I made a visit to San Quentin to see Arturo, and give him a chance to talk through his anxiety and feelings of helplessness at being in prison and unable to help his family. His little brother, he told me, had gotten involved with the gang out of anger at how the government was treating Mexican families in the United States and a desire to strike back in some way. It was a stupid choice, and Arturo, who had been a gang member himself, said he’d tried to tell his brother, through letters and phone calls, not to take that path. “Now he’ll end up in prison like me,” he said, despairingly. “He thinks he’s making some kind of stand, but he’s just being hard-headed and stupid.” I agreed. Arturo was learning a bitter lesson in the hurt his own bad decisions had caused the people he loved.
Back home again, I grafted a few more trees for next year, and Carey and I put the last touches on the habeas petition; she filed it in the court in Harrison and emailed me a copy. We settled back to wait—and then a miracle occurred.
22
When I first started out as a lawyer, appellate court decisions were announced to the world by putting a couple of paper copies of opinions in an outbox on the clerk’s counter for members of the public to read and take away with them. If you were one of the attorneys in the case, a copy was mailed to you, and unless you could get to the clerk’s office to pick one up sooner, you got it when you got it. On a couple of occasions I learned of a decision in a case of mine when a reporter from the local legal paper called after seeing the opinion at the counter. The courts have changed with the times, and now anyone can sign up for email notifications about developments in an appeal. The courts still mail paper copies to the parties, but now when a court issues an opinion anyone can download it in seconds.
When the opinion in Sunny’s appeal was filed, I got an automated email from the court the day before, telling me it would be on the state Supreme Court’s website at ten o’clock the following morning. I wasn’t expecting much; few death penalty judgments are reversed on appeal, and of those, most are reversals only of the death sentence, not of the guilty verdict. But, as Terry used to say, we live in hope, and by a minute past ten I had downloaded and opened the file.
I had to read a half page of summary information about the charges against Sunny, her conviction, and her sentence, before I reached the part that read, “Because the trial court erred prejudicially in excluding evidence of other instances in which the informer provided questionable information to the police, appellant’s conviction for murder and the special circumstances must be reversed.”
For a moment I just sat, staring at the screen, my hands over my mouth. When it seemed my heart had started beating again, I scrolled down the page and continued reading, half believing that I had misread that sentence, that it was just a typo, and that it would all be taken away somewhere later in the opinion. But it wasn’t. The opinion was fairly short— no need to discuss most of what we’d argued in the appeal, since most of it didn’t matter anymore. The state Supreme Court wrote that the trial judge had made a mistake when he refused to let Craig Newhouse present evidence that Steve Eason made a practice of giving information about other inmates, including their making surprising confessions to him, in exchange for lenient treatment in his own cases, and that in at least one instance he’d been shown to have lied.
Given that the other evidence tying appellant to the victim’s murder was circumstantial and hardly compelling, we cannot say that the error in keeping the informant’s history from the jury, and depriving jurors of the opportunity to assess his credibility on a complete record, was harmless.
This was my win, I thought proudly, as well as Toni’s; that argument was in the opening brief I’d written while I was still Sunny’s appellate lawyer.
When I found my voice, I called Carey, who was in court, and left her a voice mail, and then called Natasha’s cellphone. She wasn’t answering, either, so I sent her a text saying Sunny had won on her appeal and would be getting a new trial. Then I called Toni to congratulate her. We had no way to get the word to Sunny herself that day, but the court would mail her a copy of the opinion, and so would I, so she’d know in a couple of days.
After finishing my calls, I still felt too agitated to do any work. By this time, the dogs had picked up on my excitement and were milling around my chair, watching me closely for some sign of what it all might mean. What it meant for them was that I pulled on a sweater and found a hat and bundled them into the car for a ride down to the bluffs above the ocean. There we walked the trails for an hour or so, while I periodically whooped and skipped like a nine-year-old. When I’d calmed down some, we picked up our mail at the real estate office, and I treated myself to a lunch of baked macaroni and cheese and a pumpkin ale at Vlad’s, followed by a double chocolate brownie which I took with me back up the hill to the house. By then, I’d gotten a return text from Natasha; I called her, and we chattered breathlessly about what had happened. At one point, she asked, “What happens to the habeas petition?”
“It’s moot, I guess,” I said. “Sunny’s getting a whole new trial, so what we asked for has been granted already, just on different grounds.”
“Dang,” she said. “All that work.”
“It’s going to be useful for the new trial,” I said, “or for negotiating. With Steve Eason admitting he lied, and Brittany’s declaration, and the evidence that Greg was broke, the prosecution case will be a lot weaker. They could decide not to bother to try it again.”
“I hope so,” she said. “Maybe we did some good after all.”
We had. But I realized, as I thought it, that I wouldn’t be part of what happened from here. I’d been appointed for the habeas corpus proceeding, and now that the petition would certainly be dismissed as moot, my role in Sunny’s case was over. It was a slightly melancholy feeling; if nothing else, it would have been nice to follow through with it. But as it was, we’d be handing it off to someone else and hoping he or she would do a good job for Sunny. Before trying to settle back into something like the day’s work, I called Harriet and Ed and invited them to join me for dinner at Vlad’s, to celebrate.
