A Criminal Defense Read online

  “That’s a helluva leap,” Donnally said.

  Navarro ignored him. “And evidence about how he did it is probably in his office.”

  “Probably,” Goldhagen said. “That’s the operative word. And ‘probably’ is not probable cause, and without probable cause there’s material relating to his death in there, we don’t have the basis for a search warrant. Sounds to me like Hamlin trusted you to develop that basis in a way that protects his clients.”

  Donnally glanced over at Goldhagen. “You’ve got me confused with somebody else. I have no interest in protecting his clients.”

  “Maybe you don’t, but I have to and so does the court—at least until I can get them convicted. Unless we do it by the book, some of them will walk. And the public will rightfully crucify me.”

  Navarro made a show of peering at his watch by the diffused light of the cloud-curtained daybreak showing itself behind the East Bay hills.

  “The clock is ticking.”

  But Donnally knew that’s not what he meant.

  The fact was that like Goldhagen, Navarro understood that from this moment, in the small town that was San Francisco, his name would be forever connected to Hamlin’s. And the detective dreaded heading into an investigation into the death of a man he despised while straitjacketed by rules that man had abused in life.

  Chapter 2

  Dr. Youssef Haddad pointed down at Mark Hamlin’s naked body lying covered by a plastic sheet on the stainless steel gurney in the medical examiner’s autopsy lab.

  The two gangsters whose overnight murders had delayed the forensic team’s arrival at Fort Point flanked him. Neither the humming exhaust fan nor the odor of disinfectant could suppress the stench of excrement and urine released from the bodies in death.

  “O propheta, certe penis tuus cælum versus erectus est.”

  “Sorry?” Donnally glanced over at the pathologist.

  “O prophet, thy penis is erect unto the sky.”

  “A prophet or the Prophet.”

  “The. According to the historian Abulfeda, the Imam Ali proclaimed it upon seeing the corpse of the Prophet Mohammed.”

  Donnally had never heard the quote before, but he’d seen the condition a few times while he was with SFPD and the name came back to him. Priapism. In homicide investigation training it had been described as a persistent erection. He couldn’t watch Viagra television commercials without thinking of its other names. When produced after execution by hanging or by strangling, it was called a death erection or angel lust.

  Although the Latin words were spoken in neither irony nor sarcasm, Donnally was surprised a Muslim doctor would even mention Mohammed in this context. Maybe he was only trying to say it was so natural even the Prophet was subject to it.

  The doctor pursed his lips and said, “Saints and sinners alike can be humiliated, even after death.”

  Haddad was one of the few pathologists Donnally had ever met who hadn’t lost or repressed his tragic sense, neither fearing it nor wearing it like a hair shirt.

  Donnally nodded toward Hamlin’s body, the sheet tented by his erection. “Premortem or post?”

  “The fact that it may be post doesn’t exclude the possibility it began before he died. He might’ve taken an erectile dysfunction medication. The tox results will tell.”

  Haddad exposed Hamlin’s head and shoulders.

  “But that’s not why I asked you to follow the body over here.”

  The swishing double doors announced the arrival of Detective Navarro, now dressed in surgical scrubs. His protective goggles and respirator mask, hanging by elastic straps around his neck, bounced against his chest as he crossed the room.

  Navarro nodded at Donnally as he walked up, and then grinned and said to Haddad, “Nothing like a little slice and dice in the morning.”

  The detective hadn’t rubbed his hands together, but had nonetheless sounded to Donnally as though he was about to sit down in front of a Denny’s Grand Slam breakfast.

  Haddad looked over at Navarro. The doctor wasn’t smiling. His tight mouth communicated his disapproval of those who chose to escape from the horror of violent death into macabre linguistic dances of irony or burlesque.

  “That line is getting old,” Haddad said.

  In Navarro’s continuing grin, Donnally saw Navarro hadn’t grasped the comment wasn’t directed at the line as much as at Navarro himself.

