In the second row she recognized two newspaper reporters, farther back Elizabeth Gold and Debbie Puglia, and, sitting together, two drifters who enjoyed going to court proceedings. She also saw David Cowan in the back row. Cowan looked anguished. His wife had had some sort of setback over the weekend and had barely pulled through.
The witnesses for both the prosecution and the defense came in one by one. For the prosecution, they were Davy Crockett and Gertrude Rittenhauer, the chief medical examiner for the county of Monterey, and also the county deputy sheriff who had located Wish at the condo, Deputy Grace. Crockett sat down at the prosecutor’s table on the right, looking spiffy in a blue suit.
For the defense, Nina had subpoenaed Dustin Quinn, dressed up in a sport coat and giving Wish the thumbs-up. Wish would testify too. The hell with received wisdom, this defendant would take the stand.
Jaime came in from the side door, arms full of books and papers. He said “Hi, Nina” in that low-key way he had, and started getting organized. At the same time, Judge Salas’s clerk, a blond woman of about fifty, had taken her chair and was writing on a form. To the side of the room, by the empty jury box, the bailiff leaned back in his chair in his tan uniform.
Wish was extremely nervous, and she thought again about this decision to have him testify. Yet how else could they explain what he was doing on the mountain? The burden of proof in a preliminary hearing was so minimal that if they left it with Jaime, Wish would certainly be bound over for some distant trial date.
But Wish had to be credible. He had to stop looking so guilty. “Sit up straight,” she whispered to him as Judge Salas appeared at the judge’s dais.
“The Superior Court of the County of Monterey, State of California, is in session, the Honorable Jose Salas presiding as magistrate.”
Judge Salas had shed his role of Superior Court judge for this proceeding and become a mere magistrate, for arcane legal reasons that Nina, in a discussion in bed on Friday night, had been unable to make Paul understand.
“It’s a legal fiction,” she had told him finally. “Don’t worry about it. A Superior Court judge can’t conduct a preliminary hearing, because the appeal from the prelim is to a Superior Court judge, and an appeal always has to be to a higher court. So they just change the name of the judge when he’s doing a prelim, to magistrate. So technically a lower court has conducted the prelim, and the law is satisfied.”
“What about the defendant? Is he satisfied? What about reality?”
“Reality? Vat is dis ting you call reality? This is law we’re talking about.”
“Okay, why should the appeal be to a higher court?” Paul said persistently. Sometimes they did this now, instead of making love, lay close to each other and talked softly, endlessly, about very unromantic things. Sometimes Nina enjoyed this pillow talk so much that she kept Paul awake long after his silences lengthened as he fell into drowsiness.
“Several underlying policy reasons. So the judge’s close colleagues on the bench aren’t passing judgment on him or her by reviewing the decision-”
“Okay.”
“And, obviously, an appeal by its very nature is a request for some higher authority to review a decision made by a lower court-it’s a matter of constitutional due process-”
“So how does calling a Superior Court judge a magistrate satisfy these policy reasons? His Superior Court colleagues still review his decision, and the defendant still doesn’t get a higher-court review.”
“That’s true. But it satisfies the letter of the law. That’s why it’s called a legal fiction.”
“And that’s why I don’t trust lawyers,” Paul had said. “Twist, twist, twist.” She lifted her head off his arm and looked at him. His eyes had closed and he gave no sign of realizing how he had casually pushed into her territory and butted into her thinking. Once again, he was openly challenging her assumptions about her own work. She flushed, annoyed and surprised. Then she thought about it. He was right, but you have to pick your fights. You can’t take on the whole system. Other lawyers will consider you naive for wasting your energy on a hopeless cause.
Then again, life was a hopeless cause. Which didn’t mean you stopped fighting.
Nina said, “You talked me into it. I shouldn’t take this for granted. It’s a denial of due process. I haven’t protested because it seems like it’s too big an injustice to take on. I guess I get inured.”
“Is that like getting inert? Like we are now?” They were indeed flat on their backs in the bed, talking at the ceiling.
“I guess, now that you bring this up, I’m going to have to object to having this matter heard by any Superior Court judge, no matter what name they give him. Judge Salas is going to hate me. Oh, well, he doesn’t like me right now anyway, so…” Her eyes closed and she slept.
“
“Jaime Sandoval, Monterey County District Attorney’s Office, appearing for the people of the State of California. Detective David Crockett of the State of California Special Arson Investigation Unit is my designated investigating officer.” This meant Crockett could sit in on all the proceedings even though he was a witness.
“Nina Reilly, law office of Nina Reilly, appearing for the defendant, Willis Whitefeather, Your Honor. Paul van Wagoner is my investigator in this case. The defendant is present.”
“Any new motions this morning before we begin?” Don’t you dare, Judge Salas’s jaundiced eye told Nina.
