by Steven Gore
“He’ll order first,” Donnally said, forcing her to turn toward Junior.
Her eyes fixed on the word Norteño running from hand to hand as she wrote down his order for a plain hamburger. She had started to ask him whether he meant the Famous Dudley’s, then looked at his opaque eyes and stopped.
Donnally ordered the same, then she headed toward the pass-through to the kitchen.
Junior stared down at his coffee. Without looking up, he said, “I ain’t no snitch.”
“Why do you think I’m asking you to snitch on somebody? I haven’t asked you to do anything. Or even to say anything.”
Junior ignored him. “I’ve got to live in this town. You know what I’m saying. I got no place to go and no way to make money.”
“What are you doing now?”
Junior finally looked up. “I work for La Raza Outreach. I try to get young gang members out in the Mission to give up the life. They’d cut my throat and torch my grandmother’s place if anybody thought I was talking.”
“I told you—”
“Eventually you will.” Junior glared at Donnally. “That’s how cops are.”
Donnally knew Junior was right about that. Informants were the shortest way to get from the unknown to the known. But he still didn’t know whether anything was truly unknown in the Dominguez case or whether Junior knew it, whatever it was.
“If you were a Sureño, instead of a Norteño, and had inside information about Dominguez and whether the Sureños sent him to kill your father, then maybe I’d push you to talk. But you’re not.”
Junior stared at him dead-eyed.
Donnally then realized they were talking past each other again. Junior was thinking about the Norteño and Sureño shoot-out in which Donnally had been shot and that he had used as a pretext in questioning his grandmother and that the cop had mentioned outside the Cliff House. Donnally was thinking about the Sureño conspiracy against Edgar Rojo Sr.
At the same time, Donnally didn’t believe Junior was fooled by the cover story because his grandmother must have told him the questions Donnally had asked.
“I’m not looking to do anything about what happened to me,” Donnally said. “It doesn’t make any difference anymore.”
That was a lie. It did. But Donnally wasn’t going to tell that to Junior. He’d been working around the edges of the thing since it happened, but had never gotten a strong enough lead to run to the end.
When it happened, it appeared that it was just two gangsters walking toward each other and neither could back down, so they shot it out past Donnally and the young couple caught in the middle—until Donnally cut them both down—and he’d discovered nothing in the meantime to convince him that the appearance wasn’t the reality.
“You believe in coincidence?” Junior asked.
“Like?”
“My father gets a call, goes to the window, and gets shot.”
“Depends on who he got the call from and why they called.”
Junior’s face flushed. He lowered his voice and spoke between his teeth.
“Don’t screw with me, man. If you been looking into this thing, you know who called.”
“How would I know?”
“It was in the police report. Had to be.”
Donnally shook his head. “The report just said you told the detectives there was a call, not who made it.”
Junior’s hands clenched into fists on the tabletop. “That chingaso.”
“Then who called?”
“It’s none of your business.” Junior pushed himself to his feet. “I’ve had enough of this. I’m gonna take care of him myself.”
Donnally pointed at Junior, then at his chair. “Sit down.”
Junior remained immobile. Donnally felt the eyes of the white patrons staring at Junior. Talk continued around them, but Donnally had the sense that the words, mixing in the hollow space around them, had somehow become disconnected from the speakers.
“Your grandmother told me you were confused that night and didn’t remember what happened and who called.”
“She’s wrong. I remember. It’s her that don’t want to remember.”
“And twenty years later, you’re going to do something about it?”
“I’ll do what I need to do.”
“If you’re doing outreach, that means you’ve come a long way. Why waste the trip?”
Junior stared ahead, toward the front door. His body moved side to side like he was boxing, as if preparing to dodge a punch, or preparing to throw one.
“I don’t know what you have in mind,” Donnally said, “but I know there’s a better way to do it.”
Junior blew out a harsh breath, then sat down. He stared at his coffee cup, his thumbs working against his fingertips.
Donnally expected him to get up again, and this time walk out.
Instead, Junior said, “I haven’t come very far at all. I was ready, I’m still ready, to go blow that scumbag away.”
“Not quite.”
Junior shrugged.
“What changed for you?” Donnally asked. It was too soon to press him on who it was that called and why the detectives had hidden that fact by leaving it out of their reports.
Junior finally looked up. “You know why my father became a Norteño?”
Donnally shook his head.
“The drug cartel down in Michoacán, where the family ranchito is, forced a deal on our relatives. My father got caught in the middle. They was gonna suffer down there unless he did what they wanted up here.”
“And that was . . .”
“Be on the receiving end of the cocaine they were shipping north.”
Junior fell silent again. His eyes moved as though his mind was struggling over something, maybe weighing something, perhaps how much to say, or how much to admit.
“But it wasn’t just force and threats. I know that. My father got something out of it too. You know what I’m saying. He’d been in the trade for ten years. It was a chance to move up and have soldiers and guns to protect his operation in the neighborhood. And a way to buy stuff for my grandmother and send money to the family in Mexico.”
“And make himself look big.”
