1
“THAT WASN’T AN ESPECIALLY
WISE CHOICE”

The Honorable Robert J. Stumpf, Jr. scanned the empty gallery in his airless courtroom on the second floor of San Francisco’s crumbling Hall of Justice. He arched a bushy gray eyebrow over his aviator-style glasses, flashed a charismatic smile, and spoke to me in a melodious baritone. “Nice to see you, Mr. Daley. You haven’t appeared before me in several years.”

“Thank you, Your Honor. It’s good to be back.”

At ten a.m. on Wednesday, June third, Judge Stumpf’s courtroom smelled of mildew. The Hall of Justice had been declared unsafe in an earthquake, and the fifties-era warhorse was being mothballed department by department at a snail’s pace. The Southern Police Station had moved to the new headquarters near the ballpark. The Public Defender’s Office was around the corner on Seventh. The D.A. had relocated to a refurbished building at the foot of Potrero Hill. The Medical Examiner was now housed in a state-of-the art facility in India Basin.

On the other hand, some things hadn’t changed since I had first entered the Hall as a rookie Public Defender more than a quarter of a century earlier. You could still pay your parking tickets at the window in the lobby. The Homicide Detail was still ensconced on the third floor. The two dozen courtrooms and judges’ chambers were on the second and third floors. And the top two floors still housed the dingy County Jail Number 4, although most of the inmates were now located in the newer jail facility that was jammed between the Hall and the freeway in the nineties, or at County Jail Number 5, the Costco-like building fifteen miles south of here in the hills of San Bruno.

Judge Stumpf’s smile broadened. “Please give my best to our distinguished Public Defender.”

“I will, Your Honor.” My boss, Rosita Carmela Fernandez, was San Francisco’s first Latina Public Defender. She had recently won re-election for a second term. She was also my ex-wife and former law partner.

“Thank you, Mr. Daley.”

The lanky native of Southern Indiana and one-time backup center on the USF basketball team had been a Superior Court judge longer than I had been a lawyer. He was appointed to the bench by Jerry Brown during his first stint as governor. Judge Stumpf worked his way up to presiding judge where he remained entrenched even though he had turned seventy-five a few months earlier. Along the way, he earned a reputation as smart, thoughtful, and practical. His gregarious manner and acerbic wit complemented a keen intellect and a thoroughness that wasn’t always the norm among some of his colleagues. He still maintained a robust docket that put many of his younger associates to shame.

He rested his chin in his palm. “I didn’t expect to see the co-head of the Felony Division of the Public Defender’s Office here to argue a pre-trial motion.”

“I’m pinch-hitting for my colleague, Ms. Nikonova, who is returning from her honeymoon later today.”

His eyes lit up. “Nady and Max finally got married?”

“They did.”

“Splendid news. Please extend my best wishes.”

“I will.”

Nadezhda “Nady” Nikonova was a whip-smart fellow alum of the law school at UC-Berkeley. Her tenacity and work ethic were matched by her husband, Max, a partner at one of the big firms downtown. After a decade-long engagement, they had postponed their wedding twice. The first time, Nady was in the middle of a murder trial. The second time, Max was called in to handle a securities fraud case after one of his partners was unceremoniously fired for engaging in Harvey Weinstein-style behavior. The third time was the charm, and I had promised to keep an eye on Nady’s cases until she and Max got back from Maui.

Judge Stumpf’s expression turned serious. “I see that we’re here to discuss a motion to dismiss a grand theft charge against Rudolph Coleman.”

“That’s correct, Your Honor.”

“Is Rudy here?”

“He is.”

I nodded at the burly sheriff’s deputy, who escorted my client from the holding tank to the defense table. Rudy Coleman was an army vet and a decent guy who lived in a single-room occupancy hotel, or “SRO,” on Sixth Street, about a half mile north of the Hall. Now pushing fifty, the native of Hunters Point had completed two tours in Afghanistan. He returned depressed, disillusioned, and impulsive. He worked as a night clerk at a hotel in the Tenderloin for a couple of years until he began drinking heavily. Unable to hold a job, he started stealing to pay for the booze. Rudy wasn’t the brightest guy in the world, but he’d never hurt anyone. He was a regular customer at the P.D.’s Office.

He took the seat next to mine. He was sporting a standard-issue orange jumpsuit. His salt-and-pepper hair was buzzed short.

I leaned over and whispered, “You good to go?”

His eyes fluttered as he answered in a smoky rasp. “Yeah, Mike.”

