A Criminal Defense Page 3

  Or maybe he’d get an answer to another question, one that asked whether Hamlin was a product of a system he’d joined or one of its creators. A chicken-both-before-and-after-the-egg scheme of organized deception that already had Navarro lying to him about searching Hamlin’s apartment.

  McMullin pointed at Donnally’s chair. “Sit down. It’s no harm, no foul.”

  “You sure?”

  They all looked at Navarro, who hesitated a beat, then said, “I’m sure.”

  “I think we need a rule number four,” McMullin said. “Just to make sure there is no harm in the future and we risk no more fouls.” He looked at Donnally. “No dipping into Hamlin’s attorney-client privileged materials unless you have very strong reason—”

  “Probable cause?” Donnally asked.

  “That’s too high a standard. Just a strong reason to believe one of his clients or other people involved in his cases are connected to his death and that evidence relevant to that reason might be contained in his files.”

  The judge looked from face to face.

  “Can we all live with that?”

  Chapter 4

  Mark Hamlin’s assistant gazed dead-eyed across the conference table at Donnally and Navarro in Hamlin’s tenth floor office near San Francisco City Hall. Takiyah Jackson held her fifty-year-old face firm, fortresslike. Only her forefinger tapping the legal pad in front of her betrayed emotion. To Donnally, she looked like Angela Bassett in the Tina Turner movie, facing Ike at the divorce trial, ready to take what would come and prepared to walk away with nothing.

  A dozen framed courtroom sketches hung on the plaster wall behind her, all depicting Hamlin in action. More were spaced on the other walls. With Hamlin dead, the room seemed to Donnally to be more like a makeshift shrine than a meeting place.

  In one drawing, his arm was raised in a frozen jab at a witness.

  In another, fists braced against his hips, Hamlin glared at a prosecutor standing with his palms pressed against his chest in a plea to the judge.

  Donnally tensed when he recognized two scenes from his days at SFPD. The chalk one on the left showed Hamlin standing in front of a jury and pointing at Donnally sitting in the witness box.

  People v. Darnell Simpson.

  A twenty-year leader of the Black Guerilla Family, Simpson had murdered a Mexican Mafia member in the county jail where they were both awaiting trial. It was a dead-bang-caught-on-video-slash-the-victim’s-throat-from-behind-willful-premeditated-just-like-the-penal-code-says-first-degree-murder—except that Hamlin had paid off a psychologist to say that due to Simpson’s history of childhood abuse, confirmed during trial testimony by his guilt-ridden, weeping mother, he mistakenly thought he was about to be attacked and therefore struck first.

  Under California law, a jury’s factual conclusion of mistaken self-defense requires a verdict of voluntary manslaughter, not murder, because there can be no malice involved. And that was the jurors’ factual conclusion. Simpson received a sentence with a parole date, seventeen years, instead of life with no possibility of release that he deserved.

  A year later, Donnally learned the weeping mother had actually been Simpson’s aunt, recruited to play the role by a private investigator working for Hamlin. By that time, she’d been murdered in a drug deal gone bad. The PI then pled the Fifth during the grand jury investigation, Hamlin professed innocence, and the law of double jeopardy meant the defendant couldn’t be tried again.

  That was the last time Donnally handed a case off to the DA’s office and walked away. From then on, he stayed with them all the way through trial and checked out every defense witness himself.

  Donnally watched Jackson’s red-painted nail pound the legal pad as Navarro did the preliminaries and showed her Judge McMullin’s written order appointing Donnally the special master.

  “The ground rule is any information that might bear on attorney-client privilege goes through Donnally,” Navarro said. “If he’s uncertain in any way, he’ll run it by the judge, and he’ll decide whether it should be shared with me.”

  Jackson’s gaze moved from Navarro toward a row of file cabinets behind him, and then to Donnally.

  “But we may not even have to go down that road,” Donnally said, “depending on where the investigation leads us.”

  Jackson nodded. Her finger stopped moving, but the agitation seemed to vibrate up her arm and into her blinking eyelids.

  If the eyes are the window to the soul, Donnally thought, hers are a view into a troubled one. And he suspected that over the years it had become a repository of Hamlin’s crimes and secrets, and was now occupied by a chaos of motions and emotions, of anticipated attacks and defenses, of alternating currents of grief and fear. Her fidgeting made him wonder whether she was there in Hamlin’s office twelve years earlier, as Hamlin pretried Simpson’s aunt and taught her the script for the role she would play in the trial.

  “Do you know where Mark was last night?” Donnally asked.

  Jackson averted her eyes for a moment, then shrugged. “I don’t know for certain.”

  Donnally recognized it was a lawyer’s answer, an evasion. He imagined an opposing attorney’s objection to the form of his question and Judge McMullin ruling, “Lack of foundation.”

  He dropped back a step. “Did Mark tell you whether he was going somewhere other than to his home last night?”

  She nodded. “He said he had an appointment to meet a new client.” Jackson half smiled, more of a smirk. “And no, he didn’t say who he was.”

  “He?”

  “He.”

  “Where?”

  Another shrug.

  “Did he get any calls that you can connect with the appointment?”

