Incriminating Evidence (31 page)

“There is something about the champagne flutes that’s bothered me since we got the police reports,” I say. “Why did they find GHB in both flutes? Doesn’t that seem strange to you? I can see why they might claim that Skipper spiked Garcia’s drink, but why would he spike his own? Do they think he knocked himself out?”

“We need to hammer on that,” Rosie says.

Damn right. Pete runs through the evidence found at Skipper’s house and in his storage locker. The magazines. The Web sites. The photos of the prostitutes. “They’re going to try to show he was a pervert,” Pete concludes.

The room goes silent. “They’re going to put the two prostitutes on the stand,” I say. “We’ll need to discredit them without attacking them.” A delicate dance, indeed.

We discuss Beckert’s autopsy report. I explain that our medical expert will testify that Garcia died of something other than suffocation. “At the least, we’ll give the jury something to think about,” I say. Of course, the jury may still decide Skipper is guilty if they conclude he gave Garcia the GHB. Then again, if we can convince them that he died of a heroin overdose, we all get to go home.

Carolyn asks, “What about the urine and the semen found on the bed?”

“We’re supposed to get the DNA reports next week,” I say. I don’t say it aloud, but if there’s a match to Skipper’s DNA, we’re going to have a very tough time arguing that he wasn’t engaged in sex with Johnny Garcia that night. I face a room full of silent stares. Everybody is thinking the same thing.

I ask Carolyn whether she found anything about the ownership of the Boys of the Bay Area Web site.

“The domain name of the Boys of the Bay Area Web site is registered in the name of El Camino Holdings, a California corporation,” she says. “The only address shown in the corporate paperwork is a filing service downtown, which wouldn’t provide any additional information. The company has not filed a list of officers and directors with the secretary of state, and the names of the shareholders are not a matter of public record for a privately held concern.”

“Somebody is paying the bills to maintain the corporation and the Web site,” I say.

“That’s true. The problem is that somebody could be anywhere in the world with a computer modem.”

I ask her what she’s found on the Donald Martinez Charitable Foundation or the Mission Redevelopment Fund.

“They’re legit. Their corporate filings seem to be in order. Martinez and members of his family make up the boards of directors of both entities, and they’re both in good standing with the secretary of state and the attorney general.”

“Keep digging.”

“I am.”

“What about other suspects?” Rosie says. “Let’s see where we might be able to deflect blame.”

We have gone through this exercise on many occasions. We discuss the various motives that Dan Morris, Jason Parnelli, Turner Stanford and Kevin Anderson might have had. We dismiss Nick the Dick, McNasty and Hillary, though they were all in the building at least until midnight.

Molinari leans back in his chair and says, “Natalie and Ann were there that night.”

“Ed,” I reply, “I just can’t see it. Neither of them ever even heard of Johnny Garcia. There is no way Natalie could have managed it, planned it, even putting aside for the moment how emotionally frail she is. As for Ann, sure, she’s tough and hot-tempered—but to set up her own father? And don’t forget how the scandal smears the Gates name—it’s
tabloid heaven. Apart from the risk of being caught, there’s the effect on her own political aspirations.
Mayor
Ann Gates? Daughter of the notorious pervert DA?”

Molinari sighs and says grudgingly, “Your points are well taken. Nevertheless, we shouldn’t rule anything out. We may need to give the jury some alternatives. Who’s your favorite? Who would you blame?”

I look around me at the silent faces. “If we have to pick somebody,” I say, “then I would go with Holton. He’s the most viable option. We know he was there that night.” I leave out the fact that there isn’t a shred of physical evidence placing him in Skipper’s room. “Moreover, he can’t defend himself. It’s a perfectly legitimate and tried-and-true defense.”

Molinari asks, “What defense is that?”

“When in doubt, blame it on the dead guy.”

30
JUDGE KELLY

“Lawyers for the prosecution and District Attorney Gates will meet with Judge Joanne Kelly today to discuss evidentiary issues. The trial is scheduled to begin on Monday. Sources familiar with the case believe the defense is fighting an uphill battle.”

—CNN’s
B
URDEN OF
P
ROOF
. F
RIDAY
, O
CTOBER
8.

