A Criminal Defense (15 page)
D
onnally telephoned John Gordon at his construction company after he got into his truck. He had no doubt that Gordon would be there before anyone else, sitting at his desk, drinking the Folgers or Maxwell House coffee he brewed himself and checking the day's work schedule.
Donnally understood the difference in burdens of proof between criminal and civil casesâbeyond a reasonable doubt versus preponderance of the evidenceâbut he wasn't sure how chains of evidence worked in civil matters. In a criminal case, the recording of Lange's interview of Gordon wouldn't even get in front of a jury without Lange alive to authenticate it. In a civil case, he didn't know. If the standard of proof was lower, maybe the evidentiary rules were different, or there was some kind of gimmick that would make it admissible. Even if it couldn't be used anymore to get Lange, or not even to get the mall owner convicted of obstruction, he hoped that it would at least save the contractor some money and help restore his reputation. Maybe his lawyer could scare the other side just by waving it around during a deposition.
“Are you in settlement talks with the plaintiffs in the walkway collapse?” Donnally asked Gordon, as he headed south through the foggy neighborhood on his way to Lange's house.
“I'd really like to settle this thing,” Gordon said. “I don't want to make those people go through a trial. That only lines the pockets of the lawyers.”
“I take it Thule is aiming to use his not guilty verdict in the criminal trial to shift all of the blame onto you.”
“That's the problem. His lawyers are trying to split liability ninety-ten, with ninety percent me. Nine million on my end, one million on his. That would take the settlement way, way past our insurance limits and it would break the company.”
Donnally turned onto the commercial Geary Street and merged with the commuter traffic coming from the Golden Gate Bridge and working its way toward downtown. He broke through the fog and lowered his visor against the rising sun.
“I ran into something that should help you,” Donnally said. “It's key to a thing I'm working on and I need to sit on it awhile.”
“But ifâ”
“You'll get it. I promise. Just don't settle the case until you hear from me.”
“I'll tell my lawyer you have something thatâ”
“Let's keep this between us. I don't want him to go rabid and try to hit me with a subpoena. It'll really screw me up.”
Gordon didn't respond for a moment, then said, “Just don't take too long. Living with my life's work just a half inch from falling off a cliff is tearing me apart.”
“You just got to hang on a little longer,” Donnally said, then disconnected.
Although he couldn't use the recording to pressure Lange anymore, Donnally didn't want to deal with the free-for-all of subpoenas and court orders provoked by news of the perjury. Everyone with an ax to grind would try to sharpen it against Hamlin's and Lange's files, whether justified or not.
And he needed to protect Jackson. Since she was part of the chain of evidence, her role would have to be disclosed. He suspected Hamlin's crime partners, like Galen and their crew of private investigators, would assume she hadn't been cooperating with him. After all, she had the best credentials of any in that crowd. She was the only one among them who'd looked up the barrel of a raid-jacketed cop's gun and heard gunshots that killed a sleeping man. If anyone would stand firm, he imagined they would expect it to be her. And he didn't want them to find out too soon that they were wrong, at least where it concerned Hamlin's private investigators.
Donnally's cell phone rang when he was turning down the six-lane Van Ness Avenue toward Hamlin's office. It was Navarro telling him that the arson investigator was standing by to give them a walkthrough of Lange's house.
He stayed on the wide commercial boulevard past City Hall and down to Market Street, then swung through the Castro District and up to Buena Vista Heights. He and Navarro pulled up in front of the house at the same time.
Arson investigator Arthur Lu was waiting at the bottom of the front steps. Before the seven-foot, six-inch Yao Ming came from China to play in the NBA, Lu had been known in the police and fire departments as 3TâBC, Too Tall To Be Chinese, and he didn't like it.
In the years since Donnally had worked a case with Lu, the man still hadn't learned to shake hands and smile. Walking up to him now, Donnally wondered whether the truth was the opposite. He imagined that Lu had taught himself not to shake hands and smile because everyone he met on the job wanted something from him before he was in a position to give it: the what, where, and how of fires he'd just started to investigate. Too friendly a greeting could be seen as an invitation he wasn't prepared to offer.
Lu turned at their approach and led them inside. He stopped in the charred and water-soaked dining room, halfway between the front door and the kitchen in back, with both in view.
The detritus of the previous night's party lay strewn around. Dishes, glasses, wine bottles had either been blown about by the firestorm's shuddering heat or had been slammed into walls and shattered by fire hose spray blasting them from the tables on which they'd been abandoned the night before.
“There was no forced entry down here,” Lu said, raising his forefinger and waving it to encompass the three visible rooms. His hand stopped, centered in the middle of the invisible circle he'd drawn. “Upstairs, we're not sure.”
Donnally recalled three stories of decking at the back of the house that could've been an arsonist's way up and down.
“The windows on the first two floors exploded outward,” Lu said. “There were two on the top floor that went inward, but I don't know whether either one was caused by a burglar, or whether one or both were caused by spray from the fire hose.”
