Erickson didn’t bother to stand. “Objection, Your Honor.”
“Noted.” The judge turned back to me. “Your motion is denied, Mr. Daley. Please call your first witness.”
I was tempted ask for a recess and start fresh in the morning, but I didn’t want the jury to go home without hearing from us. “The defense calls Anita Tho.”
46
“HE WAS A GOOD BOY”
“My name is Anita Tho.” Her voice was barely a whisper. “I am Duc Tho’s mother.”
The gallery was almost empty at five minutes to four on Wednesday afternoon. Rosie had returned and was sitting in the back row. Anita sat in the witness box, hands clasped. It looked as if she wanted to make herself disappear.
Rolanda’s tone was subdued. “We’re very sorry for your loss, Ms. Tho.”
“Thank you, Ms. Fernandez. He was a good boy.”
“Where were you living on the night of December fourteenth of last year?”
“In a single room hotel on Larkin.”
“Were you employed at the time?”
“No.”
“Did your son live with you?”
“Yes.”
“Was he employed?”
“He did odd jobs when he could find them.”
We had told her to use this euphemism for “selling drugs.”
“When was the last time that you saw him?”
“Around nine o’clock that night. He was going to a party with Thomas Nguyen. He said that he wouldn’t be out too late.” She sighed. “He worried about me as much as I worried about him.”
“When did you hear about the events at Alcatraz Liquors?”
“The police came to see me around midnight.”
“It must have been awful.”
Anita’s lips quivered. “It was.”
Rolanda inched closer. “Did they ask you to identify your son’s body?”
“Yes.”
“It must have been horrifying.”
“It was.”
“Did the police tell you what happened?”
“They said that Duc had tried to rob a liquor store.”
“Had he ever attempted to rob anybody?”
“No.”
“Did the police provide any other details?”
“They said that Duc had pulled a gun and the shopkeeper shot him in self-defense.”
“Did you believe them?”
“No.” Anita’s eyes narrowed. “Duc didn’t have a gun.”
“How can you be so sure?”
“He didn’t like guns. He was afraid of them.”
“Can you tell us why?”
“Yes. When he was in second grade, the father of one of his friends was killed in a drive-by shooting across the street from where we lived. Duc saw it.”
“I take it that this made an impression on him?”
“Absolutely. He was terrified of guns from the time he was a little boy. He always told me that he would never own one.”
“Thank you, Ms. Tho. No further questions.”
Erickson approached the witness box cautiously. “I’m also very sorry for your loss, Ms. Tho. I’d like to ask you just a few questions about your son.”
He was about to engage in a delicate dance. He needed to try to rebut her testimony without appearing to attack her or her deceased son.
“Ms. Tho, you said that you and your son shared a one-room apartment.”
“We did.”
“It must have been very tight quarters.”
“It was.”
“And you and your son must have been very close.”
“We were.”
“Your son dropped out of high school, didn’t he?”
“Objection,” I said. “Relevance.”
“Sustained.”
Erickson tried again. “Your son got into some trouble, didn’t he?”
“Objection. All kids get into trouble.”
Judge McDaniel’s chin rested in her hand. “Please be more specific, Mr. Erickson.”
“Yes, Your Honor. Ms. Tho, your son was arrested several times, wasn’t he?”
“Objection. Relevance. Ms. Tho’s son is not on trial here.”
“Overruled.”
Anita didn’t flinch. “Yes, Mr. Erickson. My son was arrested twice. In each case, the charges were dropped.”
“What were the charges?”
“Objection. Relevance.”
“Overruled.”
Anita showed a hint of irritation. “Possession of drugs.”
“Did you know that your son was in possession of drugs?”
“I had suspicions.”
“Did your son keep all of his belongings in your apartment?”
“Yes.”
“What about his car? Or a storage locker? Or a friend’s house?”
“Objection,” I said. “Calls for speculation.”
“Sustained.”
Erickson held up a hand. “Did he stay in your room every night?”
“Most nights.”
“But some nights he stayed with friends?”
“Yes.”
“And when he did, he must have brought some clothes to wear the next day, right? And maybe some toiletries and perhaps other belongings?”
“Probably.”
“It’s possible that he may have left some of his belongings at a friend’s house, right?”
“Objection. Calls for speculation. In fact, this line of questioning is pure speculation.”
“Sustained.”
Erickson backed away from the witness box. “Ms. Tho, you couldn’t watch your son twenty-four hours a day, could you?”
“Of course not.”
“You had no way of knowing everything that he purchased, right?”
“Obviously.”
“You didn’t know about everything that he kept in his drawers in your apartment, right?”
“Right.”
“Isn’t it possible that your son had a gun that you didn’t know about?”
“Objection, Your Honor. Calls for speculation.”
“Sustained.”
Erickson had made his point. “No further questions, Your Honor.”
The judge looked at me “Redirect?”
I nodded to Rolanda, who stood at the defense table. “Ms. Tho, just so we’re clear, do you have any knowledge that your son had a gun?”