“Judge Stumpf is a stickler for decorum. I need you to be respectful.”

“I know. I’ve been here before.”

The judge looked over at the prosecution table. “Good morning, Mr. Erickson.”

“Good morning, Your Honor.”

Andy Erickson had just turned forty. The alum of St. Ignatius High School (also my alma mater), USF, and USF Law School had spent fifteen years working the internal politics of the D.A’s Office until he was rewarded with a promotion to the head of the Felony Unit. Smart, meticulous, and, above all, patient, Andy was now angling for the Chief Assistant job with an eye toward an eventual run for D.A. While he wasn’t above throwing an occasional sharp elbow in court, he was generally a straight shooter, so I gave him a little more deference than some of the other hardworking public servants at the D.A.’s Office. In return, he let me use his dad’s tickets behind the Giants dugout once or twice a season.

The judge pointed his glasses at Erickson. “I take it that you and Mr. Daley have been unable to reach a resolution of Rudy’s case?”

“Correct, Your Honor.”

The judge turned to me. “What’s the issue, Mr. Daley?”

“Mr. Erickson has charged Rudy with felony grand theft under California Penal Code Section 487. However, Section 459.5 states that a person can be charged with grand theft only if he steals merchandise with a value greater than nine hundred and fifty dollars. Rudy did not.”

The judge shifted his gaze to Erickson. “I take it that you disagree with Mr. Daley?”

“I do, Your Honor.”

“Perhaps you could fill us in on the details?”

“Of course. At approximately ten-fifteen a.m. on Friday, May twenty-first, the defendant entered Liberal Jewelry and Loan on Sixth Street with intent to steal merchandise.”

I stopped him. “You don’t know what was going on inside Rudy’s head, Mr. Erickson.”

“Gimme a break, Mr. Daley.”

The judge mimicked a basketball referee by forming the letter T with his hands. “Time out, gentlemen. Let’s keep this professional.” He looked at Erickson. “Am I correct that Liberal Jewelry and Loan is a pawn shop?”

“It is.”

Located between a liquor store and the XXX Arcade and Adult Superstore, Liberal Jewelry and Loan was a landmark on skid row.

The judge looked at me. “Are you disputing that Rudy went inside the store?”

“No, Your Honor. But I am disputing Mr. Erickson’s contention that he did so for the purpose of stealing.”

Judge Stumpf had an excellent poker face, but his expression suggested skepticism. “Mr. Daley, why did your client go inside the pawn shop?”

“To buy bait.”

“Excuse me?”

“Worms, Your Honor. Rudy was going fishing.”

The judge looked at Rudy. “True?”

“Yes, Your Honor. I like to fish at the pier behind the Ferry Building. It’s relaxing.”

“You buy bait at a pawn shop?”

“Yes, Your Honor. The bait shop is connected to the pawn shop.”

“Really?”

“Really.”

Really. “Your Honor,” I said, “in a rather unusual example of business integration, the owner of Liberal Jewelry and Loan also owns its next-door neighbor, Liberal Fishing Tackle and Supply. To get into the fishing store, you enter through the pawn shop and turn left.”

“Seriously?”

“Seriously. The fishing store has been there almost a hundred years. The pawn shop came along a little later. The former owner of the fishing store sold both storefronts to the current owners of the pawn shop, who decided to keep the fishing store. Incidentally, the pawn shop also has a location in Santa Rosa, but it isn’t connected to a fishing store.”

“Uh, right.” He turned to Erickson. “Putting aside the issue of why Rudy entered the store, did he actually take anything?”

“Yes, Your Honor. The defendant entered the pawn shop while the manager was assisting a customer.” Erickson held up a clear plastic evidence bag. “When the manager’s back was turned, the defendant took this Omega Speedmaster Racing Automatic Chronograph watch from the counter and left the store. Retail value: thirty-five hundred dollars.”

“It’s a used watch,” I said. “As a result, its value was substantially lower.”

“It’ll be your turn in a minute, Mr. Daley.” Judge Stumpf was still looking at Erickson. “Did the manager see the defendant take the watch?”

“No, Your Honor. Neither did the customer.”

“So there’s security video?”

“No, Your Honor. The camera was broken.”

“How do you know that the defendant took the watch?”

Erickson smirked. “He came back a couple of days later and tried to pawn it.”

Judge Stumpf couldn’t help himself and cracked a smile. “Rudy tried to pawn the watch at the very same store from which he had stolen it?”

“That’s correct, Your Honor.”

“You’re absolutely sure that it’s the same watch?”

