“Mr. Kelly,” said Mr. Chen in a soft and gentle voice. “We have a number of witnesses who will swear that they saw you with your face pressed against the curb, hiding under cover. It is no shame to be frightened. I would have done the same had I been there.”
“Yes.”
“Yes, you saw nothing because you had your face turned away from the scene and you could not see anything?”
“Yes.”
“So you could not have seen my client holding a gun.”
“No. I must have been mistaken.”
“An easy mistake. Completely understandable. I'm sure no one will fault you for making that kind of an error. Anyone could have done that.”
“Thank you,” Kelly said, as if Chen had given him absolution.
“So, once again for the record, you did not see my client, Mr. John Caine, over there, with a firearm in his possession. You did not see him fire a pistol. You did not even see him hold a pistol in his hand. The next time you saw him was when he had already been shot in the back and had his hands inside the neck of another man, effectively saving his life. Isn't that correct, sir?”
“Yes.”
Mr. Chen stepped back. “No more questions, Your Honor.”
The judge looked to the prosecution table. “Redirect.”
Turley stood up. He looked shaken, as if this trial meant something to him. Brancato wrote something on his yellow pad and shoved it across the table. Turley glanced at it and nodded to himself. “Your Honor,” he said, “we have a few questions.”
“Proceed.”
“Mr. Kelly, you testified before the grand jury and in earlier proceedings that you saw the defendant with a gun in his hand.
And now you tell the Court that you didn't see it. Which version is correct?”
Mr. Chen patted my arm.
“I just said,” answered Kelly.
“Did you, or did you not, see the defendant, John Caine, fire a handgun during the gang shootingâ”
“Please,” said Mr. Chen to the judge, his voice soft, yet allowing the courtroom to hear the steel beneath the velvet. “We have been over this before. I am forced to object to Mr. Turley's characterization of the events of that day as a gang shooting. The prosecution presented no evidence of gang involvement or violence. The gunman has not been identified.
That
crime remains unsolved. The State has not shown any connection between the actual perpetrator of the crime and my client, which, if I read the law correctly, is crucial to the charge.”
“Your Honor, this is clearly a gang war shooting!”
“Try to remain calm, Mr. Turley,” said the judge. “Counsel is correct. You presented no evidence of gang involvement. Objection sustained.”
Turley took a moment to compose himself. “Mr. Kelly,” he said after a long pregnant pause, “did you see the defendant fire a gun?”
“No.”
“Did you see him hold a gun?”
“Well ⦠not really.”
“Not really?”
“No. Probably not.”
“Which is it?”
“When I reached the coffee shop I found him on the floor all covered in blood. He lay next to an Asian male. He was holding his throat. I thought he was choking him. I saw his suit coat was up in the back, and he had a large leather holster on his belt, right over the kidney, the way the FBI wears them. So I thought I saw a gun.”
“Thank you.”
“I wasn't sure. I couldn't see his hands.”
“That will be enough,” said Turley.
“The holster was one of those leather ones that is form-fitted to a mold of the firearm. This one could only have been for a .45 Colt automatic. I recognized the outlineâ”
“Your Honor!”
“He could have had a gun.”
“You may step down,” said the judge. “A copy of this transcript will be forwarded to your superior officer. And I shall take it under consideration, as well. If you hadn't gotten creative with the facts we most likely would not be wasting our time here today.”
“I object!”
“Please approach the bench. All the attorneys. Not just Mr. Turley.”
When they assembled in front of her, the judge smiled her catlike smile. Her voice carried. Even though she spoke in a low voice, I could hear her clearly. “You object to what the Court is saying, Mr. Turley?”
“It's prejudicial. And in front of the jury.”
She nodded. “I am about to excuse the jury. If you don't mind, Counselor.”
“No, Your Honor.” Turley's face was hot.
“Thank you.” She spoke up, addressing the jury. “The jury will be excused momentarily. I apologize for this inconvenience. We shall try not to take too long. Make yourselves comfortable, ladies and gentlemen.” She turned her attention back to the attorneys in front of her. “I think I'd be more comfortable in my chambers. Would you please join me there? And bring the defendant.”
T
he bailiff closed the door to the judge's chambers and we were alone with her and the prosecution. It was a plush office, with teak paneling and a desk the size of a small state. It smelled vaguely of lemon and lilac, but it felt like a lion's den.
“Sit down,” said Judge Santo, regally taking a seat in her oversized leather chair behind the desk. She indicated a collection of chairs and tables placed like petitioners before her. There were two groups of furniture, theirs and ours, separated by a round marble-topped table. The arrangement had been carefully thought out. This judge had done this a time or two before.
“Was that the best you've got?” She regarded the prosecution team with a baleful glare.
“Officer Kelly was our last witness.”
“That was your case?”
“Yes, Your Honor.”
“Your case just got shredded,” she said to Brancato. “You didn't have much before. Now you've got nothing.”
Brancato sat silent in his chair. He looked through a file in a Manila envelope as if he could find salvation inside.
“Mr. Brancato?”
“I'm sorry, Your Honor, but we have other evidence.”
“Then you had a duty to present it. Now it's too late.”
“I understand, Your Honor.”
