Felony Murder Rule

by Sheldon Siegel

  “No.”

  Roosevelt always played it straight with me. “You worked with Ken Lee.”

  “We were partners when he moved over to homicide.”

  “Is he a good guy?”

  “He isn’t a bad guy. He’s a good detective, Mike, and he doesn’t like to lose. It would be a mistake to go after him. And it would be an even bigger one to underestimate him.”

  Got it. “You think it’s a good idea to prosecute a kid with no criminal record for murder in a case like this?”

  “Not my call. You’re going to have to try this case based upon the law as it’s written. You have the rest of your life to try to change it.”

  “What’s your gut, Roosevelt?”

  “Your best bet is to discredit Cruz’s testimony or somehow show that he didn’t act in self-defense. If he had no reason to be afraid of Tho, there was no provocative act. I have no idea how you’re going to prove it.”

  His instincts were always solid. “That won’t be easy.”

  “You’re a good lawyer.”

  “Any other options?”

  “Convince your client to accept a plea bargain. It may be the best deal he’s going to get.”

  “You’ll let us know if you happen to hear anything else?”

  “Of course. Give my best to Pete.”

  23

  “JUST LIKE OLD TIMES”

  “Is Tommy okay?” I asked.

  “Fine,” Rosie said. At one-thirty on Friday morning, we were sitting at the butcher block table in her kitchen that doubled as her home office. She flashed a tired smile as she took a bite of a reheated burrito. “He’s asleep.”

  Good. “Heard anything from Grace?”

  “No.”

  Figures. “Is your mom here?”

  “Yeah.” Rosie looked down the hall leading to what used to be Grace’s room, and was now Tommy’s. Sylvia Fernandez bunked with him during her frequent overnight visits.

  “How’s her hip?”

  “Not great.”

  At eighty-four, my ex-mother-in-law liked saying that getting old wasn’t for sissies. “Are you making any headway on the concept of getting her to move out of the house?”

  “No.”

  Rosie was becoming increasingly concerned that her mother’s arthritic hip would cause her to take a fall in the Mission District bungalow that she and her husband had bought almost sixty years earlier for a whopping twenty-four thousand dollars. In San Francisco’s insane real estate market, she could probably clear almost two million if she ever decided to sell. Rosie’s gentle suggestions that Sylvia move into a condo at an upscale independent living facility had not been well received.

  “What time did you get home?” I asked.

  “Midnight.”

  Earlier than usual. “Still enjoying the democratic process?”

  “Living the dream, Mike.”

  The sweet aroma of Sylvia’s burritos filled Rosie’s two-bedroom house across the street from the Little League Field in Larkspur. The cottage had been built for a teacher almost a hundred years earlier. Rosie had rented it after she and I split up when Grace was two. Raising a kid in San Francisco requires elaborate planning for schools or a trust fund. We had neither the patience for the former nor the wherewithal for the latter, so opted for Marin, where the schools are better. Around the same time, I moved into an apartment two blocks away behind the Larkspur fire station. A couple of years ago, one of our few well-healed clients bought the house for us as a token of his appreciation after we got his death penalty conviction overturned. It was the closest we’ll ever come to winning the lottery.

  I took Rosie’s hand. “Is your mom okay?”

  “She’s limping more than usual and she refuses to use her cane.”

  “Did you talk to her again about giving up her car?”

  “Let’s not go there now.”

  “Nothing’s easy, Rosie.”

  “No, it isn’t.” She waited a beat. “She agreed to stay for the weekend.”

  “That’ll help.” We couldn’t do our jobs without her. “I trust you explained the situation with Thomas?”

  “I did. She thinks you’re crazy.”

  “Just like old times.” I opted to change the subject. “How did it go tonight?”

  “We raised about five thousand.”

  “Not bad.” When Rosie entered the race, she was excited about the issues and the enthusiasm of the crowds. After six months of endless fundraising, she measured success by the number of dollars collected. “How was the turnout?”

