Night Is the Hunter Page 6

  “Defendants all claim they’re innocent.”

  Donnally knew that wasn’t true. It was just the opposite. He’d gotten dozens of murder confessions when he was a detective. But he didn’t challenge Ordloff. He suspected the man needed his fictions to shield his mind from the thoughts and images that probably attacked him after the alcohol wore off—like Israel Dominguez heading toward his execution.

  “And Dominguez wasn’t an exception,” Ordloff said, “and no more believable than any other defendant facing two eyewitnesses who knew him so well that they knew which was his favorite jacket and the last girl he had sex with.” He thumped the table with his forefinger. “They couldn’t have been mistaken.”

  “Why not let him roll the dice? It was his life that was at—”

  Ordloff interrupted him with a cutting motion and his words came in a rush. “It was my life too. Not just his.” He caught himself and his face flushed. “Forget I said that. It came out wrong.”

  In Donnally’s mind, it had come out exactly the way Ordloff was thinking it, maybe even the way he had been thinking it since the day he took on the case.

  Donnally wondered how much scotch over the years had gone into filling a psychological moat to protect the man from too much of his own truth.

  Apparently, not quite enough, for Donnally now had confirmation that at least part of Judge McMullin’s theory and memory about what had happened was correct.

  Donnally imagined McMullin’s bailiff listening to Ordloff and Dominguez yelling at each other in the attorney interview room, the two talking past each other, Ordloff making arguments to the kid that masked his real fear and the kid crying in frustration and terror.

  “Your life?” Donnally said. “You mean your professional reputation. Sounds to me like you didn’t want to lose a death penalty trial and carry the loss on your record for the rest of your career, so you dummied up the kind of defense that might allow a jury to find its way to a noncapital conviction. And to do it, you had to disregard Dominguez’s claim of innocence.”

  Ordloff’s didn’t respond. He just stared down at his scotch.

  “It had nothing to do with my reputation,” Ordloff finally said. “No one was paying attention. No one cared either about a dead Mexican gangster or the live Mexican gangster who murdered him, except the D.A. for whom a conviction in the Dominguez case was no more than a step toward promotion. You weren’t going anywhere in the D.A.’s office back then unless you proved yourself by putting some crook on death row. Same thing for judges. They had to prove, in their far-too-revealing words, they could pull the trigger.”

  Donnally felt a reverberation from McMullin’s riverside confession, the same phrase, the same fear of being seen as weak.

  “Then if it wasn’t your reputation, what was it?”

  Ordloff looked over at Donnally. “You want to know the truth?”

  They both recognized it was a rhetorical question, so Ordloff didn’t wait for Donnally to answer.

  “It was as simple as this. I wasn’t prepared to spend my life living with the knowledge that Israel Dominguez was on death row waiting to be executed.”

  Donnally hadn’t expected that much honesty from Ordloff, a lawyer who was more than willing to falsely accuse cops of perjury, and he wondered whether Ordloff was as divided a human being as McMullin, a tough court-self and a fragile private-self.

  Donnally pointed his thumb over his shoulder. “I assumed everyone here was prepared to live with a client on death row, otherwise they wouldn’t be at this conference. That’s what I meant by participating in capital punishment. If you aren’t willing to accept the result, you shouldn’t play the game.”

  There had been a parallel in his own decision to become a police officer.

  “It’s no different than a cop deciding to strap on a gun. It’s immoral to do it unless you’re willing to take a life and live with it afterwards.”

  Ordloff shook his head and offered a half smile. “Very dramatic, but I think you’re too much of a meat and potatoes guy—black-and-white-with-no-gray-in-between—to grasp the subtlety of what goes on here. The only way most of us can participate is because we lie to ourselves and each other about why we really do these cases.”

  Ordloff glanced behind him. “Sure, there are a couple of true believers out there, but everybody else is in it for the money.” His forefinger thumped the bar. “Money—money—money. Whenever a D.A. charges a defendant with special circumstances, all of the capital defense lawyers hear a cash register ringing, if not for them, for somebody else.”

