H
er Honor Judge Sylvia Santo looked up from her desk and peered over the top of silver half-glasses at Mr. Chen. She glanced down again at the paper in front of her as if she did not believe what she had read there the first time. Then she looked at my attorney again.
“This is something new to my experience, Mr. Chen,” she said in a low, cigarette-roughened voice. “Usually the defendant wishes to delay the case as long as possible.”
“We are ready to proceed, Your Honor. The defendant not only stands accused of a crime that he did not commit, but he is accused of capital murder in a case where his only actions resulted in saving the lives of at least two people. And if I may be so bold, may I remind the Court that justice delayed is justice denied.”
The judge nearly smiled. “I haven't heard that old saw since law school, Albert. Motion granted. I've never seen someone so eager to drag his own client into court.”
“Thank you, Your Honor.”
“Excuse me.” Christopher Turley, the young attorney prosecuting the case for the county, spoke without rising. He had risen once and had been chastised for it by the judge. He had tried to interrupt once, and had been chastised for that, too. His senior was not present at this hearing and he was not having a good day. If I read the situation correctly, the judge was continuing the
young man's education. The experience was a kind of on-the-job training. It could not have been amusing for the young man, edifying as it was.
“Yes, Mr. Turley?”
“The prosecution needs more time.”
Mr. Chen grinned and winked at me, his face shielded from the front of the courtroom by a copy of the motion he had just filed.
“Are you saying, Mr. Turley, that the City and County of San Francisco is not ready to proceed? Is that what you're saying?”
“I believe that we're going to need a little time, Your Honor. Iâ”
“The defendant is ready to proceed. He has filed papers to that effect. It's a fish-or-cut-bait thing at this juncture. Either you are or you aren't. You're aware, aren't you, that your office brought the charges? Are you not ready to proceed?” Judge Santo's voice was a low and menacing growl, reminiscent of a large jungle cat regarding its prey.
Young Mr. Turley may have been
young
Mr. Turley, but he was not young and
stupid
Mr. Turley, because he instantly understood where she was going with her questions and began backpedaling.
“The prosecution will be ready, Your Honor,” he said quickly, blushing furiously from his hairline to the spot where his neck disappeared into his tight white collar.
“Is? Or will be?”
“Is, Your Honor. The prosecution is ready to proceed.”
“So you have no objection to allowing the defendant his Constitutional right to a speedy trial?”
“No, Your Honor.”
“And the People will be ready, no matter when I set the trial date?”
“Yes, Your Honor.”
“Very well.” She shuffled some papers and leaned over to speak with one of her clerks.
“Are we ready?” I whispered to Mr. Chen.
He nodded and put his finger to his mouth.
“We seem to have an opening, gentlemen,” said the judge. “We can begin jury selection Monday, Mr. Chen. How does that fit into your schedule?”
“That would fit perfectly. Thank you, Your Honor.”
She looked at the deputy district attorney, who merely nodded. He almost looked afraid to speak.
“You sound very sure of yourself, Mr. Chen.”
“It is the case, Your Honor. This is a travesty. The charges should never have been filed against my client. This one will be a pleasure to try.”
“Tell me that when it's over,” she said. “You know all about the cup and the lip, don't you?”
Chen gave her a perfunctory bow of acknowledgment. “Your Honor, we have one more piece of business.”
She nodded. “Your office provided me with some very interesting reading. Are you prepared to post bond for Mr. Caine?”
“Of course.”
Turley seemed to have found his voice, but he spoke without rising all the same. “Your Honor, the People oppose bail in any form. May I remind the Court that this is a capital case. We are not after the death penalty, but we are citing special circumstances.”
“Thank you, Mr. Turley. The court appreciates the reminder. Have you read the motion prepared by the defendant?”
“I have, Your Honor. It reads like a novel.”
“Then you are aware of the sworn statements of a Honolulu police detective detailing Mr. Caine's activities of the night he was to fly here to California?”
“Yes, Your Honor.”
“Mr. Caine apparently apprehended a kidnapping suspect while on his way to jail. And then he voluntarily waited while the arresting officer got to the scene. Don't you think that warrants some trust from the People of California?”
“Mr. Caine did not make the arrest alone. He was in the company of a Honolulu police detective.”
“Who apparently trusted him.”
“The People believe that he represents a flight risk.”
She gave me an imperious look over the rims of her reading glasses. “Mr. Caine, are you going to run away?”
“No, Your Honor.”
“And you are not going to get into trouble again here in San Francisco, are you?”
“No, ma'am.”
She looked at Turley. “Have you read the other supporting documentation?”
Turley nodded.
“And you still oppose?”
“The People do.”
