Special Circumstances (38 page)

He folds his hands and looks out the window for a moment. In myfamily, such news would have been met by at least twenty minutes ofworld-class histrionics, followed by another half hour of assignment ofblame. When you’re the rabbi’s son, you aren’t allowed suchluxuries.
We sit in silence.
“Are they sure?” he finally asks.
“Ninety-nine percent.”
He rubs his index finger across his lips.
“I was afraid of that.”
“Did you know?”
“I wasn’t sure.” He scratches his head.
“Diana said it was possible.”
“I see.” But I really don’t.
“What am I going to tell Naomi?” he says to nobody in particular.
“You might start with the truth,” I reply. I realize my tone is harshas I say it.
He swallows hard.
“You don’t understand,” he says through gritted teeth.
“You just don’t fucking understand.” He stands up and walks toward thekitchen. I follow him. He pulls a glass from a cabinet and fills itwith water. He leans against the refrigerator and I lean against thecounter. We’re barely five feet apart. There’s a look of desperationin his eyes.
“Then explain it to me,” I say.
“If you want me to defend you, I have to understand.”
“You can’t.”
“Maybe not. But I can try.”
He blinks back tears.
“You don’t know what it’s like being the rabbi’s son, Mike. You livein a fishbowl. Everything gets blown out of proportion. If you getsent home from school, you aren’t just another little kid getting introuble. You’re the rabbi’s son getting in trouble. If you aren’tdressed perfectly for services, it’s viewed as a poor reflection on therabbi and on the entire Jewish community. People notice.” He looksaway. It’s hard to believe he’s the same guy who was working on abillion-dollar deal a few weeks ago.
I don’t say anything.
“Naomi is more fragile than she lets on,” he says.
“She’s been on antidepressants. I didn’t mean to sleep with Diana,Mike. It just sort of happened. And it only happened once. It wasstupid. And I have to live with it.”
“Joel,” I say, “for the moment, you have to remember you’re a defendantin a murder trial. You can’t dwell on the fact that the Jewishcommunity may find out about your relationship with Diana. You have totell Naomi and your parents tonight. They’re going to introduce thelab report in open court tomorrow. I may not be able to stop them.”
“I’m completely fucked,” he says. The stress overwhelms him. Hedissolves into tears. He knocks his glass of water off the counter. Iput my arm around his shoulder. The sobs are long and loud.
“What am I going to tell her?” he repeats several times.
For a guy who thinks he has all the answers, I’m speechless.
I hear the front door open behind me. I hear Mrs. Friedman’s voice.
“Anybody home?”
Rabbi Friedman says, “Joel, are you still up?”
I see that Joel has miraculously regained his composure. His parentsfind us in the kitchen. We stand in silence for a moment.
“What is it?” Joel’s mother asks.
Joel looks at me. Then he turns to them.
“Something’s come up. We need to talk.”
“How did he react?” Rosie asks later that night. We’re watching thenews in her living room.
“Not well,” I reply.
“He broke down. He’s humiliated. His marriage is falling apart.”
She closes her eyes. She and I were down the same path not so longago.
“Did he tell Naomi?”
“They were talking when I left. They were both crying. She wasn’t asangry as I thought she’d be. I don’t think she has the energy to beangry. She looked so sad.”
“And his parents?”
“He told them, too.”
“How did they take it?”
“Stoic. It’s the way they are.”
“Shit.”
“Do you think I should have stayed there, Rosie?”
“Probably not. You have to deal with some things in private.”
“Would you do me a favor?” I ask.
“Would you stop by Naomi’s on your way in tomorrow? I think she’sgoing to need some support. It might be better if it comes fromyou.”
“Sure.”
“Thanks.”
She turns off the TV.
“What are you going to do in court tomorrow?”
Beats me.
“We have two choices. We can ask for a continuance and get Mort’sexpert to challenge the validity of the paternity test.”
“Medical science isn’t perfect.”
“Paternity testing is pretty close. I’m sure he’s the father.”
“What’s the other choice?”
“We stipulate that Joel is the father. We get to the truth quicklywithout a lot of hysterics.”
“Why would we do that?”
“To avoid pissing off the jury with three weeks of expert testimony onthe unreliability of paternity tests that we know are accurate.”
“Tough choice. What does Joel want to do?”
“He wants to stipulate. He’s ready to come clean.”
“You think he’s lied about anything else?”
“I don’t think so.” I don’t add that I’m not sure.
“Let’s talk in the morning with Joel.”
I’m still lying awake at one o’clock in the morning when my phonerings.
“Mike, it’s Naomi.” Her voice breaks. She’s been crying.
“Hi.”
“Mike,” she says slowly, “I just don’t know what to do.”