  “Then what do they come down here for?”

  “See what’s new in the law.”

  “They could do that on their computers. All the new cases are online.”

  “And people who go to church could just as well stay home and read the Bible all on their own, but they need the romance and the afterglow, or maybe the magic and mystery.” Ordloff grinned. “Like transubstantiation.” His grin soured. “And just like in religion, they spend a lot of time trying to explain away the anomalies, like when the good suffer evil or the evil lack nothing in the way of goods.”

  Ordloff tilted his head to his right.

  “Look behind you, toward the far corner.”

  Donnally glanced over. He spotted four men sitting at a booth, a dim light shining down from above. Like Ordloff, they all had conference binders lying on the table in front of them.

  “You see the guy in the gray rumpled sweats? A complete idiot. He couldn’t tell you the difference between express and implied malice and he submits motions to the court covered with coffee splatters and jelly stains. And he got life verdicts in eight straight trials in a row. Eight. A world record. You can look it up.”

  Ordloff tilted his head again.

  “The guy across from him? Skinny, with the specs. Yale undergrad. Harvard Law. Teaches evidence and criminal procedure part time at Boalt Hall at UC Berkeley. The smartest guy in the room—hell, the smartest guy in any room, any time. He did two capital trials and got two death sentences. And they were two of the weakest death cases that ever came through a California court.”

  Ordloff laughed.

  “Harvard Law is the exception. The truth is that most of the lawyers who do capital cases aren’t the best of the best, they’re the best of the worst.”

  He swept his arm like a king gesturing toward his court.

  “The reason we do death penalty cases—and all on the public dime—is because we weren’t good enough to make the cut. Never made it to the big time and the big money cases. And we compensate for that failure by creating a mythology.” Ordloff tapped his chest. “The myth of our great worth to humanity. That’s one of the things we come down here to celebrate. Our great worth.”

  The words reminded Donnally of a discomfort he felt when he saw around the court building what Ordloff was calling the best of the worst. They handled the more exceptional cases that came through, but they, themselves, were so average, so unexceptional, mere day laborers in what was claimed to be the house of justice.

  Their presence had always made the criminal justice process seem disjointed and irrational to Donnally. It sometimes left him with a feeling of having a kind of guilty knowledge—the same sort he was feeling now—like a quarterback who’d just watched the refs make a bad holding call against the other team and who didn’t have the moral courage to refuse the penalty.

  Maybe that was part of the reason he was happy in Mount Shasta. It didn’t have its own courthouse, not even to handle traffic tickets, much less capital cases. Nothing to trigger his imagination, putting him back in courtroom hallways, and giving him the queasy feeling that went along with it.

  “In the end, of course,” Ordloff said, “competence has no bearing on either the verdict or the penalty. In capital cases the outcome is completely arbitrary. Com . . . pletely. It isn’t related to the seriousness of the crime or the strength of the evidence or the worth of the defendant. The consequence, again like a re
ligion, is that a mythology has been built up around it.”

  The alcohol that Donnally thought had been used to build a moat now seemed like a flood that had burst a dam.

  “Then why’d you get into it? I’ve seen you in action. You’re not an idiot. Back then you were better than almost all the other lawyers who did these cases.”

  “I learned the lesson too late.”

  “Then why stay in it?”

  “Because . . .”

  Ordloff’s voice trailed away as though he was contemplating the question, or had arrived at the heart of the matter and had to admit a truth to himself for the first time.

  “I guess you could say it’s the continuing punishment for having committed the original crime.”

  CHAPTER 10

  You’re not listening to me.”

  Paul Ordloff’s voice rose above the wind-driven waves crashing onto the breakwater along Monterey Bay. He and Donnally were standing on the shore trail, a half mile north of the Ocean View Lounge and the conference grounds.

  Ten minutes earlier, Ordloff had stood up, pushed off from the bar, and then looked around at the lawyers populating the booths and tables and mumbled that he had to get away.

