Crap. I hope they weren’t watching him yesterday when Terrence went inside and bought some ecstasy. “Why haven’t you arrested him?”
“Tho isn’t the only person he supplied. We’re hoping to catch a few more fish before we bust him.”
“You should have told us about it.”
“I didn’t want to compromise an ongoing undercover operation.”
“You have a legal obligation to provide information that’s relevant to our case.”
“We are required to provide information that would tend to exonerate your client. The fact that Pham was supplying drugs to Tho has no bearing on your case—except perhaps if you are looking for leverage in negotiating a plea bargain.”
True. I turned to Erickson. “You still should have told us about it, Andy.”
“Not in this case. In other circumstances, I might have done so as a matter of professional courtesy. When we have undercover operatives at risk, I need to err on the side of caution.”
I didn’t like it, but I understood.
Ward flashed a smug grin. “I take it this means that you won’t be proffering additional evidence at this time?”
“Correct.”
“I’m going to do something that I wouldn’t ordinarily do. I’m going to reinstate our offer to plead this case down to second degree. It remains open until ten o’clock tonight. Interested?”
“No.”
“You have a legal obligation to take our offer to your client.”
“I will.”
“If I don’t hear from you, we’ll see you in court tomorrow morning.”
31
“YOU NEED TO MAINTAIN
YOUR COMPOSURE”
Thomas’s response to Ward’s offer was a succinct “No.”
“You sure?” I asked.
His eyes narrowed. “I’m not pleading guilty.”
The Glamour Slammer was quiet at seven o’clock on Sunday evening. Thomas and I were seated at a metal table in a consultation room. An over-muscled deputy was standing outside the locked door. I was grateful that I didn’t have to conduct this discussion through a Plexiglas divider.
Thomas chewed on his finger. “Do you think they might make me a better offer?”
“Unlikely.”
“I’m not going to plead guilty.”
“Nobody is saying that you killed anyone.”
“They’re trying to convict me of murder just the same.”
“It’s a legal technicality.”
“It’s legal crap. If I plead guilty, I’m admitting that I’m a murderer. I’m not going to do it. If twelve people convict me for sitting in the car, then it will be on their conscience.”
“You might end up in jail for a long time.”
“I’ll be there for a long time if I plead guilty. At least if we go to trial, there’s a chance, right?”
“Yes.”
“How good of a chance?”
I didn’t pull my punch. “Not great.”
“How not great?”
“I’d say your odds of being convicted are better than fifty-fifty.”
“That’s reassuring.”
“We don’t have great cards.”
“How are you planning to play them?”
“We want to show that somebody other than Ortega Cruz could have shot Tho. It’s difficult because Ortega admitted it and Tony and Hector will corroborate his story.”
“How does that help?”
“If somebody else shot Tho, they can be tried independently for murder. It also blows up Cruz’s story that he acted in self-defense. More important, there’s no provocative act, which means you can’t be convicted of felony murder.”
“You have no evidence that somebody else did it.”
“We’ll argue that Tony or Hector shot Tho. They were in a position to do so.”
“So was Ortega.” His expression turned skeptical. “You’re just going to throw stuff up against the wall to see if it sticks, aren’t you?”
Yes. “More or less.”
He sighed. “We’re done, aren’t we?”
“You never know with a jury. I’ve had cases where I figured I had a sure winner and my client was convicted. Other times I thought my client was guilty as hell and the jury let them off. It’s a crapshoot.”
“What would you do if you were in my shoes?”
I considered my answer for a moment. “I’d go to trial.”
“Then that’s what we’ll do.”
“I’ll have some clothes ready for you when you get to court tomorrow.”
“What difference does it make?”
“A lot. Trials are theater. The jury will be watching you. I want you to sit quietly and pay attention. Don’t say anything unless I tell you to do so. You need to be very respectful of the judge, the jury, and the prosecutors.”
“I’ll try.”
“Most important, I need you to maintain your composure. Trials are unpredictable. Unexpected stuff happens. The prosecutors will say things to try to get a reaction from you. You need to stay calm. Understood?”
“Yes.”
I waited a beat. “There’s something else that I need to discuss with you. We may want you to testify.”
His eyes grew larger. “Me?”
“Yeah.”
“Why?”
“To tell the jury that Duc was unarmed and didn’t intend to rob the store. And to give the jury a sympathetic face.”
“I’m not sure that I can do it.”
“It will be short and you’ll follow my lead. It will show the jury that you’re a decent guy who was in the wrong place at the wrong time.”
“Won’t the prosecutor have a chance to do cross examination?”
“Yes. It could get a little rough, but I don’t think they’ll lean on you very hard. Nobody is suggesting that you shot Tho.”
He nodded. “Anything else?”
“We’ll see you in court at ten o’clock tomorrow morning.”
32
“YOU GOT NOTHING”
I was walking into my office when my iPhone rang. “Jerry Edwards. San Francisco Chronicle,” the voice said.
As if I don’t remember where you work. “What can I do for you, Jerry?”
