1
“I DISTRACTED HIM”

The Honorable Robert J. Stumpf Jr. flashed a wry grin and invoked a commanding baritone. “I didn’t expect to see the co-head of the Felony Division of the Public Defender’s Office at a preliminary hearing on a traffic case, Mr. Daley.”

I returned his smile. “One of my associates is on vacation, Your Honor. I didn’t expect to see the Presiding Judge of the San Francisco Superior Court this morning, either.”

“One of my colleagues was called away on an emergency.”

“Sounds like we’re even.”

It was ten AM on Monday, May eighth, 2023. I had first appeared before Bob Stumpf when I was a rookie Public Defender shortly after he was promoted to Presiding Judge. Thirty years later, I’m still representing criminals, and Bob is still the running Department Seventeen on the second floor of our decaying Hall of Justice, which was condemned because of earthquake safety issues, asbestos-laden walls, faulty plumbing, and an overwhelmed electrical system. The courts and SFPD’s Homicide Detail are still here, but the District Attorney, the Public Defender, the Southern Police Station, and the Medical Examiner have moved to buildings with functional bathrooms. The old jail on the sixth and seventh floors was replaced by a newer building next door, and the cafeteria in the basement is now used for storage.

Judge Stumpf was appointed to the bench by Governor Jerry Brown during his first term. The native of Southern Indiana and one-time backup center on the USF basketball team was a thoughtful jurist with a keen legal mind and an incisive wit that turned acerbic if you weren’t prepared. At seventy-five, he showed no signs of slowing down, and he still ran the grueling Dipsea Race from Mill Valley to Stinson Beach every year.

He looked at the prosecution table. “Good morning, Mr. Paolini.”

The rookie ADA sprung to his feet and spoke too loudly in an ingratiating voice. “Good morning, Your Honor.”

Ernie Paolini was a third-generation native of the City. His great-grandfather, Luigi, immigrated from Palermo and opened a deli in North Beach. Seven of Luigi’s eight sons became police officers. The black sheep was a firefighter. The next generation included a judge, two ADAs, a union organizer, and a member of the Board of Supervisors. Ernie’s parents moved to a house in the foggy Sunset District, a few blocks from where I grew up. He attended St. Ignatius High School (also my alma mater), USF, and USF Law School. He’s been a baby ADA for about six months. He’s a nice kid who will probably be a competent prosecutor when he grows up.

Judge Stumpf nodded at his bailiff. “Please call our case.”

“The People versus Javier Morales. Preliminary hearing.”

Paolini was still standing. “The defendant is guilty of violating California Vehicle Code Section 23103.”

In English, this means that he’s charged my client with reckless driving.

Showtime. “Your Honor, I would remind Mr. Paolini that Mr. Morales is innocent until proven guilty. It is therefore presumptuous and legally incorrect to state that he is guilty.”

“Duly noted, Mr. Daley.” Judge Stumpf glanced at the gallery, which was half-full of ADAs, Deputy PDs, and a handful of private defense lawyers waiting for a few moments of assembly-line justice. They were joined by our regular contingent of courtroom junkies, homeless people, law students, and other hangers-on who passed the time watching the wheels of justice grind ever-so-slowly in San Francisco’s crumbling bazaar of criminal law.

Judge Stumpf inhaled the eighty-five-degree air that smelled of mildew. “The purpose of a preliminary hearing is to determine whether there is a reasonable basis to conclude that the defendant committed the crime for which he is charged. The prosecution is not required to prove its case beyond a reasonable doubt as it would at trial. By law, I am obliged to evaluate the evidence and give the benefit of the doubt to the DA. The defense may call witnesses and present evidence, but it is not required to do so. Everybody understands why we are here?”

Paolini and I responded in unison. “Yes, Your Honor.”

“Please proceed with your presentation, Mr. Paolini.”

“Thank you, Your Honor. We will be brief.”

We’ll see. And for future reference, it’s okay for the judge to invoke the “royal we.” It isn’t a good look for a rookie ADA.