  Haddad gestured with his scalpel toward two ligature marks around Hamlin’s neck. One ran just above his Adam’s apple and circled his neck like a collar. The other looped under his chin and angled upward behind his ears and disappeared into his black hair.

  Haddad pointed from one to the other.

  “You can tell from the lack of blood in the abrasions in this diagonal one that it occurred after death.”

  “You think he was strangled from behind?” Donnally asked. “Then strung up?”

  Haddad nodded. “That’s my theory, but we’ll only know for certain after I shave off his hair to look for bruising and after I open him up and examine the back of his head and neck.”

  Donnally leaned down to inspect the marks. An undercurrent of lavender flowed beneath the churning stench of cleaning fluid. He glanced at Navarro.

  “Smell that.”

  Navarro bent over and took a sniff.

  “Soap. Some kind of scented soap.” Navarro looked at Donnally as he straightened up and said without a smile, “Smells like somebody washed him off before they hung him out to dry.”

  Donnally considered that crack to be Navarro’s second strike. He’d never met a competent homicide detective who made a habit of gallows humor. He’d always found it was the outward expression of a counterproductive kind of imagination, one that tended to take the detective off course, diverting him away from a mental cause-and-effect re-creation of the events that led to the death.

  He’d been willing to give Navarro a break because, at least for the moment, sarcasm had been better than his expressing outright the hatred cops felt toward Hamlin, something that might be quoted later and would cast doubt on the integrity of the investigation.

  But twice was enough, and he didn’t want to fight Navarro all the way through the case.

  Donnally glared at Navarro while holding up two fingers and shaking his head. The detective spread his arms as he raised his eyes toward the ceiling, then looked back and nodded in surrender.

  At the same time, Donnally was grateful for that hate, even though it had been sublimated into humor, for it seemed better than the brute reductionism of the medical examiner’s office by which still-warm humans devolved into mere fields of evidence.

  Now conscious of the war between the odors of the lab and the aroma of lavender surrounding the body, Donnally realized something didn’t make sense.

  “There seems to be a contradiction,” Donnally said. “Someone was rational and methodical enough to destroy evidence by washing him off, but irrational enough to think that the dead could be humiliated by being left hanging half naked in a public place.”

  Donnally tensed, ready to be annoyed when Navarro took another sarcastic swing, but he didn’t.

  “Unless the humiliation was directed at someone else,” Navarro said. “Maybe as a warning.”

  There was a new seriousness in Navarro’s voice, as though he worked his way past the filter of how he’d despised Hamlin in life in order to analyze the manner in which he had died and had been left to be discovered.

  “His being dead ought to have been warning enough,” Haddad said. “But then again, my part in the process has less to do with the psychology of homicide and more to do with the pathology of death.” He gestured toward the body. “I only interrogate the dead.”

  Donnally looked from Hamlin to Haddad. “And you’re sure it’s saying homicide?”

  Haddad pulled off the sheet and pointed at abrasions on Hamlin’s right wrist.

  “It certainly crossed my mind that he tied his own hands to keep himself from chan
ging his mind,” Haddad said. “But at least one factor mitigates against that.” He cocked his head toward pieces of a mountain climber’s rope bagged up on top of a utility table. “The knot was in a spot where he couldn’t have tied it.”

  “You mean, by himself?”

  “Exactly. By himself.”

  “So there’s no way it’s suicide?” Navarro asked.

  “Not based on this.”

  The following silence told Donnally their minds were leading them to the last possibility, that Hamlin’s death might have been a sexual homicide, an unintentional erotic asphyxiation at the hands of a partner.

  And when Donnally finally said, “Either he had an enemy or he had a helper,” they all knew what he meant.

  As they stood looking at the body, Donnally felt as though Hamlin’s history, outside of just the mechanics of how he’d come to this place, was now catching up to him and was verging on a future that lay in their hands.

  Who Hamlin would be in the public mind and how he would live on in his family’s memories might be determined in the next few minutes.

