Blind Justice (7 page)
A PRELIMINARY HEARING, for the defense lawyer, is little more than an opportunity to get a cursory look at the prosecutor’s evidence. That’s why prosecutors will put on as little evidence as possible. Their only goal is to get a judge to send the case to Superior Court for trial, and judges are usually more than happy to oblige.
As a deputy public defender, I’d handled some prelims with as little as fifteen minutes preparation. My preference was more time, of course, but that is a luxury public defenders don’t enjoy. When you’ve got a pile of thirty or forty active files and the fuel of speedy trial rights, you get a fire that burns up your leisure, your relationships, and very often your health.
I was more prepared with Howie’s case, though less so than if I’d had this on a trial track to begin with. I’d just have to see what developed.
Sylvia Plotzske said, “The People call Wilburn McGary.”
McGary, dressed in his police uniform, stood up in the gallery and came forward. He had a buzz cut, like Tolletson, and a tenacious look in his eyes. He walked next to the witness stand, and the clerk swore him in.
Sylvia began her questioning seated at the prosecution table. “Officer McGary, you’re employed by the Hinton Police Department. Is that right?”
“Yes.”
“And how long have you been so employed?”
“Three years.”
“Before that, how were you employed?”
“I was in the Marine Corps.”
“All right. I’d like to direct your attention to the night of March 25. Were you on duty that night?”
“I was.”
“And did you respond to a call at approximately 9:30?”
“Yes. We received a report about possible domestic violence. I was in my car, and dispatch gave me the address.”
“What was the address?”
“May I refer to my report?”
“Of course. Your Honor, may I approach the witness?”
“Yes,” Abovian said. Sylvia took a copy of McGary’s police report to him. I glanced at my own copy. McGary looked at the papers and said, “The address was 5035 White Oak Avenue.”
Sylvia was back at her table. “Tell the court what transpired when you answered the call.”
McGary told the court how he arrived at the house, knocked on the door, and didn’t get a response. He went around the side of the house and found the gate padlocked. Concerned about potential victims in the house, he hopped the fence. He found the sliding glass door at the back of the house. It was open.
“Did you think that was unusual?” Sylvia asked.
In a confident and rehearsed manner, McGary said, “Yes. There were no lights on in that area of the residence. It seemed unusual to me that anyone would leave a door open like that at night, unless there was some unusual circumstance.”
“What did you do then?”
McGary said he announced his presence again, but getting no response, he went inside. Using his flashlight, he went through the house, eventually coming to the bedroom, where he noticed a light on. Entering the room, he saw blood. Lots of blood. And a body on the bed. “I then heard a noise, like a grunt. I turned and saw the defendant on the floor by the television set.”
“Is the person you saw on the floor present in court today?” Sylvia asked.
“Yes.”
“Would you identify him, please?”
Officer McGary pointed at Howie. “He’s sitting next to the defense lawyer.” He said defense lawyer the same way he would have said refuse pile
.
.
“Let the record reflect that the witness has identified the defendant, Howard Patino,” Sylvia Plotzske said.
“The record will so reflect,” said the judge.
“What was the condition of the defendant?” the prosecutor asked.
“He appeared to be hurt. He had blood on his suit and was holding his side.”
“Did he say anything?”
“No. He made some noises.”
“What kind of noises?”
“Like someone who was in pain.”
“What did you do next?”
“I quickly swept through the room and the bathroom to see if anyone else was present. No one else was there. I immediately called for backup. I then questioned the defendant in an effort to ascertain what happened.”
“Did the defendant talk to you?”
“No. He was either unable or unwilling to talk.”
Just so no one would think I was asleep, I said, “Objection. Speculation. It’s beyond the competence of this witness to know the mind of Mr. Patino. Move to strike.”
Abovian looked annoyed. “All right. We’ll strike the last part of the answer. Let’s move on.”
“No further questions,” Sylvia Plotzske said.
“Mr. Denney?” the judge said.
I picked up my legal pad and looked at the few notes I’d written. Some of them I couldn’t read. Wonderful.
“Officer McGary,” I said, “when you went to the location, you didn’t have a search warrant, did you?”
“No, sir. This was an answer to an emergency—”
“Just answer my questions, Officer. You don’t need to elaborate. Did you have a search warrant?”
“No.”
“You said you were answering a call about possible domestic violence, is that right?”
“Yes.”
“Do you know the difference between domestic disturbance and domestic violence?”
