“Mr. Gates is going to introduce circumstantial evidence to show thatJoel Friedman and Diana Kennedy were having an affair. He’s going toclaim that she broke up with him and initiated a romantic relationshipwith Mr. Holmes. There was, in fact, no such affair between JoelFriedman and Diana Kennedy. It didn’t happen.”
I spend thirty minutes trying to cast doubt on every piece of evidence,liberally using the words “shaky,”
“contrived” and “convoluted.” I think the jury is with me. I glanceat Rosie, who blinks twice. It’s my signal to wrap up.
“Ladies and gentlemen,” I say, “I realize Mr. Gates has suggested toyou that my job is to obfuscate and confuse you. Let’s be realistic.We all saw the Simpson trial. We all know that there are lawyers whowill do just about anything to get their client off.” I move closer tothem.
“I want you to understand something. I’m not that kind of lawyer. Iwill not lie to you. I will not attempt to confuse you. And I willnot, under any circumstances, try to mislead you.”
Actually, I’d try to obfuscate and confuse them in a New York minute ifI thought it would help get Joel off.
“I need you to keep an open mind and review the evidence. I knowthere’s a lot of animosity directed toward lawyers. I would ask younot to take out your feelings toward the legal profession against JoelFriedman. You don’t have to look very far to find cases where justiceisn’t served. In this trial, I would ask you to help me try to makethe system work the way it’s supposed to. When we’re done, I know youwill agree that Joel Friedman is not guilty of these terriblecrimes.”
I sit down. The judge says we’ll break for the weekend.
At nine o’clock the same evening, Rosie and I are watching CNN. Thepanel of experts in the bleachers has proclaimed Skipper the hands-downwinner of opening statements.
“Daley should have waited until after the prosecution’s case to givehis opening,” says the woman with the bad hair.
“Nah,” says the head of the disembodied woman on the TV screen.
“Gates has too much charisma. At least Daley got to the jury beforethe horse was out of the barn.”
The prosecutor from Texas who always wears a Stetson hat in a hot TVstudio sides with Skipper.
“They should have tried for a plea bargain,” he drawls.
We flip to CNBC.
“If I were in Daley’s shoes,” says Marcia Clark, “I’d be begging theprosecution for a deal.”
Thanks, Marcia. Rosie shuts the TV off.
“Was it that bad?” I ask her.
“You held your own. The prosecution gets to play its good cardsfirst.” I hope she’s right. It doesn’t make me feel any better.
CHAPTER 33
LAYING THE FOUNDATIONS
“The most important thing prosecutors learned from the Simpson trial isto keep your case short and sweet.”
—news center 4 LEGAL ANALYST morgan henderson. monday, march 23.
The sun makes a cameo appearance for a few minutes on Monday morning.By the time we reach the Hall, it’s raining again. We push our waypast the ever-present TV cameras.
We take our seats at the defense table. Joel asks, “Who do you thinkthey’ll call first?”
The conventional wisdom is that prosecutors build their case one pieceat a time. They have to prove the defendant was there. They have toprove he had opportunity. They have to show he had contact with themurder weapon. And they have to show motive. Piece by piece. Blockby block. If all the blocks don’t fit, the defendant walks. It’s thatsimple.
“They’ll probably start with the first officer on the scene and worktheir way through the physical evidence,” I reply.
“It lays the foundation for their entire case.”
Harriet Hill calls for order and instructs us to rise. Judge Chentakes her seat on the bench and pounds her gavel. She looks atSkipper.
“Are you ready to call your first witness?”
“Yes, Your Honor.”
Harriet Hill brings in the jury.
Skipper straightens his tie.
“The people call Officer Paul Chinn.”
It’s not a bad place to start. He was the first officer at thescene.
The young police officer’s uniform is freshly pressed. He walks to thefront of the courtroom and is sworn in. His demeanor is stoic. Copsare trained to stay calm. Some are better at it than others. My dadused to hate going to court.
“Officer Chinn,” Skipper begins, “were you the first officer to arriveat the Simpson and Gates offices on the morning of Decemberthirty-first?”