  Donnally thought of the reporters waiting in the medical examiner’s lobby, with voice recorders and video cameras ready, waiting to draw conclusions about Hamlin’s life and character from the manner in which he died. Donnally wasn’t a Buddhist, but, for the moment, an anonymous death leading toward eternal oblivion seemed a more preferable route to travel than the path someone had chosen for Hamlin.

  Donnally felt Navarro’s eyes on him, as though the detective was saying, You do it. You release it to the press. Tell them about the condition of his body, his angel lust. Prove to the public you have no interest in protecting Hamlin, or at least that saving his reputation wasn’t the reason Hamlin chose you.

  He stared back at Navarro, as though to say, You do it. You couldn’t expose Hamlin in life, so take a shot at him now, when he can’t answer, when you’ll have the last word. Prove to the public Hamlin was reckless beyond just the immorality and illegality of his law practice, and all the way beyond the limits of life itself.

  Haddad cleared his throat.

  Donnally and Navarro both blinked. Neither one was willing to play that game.

  Chapter 3

  We need some ground rules,” Presiding Judge Raymond McMullin said as he leaned forward in his high-backed leather chair and hunched over his desk.

  Donnally and Navarro had observed the autopsy just long enough to confirm Hamlin had been strangled from behind rather than asphyxiated by the rope by which he was hanging, and then walked over to the Superior Court to meet District Attorney Hannah Goldhagen in chambers when the judge arrived at 8 A.M.

  During his detective years, Donnally always liked bringing search and arrest warrants to McMullin, always learned something new about the law and about the gap that too often separated the form of justice from its substance in practice, and the ideal of justice from the institutions in which it was supposed to be accomplished. For McMullin, the tragedy of the law and the heartbreak of his life as a judge was his inability to close all those gaps and to prevent the free fall of victims, witnesses, and defendants into them, and he’d never been afraid to admit it, even to a cop half his age.

  It had always seemed to Donnally that McMullin was a throwback, reincarnated from a world that existed early in the previous century. He was a judge because someone in his family always had to become a judge, like an old Irish family in which one son always had to become a priest. And since Donnally had been retired out of SFPD, McMullin had aged into the most senior, the monsignor to the Hall of Justice’s priestly class.

  McMullin pointed at Goldhagen. “I don’t want you to use this investigation as a fishing expedition, a device to reexamine and reopen all of Mark Hamlin’s old cases.”

  Goldhagen sat up, her back arched as though about to protest.

  McMullin held up his palm toward her.

  “It’s not that I wouldn’t want to do it if I were in your place. There are countless times when I wished I could’ve gotten him prosecuted for obstruction of justice. But he was too slick and always found ways to slip by.”

  Goldhagen sat back.

  The judge gestured toward the hallway. “The stunt he pulled last week was disgusting, but none of those gangsters would admit he put them up to it.”

  “What if he”—Goldhagen glanced at Donnally—“comes across evidence of crimes that can still be prosecuted, like against some of the private investigators Hamlin used to do his dirty work?”

  “That’s a hypothetical you won’t have to face. He”—now McMullin looked at Donnally—“won’t. Hamlin wasn’t stupid enough to leave that kind of trail.”

  Donnally didn’t like being talked about in the third person, as though he was a dog or an Alzheimer’s patient incapable of exercising his own judgment.

  “That gives us rule number one,” Donnally said. “Based on what I find, I’ll decide whether something should be referred for prosecution.”

  Now all eyes turned toward him.

  “And rule number two, I’ll take Detective Navarro along whenever I can.” Donnally glanced over at Goldhagen and pointed with his thumb toward Navarro. “He’ll work with you to get whatever search warrants we need.”

  “So far, so good,” McMullin said, then smiled. “Don’t I get to …”

  Donnally nodded and spread his hands to take in the wood-paneled chambers. “You’re the one in charge.”

  McMullin shifted his gaze toward Goldhagen. “I’m very concerned about the appearance of a conflict of interest. The public might view your office as more interested in getting even than seeing justice done.”