I gave a reassuring nod to the nervous young man sitting next to me at the defense table. Javier Morales was a slender man of twenty. In his ill-fitting navy suit, he could have passed for a sophomore in high school. The graduate of Mission High worked at his uncle’s produce market on Twenty-Fourth Street. He had no criminal record, although he was picked up for shoplifting once, and he had two speeding tickets.

Paolini buttoned his charcoal Men’s Wearhouse suit jacket, walked to the lectern, and placed his laptop in front of him. “Your Honor, the facts of this case are not in dispute.”

Come on. “With respect to Mr. Paolini, we dispute his contention that the facts are not in dispute.”

“Noted, Mr. Daley. Please continue, Mr. Paolini.”

“On Monday, May first, at seven-seventeen in the evening, the defendant was driving his 2013 Toyota Corolla northbound on Mission Street between Twenty-fifth and Twenty-fourth. The defendant suddenly accelerated, lost control of his vehicle, and slammed into an Amazon delivery van parked in front of La Taqueria.”

“I’ve been there many times,” the judge said.

So have I. The no-frills Mission District classic has been serving award-winning burritos since 1973. The overstuffed carnitas burrito was once voted the best in the U.S.

Paolini introduced the police reports and a dozen photos into evidence, then he scrunched his face into a melodramatic frown. “The defendant’s recklessness resulted in ten thousand dollars’ worth of damage to the Amazon truck. The defendant’s car was totaled.”

“How unfortunate,” the judge observed.

Paolini surmised that it was a good idea to agree with him. “Indeed.”

Indeed. “Your Honor,” I said, “nobody was injured, my client and Amazon are fully insured, and the costs are being worked out between their respective carriers. Neither Amazon nor my client will incur any expense except for modest deductibles.”

“Good to hear, Mr. Daley. Anything else, Mr. Paolini?”

“Based upon the police reports, photos, and eyewitness accounts, there is sufficient evidence that the defendant committed the crime for which he is charged. As a result, he should be bound over for trial.” He closed his laptop and returned to the prosecution table.

The judge turned my way. “Does your client dispute anything that Mr. Paolini just said?”

Not really. “There are extenuating circumstances, Your Honor.”

“That seems to be the case whenever you appear in my courtroom, Mr. Daley. Do you wish to present any evidence or witnesses to support your assertion?”

“I do.” I glanced at the anxious young woman sitting next to her mother in the front row of the gallery. “The defense calls Ms. Anita Gutierrez.”

She looked at her mother, whose expression combined maternal support and profound irritation. Anita adjusted the lapel of her navy jacket and walked tentatively to the front of the courtroom, where the bailiff swore her in. Per my request, she had dressed conservatively and wore no makeup. She took her seat in the box, gulped two cups of water, and looked up at me.

“Good morning, Ms. Gutierrez,” I said.

“Good morning, Mr. Daley.”

“May I ask how old you are?”

“Nineteen.”

“Are you employed?”

“I work part-time at my parents’ restaurant in the Mission. I am a freshman at City College.”

“What are you studying?”

“Nursing.”

“Good for you.” I had instructed Anita to follow my lead and keep her answers short. I asked the judge for permission to approach the box, which he granted. “Ms. Gutierrez, do you know the defendant, Mr. Morales?”

“Yes. We have known each other since we were in kindergarten at St. Peter’s.”

It’s the school in the century-old Catholic Church in the Mission where my parents were baptized and later married.

“He’s your boyfriend, isn’t he?” I asked.

An overanxious Paolini jumped to his feet. “Objection. Mr. Daley is leading the witness.”

Yes, I am. “I’ll rephrase. Is Javier your boyfriend?”

“Yes. We’ve been together for almost two years.”

Paolini was still standing. “Your Honor, I fail to see the relevance.”

I invoked a patient tone. “I’m getting there, Your Honor.”

“Quickly, Mr. Daley.”

I moved a little closer to Anita. “You were with Javier on Monday, May first, when his car accidentally collided with an Amazon truck?”

The hyperactive Paolini was up again. “Objection to the use of the term ‘accidentally.’”

“I’ll rephrase,” I said. “You were in the car when it collided with the Amazon truck?”

“Yes. I was in the passenger seat.”

“Were you or Javier hurt?”

“Thankfully, no.”

“Was Javier driving fast?”

