WELCOME TO THE ROW
Friday, July 10. 11:03 a.m. 8 days, 12 hours, and 58 minutes until execution.
The oldest man on death row is eyeing me from his wheelchair. Despite his frail appearance, his grip is firm and his baritone is still forceful. "Welcome to the Row, Mr. Daley," he says to me. "We need your help. We're running out of time."
More than 650 inmates are awaiting lethal injections on California's death row. Every one of them is running out of time.
"Thank you for coming on such short notice," he continues. "Did you have any trouble getting inside?"
"Nothing out of the ordinary," I say. Sometimes it seems harder for lawyers to get into San Quentin than it is for our clients to get out. It took me an hour to fill out the stack of forms, sign the multiple releases, and pass through the two metal detectors, before I was locked inside one of a dozen windowless six-by-six-foot cells separated by interlaced steel bars covered by scuffed Plexiglas. The death row visitors' area is just a stone's throw from the little green chamber where the State of California conducts its executions. It's a dark reminder of the burdens borne by the denim-clad prisoners who pass their time going about the mundane business of being incarcerated while their lawyers try to prolong their lives. "Mr. Fineman––," I say.
"It's Nate," my host insists in a genial manner.
Fine. "I'm Mike." Nate Fineman may be confined to a wheelchair, but I've learned the hard way never to let my guard down. The first client I ever visited on the Row was a remorseless psychopath who had stabbed his ex-girlfriend twenty-seven times with an ice pick. Instead of shaking my hand, he introduced himself by slamming me against the wall. His hands were clasped around my throat when the guards finally wrestled him to the floor. He never got around to thanking me for getting his death sentence commuted. Every lawyer who handles death-penalty appeals has a similar story. "I'm flattered that you'd like us to help with your defense," I say, "but practically speaking, it's really too late to replace your lawyer."
He strokes his trim gray goatee. "I have no intention of replacing my lawyer," he assures me. "That would be crazy."
Crazy as a fox, perhaps. At seventy-seven, Nate Fineman has been on the Row for ten years. This bootlegger's son doesn't fit the usual demographics of his neighbors, most of whom are poor, undereducated, and African-American. He's the last of a long line of flamboyant San Francisco legal legends whose ranks included Joseph Alioto, Melvin Belli, Jake Ehrlich, and Nate Cohn. Known as a street-smart hustler with a glib manner and a photographic memory, Nate "the Great" finished first in his class at Hastings Law School, married the daughter of a superior court judge, then went to work at the public defender's office, where he developed a reputation for courtroom histrionics and self-promotion. He also won a lot of cases. He earned a spot in the San Francisco Legal Hall of Fame when the DA took a swing at him on the steps of the Hall of Justice after he manipulated the California Rules of Evidence to convince an overmatched judge to dismiss a murder charge against a man who had shot a police officer four times at point-blank range in front of two witnesses. That incident cost the DA his job and made Nate a household name.
An inveterate publicity hound and savvy opportunist, Nate parlayed the notoriety to open his own shop in the graceful Russ Building on Montgomery Street. He used his father-in-law's connections to become the head of the Jewish Community Federation. He became a regular contributor to Herb Caen's legendary gossip column, which ran for years next to the Macy's ad in the middle section of the Chronicle. He was also one of the ringleaders of the fabled Calamari Club, a group of businessmen, politicians, labor leaders, lawyers, and influence peddlers who have been meeting for lunch in the back room of Scoma's at the Wharf every Friday afternoon for a half century.
Over the years, Nate represented many of San Francisco's most notorious mobsters and drug dealers. He was never apologetic in expressing his view that it was his job to do whatever it took to keep them out of jail. He proudly boasted that his most famous client, Danny "the Meat Hook" Cortese—a dapper man-about-town who also happened to be the longtime boss of the San Francisco mob—never spent a day in prison over the course of a criminal career that spanned a half century. Never one to shy away from controversy, Nate defended three thugs who ran the Griffith Housing Projects and were accused of distributing bad heroin to local high school kids—three of whom died. Through a series of creative (some would say questionable) legal maneuvers, Nate persuaded a judge that a cache of drugs found in the apartment of the ringleader of the "Bayview Posse" had been obtained through an illegal search and seizure. This led to the dismissal of the charges—much to the chagrin of the DA and the SFPD. Paradoxically, Nate also garnered numerous community-service awards for setting up San Francisco's first legal aid clinic and donating millions to charity. Depending on who was telling the story, he was either a principled crusader who stood up for the underprivileged and the unpopular, or a highly paid mercenary who was as much a part of the drug and underworld culture as the criminals he represented.
Nate was at the top of his game when he was charged, ten years ago, with killing three people in a back room of the Golden Dragon Restaurant in Chinatown during a summit conference of drug dealers on a rainy night. One of the victims was Nate's own client. The second was a competitor and the third was the competitor's lawyer. Nate was found unconscious in the alley behind the restaurant with a semiautomatic pistol under his arm. Ballistic tests proved the slugs had been fired from that gun. Nate steadfastly claimed the weapon had been planted. He had fallen off a fire escape while leaving the building following the shootings and sustained the injury that cost him the use of his legs. The prosecutors argued he was attempting to flee. Nate insisted he was only trying to dodge the bullets.
