Special Circumstances (13 page)

“What’s the prognosis on bail?”
“Not great. If Skipper charges you with first-degree, bail will betough, but not unheard of. If he goes for special circumstances,bail’s out.”
He turns white. My bedside manner lacked finesse.
“The death penalty,” he whispers.
“We have to be prepared for it. Skipper was talking about it. He maynot decide until after the arraignment.”
“Dammit.”
I pause to let him get his bearings.
“One other thing. I talked to your father.
Seems he’s gotten a few suggestions that I may need a little help onthis case.”
“Do you?”
“Yeah. I thought I’d handle it with Rosie. We were a good team at thePD’s office.” I explain that murder trials in California are dividedinto two phases. The first involves a determination of guilt orinnocence. If there’s a guilty verdict, the trial moves to thesocalled penalty phase, where the jury decides whether to impose thedeath penalty. It’s customary for the penalty phase to be handled by adifferent attorney, so the jury gets to see a new face. In addition,when all else fails, the penaltyphase attorney argues that the trialattorney was incompetent. If the trial attorney handles the penaltyphase, the trial attorney may be put in the uncomfortable position ofhaving to argue that he screwed up. The penaltyphase attorney isknown as Keenan counsel. I tell him I’ll handle the trial phase andRosie will be Keenan counsel.
He stops to ponder for a moment, then he says, “I want to think aboutit. I know you and Rosie are good. I want to be sure you have enoughfirepower. My dad’s pretty well-connected.”
“I know.”
“I’ll let you know in the next day or so.”
“He wants to hire another lawyer as co-counsel?” Rosie is slicingpizza in her small kitchen later the same evening. Grace is watchingTV in the living room.
“Yeah. I’m beginning to see why Joel needed some space from hisdad.”
“He’s worried, Mike.”
“I know.”
“You’re going to need some help on this. Probably lots of help.”
“I know that, too.”
“What did you have in mind?”
“I figured I’d take the lead and use Pete as the primaryinvestigator.”
“Keep it in the family. I like that.”
“He’s good, Rosie.”
“I know. What about Keenan counsel?”
“I took the liberty of recommending you. I hope it was okay. Joeldeserves the best.”
“I thought you’d never ask.” She smiles.
“One question. Do I have to marry you again?”
“Nope. No more mixing business and pleasure.”
“It’s a deal.”
“Great. I’ll check with Joel.” I pause.
“And his father, I suppose.”
“So I gather.”
“One other thing, I get to make all the final decisions in the trialphase.”
“Of course.”
Joel’s lucky. He’s just hired the best defense team from the SanFrancisco PD’s office in the last twenty years. Of course, he’s alsohired two people who reenacted the War of the Roses only five shortyears ago. We’re a mixed bag.
And the arraignment is in just two days.
CHAPTER 14
NOTHING EVER HAPPENS AT AN ARRAIGNMENT
“Plea bargaining isn’t just a part of the criminaljustice system—itIS the system.”
—criminal defense attorney AND adjunct professor OF law morton R.goldberg.
continuing LEGAL EDUCATION SEMINAR. march 30,1982.
Two days later. Monday, January 12. The television coverage for everyarraignment begins essentially the same way. First, there’s footage ofan unshaven, handcuffed, jumpsuit-clad defendant being led into courtlooking guilty as hell. Next they show a clip of a grim-lookingprosecutor (almost always a middle-aged white male) marching into courtwith his minions, uttering platitudes about the strength of his caseand his faith in the criminaljustice system. Finally, the sceneshifts to the front steps of the courthouse, where a smarmy-lookingdefense attorney boldly proclaims his client’s innocence and castigatesthe DA for bringing trumped-up charges against a pillar of thecommunity.
At nine-thirty in the morning, the smarmy-looking defense attorneystanding in the drizzle on the front steps of the Hall of Justice isme.
I don’t particularly care for this sideshow. I’d just as soon avoidbecoming a media star. On the other hand, in our TV culture, you tryto make points whenever you can with what we attorneys like to call thepotential-juror pool.
An army of reporters and cameramen fight for space. It’s a great dayfor the hair-spray industry. With Naomi standing to my left and Rosieto my right, I look directly into the cameras and say, “Ladies andgentlemen, we are shocked and dismayed Mr. Gates has chosen to proceedwith these unsubstantiated charges. We are certain Mr. Friedman willbe fully exonerated.”
We push our way through the throng of shouting reporters.
“Mr. Daley, is it true your client has been offered a plea bargain?”
“Mr. Daley, is it true your client is going to plead guilty?”
“Mr. Daley, is it true your client tried to commit suicide lastnight?”
