Chapter 2 of Final Verdict. ©2003 Sheldon M. Siegel, Inc.
"Death penalty cases take on a life of their own."
Michael Daley. Boalt Law School Monthly.
“The Terminator seemed very appreciative,” Rosie says. Her full lips form a magic smile and her cobalt eyes gleam as she’s sitting on the windowsill in my cramped office at two o’clock the same afternoon. Her short, jet-black hair is backlit by the sunlight that’s pouring in through the open window.
“He always says thank you,” I tell her.
I just got back from my lunch with Terrence Love, Ed Harper, and my new friend, Andy Erickson. Terrence and Ed didn’t speak to each other the entire time, but it wasn’t a total waste. I found out that Andy shares Giants’ tickets with a couple of the other junior DAs. Even bitter adversaries are willing to put aside their differences every once in awhile to sit in the lower deck behind first base at PacBell Park. Regrettably, I was unsuccessful in my attempt to negotiate a couple of seats for the Dodgers’ series next week.
Rosie’s grin turns sly and the lines at the corners of her eyes become more pronounced as she deadpans, “I’m sure our former colleagues at Boalt will be writing law review articles about your state of the art, ‘Assault with a Deadly Chicken’ defense.”
“It’s nice to know the magic tricks are still working.”
“You got a good result for him.”
Yes, I did. I take a long drink of my Diet Dr Pepper and soak up the ambiance of our elegant surroundings. The world headquarters of Fernandez, Daley and O’Malley is housed in a rundown eyesore a half block north of the Transbay bus terminal in one of the last remnants of an era when this was the earthy side of downtown. We’re surrounded by office towers that were built in the go-go days of the late nineties.
The prior occupant of our space was Madame Lena, a tarot card reader who put her professional skills to good use when she correctly predicted the dot-com collapse six months before it happened. She made a killing on the NASDAQ and now tells fortunes from a condo on a golf course in an upscale retirement community outside Palm Springs. As a small token of her appreciation for our agreement to take over her lease, she gave me a faded poster of the signs of the zodiac that still hangs on the wall above my metal desk. We have a slightly better view than we did at our old place around the corner on Mission Street in a now-demolished former martial arts studio. The smell is better, too. Instead of inhaling the pungent odors of the offerings from our old neighbor, the Lucky Corner Chinese restaurant, we enjoy the aroma of burritos from El Faro, the Mexican place downstairs.
Rosie hasn’t finished her post mortem on this morning’s proceedings. She plants her tongue firmly in her cheek and says, “You were very entertaining. The only thing missing was a big box of popcorn and a Diet Coke.”
“If the law thing doesn’t work out, I can always try stand-up.”
She leans across my desk, pecks me on the cheek and says, “In my capacity as the managing partner of this firm, I’m compelled to ask you an important question.”
“And that would be?”
“Is the Terminator planning to pay us?”
Always the unyielding voice of practicality. We met at the San Francisco Public Defender’s Office. I was an idealistic new lawyer who had survived three difficult years as a priest, and she was a savvy PD who had survived three difficult years in a bad marriage. She taught me how the criminal justice system works and provided some remedial lessons on certain practical matters that I had neglected during my years in the Church. You might say she was a full service mentor. In a moment of great romance and questionable judgment, we got married after a brief and highly acrobatic courtship. Grace arrived a couple of years later. Then things went south. We still love each other in ways that most people can only dream about, but we can get on each other’s nerves in ways that would give the same people nightmares.
We left the PD’s office when our marriage broke up. Rosie opened her own firm and I went to work for Simpson and Gates, a tony downtown shop at the top of the Bank of America building. Our professional paths intersected again four years ago when the Simpson firm showed me the door because I didn’t bring in enough business. I subleased an office from Rosie and asked her to help me when one of my former colleagues was accused of murder. It was an unlikely genesis for a law firm, but we’ve always been good at working together.