McGary shifted slightly. “Yes.”
“What is the difference?”
“Well, a disturbance is usually just noise, which can result from loud voices or objects being broken, things like that. Violence has to do with physical contact.”
“In fact, there’s a chapter in the penal code that defines domestic violence, correct?”
“I believe so.”
“Can you cite that code section?”
Looking perturbed, McGary said, “No.”
That put us on equal footing. I couldn’t cite the section either. But I knew it was there somewhere, and I knew vaguely what it said. “Are you aware that the definition of domestic violence is intentionally causing bodily injury to a spouse?”
McGary shrugged and said, “That sounds right.”
Sylvia Plotzske stood up as if she had the goods on me. What she actually had was a copy of the penal code, which she held open in front of her. “Your Honor, counsel is referring to section 13700,” she said, sounding like Jack Webb. “It states that domestic violence means intentionally or recklessly causing,
or attempting to cause,
bodily injury to a family or household member, or placing a family or household member in reasonable apprehension of imminent serious bodily injury to himself or herself or another.”
or attempting to cause,
bodily injury to a family or household member, or placing a family or household member in reasonable apprehension of imminent serious bodily injury to himself or herself or another.”
“Thank you, Ms. Plotzske,” Abovian said. “Continue, Mr. Denney.”
I felt for a moment like the judge and Sylvia were a tag team of some sort. Plotzske was sharp enough to know where I was heading, and her reading of the code section was a not-so-subtle transmission to her witness. I started getting a little hacked off.
“Now, Officer, isn’t it true that when you got the call you had no idea whether this was a disturbance or violence case?”
“I believe the dispatcher said possible domestic violence.”
“Shall we subpoena the dispatch record? Would that refresh your recollection?”
McGary shot a quick glance at Sylvia Plotzske. “It may have been domestic disturbance.”
“You’re not sure?”
“It may have been.”
“That sounds like
not sure,
Officer.”
not sure,
Officer.”
“Without checking the records, I can’t be sure.”
“But when you testified just a moment ago, you didn’t hesitate. You said domestic violence, isn’t that right?”
“I thought it was.”
“Did you really, or did you just think it would better justify your warrantless entry into the house?”
“Objection,” Sylvia Plotzske said. “If this is going to be a suppression motion, the People would point out we have received no written notice.”
She was quite right. Under a new statute in California, defense lawyers were required to serve written notice five days in advance of a prelim that they intended to challenge evidence on Fourth Amendment grounds. The problem with that, however, is that most of the time they have no idea until the prelim just what the police did that might be illegal. It was the sort of catch-22 law the legislators in Sacramento liked to pass so they could claim they were tough on law-and-order issues in the next election.
“This line of questioning appears to be irrelevant on the matter of probable cause,” said Judge Abovian.
“Your Honor,” I said, “I am merely following the lead of the prosecutor in delving into the mind of the officer. You’ll recall she asked him what his thinking was when he went around the side of the house. She opened the door, and all I’m doing is walking through it.”
For dramatic emphasis, I waved my hand. A clever argument, I thought, and I congratulated myself for thinking so quickly on my feet. I considered it a victory when the judge merely grunted and said, “Move on to another subject, Mr. Denney.”
I looked at my notes again and saw the word “weapon” in the margin. “Officer McGary, when you entered the house, did you have your weapon drawn?”
Squinting, McGary said, “Yes, I did.”
“I don’t think you mentioned that on direct.”
“I wasn’t asked.”
“Why did you have your weapon drawn?”
“I was concerned about a potentially dangerous situation.”
“Back to the violence again, eh?”
“Please, Mr. Denney,” Abovian said. “This is just a preliminary hearing.”
He was right. I was trying too hard. Was I going all out for Lindsay? “When you entered the bedroom, you kept your weapon out, is that right?”
“I was concerned about safety.”
“When did you put your weapon away?”
“When I was sure that the scene was secure.”
“Did Mr. Patino offer any resistance to you?”
“He wouldn’t talk to me when I questioned him.”
“He was injured, was he not?”
“He appeared to be, yes.”
“Did you call for an ambulance?”
“Yes, I did.”
“Did you call for it before or after you started to question my client?”
With a slight shrug, McGary said, “I’m sure it was before.”
“Are you as sure as you are about the domestic violence call?”
