Special Circumstances (39 page)

—news center 4 LEGAL ANALYST morgan henderson. monday, april 6.
“Have you heard anything from Pete and Wendy?” Joel asks. We’remeeting in Rabbi Friedman’s dining room at two o’clock the sameafternoon. Joel looks intense.
Rabbi Friedman is in a contemplative mood. Mort fingers a cigar. Rosieis drinking iced tea.
“The banker isn’t back in town yet, but Wendy was able to sweet-talkhis secretary into giving her copies of some of the correspondence inthe file.
She’s faxing it to us tonight.”
Joel scratches his head.
“So, who goes first?”
“We’ll start with our medical expert, Dr. Goldstein.” Rabbi Friedmanglances at Mort.
“He’s good,” Mort says.
“I worked with him on his testimony over the weekend,” I say.
“If he can persuade the jury it was a suicide, we can all go home.”
“And if he can’t?”
Joel asks.
“We’ll attack the physical evidence. If we have to, we’ll show thejury that Russo and Patton had a lot more motive and opportunity thanyou did. If things get really tight, we’ll put some of my formerpartners on the stand and try to deflect the blame over to them.”
“What about me?” Joel asks.
“What about you?”
“When do I go on?”
“We’ll see how it goes. If things are going well, you don’t.”
“I want to testify, Mike.” He pauses.
“I need to testify.”
Over my dead body.
“We’ll decide when the time comes.”
We conclude our discussion after an hour or so and I begin to gather mynotes.
Rosie starts to put on her coat. Mort clears his throat.
“There’s something I’d like to bring up,” he says.
“What is it, Mort? Did we forget something?”
He takes a drink of water. He chews the ice. He looks at RabbiFriedman and then he turns to Joel.
“No,” he says, “we didn’t forget anything. I wanted to discusssomething.”
Joel’s eyes narrow. Rosie looks puzzled.
Mort glances around the table.
“I wanted to discuss this privately with Joel, but it doesn’t appearthat I’ll have an opportunity to do so. So, let me explain thesituation to all of you.”
Rosie’s expression turns to a severe scowl.
“What situation, Mort?” she asks.
“After we got the results of the paternity test, I decided to talk tothe DA.”
What? I lean across the table and say firmly, “You didn’t have theauthority, Mort.”
He holds up his hand.
“Hear me out,” he says.
“In light of the test results, I thought it would be in Joel’s bestinterests to feel out the DA about a possible deal.” He looks atJoel.
“I think we need to explore all of our options.”
My heart races. It’s all I can do not to leap out of my seat and grabhim.
Rosie’s eyes are on fire. She doesn’t say anything, but her eyes say,“Light up this asshole.”
I struggle to keep my tone measured.
“Why didn’t you tell me you were going to the DA?”
He doesn’t flinch.
“Because I knew you wouldn’t agree to it.”
“That’s not true. We would have discussed it. We would have consultedwith Joel.
Then we would have made a decision.”
He shrugs.
“I doubt it.”
“Bullshit,” I reply.
“You should have told us,” I shout.
“Look,” he says, “I talked man-to-man with Skipper. He thinks hiscase is shaky enough that he’d be willing to let Joel plead tovoluntary manslaughter. He’ll say it was heat of passion. It takesthe death penalty off the table. And he’s willing to recommend afairly lenient sentence.”
I look at Joel. Joel glares at his father. They both turn to me. Joelbreaks the silence.
“Seeing as how I’m on trial, maybe you guys would be interested in myopinion.”
Mort interrupts him.
“Look, Joel. I know how it sounds. But I was doing it for your owngood. I think you should consider all your options.”
“You think I’m guilty, you asshole.” Joel’s father looks away.
“I didn’t say that,” Mort replies.
“I just thought it was important to know your options.”
“How could you possibly think I might agree to a plea bargain?”
“Look at their case. You’re an admitted adulterer. You’re an admittedliar. How big a leap is it for the jury?”
“You’re right,” Joel says sharply.
“I am an adulterer. I’m not proud of it. I lied about it. I’m notproud of that either. But I am not a murderer. I did not kill twopeople. If the jury wants to convict me for something I didn’t do, sobe it. But I’ll be goddamned if I’m going to admit to something Ididn’t do.