Navarro glanced at Donnally. “Someone could've hidden in the house after the party, then let themselves out to get a gasoline can and came back inside again to spread the gas around.”
“Or someone who had a key,” Donnally said. “An employee or ex-employee.”
Lu pointed at the melted remains of an alarm pad next to the kitchen door. “They would've needed the code, if Lange had set it.”
“On the other hand,” Navarro said, “Lange could've been too drunk to do that or even to hear a window breaking.”
Lu turned toward the charred stairway.
“Stay away from the banister,” Lu said, as he led the way again. “It's weak.”
They followed him up a flight and into Lange's bedroom. The remains of the red sports jacket Lange had been wearing the previous night lay on the floor next to the bed. Donnally gave it a nudge and exposed the toe of a thin-soled red shoe.
Donnally looked at Navarro and asked, “He didn't wear those out in public, did he?”
“I saw him having lunch with a member of the board of supervisors once. He was wearing those shoes, or ones like them. And Lange wasn't even gay”âNavarro smiledâ“or Italian, for that matter.”
“It would be like wearing patrol car overhead lights on his feet,” Donnally said. “I don't get what kind of an idiot investigator would do that.”
Navarro's smile died. “You know exactly what kind, and that's the reason why you're here.”
It was Donnally's turn to smile, as a confession, then he glanced at Lu. “You find his wallet and personal stuff?”
“Wallet in his pants, with money in it, and”âLu turned to lead them out of the doorâ“his watch and rings were on his desk.”
They trailed Lu into Lange's office down the hallway.
“We found another point of ignition in here,” Lu said, gesturing at the remains of the carpet. “Whoever did it soaked this thing and opened all of his desk drawers.”
Navarro surveyed the room. “Looks like somebody was trying to destroy something they knew was in here, but couldn't find it so they torched everything. Or couldn't find it in the time they thought they had.”
Lu glanced up. “They had enough time to dump all of the files out of the cabinets and boxes in the third floor storage before they spread the gasoline over them.”
Donnally tried to think through the arsonist's steps, then asked, “Does that mean they staged everything, then started the fire on the top floor, moved down here, and finally lit the spots outside?”
“I'm not sure. Neighbors heard two explosions that could have come from gasoline on the top two floors being ignited by the flames coming from below.”
Donnally gazed at the blown windows. “Lange must've been really dead to the world to have not woken up to that.”
Navarro looked at his watch.
“Maybe by now the medical examiner has figured out how dead.”
D
onnally's experience working with informants and cooperating defendants like Sheldon Galen was that they told the truth at the beginning because they were shaken at having been caught and gave themselves confidence by acting childishly earnest.
Later, they would angle off course into lying out of fear or shame or the need to protect others and the need to protect themselves from accusations, and self-accusations, of snitching.
By then, the mental balance had shifted and the nightmare of public humiliation seemed less terrifying than spending a few years in jail.
In the end, they all had to be straightened out by threats and promises.
One look at Galen's pale face and his overactive tongue and lips as he walked into Hamlin's office confirmed for Donnally he was at stage one.
Because of Lange's death, Donnally hadn't been sure he would be. Although Lu hadn't released his arson theory to the press, Donnally suspected Galen felt like a metal duck at a carnival arcade, the two ahead of him, Hamlin and Lange, having already been flattened and him moving into the shooter's crosshairs, with a lot more at stake than an oversized teddy bear.
Donnally decided to hit Galen hard and in rapid fire to get what he could before this already twisted and squirming man slithered into stage two. The most important thing was to keep from fuzzying the focus by letting Galen drift into speculations about what had happened to Lange, and why, until he'd gotten what he needed about Hamlin.
Galen reached into his inside suit jacket pocket and withdrew a packet of tri-folded papers. He slid it across the desk and said, “Goldhagen said I should give you this.”
Donnally knew what it was, but he unfolded it and read it anyway to make sure there was nothing that contradicted what he thought had been their understanding. After finding nothing troubling, he slid it into a folder.
“Will she . . .” Galen said, glancing behind him toward the closed door leading to the outer office.
“Jackson won't see it and she won't know about it. To her it'll just look like you're Hamlin's friend trying to help find out who killed him.”
“You sure she'll believe that?”
“She know something you're worried about?”
As soon as he said the words and watched Galen's face assume a gazing-into-the-abyss expression, he knew he'd asked the wrong question.
“Don't answer that,” Donnally said. “Let's get down to business.”
Donnally slid a legal pad onto the blotter. The first page was blank. Concealed underneath was a list of questions he intended to start with.
He read down it, then asked, “Were you involved in the
People v. Thule
case, the walkway collapse?”
Galen swallowed. “I helped out on a lot of cases. Mark was brilliant in trial, but not so good in preparation. He'd let things slide and slide and it would get him into jams that were tough to get out of, so I did a lot of the pretrial work.”
“I'll take that as a yes.”
Galen nodded.
