MD07 - Perfect Alibi

by Sheldon Siegel

  “Do you have any better ideas?”

  “At the moment, no. And if that doesn’t work?”

  “Grace will testify that she was with Bobby the entire time and that he didn’t go inside his father’s house.”

  # # #

  My cell phone rings again as I’m trudging up the stairs to my apartment at three twenty on Wednesday morning. “We need to talk,” Roosevelt says.

  I fumble with the key to my apartment and let myself in. I flip on the light and set my briefcase down. “What now?” I ask.

  “Meet me in the parking lot of the McDonald’s in the Haight right away. Brian Hannah is dead.”

  40/ ARE YOU PLANNING TO PRESS CHARGES?

  Wednesday, June 22, 3:58 a.m.

  “Over here, Mike,” Roosevelt says.

  He’s gesturing to me from behind the yellow crime-scene tape strewn across the McDonald’s parking lot on the corner of Haight and Stanyan. Ronald McDonald encountered fierce resistance from the neighbors when plans for the fast food emporium were announced thirty years ago. The corporate suits ultimately wore them down. The Golden Arches still appear hopelessly out of place smack-dab in the middle of what was the epicenter of the Summer of Love. Four black-and-whites and a van from Rod Beckert’s office are parked near the drive-thru. The blinking red lights from an unneeded ambulance cut through the fog. A handful of FETs are engaged in the meticulous process of taking crime-scene photos and videos.

  “He’s dead,” Roosevelt says to me.

  “So I gathered.” A rookie assistant medical examiner is hovering over Hannah’s motionless body.

  “No Rosie tonight?” Roosevelt says.

  “It’s tough to get a babysitter at this hour.”

  “What about Pete?”

  “He’s watching Hannah’s boss.”

  “He picked the wrong guy to follow.”

  “Evidently. How did it happen?” I ask.

  “A single gunshot to the chest about an hour ago.”

  “I take it this wasn’t a suicide?”

  “Nope.”

  “Any suspects?”

  “We know who killed him.”

  What the hell? “Who?”

  He gestures toward a black Lincoln Town Car that’s parked in the corner of the lot. A tow truck bearing the Bayview Towing logo is parked a few feet away. "The owner of the Lincoln,” he says. “He lives in the neighborhood and has a bad habit of parking here overnight. Hannah had a standing order from McDonald’s to tow any car parked here after closing. He was setting the hook when the owner arrived to pick up his car for an early airport run.”

  “So he shot him?”

  “Hannah had towed his car a couple of times. They’d had words before. The driver said Hannah came after him with a tire iron. He pulled a .38 and fired in self-defense.”

  “So he says.”

  “We have a witness.”

  “Who?”

  “The security guard from McDonald’s saw the whole thing.” Roosevelt gestures toward a nearby squad car, where a uniformed rent-a-cop is sipping coffee. “You can talk to him after we get his statement.”

  “We will.” I’m not inclined to question his story. Any way you cut it, Hannah will still be dead. “Any other witnesses?” I ask.

  “Nope.”

  Perfect. “You think Savage had anything to do with this?”

  “Doubtful.”

  “Are you planning to press charges against the limo driver?”

  “Not at this time.” He reads my skeptical look. “We’re going to take him downtown and get a statement, but we have a witness.”

  # # #

  “Do you really believe the limo driver killed Hannah in self-defense?” Julie asks.

  My cell phone is pressed against my right ear as I’m standing in the doorway of Amoeba at four fifteen on Wednesday morning. Julie was my third call after Rosie and Pete. Haight Street is quiet. “The security guard saw the whole thing,” I tell her. “The DA may bring charges against the limo driver for manslaughter, but there’s no connection to Savage. We should ask for a continuance while this gets sorted out.”

  “No, we won’t.”

  “Hannah was our most promising alternative suspect. Now we can’t put him on the stand.”

  “You can still blame him. He isn’t around to defend himself.”

  That much is true. “We don’t have any evidence he was inside Jack’s house last Friday.”

  “Then find some.”

  “The prelim starts in less than six hours.”

  “You’d better get busy.”

