MD02 - Incriminating Evidence

by Sheldon Siegel

  “The prosecutor’s office is leaking damaging and highly prejudicial evidence to the media. It will be impossible for Mr. Gates to get a fair trial. I have no choice but to ask you to dismiss the charges.”

  There is no chance she’ll do this, but it can’t hurt to ask.

  Payne starts to stand and Vanden Heuvel raises her hand. “Ms. Payne,” she says, “we’ll hear from you in a moment.” She turns back to me and chuckles. “Mr. Daley,” she says, “you don’t seriously believe that I will dismiss the charges, do you?”

  I will seriously believe you have lost your mind if you do. “Yes, Your Honor,” I reply. “My client’s rights have been damaged, if not ignored in their entirety.”

  Admittedly, this is total bullshit.

  Payne pops up again. She’s starting to look like a pogo stick. Vanden Heuvel motions her to sit down and gives me a bemused look. “With all due respect to your client and his rights,” she says, “I’m not going to dismiss the charges.”

  “At the very least, Your Honor,” I say, “we request that you impose a gag order on all parties. We are reaching a point where the prosecution’s irresponsible leaks are making it extremely difficult for my client to have any chance of empaneling an impartial jury.”

  Judge Vanden Heuvel glances at Payne. “Now it’s your turn, Ms. Payne,” she says.

  Even though we’re in chambers, Payne decides to stand when she speaks. “Your Honor,” she says, “may it please the court.”

  Judge Vanden Heuvel is losing her patience. “Get on with it, Ms. Payne,” she says.

  “Your Honor,” Payne says, “the prosecution has not leaked any evidence to the media. Mr. Daley is blowing this issue out of proportion.”

  The hell I am. “Your Honor—” I begin.

  She cuts me off. “Not yet, Mr. Daley.” She turns to Payne. “Ms. Payne,” she says, “I watch TV just like everyone else. How do you explain the reports on the news last night that all sorts of X-rated materials were found in Mr. Gates’s storage locker?”

  “It didn’t come from our office,” she replies.

  Ed Molinari decides to chime in. “Where did it come from?” he bellows. “You can’t possibly believe that we would have given this inflammatory, questionable evidence to the media. It’s absurd.”

  Judge Vanden Heuvel points two fingers at Molinari and then at me. “Gentlemen,” she says, “I need you to elect a spokesman. I don’t want to hear from both of you. Now, who’s going to talk?”

  I say, “I will, Your Honor.”

  We get the hint of a grin.

  Payne fires back. “The evidence is not questionable,” she snaps. “We found it in his storage locker. A representative from the defense was there.”

  This is true. Pete was there.

  Judge Vanden Heuvel is unimpressed. “I don’t care who found it,” she says. “I don’t care how good the evidence is. We’ll talk about that at the prelim. For the moment, all that matters is that the evidence was leaked to the press. I’m going to make this very simple for all of you. I don’t want anybody involved in this case talking to the press. If anything is leaked, I will hold the people in this room personally responsible. I will sanction you. And I will make you spend some time in our lovely jail. Do you understand?”

  We nod in unison. “Your Honor,” I persist, “I think the prosecution should be sanctioned for the reckless leaks that occurred yesterday.” She’ll never go for it. I’m trying to goad Hillary to see if she’ll piss off the judge.

  “Your Honor,” Payne says, “I resent the suggestion that information was leaked from our office. That simply isn’t the case.” If she had half a brain, she’d shut up right now.

  Vanden Heuvel stops her. “I’m not going to sanction anybody this morning. I will say this only one more time.” She holds up a menacing index finger to each of us in turn. “I am issuing a total gag order. I don’t want anybody talking to the press. If you violate this order, I’ll throw you in jail.”

  We nod again.

  “Good,” Vanden Heuvel says. “I’ll see you Wednesday. Everybody out.”

  —————

  “I have a little information for you,” Tony says. It’s five o’clock the same day. I’m sitting behind the counter at the produce market. Grace is helping Tony rearrange a stack of oranges near the front of the store. She’s doing a very careful job. Rosie is eating an apple. “My source tells me that Holton was looking for funding for a new business,” Tony says.

