“It was a long condolence call. He didn’t leave until seven thismorning.”
If I ever get married again, I swear I’ll never cheat as long as Pete’sstill breathing.
At seven o’clock in the evening on the following Monday, Rosie, Mortand I meet with Joel and his father in Rabbi Friedman’s dining room.The preliminary hearing is set for ten o’clock tomorrow, with motionsat nine.
Rabbi Friedman is not happy.
“So,” he says, “are you saying you won’t be able to get the chargesdropped tomorrow?”
“It looks that way, Rabbi. They’ve probably got enough to take thecase to trial.”
Mort nods.
“Rabbi,” he says calmly, “it doesn’t mean they have a strong case.
It just means they have enough to get to trial.”
Rabbi Friedman doesn’t look mollified.
Joel is edgy.
“So what do you plan to do tomorrow?” he asks.
“Roll over?”
“No,” I reply.
“We’ll challenge their witnesses. We won’t make it easy for them. Butwe won’t tip too much of our hand. We don’t want to give them anythingthey can use at the trial.”
“You’re going to get that socalled confession knocked out, right?”
“Yes. That’s the first thing on the agenda. We’re going to talk tothe judge in chambers before the hearing starts. If he lets theconfession in, we’ll go straight to the appellate court for a writ. Idon’t want it to see the light of day.”
Rabbi Friedman shakes his head. Joel turns to his father.
“They’re doing everything they can, Dad. The legal system doesn’t workso well sometimes. And it never works very fast.”
Thanks, Joel. It’s nice when your client defends you. Things usuallywork better when it’s the other way around.
Rosie breaks the silence.
“Do you think we should ask for a change in venue?
There’s been a lot of press coverage. It may be tough to get anunbiased jury.”
We’ve talked about this a couple of times. The defense often asks fora change in venue to a galaxy far, far away, where the potential jurorshaven’t seen all the press coverage.
Mort chimes in first.
“I still think we should stay here,” he says.
“San Francisco is a liberal town. I’d rather try a murder case herethan almost anywhere else in California.”
Rosie nods and I add, “I agree. You wouldn’t want to try this case inBakersfield or Orange County. I’d take my chances with a San Franciscojury.”
Joel says, “Then, I guess we’ll stay here?”
“Yes.”
Rosie says, “There’s something else we should talk about. Assumingthis moves forward, we need to think about trial dates. We’ll need toprepare witnesses, get experts, talk to jury consultants. It couldtake some time.” She turns to Joel.
“I’m sure you’ll want to waive the rule that says they have to startthe trial within sixty days.”
Mort agrees.
“I’ve never had a case where the defendant didn’t waive time.”
Joel sets his chin.
“I’m not going to waive time,” “Can we talk about this, Joel?” Iask.
“We can talk about it all you want,” he replies.
“Bottom line, I’m not waiving time. My life has been turned upsidedown for something I didn’t do. My reputation has been destroyed. Mywife and kids are going through hell. As much as I like staying hereat my parents’ house, I want to go home.
This case isn’t complicated. I didn’t do it. I’m not going to giveSkipper a year to practice for this trial. I want a trial date as soonas possible. Tell the judge tomorrow I’m not waiving time.”
“Joel,” I say.
He stops me.
“No. I’m the client. What I say goes. I’m not waiving time.”
CHAPTER 19
THE PRELIMINARY HEARING
News Center 4 has learned from reliable sources that Joel Mark Friedmanhas confessed to the murders of two colleagues. Judge Kenneth Brownwill preside at the preliminary hearing at ten o’clock today.”
—rita roberts. news center 4 daybreak. tuesday, january 20.
“Your Honor,” Mort begins, “we have three very serious issues.” Atnine o’clock in the morning on Tuesday, January 20, Rosie, Mort and Isit in Judge Kenneth Brown’s cramped chambers. Skipper and McNulty arewith us. Brown’s desk is littered with files and law books. There’s apicture of him shaking hands with the governor on his credenza.
Judge Brown is late fifties, with a lanky frame, a salt-and-pepperbeard and narrow eyes. He’s a former prosecutor and political ally ofthe mayor. He’s bucking for an appointment to federal court. At themoment, he’s stuck listening to motions and conducting preliminaryhearings. Unlike Judge Levin, Brown actually reads the Californiastatutes from time to time and is viewed as an up-and-comer. Thescouting report suggests he’s never met a prosecutor he didn’t like.
“What’s the problem, Mr. Goldberg?” he asks. He’s all business.
This morning’s motions will be Mort’s show. If he can’t convince hispoker buddy Judge Brown to exclude the confession, we’re in bigtrouble. It’s the closest we will come to having home-field advantage.Mort’s actually very good on evidentiary issues.