“You can’t be serious about calling Bill and me as witnesses at the trial,” Hillary Payne says. It’s Friday, October eighth. Monday is D-Day. Molinari, Rosie and I are meeting with the Princess of Darkness in her office first thing in the morning. As always, she tries to put us back on our heels before we get started. Hillary wakes up every morning in attack mode. For that matter, she isn’t much for civility, either. She hasn’t even asked us to sit down. “Judge Kelly will never allow it,” she says. “You know it as well as I do.”

We were invited here on the pretense of trying to narrow the evidentiary issues to be addressed at our pretrial hearing later this morning. In reality, I think Hillary wants to see if she can elicit a preview of our defense. I accepted for the same reason—perhaps we can glean a little about her strategy. My guard is up. In addition, as with any meeting with Hillary, we are giving her a free opportunity to snipe at us. I suspect she’s been up all night looking forward to this. I decide to use similar tactics. “You were there that night,” I say,
pointing a finger at her. “You were in the room where Garcia died. You know what happened. You should tell your story.”

“We left at midnight. We didn’t see a thing.”

“And you both went straight home?”

“Yes.”

“And somebody can corroborate your story?”

She’s indignant. “Of course.” McNasty dropped her off at twelve-fifteen at her apartment on Russian Hill and he went straight to his apartment a few blocks away.

“How do you know where he went?” Rosie asks. I know the answer.

“He told me.”

Figures. “What were you doing in Skipper’s room?”

“We were showing some face time for our boss. You have to make nice-nice sometimes.” She makes little quotation marks with her hands as she says this. “I hate this stuff. So does Bill.”

So do I. “We’re still going to raise the issue with Judge Kelly, Hillary. I don’t think it’s appropriate for you to try this case if you were there that night.”

“She’ll never go for it.”

This is true. For almost an hour, we argue about the admissibility of various items of evidence. We have a particularly heated discussion about Nick’s videotape and the photos of the prostitutes. Hillary doesn’t give an inch. Neither do I.

We go to war.

Eleven o’clock. Rosie, Molinari, McNasty, Payne and I are sitting in the well-worn chairs in Judge Joanne Kelly’s airless chambers. We are about to begin a catfight about the witnesses to be called and the evidence to be shown to the jury. We’ll also get a preview of what the judge thinks about
this case. Her decisions today will have a substantial impact on the course of the trial.

Judge Kelly is a large woman in her early sixties with a gruff bearing and a no-nonsense manner. She has broken a lot of new ground for women in the San Francisco legal community. She was one of the first women to make partner at a large San Francisco law firm, and she was appointed to the bench twenty years ago. She’s very funny when she’s telling war stories at bar association functions. When she’s on the bench, however, she’s all business, and when she’s in chambers, she can be a terror. “Mr. Daley,” she says before I can open my mouth, “have you and the prosecutors huddled to see if there’s any chance that we can dispose of this case?”

“We have discussed the possibility of a plea bargain,” I say. “We have not reached any common ground.”

She rolls her eyes. I expect to see a lot of this expression in the weeks ahead. “Let’s start looking a little harder,” she says. “Are you ready to proceed?”

Five heads nod.

“Scheduling first,” she says. She puts on her reading glasses. “We’re set to begin jury selection on Monday. Mr. Daley, your client hasn’t reconsidered his decision on the timing of this trial, has he?”

“No, Your Honor. He will not waive time.”

She’s annoyed. “Fine.” She turns to Payne and asks her how many trial days she’ll need.

“No more than five,” she says.

“Perhaps somewhat shorter,” McNasty interjects.

Judge Kelly glares at McNasty. “Mr. McNulty,” she says, “I am assuming that Ms. Payne will act as your spokesperson today.”

“Yes, Your Honor,” McNulty replies docilely.

She turns to me and I tell her that we’ll need no more than five trial days. She seems pleased. “All right,” she says, “what are we doing here this morning?”

“Witness lists and evidentiary issues,” I reply.

Another eye roll. “I’ve read your papers, Mr. Daley. Do you wish to add anything?”