“You don’t have to decide tonight.”
“I know. I just can’t believe he’d lie to me.”
I have no response.
“Maybe we should talk about it in the morning, Naomi.”
She tries to catch her breath.
“I can’t go to court tomorrow. It will be too humiliating.”
I pause.
“I understand.”
“No, you really don’t,” she replies sharply.
“You really don’t.”
“I know things will be tough for you. But it would help us if the jurysees you there.”
“I don’t know if I can.”
“Let’s talk about it in the morning. We’ll stop by on our way in.”
Five minutes later, the phone rings again.
“It’s Rabbi Friedman.” He clears his throat.
“This isn’t good news.”
“No, it isn’t.”
“How reliable are these tests, Michael?”
“Very.”
“What would you suggest?”
I pause.
“We’re going to ask for more time to let our expert review theevidence. The judge may not give it to us. At the very least, we’llfind another expert and blow some smoke at the jury.” I regret sayingit as soon as I’ve said it.
“You mean you think we should lie?”
“No. It’s my job to get the jury to reasonable doubt. If I have totrot out an expert for three weeks of testimony, that’s what I’lldo.”
He clears his throat.
“This is very difficult.”
“Maybe we should talk about it in the morning.”
CHAPTER 43
THE PROSECUTION RESTS
“District Attorney Prentice Gates is expected to call his final witnesstoday.”
—KCBS NEWS RADIO. 7:40 A.M. tuedsay, march 31.
It’s pouring when I reach Rabbi Friedman’s house at seven-thirty thenext morning. Joel and his parents are ready to go. Nobody says aword about last night.
“Michael,” Rabbi Friedman says, “we don’t want to be late for court.”
“Rabbi, may I have a word with Joel in private?”
“Of course.”
I pull Joel into the kitchen.
“You okay?”
“As okay as I’m going to be.”
“What about your parents?”
“They’re pissed off.”
“And?”
“They’re still my parents. They’re embarrassed and they’ll probablykill me after the trial is over. Until then, they’re going to play outtheir roles.”
This helps.
“What about Naomi?”
“That’s tougher. She said she didn’t want to go to court this morning.She may take the kids down to her mother’s in Southern California untilthe trial’s over.”
“One step at a time.”
We gather our umbrellas and raincoats. As Rabbi Friedman opens theheavy front door, I see Naomi and Rosie walking up the steps under alarge umbrella. Even though it’s dark out and it’s raining, Naomi iswearing sunglasses.
“What are you all looking at?” Naomi snaps.
“It’s time to go to court.”
Joel tries to give her a hug, but she pulls away.
“We have a lot to talk about when the trial’s over,” she says to him.
Rosie repeats firmly, “It’s time to go to court.” I give her hand aquick squeeze as we walk down the steps toward our cars.
“Your Honor,” I say, “the prosecution has just provided some new andpotentially inflammatory evidence. We need some time to review it.”We’re sitting in Judge Chen’s chambers. I asked for a meeting as soonas we got to court and before the jury was brought in.
Judge Chen isn’t in a particularly gregarious mood this morning. Shegives Skipper a sharp look and demands, “What’s this all about, Mr.Gates? It’s a little late to bring in new evidence.”
He smiles confidently. He hands her a copy of the lab report.
“Your Honor,” he says, “we just got this. We would have introduced itsooner if we’d had it, but the defendant insisted on an early trialdate.” He clears his throat, but he’s still grinning.
“The defendant was the father of Diana Kennedy’s unborn baby.”
Silence. She puts on her reading glasses and studies the report.
“Your Honor,” I begin.
She holds up her hand.
“Let me look at this, Mr. Daley.”
Rosie remains silent. Mort studies the judge. Skipper and McNultyexchange satisfied looks. I’m waiting for the high fives to start.
After what seems like an eternity, she puts down the report.
“This is serious,” she says.
“These tests are very reliable.”
Skipper agrees vigorously.
“Very reliable, Your Honor. Close to one hundred percent.”
“Thank you, Mr. Gates.”
“Your Honor,” I say, “we just got the report last night. We haven’thad an opportunity to review it with our expert. And we certainlyhaven’t had an opportunity to conduct an independent test.”
“That could take weeks,” Skipper protests.
“If they wanted to verify the results, they should have made therequest months ago. They pushed for the early trial date. We’reready to conclude our case. We can’t wait six weeks while theirexperts redo the paternity test. It isn’t fair.
We’ll lose the jury. They’re going to come back with the same results,anyway.”
The judge looks at me.
“Mr. Daley, you really should have made your request sooner.”
She’s right. I’ve made a significant blunder. I believed my clientwhen he told me he didn’t have an affair with Diana Kennedy.
