It’s a long shot. “We can subpoena the financial records for the archdiocese and Shanahan’s law firm,” I say, “but that will just invite a discussion with their lawyers.” I look at my brother and ask, “Can you get their bank account information another way?”
“Probably.”
“Can you do it legally?”
“Depends on your definition of the term legally.”
Chapter 42
“I Won’t Let You Turn My Courtroom Into a Circus”
“I expect every lawyer who appears before me to be prepared and to treat everyone in my courtroom with respect and dignity.”
— Judge Ignatius Tsang. California State Bar Journal.
The Honorable Ignatius Tsang is stroking his chin as he studies the legal papers before him. A slight man in his late fifties with a quiet, but authoritative voice, a receding hairline and a scholarly demeanor, the judge could pass for a college physics professor. His tone is measured when he says, “We need to discuss some issues before we can begin the preliminary hearing.”
The dignified jurist is sitting in an old leather chair behind a standard-issue metal desk in his cramped chambers at nine-ten on Monday morning. The native of Taiwan moved to San Francisco when he was in his teens and he grew up in Chinatown, where his parents held down multiple low-paying jobs to allow young Ignatius to focus on his studies. A brilliant student with a photographic memory and a knack for language, he absorbed English quickly and graduated at the top of his class at San Francisco’s super-competitive Lowell High. He raced through UC-Berkeley in three years and was first in his class at Boalt Law School. He clerked for Justice Byron White before he took an entry-level 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 strength to the bench for the last eight years.
The room is packed with dusty legal tomes reflecting his cerebral approach to the law, as well as several photos of his son, Nathan, a professor at UCLA Law School. A bronze rendering of the scales of justice sits on his desk and a tasteful lithograph of the U.S. Supreme Court hangs next to his law school diploma. The only nod to the twenty-first century is the state-of-the-art notebook computer on a credenza piled high with papers.
We had barely completed the attorney introductions when Judge Tsang summoned us into his chambers. Quinn and Shanahan presented their papers to withdraw as Ramon’s counsel of record first thing this morning, and the cautious judge called a timeout to talk things over. It’s helpful to know who is representing whom and good judges abhor disarray.
Rosie and I have taken positions in armchairs to the left of the judge’s desk, and McNulty and Ward are sitting on an old green couch to his immediate right. Quinn and Shanahan are forced to stand against the bookcase. If this were a baseball game, Rosie and I would be in the luxury boxes and they’d be in the bleachers.
Judge Tsang looks up and tells us we’re off the record, then he turns to me and says, “I understand one of your witnesses is no longer available.”
“That’s true. Ms. Kelly O’Shea–also known as Jane Doe–was killed outside her place of employment late last night.” I leave out any mention of the Mitchell Brothers.
“Does this mean you’ll need a continuance?”
“No, Your Honor. We’ve discussed this matter with our client and we wish to proceed.”
“Are you sure? I understand you had an emergency at your office over the weekend, too.”
“We’re sure, Your Honor.”
He nods politely, but his expression indicates that he was hoping we’d bump the prelim until we have more information about Doe’s death. “Does this suggest that the testimony of this witness is not essential to your client’s defense?”
“We intend to introduce a sworn statement that we obtained from her before she died.”
This gets McNulty’s attention. “That’s unacceptable to us,” he says. “We didn’t have an opportunity to interview the witness to make a judgment as to her credibility.”
And now you never will.
“Moreover,” he continues, “we haven’t reviewed the document and confirmed its authenticity. For all we know, Mr. Daley could have generated it on his word processor.”
The bombast is typical McNulty, yet I’m surprised he’s making a big deal about it. Nick Hanson is going to testify that he saw Concepcion leave her apartment at ten-twenty and return at ten-forty. The fact that Concepcion spoke to Doe at ten-thirty now has little relevance to their case. Unless they want to undermine his testimony, they’ll have to show that Ramon killed her when he came back to her building later than night.
“Your Honor,” I say, “the police interviewed Ms. Doe before she died. If Mr. McNulty is concerned about her credibility, he should consult with Inspector Roosevelt Johnson. If he wishes to challenge the authenticity of her statement, he’s free to do so at trial.”
“May I see the document, Mr. Daley?”
“Yes, Your Honor.” I hand it over to him.
He studies it for a moment, then he turns to McNulty and says, “I’m inclined to admit it.”
“But Your Honor–”
“I’ve ruled.”
“Yes, Your Honor.”
It’s a small victory. We still have to deal with the fact that Ramon was spotted in the vicinity of Concepcion’s apartment later that night.
Judge Tsang is just warming up. “I called you in here because I want to sort out who is representing the defendant,” he says.
