Special Circumstances (47 page)

Rosie, Doris, Joel and I eat sandwiches in the consultation room.
“So far, so good,” Rosie says.
“You’ve created a plausible argument for suicide. You’ve cast doubt onthe jealous-rage theory. And you’ve established motive for Russo.”
She turns to Doris.
“You’re doing great.”
Doris shrugs.
“Let’s see how it goes. It’s easy with Mike asking the questions.”
She’s right.
“We’ve got about another hour, Doris. I need you to slay one moredragon for me this afternoon. Just follow my lead and keep the answersshort.
Just the way we talked about it.”
“You got it.”
“Did you hear anything from Pete?” Rosie asks.
“I talked to Rolanda. He called and said the banker won’t reveal thenames of the income beneficiaries or the remainder men of theInternational Charitable Trust. Wendy is looking for a judge.”
Joel changes the subject.
“When do I get to testify?” he asks.
“We’ll talk about it later. If everything goes well today, we won’tneed you.”
“But I want to.”
“We’ll talk about it later,” I say again.
We begin the afternoon session at one o’clock.
“Ms. Fontaine,” I say, “are you acquainted with a man named ArthurPatton?”
“Yes. He is the managing partner of Simpson and Gates. I’ve known himfor many years.”
“Are you familiar with an incident involving Mr. Patton and Ms.Kennedy at the Silverado Country Club in October of last year?”
“Yes I am.”
“How did you become aware of this incident?”
“The firm conducted an internal investigation.”
“How did you become aware of the internal investigation?”
“My boss, Mr. Holmes, was in charge of the investigation. He told meabout it. Mr. Friedman was interviewed in the course of theinvestigation. He told me about it, too.”
“I see. And why didn’t you come forward with this information when thepolice first questioned you?”
“They didn’t ask me. And I didn’t think it was relevant. It was aconfidential, internal investigation. The matter was closed.”
“Can you tell us about the nature of the investigation?”
Skipper stands.
“Your Honor, I must object. Any testimony that Ms. Fontaine is aboutto give on this investigation is inadmissible hearsay.” It’s alegitimate objection. I glance at the jury. The phone companysupervisor seems perturbed.
“Your Honor,” I say, “rather than argue the merits of this objection,we would like to handle this issue in a different manner. We wouldlike to introduce into evidence a memorandum prepared by Mr. Holmeswhich was dated December fifteenth of last year and was addressed tothe Simpson and Gates executive committee.” Rosie hands copies of amemo to Skipper and to the judge.
“This memorandum sets forth the official findings of a specialinvestigative committee appointed by the Simpson and Gates executivecommittee with respect to the socalled Silverado Incident.”
“Objection. Irrelevant.” Skipper is on his feet.
“This is highly inflammatory, It is an internal memorandum that isprivileged communication. Furthermore, we have no basis to verify itsauthenticity. Finally, this information has not been provided to us bythe defense.”
“We produced this memorandum several weeks ago, Your Honor,” I say. Idon’t mention that it was included with those eighteen boxes of S&Gfinancial records that we never planned to introduce into evidence.Skipper glares at McNulty.
Somebody on their side missed it.
“In addition,” I continue, “if Mr. Gates is concerned about theauthenticity of this memorandum, I am prepared to call Mr. Stern andthe head of the firm’s labor law department to verify that they got acopy of it. If Mr. Gates were permitted to testify, he wouldacknowledge that he has seen a copy of it.”
Judge Chen pounds her gavel.
“The bailiff will take the jury out. I want to see all the attorneysin my chambers. Now.”
We meet in chambers. Skipper tries to sound incredulous.
“What kind of stunt are you trying to pull?” Often, this isn’t theright tone in chambers.
Judge Chen interrupts him.
“Be quiet, Mr. Gates. Let me see that memorandum.”
She puts on her reading glasses. Skipper, McNulty, Rosie and I sit insilence.
She scans it quickly and then studies it carefully.
“Mr. Daley,” she says, “where did you get this?”
I keep my tone professional.
“From Ms. Fontaine.”
“I see. How do you know it’s authentic?”
“She typed it. She’ll swear to it under oath.”
“Your Honor,” Skipper begins.
She cuts him off.
“Shut up, Mr. Gates. It will be your turn to talk in a minute.” Shelooks at the memo again. She turns to Skipper.
“Mr. Gates,” she says, “I happen to find Mr. Daley’s argumentpersuasive on this point. Do you have anything to say?”
He glances at McNulty, then turns to the judge.
“There is no foundation proving its authenticity. It could have beencooked up on Doris Fontaine’s word processor. It isn’t signed. Wedon’t have an original. Before you destroy Art Patton’s career, youshould consider the ramifications.”