  “Drugs?” I ask.

  “I don’t know.”

  “Was your source interested in providing funding?”

  “No.”

  “Did the business ever get off the ground?”

  “I’m trying to find out,” Tony says.

  That evening, I go off to have dinner with our other family member on the investigative team, Pete, at my favorite Chinese restaurant, which isn’t in Chinatown. It isn’t in the new Chinatown in the Richmond District, either. It’s a hole in the wall on Polk, just south of Broadway, called Tai Chi. People line up out the door and down the block for the house specialty, General Tsou’s Chicken, a heart attack on a plate made of nuggets of deep-fried, batter-covered chicken in a flaming sweet and sour sauce that could burn a hole in the stomachs of mere mortals. Pete and I come here every couple of weeks for our fill. Then we go home and drink water until the sun comes up.

  Pete and I are sitting in a red booth in the back room of the tiny restaurant. I ask him, “Did you find out anything else from the people who work at the Fairmont?”

  “Not a thing,” Pete says. “I talked to Dave Evans again. I interviewed everybody I could find who was working at the hotel that night. Andy Holton seems to have dropped off the face of the earth. Ron Morales thinks Holton quit his job so he could spend more time on his pharmaceutical business.”

  “What type of medication was he selling?”

  “Heroin.”

  “And was Johnny Garcia one of his customers?”

  “Yes, but he was also one of Holton’s subcontractors. Andy supplied the drugs. Johnny sold them. And Andy got a substantial cut of Johnny’s action.”

  “Have you heard anything about a new business that Holton was trying to start?”

  “Ron said they’d heard rumors, but they haven’t found anything yet.”

  I glance at the old man with a pair of clip-on sunglasses who stands by the cash register. Nobody else in the restaurant is permitted to touch the money. It strikes me that it is likely Andy Holton performed a similar role in his business dealings, too.

  15

  “WHY WOULD HE LIE?”

  “With the preliminary hearing only one day away, it is a virtual certainty that San Francisco District Attorney Prentice Marshall Gates the Third will be held over for trial.”

  —CNN’s BURDEN OF PROOF. TUESDAY, SEPTEMBER 21.

  The preliminary hearing is tomorrow and I have been summoned to Bill McNulty’s office at nine o’clock for a last-minute meeting. He’s drinking coffee from a paper cup when I arrive. Hillary Payne is standing by the window. She seems to suffer from a terminal case of ants in her pants. I’ve brought Molinari and Rosie along for moral support.

  Payne gets right to it. “We have some new information that may be of interest to you,” she says. “We got the phone records from Skipper’s room. There were two calls. The first was at one-ten, the second at one-fifteen.”

  I hold up my hands. “And?”

  “The calls were placed to Kevin Anderson’s phone.”

  “So?”

  “We talked to Anderson a little while ago. He just returned from London. He said Johnny Garcia called him and left messages on his voice mail saying he’d made a terrible mistake. He wanted Anderson to come get him at the Fairmont.”

  “Did Anderson call him back?” Rosie asks.

  “No. He didn’t pick up his messages until the following morning.”

  “And this is the first you learned about the calls?” I ask.

&n
bsp; “Of course. We just got the phone records.”

  Rosie decides to probe a little deeper. “That means he didn’t call and tell you about this until you confronted him.”

  “We didn’t confront him,” Payne responds. “We asked him a question. He answered it.”

  “Nonetheless, Anderson has been withholding material information ever since Garcia’s death,” Molinari snaps.

  I add, “And you guys have left it at that. You are affirmatively choosing not to pursue it.”

  Payne glares at me. “There is nothing to pursue,” she says. “Johnny Garcia was a prostitute. He came to Skipper’s room. He was high on heroin. He realized he had made a mistake. He called his social worker to try to bail him out.”

  “How do you know what Garcia said to Anderson?” I ask. “All you have is his version.”