“No, he did not.”
“No further questions.”
Judge McDaniel put on her reading glasses. “It’s after four o’clock. We’re adjourned until ten a.m.”
* * *
Rosie stopped us as we were leaving the courtroom. “Good move to put Anita on at the end of the day. At least it gave the jury some doubt about whether Tho had a gun.”
I shrugged. “Maybe.”
Rolanda wasn’t satisfied. “We’re going to need more.”
“You busy tonight?” I asked Rosie.
“No. I’m taking the night off from politics.”
“Do you have time to help two of your favorite lawyers prepare for trial?”
Her eyes lit up. “I’ll meet you at the office.”
47
“SOMETHING HAS COME UP”
The overtaxed ceiling fan was doing its best to recirculate the air in my office at eight o’clock on Wednesday night. “What’s the plan?” Rosie asked.
I pointed at the names of the witnesses printed on my white board. “Our ballistics expert will testify that the bullets could have been fired from anywhere behind the counter. It opens up the possibility that Tony or Hector shot Tho.”
“You think the jury will buy into a claim that somebody other than Ortega shot Tho?”
“Probably not.”
Pete took a bite of cold pizza. “Then what, Mick?”
“Odell Jones will testify that he didn’t hear Tho ask for money.”
“He said that he didn’t hear anything.”
“I didn’t say it was a slam-dunk winner.”
�
��You planning to put Eugene Pham up to say the same thing?”
“No. He has no credibility. They might arrest him right there in court.”
“Good call, Mick.”
“Then we’ll get our lipreading expert to testify that Tho never said the word ‘money.’ Next we’ll get the Lion of the Loin to say that he didn’t see a gun when Tho walked into the store that night.”
“You’re planning to put a homeless guy on the stand?”
“He’s very articulate. Finally, we’ll put Ortega Cruz on the stand again and get him to say that he never saw Tho pull the gun.”
“He already did. Besides, he’ll say that he thought that Tho was going to pull a gun. That’s enough to get you to self-defense.”
“The jury may doubt that Tho had a gun.”
“Except for the one they found on the floor with his prints.”
“And Ortega’s prints.”
“Good luck with that, Mick.”
“I’ll lean on him. I’ll try to show that he’s a hothead who made up the story about the threatened robbery.”
“What’s Plan B?”
There is none.
Pete lowered his voice. “Got anything else?”
I looked at Rolanda. “Any suggestions?”
“We can put Tony and Hector back on the stand.”
“You think you can get one of them to confess?”
“I can be very persuasive.”
“That sort of thing only happens on Perry Mason.”
“You never know.” Rolanda gave me a thoughtful look. “We talked about putting Thomas on the stand.”
“You think it will help?”
“Yes. He can testify that Tho wasn’t going to rob the store. He can corroborate Anita’s testimony that Tho didn’t have a gun. He can argue that there was no reason for Cruz to shoot Tho because he wasn’t going to rob the store. And he can remind the jury that he didn’t go inside.”
“It goes against the conventional wisdom to put the defendant on the stand.”
“This isn’t a conventional case. We already know that Thomas didn’t shoot Tho, so we don’t have to worry about a confession.”
Rosie added her two cents. “There isn’t much downside and it will humanize him with the jury.”
“It could blow up on us,” I observed.
“That’s always a risk.” Rosie turned to Rolanda. “Anything else?’
My niece smiled with confidence. “If all else fails, we’ll improvise.”
* * *
“It isn’t enough,” Rosie said.
“I know.”
We were sitting in her office at nine-forty on Wednesday night. The door was closed.
“Thanks for helping us tonight,” I said. “Rolanda appreciated it. So did I.”
“You’re welcome.” She got a faraway look in her eyes. “It felt like old times. Remember when we were idealistic young lawyers fighting the good fight?”
“I do.”
“Do you miss being in court every day?”
“Yes. Mostly, I miss being young.”
She smiled. “You’re the one who told me that we aren’t that old.”
“We aren’t. I just feel old.”
“Still glad you decided to represent Thomas?”
“I never ask myself those questions when I’m in the middle of a trial.”
“Fair enough.”
I smiled. “The answer, by the way, is yes.”
“Why?”
“It’s who we are and what we do. He needed a lawyer.”
“You’re in a philosophical mood tonight.”
“It happens when I’m tired. Besides, he isn’t a bad kid. He just ended up in the wrong place at the wrong time.”
She turned serious. “You got anything else?”
“If you’re asking if we have any hard evidence that might get us an easy acquittal, the answer is no.”
“Is there a ‘but’?”
“Just a hunch. It seems like a thoughtful jury. We’ve cast doubt on whether Tho had a gun. Our lipreader will testify that Tho didn’t ask for money. That might be enough to keep them from convicting Thomas.” I added, with a smile, “It helps that Rolanda is a very good lawyer.”
