“Not bad.”
Pete smiled. “I like it. You need to mess things up.”
“What do you mean?”
“Ortega Cruz is going to say that he shot Tho in self-defense. His son, his nephew, and maybe his daughter are going to corroborate his story. You need to discredit them—even if you need to play dirty. If you have to, put the Lion of the Loin on the stand and get him to say that Ortega is a crackpot who liked to show off his AR-15. Show that the son is a weakling who is afraid to stand up to his father. Show that the nephew is an idiot with a criminal record. If one of them cracks, maybe the others will, too. Juries don’t like liars—especially when they shoot people.”
“Ortega admitted that he shot Tho.”
“Make the argument that he was trying to take the rap for his kid.”
“You think we should accuse Tony of killing Tho?”
“The system isn’t pretty. You’re always standing on your soapbox and lecturing everybody about providing a zealous representation for your client and letting the system sort things out.”
Guilty. “What if Tony was your kid?”
“I’d meet you out in the parking lot with a tire iron.” Pete turned serious. “Do what you have to do, Mick. And watch your backside.”
I didn’t like his tone. “What is it?”
“Just a hunch that the D.A. knows more than they’ve told you.”
“They always do. Something in particular?”
“One of my sources saw Ken Lee down at the jail in San Bruno earlier this evening.”
“He has a lot of active cases.”
“He wouldn’t have gone down there on a Sunday night if it wasn’t urgent.”
34
“CAN YOU WIN?”
“How do you like working with Rolanda?” Rosie asked.
“She’s terrific.”
I felt her warm breath on my cheek as she leaned over and kissed me. “Thanks for looking after her.”
The light from her clock radio reflected her eyes as I hugged her. “My pleasure.”
We were lying in Rosie’s bed at three-thirty on Monday morning. The trial would start in six and a half hours.
Her full lips transformed into a whimsical smile. “Remember how we used to get ready for big trials when we first met?”
“How could I possibly forget?” When we were baby Public Defenders, Rosie and I made love the night before trial. “I learned a lot about preparation from you.”
“And you learned a little about the law, too.”
“I think it put us into the right frame of mind.”
“I don’t know about you, Mike, but I wasn’t thinking much about the trial when we were doing our pregame warmup.”
“To be honest, neither was I.” Beautiful Rosie. I kissed her again. “Do you think we were serving our clients’ needs adequately?”
“Absolutely. We were also serving our own needs more than adequately. Good lawyers need to multi-task, Mike.”
“Yes, they do. Do you still think it’s a good idea to prepare for trial this way?”
“Are you questioning my methods?”
“No. I’m questioning my stamina.”
“Get over it. It’s worked well for a long time. Besides, I haven’t come up with anything better.” Her tone turned serious. “You ready to roll?”
“Yeah.”
“Can you win?”
“I don’t know.”
Her expression was bemused. “Not wildly confident, are we?”
“No, we’re not.”
“Maybe we need to have a little more warmup sex.”
A fine idea. “Your mother will be up any minute.”
“We’ll be quiet.”
“I promised Rolanda that I would meet her at the office at seven.”
She glanced at her watch. “That gives us three and a half hours.”
“Let’s save a little something for the post-trial victory celebration.”
“You’d rather go to the office than make wild, passionate love to me?”
“I’d rather make wild, passionate love to you than anything else in the world.”
“What’s stopping you?”
“My responsibilities to my client and deference to Father Time.”
“Lame, Mike.”
“I know.”
“I would like to take this opportunity to remind you that you insisted on handling this case yourself even though we have an office full of excellent attorneys.”
“Seemed like a good idea at the time.”
“And now?”
“Maybe not.”
She reached over and touched my cheek. “Are you going to be okay, Mike?”
“Yeah.”
“Is there any chance that you’ll be able to get Thomas off?”
“There’s always a chance.”
“Any idea how you might do it?”
“Rolanda or Pete will come up with something. They’re very resourceful.”
