yes. I e-mailed her a copy of the security video.”

  “Good.” Candace Greene was Rosie’s classmate at San Francisco State. She had a Ph.D. in Special Education with an emphasis on teaching children with hearing disabilities. She was a superb lipreader and an accomplished expert witness. “Is she available to testify?”

  “Yes. I’ve already put her on our witness list. Standard rates.”

  “Perfect.”

  Pete’s name appeared on the display of my iPhone. “Are you still at the office?” he asked.

  “Yeah.”

  “How soon can you get to Gino and Carlo’s?”

  “Fifteen minutes.”

  “Good. I chased down the P.I. that Sandy Tran hired to work on this case. Did Rolanda mention who it is?”

  “No.”

  I could hear the chuckle in his voice. “Nick the Dick.”

  21

  “INDEED I AM”

  The Rossi Family has operated Gino and Carlo’s on Green Street since 1942. The dive bar is housed in a ramshackle two-story building constructed shortly after the 1906 earthquake. Flanked on one side by Caffe Sport and Sotto Mare and on the other by Golden Boy Pizza and Tattoo Boogaloo, Gino and Carlo’s has always been popular among cops, firefighters, and blue collar workers because it’s one of the few watering holes in North Beach that opens at six a.m. In addition to hosting countless celebrations and memorials, it was also the informal office of the legendary one-eyed muckraking journalist, Warren Hinckle, who held court at a table in the back with capable assistance from his ever-present basset hound, Bentley.

  Pete and I were sitting at a table next to the bar in a room that smelled of beer and pretzels. Sitting across from us was a diminutive P.I. who was busy repositioning the fresh red rose on the lapel of his five-thousand-dollar Wilkes Bashford suit. He sounded like Humphrey Bogart. “If you’re in your seventies,” he was explaining, “you’re a septuagenarian. If you’re in your eighties, you’re an octogenarian. Do you know what you are if you’re in your nineties?”

  I had to play along. “No idea.”

  Nick “The Dick” Hanson re-aligned his toupee and took a gulp of chianti. “A nonagenarian.”

  “Does that mean you’re a nonagenarian, Nick?”

  He smiled triumphantly. “Indeed I am.”

  Over the years, for better and worse, my hometown has produced more than its share of characters. It started during the Gold Rush when a failed businessman named Joshua Abraham Norton started calling himself “Emperor Norton,” and proclaim
ed that he was the emperor of the United States. When he died penniless in 1880, more than 30,000 people lined Market Street for his funeral procession. In the 1890s, the gauntlet passed to Mayor Adolph Sutro, who used his fortune from the Comstock Lode silver mine to build monuments to himself, including the Sutro Baths, an indoor swimming complex next to the Cliff House that was more elaborate than the fantasy pools in Hawaii. The Baths closed when I was a kid, but you can still see the ruins. Over the decades, other luminaries included beat poets Jack Kerouac and Allen Ginsberg, a stripper named Carol Doda who headlined the city’s first topless club a few blocks from where we were sitting, and a high-end madam named Sally Stanford who became a restauranteur and later the Mayor of Sausalito. The list would not be complete without mentioning flamboyant lawyers like Melvin Belli, Jake Ehrlich, Vincent Hallinan, Tony Serra, and Nate Cohn.

  Nick “the Dick” was one of San Francisco’s few remaining characters. The son of a bootlegger was born in North Beach during Prohibition. He drove an ambulance during the bombing of Pearl Harbor and served in the Pacific. He came back home and opened a detective agency next to the Italian Athletic Club across the street from Washington Square Park. Nick was a charter member of the legendary Calamari Club, a group of politicians, lawyers, labor leaders, restauranteurs, newspaper columnists, and other movers and shakers who have been meeting for lunch in the backroom at Scoma’s at the Wharf since the fifties. He played liar’s dice at the Washington Square Bar and Grill with Chronicle columnist, Herb Caen, who dropped his name at least twice a week. After Caen died, he became a regular at Mayor Willie Brown’s power lunches at Le Central. In his spare time, he had written a dozen semi-readable mystery novels based loosely on his favorite character: himself. At four-foot-ten and barely a hundred pounds, he looked like a cross between Edgar G. Robinson and Danny DeVito.

  He took a bite of the clam and garlic pizza that Pete had brought in from Golden Boy next door. Gino and Carlo’s serves food only on special occasions. He spoke to Pete. “You keeping busy? There’s always a place for you at the agency.”

  “Thanks, Nick. Got more work than I can handle.” Pete had worked for Nick for a short time, but preferred being his own boss. “Everybody okay at home? Kids, grandkids, and great-grandkids?”

  “Everybody’s fine. At last count, the Hanson Investigative Agency employs nineteen members of my extended family. Not bad for an old guy, eh?”

  “Not bad at all. You still working cases?”

  “A few.”

  “I thought you retired.”

  “I got bored.”

  He couldn’t sit still. “I’m helping my big brother with the Nguyen case.”

  “I heard.” Nick arched an eyebrow in my direction. “Is this kid really your great-nephew?”

  “Yeah.”

  “Jerry Edwards is going out of his mind.”

  “He’ll calm down.”

  “We’ll see. From everything I hear, your case is a loser.”

  “We were hoping you might have found something that would tilt it our way.”

  “N-L, Mike. Not likely.” Nick pushed a slice of pizza toward me. “Try this. The secret to becoming a nonagenarian is garlic.”

  I couldn’t possibly turn him down. “How did you pick up the Nguyen case?”

  “Sandy Tran called my son, Rick. He’s running the agency now.”

  Rick may have the title of managing agent, but Nick would always be running the show.

  Nick ordered another glass of wine. “Rick handed the case over to my grandson, Nicholas the third. He passed it over to my great-grandson, Dick, who got busy on another case, so I graciously volunteered to step in.”

