A Criminal Defense

Chapter 3

We need some ground rules,” Presiding Judge Raymond McMullin said as he leaned forward in his high-backed leather chair and hunched over his desk.

Donnally and Navarro had observed the autopsy just long enough to confirm Hamlin had been strangled from behind rather than asphyxiated by the rope by which he was hanging, and then walked over to the Superior Court to meet District Attorney Hannah Goldhagen in chambers when the judge arrived at 8 A.M.

During his detective years, Donnally always liked bringing search and arrest warrants to McMullin, always learned something new about the law and about the gap that too often separated the form of justice from its substance in practice, and the ideal of justice from the institutions in which it was supposed to be accomplished. For McMullin, the tragedy of the law and the heartbreak of his life as a judge was his inability to close all those gaps and to prevent the free fall of victims, witnesses, and defendants into them, and he’d never been afraid to admit it, even to a cop half his age.

It had always seemed to Donnally that McMullin was a throwback, reincarnated from a world that existed early in the previous century. He was a judge because someone in his family always had to become a judge, like an old Irish family in which one son always had to become a priest. And since Donnally had been retired out of SFPD, McMullin had aged into the most senior, the monsignor to the Hall of Justice’s priestly class.

McMullin pointed at Goldhagen. “I don’t want you to use this investigation as a fishing expedition, a device to reexamine and reopen all of Mark Hamlin’s old cases.”

Goldhagen sat up, her back arched as though about to protest.

McMullin held up his palm toward her.

“It’s not that I wouldn’t want to do it if I were in your place. There are countless times when I wished I could’ve gotten him prosecuted for obstruction of justice. But he was too slick and always found ways to slip by.”

Goldhagen sat back.

The judge gestured toward the hallway. “The stunt he pulled last week was disgusting, but none of those gangsters would admit he put them up to it.”

“What if he”-Goldhagen glanced at Donnally-“comes across evidence of crimes that can still be prosecuted, like against some of the private investigators Hamlin used to do his dirty work?”

“That’s a hypothetical you won’t have to face. He”-now McMullin looked at Donnally-“won’t. Hamlin wasn’t stupid enough to leave that kind of trail.”

Donnally didn’t like being talked about in the third person, as though he was a dog or an Alzheimer’s patient incapable of exercising his own judgment.

“That gives us rule number one,” Donnally said. “Based on what I find, I’ll decide whether something should be referred for prosecution.”

Now all eyes turned toward him.

“And rule number two, I’ll take Detective Navarro along whenever I can.” Donnally glanced over at Goldhagen and pointed with his thumb toward Navarro. “He’ll work with you to get whatever search warrants we need.”

“So far, so good,” McMullin said, then smiled. “Don’t I get to. .”

Donnally nodded and spread his hands to take in the wood-paneled chambers. “You’re the one in charge.”

McMullin shifted his gaze toward Goldhagen. “I’m very concerned about the appearance of a conflict of interest. The public might view your office as more interested in getting even than seeing justice done.”

Goldhagen reddened, and they all understood why. After a series of district attorneys that had been perceived by the press as defense attorneys in the guise of prosecutors-who never sought the death penalty in murder cases, who never moved to deport immigrant felons, who never prosecuted marijuana grow operations-she’d run as a prosecutor’s prosecutor in what had been, since the Barbary Coast days, a lawless and disordered town.

The police officers association supported her, but not with enthusiasm, as they weren’t ready to wean themselves from the political cover of always having someone else to blame for their low case-closure percentages and the court’s low conviction rates.

It wasn’t that San Francisco was the murder capital of California, just that it was the city in which murderers were most likely to get away with it.

And for those times when there was neither the district attorney nor the police department to blame, there was always Mark Hamlin and others like him in the defense bar.

“There’s nothing we can do to Hamlin that’s any worse than what was done to him this morning,” Goldhagen said. “But whether or not his death is connected to any of his clients, we’ll kick down any door to get to whoever did it.”

