Chapter 1 of Final Verdict, ©2003 Sheldon M. Siegel, Inc.
Rosita Fernandez, Michael Daley and Carolyn O’Malley announce the re-opening of the law offices of Fernandez, Daley and O’Malley, at 84 First Street, Suite 200, San Francisco, California 94105. The firm will specialize in criminal defense law in state and federal courts. Flexible fee arrangements are available for clients with demonstrated financial needs. Referrals welcome.
San Francisco Daily Legal Journal. Wednesday, June 1
Judge McDaniel’s chin is resting on her left palm and her light brown hair is pulled back into a tight ball. She arches a stern eyebrow in my direction and says, “We haven’t seen you in quite some time, Mr. Daley.”
I sense that she may be somewhat less than ecstatic to see me.
I dart a glance at my law partner and ex-wife, Rosita Fernandez, who is sitting in the front row of the otherwise empty gallery. Rosie stopped by to offer moral support after she’d finished a DUI case next door. I suspect she’d rather be spending her forty-fifth birthday in more elegant surroundings. I’ll make it up to her over the weekend.
I turn back to Judge McDaniel and try to strike an appropriately deferential note. “Ms. Fernandez and I took a year off to teach law in Berkeley,” I tell her. “We recently returned to private practice on this side of the Bay.”
There’s more to the story. Rosie and I have been representing criminals for a living for the past fifteen years, first as public defenders, and more recently in private practice. About a year ago, we decided to take a break after we defended Rosie’s niece, who was accused of murdering a megalomaniac Bay Area movie director who also happened to be her husband. In an attempt to stabilize our schedules, collect some regular paychecks and spend more time with our eleven year-old daughter, Grace, we took a sabbatical to run the death penalty clinic at my alma mater, Boalt Law School. It didn’t work out the way we had hoped. We traded the headaches of running a small law firm for the heartaches of supervising a half dozen death penalty appeals and we spent what little free time we had trying to raise money to keep the clinic afloat. Most defense attorneys don’t hang out with people who have hundred dollar bills burning through their pockets unless the money happens to be stolen. Our noble experiment in academia ran its course when the school year ended a few weeks ago.
Judge McDaniel’s round face rearranges itself into a bemused look. The former prosecutor came to the law after raising her children, and unlike most of us who work in this building whose idealism gave way to cynicism long ago, she relishes every moment she spends on the bench. I can make out the hint of the drawl that is the last remnant of her proper Southern upbringing when she says, “Academia’s loss is our gain, Mr. Daley.” The corner of her mouth turns up slightly as she adds, “I take it you taught your students to comport themselves with the same professionalism and dignity that you have always exhibited in this courtroom?”
“Absolutely, Your Honor.”
Rosie and I are unlikely to win any popularity contests in the Hall. The criminal justice system in our hometown is an incestuous little Peyton Place where the prosecutors, police officers, defense attorneys, and, yes, judges, get to know each other pretty well–some would say too well. Our reputation as effective–and zealous–defense attorneys accompanies us whenever we enter the imposing gray structure where Judge McDaniel and her overworked colleagues do their best to mete out justice as fairly and expeditiously as they can.
She isn’t finished. “And I trust you instructed them to demonstrate the same respect that you have shown to this court?”
“Yes, Your Honor.”
“Glad to hear it, Mr. Daley.” Her smile disappears. Time to get down to business–at least until the lunch bell rings. “What brings you back to my courtroom?”
I try to keep my tone perfectly even when I say, “A chicken, Your Honor.”
A rookie ADA named Andy Erickson is getting his feet wet today. The earnest USF grad was an all-area baseball player at St. Ignatius and his new gray suit hangs impressively on his athletic frame. He’s going to be a good prosecutor when he grows up, but it’s his first time at the plate and he’s a little nervous as he tries to muster an appropriately prosecutorial tone. “Mr. Daley is attempting to minimize the seriousness of this case,” he says. “The defendant violated Section Two-Forty-Five-A-One of the Penal Code. He committed a felony.”
I’ve never been impressed by people who recite Penal Code section numbers. The judge’s pronounced scowl suggests she isn’t, either. In English, Andy is saying that the tall African American man sitting to my left has been charged with assault with a deadly weapon.