  “Modest.”

  “Any trouble?”

  “A couple of people started with the usual stuff that I’m just a carpetbagger from Marin.”

  Notwithstanding the fact that Rosie was born and raised in the Mission, for political purposes, she was, in fact, a carpetbagger from Marin. It was perfectly legal. Unlike some municipalities, you don’t have to live in San Francisco to work for the city government. It was a running joke that half of the SFPD cops lived in Novato. On the other hand, optics are important in politics.

  “Did anybody from the press show up?”

  “Jerry Edwards.”

  “Did he ask you about Thomas’s case?”

  “You think he came just for the popcorn? He accused me of giving special treatment to your great-nephew. He gave me the usual line about keeping an eye on us. Sometimes I think he’s watched The Godfather too many times.”

  “Did it make the news?”

  “Briefly. I told him that we followed our standard procedures. That didn’t satisfy him.”

  “Nothing does.”

  “I told him that he should talk to you.”

  I smiled. “Thanks.”

  “We haven’t heard the last of it, Mike.”

  No doubt. “Did anybody else mention Thomas’s case?”

  “No. Everybody was too busy eating the free food and getting hammered.”

  “You’re getting cynical, Rosita.”

  “I was cynical long before I decided to run for office.”

  That was accurate.

  She finished her burrito. “Are you and your client treating my niece nicely?”

  “Of course. Rolanda is an excellent lawyer.”

  “She said the same thing about you. Any good news on Thomas’s case?”

  “Not much.” I summarized what I knew so far. “Rolanda and I went through the witness lists, police reports, and security video. Tho’s hand was inside his pocket when he walked into the store, but you can’t see a gun.”

  “Are you saying that he didn’t have a gun?”

  “I’m saying that you can’t see it in the video. We can argue that he didn’t threaten Cruz and there was no provocative act.”

  “That’s the best that you can do?”

  “For now.”

  “How do you explain the gun with his fingerprints under his body?”

  “I can’t—yet.”

  “The jury will put the pieces together. Ortega Cruz will testify that he saw the gun—or thought he did—and acted in self-defense. His son will corroborate his story. So will his daughter. And his nephew. That’s your provocative act.”

  She was the unrelenting voice of realism. “Ortega’s fingerprints also were on the gun. We’ll argue that he made up the whole story about the robbery and planted the gun to make a case that he acted in self-defense.”

  “He’ll say that he got his prints on the gun when he disarmed it. He’ll claim that he was protecting himself, his son, his daughter, and his nephew. That’s textbook self-defense.”

  I was too tired to argue. “Then we’re screwed.”

  The crow’s feet at the corners of her eyes became more pronounced as she smiled. “You’re just the bluebird of happiness tonight, aren’t you?”

  “It’s just the way I’m drawn.”

  “That’s why I will always love you, Mike.” She leaned across the table and pecked me on the cheek. “Still glad you decided to handle this case?”
/>
  “Absolutely.” Rosie’s mother emerged from the hall. “You’re up late, Sylvia.”

  “Actually, I’m up early.”

  True enough. She was always watching CNN by four a.m. She was wearing a USC sweatshirt over her nightgown—a gift from her granddaughter. She was barely five feet tall, but she carried herself with understated grace. Always impeccably coiffed, she pulled her silver hair back and took a seat next to Rosie.

  “Coffee?” I asked.

  “No, thanks.”

  “Rosie tells me that your hip is bothering you again.”

  “It’s fine.”

  It was her standard answer. “Maybe you should have the doctor look at it.”

  Her expression and tone turned sharp. “I’ll be okay.”

  It was the signal to change the subject. “Burritos were good.”

  “Thanks.”

  “Did Tommy have a good day?”

  “He’s doing fine, Michael.”

  I sensed irritation. “Something on your mind, Sylvia?”

  “Is Thomas Nguyen really your great-nephew?”

  “Yes.”

  “Pete’s sure?”

  It always annoyed me that she valued my brother’s opinions more than mine. “He’s sure.”