“Yes, sir,” he says a little too quickly.
“I arrived at eight-twelve a.m. I responded to a nine-one-onedispatch.” His delivery is a little wooden but the tone isstraightforward. Juries pay close attention to the early witnesses.
Then they start to get bored. Chinn says he was met by Chuckles in thelobby.
In response to Chinn’s preliminary questions, Chuckles said nobody wasin danger. Then he escorted Chinn to Bob’s office, where Joel waswaiting outside.
Skipper nods to McNulty, who places an enlarged diagram of Bob’s officeon the easel in front of the jury. Skipper has Chinn identify it as adiagram of the crime scene. Skipper turns to Judge Chen and requeststhat the diagram be introduced as an exhibit.
She looks at me.
“No objection, Your Honor,” I say. I’m glad they’ve decided to use adiagram instead of the crime-scene photos. I’m sure these will comelater.
“Officer Chinn,” he continues, “would you mind showing us where thebodies were found?”
Chinn leaves the stand and walks to the diagram. He uses a Bic pen topoint to the places on the floor where the bodies were found. Skipperwalks him through a brief tour of the scene. Then Skipper picks up arevolver wrapped in clear plastic from the evidence cart.
“Officer,” he says, “do you recognize this?”
“Yes. It’s the weapon I found on the desk of Mr. Holmes.”
At least he didn’t call it the murder weapon.
Next Skipper has him identify the three spent shell casings and thethree unused bullets that were sitting on the desk when he arrived.
“Where did you find the casings and the bullets?”
“On the desk.”
“Did that seem odd to you?”
“Yes. I would have thought the bullets would have been in the gun.”
“Do you know how the bullets got on the desk?”
I’m up.
“Objection. Calls for speculation. Officer Chinn has no personalknowledge of how the bullets made their way to the desk.” It’s good toget your first objection out of the way.
“Sustained.”
Skipper says, “I’ll rephrase. Did the defendant explain to you how thecasings and the bullets found their way to the desk?”
Chinn responds, “The defendant said he unloaded the gun after he foundthe bodies. He directed me to the casings and the bullets.” His toneis measured.
Skipper scowls. Not the answer he wanted.
“Did you see the defendant unload the gun?”
“No.”
Skipper glances at the jury.
“Was the defendant acting suspiciously?”
“Objection. The question goes to the defendant’s state of mind.” Well,not exactly, but I’m going to try to break up Skipper’s rhythm while Ican.
“Your Honor,” Skipper says, “I’m not asking Officer Chinn to read thedefendant’s mind. I’m simply asking for his observations of thedefendant’s behavior immediately following the incident.”
“Overruled.”
Chinn looks at Joel.
“The defendant was agitated and extremely upset.”
Skipper is pleased.
“And did you have any basis to conclude that the defendant may have hadany involvement in the deaths of Mr. Holmes and Ms. Kennedy otherthan as a witness?”
“Objection. Speculative.”
“Sustained.”
I’m going to take my shots while I can. Skipper is going to get thehang of this sooner or later.
Skipper strokes his chin.
“Officer, after you found the bodies, the murder weapon, the bulletsand shells, what did you do?”
“Objection. There’s no foundation for the characterization of the gunas the ‘murder’ weapon.”
“Sustained.” She turns to the jury and says, “The jury will disregardthe characterization of the revolver as the ‘murder’ weapon.”
Sure they will. Skipper rephrases the question, leaving out the word“murder.”
Officer Chinn says he followed standard procedure; he secured the sceneand called for reinforcements. He describes the arrival of the policeand the paramedics, followed by the technicians from the coroner’soffice, the police photographers and the homicide inspectors.
“No further questions, Your Honor.”
Not a bad direct exam for a guy who’s never done it before. And not abad performance by a young cop who’s batting leadoff in his first bigcase.
“Officer Chinn,” I say calmly, as I stand, “you’ve told us you foundthe revolver, the spent shells and the unused bullets on the desk ofMr. Holmes.”
