by Steven Gore
McMullin shook his head, anticipating Donnally’s next question.
“The bailiff didn’t tell me how the argument went or exactly what it was that set the kid to crying. He knew I’m not supposed to consider anything other than what comes before me in court. But it was easy to guess. Dominguez wanting to testify and say he didn’t do it and his lawyer telling him not to and Dominguez being terrified of getting executed, thinking he better try everything. The problem from his attorney’s point of view was that Dominguez would’ve torpedoed the defense theory of implied malice by testifying he was innocent. It would’ve guaranteed a first-degree conviction if the jury didn’t buy it.”
McMullin took another sip from his cup, then stared into it. “He had a second chance to testify during the penalty phase, but didn’t choose to take it.”
“Or his attorney talked him out of it.”
“Most likely. It was hopeless by then anyway. The prosecutor brought in witness after witness to testify about his character and Dominguez got crushed by the bad-guy reputation he’d built for himself. And all the Sureño gang evidence came in because it was central to that reputation. All of it together convinced the jury that Dominguez was exactly the dangerous and unrepentant murderer capital punishment was aimed at and they voted for death in an hour and a half.”
Donnally’s peripheral vision caught soundless motion among the ferns filling the spaces between the redwoods along the opposite bank. He turned his head. A doe locked her wide eyes on his and her ears cupped toward him. He looked back at McMullin.
“What about before sentencing?” Donnally asked. “Were they allowing defendants to make statements back then?”
McMullin nodded. “Allocution. And it was permitted by law at the time of the Dominguez trial. It still is, but hardly any defendants opt for it for fear of sabotaging their appeals because they’d have to express remorse for what they did and to do that they’d have to make admissions. It’s hard for a defendant begging for mercy to be convincing if he refuses to admit he really was guilty of what the jury convicted him.” The judge shook his head. “It never works anyway. Judges always follow a jury’s death recommendation.”
Donnally circled back to what now sounded like McMullin’s lingering doubt.
“What do you mean there was no question of his guilt as far as the jury was concerned? What about you?”
McMullin paused for a moment, eyebrows furrowed. Another wince.
“I think I thought he was guilty of at least second-degree murder.”
“You don’t sound certain.”
The judge gazed across the river at the doe, now drinking from the shallows, and then said, “I think I was sure he fired the gun, but I’m not sure I was convinced he had the intent to kill and . . .” The judge hesitated. “And I’m not even sure I believed, in a moral sense, that he had the abandoned and malignant heart a second-degree murder conviction requires.”
Donnally stared at the judge. “You think? You’re not sure? That doesn’t sound like you. You don’t talk that way. You don’t think that way.” His voice took on an edge. “Merely thinking something was true was never good enough for you, and it sure wasn’t the standard you set for detectives bringing arrest warrants to you.”
McMullin drew back as though Donnally’s assault had been physical.
“I . . . I . . .”
“You what?” Donnally pushed himself to his feet and tossed the coffee from his half-empty cup into the pale dead grasses behind him.
“Spill it.”
McMullin looked down, staring at the smoke rising from the fire and at the almost transparent flame. He seemed to Donnally like a little boy avoiding the eyes of his accusing parent, delaying an inevitable confession. McMullin took in a long breath, held it for a moment, then exhaled, surrendering.
“It was less than a year after I was appointed and I was still trying to prove myself, prove I could pull the trigger. But now . . . now . . .”
“Now?”
McMullin looked up. “Now I would’ve rejected the jury’s death recommendation and sentenced him to life without parole.”
“Have you ever done that?”
Donnally asked the question only as a provocation, to draw McMullin out, for he already knew the answer. No judge in California had ever done it. Somehow and sometime past, he didn’t know when, but certainly long before he became a cop, the exercise of judgment and the act of judging—what judges really thought in contrast to what they said from the bench and wrote in their rulings—had become separated, ripped apart by their fear of facing the electorate or of a D.A.’s attacks or of cable channels terrorizing viewers in order to jack up ratings.
Until this moment, he’d always viewed McMullin as the exception.
“Dominguez was the only capital case I ever did. As soon as it was over, I asked the presiding judge to transfer me to the civil division. And when I went back into criminal a few years later it was only to hold preliminary hearings and rule on pretrial motions and to preside over the calendar court. Sometimes I’d assign trials to myself, even homicides, but never special circumstances cases unless the D.A. had already announced that they weren’t seeking death, only life without parole.”
Donnally knew the next words would hurt but said them anyway.
“You mean you’ve spent most of your time on the bench in hiding.”
McMullin’s face flushed, then he shrugged. “I guess you could say that.” He paused, another long breath, and his next words came out as a sigh. “Helluva way to spend my career.”
Donnally thought of the many hours he’d spent in McMullin’s chambers when he was a homicide detective, sometimes bringing search warrants for his review and signature, sometimes to talk through some point of law before taking the risk of compromising an investigation.