* * *
Carey called that afternoon, during a court recess. She hadn’t had a chance to read the court’s opinion, so I summarized it for her. “That’s amazing,” she said. “They really shouldn’t retry her. There’s a good chance we can get the charges dismissed.”
“But we won’t be her lawyers,” I reminded her.
“Right,” she admitted, and paused for a few seconds. “You know, maybe I’ll see if I can get the court to appoint us for the retrial. Would you like to keep working on the case?”
My day suddenly brightened even more. “Sure. I’d like that,” I said.
* * *
The presiding judge in Harrison had other ideas, though. A few weeks later, Carey called me again. “Well, we got some of what we asked for,” she said. “The judge said he’d appoint me, but I’m not allowed to charge for travel to and from Ventura.” Stingy, I thought, but not surprising. “But he won’t appoint second counsel. His reasoning is that the case is being retried, so it doesn’t need as much work as a brand new case. So he doesn’t see why I need a second chair. The most he’d do is give me a little money to retain you for specific things, like a motion now and then or a witness interview. I’m sorry; I really tried.”
I wasn’t as disappointed as I thought I’d be. I’d decided after more sober reflection that agreeing to work on Sunny’s retrial hadn’t been that good a decision, personally or economically, and the prospect of spending more time in Harrison wasn’t inviting. Sunny’s case was in good hands with Carey; helping out occasionally would be enough for me.
It wasn’t long, though, before I heard from Carey again. “I need your help,” she said.
“What’s up?”
“Braden Ferrante.”
“Him? Really?”
“Yeah. The DA has offered to let Sunny plead to voluntary manslaughter and be released from prison immediately.
”
“That’s not too bad.”
“Not good enough. I’ve been thinking that if I keep at them I can get them to dismiss the charges entirely. Without Eason, they have nothing—just a loan to Todd to fix his truck, which she never tried to hide. But then up comes old Braden and messes everything up.”
“How?”
“Joe Hansen, the investigating officer, went to see him in prison. I guess he showed him Brittany’s declaration, and it pissed Braden off enough that he talked to Hansen about the murder.”
“Oh, dear. He didn’t say Sunny was behind it, I hope.”
“No, thank God. But what he did say was that it was Brittany. He said she convinced Todd to kill Greg because she hated him and wanted him dead and so she and Sunny could have his money. He says none of them knew Greg was going broke.
“As Braden tells it, Brittany kept badgering Todd about it, until Todd agreed to kill Greg. He said Todd told him before he did it, and he told Todd not to. He didn’t really care whether Greg lived or died; he had a trust fund from his grandparents on his mother’s side, so he didn’t need Greg’s money. He absolutely denied threatening Brittany or having anything to do with Todd’s overdose—he says she’s lying about all of it.”
I remembered Brittany’s statement, during our visit, that Todd had said he’d killed Greg for her. The genuine pain with which she recounted it—along with the fact that there had been no benefit to her in telling us—had given it a feeling of truth, of a genuine secret held and finally, reluctantly shared. Braden might actually be telling the truth, I thought, with a twinge of fear.
“But that doesn’t hurt Sunny, does it?” I asked. “It actually seems to help her.”
“Yes, it’s great. I don’t see how they can possibly try her at this point, with so many stories floating around. But Sunny is freaking out about the possibility that Brittany might be prosecuted. She doesn’t want to keep fighting for a better deal; she’s willing to plead to anything, as long as the DA promises not to prosecute Britt. I’ve tried to tell her I don’t see that happening—I mean, the only evidence against her would be Braden, and he’s in prison and frankly as much a suspect as Brittany at this point. But I really need some help talking Sunny down. Someone she trusts more than us.”
I worked through everyone I knew connected to the case, trying to think of someone. Sunny’s family? There were only Brittany and Linda. Brittany was out, and I didn’t think Sunny would feel she could rely on Linda for much of anything. I thought about friends, and realized she had named almost no one. The few she had, from what she’d said about them, were little more than tennis partners or other wives she had met sometimes for lunch or shopping. The only friend who had stayed with her since her arrest was Carol Schiavone. At my last visit, Sunny had said it was Carol who had warned her about Greg’s financial troubles. I recalled that she lived in New Mexico, but I didn’t recall whether Carey or Natasha had ever gotten in touch with her.
“What about her friend Carol?” I asked. “She seems to be really loyal, if she still comes all the way from New Mexico to visit Sunny. She visited her at Christmas, too.”
“I’m willing to try anything,” Carey said. “I talked to Carol on the phone last fall. I don’t think we got a declaration from her, I think because what she said was basically the same as her testimony at Sunny’s trial. Would you be willing to give her a call and find out whether she thinks she can help? I hope she can make it to Harrison; Sunny’s been transferred to the jail there for the retrial.” She gave me Carol’s phone number.