“No. He was going the speed limit.”

“Were you concerned about your safety?”

She glanced at her boyfriend. “No. Javier is very careful.”

“In your opinion, was he driving recklessly?”

“Absolutely not.”

Just the way we rehearsed it. “But he did, in fact, run into the Amazon truck, didn’t he?”

“Yes, but it wasn’t his fault.”

“Could you please explain?”

Anita looked at her mother. She took a sip of water. She glanced at Javier. She cleared her throat. “I distracted him.” She added, “I didn’t mean to.”

“How did you distract him?”

Another glance at her mother. “We were joking around, and I, uh, accidentally touched him in a sensitive place.”

I suspect that it wasn’t entirely accidental, but I had assured Anita that I wouldn’t ask her to provide details. “Could you please describe what happened next?”

“Javier was startled. He inadvertently hit the accelerator, and we ran into the Amazon truck. It happened very fast.”

“Did he do it on purpose?”

“Of course not. It was an accident.” She looked over at Javier, tears streaming down her cheeks. “It wasn’t his fault. Javier didn’t mean to hit the truck. If anything, it’s my fault.”

I trust that Javier appreciates the fact that you are a wonderful girlfriend. “Thank you, Ms. Gutierrez. No further questions.”

“Cross exam, Mr. Paolini?”

The young ADA correctly decided that it would not enhance his case by going after a nineteen-year-old who was crying. “Nothing for this witness, Your Honor.”

Good call, Ernie.

The judge looked my way. “Any additional witnesses, Mr. Daley?”

“No, Your Honor. I would, however, like to make a motion to have the charges dismissed as a matter of law.”

“On what grounds?”

Here goes. “Section 23103 of the Vehicle Code prohibits reckless driving, which is defined as a ‘willful or wanton disregard for the safety of other people or property.’” I shot a disdainful glance at Paolini. “Based on Ms. Gutierrez’s testimony, Javier did not act willfully or with wanton disregard for the safety of other people or property. He was startled and inadvertently depressed the accelerator. The result was unfortunate, but it was also an accident. As a result, he did not violate the statute, and the charges should be dismissed.”

Paolini pogoed to his feet. “He rear-ended a truck. It was only through the grace of God that nobody was injured.”

That much is probably true. It’s also bad form to whine. “It doesn’t rise to the level of reckless driving.”

Judge Stumpf rested his chin in his palm and listened as Paolini and I volleyed back and forth for five minutes. Finally, he spoke with measured authority. “Gentlemen, I find both of your arguments to be well-researched and thoughtful. In the spirit of justice and cooperation, I would like to think that we can resolve this matter without taking the time and resources to empanel a jury and go to trial.”

That’s my cue. “I have a suggestion for what I believe would be a fair resolution of this matter, Your Honor.” I would never think of suggesting anything that isn’t fair.

“I’m listening, Mr. Daley. So is Mr. Paolini.”

The rookie ADA forced a smile.

I invoked a tone of reason “Mr. Morales will be issued a speeding citation which he will not contest. He will pay the fine, get a point added to his insurance, have his license suspended for three months, and attend traffic school. He will reimburse Amazon for the deductible and for the cost of any repairs on the van not otherwise covered by insurance. He will apologize to the driver. In exchange, Mr. Paolini will dismiss the reckless driving charge.”

The judge looked at Paolini. “That seems reasonable to me.”

“I need to check with my boss.”

“Fine. Please inform her that Judge Stumpf finds this to be an equitable solution.”

“But Your Honor—,”

“Very equitable.”

Paolini’s shoulders slumped. “I think we can work it out, Your Honor.”

“Good to hear. I will leave it to you and Mr. Daley to agree on final terms and complete any necessary documentation.”

“Yes, Your Honor.”

I gave Javier a subtle nod. It was a victory, but you never want to spike the ball until you’re outside the courtroom.

The judge looked at Javier. “Please drive more carefully next time.” He nodded at Anita. “And please be sure to thank Ms. Gutierrez for her testimony.”

“I will, Your Honor.”

“Next case.”

***

My suit jacket was drenched in perspiration as I stopped at the workstation in the sauna-like corridor of the PD’s Office at eleven-ten that same morning. “Any word on when they might send somebody over to fix the air conditioner?” I asked.