“First,” he says, “Inspector Marcus Banks has alleged Mr. Friedmanconfessed. He didn’t. Second, Mr. Fried man wasn’t Mirandized whenhe was questioned. Even if we assume he did, in fact, confess—whichhe didn’t—the confession is inadmissible. Third, somebody from Mr.Gates’s office leaked the alleged confession to the press. Thepotential juror pool has already been tainted. We have no choice butto move for dismissal.”
He’ll never dismiss the case. Not a chance.
“Your Honor,” Skipper begins.
The judge cuts him off.
“Mr. Gates, I’ll tell you when it’s your turn to talk.”
Skipper nods submissively.
“Yes, Your Honor.”
The judge turns back to Mort.
“Let’s take this one step at a time. I’ve read your motion. I’m notin a position to determine what was said. For purposes of thishearing, I have to let Inspector Banks testify about what heheard—unless I’m pretty sure he’s committing perjury.”
Skipper grins.
“But, Your Honor…” Mort says.
Brown raises his hand. Mort stops mid-sentence.
“On the other hand,” he continues, “your other charges are considerablymore serious.”
Skipper stops grinning. The judge points his pencil at him.
“Mr. Gates, was the defendant properly Mirandized before the interviewtook place?”
Skipper looks at McNulty.
“No, Your Honor,” he says.
“He wasn’t Mirandized because he wasn’t a suspect at the time.” McNultynods in agreement.
Brown frowns.
“How long was Mr. Friedman questioned?”
Skipper clears his throat.
“A couple of hours, Your Honor,” he murmurs.
“I’m sorry, Mr. Gates, I didn’t hear you.”
“A couple of hours, Your Honor.” He says it louder this time.
I interrupt.
“Actually, the interview took four hours. This issue came up at thevery end.”
“I see.” Brown turns back to Skipper.
“Did the defendant volunteer the information or did Inspector Banks askhim if he committed double murder?”
There’s a pause. Skipper looks at McNulty.
“I believe he responded to a question.”
“Mr. Gates,” says Brown, “perhaps we should invite Inspector Banks inso he can tell us exactly what happened.”
“That’s a good idea,” Skipper replies.
Judge Brown asks his bailiff to summon Banks, who strolls inconfidently a moment later. He’s well dressed, in a double-breastedgray suit. His French cuffs are adorned with large gold cuff links. Idon’t know how he can afford his wardrobe on his salary. He takes theone empty chair.
“Inspector Banks,” Brown says, “we understand you interviewed Mr.Friedman.”
“Yes, Your Honor.”
“And toward the end of the interview, you claim he confessed tocommitting the murders of Robert Holmes and Diana Kennedy?”
He doesn’t hesitate.
“Yes, Your Honor. That’s right.”
“Was the interview taped?”
“Yes, Your Honor.”
“Was this alleged confession taped?”
He pauses briefly.
“Well, no, Your Honor.”
Brown opens his eyes wide.
“Why not?”
“My partner, Inspector Johnson, and I had concluded the formal part ofthe interview. We had turned off the tape recorder.”
“And after you turned off the tape recorder, Mr. Friedmanconfessed?”
“Yes.”
Brown taps his pencil on the desk.
“What a coincidence. Where was Inspector Johnson when Mr. Friedmanallegedly confessed?”
“He was outside the room.”
“And why was that?”
“He went to get Mr. Friedman a drink of water.”
“So Inspector Johnson didn’t hear this alleged confession.”
“No he didn’t.”
“And nobody else heard it?”
“No.”
“Your Honor,” I say.
He stops me.
“It will be your turn in a minute, Mr. Daley. Inspector Banks,” hecontinues, “how long have you been with the department?”
“Thirty years.”
“And how many murder suspects have you interviewed in thirty years?”
He thinks.
“Hundreds. Maybe thousands, Your Honor.”
The judge points a menacing finger toward him.
“And you’ve heard of the Miranda rules?”
He swallows.
“Yes, Your Honor.”
“Inspector Banks, here’s my problem. We understand you didn’t give Mr.Friedman his Miranda warnings when you questioned him. Is thatcorrect?”
He glances at Skipper.
“Yes, Your Honor. That’s correct.”
I’m impressed with his truthfulness. He could have lied and said heread Joel his rights. It would have been his word against Joel’s.
“And may I ask why not?”
Without hesitation, he says, “He wasn’t a suspect at the time ofquestioning.”
“I see.” He gestures at Banks with his glasses.
“Inspector, did Mr. Friedman volunteer this information, or did herespond to a question?”
“I believe I asked him a question.”
“And what was your question?”
Banks looks directly at the judge.
“I asked him if he did it.”
“You asked him if he did it?”
“Yes, Your Honor.”
“But he wasn’t a suspect.”
“No he wasn’t, Your Honor.”
“And how did he respond?”
“He responded affirmatively.”
“Affirmatively?”
“Yes.”
“In other words,” Judge Brown says, “he said yes.”
“That’s correct.”
Mort interrupts.
