by Michael Nava
“She never told him,” he said. “But you know Angelito is a very intelligent boy who does not tell everything he knows.”
“I can’t let her go to prison to protect this thug. She’s innocent.”
He regarded me gravely. “I agree with you. I tried to convince her to tell you the truth, but she is afraid that you would make her tell the police Butch killed Peter, and Butch would hurt Angel.”
“You said yourself he is an evil man. He has to be stopped. I can protect Angel and Vicky.”
“She will not tell the police about Butch.”
“Then I’ll have a find a way so that she doesn’t have to.”
“You can do that?”
“I can try,” I said.
As I drove to the jail to confront Vicky, I began to formulate a plan. The young cop at reception was surprised to see me without Angel, and so was Vicky when they brought her into the interview room. We sat down. I launched into it, to catch her off guard.
“I know Butch killed Pete. I’m not going let you take the rap for him.”
“Butch? No, I did it.”
“Stop it, Vicky. Ortega told me and he told me why. You think you’re going to prison to protect Angel? No, you’re protecting Butch. Is that what you want? For the man who killed your husband to go free to kill again?”
“You don’t know what he’s like,” she said fearfully.
“I do know what he’s like,” I said. “He came to Pete’s funeral.”
I described how Butch had desecrated Pete’s body and then showed up at the burial. She lowered her head as if to ward off blows.
“Animal,” she said with quiet fury.
“That’s what your Aunt Mary said,” I replied. “I think she and Socorro knew that Butch was behind it. I also think they knew he’s the person who attacked Jesusita. You know that, too, don’t you?”
“Yes,” she whispered. “When you told me about Jesusita, I knew it was Butch.”
“That’s how he found out where you and Pete and Angel were staying.”
“She only told him because he beat her up.”
“He put her in a coma. Don’t you see, Vicky? He’s psycho. You can’t protect Angel from him by going to prison, because sooner or later Butch will figure out what I figured out—you told Angel that Butch killed Pete.”
“How did you know?”
“Because you love him too much to let him grow up thinking that his mother killed the man he believes is his father.”
“I know it was wrong to tell him,” she said, her eyes filling. “He’s already been through so much.”
“Butch will come looking for him. You won’t be able to help me protect him if you’re in prison, but you and I and Elena can make sure nothing happens to Angelito.”
She wiped away the tears and nodded. “Tell me what to do.”
“What really happened that night?”
“It’s a long story, Uncle.”
“I’ve been waiting a long time to hear it.”
“I was in San Francisco waiting for Pete to get out of jail. Jesusita called me and told me that Butch had come back from Mexico and found out that Pete was still alive. They tried to kill him in prison.”
“I know. His P.D. told me they shanked him in the yard.”
“Jesusita called to warn me that Butch knew where I was living, but it was too late. He found me and beat me.”
“Why?”
“It was a warning, to Pete,” she said. “I went to the shelter, but when they told me to leave, I knew I had to go somewhere where Butch couldn’t find me. I never told anyone that I had my mom’s address, so I went there.”
“Until Pete was released,” I guessed. “Then you rejoined him.”
She nodded. “Miss Yee, she got him in witness protection and they sent him to this town. Turlock. He called his mom and told her where he was and she told me.”
I remembered the bus tickets I had found at the motel. “Why did you come back to L.A.?”
“We didn’t know no one in Turlock. Pete got depressed and started using again. He lost the job they got him and we ran out of money. I was afraid he would start stealing again to support his habit, and go back to jail. I didn’t want to come back to L.A. because of Butch, but we didn’t have nowhere else to go. To be safe, we split up. Pete went to his mom’s. I took Angel and we found you.”
“Then what happened?”
“Jesusita told Pete she would borrow some money on her house and give it to us to go away. That’s what we were waiting for when Butch came.” She bit her lip. “Jesusita was the only one who knew where we were. It’s my fault Butch hurt her.”
“What happened when he came to the motel?”