My new assistant looked up from her computer. “Maybe next week.”

Great. Twenty years ago, the PD’s Office moved into a repurposed auto repair shop on Seventh Street, a half block south of the Hall of Justice. At the time, it was a substantial upgrade from our ratty old digs where the heater worked sporadically, the asbestos-laden walls were covered in lead-based paint, and the plumbing worked when it was in the mood. Two decades of deferred maintenance later, our no-longer-state-of-the-art facility needed a tune-up.

I grinned. “Any chance you might be able to use your charms to persuade them to come over a little sooner?”

“Let me see what I can do, Mike.”

“Thanks, Dazz.”

Debra “Dazzle” Diamond was a Daly City native, a single mother, and a San Francisco State alum. After she was laid off from her job as a paralegal for a corporate law firm during the economic downturn in 2008, she started dancing at the Gold Club, an upscale strip joint down the street from Moscone Center which caters to the tech bros who work in the nearby office towers. I represented her several times after she pilfered cash from her customers while they were entranced by her dancing skills. To her credit, she’s an excellent assistant and an outstanding dancer. Unfortunately, she wasn’t a very good thief.

“Have you heard from Terrence?” I asked.

“He’ll be back later this week. He’s having fun in San Diego. He said that his new granddaughter is a beauty.”

My onetime client, longtime assistant, and former small-time professional boxer, Terrence “The Terminator” Love, had planned to retire at the end of last year. I persuaded him to stick around and work a reduced schedule. Around the same time, Dazzle was looking to supplement her income to help pay for her daughter’s tuition at UC Santa Cruz. I worked out a Solomon-like arrangement where Terrence and Dazzle each work two days a week and every other Friday. I got both of them just enough hours to qualify for health insurance. As far as I know, I am the only Public Defender in California who employs two of his former clients. In addition to my other responsibilities, I’m a one-person rehabilitation program.

Dazzle’s blue eyes sparkled. “Did you get the charges against Javier dropped?”

“I got him off with a speeding ticket, a suspended license, and traffic school.”

“Not bad. And Anita?”

“She wasn’t charged, but she has to answer to a higher authority: her mother.”

“I trust you informed Javier that Anita just won the Supportive Girlfriend of the Year Award?”

“I did. And I told Anita to keep her hands to herself when he’s driving.”

“Good advice.” Dazzle flashed the grin that captivated tech entrepreneurs at two shows five nights a week. “You sure it was just her hands?”

“No comment.”

Her smile broadened. “Did you ever have a similar experience when you were their age?”

“Afraid not.”

“Either you were a goody-goody, or you needed to get out more.”

“My dad was a cop. I was an altar boy at St. Anne’s. If I misbehaved, I heard about it at home and at church.”

“Did you have a girlfriend in high school?”

“As a matter of fact, I did. She was an honors student at Mercy High who is now a Superior Court judge. She never grabbed me by my, uh, magical parts while I was driving.”

“What about when you weren’t driving?”

“No comment.”

“And when you were a priest?”

“Absolutely not.”

“Good to hear.”

After my older brother died in Vietnam, I went looking for answers and decided to become a priest. I liked the spirituality and intellectual rigor, but I wasn’t good at saving souls. I gave up after three years and went to law school.

She winked. “I trust that Javier didn’t incur any serious injuries.”

I grinned. “Let’s just say that there was nothing reproductively catastrophic. You working tonight?”

“I have to pay Wendy’s tuition, Mike. You should come to the show.”

“No, thanks, Dazz.”

“Don’t be such a prude.”

I pointed at the closed door of the office next to mine. “The boss is running for reelection. It wouldn’t be a good look if somebody takes a photo of the co-head of the Felony Division giving you a gratuity during your finale.”

“It isn’t a big deal.”

“It would be if the photo goes viral on Facebook, Instagram, and TikTok.”

“Probably true. On the other hand, you’re not the only lawyer who patronizes the club.”

I can’t resist. “Ever seen anybody from the DA’s Office?”

Her smile broadened. “All the time.”

“Care to mention any names?”