“And you knew about Hamlin turning in the federal judge who lied about watching his sister get killed?”
Galen nodded again.
Donnally looped back. “And you brought in Frank Lange to do the John Gordon interview.”
A flicker of Galen's eyelids told Donnally he'd got it right.
“Are you telling me it was the surviving victims in the case who murdered Frank?”
“I don't know that anyone murdered him. We haven't excluded any possibilities.”
Donnally reached into the middle desk drawer and pulled out the DVD of Lange's interview of Gordon, laid it on the blotter, and turned it toward Galen.
“I never listened to it,” Galen said. “And I didn't prepare Lange for his testimony. He knew what he was supposed to do and he did it.”
“And you knew he committed perjury.”
“That was between him and Mark.”
Donnally let his hand settle on the folder containing the cooperation agreement.
Galen's gaze followed. He took in a long breath and said, “Shit . . . son of a bitch . . . Yes. I knew he committed perjury.”
“Did any of the victims threaten you?”
“They had no way of knowing I was involved in the trial. I was just a face in the gallery when the verdict was read. And frankly, they weren't the type to kill anyone. The only kind of threats that Easter shoppers like those people make are threats to sue. It wouldn't cross their minds to hurt someone. And if it did, they would've taken out Thule, not me or Mark.”
Donnally flipped to the second page of his pad and, while making a checkmark, said in a casual way that didn't reveal he was assuming and asserting facts that would never be in evidence in any court, “Were you supposed to get a cut of the money Mark took out of David Burger's motorcycle repair shop in Oakland?”
Galen didn't hesitate in responding. One reminder of the cooperation agreement had been enough. “I did some of the trial prep, but he kept my share for working on the case as what he called âinterest' on the hundred grand he loaned me to cover what I took from my trust account.”
Now Donnally looked up. “Like you were an indentured servant?”
“Let's just call it pro bono.” Galen didn't smile.
“Did the victim's people come after Hamlin? Maybe Tub or Sanders's wife.”
“That Tub is an asshole. He was big in the Oakland Hell's Angels chapter until he got caught skimming dope money and they stripped off his patches and kicked him out. Have you seen him?”
Donnally nodded.
“Meth cost him his house and about a hundred pounds of fat and muscle. You bet he wants the money, all of it, both shares. He knows Burger killed his brother-in-law in self-defenseâeven Sanders's wife believes that. Sanders had gotten all paranoid and crazy and had taken to pounding her, too. Burger killing Sanders probably saved her life. If Tub wasn't always chasing meth and desperate for cash, he'd say Burger deserved the money so he could hire Hamlin to help him beat the case.”
“Did you ever witness Tubâ”
Galen nodded. “Out there on Harrison Street, behind the Hall of Justice, under the freeway. We were walking up to Mark's car after court. Tub must've scouted out the place and hidden down the block. He comes riding up with a couple of guys from the East Bay Devils, leathered up like they were heading for the Fourth of July outlaw rally in Hollister. They all pull gunsâright behind the police department. I looked over my shoulder and could see cops getting in and out of their patrol cars. Tub says, âLook over there one more time and it'll be the last thing you see.' Then Hamlin told him he'd get the money, just needed some time, a week. One of the bikers climbs off his motorcycle and punches Mark in the gut. He doubles over, but doesn't go down to the pavement. Nothing else said. And they're back on their bikes and gone.”
“Did Mark pay them?”
“I don't know. He was supposed to. I collected some cash from clients who owed me and gave him ten thousand.”
Donnally thought of the currency with Galen's fingerprints on it and the other stash they found under Hamlin's bed. It struck him that Galen's relationship with Hamlin was like a sick marriage, the kind in which they go after each other with knives, then turn together against the cops or the relatives or the neighbors who arrive to intervene.
“Isn't that a little peculiar?” Donnally asked. “Mark extorts money out of you and you try to save him from Tub.”
“I've got a big mortgage, and forty percent of my income came from Mark. I needed to keep him in business. I knew he was under financial pressure, too. He always spent every nickel he made. That was part of what was driving him, and he would've made it up to me in the end.”
“Is that why he went to the old guys in The Crew to cover what he loaned you?”
Galen nodded, chewing on his lower lip. Finally, he said, “I know about Mark taking the money out of Burger's garage and the perjury in the Thule caseâ”
“And snitching off the judge and extorting money out of that homicide victim's husband, Rudyâ”
“Rusch. I know. All of that and more. But he wasn't a complete scumbag. He did some good in the world.”
It was news to Donnally and it also seemed like a non sequitur, unless Galen knew something about the reason Hamlin had collected all the cash.
Or maybe Galen had already arrived at the point in the program when he started lying.
If Hamlin wasn't so bad, after all, maybe he wasn't either.
“Like what?”
“The kids. The gymnasts.”
“The what?”
The puzzlement Donnally felt must have shown on his face.
“You know, in Southeast Asia. I don't know the details, but I know a lot of money went that direction.”