“Mr. Daley, is it true your client was having an affair with DianaKennedy?”
“Mr. Daley? Mr. Daley? Mr. Daley?”
I run interference for Naomi and Rosie elbows Rita Roberts and herChannel 4 microphone.
“Is it always going to be like this?” Naomi asks.
“Probably for a while,” I reply.
We head toward the elevators. I turn to Naomi.
“Rosie will take you to the courtroom. I’m going to see Joel.”
“Can I talk to you about something for a minute, Mike?” Joel and I aresitting in the holding area just behind the courtroom a few minutesbefore the arraignment is supposed to start.
I don’t want any surprises today.
“Of course, Joel.” It’s not like either of us is going anywhere withtwo sheriff’s deputies standing just outside the door.
“I was talking to my dad,” he says. My ears begin to buzz.
“He thinks it might be a good idea if we get you some help.”
I knew this was coming.
“As I told you on Saturday, I was figuring I’d take the lead and Rosiewould sit second chair. Pete will be our lead investigator.” I addhalfheartedly, “Of course, we’ll do it however you’d like.”
He rubs his chin.
“You know Mort Goldberg? He’s the president of the temple.”
Oy. Mort Goldberg. Mort the Sport. Smart. Shrewd. Well-connectedin the Jewish community. In his day, he was one of the more successfulcriminal defense lawyers in town. He taught criminal procedure andevidence at Hastings for years. Unfortunately, his day ended abouttwenty years ago. These days, he spends most of his time cutting dealson drunk-drivine cases.
“I’ve met him. He’s been at it for years. Solid reputation.” There’sno point pissing on him.
“Dad and I thought Mort might be able to help. Do the research. Maybetake a few witnesses.”
Look over my shoulder. Second-guess every decision I make. Soundsgreat.
“Let me be honest. He’s what we defense lawyers call a pleader. He’snot a trial guy. He’s a pleabargain guy.”
“Is he good at strategy?”
“Yes, but he’s not a strong trial lawyer.”
“That’s why we have you, right?” He leans back in his chair.
“I’ve given this a lot of thought. I want him involved. I thought hecould help at the arraignment. He’s waiting outside.”
Jesus.
“He’s here?”
“Yeah. And he’s available today.”
“Joel, nothing ever happens at an arraignment. You plead not guiltyand you sit down.”
“I know, but I need to get bail. You have to get me out of here.”
“The arraignment starts in five minutes. We can’t start talkingstrategy now.”
“I understand. Let me bring him in. I’ll tell him he’s just going tobe an observer today.”
“Fine.” It’s a done deal; what else can I say?
He motions to the deputies and they bring in Mort and Joel’s father.Mort is a stocky sixty-three-year-old with a large, bald head and thickaviator-style glasses. A natural back-slapper, he shakes hands withJoel and greets me like we’ve been pals for years. Give him credit.He’s an operator.
“Joel,” he says, “don’t worry about a thing. Mike and I will have youout of here by noon.”
Rabbi Friedman beams. Temple board meetings must be a riot.
Mort turns to me.
“Glad we’ll finally have a chance to work together. I always admiredyour work at the PD’s office. If I knew you were going to leave, I’dhave asked you to work for me.”
Smooth. Always start with flattery.
“We’re due in court in about thirty seconds,” I reply.
In California, criminal arraignments used to be handled in municipalcourt. In a court reorganization a few years ago, the muni courts wereconsolidated with the superior courts. As a result, arraignments arenow conducted in superior court. Judge Samuel Levin is a dourbureaucrat who’s in his late fifties. He’s worked his way from trafficcourt down the hall to superior court in his twenty-some years on thebench. He spent the early part of his career defending insurancecompanies, which gave him tremendous skill in the art of expedience.He’s not really a judge. He’s more like a legalsystem processor. Nowsemiretired, he doesn’t sit through long trials anymore. He’s found ahome hearing motions and setting bail. He keeps the wheels of justiceturning. We won’t see him again after today. It’s probably just aswell.
The courtroom is packed. Reporters fill the jury box. The roar isdeafening.
Lawyers and police mill around. We aren’t the only arraignment on thecalendar this morning, but we’re the biggest media event. We rise asLevin enters. The case is called. Skipper and I state ourappearances.
Levin wastes no time.
“Mr. Daley, does your client understand the charges?”
“Yes, Your Honor.”
“May we dispense with a formal reading?”
“Yes, Your Honor.”
He turns to Joel.
“On the charge of murder in the first degree, how do you plead?”
I nod to Joel, who stands and says in a clear voice, “Not guilty, YourHonor.”
Levin looks at me.
