Higher Law Boxset, Volume 3

by Sheldon Siegel

  “Harper sent over texts from Lexy’s phone and some additional police reports.”

  “Let me guess: nothing useful.”

  “How did you know?”

  “I’ve been to this movie. The D.A. is obligated to provide information that would tend to exonerate our client. More often than not, they send over a boatload of stuff at the last minute to give the impression that they’re cooperating. They know that we’ll waste time going through it.”

  “You said that Harper is a decent person.”

  “He is, but he works for Ward, who isn’t. Any mention of heroin in the texts?”

  “No.”

  “What about Flynn?”

  “Two texts indicating that Lexy was going to see him the night that he died.”

  “Lexy already admitted that they got together. Any other sugar daddies?”

  “Not as far as I can tell.”

  “Anything else from Harper?”

  “He sent over a final witness list for the prelim. It’s short: the first officer at the scene, the Medical Examiner, and Inspector Lee.”

  “That’s all he’ll need. The cop will confirm that there was a body, Dr. Siu will say that King died of a heroin overdose, and Lee will show just enough of the security video to prove that Lexy gave him the shot.”

  “How do you want to play it if we can’t get the charges dropped?”

  “Our client has instructed us to ask for a trial date as soon as possible. I’ve explained the risks to her. If that’s what she wants, that’s what we’ll do.”

  * * *

  “Any chance you can get the charges dropped at the prelim?” Rosie asked.

  “There’s always a chance. If we can’t, our client has instructed us to demand a trial within sixty days.”

  “That’s a bad idea.”

  “I know.”

  I inhaled the heavy air that smelled of stale popcorn and sweat. We were sitting in the bleachers in the barn-like gym at Marin Catholic High School, Marin County’s perennial athletic powerhouse, and the alma mater of Rams quarterback Jared Goff. At four-thirty on Sunday afternoon, Rosie and I were watching Tommy’s freshman basketball team beat an overmatched squad from Marin Catholic. It brought back memories of a few epic battles on the hallowed hardwood of St. Ignatius when I was growing up.

  I looked on with pride as Tommy blocked a shot. He dove for the loose ball, won a battle for possession, and fired a crisp pass to a streaking teammate, who laid it into the basket. Rosie stood up and let out a cheer. I remained seated and clapped politely. Although there was an outside chance that Tommy would be the first person in Daley family history to dunk, the odds were greater that the other kids would be taller than he was in another year or two.

  The consummate multi-tasker, Rosie was capable of watching the game, encouraging Tommy, baiting the refs, checking her texts, and offering suggestions to our beleaguered coach, a well-meaning real estate agent who was better at selling houses than drawing up plays. As a former coach of Grace’s softball teams and Tommy’s Little League teams, I took pity on him and kept my mouth shut.

  Eyes still fixed on the game, Rosie turned to business. “I take it this means that Pete hasn’t found anything terribly useful for Lexy’s case?”

  “Not yet.” I no longer took it personally that she assumed that my brother would solve my cases before I did. And I had learned to ignore her habit of talking to me while she was focused on something else. “He’s still down in the Valley.”

  “And Nady?”

  “She’s going through Lexy’s phone records.”

  The final buzzer sounded, and the kids lined up for handshakes. As we made our way out of the gym, Rosie touched my hand. “You’re still coming over for dinner, right?”

  “Yes, but I need to go back to the office later. I want to check in on Nady.”

  She grinned. “Always good that my subordinates are working hard.”

  “My boss is an excellent role model.” My iPhone vibrated, and Harper’s name appeared on the display. I scanned his text and turned to Rosie. “I need a raincheck on dinner. Harper wants to see me.”

  “When?”

  “Now.”

  29

  “WE HAVE A PROPOSITION”

  Harper’s voice was subdued. “Thank you for coming in on short notice.”

  I took a seat opposite his desk. “No problem.”