Living together has been a bumpier ride. We’ve tried on countless occasions to go our separate ways, but we seem to be drawn back to each other by forces that we can’t control, as well as a compelling bond in Grace. Things came to a head about a year ago when Rosie was battling breast cancer. In terms of raw fear and anxiety, it was far more difficult than the darkest times of our divorce. She’s been cancer-free for eight months, but her emotional battle scars are taking longer to heal. She freely acknowledges that her mood swings can be difficult to predict. We’re dealing with it. After a brush with mortality, we finally acknowledged something that everyone around us had been telling us for years: we’re going to be a permanent couple. It’s unlikely that we’ll ever remind anybody of Ozzie and Harriet and we still have separate places in Marin County. It’s a long shot that we’ll ever live under the same roof and the chances that we’ll get married again are slim, although neither of us would rule it out completely. It’s nice to have sex from time to time, too–especially with somebody who is as skillful at it as Rosie.
I tell her, “Terrence was a little short. He said he’d try to get it to us next week.”
This elicits the familiar eye roll. “Same old story,” she says. “He’s going to have to steal the money to pay us, isn’t he?”
“Doesn’t it bother you that he pays us with stolen cash?”
Defense attorneys try not to probe too deeply into the sources of our clients’ funds. “I never ask him where he gets the money. I don’t know for sure that it’s stolen.”
“Yes, you do. He’s going to call again next week. Sometimes I think he wants to go back to prison.”
Sometimes I think she’s right. “It keeps him away from the booze,” I say. “He gets medical attention, three squares a day and nobody bothers him. Prison is still one of the few places where size really does matter.”
She gives me a sardonic grin and says, “We gave up a sophisticated death penalty practice to cut deals for guys like Terrence the Terminator.”
We’ve covered this territory and I go with the old standby. “It pays the bills,” I say. “Terrence isn’t a bad guy. He’s never hurt anybody.”
“He’s a career criminal.”
“You’re always telling me we aren’t supposed to judge our clients.”
“We’re allowed to do it after they’ve been convicted a dozen times.”
I let Rosie have the last word on the moral ramifications of Terrence Love’s career choice and I shift to a more pleasant subject: our plans for the weekend. Grace has her Little League championship game tomorrow and I promised Rosie that we’d go out for dinner to celebrate her birthday. We told Rosie’s mom that we’d take her to the cemetery on Sunday.
My private line rings and I pick it up. “Michael Daley,” I say.
A confident baritone says, “It’s Marcus Banks.”
My antenna goes up. The dean of San Francisco homicide inspectors didn’t pull my name out of a hat and I’m reasonably sure he isn’t calling to congratulate us on the opening of our office. “What can I do for you, Marcus?”
“I have somebody who needs to talk to you.”
The line goes silent for a moment, and the next thing I hear is a raspy, “Michael Daley?”
I can’t place the voice, but I can tell immediately when one of my former clients is out of jail and looking for me. The fact that he’s with a senior homicide inspector isn’t a good sign. My heart starts to beat faster as I say, “This is Michael Daley.”
“It’s been a long time.”
Why do they always call on Friday afternoon?
Rosie gives me a circumspect look. She takes a sip of her ever-present Diet Coke and mouths the word, “Who?”
I cup my hand over the phone and whisper, “I’m not sure.”
She holds up her right index finger and asks, “Category One?”
Rosie divides the world into two broad groups. Category One consists of people who make her life easier, and Category Two includes everybody else. It’s a useful, albeit imperfect, rating system. Depending on her mood, I can switch from one category to the other several times a day. Every once in awhile, I seem to be in both groups simultaneously.
I hold up two fingers, then I put the phone back up to my ear and say, “Who is this?”
“An old friend.”
I hate cat-and-mouse. “Which one?”
I can feel a knot starting to form in the bottom of my stomach. Walker is another career criminal, but unlike Terrence the Terminator, he isn’t such a nice one. Rosie and I represented him ten years ago when we were PDs. He and his brother were accused of killing a convenience store clerk in a botched armed robbery. It wasn’t an experience that will make our personal highlight reels. I say, “It’s been a long time, Leon.”