Sylvia Plotzske stood up, but Judge Abovian said, “You don’t have to object, Ms. Plotzske. Mr. Denney, you’re out of line.”
I took that as a compliment. “Did you handcuff my client?”
“Of course.”
“Even though he was injured and you’d called for an ambulence?”
“It was for officer safety.”
I resisted the urge to say,
Sure.
Instead I said, “No more questions of this witness.”
Sure.
Instead I said, “No more questions of this witness.”
I sat down next to Howie, who was looking at me in a new way. Gone was the wild-eyed fear he’d displayed just minutes before. In its place was a look I remembered from when we were kids. It was, for lack of a better term, admiring.
“That was good, Jake,” Howie whispered.
I hoped his sister thought so too.
THE REST OF the prelim was pro forma
.
Sylvia established all the elements she needed, and Abovian set a Superior Court trial date. No surprises.
.
Sylvia established all the elements she needed, and Abovian set a Superior Court trial date. No surprises.
The Patino family seemed pleased, probably because they finally saw me
do
something. Even Howie was appreciative. He thanked me just before they took him back to jail.
do
something. Even Howie was appreciative. He thanked me just before they took him back to jail.
As soon as our little party broke up, I called Trip. He was still at the beach. I could picture him in his Hawaiian shirt, cell phone at his ear, lounging in the sand. Nice work if you can get it.
“Get down here right away,” Trip said. “No telling how long our boy will be here.”
It took me twenty minutes to reach the little strip of beach just north of Ventura. It would have been shorter, but I stopped off at a liquor store for a six-pack of beer. If I was going to go to the beach, I might as well enjoy it.
This beach was a place the surfers liked. I had passed it innumerable times in the past. As always, a knot of ocean boys in wet suits bobbed on their boards as they waited for a wave to fight over.
Trip was indeed on the sand, leaning back against a large rock and soaking up the rays. He wore shorts and had his shoes off.
I, on the other hand, looked like Richard Nixon, who used to walk the beaches in his suit. I could already feel sand building up in my shoes. I had the six-pack in one hand, my briefcase in the other.
“So, where is he?” I said.
“Hey, man, sit down. Take a load off.”
“Glad you’re so concerned with my well-being.”
“How’d the prelim go?”
“Oh, the usual. Client screams about being tormented by the devil, bolts, tries to escape, gets tackled. Same old.”
Trip looked at me through his Ray-Bans and waited for me to laugh. I didn’t. He said, “You’re kidding, right?”
“Nope.”
“Oh, man! I wish I could have seen that! It’s boring watching these guys.”
“So, which one is it?”
“See the guy third from the left?”
I looked out at the bevy of surfers and counted to three. He appeared to have shoulder length blond hair, which made him indistinguishable from just about every California surfer who ever lived.
I popped a beer and offered it to Trip. He shook his head. “You nuts?”
“Just being sociable.”
“When you coming to church with me?”
“When pigs surf.” I took a sip of my beer and sat down.
Chip Delliplane was, from the looks of it, a pretty fair surfer. There wasn’t much to work with out there, but he made the most of his opportunities. He also had a studied flair. You can pick that up about surfers. They each have a style. Delliplane’s seemed less spontaneous. He was still out there trying hard to impress the bunnies, a few of whom lay on towels near the water, watching.
“So, what you got?” I asked.
“Let’s hear it from the lad when he comes in,” Trip said, his head resting on the rock. “Meantime, I did some digging on the wife.”
“What did you find?”
“Not much. Rae Patino has no past. She buried it when she moved here.”
“From where?”
“Word I got was she came from the South. I talked to a friend of hers, and I was lucky to get that much out of her.”
“Why?”
“Soon as she found out I was working for Howie, she started screaming at me, using language that should not come from a lady’s lips. ‘She speaks poniards, and every word stabs.’”
“
Taming of the Shrew?”
Taming of the Shrew?”
“
Much Ado About Nothing,
which is what this turned out to be. She told me to lay off, that Rae’s parents had died when she was a kid, and she was just trying to start over out here. I should let her rest in peace.”
Much Ado About Nothing,
which is what this turned out to be. She told me to lay off, that Rae’s parents had died when she was a kid, and she was just trying to start over out here. I should let her rest in peace.”
“Howie didn’t know anything about her past,” I said. “I think he was afraid to ask. He was so googly-eyed about her that he didn’t want to rock the boat.”
“Well, from everything I know so far, she smells like a scammer. Howie was probably just another scammee.”