I waited until early evening to call, and a man answered. I asked him if Carol Schiavone was there and gave him my name. “May I tell her what this is about?” he asked.
“It’s about Sunny Ferrante.”
“Oh. Okay. I’ll get her.”
When Carol came on the line, I introduced myself.
“So you’re the other attorney working with Ms. Bergmann,” she said. “Is Sunny all right? I sent her an Easter card, and it was returned.”
“That’s probably because she’s been transferred to the county jail in Harrison.”
“Oh. Because they’re going to try her again?”
“That, or maybe work out a plea bargain, or maybe even drop the charges.”
“And she’ll be free again? Right away?”
“We’re insisting on it.”
“Good. Thank you for all you’ve done for Sunny. It’s such a relief to finally have hope again. But you called me about something.”
“Yes,” I said again. “I’d like to talk with you about a problem that’s come up.”
“What is it?”
“The district attorney offered Sunny a plea bargain.”
“That’s not a bad thing, is it?”
“No. It’s not bad, but Carey—Ms. Bergmann—thinks she can do better and get the charges dismissed—”
“But Sunny’s worried about Brittany.” Apparently sensing my surprise, she added, “I’ve known her for almost thirty years. She’s afraid Britt may be accused of the murder, right?”
“Basically, yes,” I said, surprised at how much Carol seemed to know.
“Do you think she will be?”
“No, but we need to convince Sunny.”
“Convince her of what?”
“Well, that the district attorney isn’t going to go after Brittany for the murder; they don’t have any basis to, really. And also that taking the DA’s offer won’t make it any safer for Brittany. They could still investigate Brittany for conspiracy even if Sunny takes the plea deal. They won’t, but we haven’t been able to convince her of that. I think she’s too worried to think clearly.”
“That sounds about right. So where do I come in?”
“You’re someone she trusts, a really good friend.”
“Probably her only one,” Carol said. “Poor girl.”
“It seems that way, doesn’t it?” I agreed. “We were wondering if you were planning to see her in the near future.”
“You said she’s back in Harrison?” Carol was quiet for a second or two, then said, “Just a minute, I’m thinking here— Tom has a conference in San Jose in a couple of weeks. I was trying to decide whether to go with him. If I do, I can make the trip to Harrison from there. We’d have to stay an extra day or two, I think. Let me talk to Tom and call you back.”
I thanked her, and we said our goodbyes.
She called back the next morning. “We can do it,” she said. “We changed our return flight so we can drive to Harrison and spend the night there. Tom is actually looking forward to it, can you believe it? He can touch base with some old friends. He grew up in the area, kind of misses some of the people we knew. I don’t. I’m thrilled to be out of there, never looked back. We should talk before I see her, so I can find out more about what’s happening.”
I agreed.
“Do you want to meet in Harrison?”
“Actually,” I said, “I live in Sonoma County, so San Jose would be better for me.”
“Lucky you. I love it up there. Why don’t we meet in San Francisco? Easier for you, and I’d love an excuse to spend a day there. I know this really nice dim sum place out in the avenues.” She gave me its name and address and a date and time to meet. “There. That’s settled,” she said. “See you then.”
After we hung up, I felt the need to smooth down my hair; talking with Carol had felt like having it ruffled by a brisk breeze.
23
Carol was standing in front of the restaurant, talking on her phone, when I walked up. She was Asian, perhaps around sixty. She was small, even shorter than me, slender and casually but impeccably dressed in dark slacks and a creamy-white silk shirt. A jacket in a coordinating geometric print was draped over her shoulders.
I apologized for being late. “I had trouble finding a place to park.”
“No problem,” she said. “It gets worse and worse. I’ve only been here a minute or two.” She put on her jacket. “I always forget it’s
colder here in the city,” she said. “Let’s get inside.”
The restaurant was an old-fashioned dim sum place, a big room full of the cheerful buzz of conversation and the clink of dishes, where servers wheeled carts of little plates and covered bamboo steamers among the many tables. Carol led me to a table off to one side, where the noise of the lunchtime crowd was more muted and we could have some privacy to talk. “I’m afraid it’s a bit out of the way for getting food, though,” she apologized. Not that I could tell: carts full of wonderful things came around at intervals, and we soon chose enough dumplings, rice in banana leaves, turnip cake, and pork buns to keep us busy and happy. At one point she asked a waiter something in Chinese; he shook his head, and she said something else and turned back to me. “There was a thing I was hoping I could get,” she said, “but I’m from Taiwan, and this place is Cantonese. It’s not a dish they make.
“So,” she said, after we’d taken the edge off our appetites with a couple of shu mai and shrimp balls. “What’s happening with Sunny?”
I laid out the story. Carol listened without comment until I’d finished, and then said, “Ah.”
“Do you think you can help us convince her Brittany is safe?”
“I can try,” she said. “But there are some things you need to know. Sunny probably wouldn’t want me to tell you all of them, but I think I should anyway.”
“Okay,” I said. “I like Sunny, but I’ve always felt there are things she hasn’t been telling me.”
Janet Moodie--Next of Kin Page 22