“The People's opposition is noted.” She looked over at our table. “Bail is set at one hundred thousand dollars, Mr. Chen. Bail will remain in effect until the verdict, or until your client does something stupid. I do not expect your client to do anything stupid, and you will instruct him not to play with firearms, knives, or any other weapons, nor should he become involved with any troublesome characters while he is in our fair city. Any other motions?”
“No, Your Honor. Thank you, Your Honor.”
She looked to Turley, who shook his head. “No.”
“Then we'll meet back here at nine o'clock on Monday. Have a nice weekend, everyone.”
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“Sylvia Santo is a tough judge, but I think she likes you,” said Albert Chen to Christopher Turley after the judge had left the bench and the attorneys were picking up their law books and papers.
“Likes me? I feel like I've been beaten like a rented mule.”
“She likes to keep the momentum going. And she likes to mentor young attorneys she feels have promise. She mentored you today, nothing more. That, to me, told me she liked you.”
“I guess I'm flattered,” said Turley, closing his briefcase. “Funny, but I used to think it was a pleasant thing to be flattered.”
He shrugged. “We'll see you on Monday. Steven will be here, too. I'm not going to endure this flattery alone.”
“He is learning. He will be an excellent litigator when he has some experience under his belt,” Chen said to me after Turley left. “His senior is not so shy. Steven Brancato can be a passionate man in the courtroom. It is his weakness. When he gets going he puts on his blinders and rushes straight ahead. He looks neither left nor right.”
Chen grinned at me, showing me all of his gold. “We will use that passion against him. It is the basic principle of aikido. It works in aikido. It will work here, too.”
“Yeah, well, I'm sure they're great people, but I'd like them a whole lot better if they weren't so intent on putting me in prison.”
“Young Mr. Turley is not inept, he is inexperienced; Mr. Brancato is experienced, but very inept. We could not have been given a better team to fight in court. This could not be anything but a gift from my good friend, the district attorney.”
“Why didn't your friend just drop the charges?”
“That is not the way of a politician. He is embarrassed that his office brought the charges against you in the first place. After I forced him to see the true issues, he made the offer that you rejected. Both actions were foreseeable. You would not take the offer. He could not back down. It would not look good, even though it would have been best for the community.”
“And for me.”
“And for you. But he could not do that because of the way it would look.” Mr. Chen looked at me sadly. “So he gave us these two, Mr. Turley and Mr. Brancato, so that if he lost the case he could blame it on his inferiors.”
“
If
he lost?”
“There is nothing certain in the courtroom. There is always the chance that the prosecution will win. Mr. Brancato has certain negative qualities, but he does win a case from time to time. And if he wins, then my friend the District Attorney will have won as well. His actions may be lacking in principle, but they are predictable.
It is the way of the politician to cover himself in layers of immunity.”
“I don't like this.”
“As indeed you should not.”
“No wonder I hate politicians.”
“Yes.” Chen smiled, but his heart wasn't in it. “They are a breed apart.”
Andrew White finished gathering the papers and notes that he had spread out on the top of the table. He nodded, but didn't smile. I wondered if they taught that in those Ivy League universities.
“When do you post my bond?”
“Mr. Smith is posting it as we speak. We are waiting here for word so you may be processed out. Andrew will accompany you and take you to your hotel. Mr. Choy instructed me to put you up at the Mark.”
“Of course he did,” I said.
“Everyone is there. We have a floor. It makes it easier.”
“And Daniel is here?”
“He is here, as is your bodyguard. The one from here. His name is Chen, too.”
“Any relation?”
“There are many Chens in San Francisco.”
“And in China, too, I'd imagine.”
Chen showed me his gold collection again. “China has only fifty-two surnames for a billion and a half people. There are therefore many, many Chens, regardless of where you may find them.”
“So how long will this take?”
“Do not worry, Mr. Caine. We will get you out of here. But you must be patient. I guarantee you that you shall sleep between clean sheets tonight, and that you may lock the door from your side if you wish.”
He reached over and patted my hand.
“Or you may leave it wide open. That is entirely up to you.”
A
s trials went, it wasn't much. From jury selection through the final argument, the whole thing took less than a week.
As trials went, it may not have been long. But for me it was long enough.
The experience taught me many things, not the least of which was that justice had nothing to do with the truth. Everyone swore to it. The system was supposed to be based on it. But if it ever started to peek out from behind the layers of theory, rules and opinion that obscured it, the system immediately reacted and removed it. Truth was not the goal.
I wondered how they knew it when they saw it.
I liked it that the prosecution went first. I liked it that we could present our own witnesses, and then drag theirs back to testify again if we wanted them to. I didn't mind that the system was skewed toward the defendant. In this case, the defendant was me.