  The credenza, bookcase, and floor of his workmanlike office down the hall from Ward’s were covered with file folders. Unlike his boss, Harper was a working trial lawyer—and a good one. Framed photos of his teenage children were lined up next to his computer. Long divorced, there were no pictures of his ex-wife, a federal judge.

  “I thought Nicole might be here tonight.”

  “She’s at a fundraiser.”

  “Any last-minute additions to your witness list?”

  “No.”

  Enough. “Why did you want to see me?”

  “Nicole asked me to talk to you. We have a proposition for you.”

  Let him talk.

  He cleared his throat. “We are prepared to offer a deal for second-degree murder, with a recommendation of a sentence at the shorter end of the spectrum.”

  “How short?”

  “Fifteen years.”

  Not bad. It was the minimum for second-degree in a case not involving a firearm. “You won’t get twelve jurors to convict on murder.”

  “I disagree.”

  “If you want to discuss manslaughter, we may have something to consider.”

  “Can’t do it, Mike.”

  It was worth asking. “Are you prepared to confirm that you won’t file any other charges against my client, including drug and solicitation charges?”

  “Yes.”

  “Are you also willing to confirm that you won’t be filing charges in connection with the death of Paul Flynn?”

  “You know that I can’t make any promises.”

  “Sure you can.”

  “No, I can’t.”

  “I’ll take your offer to my client, but I won’t recommend it.”

  “Suit yourself. It will remain open until nine a.m.”

  * * *

  Lexy’s response through the Plexiglas was unequivocal. “No.”

  “We don’t have to respond until tomorrow morning. You should sleep on it.”

  “I’m not pleading guilty.”

  “Please think about it, Lexy.”

  “No.”

  “I will inform the D.A. I still recommend against asking for a trial within sixty days if we can’t get the charges dropped.”

  “I want a trial date as soon as possible.”

  “That’s a bad idea.”

  “You aren’t sleeping on a cot in a windowless room. I want to resolve this. Understood?”

  “Yes. I’ll see you in court.”

  30

  “SHE LEFT HIM THERE TO DIE”

  Harper positioned himself a respectful distance from the witness box. “Inspector Lee, did you uncover video placing the defendant in the victim’s bedroom on the morning that he died?”

  Lee answered in his courtroom voice. “Yes, Mr. Harper.”

  I stood at the defense table and tried to sound reasonable. “Your Honor, we renew our objection to the introduction of this highly edited and misleading security video.”

  Harper’s tone was dismissive. “Your Honor, Mr. Daley is well aware that you have already ruled on this issue.”

  Judge Ignatius Tsang was resting his chin in his palm. “Thanks for the reminder, Mr. Harper.”

  A slight man in his late fifties with a quiet, but authoritative voice and a scholarly demeanor, Judge Tsang could have passed for a physics professor. He had grown up in Chinatown, where his parents held multiple low-paying jobs to allow him to focus on his studies. A brilliant student with a photographic memory, he graduated at the top of his class at San Francisco’s super-competitive Lowell High, raced through UC-Berkeley in three years, and was first in h
is class at Boalt Law School. He clerked for Justice Byron White before he took a position at the San Francisco DA’s office, where he labored tirelessly for two decades while pursuing his academic interests by writing law review articles and teaching criminal procedure at Boalt. He has brought the same tenacity and intellectual rigor to the bench.

  I tried again. “It is inflammatory to show this disturbing video in open court.”

  “And as I noted in my ruling, it has probative value and is relevant to our proceedings.”

  “But Your Honor—,”

  “Your objection is overruled, Mr. Daley.”

  It had been that kind of a morning. At ten-forty on Monday, January seventh, the gallery in the stuffy courtroom was filled with press, regulars, and gawkers. Unlike most proceedings, no family members or friends were present to provide moral support to Lexy. Likewise, members of King’s family—including Chloe—were conspicuously absent. The only onlookers with a rooting interest for our team were Rosie and Pete, who were trying to remain inconspicuous in the back row.

  Lexy was sitting between Nady and me, eyes focused on a blank legal pad in front of her. She had remained composed so far. I wasn’t sure how much longer she would last.