“Yes, Your Honor. It still had the tag from Liberal Jewelry and Loan when he brought it back to the store.”

The judge spun around in his swivel chair, faced the Seal of California on the wall behind him, and stifled a laugh by pretending to cough. He took a moment to regain his composure before he turned around and spoke to me. “Are any of these facts in dispute, Mr. Daley?”

“No, Your Honor.” Unfortunately, the Public Defender’s Office is not allowed to administer an intelligence test to a potential client before we take on their representation.

Judge Stumpf’s expression turned sympathetic as he looked at Rudy and opted for understatement. “That wasn’t an especially wise choice, Rudy.”

“I know, Your Honor.”

I had also gently pointed out to Rudy that as a matter of good criminal practice, it’s generally a bad idea to try to pawn a watch at the store from which you’ve stolen it.

The judge folded his arms. “Why are we here, Mr. Daley?”

Here goes. “We are not disagreeing with the fact that Rudy took the watch. However, we are disputing Mr. Erickson’s decision to charge him with felony grand larceny. This case is a ‘wobbler.’ At most, Rudy should have been charged with misdemeanor shoplifting.”

In legal lingo, a “wobbler” refers to a case where the D.A. has discretion to charge the defendant with a felony or a misdemeanor depending upon the severity of the crime and the attendant circumstances. While this may seem like lawyerly hair splitting, there were real-world consequences for Rudy. The maximum sentence for misdemeanor shoplifting is six months. The maximum for felony grand larceny is a year. When you’re in jail, an extra six months is a long time.

“How do you figure, Mr. Daley?” the judge asked.

“Section 459.5 of the Penal Code says that shoplifting has three elements. First, you need to enter a commercial establishment. Second, it has to be during normal business hours. And third, you have to take something valued at nine hundred and fifty dollars or less.”

“Mr. Erickson just told us that the watch is worth thirty-five hundred dollars.”

“That’s if you buy it new at a jewelry store. The value of a second-hand watch is substantially less. It’s like buying a new car—it loses much of its value when you drive it out of the showroom.”

“You’re saying that it was worth less than nine hundred and fifty dollars?”

“Yes, Your Honor.”

“We disagree,” Erickson said. “We have provided the court with an independent appraisal stating that the watch is valued at approximately twelve hundred dollars.”

“We dispute the appraisal,” I said.

The judge shook his head. “You didn’t submit one of your own.”

“We didn’t need to. We already had one.”

“From whom?”

“The manager of Liberal Jewelry and Loan. He offered Rudy five hundred dollars.”

The judge looked at Erickson. “True?”

“Uh, true.”

I held up my hand triumphantly. “There you have it.”

Erickson feigned indignation. “Your Honor, everybody knows that when you pawn something, the store offers you substantially less than its ultimate sale value. The pawn shop makes a profit by selling the merchandise for more than it paid. In this case, the manager offered the defendant five hundred dollars for a watch that he believed he could have resold for at least twelve hundred dollars.”

“You’re saying that the value was twelve hundred dollars?”

“Correct.”

Incorrect. “Your Honor,” I said, “the value was the amount that the manager offered to Rudy: five hundred dollars.”

Erickson was adamant. “That’s not how I read the statute, Mr. Daley.”

“That’s how I read it, Mr. Erickson.” I turned back to the judge. “An item’s value is what a person can get for it in an arms-length transaction when neither party is under duress. In this case, the manager offered Rudy five hundred dollars. That was its value.”

Erickson wasn’t buying. “But the intrinsic value of the watch was substantially higher.”

“The statute doesn’t say anything about intrinsic value. If I offer you a thousand dollars for your tie, that’s its value even though there isn’t another person on Planet Earth who would pay you so much. The fact that I might be able to sell it to somebody else for two grand doesn’t change its value to you.”

“That’s ridiculous, Mr. Daley.”

“No, it’s not.” Well, maybe. “A one-bedroom condo here in the City costs more than a million dollars. The same unit would sell for a tenth of that amount in many places. I don’t know what its intrinsic value is under your definition, but I know that the value to the seller is whatever somebody is willing to pay.”

“You’re playing word games.”

“No, I’m not.” Yes, I am. “Value means whatever a person is willing to pay—period.”

An expression of bemusement crossed Judge Stumpf’s face as he sat back and listened to us argue for the next five minutes. He knew that Erickson and I were just making stuff up on the fly. Finally, he put on his glasses, cleared his throat, and made the call.