“By statute, I am required to set a preliminary hearing within sixtydays.” The preliminary hearing is also held in superior court. At theprelim, the prosecution must show that there is “probable cause” tobelieve Joel committed a crime. Joel can accelerate the process bydemanding that the prelim be held within ten days. Most defendantschoose to “waive time,” which means they give up their right to requirethe prelim within ten days.
Ordinarily, the defense loses little by waiving time, because it givesthem additional time to prepare or, in many cases, cut a deal withthe
DA.
“Mr. Friedman,” I say, “chooses not to waive time.”
Levin looks at me over the top of his reading glasses. His face turnssomewhat more dour than usual.
“May I ask why you believe it would be in your client’s best interestto proceed so quickly?”
“My client’s life has been severely and needlessly interrupted by theseoutrageous charges. We are prepared to proceed with his defense assoon as possible so that we may clear his name.”
He grimaces. He’s about to punt this matter to another judge,anyway.
Then, after the prelim, we’ll move to the slightly more grandsurroundings in one of the trial courts upstairs. Levin looks at hiscalendar. He consults with his clerk. They have a somewhat heateddiscussion for a few moments.
“The preliminary hearing will be one week from tomorrow in JudgeKenneth Brown’s courtroom.” Brown is a former prosecutor. Not a greatdraw for our side. Levin turns to Skipper.
“Mr. Gates, I trust you’re prepared to move forward next week?”
“Let me check my calendar. Your Honor,” he replies.
“Mr. Gates,” he snaps, “you are supposed to check your calendar beforeyou enter my courtroom. I will assume you’ll be there.” He turns tome.
“Mr. Daley, are you prepared to proceed?”
“Yes, Your Honor.”
“See you next week.” He raises his gavel and starts to stand.
“Your Honor,” I say, “we would like to discuss bail.”
He shuffles his papers.
“Do I understand, Mr. Daley, that no bail has been set in thiscase?”
“That’s correct, Your Honor. We request that bail be set for Mr.Friedman. He is a respected member of the community and he is hardly aflight risk.”
Skipper is up like a shot.
“Your Honor, the people oppose bail. The defendant is charged withfirst-degree murder. We may ask for special circumstances. He isdangerous and bail should not be granted.”
Levin’s jowls wiggle as he looks first at Skipper and then at me.
“Your Honor,” I say, “Mr. Friedman is an attorney with one of the mostrespected law firms in the city. He has lived here his entire life andhas significant community and family ties. He is clearly entitled tobail.”
“Your Honor,” Skipper says, “we are considering special circumstances.It would be highly unusual for bail to be set in a capital case. Highlyunusual.”
Levin looks at his bench book. He hasn’t had a capital case in frontof him in some time.
“With all due respect, Your Honor,” I say, “the state has not addedspecial circumstances. As a result, at this point, this is not acapital case. The judge has discretion to set bail in this case.”
Levin continues to flip through the penal code. Without looking up, hesays, “Mr. Daley, let me give you some advice. I realize you haven’tbeen in my courtroom in a while. When I hear the words “With all duerespect, Your Honor,” I interpret them to mean, “You doddering oldfool, Your Honor.” Now, let’s try to come up with some authority onthis subject, okay?”
Touchy, aren’t we? Before I can respond, for some inexplicable reason,Skipper starts talking. He’s prepared a speech and he’s going to makeit.
“Your Honor,” he says, “the defendant is, in fact, a flight risk. Theweekend before he was arrested, he and his wife left town.”
“One moment, Your Honor,” I say. I turn to Joel. He whispers that heand Naomi did, in fact, drive up to Mendocino the weekend before he wasarrested. He says they needed time to talk.
“Your Honor,” I say, “Mr. Friedman and his wife took a drive up thecoast for a day. That hardly constitutes flight. He wasn’t a suspectat the time.”
Levin isn’t listening. He looks at Skipper.
“Mr. Gates, isn’t there some statutory authority?”
Skipper shrugs and turns to McNulty, who stands and says, “Your Honor,Section twelve-seventy-five point five of the penal code says ‘adefendant charged with a capital offense punishable by death cannot beadmitted to bail when the proof of his guilt is evident or thepresumption of guilt is great.”
” McNulty recites the code section from memory. Impressive.
Levin looks pleased and he nods.
“That’s it. I knew there was something on this.”
“But, Your Honor,” I say, “this is not a capital offense.” At leastnot yet.
“The proof of guilt is not evident and the presumption of guilt is notgreat in this case.” I can recite penal code sections, too.
He looks skeptical.
“Mr. Daley,” he says, “we can argue all day about whether the proof isevident and the presumption is great. I’m not going to take thecourt’s time for that.”
I see what’s coming.