Period.” He stares Mort down. Then he glares at his father.
“Give it some thought,” Mort says.
“I’ve given it all the thought that it deserves, Mort,” he replies.
“No deal.”
Mort nods.
“Okay,” he says.
“I understand.” He reaches for his briefcase.
“There’s one other thing,” Joel says. He looks directly at Mort.
“Your assistance on this case is no longer required. You’re fired.”
Mort glances at Rabbi Friedman, who closes his eyes. Mort turns toJoel.
“I
thought you might have that reaction.” He picks up his briefcase.
“Good luck, Joel. No hard feelings.” He hesitates for a moment, thensays, “I can show myself out.”
After the door shuts, I turn to Joel.
“You okay about this?”
“Yeah,” he answers quietly.
“I’m fine.”
Rosie and I sit in her office later the same evening to talk aboutstrategy.
The hallway is lined with binders, charts and exhibits. It looks likethe backstage area of a theater.
“Well, Rosita,” I say, “it’s just you and me again.”
“Just like old times,” she says.
“You ready?”
“You bet. We’ve got them right where we want them.” She grins.
“You’ve never been at a loss for self-confidence.”
“I just hope we don’t have any more surprises.” I pause.
“And I sure wish Pete would find that goddamned Vince Russo.”
CHAPTER 45
OUR TURN
“Friedman Defense Begins Today.”
—san francisco legal journal. tuesday, april 7.
I knock on Rosie’s door at seven the next morning.
“Come in for a minute,” she says.
“You won’t believe this.” She opens the door. Grace is eating a bowlof Froot Loops at the kitchen table. She’s happy to see me. I say hito Rosie’s mom, who has been logging overtime with Grace as the trialhas continued. Being a trial lawyer isn’t a nine-to-five job. Iremind myself that we’ll have to do something nice for her after thetrial is over.
Rosie leads me into the living room. The TV is tuned to Channel 4.Morgan Henderson is delivering his daily sermon.
“The defense will begin its case today,” he intones.
“So what?” I say to Rosie.
“Just a sec,” she says. She turns up the volume.
“As we reported earlier this morning,” Henderson continues, “last nightProfessor Morton Goldberg resigned from the defense team. His officesaid his departure was the result of ‘philosophical differences.”
” “Philosophical differences my ass,” I say.
“Just wait,” Rosie says.
Henderson smiles at the morning anchorwoman. She bats hereyelashes.
“Susan,” he says, “Mr. Friedman’s loss is our gain. I’m pleased tointroduce the newest member of our legal team here at News Center 4.”His grin widens.
“We are joined by Professor Morton Goldberg, who will be providingcommentary on the trial for the duration.”
“For the love of Jesus Christ,” I say.
Rosie grins.
“Unbelievable.”
The camera shifts to a beaming Mort, who is in a separate studio,fiddling with a small earphone.
“Is that you, Morgan?” he stammers.
“What did you say?”
Henderson looks down at his monitor.
“Uh, Professor Goldberg will join us in a moment.”
The picture stays on Henderson, but Mort’s voice is heard.
“I’m ready, Morgan.”
They’re going to have to decide who’s going to play Laurel and who’sgoing to play Hardy.
“Mort,” Henderson says, “what are your thoughts on the beginning of thedefense’s case?”
The camera shifts to Mort. The bright lights reflect off his hugeglasses.
“You know, Morgan, I want to remind our viewers that I’ve justterminated my association with the defense team for philosophicalreasons. I have to be careful not to divulge any clientconfidences.”
I rub my temple.
“Can you believe this?” Rosie says.
“At this point, I’ll believe anything.”
Henderson looks serious and asks, “Without divulging any confidences,how do you feel about the defense’s case, Mort?”
“The defense has a lot of ground to cover, Morgan. But Michael Daleyis a very good lawyer. I’m sure justice will prevail.”
How insightful.
“Turn it off,” I say.
“Just turn the damned thing off. I can’t stand it.”
Grace looks at me. In between bites of cereal, she says, “Are youokay, Daddy?”
Oops.
“Yeah, sweetie. Everything’s fine.” Daddy has a slight case ofindigestion.
It’s overcast, but not raining, when we reach the throng of reportersat the Hall.
“Mr. Daley, are you going to consider a plea bargain?”