“Yes, Your Honor,” I say. “The first issue relates to the question of whether we can call Mr. McNulty and Ms. Payne as witnesses at the trial.”

We’ve just started and I see I’ve already hit a nerve.

“As Your Honor is aware,” I continue, “Mr. McNulty and Ms. Payne were present at the gathering in the very room where the victim, Johnny Garcia, was found dead the next morning. It is critical to our case that we be given an opportunity to cross-examine them at the trial.”

She cuts right to it. “Forget it, Mr. Daley,” she says. “I’ve reviewed their affidavits. I’m not going to allow any of the attorneys in the case to testify at the trial.”

“But, Your Honor—”

She cuts me off with a wave of her hand. “No way. I’m not going to allow any of the attorneys in this case to testify at the trial,” she repeats.

“Your Honor—”

“I’ve ruled, Mr. Daley.”

I catch the hint of a grin from Payne out of the corner of my eye.

At times like this, you have to approach your job in the same manner that you attack standardized tests like the SATs. If you miss a question, you move on. Nick the Dick’s videotape is up next. “Admission of this videotape would be highly prejudicial,” I say. “We have no basis to authenticate it other than the word of the man who claims he shot it. It may have been edited or fabricated. We simply don’t know. We have no way to verify that it was taken that night and at the times alleged by Mr. Hanson.”

“Mr. Daley,” the judge says, “isn’t it true that the tape shows the time and date it was taken?”

“The tape purports to show that information, but you can
reset the timer. If we were videotaping this meeting today, I could manipulate the timer to show any date I’d like.”

She ponders for a moment and says, “Mr. Daley, we have no evidence that Mr. Hanson attempted to manipulate the timing device.”

“Your Honor,” I say, “we cannot verify that either the victim or the defendant appears on the tape.”

Judge Kelly’s irritation turns to full-blown anger. “Come on, Mr. Daley,” she snaps. “It’s a videotape. That’s why our rules allow for cross-examination. You can ask Mr. Hanson about the circumstances surrounding the taping. You can bring in expert witnesses to show that it may have been altered. You can let the jury decide whether the defendant and the victim appear in the tape. The tape comes in.”

I try again. “But, Your Honor,” I say, “this tape is highly inflammatory.”

She holds up her hand. “The tape comes in, Mr. Daley.”

We argue for another hour. We fight about which crime-scene photos will be shown to the jury. The judge agrees to let the prosecution show only two pictures of Garcia’s body. We discuss whether the prosecution should be able to introduce the photos found in Skipper’s study and his storage locker. I claim that the pictures relate only to Skipper’s character and should not be shown to the jury. Judge Kelly doesn’t buy it. She rules that the prosecution may use the dirty pictures. For good measure, she says they can introduce Skipper’s bookmarked Web sites.

We break for lunch. As we’re leaving, Ed Molinari leans over and whispers helpfully, “You’re getting annihilated.”

The afternoon session doesn’t go any better. We challenge the admissibility of the handcuff key found in the toilet on the grounds that it was taken from its plastic packaging and tested. We lose that fight. Our attempts to exclude other evidence
on chain-of-custody grounds fall on deaf ears. We fight at length as to whether the prosecution will be permitted to call the two prostitutes who appeared on the Jade Warner show. I argue that Skipper’s past sexual encounters are irrelevant. Payne says that Skipper’s association with prostitutes is relevant to show his propensity for rough sex. Ultimately, Judge Kelly rules against me. I’m disappointed but not surprised.

Finally, we get to a discussion of whether the trial will be televised on Court TV “Your Honor,” I say, “for obvious reasons, I’m against this. It is difficult enough to empanel an impartial jury and to maintain some sense of decorum without having the entire proceeding beamed live to a worldwide audience.”

Payne disagrees. “Your Honor,” she implores, “this is an important case. The people deserve the opportunity to observe the criminal justice system at work.”

Although Judge Kelly might like some free publicity, her better judgment prevails. “I’ll make this simple,” she says. “No TV.”

Payne argues with her for a moment.

“I’ve ruled, Ms. Payne,” she says. “Unless there’s anything else on your plates, we’re done. See you next week.”

Not exactly a day filled with great victories for the good guys.