“Your Honor,” Shanahan begins, “let me try to shed some light on the situation–”
The judge cuts him off. “With all due respect,” he says, “these are my chambers and I get to ask the questions. I’ll let you know if I need you to provide illumination.”
It isn’t a good sign when a judge addresses you with the words, “With all due respect.”
Shanahan sucks it up. “Yes, Your Honor.”
Judge Tsang turns to McNulty and Ward and says, “I presume the lineup on your side of the aisle hasn’t changed?”
Ward answers for them. “That’s correct, Your Honor. Mr. McNulty and I will be representing the people.”
The judge is pleased. “Have you made any progress in negotiating a resolution of this case?” Plea bargains are a judge’s best friend.
“No, Your Honor. Mr. Daley and Ms. Fernandez have been unwilling to seriously consider our generous proposal.”
The judge’s eyes shift in our direction and I try to sound as respectful as I can when I say, “Our client did not kill Ms. Concepcion and he is unwilling to say that he did.”
“Does the revelation that he is the father of the victim’s unborn child cause him to reconsider?” Judges watch the news just like the rest of us.
“That fact has nothing to do with the identification of Ms. Concepcion’s killer,” I say.
Ignatius Tsang is one of the most intelligent judges on the San Francisco bench–smart enough to know that presiding over the murder trial of an accused priest is likely to turn into a quagmire that will do little to enhance his reputation. His stoic expression transforms into a pronounced scowl when he says, “It’s been suggested it provides your client with a motive.”
“That suggestion is mistaken,” I say.
He shoots a glance toward Ward which indicates he’s thinking, “I tried,” then he turns back to me and says, “I take it you and Ms. Fernandez are still representing Father Aguirre?” He’s still a prosecutor at heart–he’s going to ask leading questions in a manner that elicits the answers he wants to hear.
“Yes, Your Honor,” I say.
He addresses Quinn and Shanahan. “I have reviewed your papers and I understand you wish to withdraw as counsel of record.”
Shanahan elects himself as spokesman. “That’s correct, Your Honor. We have a conflict of interest.”
“Didn’t you have
the same conflict on Friday?”
“No, Your Honor.” He says the situation changed when Lita Concepcion advised him that she was going to file a civil lawsuit naming Ramon and the archdiocese as co-defendants.
“I would think your interests line up with Father Aguirre’s.”
“In this case,” Shanahan says, “circumstances may require us to take positions that are adverse to Father Aguirre’s interests.”
“In other words,” the judge says, “you may want to cut a deal in the civil case that would implicate Father Aguirre.”
Shanahan starts to tap dance. “We hope that situation will not arise.”
“But it might.”
“If it does, it would place us in the untenable position of having to represent clients with adverse interests.”
“And the DNA test indicating the defendant was the father of Ms. Concepcion’s baby and the attendant publicity had nothing to do with your decision?”
He isn’t making this easy for them.
“No, Your Honor,” Shanahan says.
“And you believe the situation has changed so precipitously since Friday that you are no longer in a position to provide adequate representation to Father Aguirre?”
“The Rules of Professional Conduct don’t allow it, Your Honor.”
Judge Tsang exhales heavily and says, “I find it very troubling that you would withdraw on the day of a preliminary hearing.”
“We have no choice, Your Honor.”
“Yes, you do. You can refer the civil matter to another firm and continue as counsel for Father Aguirre.”
This would require Shanahan to do the unthinkable–to let another firm handle a major matter for the archdiocese. He’d rather remove his internal organs with his bare hands. He starts dancing faster. “Your Honor,” he insists, “the archdiocese is already a client of our firm.”
“So is Father Aguirre.”
“Nevertheless, we may obtain confidential information that could require us to take positions that are adverse to the interests of the archdiocese.”
“That problem will go away if you refer the case to somebody else.”
Quinn interjects, “The archbishop would like Mr. Shanahan’s firm to act on behalf of the archdiocese.”
“I’m sympathetic, but I’m troubled that Mr. Shanahan is prepared to do so at Father Aguirre’s expense.”
“We have no choice, Your Honor.”
Shanahan adds, “I agree with Father Quinn.”
He always does.
I keep my mouth shut as the stately judge lambasts them, but when it becomes apparent that Quinn and Shanahan aren’t going to cave, he turns to Ward and says, “Do you have any objection to this change in Father Aguirre’s representation?”
She’s thrilled. Shanahan and Quinn have enough resources to turn this case into a circus. Ward summons her best solemn tone when she says, “No, Your Honor.”
The judge turns to me and says, “Do you or your client have any objections, Mr. Daley?”
It would be bad form to appear ecstatic. “No, Your Honor.”