“Pete was spending all our money on drugs. They were going to evict us. We were fighting all day. He hit me. He never hit me before. But Pete was different than before. He was so scared all the time that he bought a gun. I was afraid of what was happening to him. That night, after he hit me, I told Angel to go wait in the car and I started to pack. This time I was going to leave him for real and go back to my mom. Pete started crying and begging me to give him another chance.” She shook her head. “I told him I had had it, that when we got the money from his mom, he’d just shoot it up. Someone knocked at the door. I thought it was the manager because we were so loud, but it was Butch. The next I knew, Pete grabbed his gun and started shooting. Butch started shooting back. I got down on the floor and covered my ears. Butch jumped Pete and knocked the gun out of his hand. Then he made him get on his knees. Pete was begging for his life. Butch shot him. It happened so fast I didn’t even have time to scream.”
“Where was Angel?”
“I don’t know. Butch dragged me around the floor by my hair.” She winced at the memory. “He was calling me names and slapping me around. He dragged me over to Pete and said, ‘Bitch, this is what happens to snitches.’ He told me if I went to the cops, he would come back and make me watch him kill Angel before he killed me. I swore I wouldn’t tell anyone if he would leave us alone. He said he would be watching me. Then he raped me.”
“God.”
“He came on my face, to humiliate me. Then he left. I wiped him off, and then the next thing I remember is the police and the ambulance.”
“What did you wipe your face with?”
She looked at me as if I were crazy. “What?”
“This could be important.”
“A T-shirt or something. I don’t remember exactly.”
“Ortega told me something else. He told me that Angel is Butch’s son. Is that true?”
“Yes,” she said. “I met him and Pete at a party when I was seventeen. They were close, like brothers. Pete got picked up on some warrant and had to go to jail. Butch said he would take care of me.”
“Ortega said he pimped you.”
“That’s when I learned what he was really like.”
“Did he rape you back then, too?”
She shook her head. “I thought he loved me. I was only nineteen. I was stupid. I was stupid about Butch and Pete. The only good thing I ever got out of either of them was my Angel.” She looked at me, alarmed. “You have to swear you won’t tell Angel who his dad is.”
“That’s between you and him.”
“You think I’m a bad mother.”
“I think you’ve done everything you can to protect him,” I said. “Now I’m asking you to let me help.”
She was silent a moment. “Remember when you said I didn’t like you?”
“That doesn’t matter as long as you can trust me.”
“Pete was a joto.”
I stared at her. “Pete was a homosexual?”
She nodded. “His mom knew. She tried to tell me when Pete and me moved in with her, but I was young, I didn’t understand. One night, he came home late. I heard his car in the driveway, but he didn’t come inside for a long time. I went to see if he was okay. There was another man in the car and Pete’s head was in his lap doing—you know. Pet
e swore that was the first time and begged me not to tell anyone. I never did, but I know there was other times, other guys. I thought you must be like Pete because you’re gay, too.”
“Like Pete how?”
“Weak. But you’re not. You’re a man.”
I accepted the oblique apology. What she had told me explained much of her antagonism toward me, but I knew there were other things that divided us, basic differences in temperament. Maybe we could work them out over time. Maybe not.
“I’m going to try to do something in court on Friday to get the charge against you dismissed without you having to roll on Butch, but someday you may have to testify against him. Are you willing to do that?”
“I’ll do whatever you tell me to,” she said simply.
“All right, Mr. Rios,” Judge Ryan said. “You convened this little meeting. What do you want to talk about?”
She spoke lightly, but with an undertone of judicial annoyance. She had expected to be on the bench conducting Vicky’s sentencing hearing. Instead, I had corralled Kim Pearsall as soon as he had entered the courtroom and asked Ryan’s clerk if we could speak to the judge in chambers. As she gazed at me over her half-glasses, I could hear the ticking of her patience.
“Your Honor, I want to make a motion to withdraw the plea.”
Pearsall exclaimed, “What!”
