by Michael Nava
“You can do that through the testimony of the other members of the organization.”
“All of whom are gay or lesbian, some of them with criminal records arising from their arrests for acts of civil disobedience. The prosecutor will claim they’re biased or lying. My client, who admittedly planted the bombs, would be even easier to attack as lying to save his own skin.”
“What about the issue of officer safety that Mr. Novotny raised? If the group discovers someone in their midst is a police officer, they could turn on him.”
“No one in QUEER has seen him since the bombing. Unless he’s working undercover somewhere else, there is no threat to his safety. The cops are perfectly capable of taking care of their own.”
“Well, maybe that’s the first thing we need to determine,” he said. “Whether this man is still undercover. Let’s find out.”
••••
“Back on the record,” Mayeda said, after he’d seated himself on the dais. “Mr. Novotny, you suggested the officer’s safety would be compromised if I granted the defense motion. We need to explore that further.”
Novotny got to his feet and said, uncomfortably, “Yes, Your Honor.”
“Is Officer Saav— uh, Sumaya, currently working in an undercover capacity?”
Novotny’s hands tensed almost, but not quite, into fists. “I can’t answer that, Judge.”
Mayeda blinked in surprise. “Is that because you don’t know or because you won’t?”
“I am not at liberty to say anything about this officer, including his current assignment.”
“We could go into chambers,” Mayeda suggested.
“I’m sorry,” Novotny replied. “I would still be unable to answer your question.”
“Then why should I believe that granting the motion puts the officer in danger?” Mayeda asked impatiently.
“I make that representation as an officer of the court.”
“I don’t doubt your integrity, Mr. Novotny, but that is not good enough,” Mayeda said. “The defense’s offer of proof was quite persuasive. I’m inclined to grant the motion unless you can convince me that doing so would, in fact, compromise the officer’s personal safety.”
Novotny took a deep breath and exhaled. “I’d like to put this over until Monday to give me time to consult with my office and the police department.”
I got to my feet. “I object to any delay. Mr. Novotny had more than enough time to talk to whoever he needed to talk to before today’s hearing.”
Mayeda said, “This is an important issue, counsel. I don’t think giving Mr. Novotny a few more days is going to prejudice the defense. But, Mr. Novotny, on Monday I will expect better answers to my questions.”
“Yes, Your Honor.”
“This matter is put over to Monday morning. We’re in recess.”
Outside the courtroom I asked Novotny, “What’s going on, Ralph?”
He shook his head wearily. “You really stirred the shit this time, Henry.”
“Make me a reasonable offer and all this could go away.”
“Any offer would have to be made by someone way above my pay grade,” he said. “But I’ll let them know.”
He started to walk away.
“Tell your bosses I want the murder charge dropped,” I called after him.
He waved his hand over his shoulder in what could have been either a gesture of dismissal or understanding.
FOURTEEN
High Power’s attorney conference room was in use, so the sheriffs cleared the barber shop just outside the unit, handcuffed Theo to the barber chair, and left us to it. Theo took in his surroundings with a grin, spun in the chair and pointed to a jar of blue liquid on the counter.
“Barbicide,” he said. “Is that what barbers drink to kill themselves?”
“I’m pretty sure it’s disinfectant. How are you holding up?”
The grin became a tentative smile. “Uh, I’m actually . . . fine.”
His jailhouse pallor was unmistakable, but his eyes were clear and beneath the jumpsuit he looked remarkably fit.
When I commented on that, he continued, “I exercise when I’m bored. Sit-ups, push-ups, isometrics. I only eat half the crap they serve us, so I won’t get fat. My mom comes to see me almost every day. I get a lot of mail from gay guys who think I’m some kind of hero. I’m completely clean for the first time in my life. I’m reading and doing some writing, too. Telling my story. Maybe if I tell it, it will help some closeted kid make better decisions than I did. Anyway, except for the being locked-up part, I’m really okay, Henry.”
His account was unusual, but not unheard of. I’d had a few other clients whose lives on the outside had been so chaotic and desperate that the regimentation of life in custody had given them structure and with it a certain measure of serenity and even purpose. Of course, it was early days for Theo. He might not feel so positive if he got handed a life sentence without possibility of parole. Or death.
“How’s your health? Any changes?”
He shook his head. “Not so far.”
“Good. I have some news for you, Theo. Freddy Saavedra is an undercover cop named Alfredo Sumaya.”
“What!”
I gave him the complete story and showed him the photographs of Saavedra that Bruce Lindell had taken at the airport.
“Holy shit!” he exclaimed, looking at the pictures. “A cop.” He handed them back to me. “Is this good for me?”
“It is,” I said, and laid out the entrapment defense, though cautioning him that it was, by no means, a slam dunk. “The thing is,” I concluded, “if this is our defense, you’ll have to testify because you are the only one who can tell the jury how Saavedra induced you to participate in the bombing.”
“Okay,” he said. “What’s the problem?”
“Once I put you on the stand, the DA gets a crack at you. He’ll go for broke. He’ll try to bring out everything he can about your past to discredit you.”