“I don’t dance and tell.” Her expression turned serious. “The boss wants to see you. You heard about the dancer who was stabbed to death in the alley behind For Gentlemen Only?”

“Yes.” For Gentlemen Only is an upscale strip club in North Beach.

“They arrested the doorman. He’s about to be charged with murder, and our office is getting the case.”

2

“I OWE HIM ONE”

The Public Defender of the City and County of San Francisco flashed the incandescent smile that I still found irresistible three decades after we’d met in the file room of the old PD’s Office, twenty-eight years after we’d gotten married, twenty-seven years after our daughter, Grace, was born, twenty-six years after we’d gotten divorced, and three years after she’d won her second term as PD. Rosita Carmela Fernandez mouthed the words, “Once sec.”

I sat down in the chair opposite the mahogany desk that she had bought on her own dime. Her window was caked in dirt. The walls were covered with photos of Rosie posing with local politicians. Her bookcases held dusty case reporters. If she needed a citation, she looked it up online. A wedding photo of Grace and her husband, Chuck, sat on the credenza next to a picture of our son, Tommy, who was born after Rosie and I got divorced. Old habits. Grace and Chuck worked as production supervisors at Pixar. Tommy was a junior at UC Berkeley.

I nodded at my younger brother, Pete, who was sitting on the windowsill. The former SFPD cop now worked as a private investigator. At fifty-eight, he was two years younger, a couple of inches shorter, and twenty muscular pounds heavier than I was. His full head of hair and bushy mustache used to be a half-shade darker than mine, but now they were silver.

“Are Donna and Margaret okay?” I whispered.

He absent-mindedly played with the zipper of the bomber jacket that he always wore even though it was eighty degrees in the office. “Everybody’s fine.”

Good. His wife, Donna Andrews, was the CFO of a big law firm downtown. His daughter, Margaret, was a sophomore at UC Santa Barbara.

“Why are you here?” I asked.

His mustache twitched as he pointed at Rosie. “I’ll let her explain.”

Rosie ended her call and gave me a conspiratorial grin. “I heard you got Javier off with a ticket, a suspended license, and traffic school. Nice work.”

“Just trying to do my part to improve our statistics.”

She tugged at the sleeve of her Anne Fontaine blouse. The days when she wore faded jeans to work were a distant memory. At fifty-six, her olive skin was still flawless, but the crow’s feet were entrenched, and her coiffed shoulder-length hair required artificial assistance to keep its jet-black color. Rosie went to spin class three mornings a week to maintain her perfect physique. She was running for her third and (she swears) final term against one of our former colleagues who had the audacity to challenge her. She had mastered the dark art of San Francisco politics after two successful election campaigns. I would bet a year’s salary that she will crush her opponent in what promises to be the political equivalent of a knife fight in the Tenderloin.

First things first. “Kids okay?”

“Status quo. Mama is fine, too.

“Good.”

Rosie and I are members of what the pundits have dubbed the “sandwich generation.” Her mom, Sylvia, is eighty-seven. She’s as sharp and opinionated as ever, but she refuses to acknowledge that two artificial hips and an artificial knee have slowed her down. She still lives in the two-bedroom bungalow in the Mission that she and her late husband, Eduardo, bought almost sixty years ago. She could sell it to a tech entrepreneur for almost two million dollars, but she won’t consider doing so.

“You okay?” I asked.

“Fine.”

As if you would ever admit that you’re anything but ‘fine.’ “Anything new on the election?”

“The latest polling looks solid. I made some calls over the weekend and raised almost thirty grand. My war chest is ten times bigger than my opponent’s.”

She never mentions her challenger’s name. “You’re going to beat her.”

“I’m going to crush her.”

I stand corrected. Rosie and I had met when I was a rookie PD, and she had just been promoted to the Felony Division. She had spun out of a brief and unsatisfying marriage. Grace was born less than a year after we got married. The demands of a baby, our jobs, and a new marriage overwhelmed us, and Rosie and I called things off when Grace was one. I took a job at a big law firm to pay the bills, alimony, and child support. Rosie started her own criminal defense practice and took me in after I was fired for not bringing in enough clients. We’ve been working together ever since—first at our two-person firm around the corner from the old Transbay Bus Terminal, and, more recently, back here at the PD’s Office. We were co-heads of the Felony Division for a few years before our old boss retired and Rosie ran for PD.