A look of recognition crosses Rosie’s face. She makes no attempt to lower her voice when she asks, “Are you serious?”
I see her jaws clench, but she doesn’t say a word.
I turn my attention back to the phone, where Walker’s voice is becoming chatty. “I was afraid you’d forgotten me,” he says.
Not a chance. “What do you want, Leon?”
“I need your help. I’ve been arrested.”
I give Rosie a helpless look and tell her, “They’re saying he killed someone.”
She stares daggers at me and says, “We aren’t going to represent Leon Walker again.”
“Let me find out what’s going on.”
Her eyes narrow. “You’ll have to refer it to somebody else. We had an agreement.”
Yes, we did. When we left academia, we decided that we wouldn’t take on any murder cases. They’re emotionally draining and horrifically time consuming. Rosie’s energy still isn’t what it was before her cancer treatments and there will be fifty candles on the cake when I celebrate my next birthday. Most accused murderers don’t have a lot of spare cash to pay their lawyers. I cup my hand over the mouthpiece and repeat, “Let me find out what’s going on.”
Her tone turns emphatic. “Don’t let your benevolent instincts overrule your better judgment. I’m not going to try to deal with a murder case, menopause and breast cancer at the same time. We aren’t going to represent Leon Walker again.” She walks out of my office.
It’s great to be back in private practice. I say to Walker, “I’m going to have to refer you to somebody else.”
He gulps down a deep breath and says, “Can you come down here just for a few minutes? I’ll pay you for your time.” His voice is filled with the unmistakable sound of desperation when he adds, “Please, Mr. Daley. I don’t know who else to call.”
Hell. “Where are you?”
He gives me an address at a residential hotel in an alley off Sixth Street.
I tell him, “Let me talk to Inspector Banks.”
A moment later, Banks says,“You can meet us down at the Hall.”
“I’m only a few blocks from you,” I say. “I’ll come right over.”
He does a quick mental calculus. If he gives me a little access now, he may be able to cut off arguments about the securing of the crime scene and the admissibility of the evidence. He says, “We’ll be here for twenty minutes.”
“Understood.” I ask to speak to Walker again. Banks hands him the phone and I tell him I’m on my way. I’ll figure out a way to explain it to Rosie. We talk for another minute, but he provides no additional details. Finally, I ask him, “Why did you call me?”
“You’re the only person I trust. You were the only one who believed me last time.”
I’m about to walk out the door when our third partner, Carolyn O’Malley, stops me and says, “Rosie said you were on the phone with Leon Walker.”
At five-one and barely a hundred pounds, Carolyn is a tightly-wound bundle of nervous energy. She was a tenacious prosecutor for almost twenty years before an ill-advised affair with her former boss ended her career at the DA’s office. She joined our firm about two years ago and kept our office open while Rosie and I took our sabbatical in academia. She’s developed a reputation as a solid defense lawyer. I’ve known her since we were kids and we went out when we were in high school and college. I tried to persuade her to marry me, but she said no. Rosie says the only prerequisite for becoming a partner in our firm is that you must have had a failed relationship with me at one time or another.
She tugs at her short red hair and asks, “Why the hell did he call you?”
I’ve always been attracted to women who are not prone to pulling punches. “We represented him when we were PDs,” I tell her.
“I remember the case,” she says. “Have they identified the victim?”
“Not yet. The body was found behind a liquor store on Sixth Street.”
“Do you know the cause of death?”
“You’re a fountain of information. Who made the arrest?”
Her lips form a tiny ball. “He’s very good.”
“Are you going to represent Walker again?”
“I don’t know. I promised that I’d go down there and talk to Banks.”
“Rosie was very upset.”