The State offered its medical examiner to lay their foundation. A woman had been killed by a gunshot. The coroner's deputy testified as to how and where and when the victim had been struck, what the damages were, and what, if any, other injuries she might have suffered. My attorneys emphasized that the woman had been killed instantly. They treated the deputy coroner as if he were an old friend. They asked very few questions and sat down.
They disputed nothing. Everyone knew that Jackie Chang had been killed in the gunfight.
Then came the forensic experts who testified in excruciating detail about shell casings and slugs removed from the wooden structure where the gunman had hidden. Mr. Chen had them enumerate the number of 9mm shell casings found as opposed to the number of .45 ACP casings, their locations, the total number of firearms extrapolated by the laboratory based upon the shell case markings and the striations on the bullets. He asked if they had matched any bullets to any particular firearm. They had. To only one, the gun found several days later hanging from the corpse of the young man who had been murdered by persons unknown. Shell casings found on the roof of the building across the street, and bullets removed from bodies, both living and dead, matched that firearm. Mr. Chen also asked if there had been any fingerprints found on the .45 shell casings, and if so, if they had been matched to any particular individual.
“No,” said the technician. “There were no fingerprints.”
“So you cannot tie that firearm to any particular individual, is that correct?”
“That is correct.”
By the time the forensics people stepped down from the stand I wasn't certain that I knew what had occurred and I had been there. The lasting impression from their testimony was that they had identified the dead shooter's weapon using two inalienable methods. Of a .45, Mr. Chen had reduced the memory of their earlier testimony to a distant murmur. Yes, there had been a .45. No, nobody had been shot by a .45. But several people had been shot by the other gun, the gun somehow connected to a corpse.
Oddly enough, the State did not present my bloody holster. That particular piece of evidence was a double-edged sword, as Chen explained it. If they presented it, it could support their case against meâthat I had come prepared and possibly planning violence, and that I had come with a large-caliber automatic firearm, and, by implication, had used it. The other edge of that sword was
the blood on the holster, how it got there, whose it was, and the circumstances surrounding the mixture of blood soaked into the old leather.
Eyes twinkling, gold teeth flashing, Mr. Chen said that they had probably weighed the risks and rewards and decided that the jury should never view the holster. He said that this must have been the subject of lively debates in the prosecutor's office. Their conundrum, he said, was that without it, and without an eyewitness testifying to the fact of my using a firearm at the scene, the state had nothing to connect me to the shooting.
“You might as well have been passing by,” he said, smiling. “They have little to work with and they know it.”
The prosecution called its last witness, the police officer who had sworn that he had seen me indiscriminately fire a pistol during the gun battle. Turley took the man through the sequence of events on that bright spring day. When asked if the gunman was present in the courtroom, the cop pointed in my direction. I felt the jury turn and examine me, as if expecting horns.
And the prosecution rested.
Judge Santo looked at our table, raising her eyebrows. “Your witness, Mr. Chen.”
“We have a few questions, Your Honor,” said Albert.
“I'll bet you do,” said Judge Santo. “Mr. Kelly, you will remember that you're still under oath.”
Mr. Chen led Kelly through his previous testimony. The man had been insistent that I was shooting. He saw me, he said, firing blindly. His testimony was damning and specific. I was there, I was armed, and I was using a pistol in what the prosecution tried to characterize as a gang war.
Mr. Chen allowed all of this damning testimony to be repeated. He emphasized the police officer's main points. He made me look like evil incarnate.
And then he paused and lowered his chin onto his chest, as if examining something on the yellow pad in front of him.
I looked. It was empty.
“We have heard your testimony as to your actions on that day, Mr. Kelly,” said Mr. Chen in his soothing and gentle voice. “Do you recall filing a report?”
“A report?”
“A situation report. A sort of after-action report. Department policy requires it.”
The man nodded.
“Excuse me, please, but could you answer verbally? This young lady,” he indicated the court reporter, “has no symbols for a nod.”
“Yes.”
Mr. Chen went to the defense table and Andrew White handed him a piece of paper. “Is this your report, sir?” Chen handed it to the judge, who entered it and marked it as evidence. When she returned it to Chen he placed it before the man.
“Yes.”
“This is your handwriting?”
“Yes. It's mine.”
“In this report you state that you did not fire your revolver.”
“We have to account for every bullet. I would have had to account for the reason I fired my service pistol.”
“Rightly so, Mr. Kelly. And so you did not fire your service revolver at any time during the events of that afternoon in May. Is that correct?”
“I could notâ”
“Please, sir. That was a yes or no question. Did you fire your revolver?”
“It's a pistol.”
“Is there a difference?”