He turns back to Shanahan and Quinn and says, “You’re off the case, gentlemen.”
Shanahan can’t contain a smirk. “Thank you, Your Honor.”
Judge Tsang takes off his glasses and places them on the desk in front of him. He points a finger at Shanahan and says, “Let me give you some free legal advice.”
The smile disappears. “Yes, Your Honor?”
“I’m going to contact the judge who is assigned to the civil case. I intend to inform him or her that you have obtained privileged and confidential information with respect to Father Aguirre and you should therefore be disqualified from representing the archdiocese.”
The color leaves Shanahan’s face. “But Your Honor–”
“You can’t have it both ways, Mr. Shanahan. This court does not approve of lawyers who abandon criminal defendants in order to handle more lucrative civil work.”
Shanahan is watching a potential seven-figure fee go out the window. “We’ve researched this question,” he says, “and we believe no such conflict exists.”
“I believe it does, and I’m the one wearing the robes. I think you should consider your next step carefully before you embarrass your firm and yourself.”
Looks like the all-nighter pulled by one of Shanahan’s associates to research this issue is going to waste. “Yes, Your Honor,” Shanahan says. He holds up a thin hand and says, “There is another issue we’d like to discuss. Father Quinn and I were served with subpoenas to be called as witnesses in Father Aguirre’s case. So was my partner, Dennis Peterson, as well as Archbishop Albert Keane.”
“So?”
“We believe the aforementioned individuals should not be compelled to testify.”
It isn’t a good idea to use legalistic words like “aforementioned” when addressing a smart judge like Ignatius Tsang, who isn’t going to be impressed by Shanahan’s vocabulary.
The judge’s annoyance is starting to grow. “On what grounds?” he asks.
“We may be asked to reveal privileged and confidential information about his case.”
Judge Tsang listens to Shanahan drone on for a moment before he stops him. “We just decided you’re no longer representing Father Aguirre,” he says. “There is no reason to prevent you from testifying.”
“You’re putting us into the unfathomable position of compelling us to reveal privileged information.”
“You can ask for a protective order.”
“It isn’t good enough.”
The judge gives us equal time. “How do you feel about this, Mr. Daley?”
“We have no intention of asking Father Quinn or Mr. Shanahan about any matters that may be subject to the attorney-client privilege,” I say. “We plan to ask them about their contact with the victim on the night she died. That information has nothing to do with Father Aguirre, but it has everything to do with them. They can’t withdraw from representation and then expect to be immune from questioning.”
Shanahan’s face is red. “This is highly irregular,” he says.
The judge snaps right back. “It’s even more irregular for counsel to withdraw on the day of a preliminary hearing.”
“Surely you can’t expect Mr. Peterson to testify. He was the victim’s opposing counsel in the O’Connell case.”
I interject, “We aren’t planning to ask any questions about that case.”
“Why do you need to call him as a witness?” the judge asks.
“He was one of the last people who spoke to Ms. Concepcion on the night she died. He was married to her and he may be able to provide information concerning her state of mind.”
“How would that be relevant?”
“He may be able to help us prove Ms. Concepcion committed suicide.”
Shanahan is becoming more animated. “Mr. Peterson isn’t a therapist.”
“No,” I say, “but he knew his ex-wife better than anybody else did.”
“There are no legal grounds to compel him to testify.”
“There are none for him to avoid it, either.”
The judge makes the call. “I don’t see any legal justification for concluding that Father Quinn, Mr. Shanahan and Mr. Peterson should not testify,” he says. “I am therefore ruling that they will do so, subject to the caveat that they may seek appropriate relief if they believe they are being asked to reveal confidential and/or privileged information.”
Shanahan is livid. “But Your Honor—” he says.
“I’ve ruled, Mr. Shanahan. In addition, I see no legal justification for concluding that Archbishop Keane should not be required to testify, either.”
It’s a slap in the face to Quinn, who has let Shanahan do the talking until now. “Your Honor,” Quinn says, “it is unfair to call upon the archbishop to testify as to legal matters involving the archdiocese. The information is privileged.”
Not to mention the fact that it could turn into a public relations nightma
re and cost Quinn his job. “Your Honor,” I say, “we are cognizant of the sensitivity of the issues that could arise by calling Archbishop Keane to testify, but no legal basis exists to conclude that he should be exempt.” Now I’m really trying to tweak Quinn.
Quinn’s voice starts to rise. “Your Honor,” he says, “Archbishop Keane has no information that is relevant to Father Aguirre’s case.”
How the hell do you know? “Not true,” I say. “He’s been involved in preparations for the O’Connell case and he was present during settlement discussions with Ms. Concepcion.”
MD05 - The Confession Page 24