“Mr. Daley, is it true Mr. Goldberg was fired?”
“Mr. Daley, does Mr. Friedman’s affair change your defense?”
“Mr. Daley? Mr. Daley? Mr. Daley?”
I feel like screaming, “Shut the fuck up, you assholes.” Naturally, Isimply look composed as Rosie and I push our way past them and meetJoel and his parents just inside the doors.
“Naomi is in the bathroom,” Joel says.
“She said she’d meet us upstairs.”
Rabbi Friedman glances at me.
“Looks like it’s up to you, Michael.”
“We’ll just keep going. Rabbi.”
We go upstairs and take our seats. Skipper says blandly, “I understandwe have a change in the lineup today.”
“Yeah. We decided to trim some of the fat.”
He grins.
Joel leans over and whispers, “You ready?”
I don’t have time to think of all the things I would have donedifferently. With hindsight, I would have deferred our openingstatement until now. I might have had a chance to undo some of thedamage.
“You bet,” I reply.
“Now we get to tell our side of the story.”
Before the jury is called in, Judge Chen turns to me and says, “Iunderstand there’s been a change in the team at the defense table.”
“Yes, Your Honor,” I reply.
“Mr. Goldberg won’t be with us for the remainder of the trial.”
Out of the corner of my eye, I see McNulty whisper to Skipper. JudgeChen nods.
“Very well,” she says.
“Let’s proceed.” She instructs Harriet Hill to bring in the jury. Ididn’t expect her to stop the trial just because Mort’s gone. Hehasn’t said a word to the jury, anyway.
“Please call your first witness, Mr. Daley.”
“The defense calls Dr. Robert Goldstein.”
Mort’s brother-in-law, Bob Goldstein, is a professor at UCSF MedicalCenter.
His physical appearance might be described as the anti-Mort. He’s inhis late sixties, with a full head of gleaming silver hair and dazzlingblue eyes. He glides his six-foot-four-inch frame across the courtroomwith the grace of a senior squash champion. His double-breasted lightgray suit matches his hair. A tasteful white kerchief sits in hisbreast pocket. He looks like he’d be right at home in a boardroom or acountry club. The Rolex and gold cuff links suggest he’s verysuccessful and probably very rich.
Pound for pound, he can hold his own with Skipper in the charismaderby.
He’s sworn in and takes his place on the witness stand. He casuallyadjusts the microphone. He knows his way around a courtroom and heknows how to work an audience. From what I gather, he and Mort don’tget along very well. Mort says he isn’t the kind of doctor you’d callif you’re sick. On the other hand, he ;‘s the kind of doctor you’dcall if you need someone to testify.

He states his name for the record. He smiles knowingly at the jury. Onsomeone else, it would appear condescending.
“I’m a full professor in the departments of Pathology and TraumaSurgery at UCSF Medical School.”
I begin taking him through his impressive credentials. We get throughhis undergraduate degree at Stanford and his medical degree from JohnsHopkins when Skipper interrupts us.
“We’ll stipulate to Dr. Goldstein’s expertise,” he says.
Goldstein smiles. The two lawyers on the jury seem to nod to eachother. I hand him copies of Beckert’s autopsy reports.
“Dr. Goldstein,” I say, “are you familiar with the autopsy reportsprepared by Dr. Roderick Beckert with respect to Mr. Robert Holmesand Ms. Diana Kennedy?”
“Yes. I have reviewed both reports very carefully.”
Skipper starts to stand, then he sits down. He’s a little jumpytoday.
“Would you be kind enough to tell us whether you agree with Dr.Beckert’s conclusions?”
“Objection. There’s no foundation for this.”
“Your Honor,” I say, “Mr. Gates just stipulated on the record thatDr.
Goldstein is, in fact, an expert. He did not object when I asked Dr.Goldstein whether he had reviewed the reports. Certainly, he can’tobject when I ask Dr.
Goldstein for his opinion as to the validity of the conclusions in thereports.
Why else would I call him to the stand?”
Judge Chen isn’t buying into this completely.
“I’ll overrule the objection for now. But Dr. Goldstein better beprepared to explain his conclusions.”
“He will.” I turn back to Goldstein.
“You were going to tell us your views on the autopsy reports.”