“Like that I was a drug addict? That I did porn and escorted?”
“Yes,” I said. “All that. If you really had a jury of your peers made up of other gay people, none of those things would be particularly shocking to them or discrediting to you, but we’re going to be dealing with straight people. We can try to minimize the impact by bringing that stuff out on direct and relating it to how you were thrown out of your family as a teenager and had to make your own way.”
“What about me being HIV positive?”
“I won’t ask about that if you don’t want me to.”
“No,” he said. “You have to. I want the jury to know because it was after I found out that my life fell apart. When I really starting drinking and using, when I got so angry and ashamed and scared. Freddy used that against me.”
“All right, maybe the jury should hear about your status.” I paused. “I know they’ll want to hear remorse.”
“That I’m sorry for killing that man? I am sorry. I am.” He sighed. “I never meant to hurt anyone. I don’t even know what he looked like.”
I dug through the photographs and found an image of Daniel Herron talking to a couple of older men on the steps of the church. I handed it to Theo. “He’s the man on the right.”
Theo held the photograph up. “He’s a nice-looking man. Was he married? Did he have kids?”
“Married,” I said. “He and his wife didn’t have children.”
Theo didn’t need to know about Herron’s other family; even the dead are entitled to their privacy.
With a quizzical expression, Theo continued to examine the photograph.
“That’s the guy,” he said, finally.
“What guy?”
“The old guy on the left? That’s the guy who was with the security guard who busted me and Freddy when we went to scout the church the Sunday before we planted the bombs. Who is he?”
I took the photograph and looked at the tall, thin, craggy-faced, white-haired man listening to Herron with a sour expression.
“No idea,” I said, slipping the photograph back into my folder, “but I’ll have Freeman track him down to testify he saw Freddy at the church that day.”
••••
When I got back to the office from the jail, Emma handed me three message slips that she’d paper-clipped together.
“What’s this?”
“Someone who wants to talk to you very, very badly,” she replied.
I looked at the name. Marc Unger.
••••
The New York Company was a gay bar and restaurant close to the rambling Spanish Mission house Marc shared with his lover, a corporate lawyer named Jacob Miranda, at the crest of a hilly street above the Silverlake reservoir. I’d been to their house for a couple of dinners and while I liked them, they and their crowd were seriously committed drinkers, so I’d politely declined further invitations. Marc was at a corner table exchanging an empty glass for a full one from the handsome, hovering waiter. The waiter’s face and the back of Marc’s head were reflected in the smoked mirror wall that, along with the tiny pink-lensed follow spots, gave the place a theatrical appearance.
“Marc.” I pulled out the barstool and joined him.
He looked up, his eyes heavy-lidded, the smell of expensive booze coming off his breath. He was still wearing his suit, a gray chalk stripe, but he’d loosened the burgundy tie and unbuttoned his top collar button to reveal a tuft of graying chest hair. “You want a drink?”
“I’m fine.”
“Oh, right, you don’t drink,” he remembered. He touched his glass. “This won’t bother you?”
“My problem is my drinking, not yours. You wanted to talk to me about the Latour case. What’s the city’s interest in a criminal case?”
“The same as always,” he said, wearily. “Saving the department’s bacon. The DA passed along your discovery request for Officer Sumaya. The department is not inclined to give you the information you want.”
“I’m pretty sure that’s not going to fly with Judge Mayeda. Is the department prepared to defy a court order?”
“I’m here to avoid a standoff.” He tasted his drink. “What kind of plea are you looking for?”
“Wait,” I said, startled. “You’re the city attorney, not the district attorney. You don’t have any authority to deal a criminal case.”
He rolled his eyes. “Remember what I did with that case in Santa Monica that you were on? I have the authority to do whatever I need to do on behalf of the department to make this go away.”
“That was a misdemeanor prosecution,” I reminded him. “This is a capital murder case.”
“What do you want,” he asked irritably, “a note from my mom? You want a deal or not?”
“The fact that you’re even offering me one is an admission that Sumaya infiltrated QUEER as an agent provocateur and goaded my client into participating in the bombing.”
“It’s not an admission of anything,” he said, flatly. “There will be no admission of any wrongdoing by the department. That’s the price of your deal.”
He looked tired and half-drunk. I had a feeling this wasn’t an easy assignment for him.
“This bothers you, doesn’t it?” I asked. “It should. Your client stage-managed a violent attack on a church to swing votes to pass the quarantine initiative by painting gay people as terrorists.”
He emptied his drink, held up the glass. The waiter materialized, and Marc grunted, “Same.” When he left, Marc said, “The last time I looked the initiative was running behind by three points. Anyway, the sooner your case is resolved, the faster it drops off the public’s radar.”
“Answer me one question: Did Sumaya know Daniel Herron was going to be at the church when he blew it up?”
“I’m not here to answer any questions. I’m here to settle the case. What do you want?”
The waiter returned, depositing Marc’s drink, and looked at me. I shook my head. He left.
“He’ll plead to voluntary manslaughter. All the other charges are dismissed.”