  “I want to talk to Bobby about it.”

  “There’s nothing to talk about. Bobby didn’t kill Jack. You’re going to prove it. End of discussion.”

  Our defense is coming apart. And we’re going to war.

  41/ IS YOUR CLIENT ABLE TO PROCEED?

  Wednesday, June 22, 10:02 a.m.

  “All rise.”

  The sauna-like courtroom springs to attention as Judge McDaniel takes her seat on the bench. She pretends to ignore the packed gallery as she switches on her computer and dons her reading glasses. “Please be seated,” she says.

  The bailiff is a dignifed Asian woman who has been maintaining decorum in Judge McDaniel’s court with understated efficiency for two decades. “The People versus Robert Joseph Fairchild,” she recites.

  It always sounds serious when they use all three names.

  Bobby is sitting silently at the defense table between Rosie and me. We’ve replaced his orange jumpsuit with a navy sport jacket and a striped tie. For the time being, he looks more like a high school senior than a felon. We’ve told him to remain attentive and make eye contact with the judge. I lean over and remind him again about the importance of appearances.

  Julie and Sean are sitting behind us in the front row of the gallery. In general, potential witnesses are not permitted in court. We were able to persuade Judge McDaniel that motherhood occasionally requires some flexibility in the interpretation of courtroom procedures—even in a murder case. The same courtesy does not extend to the girlfriends of accused murderers. Grace is sequestered in the basement of the Hall under Sylvia’s watchful eye. Dr. Derek Newsom is also conspicuously absent. It would send the wrong message if the grieving widow were sitting in the gallery next to her youthful boyfriend.

  The DA’s Office has also called out the troops. McNulty is studying his notes at the prosecution table. Two glum ADAs from the felony division are unpacking exhibits. Three others fill the first row of the gallery. Roosevelt is sitting at the end of the table. As the SFPD’s designated representative on this case, he’s allowed to remain in court, even though he’s likely to be their star witness.

  There is another unexpected guest in the gallery: Robert Kidd. Our performance today is likely to serve as an impromptu audition for our next job.

  Showtime. The back of my throat constricts as Judge McDaniel taps her microphone. I still feel twinges of nervousness when the curtain is about to go up. “Mr. Daley,” she says, “I understand Mr. Fairchild was injured last night.”

  Actually, he tried to kill himself. “Yes, Your Honor.”

  “Is your client able to proceed?”

  I shoot a glance in Bobby’s direction. He swallows and responds with a determined nod. I turn back and address the judge. “Yes, Your Honor,” I say. “He welcomes the opportunity to demonstrate his innocence of these egregious charges as soon as possible.”

  “Thank you.” She pretends to study her docket. In reality, she’s taking a moment to gather her thoughts and show her unequivocal command of her courtroom. “The defendant has been charged with a violation of Penal Code Section 189: murder in the first degree. He has entered a not guilty plea. This is a preliminary hearing to determine whether there is sufficient evidence to move forward to trial.”

  That covers it.

  The judge looks up. “Any issues before we begin?”

  “Your Honor,” I say, “the defense respectfully renew
s its request for bail.”

  “And we renew our opposition,” McNulty says.

  “Duly noted,” the judge says. “Mr. Daley, as far as I can tell, nothing has changed since we last addressed this issue.”

  “Mr. Fairchild is not a flight risk or a threat to the community. We are willing to abide by reasonable restrictions. We are prepared to hire a private security firm to monitor his whereabouts twenty-four/seven.”

  “Denied.”

  “But, Your Honor—"

  “Bail is still denied, Mr. Daley.”

  We’re off to an inauspicious start. “Your Honor,” I say, “we have submitted a motion to contest the prosecution’s attempt to include a special circumstance with this charge.”

  “I will review your papers and rule in due course.”

  “But, Your Honor—"

  “I will rule in due course,” she repeats.

  Damn it. “We also wish to inform the court that a suspect named Brian Hannah was killed this morning. His testimony was critical to our case.”

  “Your Honor,” McNulty says, “there isn’t a shred of evidence connecting Mr. Hannah to Judge Fairchild’s death. He wasn’t on our witness list.”

