Night Is the Hunter

For my mother-in-law,

Alice Zlatka Litov,

from dawn to daylight

Twilight, a timid fawn, went glimmering by,

And Night, the dark-blue hunter, followed fast,

Ceaseless pursuit and flight were in the sky,

But the long chase had ceased for us at last.

—“
THE REFUGE
,”
GEORGE WILLIAM RUSSELL

R
ay McMullin, standing waist deep in chest waders, leaning hard into the current, his rod bent against the steelhead's run, wasn't a fisherman.

It had been two days on the river and Harlan Donnally was still waiting for the aging judge to explain why he'd made the nine-hour drive up from San Francisco to the northwest corner of the state, had been willing to sleep on frozen ground and wake to sunless dawns and to stand shivering as he did now in a twisting breeze that whirled the drifting snow and swayed the redwoods lining the banks.

Donnally pointed at the rod. “Keep the tip up and the line taut.”

McMullin reached toward the drag on the front of his reel.

“Don't. Better leave it light.” Donnally spread his arms to encompass the wide riffle in front of them and the stretches of smooth water above and below. “He can run, but he can't hide.”

Donnally watched McMullin's lined and windburned face, looking for a reaction, suspecting since the judge first arrived that while he might not be hiding, he was running.

The rod bucked with the steelhead's head shakes as it ended its flight downstream and turned back into the current. It held there, the line tight, vibrating in the wind at a timbre too high for
human ears, snowflakes veining the top of the nine feet of brown graphite. Then another buck and the ridge of snow rose from the rod, seemed to hesitate in the air, then tumbled and dissolved in the rushing water.

“Raise your tip. A slow pull. Don't let him use the current to rest.”

The steelhead drove into the flow, using muscles evolution had given it to fight upstream from the Pacific, through the mouth of the Smith River and then hundreds of miles under rising rapids and over waterfalls to its spawning grounds, and finally again to the sea.

A ten-second burst brought the fish even with them. It leaped, a flash of silver, twelve pounds of body and fin tail-walking the surface, then crashed back into the water. A second leap, another burst, and it was fifteen yards upstream. More head shakes and then the line went slack.

The judge lowered his rod. “He's gone.”

Donnally levered it back up. “Reel. Hard. He's coming at you.”

The judge worked the handle, his red knuckles whitening, his jaw clenched, his eyes tearing in the breeze. Twenty turns later, the line tightened, and the rod bucked again, then plunged down and held.

“Now try to pull him toward you.”

McMullin braced the cork butt against his wader belt and raised the rod. It gave. He reeled again as he lowered it, then raised it and reeled, raised it and reeled.

Donnally reached into his Landing Hand, a mesh pocket designed to preserve the fish's protective membrane as he held it.

“We don't want to tire him out too much. Lead him to me and let's unhook him.”

The steelhead glided toward them in a slow surrender, his lidless cold eyes staring up at them.

McMullin eased it close to Donnally, already wrist deep in the near-frozen water. He cupped his palm under the fish's body and secured his fingers around the tail just above the fin and the judge unhooked the barbless hook from its jaw.

Donnally released his grip.

The fish hung there, its gill covers pulsing, inhaling oxygen from the water; then with a flick of its tail, it wheeled into the current and was gone.

Donnally straightened up and looked at McMullin as though into a mirror distorted by time. Brown eyes and hair to brown eyes and hair, his five eleven to the judge's six feet. Forty-eight to seventy-four. Donnally's shoulders a few inches wider and squared to the older man's slumped and rounded.

It had been the judge's fourth hookup during the two days they'd been on the river, and none of the times had McMullin smiled, and after each Donnally had to instruct him again in the craft of fighting steelhead.

“You going to tell me what's been on your mind or are we just going to keep beating up fish?”

The judge didn't respond. He just gazed out at the river, his face bearing the same intensity, his lips pressed together, his eyebrows narrowed, that Donnally had observed both from the witness box and in chambers during the seventeen years he'd been a San Francisco police officer. It was that expression that always represented to Donnally what McMullin was as a human being. Unlike so many other judges who ruled by whim and impulse, when confronted by an issue, McMullin would hesitate, pause in silent contemplation, working out the arguments and weighing
the facts against the law, and then not merely announce his decision, but outline its logic. There were a few attorneys in the Hall of Justice who considered him pedantic, but even fewer who made more than a formality of challenging his rulings.

Donnally had visited the judge in San Francisco a few times since a gunshot wound in his hip forced his retirement from SFPD a decade earlier and he moved north to Mount Shasta to open a café. But on none of those occasions had he observed this kind of gravity and formality, this kind of distance from the moment. It was as though the judge had abstracted himself from this place and this time, from the wind and the cold and the rush of water, even from the pressure of Donnally's gaze, and had concentrated himself in some other place and in some other time.

Finally, the judge spoke.

“Murder is the unlawful killing of a human being with malice aforethought.”

Donnally squinted over at McMullin, thrown by the judge quoting the first sentence of Penal Code section 187 instead of answering his question.

The judge stared forward, but his eyes were unseeing, or perhaps reading the text in his mind.

“All murder which is willful, deliberate, and premeditated is murder in the first degree. All other kinds of murders are of the second degree.”

Donnally couldn't grasp why the judge was giving the lecture. It couldn't have been because McMullin didn't think Donnally knew the section. Cops memorized all the serious felonies before they'd graduated from the academy, and the gangster's slug that ended Donnally's career hadn't destroyed his memory.