  “Is he guilty?”

  “No.” Like her daughter, Sylvia always cut to the chase. “He was sitting in the car when Tho was shot.”

  “The Chronicle said that’s still felony murder.”

  “In my humble opinion, it isn’t.”

  “In the judge’s humble opinion, it is.”

  “Thomas is still entitled to a defense.”

  “He’s entitled to a Public Defender. It doesn’t have to be you.”

  “We need somebody to deal with this right away.”

  “You’re doing this yourself because he’s your great-nephew. If this was anybody else, you would have handed it off to a deputy.”

  That was true.

  She wasn’t finished. “You’re taking time away from your regular duties and your family.”

  In other words, I was ignoring Rosie and Tommy in the middle of an election campaign. “The trial will last only a few days.”

  “Then you’ll find something else to distract you.”

  Rosie finally interjected. “That’s not fair, Mama.”

  “Maybe not, Rosita.” Sylvia turned back to me. “When Angel got in trouble, you told me that it’s a bad idea to represent relatives.”

  “We defended her anyway. She’s our niece. And you told me that family matters.”

  “You don’t even know Thomas Nguyen.”

  “He’s my great-nephew.” Sensing that I was about to lose yet another argument, I was grateful for the diversion when Tommy wandered into the kitchen. “Hey, Tom. You’re up late.”

  “Hey, Dad.” He was wearing Giants pajamas. “I heard you guys talking.”

  “Sorry. We didn’t mean to wake you.” He was a light sleeper who inherited my propensity for worrying. “You feeling okay?”

  “I’m fine.” He rubbed his eyes. “Why are you here so late?”

  “Lawyer stuff.”

  “The Thomas Nguyen case?”

  He watched the news. “Yeah.”

  “Is he guilty?”

  “No.” Please don’t ask your grandmother for her opinion.

  “Is he really your great-nephew?”

  It was difficult to keep anything from him. “Yes.”

  “Does that mean he’s my cousin?”

  “Sort of.”

  “Are you going to have to work all weekend?”

  “I’ll be at your game on Saturday.” I darted a helpless glance at Rosie, then I turned back to Tommy. “Why don’t you go back to bed? I’ll come in and say goodnight.”

  “Are you going back to work?”

  “Not tonight.”

  “Good.”

  * * *

  A few minutes later, Rosie and I were sitting on the sofa in her living room. “You want to stay tonight?” she asked.

  Yes. “I don’t think so, Rosita. I promised Rolanda that I would look at our jury questionnaires and I need to check in with Pete.”

  “Do what you have to do, Mike.”

  “Is your mother going to be okay with this?”

  “Absolutely.” She leaned over and kissed me. “At the end of the day, she always comes around.”

  * * *

  The sound of my iPhone woke me up from an uneasy sleep. The red numerals on the clock on my nightstand indicated that it was five-thirty on Friday morning. Pete’s name appeared on the display.

  “Where are you?” I asked him.

  “The Tenderloin.”

  My eyes struggled to acclimate to the darkness in my one-bedroom apartment that was better suited for a college student than a lawyer. “Did you find Tho’s supplier?”

  “No, I found his mother.”

  24

  “HE DIDN’T LIKE GUNS”

  “We’re sorry for your loss, Ms. Tho.”

  “Thank you, Mr. Daley.” Duc Tho’s mother clasped her hands as she looked at me through bloodshot eyes. “It’s Anita.”

  “Mike.”

  At six-fifteen on Friday morning, I was sitting on a wobbly card chair and Pete was standing next to the open window in a dingy room paid for by the city. Anita lived in a single-room-occupancy hotel, or SRO, at Larkin and Ellis, in one of the most dangerous corners of the Tenderloin. A century ago, the mid-rise apartments and hotels within walking distance of Civic Center Plaza were home to middle class families. Over the years, the neighborhood wedged between the theater district and City Hall evolved into a cesspool of drugs, prostitution, and homelessness. It was also where San Francisco housed some of its neediest residents. Among them was Anita Tho.