“In the interests of fundamental fairness, Your Honor,” I say, “wewould request that you give us at least a few weeks to examine thereport and consult with our expert.” When all else fails, I tryfundamental fairness.
She shakes her head.
“I’m not going to put this jury on ice for a month.”
“Judge Chen,” I say, “I won’t ask for a few weeks. But you have togive us a couple of days.”
“I don’t have to give you anything.”
“I know. But all I’m asking for is just a few days.”
She turns to Skipper, who’s whispering to McNulty.
“Mr. Gates,” she says, “it’s Tuesday. I was planning on a couple ofshort trial days this week so I can attend to some other business.Would you object if we recess until Monday so the defense can reviewthe lab report?”
“Your Honor,” he replies, “I think we should proceed. I see no purposefor this delay.”
“Mr. Gates,” she says, “it looks like the rain may stop for a whilethis afternoon. Why don’t you and Mr. McNulty go out and hit somegolf balls?”
Skipper gets the message.
“When you put it that way, Your Honor, I guess we might be in aposition to adjourn until Monday.”
“We’re done,” she says. Skipper and McNulty dart out the door. As I’mpacking my trial case, she says to me quietly, “He lied to you aboutDiana, didn’t he?”
I swallow.
“Yeah.”
“There isn’t much I can do about it, you know.”
“I know.”
“Mike,” she says, “I know you’ll be tempted to try to get me to declarea mistrial so you can start over and retool your case.”
I’m silent.
She looks right at me.
“I won’t let it happen. Don’t push my buttons on this one,understood?”
“Understood.”
“Good. I’ll see you Monday.”
We spend the rest of the week trying to fill some of the holes in ourcase. On Thursday, Mort’s DNA expert from UCSF confirms what we allexpected. The paternity tests were conducted by a reputable lab.Unless we can demonstrate that there were some shenanigans, it’svirtually certain that Joel was the father. Pete and Wendy leave forthe Bahamas on Friday.
I have one bright spot on Friday. I take Nick Hanson out for lunch atMoose’s, an upscale eatery on Washington Square in North Beach. Ateighty-something, he’s still a character. He assures me that he’d bedelighted to testify, as long as we agree to pay him for his time athis standard hourly rate.
I spend all day Saturday and most of Sunday working with our medicalexpert.
Dr. Robert Goldstein, on his testimony to rebut Rod Beckert. At seveno’clock Sunday night, Rosie, Mort and I regroup in our office. Joelhas agreed to stipulate that he’s the father. I phone Skipper with thenews. He’s pleased.
Within fifteen minutes, McNulty faxes a draft stipulation to us. Weagree on the language.
Mort inspects a fine Cuban cigar.
“It’s the best we can do. We’ll get the issue off the table as quicklyas we can.”
I’m not so sure.
Rosie and I drive home on Sunday night. As we head northbound on theGolden Gate Bridge, I turn to her and say, “How did you get Naomi tocome to court the other day?”
“She’s tougher than you think. I told her she and Joel have big issuesto work out, but that it would help Joel if she waited until after thetrial.”
Rosie is one smart cookie.
“You think they’ll be able to hold it together after all this isover?”
“Tough to predict. They’re going to have to make some changes.” Shelooks out the window and tugs at her hair.
I’ve learned there are times when I shouldn’t ask too many questions.We drive in silence.
On Monday morning, Judge Chen is pleased when we inform her inchambers that we’ve agreed to stipulate about the paternity test. We’vejust saved a couple of weeks of trial time. She has Skipper read ourstipulation to the jury as soon as they’re brought in. Although thereare a few raised eyebrows among the jurors, there isn’t much reaction.They’re getting tired.
“Mr. Gates,” Judge Chen says, “do you have anything further at thistime?”
“No, Your Honor.” He turns toward the jury.
“The prosecution rests.”
“Very well.” She looks at the jury.
“The prosecution has completed its presentation. We’re going to take ashort break while the attorneys discuss some legal issues.” She nodsto Harriet Hill, who leads the jury out.
“Mr.
Daley,” she says, “I presume you’d like to make a motion at thistime.”
“Yes, Your Honor. The defense moves that all charges be dropped.” Themotion is routine. The defense always moves for dismissal at the endof the prosecution’s case.
“On what grounds?”
“As a matter of law, the prosecution has failed to prove its casebeyond a reasonable doubt.”
Skipper stands.
“Objection.”
“Sit down, Mr. Gates.” She turns to me.
“Mr. Daley, your motion is denied. The defense should be prepared tocall its first witness tomorrow morning.”
CHAPTER 44
THE BRAIN TRUST
“After two weeks of damaging testimony from the prosecution’switnesses, Friedman’s attorneys will begin their defense. I hope theyhave a few rabbits in their hats.”