“I have reviewed both reports. I have known and worked with RodBeckert for many years. We are colleagues on the UCSF faculty in theDepartment of Pathology. I respect him.”
You also have more titles than he does, Bob, but don’t lay it on toothick just yet.
“In the case of the autopsy of Ms. Kennedy,” he continues, “I thinkRod got it absolutely right. She never had a chance.” He explains inboth medical and layman’s terms that she died of gunshot wounds to herlung and heart.
“And the autopsy report on Mr. Holmes?”
He looks at the jury and grimaces.
“That’s where I have a problem with Dr.
Beckert’s conclusions. There’s no doubt Mr. Holmes died from massivetrauma from a gunshot wound to his head. However, I have very seriousdoubts about Rod’s conclusion that Mr. Holmes was knocked unconsciousprior to the shootings.
In fact, I would go so far as to say that I believe Rod was wrong.”
I glance at the jury. They seem to like him so far. I’ll have to askRosie when we’re done.
“Would you mind explaining your conclusions. Doctor?” I’m taking achance. It may be better to lead him with short, precise questions. Onthe other hand, at our rehearsal—I mean our trial preparation—he wasable to explain some very complicated concepts in terms that I couldunderstand.
“Of course,” he says. He looks at Rosie.
“I wonder if we could look at the autopsy photos.”
Rosie sets up the easel and puts an enlarged picture of the left sideof Bob’s head in front of the jury. Dr. Goldstein turns to the judgeand asks whether he can stand by the picture so he can point outcertain items. He speaks to her in a tone that suggests they’re oldfriends. She agrees.
He buttons his suit jacket as he walks toward the easel. He takes athin gold pen out of his pocket.
“Ladies and gentlemen,” he says to the jury, “we’re looking at anautopsy photograph of the left side of the head of Mr. Holmes.
For your reference, here’s the outer edge of the skull.” He makes asweeping circular motion with the pen. The jurors look at the photo.Goldstein studies the jurors one by one. As I instructed him, he looksat the phone company supervisor at the end of the second row and pointsto her.
“Madam, can you see all right?”
She says, “Yes.”
“And can everybody hear me? I hate using microphones.”
They nod in unison. Mort was right. This guy is smoother than goodscotch.
He turns to the photo and draws an imaginary circle around the exitwound just above Bob’s left ear.
“This area here is called the parietal bone. As you’re all aware,” hesays, “here’s where the bullet came out. We call it the exit wound.Although we don’t have a picture of it here, the entrance wound was, asyou know, in the right parietal bone, just above the right temple.”He’s striking a perfect balance between knowledgeable and folksy. Theaccountant is looking receptive.
“Everybody with me so far?”
They all nod again. Skipper stands.
“Your Honor,” he says, “would you please instruct Dr. Goldstein not toask questions of members of the jury. This isn’t his anatomy classat
UC.”
Judge Chen looks annoyed.
“If that was an objection,” she says, “I’ll have to sustain it.” Sheturns to Goldstein and says gently, “Please answer the questions Mr.Daley asks you, Dr. Goldstein. Please don’t ask the jury anyquestions.”
“Yes, Your Honor.”
I say, “Dr. Goldstein, you were describing the exit wound.”
“Yes.” He looks at the photo. He describes the wound in detailedmedicalese for the next five minutes. Then he interprets in languageGrace could understand.
“As you can plainly see,” he concludes, “the trauma to the head wasmassive.”
“Were you able to make a determination about the accuracy of Dr.Beckert’s conclusion that the wound may not have beenself-inflicted?”
“Objection, Your Honor. He’s leading the witness.”
No, I’m not. I give the judge a puzzled look.
“Your Honor,” I say, “that wasn’t a leading question.” Skipper istrying to break Goldstein’s rhythm.
“You’re right, Mr. Daley. Overruled.”
Goldstein says, “In my judgment. Rod was wrong. I believe the woundwas self-inflicted.”
Murmurs in the back of the courtroom. This shouldn’t be a news flashto anybody. Did they think my medical expert was going to agree withBeckert?
Judge Chen pounds her gavel. I ask Goldstein to explain hisconclusion.
“I am certain Mr. Holmes fired the gun.” He says that gunpowderresidue was found on Bob’s right hand.
