1
“HERE WE ARE AGAIN”

The Honorable Elizabeth McDaniel glanced at her watch, rested her chin in her palm, and spoke to me in a world-weary tone still bearing a trace of her native Alabama. “Always nice to have you back in my courtroom, Mr. Daley. I didn’t expect to see the head of the Felony Division of the San Francisco Public Defender’s Office at a pretrial motion.”

“Co-head,” I reminded her. “The Deputy P.D. handling this case is dealing with a medical situation for her mother.”

“Nothing serious, I hope.”

“Everybody is fine.”

“Glad to hear it. Are you here to request a continuance?”

“No, thank you. I’m up to speed.”

Betsy McDaniel was a thoughtful jurist who ran a tight courtroom and expected the attorneys appearing before her to be prepared and concise. Now approaching seventy, the former Assistant D.A. had gone on senior status to spend more time with her grandchildren, take pre-dawn Pilates classes, teach criminal procedure at Hastings Law School, and travel the world. From time to time, she pinch-hit for her colleagues when they went on vacation.

She added, “Please give my best to our distinguished Public Defender.”

“I will.” My boss, Rosita Carmela Fernandez, was San Francisco’s first Latina P.D. She was also my ex-wife and former law partner. We had met during our first tour of duty at the Public Defender’s Office almost a quarter of a century earlier. “Rosie asked me to tell you that she’ll see you at the gym tomorrow morning.”

“Excellent.”

At eleven-thirty a.m. on Thursday, October third, the gallery was empty in Judge McDaniel’s stuffy courtroom on the second floor of the Hall of Justice. We were the last case on her docket, and the usual ragtag assortment of retirees, courtroom junkies, homeless people, and other hangers-on who passed the time in court had already left for lunch, which required a little more planning than it used to since the cafeteria in the basement and the McDonald’s down the street had closed.

The Hall was no longer as busy as it was when I was a baby P.D. The drab fifties-era edifice at Seventh and Bryant next to the I-80 Freeway had been declared unsafe from earthquakes, and it was being vacated at a leisurely pace. The P.D.’s Office had moved down the street in the nineties. The D.A.’s Office was located in a remodeled building about a mile south of the Hall, near the foot of Potrero Hill. The Southern Police Station was now housed in the sparkling new headquarters near the ballpark. The Medical Examiner had relocated to a state-of-the art facility in India Basin. For now, the Homicide Unit remained in is longtime home on the third floor, but it was only a matter of time before the inspectors moved to updated quarters. They were prepared to sacrifice the convenience of working in the same building as the courtrooms in exchange for reliable plumbing. There was ongoing chatter among the politicians about tearing down the old warhorse and replacing it. The chances of it happening in my lifetime were remote.

The veteran judge addressed the Assistant D.A. standing at the prosecution table. “Why are we here, Mr. Erickson?”

“Reggie Bush, Your Honor.”

“Again?”

“Afraid so.”

Now pushing forty, Andy Erickson was a lanky lad who had taken the traditional path of many San Francisco attorneys: high school at St. Ignatius (also my alma mater), followed by college and law school at USF. His dad worked at the City Attorney’s Office. His mom taught second grade at Dianne Feinstein Elementary School near Stonestown Mall. Smart, well-connected, and, most important, politically savvy, Erickson was a conscientious career prosecutor who had a shot at heading the Homicide Unit someday if he continued to play his cards carefully. I gave him a little more deference than many of the hardworking public servants at the D.A.’s Office because he was a reasonably straight shooter and a fundamentally decent guy. He also let me use his father’s seats behind the Giants’ dugout a couple of times a year.

The judge’s tone revealed its first hint of impatience. “I take it this means you haven’t been able to resolve this matter?”

Erickson feigned disappointment. “I’m afraid not, Your Honor. Mr. Daley insisted on a hearing to discuss his motion to dismiss the charges.”

“Lack of evidence,” I said.

