by Steven Gore
Junior smirked. “How many times you gonna go down that road before you catch on I’m not going along?”
Donnally looked over at Navarro and smiled. “Usually he just says, ‘I ain’t no snitch.’ He’s especially talkative today.”
Donnally tilted his head toward the empty chair. “Have a seat. You’ve got a decision to make.”
“The only decision I got to make is whether to kick your ass once I get out of here.”
Donnally pointed at Junior’s shoulder and smiled. “I guess you really will have to kick me since you can’t do any punching.”
“Yeah. I owe you for that too.”
Navarro signaled for the jailor to close the door. They all recognized that if Junior had intended to walk out, he would’ve done it already.
There was too much Junior wanted to learn beyond what had been reported in the press about Judge McMullin’s hand-delivered letter to the governor and the stay of execution that followed and the truth about the deaths of Chen and Benaga and of the murder of his father by Chico’s uncle, Juan Gallegos.
Junior sat down, then pointed back toward the housing unit. “I saw it on the news. Is Juan Gallegos gonna get charged with killing my dad?”
Donnally shook his head. “The slug matched the gun Gallegos used in the murder six months later that put him in prison for the rest of his life, but we can’t prove he pulled the trigger the night your father was killed. We’ve got no witnesses. Chico says he was the only person right in front of the apartment, but the shot came from behind him, from the roof of the church across the street. It was too dark for him to see who was up there.”
“I thought the angle—”
“No. The theory was that your father was looking down and the shot came up. The truth is probably that he saw some motion across the street and was looking right at Juan when he fired. The trajectory would have been the same and the slug shattered the glass so there was no way to determine the direction.”
Donnally knew it would’ve hurt Junior so he didn’t describe that trajectory. An inch below his father’s hairline in the front and then a horizontal path until the slug ricocheted off the back of his skull.
“Israel Dominguez was in the area,” Donnally said. “He lied about that, but he couldn’t have fired the shot. Chico puts him on the street half a block away with no line of sight to the apartment window.”
“What about the shell casing in the driveway?”
“It was New Year’s Eve and there were lots of gunshots that night,” Navarro said.
“You mean Dominguez lying about not being there don’t mean nothing?”
“It mostly means that his attempt to lie himself out of a frame just tied him in deeper. It made him look even guiltier of lying in wait, the special circumstance that made it a capital case.”
Junior sat there, shaking his head.
“I didn’t think you cared that much about lying,” Donnally said, “or truth telling for that matter.”
“Why you saying that?”
“Because the first words out of your mouth are always the same.”
“Who you asking me to snitch on?”
“It’s not about that.”
“Then what’s it about?”
“You already know. It’s about a decision you’ve got to make right now about what you’ve done and who you’ve been and who you’re going to be for the rest of your life.”
Donnally thought of Judge McMullin. Who he would be in a few months or years was out of his control. It was a matter of physiology, not choice, and soon enough he’d be nobody, for who he had been would fade until he was just a body without a mind, without memories, without a past or a future, and then that body would fail too.
And he thought of Israel Dominguez, who grew up wanting to be nobody, a fairy-tale character who tried to disappear into the earth, and who was now condemned to bear forever the scars on his hand like a gang tattoo that couldn’t be burned off.
Junior had a choice, but Donnally didn’t know whether he had the courage to make it.
“How much time can I get?” Junior asked.
“Does it make a difference?”
The question answered itself in the silence that followed.
Donnally looked at Junior and realized that a junior he really was, a nine-year-old boy in a twenty-nine-year-old man’s body.
“This gang outreach is just a lie, isn’t it? You’re deceiving the kids and you’re deceiving yourself.”
Junior’s face flushed, but he didn’t answer.
“You’re not doing anything to get them out of that world. They acted it out on the street. No snitching and no witnessing. That’s why they jumped in to help you.”
Junior still didn’t say anything.
Donnally slid a sheet of paper and a pen across the table. “It’s up to you.”
Junior stared at it, seeing words that weren’t yet there.
Fifteen minutes later, Donnally and Navarro walked out.
Two hours later, Donnally handed Israel Dominguez Junior’s confession to ordering the hit on him. They sat at the same table on death row. A stay of execution was only a stay. He’d have to remain among the condemned until the attorney general’s investigation was complete and the governor’s pardon came through.
Israel read it over.
“What am I supposed to do with this?”
“That’s up to you.” Donnally was aware that the words echoed what he’d said to Junior just before he wrote it. “It hasn’t gone to the D.A. for charging yet.”
“Is Junior locked up already?”
Donnally shook his head. “He was, on a parole violation, but I asked his parole agent to lift the hold and let him go. He won’t be running anywhere. He’s ready for whatever the court hands him.”
Israel read it over again, then folded it over once, then a second time, and tore it up.
“That’s good enough for me,” Israel finally said. “He had to grow up his way and I had to grow up mine.”
CHAPTER 52
People versus Harvey Madding.”
