Witness for the Defense (9 page)

During our long drive, Sarah and I had agonized over how much I should say to him. Like most defense attorneys, we were aware that anything I said could be twisted. But we were also aware I had nothing to hide.

“Let’s get started without him,” the D.A. finally said. His voice had a smoker’s gravelly sound to it. “Miss Harris has informed me you are willing to discuss the allegations that Bobby Miles and Salvador Martinez have lodged against you.”

“If that’s what it takes.”

Patterson slowly thumbed through the open file on his desk, exposing the yellow tobacco stains from his three-pack-a-day habit.

“These are very serious charges,” he said, as if he were reading them for the first time.

“All lies,” I responded.

With a raised eyebrow Patterson fixed his gaze on me. “I better advise you of your rights.”

“Come on, Mike.” I looked at Ogden for help, but he was adjusting the shoelaces on his newly polished wingtips.

“Is that really necessary?” Sarah asked. “I thought this was just an informal meeting.”

“It is,” he said. “But you both know it’s required.” Patterson probably thought I’d come in cowering, begging for his understanding. But that was his fault—just as marching into his office thinking the matter would be informally resolved was mine. We both should have known better. He pulled a card from his top pocket. “You have the right—”

I grabbed the card from his hand and signed at the bottom. “I’ve heard it a thousand times,” I said and flipped the card at him. It whizzed past his head and fell harmlessly to the floor.

Patterson’s face hardened, as did mine. Sarah scooted forward in her chair to say something but I waved her off.

“I signed it,” I said, “so let’s get going.”

After making a show of taking a deep breath, Patterson leaned to his side, picking up the card. “Are you ready to begin, Mr. Dobbs?”

“As long as it’s tape-recorded.”

Patterson opened his top drawer and pulled out a small cassette recorder, set it on top of his desk and pushed the record button. He then explained the preliminaries, including who was present and the subject matter of the interview. “And you understand that you do not have to talk to me?”

I just looked at him.

“We understand,” Sarah answered.

“Good.”

The next half hour Patterson spent reading Miles’s and Martinez’s statements.

“And that’s a bunch of bull,” I said as soon as he finished.

Patterson didn’t hesitate. “Then what’s your version?”

“You know I can’t tell you what was discussed.”

“What Mr Dobbs means,” Sarah explained, “is that he cannot divulge any of his conversation with Mr. Martinez.”

Patterson looked at Ogden. “I believe,” Ogden said, “there is the problem of attorney-client privilege.”

Patterson closed the folder and sat back in his big leather chair, rubbing his chin, pondering the dilemma. “I may have a solution,” he eventually said, like the thought had just occurred to him. “What about a lie detector?”

“Polygraph!” I vaulted from my chair. “You’ve got to be kidding.”

Ogden held up his hand. “Maybe it isn’t such a bad idea.”

I looked at him in amazement. Had this all been rehearsed? “If you’d personally handled a case in the last dozen years, you wouldn’t say anything that stupid.”

Ogden sat expressionless, his eyes glued to mine.

Patterson’s voice went cold. “I’ve done my best to be nice to you and—”

“That’s more bull.” I paused, to take a deep breath, trying to calm myself. But it didn’t do any good. “Anyone with half a brain knows Martinez put that kid up to it,” I said, pointing a finger at him. “But that thought hasn’t occurred to you, has it, Mike? This is personal. I kicked your ass every time you came up against me, and this is your way to get even.”

Patterson rose to his feet. “I resent that!”

Sarah gave me a shove toward the door. “What are you doing?” she whispered between clenched teeth. “If you don’t cooperate, he’ll file charges.”

I shook my head. “Taking a polygraph isn’t cooperating.” I turned to look at Patterson. “No one passes the police polygraph.”

Patterson was planted again in his chair. “That’s not true.”

“Oh, really?” I said. “I’ll tell you exactly what will happen. I’ll take the polygraph and immediately be informed I flunked it. Then your examiners will tell me how they want me to retake it. But this time they’re going to help me pass it. But in order to do that, they have to know what it was I originally deceived them about. Then once I open up a little, they start grilling me, the whole time trying to get me to confess.”