Judge McDaniel tugged at her shoulder-length hair, which was a distinguished shade of silver. “Is your client here, Mr. Daley?”

“Yes, Your Honor.”

And here we go. I nodded at the bailiff, who escorted Reggie Bush from the holding tank to the defense table. Reggie was no relation to the star running back and Heisman Trophy winner at USC with the same name. My Reggie was a star shoplifter who lived in a tent encampment beneath the I-80 Freeway across the street from the Hall. If we had a frequent flyer program at the P.D.’s Office, Reggie would have been a member of the platinum club.

I leaned over and spoke into his left ear, which worked better than the right one. “You ready to roll, Reg?”

“Yeah, Mike.”

A native of the hard streets of Hunters Point and a one-time all-Bay Area power forward, Reggie’s dreams of playing big-time college basketball ended when he blew out his knee in the City title game against Mission. He bounced between junior colleges for a couple of years before he began drinking and doing crystal meth. At forty-nine, he had ballooned to almost three hundred pounds, and his leathery face bore the scars of two decades living on the street.

“Follow my lead,” I reminded him.

“I always do.”

Judge McDaniel glanced at the clock. “It’s almost noon, Mr. Daley. Do we have time to deal with this before lunch?”

“This will take just a few minutes.”

“Fine.” She spoke to my client in a maternal tone. “Haven’t seen you in a while, Reggie.”

“Been trying to stay out of trouble, Your Honor.”

“Yet here we are again.” Her voice turned pointed. “Last time I saw you I let you out on your own recognizance on a shoplifting charge, didn’t I?”

“Yes, Your Honor.”

“You went downstairs to the parking lot and broke into my car, didn’t you?”

His eyes turned down. “Yes, Your Honor.”

Reggie’s ill-timed break-in to Judge McDaniel’s Lexus in full view of two cops demonstrated his less-than-stellar judgment and profoundly poor timing. The incident made the front page of the Chronicle and earned him a week in the lockup. To his credit, he apologized to the judge. To hers, she accepted.

She pointed her reading glasses at Reggie. “We aren’t going to have a repeat of that unfortunate episode, are we?”

“No, Your Honor.”

“Good.” She turned back to Erickson. “Charges?”

“Indecent exposure and committing a lewd act in public.”

She looked over at Reggie again. “Seriously?”

“It was a misunderstanding.”

“Seems you’ve had more than your share over the years.”

He had. On the other hand, Reggie had never been convicted of anything more serious than stealing food or breaking into cars, and he had never hurt anyone.

“Your Honor,” I said, “Mr. Erickson has blown this matter out of proportion. As we noted in our motion, while it is true that Reggie took a bag of Skittles without paying for it, there is no evidence that he exposed himself.”

“Care to enlighten us about the details, Mr. Erickson?”

“Yes, Your Honor.” He cleared his throat. “On Monday, September twenty-third, at two-forty in the afternoon, the defendant entered a convenience store in the Chevron station at Sixth and Harrison, where he stole a bag of candy. This act of blatant shoplifting was captured on a surveillance camera. He walked over to the bus stop in front of Bessie Carmichael Elementary School on Seventh Street, where he sat down. As a Number 19 Muni bus arrived, he exposed himself. The fact that he was within a hundred feet of a grammar school makes this a felony.”

“Did any of the children see him?”

“Not as far as we know.”

“Witnesses?”

“The bus driver.”

I interjected. “Her statement was inconclusive.”

Erickson fired back. “We also have surveillance video from the bus.”

“Also inconclusive,” I said. “Reggie acknowledges that he stole a bag of Skittles. He is very sorry, and he is prepared to make full restitution of three dollars and ninety-nine cents, plus tax.”

Judge McDaniel nodded. “That should resolve any potential shoplifting charges. What about the more serious issue of indecent exposure?”

“Mr. Erickson left out some important facts. As Reggie was leaving the convenience store, he hid the Skittles in his pants in the area below his naval.”

The judge rubbed her eyes. “I get the picture, Mr. Daley.”