Junior paused, and then nodded. “Yeah, he wanted that, too.”
Since Junior’s mother wasn’t mentioned in the police reports and she hadn’t testified against Dominguez in the penalty phase of the trial as Junior and his grandmother had done, she must have been out of their lives.
“I take it your mother wasn’t around when all this happened.”
“She got pregnant with me in Mexico and drove a load across the border to pay her way into the States. Got caught. I was born in the women’s federal prison in Bryan, Texas.”
“Where is she now?”
“Nowhere.” He glanced away for a moment, then looked back at Donnally. “She never made it out.”
Junior pulled out his wallet. He opened it and turned it toward Donnally, displaying a picture of a slim, long-haired woman dressed in prison blues, sitting at a picnic table next to a razor-wire fence.
“This is the only picture I have of her.”
Donnally decided not to say anything about the woman’s beauty. That wasn’t something a son would want to hear from a stranger about his mother. Or to comment on her sadness. That was something Junior had lived with all his life.
There was nothing he could say, except, “Sorry.”
Junior folded his wallet shut. “You didn’t do nothing. That’s just the way things are.”
“I was a cop back then. Maybe . . .”
Donnally didn’t know how to finish the sentence.
Junior narrowed his brows at Donnally. “You must be one of those guys who thinks everything is his fault. I had a shrink in the joint who talked about that. He said it was the flip side of paranoia.” He lifted his chin toward Donnally. “You paranoid, too?”
Donnally shook his head. “No, just careful about what I do. I grew up with a father who wanted to b
e big, too. Huge. And he made it. He influenced how the whole country saw itself, but he ducked the responsibility that came with the power.”
“He like a politician or something?”
“A movie director.”
Donnally surprised himself. Talking to a stranger about his father. And he wasn’t sure why. He wondered whether it was because Junior’s father was missing for most of his life, while Donnally’s father spent most of his life missing in another way, even lost to himself.
He also wondered whether he was prepared to disclose the hidden truth about his father out of nothing more than a kind of fairness.
“What movies?”
“Shooting the Dawn and Fallen.”
Junior held out his arms like he was holding a machine gun, then jerked his arms in imitation recoils. “Bam. Bam-bam-bam.” He lowered his hands. “I loved those flicks. Watched them over and over. Soldiers jumping up and spraying the jungle with them M16s.”
He looked hard at Donnally. “And you been spending your life trying to make up for him?”
Donnally shrugged.
Junior smirked. “What a waste.”
“Then what have you been doing?”
“Trying to get away.”
Donnally stared at him. Junior had no insight into himself. None. The shrink in prison hadn’t seemed to have done him much good. In Junior’s language of double and triple negatives, he wasn’t going nowhere.
“You were just about to go kill somebody. That’s not getting away.”
Junior smiled. “Only if I get caught.”
“That’s not what I meant.”
Junior’s smile died. “I’ll never get away. I carry it all with me. All the questions and half the answers.” He paused and bit his lower lip. “Why do you think the detectives didn’t include the name of the guy who called my father just before he got shot? The guy that got him to walk to the window and look down.”
Donnally thought back on the occasions when he’d left names out of reports.
“In my day, I’d leave out people I needed to protect. Maybe he was a witness in something else or maybe an informant for the police.”
Junior shook his head. “You ain’t even close, man. Ain’t . . . even . . . close . . . He was the police.”
CHAPTER 13
Judge Ray McMullin gazed down at the police reports about the Edgar Rojo Sr. homicide. Detective Ramon Navarro had retrieved the file from storage again, but this time he made copies for Donnally to show to McMullin. All Navarro would say was that something was starting to smell bad, but he was still unwilling to be seen by other detectives in the department as sniffing along a trail related to Dominguez.
The judge turned each page, ran his finger down the text as he read, licked his fingertip, caught the top edge of the next, flipped it over, and continued.
Donnally wasn’t surprised McMullin had no recollection of the issue of who’d made the call and why the name hadn’t been disclosed. Not only had twenty years passed since the trial, but as a matter of law, judges don’t read the police reports for fear of being influenced by untested allegations. They were allowed to consider only the evidence that had been placed before them in pleadings and in hearings, and no evidence relating to the identity of the caller had been submitted to him.
After fifteen minutes, McMullin closed the folder. “The name isn’t here.”
He shut his eyes and rubbed his forehead.
Donnally watched his skin stretch and whiten under the pressure, then redden. He had a sense the judge’s thoughts had moved on, beyond the words on the page.
McMullin opened his eyes again. He stared at Donnally for a moment, then said, “And you believe Junior that it was a police officer who called?”
“It’s possible. I made those kinds of warning calls myself. If I got intelligence a contract was out on someone, I’d contact the target to tell him, even if it compromised an investigation. Like with Emanuel Jones. You remember him?”
McMullin nodded. “His is still the longest sentence ever handed out by a judge in this county. Life plus three hundred years.”
“Jones was only alive to get sentenced because I warned him he was about to get hit. And it cost me an informant. I came too close to burning him because only a couple of people were in on it and they were real close to being about to figure out who was in a position to know what was supposed to happen. That informant never gave me anything again.”