“That’s correct.”
“And you’ve testified Mr. Friedman told you he unloaded the gun.”
“Yes.”
“Did he tell you why he unloaded the gun?”
“He said he did it to protect the safety of the other members of thefirm.”
“I see. That’s an admirable goal, isn’t it?”
“Objection. Speculative.”
“Sustained.”
I’ve made my point.
“Officer, did you have any reason to disbelieve Mr.
Friedman when he told you he had disarmed the revolver?”
Chinn looks helplessly at Skipper.
“No,” he replies.
“Did you see any evidence on his hands or clothing that suggested hefired the gun?”
“It would have been very difficult to see any such evidence with thenaked eye, Mr. Daley.”
“I understand. But did you see any such evidence?”
“No, sir.” It’s generally a good sign when the witness starts callingyou “sir.”
“And did you collect any samples of tissue or clothing from Mr.Friedman to obtain evidence that he did, in fact, fire the gun?”
He scratches his cheek.
“No, sir.”
“So you have no personal knowledge as to whether he fired the gun?”
Skipper stands.
“Asked and answered, Your Honor.”
“Sustained. Move along, Mr. Daley.” I was wondering how long she’dlet me go.
“Officer, you testified that you secured the scene.”
“That’s right.”
“So nobody could have left the Simpson and Gates suite once youarrived, correct?”
“That’s true.”
“You secured the elevators?”
“Yes.”
“And the stairs?”
“Yes.”
I give him an inquisitive look.
“You were the only officer at the scene when you arrived, right?”
His eyes dart toward Skipper.
“Yes.”
“And you were able to secure six elevators and two internal stairwaysall by yourself?”
He looks perplexed.
“Other officers arrived right away. We secured the scene as soon aspossible.”
“What about the freight elevator?”
“We secured it.”
“When?”
He purses his lips.
“When the other officers arrived.”
“So, Officer, it is possible that any number of people could have fledthe scene on the elevators or the stairs or the freight elevator beforeadditional officers arrived, isn’t it?”
“Objection. Speculative.”
“Overruled.”
Officer Chinn looks troubled.
“I suppose that’s possible.”
So far, so good.
“Officer, you testified Mr. Friedman was agitated and upset when youarrived.”
“That’s correct.”
“How long have you been on the force?”
He looks away. He seems to be adding it up in his head.
“Three and a half years.”
“How many times have you been the first officer at the scene of analleged homicide?”
“This was the second time.”
“How many dead bodies have you seen in three and a half years?”
“Objection,” Skipper says.
“I fail to see any relevance.”
Judge Chen looks impatient.
“Overruled.”
“I’ve seen three dead bodies,” Chinn replies.
I get right in front of him.
“Officer Chinn, in your experience, when you arrive at the scene ofthe homicide, isn’t it usually the case that the people are upset?”
“Yes.”
“And isn’t it true that the people who are most upset are often thepeople who found the body?”
“Yes, sir.”
“Wouldn’t it be fair to say that Mr. Friedman’s reaction was notunusual in the circumstances?”
Skipper should object. I’m shamelessly asking him to speculate.
“That’s fair,” Chinn says.
Gotcha.
“One last thing. When you arrived, you were met by Mr. Stern, whotold you nobody was in danger.”
“That’s correct.”
“Officer,” I say, “you arrived within minutes after Mr. Sterndiscovered the bodies. How did he know there wasn’t a killer on theloose in the Simpson and Gates office?”
Chinn looks at Skipper and then at McNulty.
“I guess he assumed nobody was in danger because he found the murderweapon on the desk of Mr. Holmes.”
“Move to strike the word ‘murder’ from Officer Chinn’s testimony.”
“Sustained. The jury will disregard the characterization of the weaponas the ‘murder’ weapon.”
“Officer Chinn,” I continue, “isn’t it possible that Mr. Stern knewthat nobody was in danger because he knew Mr. Holmes had committedsuicide?”
“Objection. Speculative.”
“Sustained.”