I finished my beer, then popped another. We watched the surfers in silence for awhile. I almost lapsed into a nap when Trip suddenly got up. “Let’s go,” he said.
Chip Delliplane was walking up the beach with his surfboard under his arm. He stopped near a beach towel and stuck his board, nose down, in the sand. The leash that surfers wear around their ankles, connecting board to rider, flapped against the board. Delliplane was just about out of his wet suit when he saw Trip and me approaching.
“No way!” he said. “I don’t want to talk to you!” His eyes reflected a certain fear.
“Chill,” Trip said. “This guy’s the lawyer.”
Delliplane looked at me. He was twenty-one or twenty-two, about five-ten, and his body was lean and muscled. To me he said, “I told this guy I didn’t want to talk to anybody.”
“What’s the problem?” I said.
“I don’t want to talk, that’s all.”
“You talked to him though,” I said, nodding my head Trip’s way.
“Yeah, but I thought he was gonna mess me up!” Delliplane said. “He’s crazy.”
“Are you crazy, Triple C?”
“I don’t know what he’s talking about,” Trip said.
“He started talking crazy at me,” Delliplane insisted. “I like freaked. I didn’t know what he was gonna do next.”
“Trip, did you talk crazy?”
“I merely said ‘O, thou pernicious caitiff! Torments will open thy lips!’”
“See?” Delliplane said. “See that? Crazy!”
“All right, Chip,” I said. “May I call you Chip?”
He shook his head, “I ain’t talking.”
“What’s the problem?”
“The problem is, I can’t get involved in this, man. Like I told this dude here.”
“Do you realize a man’s life is on the line?”
“That ain’t my fault.”
“Let’s sit down, shall we?” I motioned for all of us to lower ourselves to the sand. I had four beers remaining in my hand. I took one out, opened it, and handed it to Delliplane. He seemed too amazed to refuse.
“Chip,” I said, “you probably know we can force you into court. But I don’t want to have to do that. I respect the fact that you don’t want your parents to find out about, well, you know. But I need to know what you do know. You can understand that, can’t you?”
“I don’t care.”
“Let me ask you just a few questions, and we’ll decide where to go from there, okay?”
He looked warily at Trip, who was looking Terminator-esque in his shades. “Don’t worry, dude,” Trip said. “You can trust my man.”
“It’s you I’m worried about,” Delliplane said.
Trip smiled.
“Tell me about your relationship with Rae Patino,” I said.
Shaking his head, Delliplane said, “Look, it wasn’t a big thing.”
“Was it sexual?”
“That’s all it was.”
“How long?”
“About a month.”
“How did you meet her?”
“Oh, man,” Delliplane said, shaking his head like he was remembering some weird episode of the
X-Files.
“She comes into The Reef, that’s this bar downtown. She comes in one night, and I’m just hangin’ with my friends. There’s four of us. We were doing shooters, and she walks right up to the table and says, ‘Anybody wanna bet?’”
X-Files.
“She comes into The Reef, that’s this bar downtown. She comes in one night, and I’m just hangin’ with my friends. There’s four of us. We were doing shooters, and she walks right up to the table and says, ‘Anybody wanna bet?’”
“Like she was challenging you to a drinking contest or something?”
“Exactly.”
“What did you do?”
“We all looked at her first. She’s wearing this tight, I don’t know what it is, this top that’s barely covering what it’s supposed to cover, and she’s got these cutoffs on that are so high up it’s almost a belt.”
“She was dressed provocatively?”
“She wanted to pop every eyeball in the place. I mean, first thing I think is she’s a pro. So then one of my buds tells her to sit down, and she slides in.”
“Did she drink?”
“You should have seen her! First she gets us all to buy her one drink each. That’s four shots of Cuervo sitting on the table. We’re all laughing and watching, and she takes a slice of lime, sucks it, and throws back two shots. Then she laughs, takes another lime, throws back the other two. And we’re all, ‘Wow! Who is this chick?’”
“Did anyone bother to ask her name?”
“Nah. No one wanted to come off dork-like.”
“So what happened next?”