“Then maybe that’s all this was. A cop warning Edgar Senior. And since he got killed anyway, there wasn’t any need to put a continuing investigation at risk by giving the defense access to that kind of information.”
“Except Junior claims it wasn’t just a warning. The cop told him to check the street. That’s how he put himself in Dominguez’s sights.”
“How would Junior know what the caller said?”
“Because his father asked something like ‘You mean the front window?’ and then walked over and looked down.”
“Is Junior claiming the officer was working for the Sureños?”
Donnally shook his head. “He didn’t go that far. He might have been thinking it, but he didn’t say it.”
McMullin leaned back in his chair. It gave Donnally the feeling that he was withdrawing from the issue or preparing to minimize it.
“Maybe the whole thing was just a child’s fantasy,” McMullin said. “A way to look for someone big to blame for the death of his father. The bigger the conspiracy, the more important his father would be in the kid’s mind.”
“That’s possible. It could be that the cop meant for him just to peek out through some curtains, locate where the killer was lying in wait, then sneak out the back.”
“But that begs the question of why Senior wouldn’t have just stayed inside and out of harm’s way?”
“That depends on what the cop knew or believed at the time and what he’d said to Senior. Suppose the cop hadn’t known how the killer was going to do it.” Donnally gestured toward McMullin with an open hand. “Would you risk bringing violence to your mother’s home? The plan could’ve been to firebomb the apartment or make it a home invasion. Maybe Senior makes a show of getting away or sends someone back with a message, ‘Too late. You missed your chance.’”
“But the issue remains,” the judge said. “Did the information the officer received bear on who killed Senior and why the killer did it?”
“Or just the why of it. Wasn’t that the fundamental issue in the trial? What Dominguez was thinking. First-degree premeditation or second-degree reckless disregard?”
McMullin tilted his head back and stared at the wood-paneled ceiling. Donnally had seen that move in court as the judge listened to oral arguments on motions. It seemed to Donnally back then that McMullin wanted to use the blank screen above to focus his mind on the words alone, follow the logic of the arguments, uninfluenced by attorneys’ gestures and facial expressions, the pleas behind the pleadings.
“Let’s try to think through how it could’ve played out in court.” The judge leaned forward again and folded his arms on the desk. “The D.A. interviews the officer. The officer says he’s got an ongoing investigation. The D.A. asks him whether his informant told him ahead of time who would be doing the shooting or where or when.”
Donnally provided the answer. “And the cop says no because he doesn’t want to have to give up his informant to the defense and compromise an ongoing investigation. Or maybe the cop says the information is second or third hand.”
“On that basis, the D.A. decides he doesn’t have to disclose it to the defense. The informant only has inadmissible hearsay and isn’t a percipient witness to the crime and has no direct knowledge regarding the shooter or his motive.”
Donnally thought it through, not liking what he found. “If that’s the most positive spin that could’ve been put on what happened, it’s not good enough.”
The reason was obvious, and the judge should’ve seen it. It was the court’s decision whether or
not the informant had information bearing on the identity of the shooter and the type and level of his culpability, whether it was first- or second-degree murder or voluntary or involuntary manslaughter.
In addition, there were exceptions to the hearsay rule: statements by coconspirators or statements against penal interest or excited utterances. And all were matters of admissibility that, under the law, fell to the judge to decide.
McMullin squinted as though his mind’s eye was looking ahead along the path of Donnally’s thinking.
“But what if the officer never told the D.A. about any informant?”
“Or the D.A. was careful to make sure he didn’t ask. I’ve seen that game played in dozens of cases.”
“In any case the D.A. is clean, even if the officer isn’t. Since the D.A. doesn’t know anything, there’s nothing for him to turn over to the defense or disclose to the court. Whatever it is, it’s not prosecutorial misconduct and not a basis to set aside the conviction.”
Donnally was now getting frustrated. The judge still didn’t get it, didn’t see where Donnally was headed.
“Again, not good enough. The D.A. had an obligation to disclose to the defense the name of the cop who called Senior. He deprived the defense of the opportunity to file a discovery motion to determine what the cop knew or what police department records would show. Then it would’ve been up to you whether or not to have a hearing in chambers with the cop and D.A. so you could decide what needed to be disclosed to the defense.”
“If anything.”
To Donnally, the words sounded like a dodge, as if the judge was implying that there wouldn’t have been anything, so no harm was likely done.
“But that’s something we don’t know,” Donnally said. “It seems to me the D.A. didn’t want to risk putting it in your hands to decide. And it wouldn’t have been the first time a D.A. substituted his own judgment for the court’s.”
Neither had to say it aloud, but the most disturbing trend in the court system in the last thirty years was exactly that. The D.A. had been grabbing more and more of the court’s authority. Prosecutors didn’t even bother to make motions to dismiss all or parts of cases any more; they’d simply announce, “I’ll dismiss count one if the defendant pleads to count two,” as if the power was theirs.