I put both my palms on her desk and push myself up.
“Your Honor, if he’s accusing us of manufacturing evidence, he’s crazy.Doris will swear under oath the document is authentic. I’ll swearunder oath we obtained it through legitimate means. If I’m lying, youcan have my ticket to practice law right now. I will trot outeverybody who ever saw this memo. If you insist, I will testify. Ourrequest is legitimate and our evidence is good. And if Skipper thinksit’s tainted, he can argue it to the jury. Let them decide whether wemade this whole thing up. We’ll take our chances.”
“Your Honor, with all due respect to Mr. Daley and his ticket topractice .. “
She holds up her hand.
“Mr. Gates, have you ever seen this memo before?”
He swallows. He looks at McNulty, who raises his eyebrows.
“I don’t recall,” he stammers.
Judge Chen shakes her head.
“I’ve heard enough. The objection is overruled. The memo comes in.Now all of you get out of here.”
Skipper sits on his hands and seethes the rest of the afternoon whileDoris and I go through the memo in detail in front of the jury anddestroy what’s left of Art Patton’s reputation. There is a lessonsomewhere in this. The memo reveals Diana had, in fact, reportedPatton’s advances to the head of the firm’s human-resourcesdepartment, and had threatened to sue the firm for sexual harassment.According to witnesses, Patton had propositioned her at the party inhis room. She rejected him and returned to her own room. He followedher. Diana said Patton then grabbed her from behind and pinned her toher bed.
He tried to muffle her calls for help. She managed to free one of herlegs and kicked him in the groin. She ran to Joel’s room. About fiveminutes later, Patton knocked on Joel’s door and found Diana there.
Patton claimed it was all a misunderstanding.
The report says Patton had been sued for sexual harassment on fouroccasions and that the firm settled all four lawsuits. The firm alsoreceived a dozen other claims that did not lead to formal legal action.In each case, Patton claimed he was misunderstood. In his mind, it wasall a problem of perception.
The other members of X-Com ordered him to have counseling and fined hima hundred thousand dollars. His points were reduced. He was told hewould be expelled from the firm if another incident ever took place.
“Ms. Fontaine,” I say, “were there any other developments after thismemorandum was issued?”
“The day before Christmas, Ms. Kennedy gave her resignation to Mr.Holmes. She had accepted a job in San Diego. She wanted a freshstart.” I introduce the resignation letter into evidence.
“What does this have to do with Mr. Patton?”
“When she tendered her resignation, she told Mr. Holmes and Mr. Pattonthat she had retained a lawyer. She was going to sue the firm and Mr.Patton for sexual harassment. Mr. Holmes told me he was going tobegin procedures to have Mr.
Patton expelled from the firm.”
“Did Ms. Kennedy ever initiate legal action against Mr. Patton?”
“No, Mr. Daley. She died before she had time to do anything.”
“Ms. Fontaine, would it surprise you to know that Mr. Patton hastestified that he had never propositioned Ms. Kennedy?”
“Yes.”
“Was Mr. Patton telling the truth, Ms. Fontaine?”
“No,” she says firmly.
“Mr. Patton is a liar.”
“No further questions.”
Skipper asks a few perfunctory questions on cross. As Doris stepsdown, I write a note to Rosie.
“Is it enough?” it says. She whispers into my ear, “I think so.”
That night, we spend two hours at Rabbi Friedman’s house arguing withJoel about whether he should take the stand. The conventional wisdomsays you never let your client testify unless you absolutely must. Agood prosecutor will turn a defendant’s story around in a nanosecond.In a circumstantial case such as ours, the entire case could turn onJoel’s demeanor.
“Mike,” he pleads, “I don’t want to hide behind my lawyer.”
“It’s too risky. Skipper could tie you in knots.”
“I’ll take my chances. I’m not going to spend the rest of my lifewondering if my testimony could have made the difference. I want totell my story to the jury.”
And maybe piss your life away. We spend an hour going over histestimony, just in case. As I’m leaving, he begs again for a chance totake the stand.
“Let me sleep on it, Joel. We’ll make a final decision in themorning.”
I spend the night consulting my most trusted consigliere. I’m inclinedto put Joel on the stand for just a few questions. Rosie is dead setagainst it. Her instincts are usually better than mine. Randy Long,my mentor from the PD’s office, says I should follow the conventionalwisdom.
I decide to make a final phone call at eleven-thirty.
“Mort, it’s Mike.”
“Long time no talk.”
“How’s life as a TV star?”
“Not all that it’s cracked up to be. I have to be up in a few hoursfor the morning news.”
“The price of fame.”
“Beats working for a living.” He chuckles.
“What’s up?”
I pause.