“Mr. Erickson, I understand that the manager believed that he could have gotten more than nine hundred and fifty dollars for the watch.”

Erickson looked up hopefully.

“However, I am inclined to agree with Mr. Daley that ‘value’ means what it means: the amount to be paid by one party to another in a negotiated transaction. In this case, it would be the sum that the pawn shop offered to pay Rudy. I am therefore ruling that the value of the watch is five hundred dollars.”

Ta-da!

“I am further ruling that it is inappropriate to charge Rudy with felony grand larceny. This does not preclude you from re-filing charges for shoplifting. I would encourage you and Mr. Daley to discuss an appropriate resolution on that charge.”

“Yes, Your Honor.” Erickson looked at me. “In the interest of expediency, would your client be willing to plead guilty to misdemeanor shoplifting in exchange for a three-month sentence with credit for time served?”

I looked over at Rudy, who nodded. “Yes, Mr. Erickson.”

“I think we’re in agreement.”

Judge Stumpf smiled triumphantly. “It’s a good day for justice. As always, Mr. Erickson, the court thanks you for your courtesy and professionalism. Mr. Daley, it has been a while since I have had the privilege of listening to one of your imaginative arguments. You bring a certain amount of creativity to our otherwise mundane proceedings.”

“Thank you, Your Honor.”

“We’re adjourned.”

* * *

A few minutes later, I was collecting my belongings at the defense table in the otherwise empty courtroom when the door opened, and the Public Defender of the City and County of San Francisco marched down the center aisle toward me. At fifty-four, Rosie Fernandez brought a commanding presence. Twenty-six years after we’d met upstairs in the file room of the old Public Defender’s Office, she was still the most beautiful woman and the best lawyer I had ever known.

“How did things go for Rudy?” she asked.

“I cut a deal for misdemeanor shoplifting. Three months with credit for time served.”

“Not bad.”

“I didn’t expect to see you here this morning.”

Her mouth turned up. “I like to keep an eye on my subordinates.”

“Why are you really here?”

“I have a status conference.” She tugged at the sleeve of her Hermes blouse, which was more elegant than the jeans and denim shirts that she used to wear when we were rookie Public Defenders. She had upgraded her wardrobe when she ran for her first term as P.D. five years earlier. “We have a new client upstairs. I want you to handle the intake interview.”

“Sure. What’s going on?”

“They pulled a body out of the bay behind the ballpark yesterday. Turns out that he was one of your former law partners.”

Rosie and I left the P.D.’s Office after we got divorced. She started her own practice, and I went to work for a megafirm at the top of the Bank of America Building to pay child support for our daughter, Grace, who was two at the time. I was fired after the partners decided that they didn’t like rubbing elbows with my clients who were technically, uh, criminals. Rosie took me in, and we’d been working together ever since. Eventually, we returned to the P.D.’s Office as the co-heads of the Felony Division. After our former boss retired, Rosie was elected as P.D.

Things had worked out reasonably well. Rosie and I have maintained a “divorcees-with-benefits” relationship which has lasted substantially longer than our marriage. Grace was now a college grad who worked as a production assistant at Pixar. Our son, Tommy, arrived a few years after Rosie and I got divorced. He had just graduated from high school and was heading to college at Cal in the fall.

“Which former partner?” I asked.

“Robert Blum.”

Robbie Blum had the good fortune of being born into a well-connected San Francisco family. His father was a federal judge. His mother was a legislative analyst for Senator Dianne Feinstein. He grew up in the tony Sea Cliff neighborhood near the Golden Gate Bridge, attended the exclusive University High School, and later graduated from Harvard and Stanford Law School. He inherited the house in Sea Cliff and a rather substantial fortune when his parents died. He developed a lucrative practice representing media conglomerates, entertainment companies, and sports teams. He was also the subject of several multi-million-dollar settlements for sexual harassment. After he negotiated a nine-figure merger between two sports agencies, he got the bug to represent athletes himself, and he set up his own agency. Ten years later, his clients included a half dozen NFL quarterbacks, two NBA MVPs, and several members of the Giants.

“You knew him?” Rosie asked.

“I met him once. Power guys like Blum didn’t talk to peons like me. I left the firm shortly after he arrived. Even in a big law firm filled with egos, he was a super-nova jerk.” I looked my ex-wife in the eye. “What happened?”

“His skull was crushed.”

Ouch. “Who do they think crushed it?”

“Our new client.”