  Donnally hadn’t been sure what Ordloff was fleeing from, but he hadn’t objected to Donnally following him in his flight.

  “He was guilty. He was guilty. He was guilty.” Ordloff’s fist beat the air like a pounding gavel. “It was a first-degree, lying-in-wait murder. The Sureños wanted Edgar Rojo Senior dead. Israel Dominguez wanted the Sureño brand and killing Rojo was his ticket. That was the prosecution’s theory of the case and that was the testimony they produced. Pretending otherwise would’ve torpedoed Dominguez for sure.”

  Ordloff turned toward Donnally.

  “Arguing second-degree murder was our only hope. We had to attack their informants as liars who cut deals to get out of jail or stay out of jail by testifying the crime was a gang execution and at the same time give the jury something to latch onto, something they could convict Dominguez of that would keep him off death row.”

  Ordloff held up his conference binder.

  “The first thing they teach you in these seminars, and I’ve been coming here for decades, is that if you claim innocence in the guilt phase of the trial, the jury will hammer you in the penalty phase. Hammer you. A defendant can’t claim he didn’t do it, then do a one-eighty and say he committed the crime because of abuse he suffered as a child and express remorse and expect the jury to believe him and show mercy.”

  That had been Judge McMullin’s argument, but now there seemed something wrong with it. Why couldn’t the defendant still claim innocence and ask the jury to let him live so he has a chance to prove it? Jurors knew about convicts who were later freed by DNA evidence and by confessions from the real perpetrators.

  Donnally pointed at the binder. “What about what they call lingering doubt? When a jury isn’t really positive about guilt and decides it’s better to keep the defendant alive just in case.”

  “You’re still not listening to me. There . . . was . . . no . . . doubt left lingering.”

  Ordloff threw up his arms.

  “What was I supposed say to the jury? I know you found him guilty beyond a reasonable doubt, but you were wrong, you really had a doubt and you lied to the court in your verdict?”

  Ordloff stood there, hands raised like a tent preacher or the crucified Christ, until the absurdity of the gesture was revealed to him in the averted gazes of a young couple walking on the path behind them. He lowered his arms, looked down at the binder, gripped it like a Frisbee, and tossed it toward the just-risen moon on the horizon. It spun in flight, disklike, then opened and dropped, flailing like a buckshot pheasant into the kelp-carpeted sea.

  “That stuff is useless,” Ordloff said, staring at it.

  “Then why do you come down here?”

  “Why do you think? The bar association makes us take continuing education courses. And this way I can stay drunk for three straight days and still get credit.”

  Ordloff pointed back toward the yellow lights of the conference grounds, now muted by a wispy fog skimming the water toward them. The stars above still shined bright and clear.

  “The only thing . . . the only thing . . . you learn down here is how to protect yourself from your former clients and from the appeals and habeas corpus lawyers that sniff over the carcass of your work.”

  “You make it seem like all that moves these trial lawyers is money and fear.”

  “You got that right, pal. The twin sisters of human motivation.”

  “What about justice?”

  Ordloff paused, staring at Donnally, then snorted. “I don’t think you’ve understood a single thing I’ve said.” He jabbed a forefinger at Donnally’s chest. “You brain dead or something? It’s not all that complicated.”

  Donnally took in a breath and felt his stomach tense. The flailing lawyer had nailed him in the gut with an inadvertent strike. There were few things Donnally knew about Alzheimer’s, but one of them was that it was genetic. In his preoccupation with his father and McMullin, he now realized he might not have heard the starting pistol shot announcing the beginning of his own descent toward oblivion. For a moment, he felt an irrational sense of urgency. He recognized it and swallowed hard, suppressing it.

  He also felt an urge to toss Ordloff into the bay.

  “I heard you,” Donnally said, “but I don’t see life as that narrow and our motivations as that limited.”

  Ordloff stared out toward where his binder had fallen into the water. Finally, he said, “You know, Judge McMullin could’ve saved the kid if he wanted to. There were ways.”