“Isn’t it possible Mr. Stern knew that nobody was in danger because heknew who the real killer was? And the real killer may have even beenhim?”
Murmurs in the back of the courtroom.
“Objection. Speculative.”
Judge Chen pounds her gavel.
“The objection is sustained.” She points her gavel toward thegallery.
“If there are any other disruptions, I will clear this courtroom.”
“I have no further questions of this witness, Your Honor,” I say.
“You took him apart,” Joel says as we take a short break after Chirm’stestimony. We’re in the consultation room behind Judge Chen’scourtroom.
“He’s a kid, Joel. He’s just a table-setter.”
“Still,” he says, “you made him contradict his story. That’s good.”
I get a more realistic view from Mort.
“Nice cross,” he says.
“The jury seems to like you.”
“We have a long way to go,” Rosie observes.
After the brief recess, Skipper calls Sandra Wilson. She spends thenext hour describing how she meticulously gathered every shred ofevidence in Bob’s office and Diana’s apartment. Skipper is doing it bythe book. He’s confirming to the jury that there are nochain-of-custody issues. He’s introducing all the evidence he’ll needlater in the trial. She describes how she handled and catalogued therevolver, the spent shells and the unused bullets. She confirms therevolver was registered to Bob. She identifies the keyboard. Iinterrupt periodically. Realistically, I’m not going to win anybattles with Sandra on the stand. Pete and I looked at every piece ofevidence. There’s no point in making an ass of myself while she’stestifying. It will only piss off the phone company supervisor.
I ask a few perfunctory questions on cross. I want to get her off thestand as fast as I can.
After lunch, Skipper raises the stakes. Marcus Banks looks ready forbattle as he strides confidently to the front of the courtroom. Afterhe’s sworn in, Skipper picks up a neatly labeled cassette tape from theevidence cart.
“Inspector,” he says, “do you recognize this?”
Banks nods solemnly.
“Yes. It’s a recording of a message left on Diana Kennedy’s answeringmachine at approximately twelve-fifty-one a.m. on Decemberthirty-first.”
“And could you describe the contents of the message?”
“Objection, Your Honor. Hearsay.”
“Overruled.” I’m not surprised. I know she’s going to let themintroduce the tapes into evidence. We’ve fought this battle andlost.
“The message was from the defendant. He asked Ms. Kennedy to returnto the office.”
Nice response. Straightforward. Noninflammatory. I can seeMcNulty’s influence. They’re going to build their case carefully.They don’t need theatrics—yet.
“Inspector, did the defendant sound agitated or upset in themessage?”
“Objection. Asks for Mr. Friedman’s state of mind.”
“Sustained.”
Skipper introduces the tape into evidence. He asks the judge forpermission to play it to the jury. Judge Chen gives me an inquisitiveglance.
“Your Honor,” I say, “the defense renews its objection to having thistape entered into evidence.” She won’t go for it. I’m stating it forthe record so we can challenge her decision on appeal. She knows it.
“We’ve been over this before, Mr. Daley. Your motion is denied.”
“The defense therefore requests that Your Honor instruct the jury toconsider the fact that this tape is being played in the absence ofcontext.”
Skipper says, “Your Honor, we believe the tape speaks for itself.”
Judge Chen looks at the jurors.
“Ladies and gentlemen,” she says, “you are about to hear a recording ofa conversation between Mr. Friedman and Ms.
Kennedy. You should consider the fact that you have not been giveninformation concerning the context in which this recording was made.”
Skipper hands the cassette to McNulty, who puts it into the tapeplayer. The courtroom becomes silent. The jurors all focus on thetape player. The heated voices of Joel and Diana resonate in thecourtroom. Joel closes his eyes.
Naomi’s lips form a tight line across her face.
The tape ends. Skipper turns back to Banks.
“Were you able to identify the voices?”
“Objection. Inspector Banks has not been qualified as a voice-recognition expert.”
“Overruled.”
“The male voice was that of the defendant,” Banks says.
“The female voice was that of the victim, Ms. Kennedy.”