However, she had decided otherwise. Sometimes you have to do it, for your own self-respect and because of your respect for the law, even if you’re going to lose and know it. Salas wouldn’t like her any more, but he could hardly like her any less, so there was no strategic ground to be lost. She stood up and said, “One new motion, Your Honor.”
“Paperwork?”
“Right here, Your Honor. Filed just before court this morning.”
Jaime looked hypocritically regretful, as an Olympic skater might look watching a competitor execute a triple axel, only to land hard on her ass. He had read her motion and knew what she was in for. Salas was skimming the papers.
“Proceed,” he said.
“The basis of this motion is that this court has no jurisdiction to conduct this preliminary hearing.” Nina launched into her motion, which essentially said that Salas should step down until some real lower court could hear the case, on grounds that the defendant would otherwise be denied his right to appeal to a higher court. “A conspicuous and egregious denial of due process, I would respectfully submit,” she finished.
Salas knew she was right. So did Jaime. So did every criminal lawyer in the state of California.
The judge flipped through her points and authorities, which relied heavily on the United States Constitution, looked at Jaime, and said “Is she for real?”
“She is,” Jaime said, nodding.
“Counsel, do you know how many preliminary hearings are conducted in this state each year?”
“No, Your Honor,” Nina said.
“Thousands. Tens of thousands. Do you presume to know better than all the county courts, all the legislators, all the lawyers who have never raised this in any preliminary hearing to my knowledge since the act permitting consolidation of lower and superior courts was passed?”
“I don’t presume to be anything other than a lowly defense lawyer, Your Honor.”
“Then why do you raise this in my court, at this time? Is it to persecute me?”
“No, Your Honor.”
“Your motion is denied.”
“Very well, Your Honor. Thank you, Your Honor.”
“Feel free to appeal my ruling to the Superior Court,” Salas said, and gave Jaime a sideways glance. Jaime let out an obsequious chuckle.
With the Constitution out of the way, they moved along swiftly. Judge Salas asked about the witnesses and how long the hearing might last, and cast an incredulous look at Nina when told Wish would testify. The witnesses trooped out after being admonished to wait outside and not talk to one another.
Ten minutes later, all other legal detritus cleared away, Jaime called Deputy Clay Grace to the stand.
His complexion had, alas, not improved, but he was alert and responsive. Nina had no beef with him. She let Jaime get through the preliminaries efficiently.
“The Carmel Valley EMS advised they had a male subject who was DOA at Community Hospital. The subject had been found the day after the fire lying near some rocks about a quarter mile up from Hitchcock Canyon. Badly burned and no quick ID possible.”
“And what was your assignment with regard to this victim?”
“To determine who it was. We had what we considered to be significant information in this regard. The Carmel Valley police had been contacted by the defendant’s roommates the morning after the Robles Ridge fire and told that he was missing.”
“‘He’ meaning Willis Whitefeather, the defendant?”
“Correct.”
“What else did these roommates say in their report?” Deputy Grace was testifying as to hearsay, but Nina couldn’t object. In another sleight-of-hand, prosecutors had managed to get a law passed that allowed hearsay in preliminary hearings, as long as it came from a law-enforcement officer with five years of experience. She contented herself with rereading her copy of the handwritten report made by Dustin Quinn.
“They told the Carmel police that the defendant had gone up to Robles Ridge the night before-”
“The night of the fire?”
“Yes. Carrying a backpack with equipment, accompanied by another young man named Danny Cervantes. Based on that, we were working on the theory that the burn victim was either Willis Whitefeather or Danny Cervantes. Also that these two gentlemen had perpetrated the arson fire on the ridge.”
“What did you do next?”
“Well, we advised Mr. Whitefeather’s mother that we needed her assistance in viewing the body, but she couldn’t fly in right away. It took another day to get ahold of Mr. Cervantes’s uncle here and he was the one who made the final ID, but as of the day after the fire, we didn’t know which one of them might still be alive. Neither of them had local dentists and we would eventually have been looking for those records at Lake Tahoe, where both of them were originally from.”
“While you were waiting for a family member to make this ID, what, if any, other avenues of investigation did you pursue?”
“We started calling every hospital and clinic in Monterey County. The CVPD was continuing to search the fire area, so I was assisting by trying to determine if the other individual involved in the fire might have also been burned and needed medical help.”
“And did you locate anyone in this way?”
“No. I then made the assumption that the one who survived might have been able to flee the jurisdiction and I put out a request to surrounding counties up to Santa Clara County for information as to hospital and clinic admissions.”
“Object to the characterization implied by the use of the word
Salas looked up, displeased. “You’ll have your chance to cross-examine. There’s no jury here, Counsel. I can separate the wheat from the chaff. Overruled.”
“And did this inquiry bear any fruit?”
“Almost right away. I got a call on Thursday evening from the Las Flores Medical Clinic in San Juan Bautista, about fifty miles from the fire site. The admissions clerk advised that Willis