He stared at me disbelievingly. “Voluntary manslaughter? Three to eleven years for what he did? Are you crazy?”
“What he was entrapped to do.”
“That’s his story,” Marc snapped. “Maybe we’ll let Sumaya testify and tell a different story. Who do you think the jury will believe?”
“Let’s see, an undercover cop with a background in explosives who was assigned to infiltrate a nonviolent organization and foment violence and who planned and participated in a church bombing that killed an innocent man. That story? The one I’ll force out of him on what I promise will be a long, tough cross-examination.”
Marc grumbled, “I can’t sell manslaughter. He has to plead to murder.”
“I’m listening.”
“Second-degree murder, fifteen to life. He’d be eligible for parole in as little as five years.”
I hadn’t expected Marc to agree to manslaughter. Given the publicity surrounding the crime, I figured the DA would need to cover himself by being able to throw around the words “murder” and “life sentence” when, inevitably, people questioned why the case had pled out. He’d have to hope most people didn’t look too closely at what he had given up— not only the death penalty or LWOP but even a first-degree murder conviction, which would have carried a minimum sentence of twenty-five years. It was a good deal, the best deal I could have expected. Marc wouldn’t be offering it unless whoever he was answering to believed there was a real possibility of an acquittal if I got their cop on the stand.
And that was my dilemma. If I went to trial, maybe I could get an acquittal, but juries are notoriously unpredictable. I’d met Freddy Saavedra, but not Officer Alfredo Sumaya. As Sumaya, he might clean up nicely and present well to the jury. Also, I only had Theo’s side of the story, and it is a truth universally acknowledged that all criminal defendants lie to their lawyers about something. I didn’t know if Sumaya would reveal details of his relationship with Theo that Theo had lied to me about that would complicate the entrapment defense.
Then there was the near certainty that some jurors, no matter what they said on voir dire, would be biased against gays. Finally, the fact remained that a man had been killed— and a clergyman at that. It was only natural that the jurors would want to see someone punished, particularly if the DA brought it as a capital case and emphasized the atrocity of the killing. I’d seen the photos of what was left of Daniel Herron’s body and could imagine the DA passing them around to the jurors as the medical examiner testified in full and disturbing detail to the manner and cause of death.
“He has to serve his sentence in Vacaville.”
“The prison hospital?” Marc asked, puzzled.
“He’s HIV-positive, Marc.”
“Jesus,” he muttered. “You know placement’s up to the Department of Corrections.”
“If the judge recommends confinement at Vacaville and the DA concurs because of Freddy’s status Corrections won’t fight it,” I said. “It’s in the department’s interests to have HIV-positive inmates in one place where they can be cared for and monitored.”
He smirked. “You mean they should be quarantined?”
“They’re already confined, Marc. It’s not the same thing at all. Right now, those inmates are scattered through a system that doesn’t even provide condoms—”
“Because butt sex is strictly prohibited in prison,” he interjected.
“—much less appropriate medical care,” I concluded.
“Write a letter to the editor. Do we have a deal?”
“I need to sell it to my client.”
“It’s a fucking gift and you know it,” he growled.
“I don’t imagine he’ll object.”
He nodded. “How did you figure out Sumaya was undercover?”
“That’s privileged. How long before the bombing did you know he was working undercover in QUEER?”
“Privileged.”
“Have the cops infiltrated ot
her gay organizations?”
“Also privileged.”
“So that’s a yes. You’re all right with this, Marc? The cops going into our community and trying to discredit the organizations fighting AIDS when no one else gives a shit? You’re good with that?”
“Fuck you, Henry. Would you rather have me keeping an eye on the cops or some straight guy who’d sign off on whatever shit they wanted to pull?’
I had to give him that. Marc wasn’t closeted or self-loathing or reactionary; he was an out gay man, active in the community and politically progressive. He might not be much of a watchdog on the cops but better any kind of watchdog than a lapdog.
“Point taken,” I said.
He sighed. “I really wish you drank so we could get drunk together.”
I smiled. “You’re doing fine without me. You need a lift home?”
“Jacob can come and pour me into his car.”
“Give him my regards.”
“He wants you to come to dinner. He has a doctor he wants to set you up with. A brain surgeon, no less.”
“I’m dating someone,” I said.
Marc’s eyes widened. “What? You’ve been holding out on me.”
“We just dealt a capital case. My love life didn’t seem relevant.”
“I have to meet the guy who took you away from me. Come to dinner anyway and bring him. Jacob will call.”
“Sure. Good-night, Marc.”
I stopped at the entrance, glanced back, and saw him order another drink.
••••
“It’s a good deal,” I said to Theo and his mother.
“But,” she said, “my boy didn’t mean to kill anyone.”
The three of us sat in the attorney conference room. I’d received special permission to include her in the meeting. It was remarkable how cooperative everyone had become after my conversation with Marc Unger.
I was about to explain to her the felony-murder rule when Theo said, “It’s okay, Ma. Henry’s right. I planted the bombs at the church, even if I didn’t know anyone was there. I didn’t make sure the place was empty. I deserve to be punished for that, and fifteen to life is better than death.”
