Felony Murder Rule Read online

  “You’re ignoring the fact that ‘provocative act murder’ is always second degree.”

  “Only if malice was implied. In this case, Tho’s actions constituted express malice which is imputed to Nguyen.”

  “The gun could have been planted by the shopkeeper to support a bogus self-defense claim.”

  “You can see if that flies with a jury.”

  “You really think justice will be served by putting this kid away for life?”

  Ward invoked the sanctimonious tone that won elections and drove defense lawyers crazy. “I have no choice, Mike. It’s my job to enforce the law as it’s written.”

  My ex-wife wasn’t the only person running for office. “At the very least, you shouldn’t object to an extension.”

  “That’s up to Judge McDaniel.”

  9

  “I’VE ALREADY EXTENDED

  THIS TRIAL TWICE”

  Judge Elizabeth McDaniel glared at me over the top of her reading glasses. “Haven’t seen you in a while, Mr. Daley.”

  “I’m not spending much time in court.”

  “Our loss.”

  Rosie always said it was a bad sign when a judge started with flattery. “You’re very kind, Your Honor.”

  “Have a seat, Mr. Daley.” Betsy McDaniel was an elegant woman in her early sixties who attended pre-dawn Pilates classes with Rosie. If you listened attentively to the good-natured Superior Court veteran, you could still hear a trace of an accent from her native Alabama. “It isn’t every day that I get a visit from the head of the Felony Division.”

  “Co-head, Your Honor.”

  “Only until Rosie wins the election.”

  “Judges aren’t supposed to make endorsements.”

  “Just expressing an opinion.”

  She sat down on her black leather chair behind a mahogany desk in her paneled chambers on the fourth floor of the Hall, where she enjoyed an unobstructed view of the slow lane of the freeway. Her bookcases were jammed with legal treatises, French literature, and Donna Leon mysteries. The former prosecutor had spent two decades at the D.A.’s Office before her appointment to the bench, and she relished every minute that she spent in her tightly run courtroom. It was a poorly kept secret that she planned to go on senior status at the end of the year to spend more time with her three grandchildren whose framed photos were lined up on her credenza.

  She nodded at Andy Erickson, who was sitting next to me. “Ms. Ward isn’t joining us?”

  “Afraid not, Your Honor. She had another appointment.”

  “Local news or CNN?”

  He couldn’t mask a sheepish grin. “Both.”

  “You’re a good sport, Andy.” Her tone became serious as she turned to me. “Seems we need to talk about Thomas Nguyen.”

  “We do. We’ve contacted Sandy Tran to arrange for an orderly transition of the files. That leaves us with timing issues.”

  Erickson interjected. “Your Honor—,”

  “We’ll hear from you in a moment.” The judge pointed her reading glasses at me. “The facts are simple. You don’t need an extension.”

  “We were appointed an hour ago. We haven’t seen the files.”

  “Sandy will get you up to speed. I’ve already extended this trial twice.”

  “We had nothing to do with those motions.”

  “Understood, but that’s irrelevant to me. You have four days and the full resources of the P.D.’s Office.”

  “This is a murder trial.”

  “I’m aware of that.”

  “We haven’t even seen the prosecution’s witness list.”

  “You can count them on two hands: the store owner, his son, his daughter, a security guard, a customer, a deliveryman, the first officer at the scene, the Medical Examiner, a couple of crime scene techs, and the homicide inspector. There is no question about cause of death. There are no forensics issues.” She looked at Erickson. “Any additions to the witness list?”

  “No, Your Honor.”

  “Good.” She turned back to me. “You can interview witnesses over the next couple of days. You’ll want to spend time with Sandy and her investigator. Finally, you’ll need to talk to your client about whether it makes sense to put him on the stand.” She waited a beat. “Or you can sit down with Andy when we’re finished and iron out a plea.”

  “Our client has instructed us not to accept a deal.”