Show time. I give young Andy a patronizing look and begin the usual defensive maneuvers. “My client has been accused of a felony,” I say. “Whether he’s guilty is a matter for a jury to decide.”
Welcome to the practice of law, Andy. And you’re right: I am trying to minimize the seriousness of this case. That’s my job. My client, Terrence Love, is a soft-spoken, good-natured thug who makes ends meet by taking things that don’t belong to him. That’s his job. I represented him for the first time when I was a PD and I help him out from time to time for sentimental reasons. He’s never hurt anyone and he uses his loot to pay for booze and a room in a flophouse. On those rare occasions when he’s particularly flush, he pays me. I’ve suggested to him that he might consider a more conventional–and legal–line of work, but he’s elected to stick with what he knows best. He’s spent about a third of his forty years in jail. He’s been drug-free for almost two years now, but sobriety has been more elusive.
Andy furrows his brow and says, “The defendant has a long rap sheet, Your Honor.”
Nice try. Every baby prosecutor nowadays tries to sound like Sam Waterston on Law and Order. Luckily for Sam, his cases on TV are resolved in an hour or so, minus time for commercials, credits and a preview of next week’s show. Andy will find out soon enough that things don’t always go quite so smoothly out here in the real world–especially when he has to deal with pesky defense attorneys like me. He’ll calm down in a few weeks. I’ll ask him if he wants to go out for a beer when we’re done. We’ll be seeing each other again–probably soon.
I keep my tone conversational. “Your Honor,” I say, “the prosecution has blown this matter out of proportion.”
There’s more at stake than I’m letting on. Terrence has been convicted of two prior felonies. If he goes down again, he could be in jail for a long time–perhaps even for life–under California’s mandatory “three strikes” sentencing laws.
Judge McDaniel stops me with an uplifted palm. “Mr. Daley,” she says, “this is an arraignment. Your client is here to enter a plea.”
“Your Honor, if we could talk about this for just a moment–”
“If you’d like to talk about anything other than your client’s plea–including the subject of chickens–you’ll have to save it for the preliminary hearing.”
“But Your Honor–”
“Guilty or not?”
She sets a date for a preliminary hearing a week from today. She’s about to bang her gavel when I decide to take a chance and break a fundamental rule of courtroom etiquette by addressing her without an invitation. “Your Honor,” I say, “if we could discuss this, I think we can come to a fair and reasonable resolution that will be satisfactory to all parties and will not require us to take up more of your time.”
I would never think of asking for anything that’s less than fair and reasonable and judges are often receptive to suggestions that might alleviate congestion in their overcrowded dockets.
She points to her watch and says, “You have two minutes.”
It’s more than I thought she’d give me. “As I said, this case is about a chicken.”
She mimics a basketball referee by holding up her hands in the shape of the letter T. “Time out,” she says. “Your client is charged with assault with a deadly weapon.”
“Yes, he is, Your Honor, but there are mitigating circumstances.”
“There are always mitigating circumstances when you appear in this courtroom.” She turns to Andy Erickson for help. “What’s this all about?”
Perfect. I’ve done nothing other than to question the charges, and now she’s making poor Andy explain it. It’s time for me to shut up and let him tell his story.
I can see beads of sweat on his forehead, and I’ll bet his armpits are soaked under his new suit. He studies his notes and then looks up at the judge. To his credit, his tone is professional when he says, “The defendant attacked Mr. Edward Harper, who was seriously injured.”
Not so fast. “It was an accident,” I insist. “Mr. Harper had a couple of scratches.”
The judge exhales loudly and asks me, “Where does a chicken fit into this?”