“That’s rule number three,” McMullin said. “You’ll refer any potential cases arising out of this investigation to the state attorney general for prosecution.”

Goldhagen folded her arms across her chest. “You can’t force-”

“Aren’t we getting ahead of ourselves?” Donnally said. “For all we know, his death has nothing to do with his work and all to do with his private life. I don’t know all the things Hamlin was up to. The condition of his body suggests some possibilities, but no more than that. Maybe we can narrow them when we open up his apartment.”

Donnally saw Navarro look down. He noticed Goldhagen had also spotted the motion. They both turned toward him.

“Don’t tell me you’ve already gone inside?” Donnally said. “You led me to believe your people just checked for forced entry and looked in through the windows.”

“We had to make sure there weren’t other victims in there,” Navarro said, looking first at Donnally, then at the judge. “I promise, Your Honor”-he raised his hand as though swearing an oath-“the officers didn’t touch anything. Just glanced around and sealed up the place.”

The irony of SFPD’s breaking into Hamlin’s apartment rose up before all of them. It was exactly the sort of illegal search Hamlin had exploited a hundred times to force courts to dismiss otherwise provable crimes. And now that same violation might taint the prosecution of Hamlin’s own killer.

Donnally heard Goldhagen mumble a few words.

“What did you say?” Donnally asked.

“I said it’s poetic justice.”

Donnally pushed himself to his feet. “And I don’t want to have anything to do with it.”

“Look,” Navarro said, his voice rising, “if we didn’t go inside and there was a victim bleeding out in there, we’d look like idiots for not doing it.”

“By that logic,” McMullin said, “you’d have the right to search every apartment in San Francisco.” He pointed at Donnally, now sliding back his chair in order to make his way to the door. “Hold on.” He then asked Navarro, “Have officers also broken into Hamlin’s office?”

“His assistant opened up the place and let them do a sweep.” Navarro looked up at Donnally. “You would’ve done the same thing when you had my job.” Then at the judge. “Until you issue the order making him special master, it’s my case and I’m responsible. I didn’t want it on my conscience if somebody died on Hamlin’s kitchen floor waiting for that to happen.”

“Consider the order issued.”

“Don’t I have anything to say about it?” Donnally asked, knowing he had a choice, but also now understanding that he probably wasn’t going to exercise it.

When he left police work, he’d taken some unanswered questions with him. Some had come to him while he was on the job, but the more fundamental ones he’d brought with him from a nightmarish childhood in Hollywood, ones he’d hoped a career in the world of brute fact and rough justice would answer.

And he wasn’t going to deceive himself about it. He understood the reason he’d accept the appointment wasn’t because he cared all that much about who killed Hamlin, except in the abstract sense that killers must be caught. It was more that he’d never understood lawyers like Hamlin, and maybe this was his chance to get an understanding of what was satisfied in them by corrupting the criminal justice process. To understand why the kind of deceit that would’ve outraged Hamlin, if he had been a victim, was just a harmless game when he inflicted it on others. To understand why his deceptions seemed to justify all other deceptions, by judges, by police, and by prosecutors.

Or maybe he’d get an answer to another question, one that asked whether Hamlin was a product of a system he’d joined or one of its creators. A chicken-both-before-and-after-the-egg scheme of organized deception that already had Navarro lying to him about searching Hamlin’s apartment.

McMullin pointed at Donnally’s chair. “Sit down. It’s no harm, no foul.”

“You sure?”

They all looked at Navarro, who hesitated a beat, then said, “I’m sure.”

“I think we need a rule number four,” McMullin said. “Just to make sure there is no harm in the future and we risk no more fouls.” He looked at Donnally. “No dipping into Hamlin’s attorney-client privileged materials unless you have very strong reason-”

“Probable cause?” Donnally asked.

“That’s too high a standard. Just a strong reason to believe one of his clients or other people involved in his cases are connected to his death and that evidence relevant to that reason might be contained in his files.”

The judge looked from face to face.

“Can we all live with that?”