  Goldhagen reddened, and they all understood why. After a series of district attorneys that had been perceived by the press as defense attorneys in the guise of prosecutors—who never sought the death penalty in murder cases, who never moved to deport immigrant felons, who never prosecuted marijuana grow operations—she’d run as a prosecutor’s prosecutor in what had been, since the Barbary Coast days, a lawless and disordered town.

  The police officers association supported her, but not with enthusiasm, as they weren’t ready to wean themselves from the political cover of always having someone else to blame for their low case-closure percentages and the court’s low conviction rates.

  It wasn’t that San Francisco was the murder capital of California, just that it was the city in which murderers were most likely to get away with it.

  And for those times when there was neither the district attorney nor the police department to blame, there was always Mark Hamlin and others like him in the defense bar.

  “There’s nothing we can do to Hamlin that’s any worse than what was done to him this morning,” Goldhagen said. “But whether or not his death is connected to any of his clients, we’ll kick down any door to get to whoever did it.”

  “That’s rule number three,” McMullin said. “You’ll refer any potential cases arising out of this investigation to the state attorney general for prosecution.”

  Goldhagen folded her arms across her chest. “You can’t force—”

  “Aren’t we getting ahead of ourselves?” Donnally said. “For all we know, his death has nothing to do with his work and all to do with his private life. I don’t know all the things Hamlin was up to. The condition of his body suggests some possibilities, but no more than that. Maybe we can narrow them when we open up his apartment.”

  Donnally saw Navarro look down. He noticed Goldhagen had also spotted the motion. They both turned toward him.

  “Don’t tell me you’ve already gone inside?” Donnally said. “You led me to believe your people just checked for forced entry and looked in through the windows.”

  “We had to make sure there weren’t other victims in there,” Navarro said, looking first at Donnally, then at the judge. “I promise, Your Honor”—he raised his hand as though swearing an oath—“the officers didn’t touch anything. Just glanced around and sealed up the place.”

>   The irony of SFPD’s breaking into Hamlin’s apartment rose up before all of them. It was exactly the sort of illegal search Hamlin had exploited a hundred times to force courts to dismiss otherwise provable crimes. And now that same violation might taint the prosecution of Hamlin’s own killer.

  Donnally heard Goldhagen mumble a few words.

  “What did you say?” Donnally asked.

  “I said it’s poetic justice.”

  Donnally pushed himself to his feet. “And I don’t want to have anything to do with it.”

  “Look,” Navarro said, his voice rising, “if we didn’t go inside and there was a victim bleeding out in there, we’d look like idiots for not doing it.”

  “By that logic,” McMullin said, “you’d have the right to search every apartment in San Francisco.” He pointed at Donnally, now sliding back his chair in order to make his way to the door. “Hold on.” He then asked Navarro, “Have officers also broken into Hamlin’s office?”

  “His assistant opened up the place and let them do a sweep.” Navarro looked up at Donnally. “You would’ve done the same thing when you had my job.” Then at the judge. “Until you issue the order making him special master, it’s my case and I’m responsible. I didn’t want it on my conscience if somebody died on Hamlin’s kitchen floor waiting for that to happen.”

  “Consider the order issued.”

  “Don’t I have anything to say about it?” Donnally asked, knowing he had a choice, but also now understanding that he probably wasn’t going to exercise it.

  When he left police work, he’d taken some unanswered questions with him. Some had come to him while he was on the job, but the more fundamental ones he’d brought with him from a nightmarish childhood in Hollywood, ones he’d hoped a career in the world of brute fact and rough justice would answer.

  And he wasn’t going to deceive himself about it. He understood the reason he’d accept the appointment wasn’t because he cared all that much about who killed Hamlin, except in the abstract sense that killers must be caught. It was more that he’d never understood lawyers like Hamlin, and maybe this was his chance to get an understanding of what was satisfied in them by corrupting the criminal justice process. To understand why the kind of deceit that would’ve outraged Hamlin, if he had been a victim, was just a harmless game when he inflicted it on others. To understand why his deceptions seemed to justify all other deceptions, by judges, by police, and by prosecutors.