That was nice. A little more information than I needed, but at least I now know that John Doe’s condition probably isn’t permanent. I thank the doctor and make a mental note as to some of the questions I’ll be asking John during my next visit. As we exit the coffee shop he hands me his business card.

  “Here Mister Sharp. I’m available to testify as an expert witness in the case but I’d like to at least examine your client before taking the stand.”

  *****

  Chapter 6

  My pre-trial motion to quash the indict-ment has been filed with the court and is set for a hearing this afternoon. The defendant’s presence is not required for this hearing, and on his behalf I waive his right to be present. Both Myra and the judge feel that I’m doing the right thing by not having him brought in here from the jail hospital.

  This is definitely not a high profile case and there will be no witnesses called to the hearing, so the judge decides to make it as informal as possible. He invites Myra and I into his chambers, where the court reporter has already set up her steno-thing device. He starts the ball rolling by calling the case and indictment number for the record. He then looks directly at me.

  “Counsel, you’re the moving party here, so you’ll go first. I want you to know that I’ve already read your Motion and also the District Attorney’s opposition paper. Do you have anything you’d like to add in the way of oral argument?”

  This sounds like he’s already made his mind up. I know the odds are against any judge setting aside an indictment.

  “That depends Your Honor. If we could be given some hint as to which way you’re leaning, my oral argument can be arranged to go from a brief thank-you, to about twenty minutes of impassioned pleading.”

  The judge picks up his phone and buzzes his clerk out in the courtroom. “Miss Hearn, please hold my calls for the next twenty minutes.”

  He has a subtle way about him. I start my plea, knowing that it’s probably in vain.

  “Your Honor, first I’d like to remind the court that in California, the felony murder rule has been reserved for deaths that occur during the commission of violent crimes. We’re all familiar with a getaway driver being charged with the death caused by his partner inside the liquor store, but in the present case the only crime alleged is one against property, and not against a person. In fact the prosecution doesn’t even have a complaining witness claiming loss of the personal property alleged to have been stolen.”

  I pause for a breath. The judge looks over to Myra and she takes the hint that it’s her turn to respond.

  “Your Honor, section 189 of the California Penal Code specifically adds Burglary as one of the crimes for which a defendant can be charged with felony murder if a death occurs during perpetration. In this particular instance, the underlying crime is burglary of property valued at more that the minimum required amount to classify it as a felony, instead of merely petty theft.

  “Furthermore the court should realize that section 459 of our Penal Code expands the crime of burglary to include the breaking and entry into automobiles, which did not exist when the common law definition of it only included ‘…breaking and entry into the dwelling house’ of another...”

  I have to say something here so that I at least go down trying. “Your Honor, I can’t argue against the District Attorney’s statement of the law as it appears in our Penal Code, but we contend that the alleged crime, if there was one, was concluded at the time the defendant had possession of the property. The events that took place afterwards were not part of an ongoing crime or attempt to avoid capture… they were the result of an accident. The defendant lost his balance and fell backward into oncoming traffic.

  “We must draw some line in the sand as to when what the District Attorney calls ‘perpetration’ concludes. Six months later, if there is a real owner of this laptop computer, he or she might discover that it’s gone and drop dead of a heart attack. We admit that this is less than the one-year-and-a-day common law rule for a murder charge if injuries had been directly caused by a defendant, but it’s certainly well past the ‘perpetration’ phase of the alleged underlying theft.”

  The judge asks Myra. “What about that Ms. Scot?”

  “We’ll go along with drawing the line at six months Your Honor, but not at six seconds, which is about the time between the theft and the accident causing the death. Furthermore, because the slim-jim burglary device was still in the car’s door after defendant had appropriated the computer, we contend that the crime had not yet been completed. Our evidence indicates that the defendant was actually in the act of removing the burglary tool when he lost his balance. This is definitely a case of a death during the perpetration of the crime.”

  She scored big-time with that salvo. The judge was impressed.

  “She’s got a point there, Mister Sharp. How do you respond? Ready to call it a day?”

  “Not quite, Your Honor. We would like to point out to the court that little by little, the law is chipping away at the felony murder rule. It originated in England, and even there it was abolished by the enactment of their Homicide Act of 1957. It has also been abolished in several states of this country, and the United States Commentary to the Model Penal Code finds the felony murder doctrine ‘indefensible in principle.’

  “In several other states not abolishing it completely, where the homicide is not intentional or foreseeable, it has been reduced to felony manslaughter. We would also like to cite one particular case of People versus Burroughs, where the defendant was convicted of 2nd degree felony murder because he was practicing medicine without a license and convinced a terminal cancer patient to not have a bone marrow transplant. The patient died at the defendant’s residence as the result of a massive hemorrhage of the mesentery in his abdomen, brought about by massages performed by the defendant.

  “In that case, the appellate court reversed the conviction and announced that they have held the felony murder rule in disfavor for some time. Their stated reason for the reversal was that the practice of medicine without a license in not inherently dangerous.