“Do you? The People are not well represented in this case, Mr. Brancato.”
“There were ⦠other considerations.”
The judge raised her eyebrows. “I don't think I want to hear about âother considerations,' Mr. Brancato. And will you stop pawing through that file?”
“Yes, Your Honor.”
“âOther considerations' aside, we are going back out there in a few minutes and you are going to motion to the court that, considering your witness's unexpected turnaround on his testimony, you have no other option but to move to dismiss the charges against the defendant.”
“Butâ”
“You had your chance, you blew it. And now you are going to move to dismiss the charges against Mr. Caine so we can all get on with our lives. Your office wasted the Court's time and wasted your time, not to mention the defendant's time. There are other matters more important to be dealt with in this city. We will not waste one more second, or, seeing that time is money, waste one more dollar on this process. If you fail to motion to dismiss the charges against Mr. Caine, then the Court will direct a verdict of not guilty. Is that clear?”
“Yes, Your Honor.”
She looked at me. I could not read the expression on her face. “Mr. Caine, the court will dismiss the charges against you. I don't for a moment believe that you were not armed, or that you did not fire a pistol on that day in May, but I also do not believe that you did anything other than commit some minor infractions and save some lives. I've read your history. I don't expect that I shall see you again in this courtroom. At least I hope not.”
“Thank you.”
“The section of the Penal Code under which the defendant is charged was not drawn to cover actions taken by Mr. Caine. I researched it, and I believe that the law was severely misapplied in this case.
“But the law grants extreme latitude to the People in the crafting
of their cases. It must. And the system works very well most of the time. In this case, this section of the Penal Code was created to arm the People with the power to charge every member of a criminal partnership with murder if, in the commission of a felony such as an armed robbery, someone is killed. Even the death of a member of the criminal partnership would trigger the statute.
“I thought this case a stretch in the beginning, but the People have the right to be heard. I smelled a whiff of zealotry behind the charges, and I still suspect it. But for whatever reason, you failed to present the evidence. And now your witness self-destructed in front of the jury.
“What I am saying here, gentlemen, is that Mr. Caine did nothing wrong in the eyes of this Court. The People did not prove anything other than malfeasance and dereliction of duty on the part of the police.
“So I'm going to dismiss the charges.”
“Excuse me, Sylvia,” said Chen. “I would prefer that you did not dismiss the charges against Mr. Caine. Thatâ”
“Leaves him open to the district attorney refiling the case. Yes, I know, Albert. But I'm not going to do that. Your client will have to take his chances.”
“I understand,” I said.
“Do you?”
Mr. Chen nudged me gently. “I shall explain it to him. On our own time.”
Judge Santo nodded. “Thank you.” She looked at Turley and Brancato. Both men had sat silently through her speech and now stared at the judge. “Anything else?”
“No,” said Brancato.
“Mr. Turley? You're always eager and ready to instruct the Court.”
“No, ma'am.”
“Then I'm going to take a short break and we shall meet back in the courtroom in, let's say, fifteen minutes.”
Â
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The jury filed back in, Mr. Brancato stood and made the motion, Judge Santo dismissed the charges, discharged the jury, and I was a free man. Chen patted me on the back and flashed his golden smile.
“This was a good day,” he said.
I nodded. I could not find my voice to argue the point.
“Excuse me,” said a familiar voice behind me.
Shirley Henderson stood at the defense table, her body stiff and defiant.
“Looks like you won,” she said.
“I don't think anybody won.”
She nodded. “Just watch yourself the next time you come to San Francisco.”
“I watched myself that time.”
“You should have gone to jail.” She gave me a flat, harsh stare. “I know about you and your criminal friends.”
“I don't have criminal friends. I just have friends. And the judge didn't agree with you. That makes me innocent.”
“You're not innocent. You're not even not guilty. The charges were dismissed.”
“Miss Henderson,” said Mr. Chen quietly, “this is uncalled for.”
“Really?”
“Your actions border on harassment.”
She nodded.
“Did you ever solve that other killing? The young man someone hung from a building?” I asked.
“That is none of your business.”
“Can't we just shake hands and go our separate ways?”
“You're leaving for Honolulu?”
“Tomorrow, the next day.” I hadn't thought of going home yet. I had not dared to think that I could win this easily. Her question made me think of green mountains, cool breezes, bright sunny beaches, the smell of flowers, and warm brown skin.
“You ever come back to San Francisco, I'll be watching you. You do one thing wrong and you'll be back in jail. Depend on it.” She walked away, ignoring my outstretched hand.
Chen patted me on the back. “You can't win them all.”
“We won the one that counted, didn't we?”
He gave me another flash of gold. “Andrew and I would like to show you something, Mr. Caine. Can you spare a few hours this afternoon?”
“I had no other plans.”
“Just so. We are going to take a ride to a very special place. We thought that you might like to accompany us.”
“This have something to do with me?”
“It does.”
“Then of course.”
“I think you will find it instructive.”
Leaving the courtroom I noticed that Felix wasn't there.
Looking around, I also noted that Daniel was missing from his customary chair in the row behind me. He had not come to congratulate me.
Neither man had been in the courtroom.