Here goes. “My client purchased a fully-cooked roasted chicken at his local supermarket.” My tone suggests he wandered into the upscale Safeway in the Marina District. In reality, Terrence patronized a deli on the blighted Sixth Street skid row just north of here. “Then he stopped at a nearby liquor store to purchase a beverage.” King Cobra is popular on Sixth Street because it’s cheaper than Budweiser and comes in a larger bottle. “He inadvertently left the chicken on the counter at the liquor store.” Actually, he was in such a hurry to crack open his King Cobra that he forgot all about the chicken. “He realized his mistake and returned a few minutes later, where he found Mr. Harper walking out of the store with his dinner. He politely asked him to return it.” Politeness is in the ears of the beholder. Terrence bears an uncanny resemblance to Shaquille O’Neal and outweighs Harper by more than a hundred pounds. They live in the same dilapidated residential hotel and have had several run-ins. Terrence probably told him to give back the chicken or he’d beat the hell out of him. “Mr. Harper refused and a discussion ensued, followed by some inadvertent shoving.” In the world of criminal defense attorneys, shouting matches are always characterized as discussions and shoving always happens inadvertently.
Erickson finally stops me. “The defendant hit Mr. Harper intentionally,” he says. “He attempted to inflict great bodily injury.”
It’s a legitimate legal point. The Penal Code says you’re guilty of a felony if you assault someone with a deadly weapon or by means of any force that’s likely to produce great bodily harm. In the absence of a gun or a knife, prosecutors usually argue the latter. Theoretically, you can be convicted of hitting somebody with a Nerf ball if the DA can show your action was likely to result in a serious injury.
I invoke a time-honored legal tactic used by defense attorneys and second graders: blame the other guy. “Your Honor,” I say, “Mr. Harper started it by stealing Mr. Love’s chicken. My client had no intention of injuring him. Mr. Love simply asked him to return his dinner. When he refused, Mr. Love had no other choice but to attempt to take it from him, resulting in an inadvertent struggle.” I’m laying it on a little thick when I add, “My client didn’t press charges against Mr. Harper for stealing his chicken. Mr. Love also suffered a gash on his head.”
It was a scratch, and it’s unclear whether Harper inflicted the less-than-life-threatening wound. For all I know, Terrence could have nicked himself while shaving his bald dome.
This time Erickson comes back swinging. “Your Honor,” he says, “Mr. Daley is intentionally mischaracterizing the circumstances surrounding this vicious attack.”
Yes, I am.
He points a finger at Terrence and adds, “The defendant struck Mr. Harper with a deadly weapon.”
He was doing pretty well for awhile, but now he’s overplaying his hand. It’s a common rookie mistake–especially in front of a smart judge like Betsy McDaniel. I read the expression on her face and keep my mouth shut. She gives Erickson an irritated look and says, “What deadly weapon did he use?”
I was hoping she was going to ask.
Erickson realizes he’s in trouble. He lowers his voice and says, “The chicken.”
Game over. One might say Andy’s goose–or chicken–is cooked. Judge McDaniel gives him a quizzical look when she asks, “Are you suggesting a chicken is a deadly weapon?”
Unfortunately for Andy, he just did. He has no choice. “Yes, Your Honor.”
I say to the judge, “Your Honor, with all due respect to Mr. Erickson, when I read the Penal Code, a chicken is not a deadly weapon, and assault with a deadly chicken is not a crime.”
I catch the hint of a grin from the judge.
Andy tries again. “The defendant was a professional boxer,” he says. “He was known as Terrence ‘The Terminator’ Love.”
Judge McDaniel’s stomach is growling. She points her gavel at him and says, “So?”
“In the hands of a trained fighter, even a seemingly innocuous item such as a chicken can be deadly. Some states have gone so far as to provide that the hands of a licensed boxer can be construed as lethal weapons.”
“California isn’t one of them,” I interject. “Our statute is silent on the issue and there are no California cases holding that the hands of a professional boxer are deadly per se. In fact, there are California cases that hold that hands and feet are not deadly weapons.”
Erickson says, “In the hands of a former boxer, even the smallest item can be deadly.”
Judge McDaniel gives me a thoughtful look and says, “There is some authority to support Mr. Erickson’s position under current California law. If I hit you with my gavel, it would hurt, but it’s unlikely that I could inflict serious damage. Given your client’s size and strength, the same cannot be said for him.”
True enough. I hope she isn’t going to put her theory to a test by handing her gavel to the Terminator. I start to weave. “Your Honor,” I say, “the cases have construed certain items, such as guns, knives, chains and tire irons, as inherently deadly. Other objects must be evaluated on a case-by-case basis, taking into account the circumstances of their use and the size and strength of the person holding them.”