Rosie beamed. “Are you going to let her take a couple of witnesses tomorrow?”
“I’m going to let her take the lead. She’s connecting with the jury. They like her.”
“I was thinking the same thing.”
“You should come and watch her work her magic.”
“I’ll be there.”
* * *
Pete knocked on the open door to my office. “Got a sec?”
“Yeah.”
He took a seat on the corner of my desk. “I need to show you something.” He pulled out his iPhone and showed me a photo of a weedy field surrounded by bamboo trees. “My guy in Vietnam just sent it over. It was taken in an old cemetery near a village called Cib Tran Quang.”
I looked at my brother. “Is this where Tommy is buried?”
“Could be. They can’t tell for sure. The cemetery hasn’t been used in years. Most of the markers are gone. The few that are left are almost impossible to read.”
“How many graves were there?”
“Maybe a hundred. There is a chance that there are some remnants of decomposing bones—if they can find the right grave. They might be able to do DNA testing.”
“What are the odds?”
His lips turned down. “I’d say about one in a thousand.”
Not great. “Tommy had a couple of gold fillings that wouldn’t have decomposed. I still have his dental records.”
“You kept them all these years?”
“You never know.”
“My guy in Vietnam has connections with the government. They said they’d let him take a look.”
“That’s all we can ask.”
He smiled. “He just needs to find a couple of gold fillings smaller than a baby aspirin in the middle of a graveyard that was abandoned thirty years ago.”
“I didn’t say this was going to be easy.”
My cell phone rang. Erickson’s name appeared on the display “Hi, Andy,” I said.
His voice was tense. “I need to see you right away. Something has come up.”
48
“WE FOUND ANOTHER WITNESS”
Erickson’s tone was subdued. “We found another witness.”
I was sitting in the chair opposite his desk. “It’s too late to add a witness. You’ve finished putting on your case.”
“We’ll talk to the judge.”
“She’s a stickler. She won’t let you do it.”
“I think she will.” He handed me a copy of a draft motion, which I shared with Rolanda. “In the spirit of fair play, I wanted to let you know that we’re filing papers tomorrow.”
Rolanda answered him. “We’ll oppose it.”
“If I were in your shoes, I would do the same thing.”
“Who is the witness?”
“His name is Tran Vu.”
“And who is Tran Vu?”
“The guy who sold the Kel-Tec to Duc Tho.”
Not good. “The judge won’t allow it. We haven’t had an opportunity to question him.”
“That’s why I called you.” Erickson pointed at the door. “Vu is sitting down the hall.”
* * *
Tran Vu tugged the sleeve of his orange jumpsuit. “Who the hell are you?”
“Michael Daley. I’m representing Thomas Nguyen.”
“I got nothing to say to you.”
Vu was sitting between Erickson and his lawyer in a steamy conference room. The only illumination came from a flickering light. Vu’s attorney was a small-timer who worked out of an office that he sublet from one of the bail bond shops across the street from the Hall. A burly sheriff’s deputy stood guard at the door.
Vu’s lawyer spoke to his client in an even tone. “We talked about this, Tran.”
“I didn’t agree to an intervie
w with Nguyen’s lawyers.”
“If you don’t help Mr. Erickson, I can’t help you. Tell Mr. Daley what you told us.”
Vu frowned. He was a muscular young man with a shaved head and a world of attitude who had condensed a lifetime of criminal activity into the past five years. According to the rap sheet that Erickson had graciously provided, Vu started stealing cars before he was old enough to drive. He soon graduated to drug dealing, armed robbery, and extortion. He’d worked his way up the criminal ladder in the Tenderloin on an expedited basis—sort of like the kids who get their MBAs in a year and a half by going to summer school—except the curriculum is different.
Vu’s lips turned down. “I sold a gun to Duc Tho.”
“When?” I asked.
“A couple of weeks before he died.”
“What kind?”
“A Kel-Tec P-3AT.”
“You remember the exact make and model?”
“I know guns.”
I believed him. “How much did he pay you?”
Vu’s eyes narrowed. “Two hundred dollars.”
“Had you ever done business before?”
“No.”
“Where did you get the gun?”
He smirked. “I found it in a Dumpster.”
He was lying, of course. “I take it that you didn’t turn it in to the police?”
Vu’s lawyer fingered the stud in his ear. “You don’t need to answer him, Tran.”
Erickson interjected. “Yes, you do.”
“No, I didn’t turn in the gun.”
“Which means that your possession of it was illegal.”
His smirk widened. “I didn’t have time.”
Right. “Because you sold it to Tho.”
“Yeah.”
“And it just so happens that the gun you sold to Tho was the same one that they found at the liquor store where he was killed?”
“I don’t know. All I know is that I sold him a Kel-Tec a couple of weeks before he died.”
“Did you remove the serial number and all of the identifying information on the gun?”
“I don’t know anything about that. I sold it as-is.”
Sure. “Where do you live, Tran?”
Felony Murder Rule Page 20