Time for business. “Dazzle said that you wanted to see me.”

Her expression turned serious. “How’s your time?”

“I can tear myself away from my administrative responsibilities if you need help.”

As co-head of the Felony Division, I spend most of my time budgeting, assigning cases, supervising younger lawyers, and handling bureaucratic matters. Once or twice a year, I step in and work on a trial.

She glanced at Pete, then she turned back to me. “Since you did such a fine job keeping Javier out of jail, I need you to handle something more challenging. You heard about the dancer who was stabbed to death behind For Gentlemen Only over the weekend?”

“Yes.”

“Her name is Chloe Carson. Twenty-two. Single. Never married. Grew up in Fremont. Dropped out of San Jose State. Her mother raised her. Her father is deceased.”

“And the defendant?”

Pete finally spoke up. “It’s César.”

I stopped cold. “Seriously?”

He nodded.

César Ochoa was Pete’s onetime training officer, partner, mentor, and friend. A native of the Mission, César joined SFPD after he graduated from Archbishop Riordan High School. He was a tough cop. On occasion, he also had a propensity for roughing up suspects. He and Pete got into hot water when they allegedly broke up a gang fight with a little too much exuberance. The instigator ended up with a concussion, a broken arm, and four cracked ribs. It turned out that he was the nephew of a member of the Board of Supervisors. After the inevitable lawsuit was filed, the City caved, the kid received a seven-figure settlement, and Pete and César got fired. They steadfastly maintained that they had done everything by the book, although Pete later confided to me that they might have been able to defuse the situation with a little more finesse. Pete became a PI. César became an alcoholic.

I looked at my brother. “When was the last time that you talked to César?”

“A couple of years ago.”

César’s life went off the rails after he was fired. He spent a few years in private security, but that didn’t work out. His drinking became problematic. He developed high blood pressure and diabetes. His wife left him. His son stopped talking to him. He ended up living in a studio apartment in the Mission and working as a doorman at a series of strip clubs.

Rosie cleared her throat. “Pete has offered to help us pro bono.”

I would ordinarily be delighted to accept free assistance from one of San Francisco’s most tenacious PIs, but I was perplexed by my brother’s motivation.

“Why do you want to help the guy who got you fired?” I asked.

“I owe him one. César looked out for me when I joined SFPD. He stood up for me when we got into trouble. It’s my turn to stand up for him.”

“César gave that kid a concussion.”

“Heat of battle, Mick.”

“You haven’t even talked to him in a couple of years.”

“He got really angry. I didn’t have the patience or the energy to deal with him. Besides, I didn’t think I could fix his problems.”

“But you still think you owe him?”

“There’s no statute of limitations on paybacks.”

I looked over at Rosie. “You’re okay with this arrangement?”

“When one of San Francisco’s best private investigators offers to donate his services, I’m inclined to accept.”

Me, too. I turned back to Pete. “Did César have any connection to the decedent?”

“Other than the fact that they both worked at For Gentlemen Only, I don’t know.”

“Do you know anything about what happened?”

“I have a couple of calls in to my sources at SFPD.”

I looked my brother in the eye. “Do you think that César is capable of killing someone?”

His mustache twitched. “César had a temper, but he never lost control. He wasn’t a killer when I knew him.”

His instincts were excellent. I turned to Rosie. “I may need a little help.”

“Rolanda did César’s intake interview. She has some time.”

“Great.”

Rolanda Fernandez was the co-head of the Felony Division. She was also Rosie’s niece and, I suppose, my ex-niece. Like Rosie, Rolanda graduated from Mercy High, San Francisco State, and what was then known as Hastings Law School, and is now known as UC Law San Francisco. She and her husband, Zach, yet another lawyer, were the proud parents of a three-year-old daughter and a six-month old son. Rolanda had recently returned from maternity leave.

Rosie looked at Pete. “I don’t want you and Mike playing cops-and-robbers.”

“We’ll be careful.”

She turned to me. “When can you start?”

“I’ll go see Rolanda right now.”

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