The clerk announced the arraignment without looking up from her desk as though trying to shield herself from the focused lenses of the news cameras and the peering eyes of the reporters in the courtroom.
The disproportionality of everything struck Donnally as never before, even when he was telling Chico Gallegos that his penalty if Israel Dominguez had been executed would have been death.
Judge Madding stood accused of a mere misdemeanor obstruction of justice, barely more than an infraction, but one that could have cost the life of an innocent man for a murder he hadn’t committed.
All this time Donnally had thought he was investigating the worst of crimes, a capital murder, while it turned out to be the most minor of misdemeanors. But it was like a fulcrum set so light a mere touch would move a boulder.
He wondered whether Judge McMullin felt the same imbalance or even could have imagined it just two weeks earlier.
Donnally gazed up at McMullin, but his mind saw not the man sitting there before him on the bench, but the judge first standing in the Smith River, a swirl of snow in the air, and then sitting and gazing down at the translucent orange flame of a rock-ringed fire. The judge’s mind struggling with his memories and working his way toward talking about the Dominguez case, starting with the law.
Murder is the unlawful killing of a human being with malice aforethought.
The judge had stared across the river, as though a generation of faces and cases had been flowing through his mind.
Then McMullin had moved on to the standard of proof to support first- and second-degree murder convictions, but Donnally didn’t yet know which face and which case had come to preoccupy him, and feared that it was the judge himself.
Malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.
Malice aforethought, premeditation, and intent. Those e
lements had been the source of the judge’s doubt over all those years.
And he was right to doubt them, but for the wrong reasons.
Judge Harvey Madding and his attorney, Robert Callahan, rose from behind the defense table.
Donnally recognized the lawyer when he entered the courtroom. He specialized in representing cops and prosecutors and was an expert at smothering the flames of public outrage. He was the master of the two-minute court appearance, never giving reporters anything new to write about.
Callahan spoke first. “We waive reading of the complaint.”
McMullin looked up from the file in front of him, his face flushed as though he’d been caught daydreaming.
“Excuse me?”
Uneasiness vibrated through Donnally, fear that McMullin’s mind wasn’t lucid enough for the task before him, that the intermittent confusion displayed during that last meeting had returned. Surely, he must have heard and understood Callahan’s words, which were as standard as entering a plea and setting a next hearing date.
“I said we’ll waive reading of the complaint.”
McMullin glared down at Callahan and his voice took on an edge.
“Did I ask you a question, Counsel?”
Donnally felt his fear sigh out of him. McMullin was in control of himself and of his courtroom.
Callahan drew back, surprised and embarrassed, then glanced over at the district attorney, who stared ahead.
Donnally wasn’t sure whether the prosecutor was reacting to the judge’s tone or ducking through silence from the obvious conflict of interest involved in the D.A.’s office prosecuting one of its former members.
“No, Your Honor. You didn’t ask a question.”
“Clerk, will you please read the complaint.”
“On or about March 24—”
Janie sat down next to Donnally in the seat he had saved for her.
“Why go through the motions?” she whispered. “No California D.A. or ex-D.A. has ever been convicted of obstruction of justice for hiding evidence. I checked on the Internet before I drove over here.”
“That doesn’t mean there can’t be a first. And maybe this will be it.”
The clerk again, “The said defendant, Harvey Madding, in the City and County of San Francisco, State of California, did willfully, unlawfully, and with malice aforethought—”
Madding collapsed into his chair. Callahan’s arms flew up. The gallery gasped as one person, smothering the clerk’s words. She raised her voice against the rising disbelief. Bailiffs stepped between Madding and the gallery.
Donnally leaned forward, only catching fragments: “conspire,” “Chen,” “Benaga,” “suborn,” “perjury,” “reckless disregard,” and finally, “attempt to murder a human being, Israel Dominguez.”
McMullin hammered his gavel, all the while looking Donnally in the eye, and both of them thinking of that day on the river.
Malice is implied when the circumstances show an abandoned and malignant heart.
Donnally felt Janie’s hand grip his forearm as reporters ran past them toward the hallway. She was squinting up at him when he looked over. He answered her question before she asked it.
“Attempted second-degree murder.”
No other mental state need be shown.
CHAPTER 53
Donnally stood on the pebbled bank of the Smith River watching Judge McMullin standing waist deep ten yards from shore. The current separated around his waders leaving a slick of quiet water below him. The setting sun, streaking the flat water between the rapids with shimmering yellow, orange, and gold, enveloped the judge in its glow.
The fluidity of the judge’s casts first surprised Donnally, then he realized it shouldn’t have. After all, it was too soon for the disease to show itself in the physical symptoms of fumbling hands and unsteady steps. But then he realized the relief the judge must feel, the liberation, not that Alzheimer’s was an excuse for his confusions and failures of memory, but an explanation for them.
As the last bit of light descended in the west and twilight rose in the east, Donnally thought back on his father and the judge sitting together in the waiting room of the Stanford-VA Alzheimer’s Research Center a week earlier. It was there that doctors discovered the plaque-causing proteins that cause the disease in McMullin’s blood. His father had been looking for an opportunity to make up for his mistakes, to share what he’d learned about the disease during the making of his film, and Donnally had given it to him.
