Special Circumstances
Incriminating Evidence
Criminal Intent
Final Verdict
Judgment Day
Judgment Day
Perfect Alibi
Felony Murder Rule
The Terrorist Next Door
  Chapter 1 of Felony Murder Rule, 2017 Sheldon M. Siegel, Inc.

 

1
 "I NEED YOUR HELP"

The waif-thin woman eyed me nervously from the creaky swivel chair opposite my gunmetal gray desk. Melinda Nguyen tugged at her shoulder-length black hair flecked with silver and spoke to me in a tense whisper. "I need your help, Mr. Daley."

When you're the co-head of the Felony Division of the San Francisco Public Defender's Office, everybody needs your help.

I took a sip of room-temperature Diet Dr Pepper from a can I'd bought on my own dime. The Great Recession had nearly wiped out the rest of the U.S. economy, but business was still brisk at the P.D.'s Office. Our caseloads were heavier than ever, but our overextended budget left little room for even modest amenities like free sodas. Or, for that matter, air conditioning. The latter was especially unfortunate because summer weather had arrived in San Francisco right on schedule—on the first day of fall. At eight a.m. on Thursday, September twenty-first, the sunshine was fighting a losing battle to find its way through my dirt-encrusted window, and it was almost ninety degrees inside my ten-by-twelve-foot office. I'd been at my desk for almost two hours, and I was late for a staff meeting. Life at the P.D.'s Office in the new millennium was strikingly similar to the old one.

"Ms. Nguyen—,"

"It's Melinda, Mr. Daley."

Fine. "And I'm Mike."

"Okay."

She was dressed in a plain white blouse from the racks at Target. She wore no makeup. Her delicate features suggested that she could have been in her twenties, but the worry lines on her forehead and the tic at the corner of her mouth indicated that she was older. Her eyes were as pale blue as the San Francisco sky, hinting that someone in her ancestral chain may have come from somewhere other than her native Vietnam.

She took a deep breath and spoke to me in a hushed tone. "My son needs a lawyer."

My lungs filled with stale air as I looked around at the sagging bookcases and mismatched file cabinets in the office where I'd worked for eighteen months. My digs were an upgrade from my first stint at the P.D.'s Office two decades earlier, when we were still housed at the old Hall of Justice in a musty bullpen with leaky windows, spotty plumbing, and inadequate ventilation. During the heady economic times of the late nineties, we moved a block south into a remodeled cement bunker on Seventh Street with a labyrinth of narrow hallways and the ambiance of an auto repair shop. A decade and a half of deferred maintenance later, it, too, had leaky windows, spotty plumbing, and inadequate ventilation. And I was lucky—I had a window and I didn't have to share my office with a Deputy P.D.

"What's your son's name?" I asked.

"Thomas Nguyen."

Got it. He was about to go on trial for first degree murder in connection with a botched armed robbery at a liquor store in the Tenderloin. The case was generating more buzz than usual because Thomas hadn't entered the store or fired a shot. The victim was his accomplice, a small-time drug dealer named Duc Tho, who had gone inside and allegedly flashed a Saturday Night Special. The shopkeeper pulled out a Bushmaster AR-15 semiautomatic assault rifle—purchased legally in Nevada—and filled Tho's chest with bullets—right in front of the cash register in view of the security camera. He calmly called the cops, who arrested Nguyen without incident as he was sitting in the car. Nguyen claimed he didn't know that Tho had a gun.

You might think the owner of the store would have been charged with a crime, but SFPD decided he'd acted in self-defense—not an entirely unreasonable conclusion in the circumstances—and he walked away scot-free. My respected colleagues at the D.A.'s Office figured they had to charge somebody with something. After all, Duc Tho was still quite dead. Instead of accusing Nguyen of conspiracy or attempted robbery, they charged him with first degree murder under California's so-called "felony murder rule," which says you can be convicted of murder if someone—even a fellow perpetrator—is killed during the course of a felony. Ordinarily, the rule doesn't apply if the fatal shots are fired by somebody other than one of the perps—like, say, a shopkeeper who is being robbed. Then again, it isn't a newsflash that the hardworking professionals at the D.A.'s Office occasionally overcharge and negotiate deals for lesser offenses. Coincidentally, this seems to happen more frequently during election years. In any event, that's how a senior at Galileo High who was sitting in a beat-up Honda and listening to Kanye West on his iPhone ended up facing twenty-five to life. The workings of the criminal justice system in the new millennium were also strikingly similar to the old one.