  The prelim had moved quickly. Judge Tsang ran an efficient courtroom, and Harper knew what he was doing. The system works more expediently when the prosecutor is competent, and the judge is smart.

  In a murder case, you begin with the decedent, so Harper had started with the first officer at the scene. It took Officer David Dito less than a minute to confirm that he had found King’s body in the master bedroom.

  Harper then called Dr. Siu to confirm that the body was, in fact, King’s. It checked another box—the deceased had a name. She was on the stand just long enough to introduce her autopsy report into evidence and recite her finding that King had died of a heroin overdose. On cross, I got her to acknowledge that King had an irregular heartbeat, but she held firm that it had no impact on her conclusion. At trial, I would make a bigger deal about this. At a prelim, it was just additional evidence that Judge Tsang was likely to disregard.

  Lee was up next. Harper led him through a concise timeline of the events at King’s house. There were murmurs in the gallery when Lee testified that Lexy had met King on Mature Relations—as if this was still news to anybody with a phone or a TV. Lee confirmed that he had found Lexy’s prints on a baggie containing traces of heroin. Other prints were smudged. He also described the drug paraphernalia and cash found in Lexy’s purse. I objected frequently, and, in all likelihood, inconsequentially. While I was probably doing little to convince the judge to drop the charges, I was hoping that Jerry Edwards—seated in the second row—would report that I was casting doubt on the strength of Harper’s evidence. Potential jurors rarely showed up in court, but many still read the Chronicle.

  Harper returned to the lectern and pressed a button on his laptop. The flat-screen TV next to the witness box came to life. The white block lettering on the black background read, “Security Video. Bedroom. December 24.”

  Lexy leaned over and whispered, “Can you do anything to stop this?”

  “At the moment, no.”

  Harper spoke to Lee. “Could you please describe what we are about to see?”

  “A portion of a security video taken by a camera mounted inside Jeff King’s bedroom early in the morning of December twenty-fourth of last year.”

  “The day that Jeff was murdered inside his house by the defendant?”

  Nice try. “Move to strike Mr. Harper’s characterization of the events at the decedent’s house as ‘murder.’”

  “Withdrawn.” Harper hadn’t taken his eyes off Lee. “What time does the video start?”

  “Twelve-eighteen a.m.”

  “Who was there?”

  “The victim and the defendant.”

  Though his tone was conversational, Harper was choosing his language carefully. He would try to evoke sympathy for King by referring to him by name or calling him “the victim.” Conversely, he would try to dehumanize Lexy by referring to her only as “the defendant.”

  Harper pointed at the TV. “Could you please describe what’s happening as I run the video?”

  “Of course.” Lee left the box and moved over to the TV. Harper ran the video in slow motion. Lee pointed at the screen and narrated. “The defendant enters the room holding a spoon, a lighter, two syringes, some surgical hosing, and a baggie filled with heroin.” He noted that Lexy cooked the heroin, filled the syringes, and accepted the money from King. King sat down on the bed, where Lexy wrapped his arm in the hosing.

  Lee was methodical. “Here the defendant administers a lethal injection of almost-pure heroin. Within seconds, Mr. King overdoses, has convulsions, collapses, and stops breathing.”

  I wanted to break up his rhythm. “Move to strike. Inspector Lee is not a medical expert.”

  “Inspector Lee will limit his testimony as to what we can see on the screen.”

  It was a negligible victory.

  Harper started the video again. “Can you please describe what happened next?”

  Lee noted that Lexy shouted at King, slapped his face, felt for a pulse, gathered her belongings, and ran out of the room.

  “Did she call 9-1-1?”

  “No.”

  “Did she administer CPR?”

  “No.” Lee held up a hand for emphasis. “The defendant made no attempt to assist Jeff King. She left him there to die.”

  Harper paused the video. “Did the defendant make it out of the house?”