He hired an all-star lineup of San Francisco's best-known criminal-defense attorneys to represent him. His legal team was led by his law school classmate and card-playing buddy, Mort "the Sport" Goldberg, a theatrical showman who presided over a carnival-like trial that drew almost as much national media attention as the Laci Peterson case. The prosecutors portrayed Nate as a man who had spent his career helping mobsters and crack dealers stay out of jail—a charge that Nate never denied and Goldberg couldn't refute. Goldberg trotted out a dozen character witnesses to testify that Nate was a doting husband and father who had raised millions for charity and never turned away a potential client just because he couldn't afford to pay. Nate even took the stand in his own defense. Throughout intense questioning that lasted for days, he insisted the shootings were part of a coup by disloyal members of his client's organization. Without a witness to corroborate Nate's claim that he was ambushed by a masked assailant, it took the jury less than three hours to convict him of first-degree murder—much to the delight of the SFPD. The legal system has played its course and Judgment Day is fast approaching.
Unlike most death row inmates, who view attorney visits as an opportunity to vent their frustrations and plead their innocence, Nate's tone is professional. "I want to hire you as special co-counsel," he explains. "I think you can provide some additional perspective on my case."
He needs more than perspective. He's scheduled for a lethal injection a week from Sunday at 12:01 a.m. By law, a death warrant must be carried out on a specified date. California conducts its executions at one minute after midnight at the very beginning of the twenty-four-hour window, to provide the maximum amount of wiggle room if there are any glitches and to reduce the number of protesters who gather at the gates of San Quentin. By my watch, that gives us eight days, twelve hours, and fifty-two minutes to do what his dream defense team couldn't do in ten years. Am I nuts to be in this room?
The third person in the cramped cell clears his throat. Louis Cohen is an eloquent former public defender who looks like Joseph Lieberman. One of California's top appellate specialists, he grew up a few doors from Nate in the Richmond District. He's been fighting the good fight on behalf of his childhood friend for the past decade. "We've filed new habeas petitions with the California Supreme Court, the Federal District Court and the Ninth Circuit," he explains. "If they turn us down, we'll take it up to the U.S. Supreme Court. We've also asked the governor for clemency."
Despite countless well-intentioned attempts by our legislators to speed up the system, the Byzantine appellate process in death-penalty cases remains excruciatingly slow. You start with a mandatory direct appeal to the California Supreme Court––a fine idea with limited practical value. The California Supremes have time to hear just a handful of these cases, and you may only assert claims that arise from the trial record itself. It took them four years to turn down Nate's appeal––which had no chance from the start. It took the Feds three more years to come to the same conclusion.
After you've exhausted your direct appeals, you file a petition for a writ of habeas corpus in state and then in federal court. Cutting through the legalistic mumbo jumbo, it means you claim your client has been imprisoned in violation of his constitutional rights. The good news is it's the first time you can introduce evidence that wasn't presented at trial. The bad news is you have to prove "freestanding innocence," which means the new evidence must be so clearly and convincingly exculpatory that no reasonable jury could have convicted your client in the first place––a standard that's almost impossible to prove. It's customary to file successive habeas petitions right up until the very end, but your chances of prevailing become slimmer as the execution date gets closer. The final judicial recourse is to the U.S. Supreme Court, which rarely soils its hands with death-penalty cases. There's also a possibility that the governor will grant clemency. Given the current political climate in Sacramento, your chances are about the same as winning the California lottery.
If your client manages to live long enough to exhaust all of his appeals, he will be executed in accordance with a tightly scripted procedure. First he'll get an injection of Sodium Pentothal, which causes a loss of consciousness. Next they'll administer a dose of pancuronium bromide, which leads to paralysis of the voluntary muscles. Finally, he'll get a shot of potassium chloride, which induces cardiac arrest and finishes the job. Theoretically, it shouldn't be nearly as dramatic as an execution carried out by hanging, the guillotine, the firing squad, the electric chair, poisonous gas, or the other methods of killing that mankind has developed over the centuries. The process should be concluded in about fifteen minutes, but it frequently takes much longer. Sometimes it takes the technicians several tries before they can get the needles in the right spots to allow the chemicals to flow properly.
"What's the likelihood of a stay?" I ask.
"Slim," Cohen replies.
"About the same."
I was a priest for three years before I went to law school. I still believe in miracles, but the Row is a place for cold-eyed pragmatism. "What do you expect me to do in eight days?"
Nate responds for him. "Prove the police withheld evidence and covered up the identity of the real killer."
"You couldn't do it," I remind him. "You've had ten years to try."
"That's why we need you."
"What makes you think I'll be able to find any new information?"
"Roosevelt Johnson headed the investigation."
The legendary homicide inspector is a meticulous man of unquestioned moral authority who began his career walking the beat with my father a half century ago. They were the first integrated team in the SFPD, and their partnership turned into a lifelong friendship. Pop was thrilled when Roosevelt moved up the ranks and became the first African-American in the homicide division. My dad was at heart a beat cop who turned down several promotions to stay on the street. He died of lung cancer a few months after Nate was convicted.