“There’s no other way he could have gotten gunpowder on his hand,unless, of course, he happened to fire another gun the same day.”
This brings mild chuckles from the gallery.
“Isn’t it possible that someone may have placed the gun in his handwhile he was unconscious and caused him to fire it? Wouldn’t thatgenerate the same chemical residue on his hand?” I’m trying tomitigate Skip per’s argument that somebody knocked Bob unconscious,placed the gun in his hand and caused him to pull the trigger, makingit look like a suicide.
“Yes. But that assumes that Mr. Holmes was unconscious at the timethe gun was fired.”
“Was there any evidence that Mr. Holmes was unconscious at the timethe gun was fired?”
“No.” He pauses.
“I have all the respect in the world for Rod Beckert. I’ve known himfor many years. But this time around, I think he’s just flat wrong.”
I pretend to study the picture of Bob’s head. I’m actually glancing atthe jury. I was hoping I’d get a little more than the halfheartedreactions I’m seeing.
“Could you please explain why you believe Dr. Beckert’s conclusion waswrong?”
“Certainly, Mr. Daley.” He explains that the report indicated thatHolmes wasn’t under the influence of drugs, and the amount of alcoholin his system was so small he couldn’t have been prosecuted for a DUIcharge. As a result, he ruled out the possibility that he was renderedunconscious by the use of any chemical substance.
He turns back to the photo.
“Consequently,” he says, “it seems the only way Mr.
Holmes would have been rendered unconscious would have been through ablow to his head.” He points to a spot just above the top of the exitwound.
“This is the area where Dr. Beckert claims there was a majorconcussive wound. In fact, the blow to the skull, if there indeed wassuch a blow, wasn’t nearly as traumatic as Dr. Beckert says. Itcertainly wasn’t enough to render him unconscious.”
I try to look skeptical.
“How can you be sure, Dr. Goldstein?”
“For one thing, it’s small. It’s less than a quarter of an inch indiameter.
It’s not as though somebody hit him with a hammer. There was nosignificant contusion. More importantly, Dr. Beckert took X rays ofMr. Holmes’s head.
There was no skull fracture. It was probably caused when the headbanged against the desk immediately after he shot himself.” Hepauses.
“Let me put it this way. If he was a football player and he sustainedsuch an injury, he wouldn’t have left the game. Based on my bestmedical judgment, it is my opinion that he fired the gun and that hetook his own life.”
“Dr. Goldstein,” I say, “you understand that Dr. Beckert concludedthat the injury could not have been sustained after the shootingbecause the hematoma, or bump, could not have formed after theshooting.”
He smiles.
“In general, that’s true. A hematoma cannot form once the heart stopsbeating because it cannot pump blood to the injured area. However, incircumstances such as this where there is a wound to the head, theheart may continue to beat for seconds or even minutes after theshooting. As a result, it is likely that the hematoma was caused whenMr. Holmes bumped his head on the desk after he’d shot himself.”
“No further questions, Your Honor.”
Skipper’s up like a shot.
“Dr. Goldstein,” he says, “you didn’t examine the body, did you?”
“No.”
“And you didn’t have an opportunity to question Dr. Beckert, did “Andisn’t it likely that Dr. Beckert’s exam was more comprehensive thanyours?”
Watch out. Bob. I’ve warned him to deflect hypothetical questions.
“Of course, Mr. Gates. Dr. Beckert had the body in front of him whenhe performed the autopsy. I’ve been working off photos and X rays.”
“Well, Dr. Goldstein, wouldn’t it seem to make more sense in thiscontext to rely on Dr. Beckert’s description of the wounds thanyours?”
“Objection. Speculative.”
“Sustained.”
“I’ll rephrase. Don’t you think Dr. Beckert’s descriptions of thewounds would be more reliable than yours given the fact that he wasobserving the body as he performed the autopsy?”
“Objection. Still speculative.”
“Sustained.”
Surely he’s going to do more than just ask Goldstein to agree withBeckert. On the other hand, if he gets into hand-to-hand combat, Goldstein will probably hold his ground. If I were in Skipper’s shoes, Iwouldn’t push too hard. The jury understands Goldstein is our hiredgun.
They joust for another twenty minutes. They argue about the blow tothe head.
