Single Jeopardy

by Gene Grossman

  The most surprising event of the afternoon isn’t the arrest, because I knew that sooner or later my ex-wife would set me up for something or other; it’s the fact that the jailer was expecting me and that I’ve already been bailed out. After the friendly jailer finishes up his paperwork, I’m allowed to sit on the ‘visitor’s’ bench near the station’s front door. When my sponsor arrives she doesn’t come into the building. Instead, she just stands there holding the door open. I know this is a request for me to get up off my rear end and follow her and the Saint Bernard outside and to alleged freedom.

  I’ve never ridden in a little electric car with a twelve-year-old driving, but for some strange reason I feel safe. The dog doesn’t give up his usual front seat, so I’m now riding in the back, which is another invasion of the cat’s private space and earns me a constant glare from those green little eyes.

  As usual, there is no conversation on the way back to the Marina. When we board the boat I think it’s time to break the silence between us. I now feel certain that she speaks English, and hasn’t said anything to me in the past months because she just didn’t have anything she wanted to tell me. I take a chance: “Suzi, I don’t know how you did it, but thank you. I hope you realize that this is all a big mistake. Honest, I didn’t do what they’re accusing me of.” To my great surprise, as she’s about to enter her stateroom, she finally decides to honor me with a statement:

  “I know you didn’t do it. The firm’s funds were used to bail out both you and the doctor. His daughter was sent to pick him up because he was arrested in town and taken to Parker Center’s jail, downtown. We’re now preparing documentation for your false arrest suit.” But that isn’t all. Her final declaration is “dinner will be ready a half hour late tonight. I was busy with other things this afternoon.”

  Will wonders ever cease? She finally talked to me. I feel honored and at the same time scolded for taking her away from her busy afternoon schedule to bail me out of jail.

  Less than an hour has passed and Rita is here with her father. He’s apologetic. “Peter, I’m sorry you had to go through all this: it’s all part of being involved with an acquitted murderer.” His daughter slaps him on the arm for describing himself that way

  “Stop it, dad, you’re not an acquitted murderer, you’re an innocent man who was railroaded.” I don’t like to see them bicker like that, so I break into the conversation and try to change the subject away from his past accusations of guilt.

  “Oh, don’t worry about it… I look forward to every meeting with my ex-wife. Let me bring you up to date and then we can plan some strategy.” I tell them about the letter that was sent to the insurance company and the fact that all we offered to do was identify a burial site and provide DNA samples for positive identification. Rita questions my letter.

  “Don’t you think it would have been better to tell them the whole story? That mother has been alive all these years and just died last week? If you would have done that, they probably wouldn’t have arrested you and daddy.” I disagree with her.

  “There’s been no crime committed. This is nothing more than the filing of a normal claim to collect on a deceased spouse’s life insurance policy. If there had been no past accusation of murder, no trial and no acquittal, and this was just a case of a husband putting in a claim after his insured wife’s death, no more than I offered would be asked for or expected. There’s no reason for us to jump through imagined hoops.

  “Furthermore, the actions of the insurance company probably led to our arrests today. My office staff seems to feel that their pre-mature suspicions were conveyed to the district attorney’s office, and they also acted before they had their facts lined up. All of this will lead to a bigger damage award when we rub their noses in the truth about your mother’s life and death. I’m sorry to make it look like anything here is being done for profit or to exploit the loss of your mother, but these people have put your family through hell over the years, and now it’s time for some payback.”

  Rita has a question that is shared by many of the news commentators.

  “Isn’t this a case of double jeopardy? I mean, they’re not supposed to try a person for the same crime twice are they?” That’s a good question she has there and some clarification is called for.

  “They’re not, because this is a completely different crime with a different set of facts. In the first trial he was charged with murder, and at that point in time he hadn’t made any attempt to collect on her life insurance policy because, as we now know, she was still alive. The District attorney’s office probably made sure the insurance company red tagged that policy for all these years, just waiting for someone to put a claim in, and someone finally did. Unfortunately, it was yours truly.”

  Doc has obviously been doing some reading on the matter. “Aren’t they trying to make some changes to that double jeopardy law?”

  “Yes, but not here. The Law Commission of England and Wales recommended that the law of double jeopardy be relaxed in circumstances where there’s compelling new evidence, but it’ll never get passed there and I don’t think it will here, either.”

  “Why not, Peter? The public is against criminals getting away with anything.”

  “You’re right, doc, but who would you have making the decision of whether or not the new evidence is ‘compelling?’ You can’t bring a person back in for another trial and expect it to be fair when a jury already knows that the only reason the defendant’s being tried over again is because the judge has seen the new evidence and now knows the defendant is guilty. That completely blows the whole presumption of innocence, which is fragile enough already. The concept of single jeopardy has been on the books since the 12th century, and it’s withstood all challenges since then, so I think it’ll hold up for a while longer.

  “I still say we just go ahead with our plans as if the arrest never happened. I’ll take care of the criminal part, and this present incident should be treated as nothing more than a normal claim to collect on a life insurance policy.”

  No matter how much you try to put a client at ease it rarely works. I can tell by doc’s questions that he constantly lives in fear of another arrest and trial..

  “Do you think they’ll go after me for anything else?”