  Pete kicked my foot. It took every ounce of self-control to keep me from asking Nick whether they called his great-grandson “Dick the Dick.” I gulped some water and turned to the matters at hand. “How much time did you spend on the case?”

  “Couple days. I did it as a favor to Sandy. Nguyen couldn’t afford us.”

  “The store owner, his son, and the security guard all told us that Ortega Cruz acted in self-defense. A deliveryman and a customer in the back of the store said they didn’t see or hear anything.”

  “They told me the same thing.”

  “Did you look at the video?”

  “Indeed I did.”

  “Did you see a gun?”

  “Indeed I did not.” The charismatic P.I. flashed the smile in the author photo on the dust jacket of his books. “Legally, it probably doesn’t matter. The D.A. just needs to show that Ortega Cruz thought his life was in danger. Put yourself in his shoes. A sketchy-looking kid walks into your store with a hand in his pocket and asks for money. You would have been scared, too.”

  “Maybe we can show that he’s a hothead with an itchy trigger finger. He shot a robber a couple of years ago.”

  “I heard.” Nick took another gulp of chianti. “I’m still not hearing anything that’s going to get you around a reasonable argument that Cruz acted in self-defense.”

  “Did you find any other witnesses?”

  “A couple of people mentioned that there was a homeless guy who used to hang out in front of Cruz’s store. He might have been there that night.”

  “Got a name?”

  “No, but he calls himself the ‘Lion of the Loin.’”

  “Any idea where we might find him?”

  “Not sure. He might have left town.” He pointed at Pete. “Fortunately, your new investigator is very resourceful.”

  “Yes, he is.”

  He finished his chianti. “I hope your defense isn’t going to come down to the testimony of a homeless guy.”

  * * *

  Rosie’s name appeared on my iPhone as I was driving west on Geary. “How did it go tonight?” I asked her.

  “Shook a bunch of hands, raised some money, and nibbled at some rubber chicken.”

  “Still glad you decided to go into politics?”

  “Looking forward to the day after the election.”

  Me, too. “Is Tommy okay?”

  “Fine. Are you heading home soon? Maybe you should come over to the house for a few minutes.”

  “I’ll be there in about an hour. I need to make a stop first.”

  22

  “WHY ARE YOU DOING THIS?”

  “Why are you doing this, Mike?”

  “Doing what, Roosevelt?”

  “Representing Thomas Nguyen.

  “It’s my job.”

  My father’s first partner and the most decorated homicide inspector in SFPD history was nursing a cup of green tea. At eighty-two, Roosevelt Johnson’s melodious baritone was still commanding, but its forcefulness had been tempered by years and a battle with throat cancer. “You could have kicked it over to a Deputy P.D.”

  “There are extenuating circumstances.”

  Roosevelt was sitting in a well-used armchair in the living room of a fifteen-hundred square-foot bungalow three blocks from Dunleavy’s. He and his wife had bought the place almost a half-century earlier when he was working with my dad. They were the first African-American family in the neighborhood. “Is he really Tommy’s grandson?”

  “Yes. Pete’s DNA guy at UCSF ran the tests.”

  He gave me the knowing look that I had seen countless times at our dinner table on Sunday nights. “I wish your mom and dad were still here.”

  “So do I.” I glanced at the kitchen and lowered my voice. “How’s Janet?”

  “So-so. The chemo seems to be working, but she gets tired.”

  His wife was battling lung cancer. “She’s in good spirits.”

  “She’s a fighter. And she puts up a good front.” He took a sip of tea. “Why did you want to see me at this hour?”

  “I was hoping you would help me with the Nguyen case.”

  “I’m retired.”

  Technically, this was true. “I hear you’re working on cold cases.”

  “A couple. With DNA and new technology, sometimes they’re worth another look.”


  “Heard anything about the Nguyen case?”

  “I just told you that I’m retired.”

  For fifty years, Roosevelt always had a suit and tie laid out in the spare bedroom. “You know more about what’s going on at the Hall of Justice than our D.A.”

  “Maybe a little.”

  I waited.

  He cleared his throat. “I read the papers just like everybody else. As far as I can tell, Tho walked into the store with a gun. The shopkeeper killed him in self-defense.” He set down his cup. “I’ve never thought much of the felony murder rule, but you don’t have time to get the law changed before the trial starts on Monday.”

  “Heard any gossip?”

  “A little. Your client’s odds are lousy. Ortega Cruz said that he killed Tho in self-defense. He found Tho’s piece under the body. Cruz’s son and nephew will corroborate his story.”

  “For a retired guy, you seem to know a lot.”

  “You now know everything that I do.”

  “Would your opinion change if I told you that I watched the security video and you can’t see a gun in Tho’s hand?”

  “Not necessarily. Cruz will say that he thought Tho had a gun. Given the neighborhood, it wasn’t an unreasonable assumption. It still supports self-defense.”

  “What if Tho was shot within a couple of seconds after he walked inside the store, and it wasn’t clear if he said anything?”

  “You can argue that he acted unilaterally, but it’s going to be an uphill battle.”

  “Any idea where Tho got the gun?”

  “The paper said it might have been stolen. Evidently, all of the identifying information was removed.”

  “Do you know anything about the store owner or the victim?”

  “Afraid not. This isn’t my case.”

  “Ignacio Navarro told me that Tho was a small-time drug dealer.”

  “Seems we didn’t have enough evidence to arrest him. We don’t know the name of his supplier, either.”

  “Who told you that?”

  “I had lunch with Ignacio a couple of weeks ago during his little sabbatical.”

  “Do you think the charges against him were legit?”

  “No comment.”

  “Did he tell you anything else about my case?”