  “In the present case before this court, we contend that the crime of larceny is not inherently dangerous, and a felony murder conviction for the theft of personal property as is here alleged stands a much better chance of being overturned than the unlicensed doctor’s case.

  “And we have one more recent case we’d like to cite, Your Honor. It’s the matter of People versus Jones, which was decided in 2000 by the California Court of Appeal, 2nd District. In that matter, a defendant led the police on a high-speed automobile chase of a stolen vehicle through the streets of Long Beach, California. During the chase the defendant struck and killed a pedestrian. He was convicted of second-degree felony murder. Upon review the Appellate Court reversed that conviction, reasoning that a felony murder conviction requires proof that the defendant acted with the specific intent to commit the underlying felony.

  The underlying felony was only a felony because of the resultant death.

  “In the present case there is no indication that the defendant knew the value of the stolen item and therefore it might not have been a felony, but only petty theft.”

  I think I’ll stop while I’m not too far behind. They should both be able to see behind the feebleness of my argument, so I’ll just sit here for a while and take it like a man.

  Myra takes her final shot.

  “Your Honor, all of the arguments presented here today seem to be dependent upon findings of fact. Whether or not there was a crime. Whether or not the defendant knew the value of the theft item. Whether or not the crime was complete or still in a stage of perpetration, and so on. We feel that the main purpose of a trial is to determine facts, so we would urge the court to not quash the indictment and let a court or jury find one way or the other. If they convict, then the defendant can appeal and let the higher court hear his arguments about the applicable law. In the meantime we don’t think the defense has presented any valid legal argument against the indictment.”

  The silence in the room is deafening. The judge finally weighs in.

  “Counsel, I believe that defense has raised some legal arguments against the indictment, but they just weren’t enough. Unless you have something better Mister Sharp, I’m afraid that the indictment will stand. Do you have anything more to say at this time?”

  “No further argument Your Honor, but we would like to place the prosecution and the court on notice that we intend to request a hearing on the defendant’s competency to stand trial.”

  This brings Myra to her feet.

  “Oh Peter, give me a break. I’ve never heard of a court in this jurisdiction holding that amnesia makes a defendant incompetent to stand trial.”

  The judge breaks in.

  “Okay boys and girls, that’s it for today. I can see there’s still a spark between you two, so I’d appreciate it if you’d continue your legal bickering out in the hall, so that nothing gets ignited in here.”

  After the hearing is over I notice several photographers sitting around out in the hallway. They follow me to the elevator. I must be getting famous.

  On the way back to the Marina I keep telling myself that today was an effort in futility and the motion to find him incompetent to stand trial will also be a waste of time. I’m going to lose this case. There’s no way to find someone else who really committed the crime. That lady is dead. My client has no memory, and the whole thing is on videotape, with two policemen as eyeball witnesses to the entire series of events.

  Logic dictates that if you can’t figure out a way to acquit the client of a crime or place the blame on someone else, then the only other possible solution is to prove that there was no crime committed. They have no complaining witness. Why is that? They know who the owner of the burglarized car is. Why isn’t he complaining?

  Shortly before Myra and I split up, when she decided to ‘downsize’ the household, a former law clerk of mine decided to ‘borrow’ my name to get an early start on his law practice. His efforts were helped along by a conspiracy he entered into with an unscrupulous attorney - an expression many people believe is a redundancy of words. Their efforts resulted in the State Bar politely requesting that I cease and desist the practice of law for a few years. The only good thing resulting from that experience was my getting back together with Melvin Braunstein, an old classmate of mine. Ultimately that also led to my living on this boat and being the legal guardian of his stepdaughter Suzi, so the experience wasn’t totally for naught.

  Thanks to the honest testimony of an employee at a private mailbox place where my former law clerk had his ‘office’ located, the Bar saw the error of their ways, punished the wrongdoer and reinstated my license to practice. That mailbox clerk is a fellow named Jack Bibberman, and since the first day that I started practicing again I’ve considered him a trusted assistant. He can think straight and does really good investigative work. If there’s anyone who can find out what’s going on with this John Doe case, it’s Jack, so I call and give him instructions to pick up the video from my boat, get whatever other footage there is available from Myra’s office, get copies of the police reports, and find the reluctant claimant who drove away after having the computer he denies owning stolen from the rear seat of his car.

  Back at the boat I send a dog-mail to the ‘front office,’ requesting either a meeting or a report on any information that might have been gleaned from the laptop during the brief time we had a crack at it. I don’t really expect to be honored with an in-person meeting, so I sit back and relax for while with a dog biscuit on the table in front of me, waiting for the maildog to appear with the report.

  Sure enough, in less than fifteen minutes I hear the pitter-patter of huge paws.

  The report is a brief note telling me that there wasn’t enough time to go through the hard drive as thoroughly as we should have, but the serial number of the computer has been sent through various databases, and an attempt to trace the legal ownership of the unit is now under way. I guess that’s about as much as she could have done. Too bad I didn’t give her more time. Now that the laptop is evidence in a felony murder case we might not get another crack at it for a while. Another missed opportunity. Maybe Jack’s snooping around can make up for the lost chance with the laptop’s files.