  “Then we’ll see you in court on Monday.”

  “Thomas Nguyen has no criminal record. He’s just a couple of years older than your grandson, Betsy.”

  “My grandson isn’t on trial for murder, Mike.”

  “If he was, you would want his lawyers to have adequate time to prepare.”

  “This case isn’t going to be decided on forensics or expert testimony. There is no dispute about what happened.”

  “Yes there is. We have reason to believe that Duc Tho was unarmed.”

  “They found a gun under his body with his fingerprints.”

  “It could have been planted. They also found the fingerprints of the shopkeeper on that weapon.”

  “I’ve already ruled that the security video is admissible. You can show it to the jury and make your case.”

  I will. “My client was sitting in the car. He was in the wrong place at the wrong time.”

  “We’ve covered this territory. It doesn’t change the law.”

  “This is a contorted interpretation of the felony murder rule.”

  “I’ve ruled on that issue. If you want to try again, you can take it up on appeal. I’ve never been a fan of the felony murder rule, but I have to follow the law.”

  “There was no malice aforethought.”

  “There was under the felony murder rule.”

  “Which doesn’t apply in this case. Neither Nguyen nor Tho pulled the trigger.”

  “This issue was briefed and decided. Tho walked into the store with a gun. That’s a provocative act imputed to your client.”

  “We don’t know if he really had a gun.”

  “We’re going in circles. You can make your case to the jury.”

  “Then give us a few extra days. I’m asking for a delay in the interests of justice.”

  “When lawyers have nothing better, they always offer a platitude about the ‘interests of justice.’ I can’t postpone every trial just because a client fires his attorney. We’ll start jury selection at ten o’clock on Monday morning.”

  “But Your Honor—,”

  “I’ve ruled, Mr. Daley.

  * * *

  Rosie answered her cell on the first ring. “Where are you?” she asked.

  “Leaving the Hall.” I pressed my iPhone against my right ear as I walked through the crowded lobby. “Jury selection starts Monday.”

  “Terrific. I need you at the office. Pete just got here. We need to talk.”

  10

  “WE NEED TO DO THIS BY THE BOOK”

  Rosie’s oven-like office smelled of perspiration and coffee as Pete spoke to me in a somber tone. “Melinda’s story checked out. She’s Tommy’s daughter. Her son is Tommy’s grandkid. My DNA guy is ninety-nine-point-ninety-seven percent sure.” His mouth turned up. “We get to welcome a new niece and great-nephew into the family, Mick. You wanna break the good news to Big John?”

  “I’ll let you have the honors.”

  Rosie wasn’t amused. “You can plan your family reunion later. We just received the files from Sandy Tran. We need to decide who will sit first chair.”

  Easy call. “I will.”

  “No, you won’t.”

  “We discussed this, Rosie.”

  “We didn’t agree, Mike.”

  No, we didn’t. “The circumstances have changed.”

  “Our procedures haven’t.”

  Here goes. “We’re the co-heads of the Felony Division. We decide on staffing. We don’t have time to wait until our regular meeting on Monday morning.”

  “You have a conflict of interest.”

&
nbsp; “I have a personal interest, but no conflict.”

  Pete interjected. “Maybe I should wait outside.”

  “Stay here,” Rosie snapped. “He’s your great-nephew, too.” She pointed two fingers at me. “You may not have a technical legal conflict, but you have a personal one.”

  “With whom?”

  “Me. Your job description doesn’t include trying cases. You don’t have time.”

  “I’ll make time.”

  “It’s a bad idea to represent a family member.”

  “I just met him. I’ll treat him like any other client.”

  “Sure you will. Besides, you can’t do this yourself.”

  “I was hoping to persuade you to sit second chair.”

  “Not a chance, Mike.”

  “Then give me Rolanda.”

  “No.”

  “Please.”

  “No way. I’m not going to put my niece in the middle of your family mess.”