“I’ll see you in court, Mike.”
“You’re coming to cheer us on?”
“Wouldn’t miss it.”
35
“ALL RISE”
“All rise,” the bailiff said.
At ten o’clock sharp on Monday morning, Judge McDaniel emerged from her chambers and walked briskly to the bench. She never used a gavel. “Please be seated.”
Three standing fans pushed around the heavy air in her windowless courtroom. Rolanda and I stood at the defense table on either side of Thomas, who had traded his orange jail clothes for a charcoal suit. Andy Erickson was at the prosecution table. Ken Lee was standing next to him. As the in-charge homicide inspector, he was the only witness allowed in court during testimony. Melinda was seated behind us in the front row of the gallery. Rosie was in the back. Otherwise, the defense side was empty.
The prosecution had a bigger turnout. Nicole Ward was sitting behind Erickson and chatting up Jerry Edwards, who was one of only three members of the fourth estate observing the trial. His counterparts from the Oakland Trib and the San Jose Mercury were in the back row alongside three courthouse regulars. A sketch artist from the Chronicle was sitting on the aisle, pencils poised. A criminal law professor from USF and two of his students sat in back of Ward. They were probably going to write yet another law review article about the felony murder rule.
Judge McDaniel turned on her computer and pulled the microphone toward her. “Good morning,” she said to nobody in particular. She nodded to the bailiff. “Please call our case.”
“The People versus Thomas Nguyen.” He recited the case number and noted that the charge was first degree murder.
“Would counsel please state their names for the record?”
“Andrew Erickson for The People.”
“Michael Daley and Rolanda Fernandez for the defense.”
“Any last-minute issues?”
Erickson was first. “Your Honor, the public would benefit from seeing this trial. We therefore renew our request to have these proceedings televised.”
“Denied. Mr. Daley?”
I invoked a deferential tone and made a futile request for the record. “Your Honor, we respectfully ask that you reconsider your ruling regarding the application of the felony murder rule. Under well-established California law, we believe that it does not apply where the deceased was killed by the intended victim of the original crime.”
“Noted and denied. Anything else, Mr. Daley?”
“No, Your Honor.”
“Let’s pick a jury.”
* * *
Under Judge McDaniel’s diligent and artful choreography, jury selection moved more rapidly than usual and consumed only two full court days—which seemed glacial to our potential jurors, but represented a breakneck pace for the lawyers. At two-fifteen on Wednesday afternoon, four men and eight women filled the vinyl-covered swivel chairs in the jury box. We chose four women as alternates. It wasn’t a bad draw for us, but it was hard to predict which way they would lean. We
had neither the time nor the resources to hire a jury consultant or conduct mock panels, so Rolanda and I relied on an informal survey of our colleagues, and, to a greater extent, our instincts. The conventional wisdom says that defense attorneys should pick jurors who can be confused or manipulated. In short, we’re supposed to look for idiots. Bonus points are awarded to those with gripes against the justice system.
I’ve never liked painting with such broad strokes. While most people—including me—abhor the concept of jury service, I’ve found that jurors generally try to do the right thing. We looked for thoughtful people who would have trouble living with themselves if they put away a kid for sitting in his friend’s car. Erickson wanted jurors who would follow the law.
Judge McDaniel addressed the jury in her grandmother voice. “Ladies and gentlemen, you are performing an important civic task, and the court appreciates your service.”
The young woman with the nose ring who worked at the Verizon Store on Market Street shifted in her seat and chewed her gum more forcefully.
The judge’s tone was serious. “For obvious reasons, I must ask you to turn off your cell phones.” She recited the usual warning that the jurors are not allowed to talk to anybody or each other about the case. “Do not do any research on your own or as a group. Do not use a dictionary or other reference materials, investigate the facts or law, conduct any experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.” She also told them not to read about it in the papers or online. “Finally, I must remind you not to post anything about this case on Facebook, Twitter, Instagram, Snapchat, WhatsApp, or social media. If you tweet or text about this case, I will hold you in contempt and it will cost you money. Understood?”