  McNasty chimes in. “Frankly, I find Hillary’s version of the events a lot more plausible than Skipper’s. We have a witness now who can attest to the fact that Johnny Garcia went to the hotel. We’ve wiped out any arguments you may want to make that he was killed someplace else and taken to the Fairmont.”

  Not so fast. “You’re assuming that Anderson is telling you the truth,” I interject.

  “Why would he lie?” Payne says.

  “How should I know? Maybe he was involved. Maybe he’s got something to hide. Did he save the messages?”

  McNasty and Payne glance at each other. “No,” she replies.

  What? “So you have no confirmation of what was said. He could be lying.”

  “We have the phone records,” Payne says. “We have Anderson’s testimony.”

  “Which you have conveniently chosen to believe because it helps your case. It doesn’t prove anything. It shows that two calls were made from the phone in Skipper’s room around the time Garcia died. That’s it. You had better prepare young Mr. Anderson for a lot of questions about those voice-mail messages. The news of Garcia’s death broke early that morning. He must have known by the time he got the messages that Garcia had been murdered and Skipper had been arrested—I can’t believe he erased them. He destroyed evidence and then kept silent. You’ve simply taken his word for it. You aren’t going to do a thing about it, are you?”

  “Come on, Mike,” McNulty says, trying to sound reasonable. “It’s staring you right in the face.”

  “It’s staring you right in the face, Bill. You guys should be following up on this.”

  McNulty doesn’t answer me. One thing is for damn sure: I need to talk to Kevin Anderson right away.

  “We have some issues to discuss before the prelim,” I say to Skipper a few minutes later. “If this case moves forward we’re going to want to move for a change in venue. Everybody in town has heard about this matter. I would suggest that we try to get this case moved somewhere up north. Maybe Sacramento.”

  Skipper disagrees. “We aren’t moving this trial,” he says.

  “Can we talk about it?” I say.

  “We can talk about it all you want. Bottom line, we’re staying.”

  “May I ask why?”

  “This is my hometown. I’m the district attorney. I’m not afraid to be tried by a jury of my peers.”

  In this case, his “peers” will consist of students, retirees and those who can’t otherwise come up with a decent excuse to get off jury duty. I try to keep my tone measured. “Skipper,” I say, “as your attorney, I would strongly urge you to reconsider. This isn’t the time to make a political statement. Your freedom and your life are at stake. You should be tried in a place where you have the best chance of prevailing.”

  He sets his jaw. “I am not afraid to stand trial in San Francisco,” he says. “We’re not moving. That’s final.”

  I glance at Molinari, who is tapping his pen on his pad of paper. “You’re the boss,” I say. Actually, in some respects, we may be better off staying here. San Francisco juries are generally pretty liberal and fairly well educated. More important, they almost never impose the death penalty.

  Molinari looks up and says, “There’s something else we need to discuss. We need to tell the judge that we plan to waive time.” Section thirteen eighty-two of the penal code says that criminal defendants are entitled to a trial within sixty days after their arraignment. In murder trials, ninety-nine times out of a hundred, the defendant “waives time,” which means that the trial is delayed to give the defense a longer time to prepare its case.

  “That’s easy, too,” Skipper says. “We’re not waiving time.”

  Come again? “Excuse me?” I say. “You know how the system works. You know we’re going to need more than sixty days to interview all the witnesses to put together your defense.”

  Molinari agrees with me. Skipper doesn’t. He’s adamant. “It isn’t a topic for discussion,” he says. “This case doesn’t involve a complicated analysis. We don’t need a lot of experts. I’ve already been in jail for two weeks longer than I should have. I’m not going to rot in here for the next six months. I am not waiving time.”

  “That settles that,” Molinari says succinctly when we brief Carolyn, Pete and Rosie a little later. “He’s nuts.”

  But Rosie sees it a little differently. “He’s stubborn,” she observes. “He’s scared. Just because you’re the DA doesn’t mean you’re exempt from normal human emotions. Put yourself in his shoes. You’re sitting in jail. The only thing on your mind is getting out. He wants this to end. I don’t blame him.”