She isn’t buying it. “Your client is a trained fighter who weighs over three hundred pounds. What’s your point?”
“Other factors should be taken into consideration.”
“There’s a reason he’s no longer boxing.”
“And that would be?”
“He wasn’t very good at it.”
“Objection, Your Honor,” Erickson says. “Relevance.”
I show a patient smile. “Your Honor,” I say, “Mr. Erickson’s position turns on the issue of whether a chicken became a deadly weapon in my client’s hands.” I turn to the Terminator and say, “Would you please tell the judge your record as a boxer?”
He gives her a sheepish look and says, “Zero and four.”
I feign incredulity. “Really? You fought only four times and you never won a fight?”
His high-pitched voice is child-like when he says, “That’s correct.”
“Did you ever manage to knock anybody down?”
“No. I have soft hands.”
“What does that mean?”
“I couldn’t hit anybody hard enough to knock them out.”
I glance at Rosie, who signals me to wrap up. I say to the judge, “In light of this testimony, we respectfully request that the charges be dismissed as a matter of law.”
Judge McDaniel’s poker face gives way to a wry grin. Erickson starts to talk, but she cuts him off with a wave and asks him, “Are you aware that Mr. Love could be sentenced to life in prison if he’s convicted?”
“Yes, Your Honor.”
She sounds like my third grade teacher at St. Peter’s when she asks, “Do you really expect me to send him away because of a shoving match over a chicken?”
“Mr. Harper had to go to the hospital, Your Honor.”
She looks at the clock and starts tapping a Bic pen on her bench book. She sighs heavily and says to nobody in particular, “Gentlemen, how are we going to resolve this?”
Erickson glances at me for an instant, then he turns to the judge and says, “Your Honor, we’re prepared to move forward.”
He’s exhausted her patience. She points her pen at him and says, “You aren’t listening to me, Mr. Erickson. How are we going to resolve this?”
It’s the opening I’ve been waiting for. “Your Honor,” I say, “I’ve tried to persuade Mr. Erickson that this matter can be resolved without any further intervention by this court.”
“What do you have in mind, Mr. Daley?”
I try to strike a tone of unquestionable reason when I say, “Mr. Love will apologize to Mr. Harper for inadvertently hitting him, and Mr. Harper will apologize to Mr. Love for accidentally taking his chicken. In the spirit of cooperation, my client won’t press theft charges.”
The judge mulls it over and says, “What else can you offer, Mr. Daley?”
I need to sweeten the pot. “In an effort to conclude this matter amicably, I will take everyone, including Mr. Harper and Mr. Erickson and Your Honor, across the street for lunch. The roast chicken is pretty good.”
It takes the judge a moment to warm up to my proposal. Finally, she says, “Sounds fitting.” She turns to Andy and adds, “That’s going to work for you, isn’t it, Mr. Erickson?”
“Your Honor,” he says, “you can’t simply dismiss the case.”
“Yes, I can.” She points a finger at him and adds, “If you plan to work here for any length of time, you would be well advised to keep that in mind before you press felony charges against somebody who got into shoving match over a chicken.”
Andy Erickson’s initiation is now complete.
The judge says to him in a tone that leaves no room for negotiation, “Mr. Daley’s proposal is acceptable to you, isn’t it, Mr. Erickson?”
“I guess so, Your Honor.”
She bangs her gavel. “Case dismissed, subject to Mr. Daley agreeing to take the defendant, Mr. Harper and Mr. Erickson to lunch. I will expect all of you to behave in a civil manner and I don’t want to see any of you back here this afternoon. Understood?”
Erickson and I mumble in unison, “Understood.”
The judge grins at me and says, “I’m going to pass on your generous offer to join you.”
“Perhaps another time.”
“Perhaps.” She stands and says, “It’s nice to have you back, Mr. Daley. You bring a certain practical expedience to our proceedings, along with some badly-needed humor.”
“Thank you, Your Honor.”
The smile leaves her face as she adds, “I trust you won’t be back in my courtroom anytime soon.”
“No, Your Honor.”