Goldstein doesn’t give an inch.
“Dr. Goldstein,” Skipper finally says, “are you being paid to testifytoday?”
“Yes I am.”
“And how much are you being paid?”
Goldstein looks at me. This is a standard question. If Skipper can’tshake him, at least he can try to show that we’ve bought his medicalopinion, which, of course, we have. Unfortunately, we’re paying him alot of money.
“Four hundred fifty dollars an hour.” Then he adds, sarcastically,“Plus two dollars to ride the streetcar each way.” A smattering oflaughter breaks out in the back of the courtroom.
“And how many hours have you spent on this case?”
“Counting today, about fifty.”
Skipper looks at the jury and nods melodramatically.
“So, they were able to buy your medical opinion for about twenty-fivethousand dollars?”
“Objection. Argumentative.”
“Sustained.”
Skipper pouts briefly.
“No further questions, Your Honor.”
As Goldstein steps down, Joel whispers, “That went pretty well, didn’tit?”
I nod. Thanks, Mort. I hope you get good ratings tonight.
Our next witness is Dr. Greta Hudson, a dignified black woman who is aprofessor at USE. She used to be one of the top evidence techniciansin the FBI crime lab. She’s written several texts on evidentiaryissues. We decided to go out of town for our expert on guns andfingerprints to make it tougher on Skipper’s team to learn much abouther. In all honesty, we picked a black woman because we thought she’dplay well to the jury.
After she states her name for the record, I ask her if she’s a medicaldoctor.
“No,” she replies.
“I’m a Ph.D. in the field of criminology. My area of expertise isforensics and, in particular, the gathering and analysis of physicalevidence. I’ve written extensively on the subject of fingerprints. I’malso an expert on certain types of firearms, including revolvers.”
Just the way we rehearsed it. We spend a few minutes going over hercredentials before Skipper stipulates to her expertise.
In response to my question concerning Bob’s position when he was shot,she explains that the trajectory of the bullet and the blood-splatterpatterns on Bob’s desk indicate that he was sitting at a ninety-degreeangle to his desk, with his left side closest to the desk. He slumpedto the floor, possibly banging the left side of his head against hisdesk.
“Dr. Hudson,” I say, “were you able to make a determination as towhether Mr. Holmes or Ms. Kennedy was shot first?” I want to showBob died last. If he died first, it doesn’t look like a suicide.
“Yes,” she replies. She explains that the tattooing at the entrancewound indicates that the barrel of the gun was placed against Bob’shead. In such circumstances, a vacuum is created when the gun isfired, which sucks a minute amount of blood into the barrel of thegun.
“If the last shot fired from the gun was the shot that killed Mr.Holmes,” she says, “there would be traces of his blood in the barrel ofthe gun. Of course, if the gun was fired again to kill Ms. Kennedy,the traces of blood in the barrel would have been cleared out and notraces of his blood would have been found.”
“Were any traces of Mr. Holmes’s blood found in the barrel?” I ask.
“Yes,” she replies.
“As a result, I concluded that the last shot fired from this weapon wasthe shot that killed Mr. Holmes.”
Good answer. I take the revolver from the evidence cart and hand it toher.
“Dr. Hudson,” I say, “have you reviewed the police reports and the labreports concerning this weapon?”
“Yes.”
“In particular, did you have an opportunity to review the fingerprintanalysis prepared by the crime lab?”
“Yes, I did.”
I signal to Rosie. She puts an enlarged diagram showing all sides ofthe revolver on the easel in front of the jury. I ask Dr. Hudson togive the jury a summary of the fingerprint report.
Skipper objects.
“Your Honor, the report on this weapon has already been entered intoevidence. Surely we don’t need Dr. Hudson to restate the entirereport.”
Actually, I want her to do just that—and to put our spin on it.
“Your Honor,” I say, “the prosecution has had its turn. If Mr. Gateshas a problem with Dr.
Hudson’s analysis, he can take it up on crossexamination.”
“Overruled.”
I restate my question. Dr. Hudson looks at the jury. She asks JudgeChen for permission to leave the jury box so she can point out variousitems. Then she uses her pointer to show exactly where Joel’sfingerprints were found, carefully noting that only unidentifiable,smudged fingerprints were found on the trigger of the gun.