  “You mean by not following the jury’s recommendation?”

  Ordloff shook his head. “No judge will ever do that. They’d get recalled in a heartbeat and the cable news channels would crucify them. But there are other methods judges use all the time.”

  “Like?”

  “Like letting the D.A. use illegally obtained evidence so the conviction, or at least the penalty, gets reversed on appeal. Or make some bad rulings on motions. Judges who oppose the death penalty do it all the time. They know the defendant is going down anyway; they just want him to get a second chance to stay alive somewhere down the road.”

  “And you figure McMullin had those chances and didn’t take them.”

  “He was new, but he’d been around long enough to figure out how the game was played.” Ordloff squinted at Donnally as if trying to assess his reactions. “I know you’ve watched judges make bizarre rulings in these cases and never understood why. Well, I’m telling you now.” He looked back the way they’d come. “There’s a federal judge down in Texas that has been sitting on a habeas corpus case for over ten years, keeping the defendant alive by delaying his appointment of an attorney to represent him.”

  “Don’t the relatives of the victim—”

  “Nope. There aren’t any left to complain. The defendant killed them all. That’s what he was convicted of.”

  Donnally thought back on the trials he’d been involved with. It was the attorneys, far more than judges, who engaged in bizarre maneuvers, seeming to plant errors.

  “Do attorneys sometimes do that, too? Not make the objections they’re supposed to, don’t seem to prepare the way they’re supposed to?”

  “All the time. Sometimes the appeals courts even catch them at it—or at least accuse them of intentionally sabotaging hopeless cases—and refuse to overturn convictions they should.”

  “Did you do that in the Dominguez case?”

  Ordloff displayed a twisted grin. “Even if I did, I wouldn’t admit it. I’d get disbarred.” His grin faded and his mouth turned down. “But I didn’t. Anyway, if I did try to build in some error, it didn’t work. The U.S. Supreme Court is about to flush him down the judicial toilet.”

  Donnally watched Ordloff stare off toward the moon hanging above the horizon. The tide had gone slack and the fog separa
ted and a shaft of moonlight shot toward them across the water. It lit up the dark patches that had formed under Ordloff’s eyes. He looked to Donnally like he wanted to dive in and swim to where the light died and the night sky dissolved into the sea.

  “You know the weirdest thing about American law, what makes it arbitrary, is that in a state like Texas we wouldn’t even be having this conversation. Defendants convicted even of just second-degree murder are put to death all the time and governors down there make sure it happens. They’d get impeached if they didn’t.”

  “This isn’t Texas.”

  “Don’t I know it.”

  “Then tell me something.”

  “If it’ll keep Dominguez alive.” Ordloff blinked against the moon’s reflection and looked over. “I’ll tell you anything. I’ll sign anything. I’ll testify to anything.”

  “I went to speak to Edgar Rojo’s mother and to look over the scene. She lives in the same place.”

  “She talked to you?”

  Donnally nodded.

  “She sure as hell wouldn’t talk to us.”

  There was an angry edge in Ordloff’s voice, like the victim’s family owed him something, not as an officer of the court with duties to his client to discharge, but to him personally. He stood there like a mirror image of the kind of cop Donnally had hated working with, the kind who wore his uniform not as a second skin, but all the way through to the bone.

  “The wound was way too fresh,” Donnally said, though he knew that fact couldn’t have been news to Ordloff. “And I didn’t approach it head-on.”

  “What did she say?”

  “The important thing at the moment is that her son had received a call from an unknown person that caused him to walk behind the couch and look out the front window.” Donnally angled his arm upward. “Unless Rojo was right up close to the glass, a guy as short as Dominguez couldn’t have hit him. Even then it would’ve taken a sharpshooter.”

  Ordloff watched Donnally lower his arm, then said, “I knew about the call and about the police’s inability to trace it. It was a dead end. And I’m not even sure it meant that much. Not on New Year’s Eve with lots of people on the street, coming and going. Lots of people looking to meet up and party.”