  Wait a minute. There’s an indictment on the books now. We should be allowed to inspect the evidence. I’m calling Myra.

  “Make it fast Peter. I’m on my way to City Hall for a meeting.”

  “The defense would like to have an opportunity to inspect the evidence.”

  “You had your chance. We sent it over to you, your office inspected it and then we picked it up again.”

  “Not quite. We had a brief look at a laptop, but it was not evidence at the time. Now it is, and we’re entitled to have the opportunity to thoroughly inspect it. Information contained on the hard drive may give us some information as to our client’s identity, which can help him to cooperate in his own defense.”

  Silence on the other end of the line.

  “C’mon, Myra. You know we’re entitled to it. Stop trying to play hardball like that. You’ve got a dead-bang case with my client’s actions on multiple surveillance cameras and uniformed police officers as witnesses. What are you afraid of? Ah. That’s it. You’re worried that Suzi will find information in that computer that your high-priced technical experts missed. That’s it, isn’t it?”

  “No way José. I’ve had the best computer techs in the country going over that thing for the past several days. Believe me, there’s nothing on it that can help your case.”

  “Put your money where your mouth is Myra. Or better yet…”

  “Don’t try that crap with me on the phone Peter. This is my office. I’ll tell you what. I’ll have it sent back to you, but keep in mind that we’ve already made a duplicate back-up of the entire drive, recorded its serial number and etched some identification marks into it, so don’t think you can pull some sort of switch on us.”

  “What about a little side bet on the case?”

  “You’re wasting your time Petey. You’re going down on this one. What kind of bet do you have in mind?”

  “Loser buys the other side’s team dinner at Pollo Meshuga.”

  “Done.”

  I wish she wouldn’t call me Petey, but if that’s what I have to put up with to get that laptop back for the kid, it’s worth it. I have faith in her. She’ll find things that Myra’s experts never knew existed.

  True to her word, the laptop has arrived. The D.A.’s messenger is knocking on the hull. Looking over the rail, I see that it’s not a messenger. She’s having it delivered by two of her investigators. As they come aboard one of them is carrying a plastic bag that has one of those twist seals on the top of it, like the one that the electric company puts on a house’s meter. That’s probably so that they’ll have positive proof that the evidence pouch has been opened. Through clear bag I can see that they’ve pasted a big label on top of the case. It contains serial numbers of both the computer and the hard drive, written with a large indelible marker pen. They present me with some paperwork to sign and while one of them hands me the sealed bag containing the laptop the other turns on a tiny video camera so they can tape me receiving the sealed pouch and signing for it. I don’t know which one Myra would hate losing more – the criminal case or the dinner bet.

  I leave the sealed bag on the navigation counter next to the ship’s wheel. The kid has to walk right past there to go into her foreward stateroom, so she’ll see it and get to work soon. I’m also sure she knows it just got delivered, because one of the portholes in her stateroom looks outside at the boarding ladder, and she doesn’t miss the details of anyone coming or going around here.

  The phone is ringing. It’s probably my client John Doe. He’s been calling me every day from jail and I can usually tell it’s him calling because the jail’s phone number is blocked out of my caller ID display. I guess they do that for some security reasons. We really don’t have much to talk about. I ask him if he’s started to remember anything, and he says ‘no.’ He asks me if there’s anything new on the case and I say ‘no.’ The brief daily conversation then ends with me telling him to relax and try to remember, and him telling me to let him know if anything new comes up.

  I feel sorry for the guy. All the other people in jail know why they’re there. Not only does he not know why, he doesn’t even know who he is. During one of our conversations I try asking him some of those key questions that the shrink in Bart’s review class suggested, but they don’t do any good. I guess it’s just a matter of time before he starts to remember things. For his sake I hope it’s before he gets convicted. At least then he’ll know why he’s going to the penitentiary.

  The phone rings again. Jack Bibberman is calling.

  “Tell me you found something good, Jack.”

  “I wish I could Mister Sharp. Suzi ran the plates for me and they came back registered to a car rental company in the Valley. I looked at the rental place’s records and found the driver. He lives not far from the rental company and he used the car to go downtown to file a nuisance lawsuit against his neighbor for excessive noisemaking.”

  “Why did he rent a car? Doesn’t he own one?”

  “No. He’s a young man named Neil Kaplan who is currently living in a 20-foot Airstream trailer parked in a relative’s driveway and uses his bicycle to get around most of the time. He goes to college in the Valley and rents a car every once in a while when he has to go somewhere more than a couple of miles away. He says he doesn’t know anything about any computer and that it must have been left in the car by the previous rental customer.”

  “I don’t believe that. No laptop would survive a prior rental and car-cleaning process. Just to make sure, did you find out who rented that car last?”

 

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