  “They could’ve come in on his cell phone.”

  “Which means no?”

  “Which means no.”

  Donnally looked at Navarro, who dipped his head, acknowledging he’d get a court order from Judge McMullin to obtain Hamlin’s cell phone records for the last few weeks.

  It had been a long time since Donnally had worked with someone who was as good at investigating crimes as Navarro, and realized he’d missed it. There was a fluidity of movement and unspoken cooperation up at his café in Mount Shasta, but hamburgers and omelets didn’t carry the moral weight of life and death and justice.

  “What’s his cell number?” Navarro asked. Jackson reached into her suit pocket and handed him Hamlin’s business card. The detective accepted it and rose from his chair. “I’ll be back in a minute.”

  After the door closed behind him, Donnally asked, “Why the change in attitude from this morning when you called me?”

  “Dawn shed some light on the subject.”

  “Which means?”

  “I want immunity before I answer any more questions.”

  “You didn’t kill him, so you don’t need it.”

  “How can you be sure? How do you know I didn’t call you as a dodge, a kind of misdirection?”

  “You want it because you’re concerned about what may come out about what’s been going on around here for the last twenty-some years. You figure a grant of immunity in the homicide will cover all your other sins, too.”

  Jackson looked away. “Maybe.”

  “Then you should ask yourself something else first. Like why Mark wanted me to do this. If he trusted me, then maybe you should, too.”

  Jackson snorted. “At this point Mark’s got nothing to fear. And I don’t think it was a matter of him trusting you, but him not trusting the SFPD and the DA’s office and him not wanting someone to get away with killing him.” She smirked. “I have no doubt you’ve already heard the words ‘poetic justice’ spoken by somebody on their side.”

  Donnally locked his expression on his face, trying not to reveal how accurate she was.

  “But that’s not the kind of justice you’re worried about,” Donnally said. “You know the investigation into his murder—successful or not—poses the risk of exposing you to prosecution.�
�� He gestured toward the outer office where Hamlin’s two paralegals waited in their cubicles to be interviewed. “And everybody else connected with Hamlin, too.”

  Donnally had seen her type before—private investigators, paralegals, junior attorneys—in court hallways or behind defense tables, underlings of lawyers like Hamlin, with a cops-versus-cons mentality they’d adopted from their clients in which the cons were the victims and the cops were the persecutors. And this framing of the world provided both the logic and the justification for their acts of war against the integrity of the criminal justice system.

  Donnally had learned that lesson while he was still a patrol officer. It was a delusional kind of thinking only matched by that of corrupt narcotics cops for whom the war on drugs justified planting evidence and framing those they believed—based on little more than a feeling in their gut—were guilty anyway.

  But what explained the mentality of the underlings in their war against the system didn’t necessarily explain the Hamlins themselves. Donnally had long recognized there was more to them than that, more motivating them than that, but he’d never understood what it was.

  Jackson didn’t respond right off. Her blinking accelerated and her hands formed into fists. “I always thought a sense of mission and loyalty went together. Driving over here I realized that they don’t. Mark was ready to throw us under the bus.”

  Donnally could also see that Jackson now felt herself facing the prospect of no longer just playing the part of a con in fantasy, but of living the reality in state prison.

  Suborning perjury: two to four years.

  Destroying evidence: two to four years.

  Concurrent: as few as two years.

  Consecutive: as many as eight.

  In her immunity demand, Donnally heard a disguised confession to all the police and prosecutors suspected Hamlin and his crew had been up to throughout his career.

  Donnally looked up again at the second of the framed courtroom drawings he’d recognized when he first sat down.

  People v. Demetrio Arellano.

  Hamlin was pictured standing below the bench staring at his wristwatch, his right hand raised in the air, as though counting down to the dropping of the flag at the Indy 500. Except zero didn’t mark the start of a race, but the end. The killer went free because the single prosecution witness hadn’t appeared to testify.

  It had been Navarro’s case.

  On the night before he was to testify, the witness took a cab to the airport and caught a plane to El Salvador. Later, Navarro and Donnally searched the man’s Tenderloin District apartment and recovered an answering machine message.

  Hey man, this is a friend. You show up in court and you’re gonna get busted for that thing you did in Texas. You know what it’s about and you’re in the crosshairs. They say scarcity is a bad thing. They’re wrong. It’s a good thing, a really good thing, if you know what I mean.

  Navarro had suspected the caller was a private investigator hired by Hamlin. Who else would’ve known how to find out about an out-of-state warrant, and who else but Hamlin would’ve known how to phrase a threat solely out of statements from which the sense of menace could be parsed away in a sharp cross-examination.

  In the end, no parsing was required because the witness never showed up again in San Francisco.

  Demetrio Arellano walked on the case for lack of evidence.

  Hamlin walked on the witness intimidation charge because no one could tie the tape to him.

  And the private investigator, who Navarro later identified through a pretext call to his office, walked because the witness wasn’t around to authenticate the recording and testify that it hadn’t been altered.

  Donnally looked back at Jackson.

  “If I get you immunity,” Donnally said, “you’ll have to answer every question I ask. Every single one. That’s how immunity agreements read. It’s a contract. A trade. And it’s absolute.”