Patterson scoffed, but he didn’t look too convincing. “That’s ridiculous.”

“I have more than a dozen taped polygraph interviews in the desk in my office to prove it.” I turned to Ogden. “Assuming I still have a desk, that is.”

Ogden looked at Sarah for help, but I pushed my way past her and stood in front of Patterson. “If I won’t allow one of my clients to be polygraphed, I’m sure in hell not going to subject myself to one.”

“Are you going to let me finish?” Patterson said, nodding his head for me to sit back down.

As I slowly took my seat, I glanced at Ogden. Again I had this peculiar sensation that this had been choreographed by the two of them. I couldn’t believe how spineless he was. How could I have worked for him all these years?

“I mentioned the polygraph in light of your fear about breaching a confidential communication. It’s the only way we can resolve this matter.”

I didn’t think for a second that Patterson wanted to help, but I wanted to hear everything, to make some sense out of what was happening. “Go on.”

Patterson’s gaze settled on the top of his desk, as if he was embarrassed by what he was about to say. “I promise if you pass the polygraph, I will close the file and you can get back to work.”

The room was silent while everyone absorbed what he was saying. “And,” he said in an assuring tone, “I will forward the results to the state bar so they’ll get off your back.”

“And?” I said.

Patterson smiled. “And the examiner will not ask you any further questions if you fail to pass it.”

“What do we have to lose?” Sarah whispered.

I sat motionless, staring at Patterson. “Do you want to tell her what I have to lose, or do you want me to?”

Patterson looked over at Ogden and shook his head. Their little ploy wasn’t working.

“Why don’t we quit playing games?” I said. “You want me to enter into an agreement that if I pass the test, that will be the end of it, right?”

“That’s correct.”

“What happens if I don’t pass?”

Patterson squirmed in his chair. His face said it all.

“I’ll tell you what,” I said to Sarah. “They want a stipulation that if the machine shows I’m deceptive, they can use it in court against me.”

Sarah stiffened, caught off guard. “There isn’t a court in this state that would allow the results of a polygraph exam into evidence,” she protested.

“Normally you’d be right,” I said, scowling at Patterson. “But there’s this game the San Francisco D.A.’s office has been playing for a few years now. Do you want to tell her about it, Mike?”

Patterson shrugged. “It’s authorized by statute.”

Sarah folded her arms across her chest. “What is?”

“Evidence code section 351.1 permits the results of a polygraph to be admitted into evidence as long as the parties stipulate to it,” I explained.

Sarah’s voice was cold. “Who would ever agree to that?”

“Anyone whom the D.A. convinces that it’s the only way they can resolve the matter short of filing charges. Either you agree to it or they arrest you and get as high a bail as possible.”

Patterson shrugged again. “It’s entirely their choice.”

“It’s blackmail is what it is,” Sarah said, louder than anyone expected. “Are you telling me that’s what you want Hunter to agree to?”

Patterson nodded. “That’s correct.”

“You want us to agree to that, knowing how unreliable the polygraph is?”

“My office doesn’t feel it’s unreliable.”

“Well, I do,” Sarah exclaimed, then paused to lower her voice. “What you’re suggesting is totally unacceptable.”

“Wait a minute,” I said and turned to Ogden. I was going to see once and for all whose side he was on. “What do you think?”

He shifted nervously, looking at Patterson. He finally met my gaze. “Under the circumstances, I really don’t feel the polygraph would be in your best interest.”

Thank God. I knew we’d had our problems in the past and I wasn’t the easiest guy to get along with, but I’d always given him my best and I was thankful to see he felt some loyalty to me.

The D. A. sat back into his big leather chair. “Then you’re declining my offer?”

There was stone silence. Patterson’s eyes and mine were locked, waiting to see who would be the first to blink.

“Not really,” I finally said. Sarah and Ogden both jerked their heads at each other and then at me.

“What are you saying?” Sarah snapped.

“I’ll take a polygraph.”

Patterson leaned forward in anticipation. “And if you fail, you’ll stipulate the results can be used in court?”

“Sure.”

Sarah gave Patterson a look like, He’s such a jokester. “I need to talk to Mr. Dobbs in private,” she said.