  “He was on ours,” I say. “Mr. Hannah was in the vicinity of Judge Fairchild’s house on Friday night. We also have proof that he received a telephone call from his employer, George Savage, a convicted felon who threatened Judge Fairchild in open court several weeks ago.” It’s a blatant play to the press.

  The judge invokes a practical tone. “Mr. Daley,” she says to me, “are you prepared to proceed without Mr. Hannah’s testimony?”

  “Looks like we have no choice, Your Honor.”

  “Fine.” She turns to McNulty. “Do you wish to offer an opening statement?”

  “Yes, Your Honor.” He stands and buttons his charcoal suit jacket. He walks to the lectern, places a single note card in front of him, and adjusts the microphone. "May it please the court,” he begins, “Judge Jack Fairchild was a talented lawyer, a respected jurist, a caring husband, and a loving father whose life was tragically cut short.” He points an accusatory finger at Bobby. “What makes this situation even more tragic is the fact that Judge Fairchild’s own son is responsible for his father’s tragic death.”

  Everybody in this courtroom would agree Jack’s death is a tragedy— even without McNasty repeating it a thousand times.

  Bobby utters a guttural, “It isn’t true.”

  “Stay calm,” I whisper.

  McNulty is still glaring at Bobby. “Did you say something, Mr. Fairchild?”

  I answer for him. “No, he didn’t.”

  McNulty’s eyes are focused on Bobby’s. “Do you want to say something, Mr. Fairchild?”

  He’s baiting us. “No, he doesn’t,” I reply. “Your Honor, would you please instruct Mr. McNulty to address the court?”

  “You know better, Mr. McNulty.”

  “Yes, Your Honor.” It takes him just a moment to summarize the most important pieces of evidence. Then he picks up his note card and lowers his voice. “Julie Fairchild has lost her husband. Sean Fairchild has lost his father. The legal community has lost a respected colleague and friend. We will demonstrate that there is sufficient evidence to bring Robert Joseph Fairchild to trial for the murder of his father. We must bring the person responsible for this great tragedy to justice.”

  The judge remains impassive as McNulty returns to his seat, where Ward gives him an obligatory nod of approval. On a scale of one to ten, I’d give him an eight. He stayed on message and kept it short. I deducted a couple of style points for being melodramatic. Hyperbole doesn’t play well in front of a smart judge.

  Judge McDaniel looks at me. “Do you wish to make an opening statement, Mr. Daley?”

  “Yes, Your Honor.” I have the option of waiting until McNulty finishes his case, but I want to make a few points right away. I’ve never subscribed to the theory you win cases during opening statements. I do, however, believe you have only one chance to make a strong first impression.

  I glance down at the note Rosie jotted on the pad between us. It instructs me to keep my remarks to two minutes. I walk to the lectern and wait for the courtroom to go completely silent. I start in the modulated tone I used when I presided at funerals. “Your Honor,” I begin, “nobody disputes the fact that Judge Fairchild’s death is a tragedy. However, it would be an even greater tragedy to try his son for a crime he did not commit.”

  The judge raises an eyebrow. At least she’s listening.

  “Your Honor,” I continue, “Bobby Fairchild is not a killer. He’s a victim. He hasn’t been allowed to grieve for his father. He’s been attacked in jail. He became so distraught that he attempted to injure himself last night. He will bear the burdens of this egregious mistake for the rest of his life.”

  McNulty stands to raise a legitimate objection, but reconsiders. It’s unseemly to interrupt during an opening.

  “Your Honor,” I continue, “we take the killing of a judge very seriously. We also understand the prosecution’s desire for swift justice. On the other hand, it doesn’t give Mr. McNulty carte blanche to do whatever it takes to resolve this case. If anything, we should proceed with caution to ensure our rules and procedures are followed. It’s the right thing to do. It’s what Judge Fairchild would have wanted. We will demonstrate that Bobby Fairchild is the victim of a rush to judgment. We will show there is insufficient evidence to bind him over for trial.”

  I look up at the judge for a reaction, but none is forthcoming. She turns to McNulty and says, “Please call your first witness.”