“As the bus approached, Reggie removed the Skittles and ate them.”

The judge shifted her gaze to Reggie. “True?”

“I was hungry.”

“And how do we get from Skittles to indecent exposure, Mr. Daley?”

“We don’t, Your Honor.” How do I say this delicately? “The surveillance video shows Reggie removing the bag of Skittles, but it doesn’t show any of his, uh, anatomical features. As a result, as a matter of law, he cannot be guilty of indecent exposure.”

“Perhaps we should look at the video.”

“Fine with me.”

Erickson shook his head vigorously. “I think it would be better if Your Honor reviewed this evidence in chambers.”

I shot a melodramatic glance at the empty gallery, then I turned back to the judge. “There’s nothing to see, Your Honor. Besides, nobody else is here.”

“Counsel will approach.”

Erickson and I came forward and stopped in front of the bench.

Judge McDaniel turned off her microphone and spoke to us in a whisper. “Let’s see it.”

Erickson’s eyes grew wide. “I still think it would be better to view it in chambers.”

“I want to see it now, Mr. Erickson.” She pointed her finger at me. “Just so we’re clear, Mr. Daley, if I see even the tiniest part of your client’s, uh, junk, I’m going to deny your motion and hold him over for trial. Understood?”

“Yes, Your Honor.” In my long and occasionally illustrious career as a defense attorney, I had never heard a judge use the term “junk” in court. For that matter, in my short and frequently unsatisfying prior career as a priest, I had never heard it there, either.

I put my laptop on the bench and ran the grainy footage in slow motion for the judge, who studied it intently. It was less than five seconds long.

Judge McDaniel shooed us back to our respective places. She turned on her microphone and addressed Erickson in her prosecutor’s voice. “You believe this video provides corroborating evidence that Reggie exposed himself?”

“Yes, Your Honor.”

“What did you see, Mr. Daley?”

“Nothing. Reggie unzipped his pants, removed the bag of Skittles, and re-zipped his pants. It was undignified and inappropriate, but it wasn’t lewd. And it certainly wasn’t illegal.”

Erickson tried again. “Mr. Bush exposed himself in broad daylight in front of a grammar school.”

“No, he didn’t,” I said. “You get a glimpse of his underwear, but you can’t see his, uh, stuff. This is serious. If Reggie is convicted, he will have to register as a sex offender for at least ten years. It will be impossible for him to find employment or a place to live. In effect, it would be a life sentence for stealing a bag of Skittles.”

“We can’t just let this go, Your Honor.”

“Sure you can,” I said. “And you should.”

Betty McDaniel took a deep breath and spoke to Erickson. “I find Mr. Daley’s take on the video substantially more persuasive than yours. Are you getting my drift?”

“Yes, Your Honor.”

“Mr. Daley, do you have a suggestion as to how we might resolve this matter?”

“I do, Your Honor. In exchange for Mr. Erickson’s agreement to drop the indecent exposure charge, Reggie will plead guilty to misdemeanor shoplifting, replace the bag of Skittles, and apologize to the shopkeeper at the convenience store and the bus driver. His sentence would be limited to time served.”

Erickson held up a hand. “He’s been here for only ten days.”

“He stole a bag of Skittles, Andy.”

“Thirty days, Mike.”

“Three additional days.

“A week.”

I leaned over and whispered into Reggie’s ear. “You okay with a week?”

“I’m going to need at least two weeks, Mike.”

“You want to do more time than he’s asking for?”

“I need to get a couple of fillings replaced. The regular dentist is on vacation.”

It wasn’t the first time that one of my clients had agreed to a longer sentence to finish some dental work. I looked over at the judge. “Two weeks works for us, Your Honor.”

“Mr. Erickson?”

“Fine.”

“I think we have a resolution.”

The criminal justice system tends to work most expediently right before lunchtime.

Judge McDaniel smiled triumphantly. “Nice to see you, Mr. Daley. You always manage to find a way to bring a certain amount of practicality to our proceedings.”