“So we’re all kind of watching her, joking around, and then my friend, Sharkey, sitting right next to her, puts his arm around her shoulder and tries to nuzzle her ear or something. And I’m thinking he’s gonna be the one, cause Sharkey’s pretty smooth, but the next thing we know she’s all pushing him away and screaming at him. And Sharkey’s all, ‘What is
that
all about?’ And he pushes
her,
and she goes flying onto the floor. And I’m on the other side, so I jump out and start to help her up, and I’m all, ‘Cut it out, Sharkey man!’ You know, I’m kind of being her protector.”
that
all about?’ And he pushes
her,
and she goes flying onto the floor. And I’m on the other side, so I jump out and start to help her up, and I’m all, ‘Cut it out, Sharkey man!’ You know, I’m kind of being her protector.”
“And it worked, I guess.”
“Yeah. She’s all, ‘Take me home. Take me home.’ So I do.”
“You took her back to her house in Hinton?”
“Yeah.”
“Did you spend the night?”
“Yeah.”
“And you kept seeing her after that?”
“Yeah.”
“How many times?”
“I don’t know, maybe six or seven.”
“Always at her house?”
“One time we came down to the beach.”
“Never your place?”
“I live with my parents, dude.”
Trip let out a big laugh. I said, “Did she ever talk about her -husband?”
“At first she told me she wasn’t married. Then one night she asks me if I wanted to help her smoke her old man.”
“Whoa!” Triple C said.
I felt the same way. “Are you telling me she asked you to help her kill her husband?”
“That’s what I’m saying. But then she starts laughing, so I don’t know if she’s serious or crazy or what.”
“Did she ever bring that subject up again?”
“No.”
It was time for another beer. I popped it and asked, “Let’s get to the night she was killed. You were going to see her?”
“Yeah.”
“On your bike, was it?”
“Yeah. I was on my way about nine, nine-thirty, something like that.”
Trip asked, “Was this by arrangement?”
“No. I just thought I’d go over and drop in.”
“What was your condition?”
“Condition?”
“Were you stoned?”
A little half-smile appeared on Delliplane’s face. “A little, yeah.”
“So, what happened?”
“I’m riding up the street and I’m, oh, about a hundred yards away when I hear this scream.”
“You heard her scream?”
“No, it was a man’s scream.”
Trip and I looked at each other. Delliplane said, “So I stop right there in the middle of the street and listen because I think it came from the house. The house, you know, is kind of angled, and you can see the fields behind it. So while I’m sitting there, looking, I see something moving out behind the house.”
“How well could you see? I mean, what was the light like?”
“No lights. It was just a shadow. But I watch, and it’s definitely a guy running.”
“Fast?”
“Oh yeah. Like he was trying to get away.”
“So what did you do?”
“I took off.”
I could feel Trip’s demeanor changing. He’s of the old school, where you do certain things out of duty or honor. Even if it’s just some tawdry affair, you don’t hightail and run when there’s somebody in trouble and you can do something about it. We knew Delliplane hadn’t even called the police.
I said, “And you weren’t going to say anything?”
“No, man. If this ever got to my parents, I’d be out of the house. Bam. Like that.”
“They didn’t know you were having this affair?”
“No way. I’m a good liar.” Chip Delliplane smiled then, and my stomach turned.
Trip did not look satisfied. “That’s not the only reason, is it?”
Suddenly Delliplane dropped his beach-boy smile.
“There’s more to it, right?” Trip said.
“Look, I can’t talk to you anymore. She was into some bad stuff, there’s people out there . . .” His voice trailed off, and he shook his head. “I’m not talking anymore. That’s it.”
“All right,” I said, then turned to Trip. “You got it?”
“Got it,” Trip said.
“Got what?” said Chip Delliplane. Triple C pulled the microcassette recorder from his pocket and clicked it off.
“We’re going to transcribe this into a statement so you can swear to it,” I explained.
Delliplane started shaking his head vigorously. “No way, man! I ain’t swearing to anything. I told you I wasn’t talking!”
“You just did, Chip.”
“I didn’t know you were recording me! You can’t do that! That’s illegal, or something!”
Trip gave him his passive, Terminator stare.
“Isn’t it?” Chip asked.
I shook my head. “You’re hosed, dude.”
“You guys are slime!” Chip said, and then he said a few things nice boys shouldn’t say. He finished by grabbing his board and declaring that he would never sign anything, he’d lie and say he was set up if it ever came to that, and he knew people who could hurt us. Then he ran away from us as fast as his surfer feet could take him.
“Well, that was entertaining,” I said.
“It was all I could do not to rip his curly hair out.”
“What do you think he meant, about other people?”
Trip shook his head.
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