She lifted a restraining hand toward him and said to me, “Henry, this had better be good.”
“If I can just explain.”
“You do that.”
For the next half-hour, I laid it all out for them, from Pete’s decision to roll on Butch and his gang to the shooting in the motel and Butch’s threat. I told them that Morgan Yee was in her office in San Francisco ready to corroborate my account of Pete’s plea and its consequences. I showed them an incident report from San Quentin about the prison stabbing, provided them with the name of the agent in witness protection who had arranged to move Pete to the central valley. I told them that I had gone through the suitcase from the motel and found a sweater with blood and semen stains that I had sent out for preliminary DNA analysis and that I expected the semen sample would yield Narciso Trujillo’s DNA. I showed an affidavit from Socorro Cerda recounting the events at the cemetery and the attack on her mother.
“So let me understand,” Judge Ryan said when I finished. “You want to withdraw the plea and go to trial with this new evidence.” She glanced at Pearsall. “Based on his offer of proof, counsel, you’re going to have a hard time convicting.”
“I can’t present this evidence at trial,” I said.
Ryan raised an eyebrow. “You have evidence exonerating your client, but you won’t put it on?”
“Judge, this evidence is not sufficient by itself to prove that Butch killed Pete. My niece would have to testify, and I can’t let her do that while Butch remains at large.”
“She fears retaliation?”
“Exactly.”
The judge tapped a manicured finger on her desk. “Then what do you propose to do, Mr. Rios?”
“Your Honor, I’d like you to grant the defendant’s motion to withdraw her plea and then suppress her confession.” I turned to Pearsall. “You don’t have a case without the confession. You announce that you’re unable to proceed for lack of evidence, and then Judge Ryan dismisses the charges.”
“Dude, that’s crazy,” he said, forgetting in his excitement where he was.
“Whatever that means,” Ryan said. “I think I agree. A dismissal under those circumstances is not an acquittal. Why would you want that?”
“It’s the only way to get her out of jail and to get the cops to reopen the investigation and catch Butch.” I pushed the pile of documents at Pearsall. “I’m practically making your case for you.”
“What if it turns out you’re just feeding me a line? Your client gets a walk.”
“No,” I said. “A dismissal for lack of evidence before trial doesn’t create double jeopardy, and there’s no statute of limitations on murder. You can refile on Vicky at any time, with the original second-degree murder count or any other charge you think you can prove. Am I right, Your Honor?”
She mulled it over. “Yes, he’s right, Mr. Pearsall. If I let her withdraw her plea, you’re not bound by the plea bargain if you decide to recharge her later.” She looked at me. “And you’d risk that?”
“She didn’t kill him, Judge.”
Pearsall said, “His client confessed. All this stuff”—he brushed the documents—“this is circumstantial. If you suppress her confession and dismiss the case, and then it turns out she did kill the dude, even if I can refile against her, I won’t have her confession, and that’s my best evidence.”
“If you refile the charge, the next judge won’t be bound by Judge Ryan’s ruling and you can try to get the confession in,” I said. “Plus, even if you can’t use it in your case-in-chief, you’d still be able to impeach her with it if she testified.”
“Very clever,” Ryan said. “You’ve covered all the angles, Mr. Rios, except one. What if the police can’t build a case against this other suspect except with your client’s testimony? If she refuses to testify, he’ll get away with murder.”
“Butch has got two outstanding arrest warrants as it is, and a rap sheet for serious and violent felonies a mile long. It’s just a matter of time before he’s picked up for something, and next time he’s convicted of any felony, he’ll go to prison for life under Three Strikes. If you want to tack on this murder charge at that point, I’ll persuade Vicky to testify. He’s not going to get away with anything.”
“If you expect me to stick my neck out on this case,” Judge Ryan said, “I want to hear from your client what happened that night. No offense, Mr. Rios, but you are her uncle. You may be too close. I want to judge her credibility myself.”