“I wanted a gut reaction from you.”
“My gut is listening.”
“You think I should put Joel up on the stand tomorrow?”
Silence. I picture him sitting in his bathrobe, fingering a cigar.
“That’s a two-cigar question.”
“I know.”
I hear his asthmatic breathing.
“The conventional wisdom says no.”
“I know.”
“The conventional wisdom isn’t always right.”
“I know that, too.”
He pauses.
“I’d put him on. But I’d get him off in a hurry. Just a fewquestions. Get a good, forceful denial and get him the hell off.”
“Thanks, Mort. I’ll be watching you in the morning.”
CHAPTER 55
JUST KEEP EVERYTHING SHORT AND SWEET
“In what court observers are describing as a reckless gamble, Joel MarkFriedman will take the stand in his own defense today in what might bedescribed as the legal profession’s equivalent of the Hail Mar)’ pass.Michael Daley should be sued for malpractice.”
—news center 4 LEGAL ANALYST morgan henderson. wednesday, april 15.
“You ready?” I ask Joel the next morning. He’s pacing in theconsultation room.
“Yeah. I’m ready.”
“You don’t have to do this, you know.”
“I know.”
“And you understand my reservations?” A standard lawyerly CYAquestion.
“We’ve been through it a million times. I’m going to testify. It’s mylife.”
It’s your funeral.
“Fair enough. I’ll be with you all the way.”
He stares at the wall.
“What would you do if you were in my shoes?”
“I’d listen to my attorney.”
He gives me a knowing smile.
“I knew you were going to say that.”
“Just keep everything short and sweet. Just the way we rehearsed it. Iwant you off the stand in no more than five minutes. Skipper cancrossexamine you only on stuff that we’ve talked about. I don’t wantto open the whole case. I want you to tell everyone you’re innocent,and sit down. Got it?”
“Got it.”
The courtroom buzzes. The gallery is packed. Naomi sits between Rabbiand Mrs.
Friedman in the first row behind us.
Skipper has given V.I.P passes to three big contributors from theRepublican caucus. The gossip columnist from the Chronicle is here.It’s the biggest local news event since the Niners were eliminated fromthe playoffs in January.
We rise as Judge Chen enters the courtroom. Harriet Hill brings in thejury.
“Mr. Daley,” Judge Chen says, “will this be your last witness?”
“Yes, Your Honor. The defense calls Joel Friedman.”
Joel looks lawyerly. His hair has more gray than it did four monthsago. His features are drawn, if not gaunt. Yet his eyes are clear.After four long months, he’s going to tell his side of the story. I’vetold him not to drink any water unless he has to. It makes you looknervous.
“Mr. Friedman,” I begin, “you were assisting Robert Holmes on a dealfor Vince Russo on December thirtieth of last year?” I like to startwith an easy, leading question.
“Yes, Mr. Daley.”
I ask Joel to provide a brief summary of the deal. We talk about hisdinner with Diana at Harrington’s. He says she left because they gotinto an argument about the deal. He says he returned to the office andDiana went home.
“What did you do when you got back to the office?” I ask.
“I assembled all of the final documents for the closing. The paperswere signed by twelve-thirty. I went to see Mr. Holmes. I explainedto him that the escrow instructions that Ms. Kennedy was working onhad not been completed and that I was going to finish them. Mr. Holmeswas in the middle of a heated discussion with Mr. Russo at the time.Mr. Holmes instructed me to call Ms. Kennedy and tell her to comeback to the office.”
“And it was that telephone call from you to Ms. Kennedy that wastape-recorded on Ms. Kennedy’s answering machine?”
“Yes.”
I stop for a moment.
“Did you see Ms. Kennedy after she returned from her apartment?”
“No.”
“Mr. Kim, the custodian, testified that he heard you and Mr. Holmeshaving a rather intense discussion about twelve-thirty on the morningof the thirty-first. Do you recall that discussion?”
“Yes. Mr. Kim overheard us discussing the closing and certain issuesinvolving my career.”
“What career issues?”
“I was told on the thirtieth that I was not going to make partner.”
“And were you upset about that?”
“Yes.”
“And did you convey your feelings to Mr. Holmes?”
“Yes, I did.”
“And what was his response?”
“Objection. Hearsay.”
“Sustained.”
I continue.
“Let’s try this another way. On the evening of the thirtieth, were yougiven an indication that you would be put up for partner the followingyear?”
Skipper stands. He’s trying to figure out which objection to use.Before he can speak, Joel says, “Yes, I was promised that I would beput up for partner the following year.”
“And did Mr. Holmes promise to support your election to thepartnership the following year?”
“Objection. Hearsay.”
Judge Chen looks perplexed.