He now realized there was a fragile man within the hard shell of his role, his robe a place of concealment or a form of defense. And he wondered how much the Dominguez case had informed, or perhaps distorted, the judge’s rulings and his sense of himself over the years.
And there was something else. Donnally felt a twist in his chest as he thought about the judge burdened for twenty years by a decision made too soon in his career, like a rookie cop who panics and kills a kid holding a toy gun and knows for the rest of his life and despite passing the department’s shooting review that it could’ve gone another way.
Donnally thought of his own father, who he now saw in the judge’s tortured reflection, a man who’d chosen for most of his life to unburden himself of his sins by refusing to acknowledge them.
A log rolled from the fire and thudded against a rock lining the pit. Donnally grabbed a stick and worked it back into place.
“What did Dominguez say in his letter?”
“What they all say, that he didn’t do it. His argument was more complex than usual, but that’s the bottom line.”
Donnally extended his hand. “Let me see.”
McMullin shook his head. “I didn’t bring it with me. I left it in my briefcase in your house.”
“Then why—”
“I wasn’t sure whether I was going to tell you about all this and I was afraid having it in my pocket while we were camping out here would put too much pressure on me. I thought maybe some distance from it would loosen the pull.”
The judge fell silent, staring at the flame, his body as fixed and unmoving as the granite boulder on which he sat.
Donnally had an idea about what McMullin was thinking.
How much simpler life would be if humans were inert, subject to the laws of gravity, the predictable mechanisms of attraction and repulsion, rather than of feeling and morality.
“But it didn’t,” Donnally said. “It kept tugging at you.”
McMullin nodded but didn’t look up.
“I think I must’ve been deceiving myself.”
CHAPTER 3
Janie Nguyen walked from the entrance to Donnally’s Lone Mountain Café as he pulled his tr
uck to a stop in the night-lit parking lot in central Mount Shasta. She’d driven up with Judge McMullin from San Francisco to relieve Donnally at the front counter so they could spend the previous days fishing together. She stood under the porch roof as Donnally and McMullin approached.
She gave Donnally a hug, then the judge and said, “I’ll get you two something warm to drink.”
Donnally pulled the door open and followed her and McMullin inside into the half-filled restaurant. A few regulars sitting at the counter waved at Donnally as he entered. The tables were a mix of young skiers about to head back south and old fishermen dragging out the weekend with long stories about big fish. Janie gestured them toward a booth by the front window, then went behind the counter, poured two cups of coffee, and brought them over.
“I got a call from your mother’s gerontologist,” Janie said, as she sat down next to Donnally.
“Is she okay?” Donnally felt himself tense, troubled by why the doctor hadn’t telephoned him directly. He was used to getting updates from her about the progression of his mother’s Parkinson’s, if not by phone, by text. He turned toward her. “Why didn’t you call me?”
Janie took his hand. “Your mother is fine. The doctor dropped by to see her today.”
Donnally didn’t attach any special meaning to the doctor’s visit to his parents’ home. She and his mother had become friends over the many years of his mother’s illness and she lived in Hollywood Heights just down the hill from his parents’ home.
“There’s been no change. She was actually calling about your father. Nothing serious, but she wanted to run some thoughts by me before she talked to you.”
Janie was Donnally’s longtime girlfriend, but Donnally suspected this wasn’t the reason why the doctor wanted to consult with her, but because she was a psychiatrist.
“Depression?”
It wasn’t just that his father was aging, almost the judge’s age, but he’d been recovering from a late-life crisis, delayed and then exacerbated by his recent acknowledgment of his role in misleading Donnally’s brother to his death in Vietnam almost forty years earlier.
Janie glanced at Judge McMullin before answering.
“It’s okay,” Donnally said. “He can keep a secret.”
McMullin glanced back and forth between Janie and Donnally.
“Secret?”
“My father is Donald Harlan. The movie director.”
McMullin cocked his head and his gaze angled away. “Donald Harlan . . . Harlan Donnally . . .” He looked back at Donnally. “You mean your father uses a stage name? I thought only actors did that.”
Donnally shook his head. “I changed mine.”
The judge pointed at Donnally. “You were always known around the Hall of Justice as a man without a past,” he said, raising his eyebrows, “but it now sounds like you were a man with too much of one.”
Donnally shrugged. “It’s a long story.”
“I’ve got time.”
Janie glanced up and saw a customer walking toward the counter and went over to take his payment.
Donnally took a sip of his coffee. He wondered whether there was a lesson for McMullin in his father’s history. They were of the same generation, maybe shared some of the same flaws.
“My father was a press officer working out of the U.S. embassy in Saigon during the war. He gave a briefing in which he claimed that the Viet Cong had massacred some Buddhist monks up in Hue.”
Donnally watched the judge nod and his eyes go vacant for a moment. He knew McMullin was watching news footage in his mind. Everyone in the country had watched it on Walter Cronkite. It was one of a handful of images that had defined the war for people McMullin’s age: the mangled body of assassinated South Vietnamese president Diem, the self-immolation of a monk in a Saigon intersection, the bullet-to-the-head street execution of a Viet Cong soldier by a South Vietnamese colonel, and Don Harlan’s press conference.