2
“I WAS MEETING SOMEBODY”

The wiry African-American man with the closely cropped hair, boyish features, and expressive brown eyes looked at me through scuffed Plexiglas. He adjusted his orange jumpsuit and spoke in a high-pitched voice. “Are you my lawyer?”

“Yes.” At eleven-fifteen a.m., the heavy air smelled of disinfectant as I leaned on the dented metal ledge on the visitor side of the partition in the consultation area next to the raucous intake center of the jail on the seventh floor of the Hall. I pressed the phone to my ear. “Mike Daley. I’m with the Public Defender’s Office.”

“Jaylen Jenkins.” His eyes locked onto mine. “I didn’t kill Robbie Blum.”

“Good to know.”

Well, maybe not so good. We defense lawyers never ask our clients if they’re guilty. The California Rules of Professional Conduct prohibit us from letting them lie on the stand, so I try to avoid putting myself into situations where I may be tempted to do so. In this case, if I found out that Jaylen did, in fact, kill Blum, I couldn’t let him testify that he didn’t. In all honesty, I’ve found ways to dance around this rule from time to time.

I held up a hand. “We’ll talk about what happened in a minute. How old are you?”

“Twenty-five.”

“You grew up around here?”

“Oakland—before it was woke.”

“You still live there?”

“Yes.”

“Ever been arrested?”

“Once for auto theft. A couple of times for shoplifting. No convictions.”

“Good. Before we get started, I need to explain a few ground rules. First, don’t talk to anybody but me. Not the guards, not the cops, not the prosecutors, and, most important, not the other inmates. Second, you need to assume that they’re taping us now, and they may be taping you in your cell. So, you need to be careful about what you say.”

“Got it.”

“Third, you need to tell me the complete, absolute, and unvarnished truth, and you can’t leave anything out. I will be very unhappy if you lie to me and the truth comes out in court. Any questions so far?”

“How soon can you get me out of here?”

That’s always at the top of the list. “There will be an arraignment tomorrow where they’ll read the charges. You will plead not guilty in a respectful voice. The San Francisco D.A. recently adopted a policy against asking for money bail in most cases, so I’ll try to convince the judge that you aren’t a flight risk. Even if you agree to wear an ankle bracelet, it will be very difficult to get you out if they charge you with murder. Do you have any family in the area?”

“Just my mother.”

“Does she know that you’re here?”

“I left a message on her phone, but she doesn’t always pick up.”

“When was the last time that you talked to her?”

“A couple of weeks ago. She’s in a halfway house in Oakland. She’s in rehab—again.” He gave me an address and phone number.

“Did you live with her before she went into rehab?”

“Yes. We had an apartment near the West Oakland BART Station.”

“We’ll find her. Who else should we call?”

He shrugged.

“Are you married?”

“No.”

“Girlfriend?”

“No.”

“Boyfriend?”

“No.”

“Kids?”

“No.”

“Brothers or sisters?”

“Two older brothers. One is at Pelican Bay for armed robbery. The other died in a gang shootout a couple of years ago.”

“I’m sorry. Anybody else?”

“No.”

How sad. “Tell me a little more about yourself, Jaylen.”

He took a deep breath and filled in some details. Born and raised in Oakland. Lived in the projects west of downtown with his mother and brothers. Never knew his father. His mother was in and out of rehab. His oldest brother was in and out of prison. His other brother got caught up with the gangs. Jaylen played baseball at McClymonds High School, where he showed enough potential to generate some interest from colleges, but he didn’t have the grades or the money to attend. Worked at McDonald’s and KFC. More recently, he drove for Uber and Lyft.

“You still driving?” I asked.

“No.”

“What are you doing now?”

The corner of his mouth turned up. “I’m an entrepreneur.”

Uh-huh. “What do you sell?”

“T-shirts and caps outside the Giants, A’s, and Warriors games. I sell stuff online, too.”

“Were you buying the stuff legally?”

“Most of the time.”

Right. “Were you selling anything else?”

“Every once in a while, I was able to get my hands on some iPhones and laptops. I made some real money there.”

“Stolen?”

“Not by me.”

We have more pressing issues at the moment. “You were working at the ballpark on Monday night?”

“Yeah.” He said that he set up a table on the sidewalk on King Street near the players’ parking lot behind the left field wall. “The Giants won’t let me sell on the stadium property.”

“How was business?”

“Not great. The crowds are smaller when the team is losing.”

“What time did you go home?”

“It was close to midnight.”

“The game ended around ten. Why did you stay so late?”

His eyes darted over my shoulder. “I was meeting somebody.”

“Who?”

“Robbie Blum.”