The two looked like old men sharing a park bench. Donnally had felt himself well up when he noticed his father had taken the judge’s hand in his. His parents had always been so private in their affection, and his father had always been so self-absorbed, that Donnally hadn’t expected this kind of tenderness. He wondered, even found himself hoping, that the gesture meant something more, that a time of insight into himself and sympathy for others had finally come for his father, too.
Donnally used the distraction of the nurse standing in the open door leading to the examining rooms and calling out a patient’s name to turn away and wipe his eyes.
Now they teared up again, this time bitten by the chill wind sweeping up the river from the Pacific as he watched the judge cast.
The first time they had stood together in this place, the judge seemed less a fisherman than a fugitive, running away from the past, driven by fear, but at the same time drawn back to it by conscience. And Donnally still didn’t think McMullin had become a fisherman. He doubted it would’ve have made any difference to the judge if his lure bore no hook at all.
Donnally knew the river too well to think there were any steelhead still moving upstream. The run was over. The few fish left were heading back to the sea, driven both by instinct and by a rain-fed flow that sped them home as fast as birds in flight. The judge had said he wanted to come anyway, needed to come, and not because he’d reached a time of ending, of resignation, of submission to the forces of nature and of fate, but because the river was life and light, and time and hope, even as he faced the coming of his night.
Notes and Acknowledgments
Each Harlan Donnally novel focuses on a problem in the criminal justice process. Act of Deceit dealt with a systemic failure relating to defendants found incompetent to stand trial. A Criminal Defense dealt with criminality on the part of the defense. Night Is the Hunter deals with criminality on the part of the prosecution.
As far as I know, this is the first crime novel based on the notion of implied malice. And for good reason. It’s a complicated concept.
For those who might be interested in the underlying legal issues, the following is a standard jury instruction regarding implied malice:
1. The defendant intentionally committed an act;
2. The natural and probable consequences of the act were dangerous to human life;
3. At the time the defendant acted, the defendant knew the act was dangerous to human life; and
4. The defendant deliberately acted with conscious disregard for human life.
—California Criminal Jury Instructions, Judicial Council of California, 2011, Section 520.3 (paraphrased)
These elements, which are consistent from state to state, are also involved when a person engages in a provocative act that causes another to take an action dangerous to human life.
To state more formally what is shown in the story:
First, Harvey Madding, along with coconspirators, intentionally committed acts that were inherently dangerous to human life and that would have resulted in the execution of Israel Dominguez, but for Judge McMullin and Harlan Donnally’s intervention.
Second, Madding engaged in a provocative act by causing the jury to convict on the crime of murder with the special circumstance of lying in wait, recommending the death sentence, and causing the judge to impose it.
Lawyers and judges, depending both on the state they live in and their views of the law, will disagree about whether a conviction for attempted second-degree murder or
a conspiracy to commit second-degree murder would stand up on appeal. (Higher courts around the country have differed in their answers and legislatures have tried to resolve the issues.) But since I am a writer of crime novels and not of law review articles, I’ll leave them to argue among themselves.
I ran across the Rumpelstiltskin analogy in psychiatric research into the disturbed inner logic of homicide conducted by Andrew K. Ruotolo, M.D., and reworked it for this story. The Alzheimer’s theme was prompted by my reading the wonderful novel, Before I Forget, by Leonard Pitts Jr. (Bolden Books, 2009).
Thanks to two fine criminal defense attorneys, Chris Cannon, who read the book in advance and offered suggestions that clarified and improved the story, and Louisa Havstad, who was kind enough to talk though some legal points early on. Thanks, as always, to Scott Sugarman; Bruce Kaplan; Julie Quater; John, Jack, and Michael Beuttler; Bobbie Chinsky; John Somerville; Diane Gore-Uecker; John Uecker; Dennis and Judy Barley; Rick and Gail Monge; Randy and Margie Schmidt; Trevor and Cassie Patterson; Glenn and Judy Pollock; and Carl and Kathy Polhemus. Thanks also to Katy Pose, PA-C, Ranjana Advani, M.D., and Alan Yuen, M.D., for fifteen extremely interesting years and to my wife, Liz, my first, last, and best reader.
Thanks also to my editor, Emily Krump, my copyeditor, Laurie McGee, and my publicist, Heidi Richter, who did such fine work in preparing and presenting this book.
About the Author
STEVEN GORE is a renowned private investigator turned “masterful” writer (Publishers Weekly), who combines “a command of storytelling” with “insider knowledge” (Library Journal). With a unique voice honed both on the street and in the Harlan Donnally and Graham Gage novels, Gore’s stories are grounded in his decades spent investigating murder; fraud; organized crime; corruption; and drug, sex, and arms trafficking throughout the Americas, Europe, and Asia. He lives in the San Francisco Bay Area.
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