“That was your father?” McMullin said, a question more in form than content.
“He had a nickname. The press corps always referred to him as Bucky Harlan.”
“As I remember it, the story he told turned out not to be true.”
Donnally nodded. “But my older brother believed it. He dropped out of UCLA and enlisted. Six months later he was killed during the Tet Offensive. Ambushed by North Vietnamese regulars. Set up by some villagers. But before he died, he met some monks along the Perfume River and learned the truth. It had been Korean mercenaries hired by the United States who committed the crime. He also found out my father knew it all along.”
McMullin sighed. “That’s a helluva thing to live with.”
The way the judge said the words suggested he was also thinking of himself.
“My father’s whole career, all those war movies, was nothing more than a lifelong flight from himself and what he’d done.”
The judge and Donnally’s conversation at the river became a soundless echo in the room.
“But you said he—”
Donnally nodded. “He used his last movie to come clean with himself.”
“I’ve seen all your father’s films. At least I thought so. I don’t remember anything like that.”
“It got almost no distribution. None of the theater chains would run it.”
“Sounds like he would’ve been better off whispering it to a priest in a confessional.”
Donnally thought, but didn’t say, Or to an ex-cop on the bank of the Smith River.
Janie returned and sat down next to Donnally.
“What did the doctor want to talk about?”
“She’s thinking it may be time to run some tests on him for Alzheimer’s.”
Donnally sensed more than saw McMullin stiffen and look away. The judge’s coffee cup rattled on the saucer as he set it down. He thought back on the judge’s failure to execute the basics of fighting the steelhead and his confusion, perhaps bewilderment, in trying to reconstruct his thinking at the time of the Dominguez trial. Maybe the judge had his own secret, one about his own mental deterioration that had made his mission more urgent than just a letter from an inmate who was facing execution and desperate to save his life.
Donnally felt a sourness in his stomach, and not only from the lukewarm coffee. Maybe the judge had fantasized the whole thing or had mixed up cases together in his mind. He pushed the thought aside for the moment and asked, “What’s the doctor seeing in him now that she hasn’t seen before?”
“That’s part of the problem. She’s hardly seeing him at all, and neither is your mother. He spends days on end in the basement studio. He doesn’t shower. Hardly eats. He fired his film editor and is making all the cuts himself. His producers are calling because some of his investors are nervous about where their millions of dollars have gone, and your father refuses to call them back.”
“And I take it that he won’t let anyone look at what he’s doing.”
Janie nodded. “Like always. Except . . .” She paused and looked over at McMullin. He held up his palms as though to say the secret would be safe. “Except when he went for a walk he left a DVD he’d made of some scenes from the film on the kitchen table. She only had a few minutes to look at it. And it was bizarre. Crazy. Not like Shooting the Dawn and more like the experimental stuff he did in film school. Four different men staring into the camera, none of them speaking the same lines, then turning and walking toward the same white door. But not like screen tests. These were all famous guys, ones he’s worked with for years.”
Donnally found he’d folded his hands, interlaced his fingers, and was rubbing his thumbs together. He stopped. He knew his father would be humiliated if word got out that the man who’d made what was considered the most important Vietnam war film in history had reduced tens or scores of millions of dollars of his investors’ money into a few thousand dollars’ worth of something not even worthy of a student film festival.
Even worse, it might reveal what should’ve been obvious to Hollywood forty y
ears earlier—that his father’s first films were less conscious acts of artistic creation than reflections of a psychotic break triggered by the death of Donnally’s older brother and his refusal to accept responsibility for his role in it. Even Shooting the Dawn, an epic that was still studied in classrooms around the country, portrayed both sides in the Vietnam War as maniacal, the American soldiers as Deer Hunter–like killers and all the Vietnamese—South, North, and Viet Cong—as devious and evil.
The argument of the movie was that if the war wasn’t rational, then no one fighting it could be either, and no one, not even Don Harlan speaking from the safety of the American embassy in Saigon, could be held responsible for what he’d said and done.
It was only in his father’s last movie that he’d displayed to the world the truth of what he’d done, and accepted responsibility.
But by then few wanted to listen, for later self-deceptions, distortions, and deceits, ones that had led the country into the 2003 Iraq War, occupied the public debate and no one labored anymore about the lessons of Vietnam.
Donnally wondered what other confession was left for his father to make and how he was choosing to make it.
“She’ll try to get another look at the DVD,” Janie said, “and make a copy, then send it up here so you can see it for yourself.”
“Has she tried to talk to him?”
“Not yet.”
For a moment, Donnally felt protective of his father, who now appeared smaller and weaker in his mind, a yellow-haired old man shuffling in the shadows.
“Then I’m not sure she’s in a position to determine what he’s up to.”
“That’s exactly the problem. She can’t determine whether he’s up to something and is in control of himself or whether something has risen up and taken control of him.”