“My sources tell me that you haven’t been able to work out a plea bargain for your client.”
“Who’s your source?”
“Nicole Ward.”
“She called you?”
“I saw her on TV.”
Excellent reporting. “I can confirm that we have not reached a plea bargain.”
“So we’re still on at ten o’clock tomorrow?”
“Yes.”
“Any update on your case?”
He was fishing. “No.”
“Any new evidence?”
“No.”
“I find it hard to believe that a fine attorney like yourself who is working with an excellent private investigator like your brother has been unable to find any information that might be helpful to your client’s case.”
Flattery isn’t going to work. “Sorry.”
“Is there something that you can’t tell me?”
A lot. “No.”
“You’re sandbagging me, aren’t you?”
Absolutely. “No.”
“Come on, Mike.”
Enough. “You’ve been around the block enough times to know that I have no legal obligation to tell you anything about my case.”
“I can help you in the court of public opinion if you give me something I can use.”
“You know that lawyers don’t share information about evidence and strategy on the eve of trial. That would be malpractice.”
“They do if they think it would help their client. You got nothing.”
True. “I’ll see you in court in the morning, Jerry.”
* * *
I sat down at my desk and punched in the number of an old friend. An overly cheerful voice picked up on the first ring.
“Hanson Inve
stigative Agency. Bernadette speaking. How may I help you?”
It was Nick’s great-granddaughter. “It’s Mike Daley, Bernie. How’ve you been?”
“Just fine, Mr. Daley.”
“Have you finished law school?”
“Almost. I’m in my third year.”
“That’s great.”
Between classes at USF Law School, she made a few bucks working at Nick’s agency.
“What can I do for you, Mr. Daley?”
“Is Nick around?”
“Senior, Junior, Third, or Fourth?”
“Senior.”
“One moment please.”
Despite my foul mood, I smiled. I envisioned Nick the Dick sitting in his office in North Beach with his feet up on his cluttered rolltop desk, clutching an unlit cigar, and fingering the rose in his lapel.
“How ya doin’, Mike?” he asked.
“Not bad, Nick.”
“I hear you’re going to court tomorrow.”
“We are. Thanks for directing us to the Lion of the Loin.”
“Did Pete find him?”
“Yes.”
“Did he provide any useful information?”
“No.”
“Sorry, Mike.”
“You got anything else that we can use?”
“I’m afraid not. So how you gonna play it?”
“The usual, Nick. Smoke and mirrors.”
His tone turned serious. “No kidding, Mike. What are you gonna do?”
“Our ballistics expert will testify that the shot could have been fired by somebody other than Ortega Cruz. Our lipreader will argue that Tho never threatened Cruz.”
“That’s it?”
“We’ll try to blow enough smoke to make the jury think that somebody other than Cruz shot Tho. If that doesn’t work, we’ll argue that he lost his temper and didn’t act in self-defense.”
“Seems thin.”
“It is.”
“You got a Plan B?”
No. “I was thinking of putting you on the stand.”
“What exactly do you want me to say?”
“I don’t know. We’ll have to wing it. If nothing else, it will entertain the jury and it will be fun.”
He chuckled. “You think it will work?”
“It can’t hurt. You always told me that if you can’t prove your case to the jury, you should try to amuse them.”
“It works.”
“I know. Are you available to testify if we need you?”
“Indeed I am.”
* * *
Roosevelt’s voice was tinged with melancholy. “How are you holding up, Mike?”
“Not bad.”
“You sound tired.”
“I am.”
“I saw Jerry Edwards on the news. He said you’re going to trial in the morning. Anything I can do to help?”
“Got a minute to give me a reality check?”
“Sure. What have you got?”
“Not much.”
He listened without interrupting as I described the evidence. After I finished, the phone went silent for a moment. I envisioned him stroking his mustache as he ran through various scenarios in his mind.
Finally, he cleared his throat. “Doesn’t sound like you have anything that will get you a slam-dunk acquittal.”
“We’ve come to the same conclusion. How would you play this?”
“I’d try to show that somebody other than Ortega Cruz could have pulled the trigger. It’s a variation on the old ‘SODDI’ defense.”
It was an acronym for “Some other dude did it.”
Roosevelt was still talking. “If the jury thinks there’s a decent argument that somebody else shot Tho, you eliminate Cruz’s self-defense claim. More important, you cast doubt on everything he’s said. Maybe the jury will think that he’s protecting his son or nephew or even his daughter.”
“We were thinking the same thing.”
“What is the lipreading expert going to say?”
“She’s prepared to testify that it’s inconclusive whether Tho ever asked for money, or, for that matter, whether he said anything at all.”
“If that’s the case, it also could mitigate the self-defense claim.”
It was still a stretch. “What about the gun that he allegedly found under Tho’s body?”
“That’s a problem,” he acknowledged.
“Cruz’s fingerprints were on that gun.”
“You can make the argument that he planted it, but he’ll say that his prints got on the gun when he disarmed it.”