“The department issues us an automatic pistol. We don't carry revolvers. An automatic pistol is self-loading. In a revolver the chamber is the cylinder, which turns.”
“You are an expert on firearms, Mr. Kelly?”
“Sort of. I shoot a lot.”
“So you carry a
pistol,
is that right?”
“Yeah. A pistol is the correct term. Not a revolver.”
“So, did you fire your service pistol at any time during the events of that afternoon in May? Did I get my terms correct this time?”
“Yes.”
“Is that a âyes' you fired your pistol or a 'yes' I got my terms correct?”
“You were correct.”
“Thank you. Now did you fire your pistol?”
He hesitated. “No.”
“Was your pistol loaded?”
“Yeah.”
“Did you chamber a round?”
“Huh?”
“Did you chamber a round? As you've stated, the San Francisco Police Department issues automatic pistols to its officers. An automatic pistol does not fire unless you chamber a round, pulling back the slide to bring a round into the firing chamber. Did you chamber a round to make it ready to fire, sir?”
“I ⦠don't remember.”
“Did you remove your pistol from its holster?”
“I don't really remember.”
“That is understandable. Have you ever been under fire? Has anyone ever shot at you before?”
“No. This was the first time.”
“Have you ever had to pull the trigger of your pistol while it was aimed at a man or a woman while you were on duty?”
“No.”
“Were you in the military?”
“No.”
“So this was your first time ever under fire?”
“Yes.”
“Difficult circumstances, weren't they? Did you feel that your life was in danger?”
“Yes.”
“Did you feel that others' lives were in danger?”
“Of course.”
“Are you a good shot, Mr. Kelly?”
“Pardon?”
“Are you adequate with the pistol that you carry when you are on duty with the San Francisco police department?”
“I'd say so.”
Chen consulted his notes. “And your records do indicate that you, in fact, are rated expert on the shooting range. You have won departmental trophies. Isn't that so?”
“I won a few rounds in the combat pistol range. Hogan's Alley.”
“You won?”
“I won some competitions.”
“Hogan's Alley. What is that?”
“It's like a street. Different targets jump out at you. You have to make a determination whether it is a civilian or a criminal. If it is a criminal, and if it represents an armed threat, you draw your weapon and you shoot.”
“Your weapon?”
“My pistol.”
Chen nodded. “And you won such a competition?”
“Once or twice.”
“I see here you won it four times. You are too modest, Mr. Kelly.”
“I'm pretty good. I guess I forgot how many times I won it.”
“You're pretty good. So it would be accurate to state for the record that you are an excellent shot. Under simulated combat conditions, you are expert enough to see the target, determine instantly if it is good or bad, determine whether or not it presents a threat, then draw your weapon, fire, and hit the target. And all in the course of a split second. You are pretty good with your pistol, good enough to win competitions against other professional police officers. Isn't that correct, sir?”
“Yes.”
“Proud of that?”
“Yes.”
“So last May, people were being shot right in front of you. For
real this time, not on a range. Granted, it was the first time you had ever experienced something terrible like that. Granted, you were not prepared for such a circumstance. You were only supposed to direct traffic for a funeral that day. Isn't that correct?”
“Yeah ⦠Yes sir.”
“What is the policeman's primary duty?”
“To keep the peace.”
“Well ⦠I was thinking of why you are out there on the street. Keeping the peace is part of it, of course. But what is the primary duty? Why do you carry a firearm?”
“To protect the public.”
“To protect the public,” repeated Chen, his hand on his chin, his posture that of a supplicant. “So if people were being shot down in front of you, and if you were an armed and trained policeman, on duty, proficient, no,
expert
on the use of your weapon, wasn't it your job to remove the pistol from your holster and chamber a round and use the training and the expertise you so obviously possess to protect those innocent people?”
Kelly sat riveted to his chair, shaking his head.
“We are waiting for your answer, sir.”
“No. Yes. I was going to ⦔
“You didn't look, did you?”
“What?”
“It's nothing to be ashamed of. Survival is an important instinct. We all have it, in one form or another. You heard the gunshots and you dove into the gutter and you kept your head down until the shooting stopped. Isn't that correct, sir?”
“No!”
“You did not fire your pistol. You did not chamber a round into your pistol so you could return fire at the man who was shooting the innocents. You did nothing to save others. You saved yourself. Admit it, man, you'll feel much better.”
“I'm going to object, Your Honor,” said Brancato from the prosecution table. “This police officer is not on trial.”
“My client
is
on trial because he is accused of doing what this officer should have done and failed to do.”
“Gentlemen,” drawled Judge Santo. “Please. In light of the fact that the defendant is contesting for his life and freedom, Mr. Chen is pursuing a line of questioning that has merit. I shall therefore overrule the objection. Please continue.”