“Off the record?” I asked.
“I won’t request the reporter, if that’s what you mean,” she said, “but I will make her take the oath, and if I think she’s lying, she’s not the only one who’s going to be in trouble, Henry. You’ll be facing a contempt charge. Understand?”
“I understand, Your Honor.”
“Fine,” the judge said. She buzzed the clerk and told her to have the bailiff bring Vicky in.
“In the matter of People versus Trujillo,” Judge Ryan said from the bench, “the defendant’s motion to withdraw her plea is granted. I also grant defendant’s motion to suppress her confession based on a violation of her Miranda rights during the initial police interrogation. I base that decision on the transcript of the interrogation. Mr. Pearsall, are the People ready to proceed to trial?”
“Not at this time, Your Honor. Without the statement, the People are unable to proceed due to lack of evidence.”
“In that case,” the judge said, “I will dismiss the charges in the interests of justice pursuant to Penal Code section thirteen-eighty-two. I add for the record the following: This dismissal does not constitute double jeopardy, and if the People develop further evidence against the defendant, they are free to refile the original charge of second-degree murder or any other charge they believe the evidence will support. Do you understand that, Mrs. Trujillo? This is not a factual finding of innocence. The People could refile charges if they find other evidence against you.”
“Yes, Your Honor,” she said.
“With that understanding, then, the charges are dismissed. The defendant is ordered to be released forthwith. We’re adjourned.”
20.
THE SECRETARY IN CHARGE of the appointment of judges occupied a small corner office in the state capitol building in Sacramento. From his windows, a wedge of the verdant park that surrounded the building was visible. It was October and the grass was littered with red and yellow leaves. The secretary was a beetle-browed man named Ben Cohan, who had exchanged his partnership in a big L.A. firm for this unimposing cubicle because, along with his view of the park, the office had one other advantage. His next-door neighbor was the gover
nor. Cohan was also undoubtedly aware that his immediate predecessor in this office now sat on the state supreme court.
“So, Henry,” he said. “Your application was very impressive. You also have quite a friend in Inez Montoya. There are a couple of questions I have to ask. You know the governor doesn’t have a litmus test on any issue, but he does want to know whether his judicial appointments can carry out the law, particularly the death penalty.”
Inez had warned me this question would be asked, but to her credit didn’t try to prompt me with the politically correct answer.
“The death penalty is immoral.”
Cohen gave a look of annoyance, as if we were actors on stage together and I’d flubbed my line. “But constitutional.”
“Yes, it’s constitutional.”
“You realize as a trial court judge you have to accept the U.S. Supreme Court’s conclusion about the constitutionality of the death penalty.”
“I learned about stare decisis in my first year at law school,” I said.
“Would your personal feelings prevent you from imposing the death penalty if a jury came back with it?”
“I took an oath to uphold the law when I became a lawyer. I knew when I swore that oath there would be times I couldn’t square what the law requires with my personal beliefs. That’s the deal I made twenty-five years ago. I’ve tried very hard to keep up my end.”
He tapped a pencil on a stack of folders. “Everyone knows how strongly the governor feels about the death penalty. Most of the people who’ve sat in your chair tripped all over themselves to assure me they’re pro-death, because they think that’s what I want to hear.”
“I’m not someone who tells people what they necessarily want to hear,” I replied. “I would think that would be a virtue in a judge.”
He opened the top folder and skimmed a couple of pages. “This is your application,” he said. “Very eloquent, but a little ambivalent, too. Why do you want to be a judge, Henry?”
“I’d be good at it,” I said.
He smiled. “That’s it? You want the job because you’re qualified?”
“Isn’t that enough?”
He closed the folder. “In a perfect world. In this world, you’re going to get the job because you have a Spanish surname, a powerful politician friend and you’re gay.” He laughed. “Your candor is contagious, Henry. I better keep you away from Joe.” Joe Rafferty, a.k.a. the governor. “Would you still take the job on those terms?”