  Rolanda Fernandez was the daughter of Rosie’s older brother, who ran a produce market in the Mission. She had spent her summers during college and law school working for us at Fernandez and Daley. Rolanda graduated at the top of her class from my alma mater, Boalt Law School, at UC-Berkeley. She’d turned down an offer from a corporate firm downtown that would have paid her almost twice as much as she was making at the P.D.’s Office to follow in her aunt’s footsteps. She was one of our most promising attorneys.

  I tried again. “It would be an excellent experience for her. She’s young, smart, and ambitious. And she isn’t related to Thomas.”

  “She’s still your niece, and she’s definitely related to me.”

  “That doesn’t present a legal conflict.”

  “I don’t like it.”

  “She needs to learn how to deal with the media in a high-profile case. She’s ready and she has time. She just pled out that gang shooting at Hunters Point.”

  Rosie thought about it for a long moment. “It might make sense.”

  “It does make sense.” It was a rare instance where the truth lined up with my story. I was also hoping for an even more unusual occurrence—that I might win an argument with Rosie.

  “I want to talk to her first,” she said.

  “Fine.” She was going to give Rolanda an easy out.

  “You’ll also need an investigator.”

  I pointed at Pete. “I already have one.”

  “He doesn’t work for us.”

  “He works for me.”

  “Then it’s on your dime.”

  “Fine.” I turned to Pete. “We may need to work out a payment plan.”

  “We always do.”

  “Would you mind waiting outside for a minute? Rosie and I need to talk.”

  “Sure, Mick.” He headed into the hall.

  Rosie made no attempt to conceal her displeasure. “We need to do this by the book, and I have some non-negotiable conditions. First, you’re going to treat Rolanda well and give her plenty of responsibility.”

  “Of course.”

  “Second, our resources are limited.”

  I was on my own. “I know.”

  “Third, I don’t want you and your brother playing cops-and-robbers. If you’re going to look for witnesses in the Tenderloin, you’re going to be extra careful.”

  “Agreed.” For the most part.

  “Fourth, I don’t want you to say a word to the press until I issue a statement.”

  “Okay. What are you planning to say?”

  “The truth. We’ve been appointed to handle Nguyen’s case. We’ve just discovered that he’s your great-nephew. We followed our usual procedures. If they want any additional information, they should talk to you.”

  “You worried about political fallout?”

  “There’s always fallout, Mike. If you screw up, it could reflect poorly on me. I’ve worked hard on this campaign. If you embarrass me, I will never forgive you.”

  “Our client is entitled to representation. If we get an acquittal, it could help you.”

  “Not necessarily. If you act like a slime ball or you get Nguyen off on a technicality, it could cut against me.”

  “You’re saying we can’t win even if we win?”

  “You’re the one insisting on handling this case yourself.”

  “I’m prepared to take that risk.”

  “You have nothing to lose.”

  That was true. “My great-nephew could go to jail for the rest of his life.”

  “You didn’t even know that he was your great-nephew until five minutes ago.”

  I left it there. It was better to let Rosie have the last word.

  The seven-foot, three-hundred-twenty-pound frame of our secretary, legal assistant, security guard, and muscle man, Terrence “The Terminator” Love, filled Rosie’s doorway. His high-pitched voice sounded out of place for a guy who looked like Shaquille O’Neal. “Where do you want me to put the files for the Nguyen case?”

  “The conference room,” I said. “Please tell Rolanda that I need to see her.”

  “I will.” The light reflected off The Terminator’s shaved dome. “Rolanda’s first chair?”

  “No, I am.”

  His pockmarked face rearranged itself into a wide smile, exposing a gold front tooth—a souvenir of his first paycheck from Fernandez and Daley. “You’re trying cases again?”

  “Just this one.”

  “Must be something special.”

  “It is.” Terrence was perceptive for a guy who had spent much of his youth beating the daylights out of his opponents and drinking copious quantities of malt liquor. “I’ll explain later. In the meantime, I need you to cancel my appointments for the next week.”