“Thank you, Your Honor.”

“We’re adjourned.”

* * *

“Any word on when they’ll send somebody over to fix the air conditioner?” I asked.

My secretary, process server, paralegal, and occasional bodyguard, Terrence “The Terminator” Love, was sitting at his desk outside my office at one-thirty on Thursday afternoon. “Hopefully by Monday.”

It was almost a hundred degrees inside the P.D.’s Office, which was housed in a remodeled auto repair shop on Seventh Street, a block south of the Hall of Justice. When we moved over here, our new space had been a substantial upgrade from our drafty old digs on the second floor of the Hall. After two decades of deferred maintenance, our windows leaked, the plumbing was temperamental, and the air conditioner had more bad days than good. This was especially unfortunate in October, when summer weather finally arrived in San Francisco.

Beads of perspiration covered The Terminator’s shaved head. At six-six and three-hundred and thirty pounds, the former smalltime heavyweight prizefighter and recovering alcoholic had been a steady customer during my first stint at the P.D.’s Office. Ten years earlier, I hired Terrence as the receptionist at the law firm that my ex-wife and I were running at the time. It was part of a plea bargain deal that I had negotiated with Judge McDaniel in settlement of an assault charge after Terrence got into a shoving match with another man in a dispute over a roast chicken. To our unending delight, the gentle giant became one of our most valuable employees, and we insisted on bringing him with us when we returned to the P.D.’s Office three years ago. To his unending credit, he hadn’t touched a drop of malt liquor in almost a decade.

“How did Reggie’s hearing go?” he asked.

“I got the indecent exposure charge dropped. He agreed to do two weeks for shoplifting.”

“Seems a bit steep for stealing a bag of Skittles.”

“It would have been shorter, but he wanted to finish some dental work.”

“Been there.” He adjusted the collar of his navy polo shirt, which was drenched in sweat. His expression turned serious as he pointed at the office next to mine. “Rosie wants to see you right away. New client. I overheard something about a murder trial. That’s all I know.”

It was unusual for her door to be closed. “How long has she been inside?”

“Five minutes.”

“By herself?”

“With her mother and another woman.”

“Sylvia’s here?”

“As far as I know, she’s Rosie’s only mother.”

My ex-mother-in-law, Sylvia Fernandez, was an eighty-five-year-old force of nature who was still as sharp and opinionated as she was when I met her more than two decades earlier. With two new hips and two new knees, she had also regained most of her mobility. While she was always delighted to give Rosie advice about her job and her personal life—especially her relationship with yours truly—Sylvia rarely came down to the P.D.’s Office.

“What’s going on, T?” I asked.

“It’s probably better if you go inside and ask Rosie yourself.”

2
“SHE’S A DREAMER”

The Public Defender of the City and County of San Francisco was sitting in her leather chair behind a government-grade metal desk in her workmanlike office with a view of the paint store across Seventh Street. Unlike many of her contemporaries in the political world, there were more photos of our children than politicians on her walls.

My ex-wife, Rosie Fernandez, flashed the smile that I still found irresistible a quarter of a century after we’d met in the file room at the old P.D.’s Office. “Come in, Mike. We need to talk.”

I closed the door behind me. First things first. “Kids okay?”

“Yes.”

Our twenty-one-year-old daughter, Grace, had recently graduated with a film degree from USC and was working as a production assistant at Pixar in Emeryville. Our fifteen-year-old son, Tommy, was a sophomore at Redwood High School in Larkspur.

“Your brother?” I asked.

She touched the sleeve of a cream-colored Michael Kors blouse that was an upgrade from the days when she wore jeans and denim shirts to the office. When she ran for P.D., she’d bought fancier clothes and had her hair shortened into a stylish shoulder-length bob. “Fine.”

So far, so good.

Rosie’s mother, Sylvia, stood up to greet me. “Good to see you, Michael.”