  “No. The head of Mr. King’s security detail stopped her at the door. He escorted her back upstairs, called 9-1-1, administered first aid, and awaited police and emergency medical personnel, who arrived within minutes. Unfortunately, it was too late to save Mr. King.”

  “Based upon this video, what did you conclude?”

  “The defendant carefully prepared a syringe filled with heroin, intentionally administered it to Mr. King, stood by as he collapsed, and attempted to flee without calling for help, while keeping five thousand dollars that he had given to her.”

  “No further questions.”

  “Cross-exam, Mr. Daley?”

  “Yes, Your Honor.” I stood, buttoned my jacket, and moved in front of the box, where Lee had returned. “Inspector, did the decedent and the defendant know each other?”

  “Yes. As I pointed out earlier, they had met on a site called Mature Relations.”

  “They had several previous encounters involving sex and heroin, hadn’t they?”

  “Yes.”

  “The decedent and Ms. Low acted as if they had been through this before, didn’t they?”

  “Objection,” Harper said. “Calls for speculation.”

  “Your Honor,” I said, “I’m simply asking him to describe what he observed in the video.”

  “I’ll allow Inspector Lee to answer.”

  Lee nodded. “It appeared that the defendant was familiar with the processes for cooking heroin, preparing syringes, and injecting someone.”

  “Did the decedent put up any resistance when Ms. Low injected him?”

  “Not as far as I could tell.”

  “In fact, Mr. King asked Ms. Low to inject him, didn’t he?”

  “Yes.”

  “So this encounter was completely consensual, wasn’t it?”

  “It appears that Mr. King agreed to be injected. However, for obvious reasons, I do not believe that he consented to being given a shot of almost-pure heroin potent enough to kill him.”

  Good answer. “You’re saying that a billionaire who ran a successful tech firm didn’t understand the risks associated with being injected with heroin?”

  Harper was on his feet. “Objection. Calls for speculation.”

  “Overruled.”

  Lee held up a hand. “Obviously, I can’t tell you what was going on inside his head, but I suspect that he did not think that Ms. Low was going to give him such a potent dose.�
�

  “Because they had such a close and loving relationship?”

  “Because he was a smart businessman.”

  “Are you suggesting that Ms. Low provided the heroin?”

  “Yes. As I testified earlier, we found her fingerprints on the baggie.”

  “You would concede that Ms. Low could have gotten her prints on a baggie provided by Mr. King or somebody else, wouldn’t you?”

  “Objection,” Harper said. “Speculation.”

  “Overruled.”

  Lee frowned. “Yes, it’s possible.”

  “You also testified that you found smudged prints, which could not be identified.”

  “True.”

  “Which could have been Mr. King’s or somebody else’s, right?”

  “Right.”

  “Which suggests that the baggie could have been placed in the bathroom by Mr. King or somebody else, right?”

  “We don’t think that’s what happened.”

  “But you don’t know for sure, do you?”

  “No.”

  “And you have not provided any evidence demonstrating that Ms. Low had the heroin in her possession when she entered Mr. King’s house, have you?”

  “Objection,” Harper said. “Mr. Daley is testifying.”

  Yes, I am. “I’ll rephrase.” I moved in closer to Lee. “Did you find any evidence that Ms. Low had the baggie of heroin in her possession when she entered the house?”

  “Yes. We interviewed a witness who confirmed that Ms. Low purchased heroin earlier that evening from a dealer near the Sixteenth Street BART Station.”

  What the hell? I turned around and glared at Lexy, whose eyes turned down. Then I turned back to the judge. “Your Honor, this evidence has not been provided to us.”

  Harper answered from his seat. “We are only obligated to provide evidence that might tend to be exculpatory. This clearly isn’t. Moreover, we weren’t planning to introduce this information today, but Mr. Daley’s line of questioning has made it necessary.”

  There was irritation in Judge Tsang’s voice. “I’m not happy about this, Mr. Harper.”

  Neither am I.

  Harper feigned contrition. “My apologies, Your Honor. But Mr. Daley opened the door.”