  “Just like old times. By the way, Melinda Nguyen is here to see you again.”

  “Tell her I’ll be out in a few minutes.”

  “Will do.” He left Rosie’s office and closed the door behind him.

  Rosie spoke to me in a thoughtful tone. “You sure you want to do this?”

  “Absolutely.” I thought about our boss, who was sitting down the hall. Robert Kidd had served with distinction as Public Defender for almost three decades, and he had always been supportive—even when I tested the limits of our procedures and his patience. “We should probably clear this with Robert.”

  She grinned. “I already did.”

  11

  “WE HAVE A FEW CONDITIONS”

  Melinda’s voice was tense. “I didn’t expect to hear from you so soon.”

  “We’re very resourceful.” I grabbed a Diet Dr Pepper from the mini-fridge behind my desk. “Something to drink?”

  “No, thanks.”

  Pete was sitting on my windowsill and nursing a Coke. I looked straight into my newfound niece’s eyes. “The good news is we’ve been approved to represent Thomas. The bad news is the judge rejected our request for a delay, so jury selection starts Monday.” I waited a beat. “We got the results of the DNA tests. Want to reconsider anything you’ve told us?”

  Her eyes darted to Pete, then back to me. “No.”

  “There’s a ninety-nine percent chance that you’re Tommy’s daughter and Thomas is your son. That’s good enough for us.”

  “Mr. Daley, I don’t know what to say.”

  “For starters, you can stop calling me ‘Mr. Daley.’”

  “Do you want me to call you ‘Uncle Mike’?”

  “Just ‘Mike’ is fine.” I pointed at my brother. “Call him ‘Pete.’ And thank him for getting this information so quickly.”

  “Thank you, Pete.” She took a moment to get her bearings. “Does this mean you’re willing to handle Thomas’s case?”

  “Yes. My colleague, Rolanda Fernandez, will be assisting me. She’s an excellent attorney. She’s also Rosie’s niece.”

  “I’m very grateful.”

  I hope you’ll feel the same way when the case is over. “We have a few conditions. First, you and Thomas are going to treat Rolanda respectfully.”


  “Of course.”

  “Second, if I find out that you or Thomas has lied to us about anything, all bets are off.”

  “Understood.”

  “Third, you’re going to write down everything you know about yourself, your uncle, and every member of your family who came to the U.S. We’re going to check with ICE. If anything is untrue, you’re going to have some major legal issues.”

  “Okay.”

  “Fourth, you’re going to tell us everything you know about your son, Duc Tho, their friends, the guy who owns the liquor store, and anybody else who may have been in the vicinity that night. We’ve been told that Tho was tossed out of Galileo for selling marijuana. Somebody was supplying him. We need to know if anybody was working for him. We may want to offer that information to the D.A.”

  “Sandy Tran asked me the same thing. I don’t know much about Duc Tho.”

  “Then you have four days to use your connections in the Vietnamese community to find something. It may be our only bargaining chip. You also gave us the name of the village where my brother is buried.” I handed her a pad of paper. “I want you to draw us a more detailed map.”

  “I-I can’t give you a street address. It was in the jungle.”

  “We have connections with the Vietnamese government.” No, we don’t. “Write down the exact location or you get a Deputy Public Defender.”

  “I don’t know if anything is still there.”

  “Give us as much as you can.”

  She drew a rudimentary map. “We lived along a creek two miles north of Cib Tran Quang. There was a dirt road and about ten huts. There was a well at the south end of town and a tree about a hundred feet west of the well. That was our cemetery. I don’t know if there are still any markers. My father and mother are buried under that tree.”

  * * *

  “Heard from your contacts in Vietnam?” I asked.

  Pete took a sip of warm Coke. “Working on it.”

  We were sitting in my office. Melinda had just left. “Any idea how long it might take to get a read on this?” I asked.