“I’ll bet.” Leon Walker was an all-city basketball player at Mission High and got a scholarship to play at USF. His older brother, Frank, was an enforcer for a loan shark. Late one night, Leon went into a Seven-Eleven, bought a Coke and went back to the car. A masked man presumed to be Frankie walked in a moment later, pulled a gun and demanded money. When the clerk hesitated, the man shot him and fled. It was captured in loving detail on the store’s security camera. Leon and Frankie were stopped for running a red light a short time later. The police found a gun in the trunk and the brothers were charged with first degree murder.
Our guys didn’t come up with a particularly original alibi. Frankie claimed he never went inside the store and Leon corroborated his brother’s story. Unfortunately, they hadn’t noticed a woman in the gas station across the street who said she saw Frankie remove his mask as he was leaving the store. The bullets that killed the clerk matched the gun in the trunk.
The prosecution’s case went to hell before it got to trial. The security tapes were inconclusive for identification purposes because the gunman was wearing a mask that was never found. That made the testimony of the eyewitness crucial. She developed a case of selective amnesia and couldn’t–or wouldn’t–provide a positive ID. There were claims that Frankie’s associates had intimidated her. The DA’s nightmare became a full-blown disaster when a misguided judge ruled that the search of Leon’s car was illegal and that the gun was inadmissible at trial. The case fell apart without a videotaped ID, a solid witness or the murder weapon. It was a stunning and unexpected legal victory for Rosie and me, but it wasn’t a banner day for the criminal justice system.
There was no happy ending. Frankie was killed in a deluge of police fire during another armed robbery two weeks after the charges were dropped. Some people think the cops set him up. The chancellor at USF pulled Leon’s scholarship and he never played basketball again. He dropped out of school and has been living on Sixth Street ever since.
After the hoopla died down, a Stanford law professor published an analysis of the case in the State Bar Journal, in which he proclaimed that Rosie and I were the finest PDs in the State of California. Our fame was short-lived. An overzealous investigative reporter at the Chronicle was considerably less effusive. He accused us of manipulating the system and encouraging our clients’ friends to intimidate witnesses. More people read the Chronicle than the State Bar Journal and the mayor strong-armed the PD’s office into opening an investigation. Rosie and I were put on administrative leave for three agonizing months. The matter was eventually dropped.
Characteristically, Carolyn shows no visible reaction and provides the correct legal analysis. “You got a good result for your clients,” she says.
“Yes, we did.”
She arches an eyebrow and asks the question that defense attorneys are never supposed to answer. “Were they guilty?”
I give her the customary evasive response. “I don’t know.”
Not good enough for a former prosecutor. “Come on, Mike.”
I try to deflect in another direction. “Rosie thought so.”
“So did everybody working at the Hall at the time, including me.”
It doesn’t surprise me.
Her green eyes light up and she flashes the engaging smile that I saw so many times when she wanted something from me. “So,” she says, “what did you think?”
I try to disarm her by using her childhood nickname. “It doesn’t matter any more, Caro.”
She isn’t giving up. “Yes, it does–especially if you’re thinking about representing him.”
I’ll have to fess up sooner or later. “I believed Leon when he told me he didn’t know that his brother was going to rob the store.”
“How can you be so sure?”
“It was just a gut feeling. Unlike his brother, Leon wasn’t a garden variety punk. He was a smart kid and a starting forward on the USF basketball team. He wouldn’t have sacrificed a shot at the NBA for a few extra bucks.”
“Your conversation with Walker certainly pushed Rosie’s buttons.”
No doubt. Grace was a baby and Rosie and I were at each other’s throats during the investigation. She worked tirelessly to get the DA to offer the Walker brothers a plea bargain for voluntary manslaughter. I didn’t think the prosecutors could have proved their case beyond a Final Verdict and was dead set against any deals. So were the Walkers. We never had a chance to find out what a jury would have decided. From a professional standpoint, Rosie was pleased with the result, but personally, she thought two killers were set free. In all the years we’ve worked together, it was the only time I’ve seen her question the system.
I give my partner and ex-girlfriend a shrug. “There was more to it than you might think.”
“You guys disagree about everything. Why was it such a big deal?”
“The case ruined our marriage.”
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