  “The prosecution calls Officer Philip Dito.”

  # # #

  Phil Dito is sporting a pressed patrolman’s uniform as he sits in the witness box. “I’ve been a San Francisco police officer for twenty-seven years,” he says. He’s the embodiment of a competent career cop.

  McNulty is standing at the lectern. The conventional wisdom says you should give a strong witness plenty of room. “Officer Dito,” he says, “where do you work?”

  “Park Station.” He says it with pride.

  “That includes Cole Valley and the Haight, doesn’t it?”

  “Objection,” I say. “Leading.” I’m trying to break up their rhythm.

  “Sustained.”

  McNulty shoots a snarky glance my way, then turns back to the matters at hand. "Officer Dito,” he says, “does Park Station cover Judge Jack Fairchild’s house at the corner of Belvedere and Grattan?”

  “Yes.”

  “Were you on duty in the early morning of Saturday, June eighteenth?”

  “Yes.”

  Good prosecutors ask short, easy-to-follow questions.

  “Did you respond to a 911 call at two ten a.m.?”

  “Yes. There was a report of a homicide at Judge Fairchild’s house.”

  The first points are quickly on the board. We have a body and a crime scene.

  “Who made the call?” McNulty asks.

  “The defendant. He was at his father’s house.”

  Now he’s placed Bobby at the scene.

  “Officer Dito,” McNulty continues, “how long did it take you to get there?”

  “Less than five minutes.”

  “Did any other officers accompany you?”

  “No. My partner was out sick, so I went by myself. I requested backup. Additional units arrived within minutes.”

  “What did you do when you arrived at Judge Fairchild’s house?”

  The creases in Dito’s weather-worn face become more pronounced. “I followed standard procedure.” He says he surveyed the exterior of the house and concluded he was in no imminent danger. “I knocked on the door and identifed myself as a police officer. The defendant answered.”

  “Would you please describe the defendant’s demeanor?”

  “He was extremely agitated and upset.”

  “Do you know why?”

  “He had killed his father.”

&nb
sp; Nice try. “Move to strike,” I say. “Foundation. There are no facts in evidence to support Officer Dito’s assertion that Bobby Fairchild killed his father.”

  “Sustained.”

  McNulty is unfazed. “Was the defendant holding anything?”

  “A hammer.”

  McNulty walks over to the evidence cart and picks up the hammer wrapped in a clear plastic evidence bag and tagged. “Is this it?” he asks.

  “Yes.”

  McNulty goes through the customary recitations to introduce the hammer into evidence. “Did you notice anything distinctive about this hammer?”

  “It was covered with blood. The defendant tried to hand it to me, but I instructed him to place it on the floor. I wanted to avoid contamination.”

  “Did the defendant tell you how he came to have this object in his possession?”

  “He said he used it to kill his father.”

  Bobby can barely contain himself. “That’s a lie,” he whispers to me. “I said it was the hammer that somebody else used to kill my father.”

  “Objection, Your Honor,” I say. “Hearsay.”

  “Overruled.”

  “Exception.”

  “Noted.”

  I’m not finished. “Your Honor,” I say, “Officer Dito is intentionally mischaracterizing his conversation with my client. There was no confession.”

  “You’ll have to take it up on cross, Mr. Daley.”

  I will. Legally, it’s the correct call. Morally, it’s appalling that the rules of evidence permit the admission of such a highly inflammatory statement. My only remaining recourse is to whine. “But, Your Honor—"

  “I’ve ruled, Mr. Daley.”

  Julie leans forward and whispers, “We’re getting killed.”

  Thanks for bringing it to my attention. “The prosecution always scores points at the beginning,” I tell her. Especially when you have a smart prosecutor like McNulty and a well-trained cop like Dito.

  The gallery sits in rapt attention as McNulty leads Dito through a quick and damaging description of the gruesome crime-scene photos. Dito notes there were no signs of forced entry. He describes the overturned coat rack and table in the foyer. He confirms that nothing was missing from the house. A triumphant McNulty returns to his seat a mere five minutes after Dito took the stand.