  The room was just big enough to fit a twin bed, a chest of drawers, a desk, and a chair. It smelled of cigarette smoke and bus fumes. The kitchen was a mini-fridge and a hotplate. The sink didn’t work. The bathroom was down the hall. The corridor was lined with mattresses and reeked of urine.

  “How long have you lived here?” I asked.

  “Two weeks.”

  “How long can you stay?”

  “As long as I’m clean.”

  “One day at a time.”

  “Yeah.”

  Anita was a petite woman with sad brown eyes and pouty lips. She was wearing a cotton blouse and a pair of torn Levi’s. Her only jewelry was a gold stud in her left ear. A pack of cigarettes was on her dresser next to a half dozen bottles of prescription medications.

  “You from around here?” Pete asked.

  “I’ve always lived in this neighborhood. My parents came over from Vietnam after the war.” She said that her mother died when she was twelve. Her father died when Duc was a baby.

  “Any other family?”

  “A couple of cousins. They stopped talking to me after…”

  Pete finished the sentence for her. “You started doing drugs.”

  “Yeah.”

  “How long has it been?”

  “About ten years.”

  “How did Duc’s father react?”

  “I wouldn’t know. He left when I was pregnant.”

  “Were you married?”

  “I was too young to be married. I was way too young to be a mother, and Duc’s dad was way too drunk to be a father.”

  “How did you support yourself?”

  “I worked at a laundry for a while. I tried flipping burgers at the Burger King by the BART Station, but that didn’t work out.”

  “Tough to make ends meet—especially when you have a kid.”

  “Yeah. I started drinking a little. Then a little more. Then I started smoking weed. Then I tried crack. Then meth.”

  It was a desperate existence. “Tell us about Duc,” I said.

  There was a faraway look in her eyes. “He was a good kid who got in with the wrong crowd.”

  “When did it happen?”

  “Middle school. It was my fa
ult. I wasn’t much of a role model. It isn’t easy living in a neighborhood where everybody—including your mother—is doing crack.”

  True.

  She kept talking. “He started smoking weed in eighth grade. By then, I was spending most of my time trying to steal enough money to support my habit. When he was a sophomore in high school, he had moved up to harder stuff.”

  “Crack?”

  “Yeah.”

  “Meth?”

  “Probably.”

  “Heroin?”

  “I don’t think so. He started selling dope to make a little money. Then he needed to sell more to pay for his habit. That’s when they tossed him out of high school.” She lowered her eyes. “I should have done something, but I couldn’t.”

  I thought about Grace and Tommy. “Where were you living?”

  “When I was clean, we lived in the SROs. When I was dirty, we’d live on the street. Duc would stay with friends sometimes. I’m not proud of it.”

  “It happens, Anita. Was he ever arrested?”

  “A couple of times. He never did time.”

  “Do you know where Duc was getting the drugs?”

  “People in the neighborhood.”

  “Any chance you might know their names?”

  “No.”

  “Was he still using drugs when he was killed?”

  “Yes. Mostly meth. He was drinking, too.”

  “It must have been very difficult for you.”

  “It was.”

  Pete spoke up again. “Did you ever shop at Alcatraz Liquors?”

  “Once or twice. I won’t go back there now.”

  “Understood. Do you know the owner?”

  “No.”

  “He’s going to testify that Duc tried to rob him. Do you think he’s telling the truth?”

  She clenched her right fist. “No.”

  “Why would you say that?”

  “Duc wasn’t a fighter. He was a little guy with a big heart.”

  “The owner of the store said that Duc pulled a gun.”

  “I heard.”

  “Did you ever see him with a gun?”

  “No.”

  “Is it possible that he had a gun that he didn’t show you?”

  “No.”

  “How can you be so sure?”

  “He didn’t like guns. He was afraid of them.”

  “How do you explain the fact that they found a gun under his body with his fingerprints?”