I hugged her. “Are you okay?”

“Fine.”

Although she was stockier and grayer than Rosie, they were mirror images of each other. Sylvia was born in Monterrey, Mexico and came to the U.S. shortly after she got married. Her husband, Eduardo, a carpenter, had died a few years after I met Rosie.

I kept my tone even. “I didn’t know that you were coming in today.”

“Something came up.”

It was out of character for my ex-mother-in-law to be so coy.

She pointed at the petite woman standing next to her. “This is my neighbor, Perlita Tejada.”

I extended a hand. “Mike Daley.”

“Pleased to meet you, sir.” With her straight black hair and soft features, I guessed that she was somewhere in her mid-thirties, but the crow’s feet at the corners of her eyes suggested that she was older. She was wearing a gray hoodie, faded Levi’s, and worn Converse All-Stars. The grip from her calloused right hand was firm. She spoke deliberately in lightly accented English. “Thank you for seeing me. Sylvia thinks very highly of you as a lawyer.”

“Thank you.” From time to time, she thinks a little less of me as a person.

We took our seats. The room fell into an uneasy silence as an overworked fan pushed around the humid air. I glanced at Rosie, who nodded.

I spoke to Perlita. “How can we help you?”

Sylvia answered for her. “Her daughter needs a new lawyer.”

I kept my eyes on Perlita. “What’s her name?”

“Mercy.”

Sylvia interjected again. “Mercedes.”

I recognized the name. Mercedes “Mercy” Tejada had been a student at City College who worked at El Conquistador, a trendy restaurant on Valencia Street in the gentrified part of the Mission. Mercy had been charged with first-degree murder after her boss, an up-and-coming chef named Carlos Cruz, was found stabbed to death in the alley behind the restaurant. The case had received a lot of attention because Cruz was about to receive a James Beard Award and was going to star in a show on the Food Channel. There were rumors that Mercy was a jilted lover. After Cruz’s death, El Conquistador had closed.

I spoke to Perlita again. “I thought Luisa Cervantes was representing your daughter.”

“She was. Luisa was diagnosed with breast cancer. She needs to start treatments right away.”

“Sorry to hear that.”

I darted another glance at Rosie, who had fought her own battle with breast cancer a decade earlier. Luisa was a respected attorney who had grown up a few blocks from Rosie in the Mission. She had graduated near the top of her class at my alma mater, Boalt Law School at UC-Berkeley. Instead of opting for a six-figure salary at one of the big firms downtown, she set up a solo practice in the Mission where she handled criminal cases, eviction issues, and immigration matters.

Sylvia spoke up again. “Luisa isn’t going to be able to handle Mercy’s trial. That’s why we came to see you and Rosita.”

“Happy to help,” I said, “but you know that we are only allowed to represent clients who have financial need.”

“We took up a collection to pay for Mercy’s defense, but we ran out of funds. Luisa generously continued working pro bono. Perlita doesn’t have the money to hire another private lawyer, and we don’t have time to do another fundraiser.”

I shifted my gaze to Perlita. “Do you or your daughter have any savings or other sources of financial support?”

“No. Mercy has been in jail for almost a year. I clean houses, but I live day-to-day. My husband was killed in a construction accident three years ago.”

“I’m sorry. Any other children?”

“A four-year-old daughter named Isabel.”

Being a single mother of a four-year-old was stressful. Dealing with an older daughter facing trial for murder was unimaginable. “Other relatives?”

“No. My parents are gone. My brother and sister live in Mexico, but they can barely support themselves. I have cousins here in the City, but they have trouble making ends meet.”

“Where do you live?”

“In a basement apartment across the street from St. Peter’s. When I’m short, Father Lopez helps me with the rent.”

St. Peter’s Catholic Church had served the Mission for over a hundred years. My parents were married there. Rosie and I were, too. The parish was now predominantly Latino.

Sylvia reached over and squeezed Perlita’s hand. Then she turned to her daughter. “You’ll take care of this, Rosita?”