  My cell phone rings as I’m driving north on the Golden Gate Bridge on the way home late that night. It’s Ernie Clemente. “I got a call from Andy Holton,” he says. “He heard I was trying to reach him.”

  Yes! He’s alive! “Where is he?”

  “He wouldn’t say—I don’t know if he’s still in the area.”

  My heart pounds. “What did you find out?”

  “Not much,” Ernie says. “He was too scared, Mike—he thinks the cops will connect him to Johnny’s murder and arrest him if they can get their hands on him. There was no way I could get him to tell me anything more.”

  I tell Ernie I’ve got to talk to him. “There must be some way I can reach him,” I plead.

  There isn’t. Ernie says he was adamant. “The best I could do was get him to agree he’d call me again, but that was it. And he wouldn’t say when; he hung up on me.”

  Christ—so close, and yet so useless. I want to scream.

  16

  THE PRELIMINARY HEARING

  “You look at all the evidence and then you make the best call you can.”

  —JUDGE LOUISE VANDEN HEUVEL, CONTINUING LEGAL EDUCATION SEMINAR.

  “All rise.” Judge Louise Vanden Heuvel’s bailiff recites the customary call to order at ten o’clock in the morning on Wednesday, September twenty-second. The small courtroom is packed. Reporters jockey for position. The five rows of pews behind us are full. Natalie is in the first row, her eyes concealed behind sunglasses, sitting between her daughter and Turner.

  It’s almost eighty degrees outside and ninety inside. It smells like the locker room at the Embarcadero YMCA. Air-conditioning may find its way into the city’s budget in another millennium or two. Bill McNulty and Hillary Payne shuffle papers at the prosecution table to my right, next to the jury box. McNasty has chatted up the reporters. He told the press he intends to let Payne take the lead. Per my instruction, Skipper is dressed in a navy business suit. I’ve asked him to keep his clothing understated. Armani doesn’t play very well to judges who live on a civil servant’s salary. Ed Molinari sits at the end of the defense table, fondling his Mont Blanc pen. He’s promised to put it away before the judge walks in. Ed understands that every nuance matters. Designer pens may send the wrong message. Rosie is sitting next to me.

  Judge Vanden Heuvel glides to the bench, her black robe trailing behind her. She hauls a heavy bench book in one hand and a calendar in the other. She takes her seat under the Great Seal of the State of California. She puts on her reading glasses and studies
the calendar. She’s trying to pretend this is just another case. She doesn’t look up when she says, “Are counsel prepared to proceed?”

  Payne and I say yes almost simultaneously. We state our names for the record.

  “First up this morning,” Vanden Heuvel says, “we have a preliminary hearing for Mr. Gates.” She asks her clerk to recite the case name and number for the record.

  “The People versus Prentice Marshall Gates the Third.”

  Judge Vanden Heuvel reminds us that Skipper has entered a plea of not guilty, and that the case carries the possibility of the death penalty. For the benefit of the rookie reporters in the gallery, she explains that we are about to conduct a preliminary hearing to determine whether there is sufficient evidence to hold Skipper over for trial. She doesn’t mention that the standard of proof is very low. The prosecution must simply show there is a reasonable possibility that Skipper committed the crime in question. Preliminary hearings usually have as much suspense as the ceremonial throwing out of the first pitch at a baseball game. Judge Vanden Heuvel points her gavel at Hillary Payne. “You may proceed, Ms. Payne.”

  Payne stands and says, “Thank you, Your Honor.” The preliminary hearing is the prosecution’s show. A smart prosecutor like Payne will show just enough to get the case pushed over to trial, but nothing more. You don’t get convictions at the prelim. “May it please the court,” she begins. She launches into her opening statement. She says they’ll show that Skipper was present at the hotel room that night and that he had direct contact with the victim. They’ll show that the victim died of suffocation after Skipper put duct tape on his eyes, nose and mouth. “The defendant had opportunity, motive and means, and there is no doubt that the defendant lured the victim to his room, engaged in bizarre sexual activity and then killed him.” Her opening lasts less than five minutes. McNasty has coached her well. Just the essentials.