  Jackson’s eyes widened and her jaw clenched. “Then I’ll take the Fifth on everything.”

  “I know you think that sounds like something Mark would’ve said, but in the real world you can’t do that since not every answer will implicate you in a crime. Some may only implicate others. I’ll have Goldhagen put you in front of a grand jury, you’ll pull your stunt, and Judge McMullin will hold you in contempt and lock you up.”

  Donnally paused and let a picture of San Francisco’s crowded, gang-ridden county jail form in her mind.

  “You sure you want to be brushing shoulders with Hamlin’s old clients? Them all looking at you funny, wondering when you’re gonna crack and spill everything in order to get yourself sprung.”

  Jackson’s finger started tapping again. It seemed to Donnally like a private sign language for spelling out her fears.

  Donnally heard the door open. Navarro signaled him to come outside.

  “And you will crack,” Donnally said, rising to his feet. “You know it and I know it. You’re not going to throw your life away living out Hamlin’s fantasy all the way to the end.”

  He walked outside and swung the door closed behind him.

  As the latch clicked into place, Donnally flashed on her face and her fidgeting hands and realized he was seeing more than just fear of potential accusations. He was seeing terror at her failing resistance against dissolving self-deceptions that were once held firm by Hamlin’s force of will.

  The immunity she wanted was more than just strategic, it was existential, and there was no way to give it to her.

  “Three things,” Navarro whispered. “One, beat cops found Hamlin’s car parked along Ocean Beach.”

  “They towing it in?”

  Navarro nodded.

  “And two?”

  “Hamlin’s cell phone was on the pavement next to it. Smashed. Nothing recoverable in it.”

  “And three is …”

  “The news radio station is reporting Hamlin did a David Carradine right out there at Fort Point.”

  Donnally felt a rush of anger.

  Navarro raised his hands. “It wasn’t me. I haven’t talked to the press—and I’m not that stupid. Autoerotic asphyxiation means do-it-yourself. And you can’t do it yourself with your hands tied behind your back. The damn reporter should’ve figured that out himself.”

  “Go down to the station and make sure Hamlin’s car stays sealed until I get there.” Donnally tilted his head toward the conference room. “I’ve got to work out some kind of deal with her.”

  Navarro headed toward the hallway and the elevators beyond.

  Donnally opened the door. He spotted Jackson standing next to an open file cabinet drawer, her hand under her suit jacket. He jabbed a forefinger at her.

  “Put it back.”

  Chapter 5

  I got nothing,” Donnally said to Navarro as he walked up to Hamlin’s Porsche in the police garage. “Jackson claims Hamlin didn’t tell her who he was afraid of, or why.”

  “You have to give up anything to get her talking?” Navarro asked.

  “She wanted immunity, but I explained to her why that wasn’t a possibility.” He smiled. “I caught her trying to sneak off with a file. It showed Hamlin had been paying part of her salary under the table out of cash retainers he’d received from clients. He wasn’t reporting the fees to the IRS and she wasn’t reporting the income.”

  “Tax fraud and money laundering.” Navarro smiled back. “I see why you took immunity off the table. There’s no way of knowing all the crimes she’s committed. What about the other two in the office?”

  “No immunity demands, but no one will admit to knowing what Hamlin was worried about or where he went last night—if they even know. They’re little ferrets. Neither one has the guts to do anything more dangerous than steal Post-it notes from the office. I sent them home and told them to stay there until we need them again.”

  Navarro nodded toward two evidence technicians, who then opened the doors of the car and began dusting for prints.

  “The cel
l phone records?” Donnally asked.

  “In an hour. They’ll e-mail them to me and I’ll get printouts to you.”

  Donnally shielded his eyes and looked through the back window.

  “Man, what a mess. Who spends a hundred and twenty thousand dollars on a car like this and treats it like a garbage dump.”

  Navarro bit his lower lip as he stared at the passenger seat and floor. On both were scattered court filings, fast-food wrappers, sheets torn from legal pads, balled-up clothing.

  “This’ll take hours.”

  Donnally thought for a moment. Anything that Hamlin had left in plain view in his car couldn’t be considered confidential. Whatever attorney-client privilege he might have claimed for any document had been waived as soon as he let the sunshine fall on it, at least as far as Hamlin’s part of the privilege was concerned.

  If his clients had a beef on their end with him leaving case documents where anyone could see them, they could sue Hamlin’s estate. But it wasn’t Donnally’s problem. Preserving Hamlin’s money for his heirs wasn’t part of his job.

  Donnally waited until the evidence techs finished dusting for prints, did a quick check of the glove compartment, console, and trunk without finding additional case files or notes. He pointed at the two techs, and said to Navarro, “Have these guys bag up everything. Let’s go check out Hamlin’s apartment.”

  Navarro gave the instruction and then led Donnally to his car, parked in a lot under the freeway behind the Hall of Justice.

  “You’re a little more flexible than I remembered,” Navarro said, as he turned the ignition.

  “Not really, I’ve just learned to draw finer lines. I’m not going to do any more to protect Hamlin than he deserves and the law requires.”