“Your Honor,” he says, “in point of fact, Mr. Friedman did not sayyes. He said the word ‘right’ in a sarcastic tone. He was beingfacetious.”
Brown turns to Banks.
“Is that your recollection of the conversation, Inspector?”
“No, Your Honor. I distinctly asked Mr. Friedman if he did it, and heresponded affirmatively.”
Nice dance, Marcus. But not good enough.
“Your Honor,” I interrupt, “Mr. Banks did not answer your question.” Iturn to Banks.
“Isn’t it true, Inspector Banks, that in response to your question, Mr.Friedman responded by sarcastically saying the word ‘right’?”
“That’s not the way I remember it.”
McNulty leaps in.
“Your Honor,” he says, “even if Inspector Banks asked the defendant ifhe committed the acts in question, he didn’t need to be Mirandizedbecause he wasn’t a suspect.”
Brown is unhappy.
“Mr. McNulty,” he says, “it seems to me it’s a pretty long stretch tosuggest Mr. Friedman wasn’t a suspect if Mr. Banks was asking if hecommitted these crimes.” He turns to Banks.
“If he wasn’t a suspect, Inspector, why did you ask him if he didit?”
I’m trying to find an opportunity to continue my argument that Joeldidn’t really confess at all. I glance at Rosie. She gives me the“shut up” look. Mort keeps his eyes on the judge.
Banks shrugs.
“I’m not sure, Your Honor. I guess I just wanted to know.”
Judge Brown looks at Skipper.
“Mr. Gates, may I assume you have enough evidence to present todaywithout this ‘alleged’ confession?”
Skipper hesitates. The correct answer, of course, is yes.
“Yes, Your Honor,” he finally says.
“But it really would help me to get this confession in.”
“Then Inspector Banks should have followed the Miranda rules,” heshoots back.
He looks at Banks.
“The defendant’s motion is granted. The alleged confession is out. Idon’t want to hear a word about it today at the prelim.” He turns toSkipper.
“Mr. Gates,” he says, “you had better be prepared to move forwardwithout it.”
“We are, Your Honor,” Skipper replies. He glares at Banks.
Round 1 goes to the good guys.
Mort’s expression doesn’t change. He’s still a warhorse.
“Your Honor,” he says, “we have another problem. This bogus confessionwas leaked to the press. I’ve already received inquiries from severaltelevision reporters. In fact, I saw it on the news this morning. Thepotential-juror pool has been irreparably tainted. I have no choicebut to ask that the charges be dropped.”
It never hurts to ask. He’ll never go for it.
Brown’s grin is almost imperceptible.
“If that was a motion to have the charges dropped, Mr. Goldberg, it’sdenied. Nice try, though.” Skipper looks pleased.
He continues, “I am ordering Mr. Gates to issue a statement sayingthere was no confession. I will approve its contents. I expect it onmy desk by two o’clock.”
Skipper is no longer pleased.
“I resent the implication that this information was leaked from myoffice,” he says.
Brown looks right through him.
“Mr. Gates,” he says, “I expect the statement on my desk by twoo’clock. If it isn’t, I’ll hold you in contempt. Do youunderstand?”
“Yes, Your Honor.”
“Good.”
“Your Honor,” Mort says, “I think Mr. Gates should be sanctioned forthis irresponsible leak.” The bull is sprinting at full speed throughthe china shop. I glance at Rosie. The corners of her mouth turn upslightly.
“Your Honor,” Skipper implores, “we didn’t leak anything to thepress.”
Mort turns to him.
“Oh, and I suppose you think we did?”
Judge Brown taps his pencil.
“Children, please. In the spirit of cooperation, I’m not going tosanction anybody right now.”
“Your Honor,” I say, “I would ask you to issue an order that wouldprohibit any such leaks in the future.”
He glares at Skipper.
“I’ll do better than that, Mr. Daley. As of this moment, I am issuinga total gag order. I don’t want any of you talking to the press.
Do you understand?”
We nod in unison.
“Good,” he says.
“Because if anybody violates the order, I’ll put them in jail forcontempt. I mean it. Fines don’t mean anything to you. I’ll put youin jail. For a long time. Understood?”
We nod again. It’s like kindergarten. When the bell rings, we get togo to recess.
“I’ll see you in court,” Brown says.
“Nice work, Mort,” I say. Joel, Rosie, Mort and I are sitting in asmall consultation room just behind Judge Brown’s courtroom.
“It’s a good result,” Mort says.
“We didn’t get everything, but we got the confession out.”
“What does it mean for the prelim?” Joel asks.
“The good news,” I say, “is they’ll have to show more of their case.”
“Can you get the charges dropped?”
Rosie, Mort and I glance at one another.
“It doesn’t look good,” I say.
“They don’t have to show very much. They’ve got you at the scene.They’ve got your fingerprints on the gun and the keyboard. They’ve gotthe phone messages.