"I know Inspector Johnson well enough to get a meeting," I say, "but he isn't going to reopen the investigation just because he used to work with my father."
"There was a police conspiracy."
Every convicted murderer thinks he's Oliver Stone. "What about the pistol they found under your arm with a perfect set of your fingerprints?"
"It was planted."
"The cops. It was payback for getting the charges dropped in the Posse case."
"The jury didn't buy it."
"They were wrong. The cops covered up and closed ranks."
"What were you doing at the Golden Dragon in the first place?"
"I was representing a Bayview heroin distributor who was at war with a Chinatown drug ring. I was negotiating a truce."
Nate's trial was the top story on the news for weeks. From what I recall reading in the papers, that part of his story hasn't changed.
"We had everything worked out," he says, "then a man came in and started shooting. I jumped out a window and ran down the fire escape, but I slipped. That's the last thing I remember."
He fell two stories and landed on his back. "Do you have any idea who the shooter was?"
"He was wearing a mask."
"Did you bring a gun into the restaurant?"
"Of course not. Everybody was searched when they entered the building. It was a stolen gun. The serial number had been removed."
"You're still saying somebody else brought in the gun and killed three people?"
"I was lucky they didn't kill me too."
And all I have to do is prove it in the next eight days. "You didn't pick my name out of the Yellow Pages," I say. "There are other lawyers who have contacts with Inspector Johnson and the SFPD."
"We want you and we're prepared to make it worth your while." Nate nods to Cohen, who reaches into the breast pocket of his jacket, pulls out a white envelope, and places it on the table. "That's a fifty-thousand-dollar retainer," Nate says. "It should cover your fees and costs for the next eight days."
It should cover us for the next six months. There might be something left over for Christmas presents. I can feel my eyes opening wide, but I don't take the envelope. Our firm has only two lawyers. We spend most of our time representing small-time drug dealers and petty criminals who frequently have to choose between paying us or making bail. Most opt for the latter. It's a big day when some poor soul charged with driving under the influence gives us a fifteen-hundred-dollar retainer. "It might make more sense to spend your money on a private investigator," I say.
"We'd also like to hire your brother."
He's done his homework. My younger brother, Pete, was a beat cop at Mission Station before he and some of his colleagues broke up a street fight in the plaza adjacent to the Sixteenth Street BART station with a little too much enthusiasm. When one of the participants filed the inevitable police-brutality claim, the city caved. Pete and two of his buddies were summarily dismissed. He's been justifiably bitter about it ever since. Now he works as a PI.
"His rate is a thousand dollars a day plus expenses," I say. It's a slight exaggeration.
"We'll pay him two thousand."
He's serious about hiring us or he's desperate—or both. Pete recently became a father for the first time. This may be an opportunity to make amends for the times I've strong-armed him into helping me for free. "I'll call him as soon as we're finished," I say, "but I still need to talk to my partner."
"What's there to discuss?"
How much time do you have? Rosita Fernandez and I have been working together for almost two decades, first in the PD's office, then for the last seven years in private practice. Rosie is the managing partner of Fernandez and Daley. I defer all financial decisions to her. It's an important reason why our law partnership has lasted longer than our marriage, which began after a highly enthusiastic romance while we were at the PD's office, and was called a few years later on account of irreconcilable living habits. Our daughter, Grace, just turned fourteen. Our son, Tommy, is two. Tommy's arrival was a pleasant and unplanned surprise long after Rosie and I had split up. Old habits––we can't live with each other, yet we can't seem to get enough of each other. We wouldn't have it any other way.
"We never take on new matters without discussing them first," I tell him.
Grace and Tommy live with Rosie in a rented bungalow a couple of miles from here. I have my own apartment three blocks from them. Life with a teenager and a toddler presents logistical and financial challenges. Recently we decided to cut back our workload to give parenthood more focus.
The wily old trial lawyer flashes a confident smile. "We're willing to bet fifty grand that you'll give it your best shot."
"I still have to talk to Rosie."
He shifts to flattery. "We're cut from the same cloth, Mike. We became lawyers to help people. You have a reputation as somebody who is more interested in finding the truth and doing what's right than making a bundle of dough."
My bank account attests to the fact that he's right. Rosie and I also agreed to avoid capital cases until Tommy is out of diapers. A fifty-thousand-dollar retainer causes me, at least, to revisit that policy. Rosie may be somewhat more flexible too. She recently persuaded her landlord to remodel her fifties-era kitchen, which will undoubtedly lead to a commensurate increase in her rent. There is also the reality of Grace heading to college in four years.
Nate is still talking. "We both cut our teeth at the PD's office. We've represented unpopular clients. We've handled more than our share of pro bono matters. That makes us kindred spirits––even colleagues."
Except I've never been convicted of murder.
His tone turns somber. "I believe everybody is entitled to die with self-respect. Being strapped to a gurney and injected with poison for a crime I didn't commit isn't the way I want my wife, children, and grandchildren to remember me. That's not the legacy I had in mind. Besides, you have a personal interest in the case."
What? "How's that?"
"Your father was part of the police cover-up."