“No need,” I said and propped my elbows on Patterson’s desk. Our faces were only a foot apart as I went on. “As long as the polygraph examiner is not on the county’s payroll.”

“A private examiner?”

“Exactly.”

Patterson stared at me as if he was considering it, but I was sure he wasn’t.

“You see, Mike, I have nothing to hide. I’m telling the truth, and I’m ready to prove it.”

Patterson’s face turned cold. “You know our office will only allow a police examiner.”

“Well, then,” I said, “do what you have to because I’m not going to let one of your examiners get their hands on me.”

Patterson reached for his telephone. “And you’re not willing to discuss what was said between you and either that boy or Martinez?”

I knew what all this was leading up to, and I was going to put in my last two cents before it happened. “You know as well as I do it doesn’t matter if I discuss each and every detail of my conversation with that boy and Martinez. You aren’t going to believe a damn thing I say anyway. So why don’t we top screwing around here? This interview is over with as of this second.” I grabbed his recorder and punched the off button.

Patterson immediately flipped on his intercom. “Send the detectives in.”

We both sat glaring at each other.

“Aren’t you being a little premature?” Ogden said when the door burst open and two plainclothes detectives stood just inside the doorway. Their coats were open—holstered guns exposed—just in case I had any ideas.

“Hunter Dobbs,” Patterson said, “you are under arrest for subornation of perjury.” He then waved his two thugs toward me. “Take Mr. Dobbs into custody.”

Chapter 9

I can’t count how many times I’d been in a municipal court lockup, but it was the first time I had ever been on the other side of the glass. As I waited for Sarah, my forehead was slick with beads of sweat, yet my hands and feet were cold as ice. I’d always tried to appreciate the anxiety my client experienced during an initial interview, but only at that moment did I fully understand how being handcuffed and shackled, with a guard watching your every move, could make someone feel so impotent, so utterly helpless.

Subornation of perjury. Christ. That’s first-year law school stuff. That was something we were taught they used to do in the twenties and thirties during the reign of Al Capone. I remembered some of the stories told around The Gavel about the days of the labor wars down on the docks and the crackdown on the city’s crime bosses. A few flamboyant defense lawyers would have off-the-shelf eyewitnesses at their fingertips who would prove their client was on the East Coast at any given moment of any given day.

But that was folklore, and this was the era of post-Watergate ethics and the strict compliance with a lawyer’s ethical duties. Today, even the sloppiest and most crooked lawyer didn’t finagle testimony. But a slimeball and a scared juvey had me by the short ones. I was facing not only sure disbarment, but serious jail time.

Thankfully, the detectives brought me straight to an interview room while I awaited my appearance in court. I had the impression they didn’t like their jobs at that particular moment, but that was probably just my way of rationalizing my predicament. I thought the absurdity of the charges would be obvious to all—but clearly I was wrong or I wouldn’t have been there.

“You won’t believe it,” Sarah said, closing the door. She looked disheveled, her hands trembling as she placed my file on the counter. I was sure it hadn’t occurred to her that she would run into such a buzzsaw. She looked around at the filth and stench we found ourselves in. It wasn’t bucolic Ukiah.

“Remember when I told you about the glass partition Martinez shattered?”

At this mention, she looked uneasy. “Is this the room?”

I looked up and down at the glass between us. “One good thing came of it.”

Sarah gave me a puzzled look.

“New glass.”

After a pained smile, she got straight to why she was there. “You are going to be arraigned in Kellogg’s court.”

I thought for sure she had to be joking. “No way.”

“Do you want me to paper him?” she asked, referring to the filing of a motion under 170.6 of the penal code that allows a defendant to disqualify a judge.

“I’m not sure we should.” I paused to think it through. “We can only do that once. I’d rather wait.”

“But after what you said to him, there is no way he’s going to be fair.”

It was time to break the news. “He’s not the only judge I’ve ever had a problem with. I’d rather save my 170.6 for trial. That’s when the judge can make a real difference. All Kellogg can do is schedule the preliminary hearing.”

“But what if he sets it in his court.”

“Can’t,” I said, pointing to the front page of the complaint. “My case number ends on an even number. Only odd-numbered prelims are heard in his court.”