The jurors and alternates nodded.
“Good.” She looked at the prosecution table. “Mr. Erickson, do you wish to make an opening statement?”
Of course he does.
He stood up and buttoned his gray suit jacket. “I do, Your Honor.”
“I would ask our jurors to give you their undivided attention.”
Erickson kept his eyes on the jury as he walked to the lectern and placed a single note card next to the microphone. “Ladies and gentlemen, my name is Andy Erickson. I represent the State of California. I appreciate your service, and I am grateful for your attention.”
It was a little smarmy, but not over the top.
“I know that your time is valuable. I promise to get you home as soon as possible.”
He had crossed the line into patronizing.
Erickson nodded with authority. “The facts of this case are not in dispute.”
Every prosecutor tries to sell the idea that the facts aren’t in dispute.
“On December fourteenth of last year, a young man named Duc Tho walked into Alcatraz Liquors on a dangerous street in the Tenderloin. Duc demanded money and reached inside his pocket. Not surprisingly, the owner of the store feared for his life. He pulled a weapon that he had acquired legally and shot Duc in self-defense. Sadly, he died at the scene.” Erickson nodded again. “It was a great tragedy.”
His sentiment was sincere, but his delivery was melodramatic. I was also pretty sure that he would not refer to Ortega Cruz again without including the words “self” and “defense.”
Erickson pointed at Thomas. “The defendant is Thomas Nguyen, who is sitting between his attorneys at the defense table.”
All eyes turned to Thomas. It was a standard—and effective—maneuver. The first thing you learn as a baby prosecutor is that you always point at the defendant. It’s sort of like throwing out the first pitch at a baseball game.
Erickson nodded again. He was good at nodding. “The defendant was a friend of Duc’s. The defendant was sitting outside in Duc’s car when Duc went into the liquor store. Under California law, the fact that Duc went inside to commit a felony was sufficient to make the defendant guilty of murder under a legal doctrine called the ‘felony murder rule.’”
Notwithstanding Erickson’s incessant repetition of the word “defendant,” I understood his choice of language. He would try to dehumanize Thomas by not mentioning his name. Conversely, he would refer to Tho by his first name to paint him more sympathetically and to remind the jury that there was, in fact, a victim in this case.
It’s considered bad form to interrupt during an opening statement, but I wanted to let the jury know that I was paying attention. More important, I wanted to break up Erickson’s flow. I stood and invoked an understated tone. “Objection, Your Honor. Please remind Mr. Erickson that opening statements are limited to discussing facts and not making legal arguments.”
Judge McDaniel responded with a perfunctory nod. “Please, Mr. Erickson.”
“Yes, Your Honor.” As expected, he picked up exactly where he had left off. “Under California law, there are two elements to every crime. In legal jargon, we call them actus reus and mens rea. But that’s the only Latin that you’re going to hear from me.”
Smart move. Jurors hate it when lawyers talk Latin.
Erickson moved a step closer to the jury. “In plain English, the two elements are a criminal act and a criminal intent. You need both to find a defendant guilty.”
He was absolutely right, but that didn’t stop me from complaining. “Objection, Your Honor. Mr. Erickson is arguing the law again.”
Technically, my objection was legitimate. In reality, it was likely to have no effect on Erickson’s presentation or the eventual outcome of the case.
“Sustained.” Judge McDaniel showed her first hint of irritation, which should have been directed at me, but played to the jury as impatience with Erickson. Courtroom dynamics are frequently unfair. “Please stick to the facts, Mr. Erickson.”
“Yes, Your Honor.” He was still facing the jury. “We know for a fact that the defendant was sitting in the car. We also know for a fact that the shopkeeper shot Duc in self-defense—he admitted it.”