“Malice may be express or implied.”

McMullin had now quoted the beginning of section 188 as
though he was preparing to instruct a jury on its meaning, except he appeared to be a jury of one and it seemed to Donnally that he was reminding himself, not Donnally, of the elements of the crime or, perhaps, trying to attach facts in his mind to the scaffolding of law.

“Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.”

Cases of express malice were common, too common for Donnally to think it was the point of the judge's recitations. It was the stuff of newspaper headlines and compulsive cable news coverage. Death penalty cases, murders committed during robberies or rapes or kidnappings, serial killings, and gangland executions.

“Malice is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart.”

Implied malice was more rare. Drunk driving resulting in the death of a passenger or setting off fireworks causing the death of an onlooker. While those killings were never willful, deliberate, and premeditated, in their recklessness and in their endangering others they revealed an abandoned and malignant heart, and that's what made them murders.

“When it is shown that the killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.”

The judge now sounded to Donnally as though he wasn't preparing to match facts with the law, but to apply the law to himself, and he wondered whether the judge was about to confess to some reckless act that had led to the loss of another's life.

McMullin took in a long breath and exhaled a misty cloud that swirled in the wind and then vanished against the overcast sky.

“I just received a letter from a defendant I sentenced to death twenty years ago. Israel Dominguez. The jury found him guilty of murder with the special circumstance of lying in wait.”

Another breath and exhale.

“It was a New Year's Eve shooting through the living room window of an apartment near the housing projects in Hunters Point.”

The judge raised his arm to forty-five degrees, pointing as though they were standing on the sidewalk in front of the building instead of on sand and gravel in the wilderness.

“It happened at midnight.” He lowered his hand and tapped his wristwatch. “Right to the second. At the height of the chaos. The D.A. argued it was an execution of a Norteño gangster by a Sureño with the date and time chosen to give the shooter cover.”

The judge didn't need to explain who those gangs were. They were as central to San Francisco crime as the Crips and the Bloods had been in Los Angeles. The Norteños—Northerners—were the outside arm of the Nuestra Familia prison gang. It recruited members from Northern California. The Sureños were the outside arm of the Mexican Mafia, based in Southern California, and had always been trying to spread north.

The gangs fought their battles on Mission District streets and in barrio bars of San Francisco. It was on one of those streets that Donnally, just stepping out of his car, and a young man and woman planning their wedding at a sidewalk table, had been caught in a cross fire between a Norteño and a Sureño. Donnally had killed the two gangsters, but too late to save the couple.

The judge glanced over at Donnally.

“There were lots of other gunshots going off in Hunters Point
that night and four or five accidental shootings. The defense admitted that Dominguez fired into the house, but denied he was aiming to kill anyone, just to give them a scare.”

Donnally pointed toward the pebbled bank. “Let's . . .”

McMullin turned into the current. He lost his balance. Donnally reached over and steadied him, then kept a hand on his arm as they angled their way through the water.

Once on shore, Donnally said, “I take it under the defense theory, the worst Dominguez could've been convicted of was second-degree murder under an implied malice theory. No premeditation, just a reckless disregard for human life, and therefore no death penalty. A maximum of seventeen to life, plus a few more years on a gun enhancement.”

The judge nodded. “And all the appeals since his conviction have focused on the jury instructions I gave at the time, particularly whether I should've offered a voluntary manslaughter instruction.”

“Under a heat of passion theory? That the victim somehow provoked it, brought it on himself?”

“But I couldn't. His attorney hadn't put on any evidence the killing was the result of an argument or a fight, and he didn't even ask for the instruction. But that didn't stop his appeal lawyers from claiming ineffective assistance of counsel on his part and error on mine.”

Donnally was surprised the accusation didn't inject anger into the judge's voice.

“It was just try-anything, do-everything desperation. There was no evidence of manslaughter on the record. None at all. And the appeals court recognized it.”

McMullin stared down at the clear water lapping against the rocks.

“There were times during the trial when I felt like taking the defense attorney into chambers and making some suggestions to him about what he should do.”

“I'm not sure what kind of defense you—”

McMullin now looked over at Donnally and his voice tensed. “Maybe mistaken self-defense. At least argued that Dominguez believed he was in danger—it was gang territory, after all—then the jury could only have convicted him of manslaughter because there's no malice involved, just fear, even if it's unjustified.”

McMullin spread his arms, almost in a plea.

“I would've done anything within the law to help his attorney and I told him so. Given him all the money he needed from the county indigent defense fund to hire a psychiatrist to look into Dominguez's mental state at the time of the shooting, what in his personal history that might have led to that predisposition, and for investigative time to look for witnesses.”

“Why didn't he accept the help?”

“Panic, I think. Desperate to keep his client off death row, convinced he had to let the jury have at least a second-degree murder conviction. Let them have implied malice and abandoned and malignant heart and all that, just not willful, deliberate, and premeditated.”

An image of McMullin's courtroom came to Donnally and of the defense attorney facing the jury and pleading for his client, and the rest of the logic of the case came to him.

“You mean the attorney was afraid if he pushed too hard at lessening Dominguez's responsibility by claiming manslaughter—that the victim did something to bring it on himself—the jurors
would get enraged and snap back with first-degree murder and special circumstances and a death sentence.”

“Exactly.”

“But they did anyway.”

McMullin looked away for a moment, then back and nodded.

“They did anyway.”