True. “Do you think we should put Thomas on the stand?”
He considered his answer for a moment. “Probably, but only if you think the jury will have empathy. If he appears callous or arrogant, it will cut against you. You’ll want to play up the fact that he was outside in the car, which means that, arguably, he’s a victim, too.”
“Do you think Erickson will go after him on cross?”
“Doubtful. He’ll try to get him off the stand as fast as he can.”
I cut to the bottom line. “Do you think we should accept a plea for second degree?”
“Based upon my limited knowledge of the evidence and the fact that I’ve never met your client, I would say that it would minimize the potential damage.”
“What’s your gut, Roosevelt?”
“Tho was in the store for only a couple of seconds before he was shot. You might want to argue that there wasn’t enough time for Ortega Cruz to develop the requisite fear in order to have acted in self-defense.”
“Roosevelt?”
“Yes?”
“Thanks.”
33
“YOU NEED TO MESS THINGS UP”
“Any additions to the prosecution’s witness list?” I asked.
Rolanda shook her head. “No.”
“Did you submit our final list?”
“Of course.”
“Any objections?”
“Erickson wanted to know why we included Ortega Cruz’s wife and daughter.”
“To give them something to think about.”
“Are you planning to call them?”
“Not unless we find a good reason.”
“Thought so.”
At eleven o’clock on Sunday night, Rolanda, Pete, Rosie, and I had gathered around the table in the conference room at the P.D.’s Office. Trial binders, file folders, witness lists, poster boards, and exhibits were scattered haphazardly. Two empty pizza boxes were stashed in the corner. The recycling bin was filled with empty soda cans.
“How are we coming along on jury questionnaires?” I asked.
“Almost finished.”
“Good.” I pointed at Rolanda’s laptop. “All set to show the security video?”
“Yes.”
“Other exhibits ready to go?”
“Yes.”
“I’ll want you to handle the cross on some of the prosecution’s witnesses. And I’ll need you to do the direct exam of some of our witnesses when we present our case.”
“I’m ready. I’ve been preparing with the best attorney I know.”
“Thank you.”
She pointed at Rosie. “I meant her.”
I know.
My ex-wife smiled triumphantly. “Still glad Rolanda is second chair?”
“Absolutely. And we’re very grateful for your help, too.”
“My pleasure.”
I turned back to my niece. “I think it might be better if you handle our closing argument.”
“Sure. Why?”
Because I want to give you the experience. “You’re more likeable than I am.”
She grinned. “Nobody’s more likeable than you are, Mike.” She quickly added, “Happy to do it.”
“Great. There’s still the small matter of deciding what you’re going to say. We need to think about this tonight. If things go as planned and jury selection goes quickly, we’ll get to closing arguments in a few days.”
“Rosie and I have
outlined some scenarios. I’ll be ready.”
Always three steps ahead. I turned to Rosie. “Have you given any more thought about whether we should ask for a bench trial?”
“Yes. The answer is no.”
We’d been going back and forth on this issue since Friday. “May I ask why?”
“Judge McDaniel.”
“Betsy has always given us a fair shake.”
“I know, but she’s already ruled that the felony murder rule is applicable. She doesn’t think much of it, but she comes in with a predisposition to apply the law as it’s written. She could have thrown this case out months ago, but she didn’t.”
“You think we’ll have a better chance with a jury?”
“It’s always a crapshoot, but if we’re lucky, they’ll be reluctant to convict your great-nephew of murder when he didn’t pull the trigger.”
I looked over at Rolanda. “Do you agree?”
“Yes.”
I posed the same question to Pete, who nodded. He had a good feeling for how non-lawyers would react to various scenarios.
“Then it’s settled. We’ll ask for a jury.”
We talked about jury selection for a few minutes. Then we spent another hour going through the jury questionnaires (abbreviated version), my opening statement (short), the prosecution’s witness list (also short), our witness list (even shorter), and our trial exhibits (few). We brainstormed ways to make the cops look sloppy and the prosecution’s witnesses look untrustworthy. We spent an hour trying to come up with plausible arguments to suggest that Ortega Cruz somehow didn’t act in self-defense.
It was almost midnight when Rosie leaned back in her chair. “What’s the narrative?” she asked.
I knew this was coming. It was one of the first things that she had taught me when I was a rookie Public Defender. You need to tell the jury a compelling story with a beginning, a middle, and an end. More important, you need an coherent and easy-to-digest theme that you can explain in a couple of sentences. “Thomas was just sitting in the car,” I said. “Good kid, wrong place, wrong time.”
“It might not matter under the felony murder rule.”
“It’s a bad law.”
“It isn’t the jury’s job to rewrite the law.”
“There was no provocative act. You can’t see the gun in Tho’s hand.”
“Ortega Cruz will testify that he saw it—or thought that he did.”
“Then our theme is to argue that Ortega Cruz is a trigger-happy nutjob who lied about a robbery to cover up a homicide. No robbery-no provocative act-not guilty.”
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