"I thought Sandra Tran was representing your son," I said.

"Not anymore."

Sandy Tran had started at the P.D.'s Office shortly before I'd left. She went into private practice after a decade as a Deputy Public Defender. She was a savvy legal tactician and a gifted trial lawyer who represented members of San Francisco's Vietnamese gangs. "She couldn't have quit four days before trial. That would have violated the California Rules of Professional Conduct." And it would have been a really crappy thing to do.

"Thomas fired her last night. She wanted him to accept a plea bargain."

"That's between your son and Ms. Tran." It wasn't the first time that a client had disagreed with his attorney on the eve of trial. It was also conceivable that Sandy had gotten herself fired for tactical reasons. Maybe she thought the case was a loser or she was trying to buy time. Over the course of my long and occasionally illustrious career, I'd invoked a similar strategy from time to time. It rarely changed the ultimate outcome of the case, but it gummed up the wheels of justice for a few months. Sometimes, that's the best you can do. "Ms. Tran will arrange for a new attorney for your son."

"She's talking to the judge right now."

"They'll work it out." They had no choice, and it wasn't my problem—yet. I glanced at my watch. "I'm due in a meeting. Why did you want to see me?"

"Thomas needs a new lawyer."

Here we go. "Putting aside the question of whether it was a good idea for your son to fire his attorney on the eve of trial, our office isn't allowed to take his case just because he was unhappy with his lawyer. We only represent defendants with demonstrated financial need."

After a year and a half back in the saddle at the P.D.'s Office, bureaucrat-speak was flowing naturally again.

"I have no money, Mr. Daley. I paid everything I had to Ms. Tran. For the last two months, she hasn't charged us."

"If you want to request our services, you'll need to complete some paperwork, talk to one of my colleagues, and provide financial information. Are you employed?"

"I clean apartments when I can. I have a bad back."

"Any money in the bank?" I didn't enjoy asking strangers about their finances, but it was my job.

"About four hundred dollars."

It would have paid for a couple of hours with a private lawyer. I didn't ask how she managed to pay her rent—if she had an apartment. "I'll set up a meeting with one of our attorneys. If you meet our requirements, we'll petition the judge to let us represent your son. It'll take a day or two."

"Thomas's trial starts on Monday."

"I'm sure that Ms. Tran has already requested a delay."

"What if the judge says no?"

Your kid is screwed. "If we're appointed, we'll ask for a continuance."

"I was hoping you might be willing to handle Thomas's case yourself."

I used to be a pretty soft touch when I was in private practice. Nowadays, it was easier to say no. I wasn't unsympathetic, but my plate was overflowing with the mundane—and essential—administrative tasks of my job. "Until the judge authorizes our office to represent your son, I'm not allowed to give you legal advice. In fact, I'm not supposed to talk to you. Even if we're appointed, I don't have time to do trial work."

"I was hoping you'd make an exception. I've read about you. The State Bar Journal said you were one of the best Public Defenders in California."

That was almost a quarter of a century ago. Since then, I'd gotten a few high-profile acquittals between countless convictions and plea bargains. A losing record comes with the territory when you represent criminals for a living. I went to law school after a brief and undistinguished career as a priest. I joined the P.D.'s Office hoping to change the world—or at least help a few people like Thomas Nguyen. Things didn't work out exactly as I'd planned, although I did meet my then future- and now ex-wife, Rosita Fernandez, who was the co-head of the Felony Division. She was sitting two doors down the hall.

I reverted to old habits and invoked my confession voice. "If your son qualifies for our services, I'll assign one of our best attorneys to his case."

"Would you be willing to meet him?"

"It would be more productive to spend time with his new lawyer."

Her tic became more pronounced. "Thomas was going to graduate near the top of his class at Galileo. He was working part-time and saving money to go to State. He didn't even go inside the liquor store."

"I'm sure Ms. Tran explained that you can be charged with murder if someone is killed during a felony—even if you don't fire a shot."

"It isn't right."

"It's still the law."

Her voice filled with desperation. "I'm begging you to make an exception, Mr. Daley."

"I can't."

"Yes, you can. And you should."

"Why?"

"It's personal." Her eyes darted. "Would you mind if I close your door?"

"Why don't you leave it open and tell me what this is about."

"I knew your brother."

My younger brother was a former cop who now worked as a private investigator. "How do you know Pete?"

"I knew your older brother."

What the hell? "Tommy died in a plane crash in Vietnam almost forty years ago."

"He died in Vietnam, but not in a plane crash."