“Of course, Mama.”

“Then it’s settled.”

Perlita’s eyes filled with appreciation. “Thank you, Ms. Fernandez.”

“Rosie. Anything else we should know?”

Perlita cleared her throat. “Is this conversation covered by the attorney-client privilege?”

“Yes.”

Technically, this wasn’t true. Perlita was not our client. Nevertheless, Rosie wanted to hear her out, and so did I.

“What did you want to tell us?” Rosie asked.

Perlita’s eyes filled with tears, and she couldn’t answer.

Sylvia spoke up for her. “Perlita is undocumented.”

Rosie addressed Perlita in a maternal tone. “Obviously, that presents a potential complication. Have you ever been contacted by ICE?”

“No.”

“Do they know you’re here?”

“Probably. I’ve tried to keep a low profile—especially since Mercy was arrested.”

“It’s better that way. We’ll try to avoid doing anything that would give them a reason to talk to you. On the other hand, your daughter’s case has already generated media attention, which is likely to become more intense as we get closer to trial. Ideally, it would be better for you to remain out of the public eye.”

“Can I visit her?”

“I can’t order you not to visit your daughter, but it could make things complicated for you and Isabel.”

“Can I go to Mercy’s trial?”

“Yes, but it will also increase your chances of being detained.”

“I’m prepared to take the risk.”

I would have answered the same way. “Perlita,” I said, “was Mercy born here?”

“No. We brought her here when she was a baby.”

“Is she a U.S. citizen?”

“No, she’s a Dreamer.”

Deferred Action for Childhood Arrivals (DACA) was a controversial immigration policy adopted by the Obama administration in 2012. It permitted certain young people to apply for a renewable two-year period of deferred action from deportation and obtain a U.S. work permit. To be eligible, participants could not have felonies or serious misdemeanors on their records.

“When does her ‘Dreamer’ status expire?” I asked.

“December thirty-first.”

It meant that even if we got an acquittal, Mercy could still be deported a few months later if her Dreamer status was not renewed. “Has she ever been convicted of a crime?”

“Not even a parking ticket.”

“Good. What about your younger daughter?”

“Isabel was born here, so she’s a U.S. citizen.”

Whose life will become very complicated if Perlita is detained or deported.

Perlita took a deep breath. “Are you allowed to represent Dreamers?”

“Yes.” Well, maybe. The law wasn’t settled. It was the policy of the Public Defender’s Office, as handed down by the Public Defender (Rosie), and as implemented by the co-head of the Felony Division (me), that we would represent Dreamers who otherwise qualified for our services. Rosie and I had agreed that we would continue to do so until a court ordered us to stop. The risk of that happening in San Francisco was relatively slim.

A flash of hope appeared in Perlita’s eyes. “What happens next?”

“We’ll want to meet Mercy. She’ll have to complete some paperwork to appoint us as counsel and fill out some financial disclosures, but that won’t prevent us from moving forward. We’ll also want to talk to Luisa.”

“She assured me that she would help with a smooth transition.”

“Great. Does Mercy have a trial date?”

“October twenty-eighth.”

It was only three and a half weeks away. “That’s a tight timeframe for us to get up to speed. We may want to ask for a continuance.”

Sylvia interjected again. “Perlita and I would be very grateful if you would move forward as soon as possible, Michael.”

It was “Sylvia-speak” for “Perlita and I expect you to go to trial in three and a half weeks.” “We’ll do everything in our power to move forward on schedule.”

“Thank you.”

We spoke for a few more minutes before Rosie and I escorted Sylvia and Perlita to the reception area. Rosie and I returned to her office, where we took seats on opposite sides of her desk.

“We need to get on this right away,” I said. “We should also talk about staffing.”

Rosie’s eyes narrowed. “I’m going to try this case myself.”

End of Chapter 2. Buy THE DREAMER now on Amazon.

Listen to a sample of THE DREAMER

Order now on Audible and Amazon