Last time. “Objection, Your Honor. Stating that something is a fact doesn’t make it factual. It is a fact that the shopkeeper said that he shot Mr. Tho. However, his state of mind at the time remains an open issue.”
I was starting to try her patience. “Sustained.”
I glanced at Rolanda, who closed her eyes. It was a signal for me to shut up. I was starting to sound whiny.
Erickson moved in front of the jury where I couldn’t see his face. “You might be wondering how the defendant committed a crime if he was outside in the car. Under California law, if somebody is killed during the commission of a felony, the acts of the individual who causes the death can be attributed to another person who participates in the felony. In this case, the shopkeeper’s act of shooting Duc Tho is imputed to the defendant.”
Erickson paused to let the concept sink in. As far as I could tell, the jury was with him.
“Let’s talk about the second element. You’re probably wondering how somebody outside had the requisite criminal intent to be convicted of murder.”
There was no sign that the jurors were, in fact, pondering this question.
“Under California law, if someone enters a business with an intent to commit a felony or in circumstances creating an inherent danger to the people inside, that person is deemed to have the requisite criminal intent. In legal terms, we call this a ‘provocative act.’”
It wasn’t the most eloquent explanation of the legal concept of a “provocative act,” but it was easy to follow and close enough.
Erickson put his hand on the rail of the jury box. “In such circumstances, the criminal intent of the perpetrator is imputed to his accomplice. In this case, Duc’s criminal intent is attributed to the defendant. Consequently, the combination of a criminal act and criminal intent means that the defendant is guilty of murder.”
This elicited a skeptical look from the software developer from Google who was sitting next to the woman from the Verizon store.
Erickson walked back
to the lectern. “Ladies and gentlemen, your job is to determine the facts of this case and apply California law as it is written. At the end of the day, I am confident that you will find the defendant guilty of felony murder.”
He picked up his note card, unbuttoned his jacket, and returned to his seat.
Judge McDaniel turned to me. “Did you wish to make an opening statement, Mr. Daley?”
“Yes, Your Honor.”
I could have chosen to defer my opening until Erickson had finished his case, but I wanted to speak to the jury right away. I glanced at the handwritten note that Rolanda had placed on the table in front of me which read, “Simple.”
I walked to the lectern and worked without notes. “Ladies and gentlemen, my client, Thomas Nguyen, has been wrongly accused of a crime that he did not commit. In fact, he did not commit any crime at all. Thomas did nothing except sit in a car outside of the store where Duc Tho was killed. Duc entered a liquor store in the Tenderloin and was shot in cold blood by the shopkeeper, who claims that he acted in self-defense because Duc threatened to rob him. Except there was no robbery. And there was no threat. Mr. Erickson presented you with a contorted interpretation of a discredited doctrine called the felony murder rule. It’s a terrible law that doesn’t even apply in this case. However, since the prosecution is insisting on pursuing these spurious charges, we have no choice but to dispute them and demonstrate why they are wrong.”
I was doing exactly what I had just accused Erickson of doing: arguing the law instead of stating the facts. This was intentional. I was trying to goad him into objecting and appearing defensive. To his credit, he didn’t take the bait.
“Mr. Erickson says that the facts are not in dispute. He’s wrong. Even if the felony murder rule was a good law—which it isn’t—he isn’t applying it properly. He’s going to try to convince you that Thomas should be responsible for the shopkeeper’s act of shooting Duc Tho. That’s unfair to Thomas. And it’s not the way the law is supposed to work.
“Mr. Erickson is right about one thing—it’s your job to determine the facts and apply the law. But I would add something else. You need to use your good judgment and common sense. Thomas didn’t have a gun. Neither did his friend. Duc Tho went inside and was shot in cold blood. You shouldn’t convict a high school senior of murder for sitting in a car. Maybe Mr. Erickson wants to punish somebody because Duc Tho is dead. Maybe he doesn’t know any better or he can’t do any better. But I know that you do and you will.”
Felony Murder Rule Page 15