They go through a similar exercise for the voicemail message from Joelto Bob.
“Inspector Banks,” Skipper says, “do you believe Mr. Friedman wasangry enough at the time these tapes were made to kill two people?”
I’m up like a shot.
“Objection, Your Honor. Speculative. State of mind.”
“Sustained. The jury will disregard the last question.”
Oh, sure. Skipper smiles.
“No further questions,” he says.
I stand up right away.
“Inspector Banks,” I say, “you weren’t present when these telephoneconversations were recorded, were you?”
“Of course not.”
“So you don’t really know why Mr. Friedman called Ms. Kennedy, doyou?”
He looks indignant.
“It’s obvious. He was angry at her.”
I deserved that.
“Inspector, are you aware that Ms. Kennedy and Mr. Friedman wereworking on a very large transaction?”
“Yes.”
“And they were under a lot of pressure to close that transaction thenext morning and that millions of dollars were riding on the successfulclosing?”
“Objection. Leading.”
“Overruled.” It’s okay to lead on cross. McNulty whispers toSkipper.
“Isn’t it possible Mr. Friedman called Ms. Kennedy because he neededhelp on the deal?”
“I don’t think so.”
“But it’s possible, right?”
“I don’t think so,” he repeats.
He isn’t going to budge.
“Inspector, let’s talk about Mr. Friedman’s voicemail message to Mr.Holmes. Are you aware that Mr. Friedman was told that he wasn’t goingto make partner that night?”
“Yes.”
“And do you believe that Mr. Friedman was upset about that?”
“Yes.”
“If you’d worked for eight years to try to make partner, you’d probablyhave been upset, too.”
He shrugs.
“But you’ve interpreted Mr. Friedman’s voicemail message to Mr.Holmes as a threat.”
“Yes. I think it’s obvious.”
“Let me ask you this, Inspector. Have you ever worked in a lawfirm?”
“No.”
“But you’ve spent a lot of time around lawyers, right?”
He smiles sardonically.
“More than I’d care to,” he says.
“And you know a little bit about how lawyers think, right?”
“Objection, Your Honor. Can we get to the point?”
“Sustained.” Judge Chen rotates her hands like a basketball refereemaking a traveling call.
“Speed it up, Mr. Daley.”
“Inspector, lawyers sometimes say things just for effect, or just tomake a point, right?”
“Right. Kind of like right now, right, Mr. Daley?”
Touche.
“As a matter of fact, yes. Lawyers sometimes take exaggeratedpositions just as a negotiating tactic, don’t they, Inspector?”
“That’s true.”
“And isn’t it possible, Inspector, that Mr. Friedman’s voice-mailmessage to Mr.
Holmes was, in fact, lawyerly posturing?”
“Not the way I heard it.”
“But, it’s possible, isn’t it, Inspector?”
“I don’t think so.”
“Come on. Inspector. Be reasonable.”
Skipper stands up and objects in a measured tone.
“Your Honor, Inspector Banks has answered Mr. Daley’s question.”
The hell he has.
“Sustained.”
I’ve gone as far as I can.
“No further questions.”
Joel isn’t happy about my crossexam of Banks. We’re in theconsultation room during the break.
“Jesus, Mike,” he says, “couldn’t you have nailed Banks?”
Mort sticks up for me.
“Banks wasn’t going to move an inch. Mike got him to look like astubborn jerk. It’s the best we could do.”
Thanks, Mort.
Joel scowls.
“Maybe Mort should take a few witnesses.”
Mort looks pleased. I turn back to Joel.
“The prosecutor always looks good at the beginning,” I say.
“We have to chip away at their case a little at a time.”
He tosses a crumpled paper cup into the trash and doesn’t respond.
CHAPTER 34
I AM THE CHIEF MEDICAL EXAMINER FOR THE CITY AND COUNTY OF SAN
FRANCISCO
“Dr. Beckert has testified at hundreds of murder trials. Histestimony will undoubtedly be very damaging to the defendant’s case.”