  “I’m afraid so. You took the stand in your murder trial and denied committing that crime. This time around, even though it’s only a conspiracy case and they can’t get you for the murder, they’ll probably try to nail you for perjury, because of your prior in-court statements under oath. They’ll want you to have the distinction of being the only person convicted of that crime in this state since Mark Furhman, one of the detectives on the O.J. Simpson case, back in the 1990’s. That, coupled you’re your alleged partition in a conspiracy to defraud the insurance company, could lead to some serious penitentiary time if they can convince a judge to make the sentences run consecutively.”

  The State of California has two ways to bring an accused felon to trial. One is by preliminary hearing in a division of the Municipal Court, at which time the prosecution doesn’t have to prove the defendant’s guilt, it only has to show that a crime has been committed and that there is probable cause to connect the accused to the crime. If the prosecution is successful at the ‘prelim,’ which they are ninety-nine percent of the time, the defendant then is bound over for arraignment and trial in the Superior Court.

  The other way that the authorities can go is usually reserved for high-profile cases and investigations into alleged misdoings of public officials, is indictment by a Grand Jury. That’s where the district attorney calls witnesses and presents their basic case to a select group of about twenty-three citizens nominated by Superior Court judges. This blue-ribbon panel hears the evidence in secret and then usually rubber-stamps whatever the district attorney requests by returning an indictment. Once an indictment is filed, the prosecutor can skip the preliminary hearing process completely. After indictment, the defendant goes directly to arraignment and trial in
the Superior Court.

  This is a complete reversal of the reason why grand juries were created. Hundreds of years ago, they were designed to be a protection for the public, by having disinterested people decide whether a person should be brought to trial on baseless, politically motivated serious criminal charges. But now, all a grand jury does is save the district attorney the trouble of putting on a preliminary hearing and giving the defense a chance to see how weak their case is. This way, with a Superior Court felony trial hanging over his or her head, there’s a better chance of coercing the accused into pleading guilty to a lesser crime.

  Not having heard anything from the district attorney’s office, I’m pretty sure they’re going for a grand jury indictment. Myra probably would never forgive herself for giving up a chance to prance in front of those bluenoses. My suspicions are confirmed while watching the local evening news. A good-looking airhead reading from the teleprompter drones on.

  “Deputy District attorney Myra Scot announced today that the Los Angeles County Grand Jury has returned indictments against prominent attorney Peter Sharp and doctor Sherman Gault for their alleged conspiracy to commit fraud against the Uniman Insurance Company. They filed a life insurance claim for the death of doctor Gault’s wife… the same wife that doctor Gault was accused of murdering almost ten years ago. This reporter has also learned that the case was brought to the prosecution’s attention again when attorney Sharp offered to show where the deceased was buried. Not too bright a move on his part. We also want you to know the interesting fact that that attorney Sharp and district attorney Scot were married at one time.”

  This isn’t too bad. I’m described as being ‘prominent,’ but ‘not too bright.’ I’ve been described worse than that many times. Myra got the worst of it though, because her bad taste in men has now been exposed. I’m sure the public will feel sorry for her. The poor girl is an honest, hard-working public servant and deserves more than to have been married to a crooked lawyer. Hell, I’m even starting to feel a little sorry for her, but she’s bringing it all on herself.

  Preparing for this trial should be easy because all we have to do is bring in one person to testify on our behalf: the convalescent home’s attending nurse, who will also establish a chain of custody for the DNA sample. The district attorney will no doubt have done most of our work for us by the time of trial by paying the thousands of dollars required for DNA tests to prove that the person buried was in fact the doctor’s wife.

  After the criminal part is done we’ll go on to the civil part. The district attorney’s office will have already been humiliated, so it should be a slam dunk to get a settlement out of the insurance company on two bases: first, they caused our arrests. And if that isn’t enough, they should be liable for acting in bad faith against their own insured’s beneficiaries. This all seems so easy that it bothers me. Nothing this easy has ever dropped into my lap before. Although being arrested was slightly on the inconvenient side, my guardian angel had me bailed out before I saw the inside of a cell, so all in all, the whole experience may prove to have been worth it.

  Both the doc and I agree that until this mess is cleared up, Rita and I should cool it. Once a potentially high-profile situation like this develops with elements including a rich doctor, a ‘prominent’ lawyer, a beautiful daughter, millions of dollars in the alleged victim’s insurance, yachts, alleged fraud conspiracy and murder, there’s always someone with a telephoto lens not too far away just waiting for the shot that a tabloid will pay big bucks for and the district attorney will blow up into another legal issue or motive for conspiracy.

  Doc has some good news. Judy Marino, his wife’s attending nurse, will be taking the tourist boat over from Catalina Island and bringing the death certificate and DNA sample with her. Doc will be putting her up in the Foghorn Motel around the corner. This is fine; now I’ll have a chance to interview her and prepare her for what will happen in the courtroom when the district attorney puts her an extensive and through cross examination.

  --------------

  Nurse Judy should make an excellent witness. With the doc and Rita, we’ve all spent several pleasant evenings eating dinner together, courtesy of Suzi. I don’t know where the food comes from, but it’s always delicious. And then that old nagging feeling hits me. There’s something about this nurse: the way she looks, the way she walks, the way she eats. There’s something, but I just can’t put my finger on it. This time the stakes are pretty high. If I can’t figure out my strange feelings about her before the trial, I might wind up in deep doo-doo, so I’ve got to ask some questions. “Miss Marino, have we ever met before?”

  “I don’t think so Mr. Sharp, and I don’t think I’d forget meeting a handsome man like you.” Great. She’s got a good line of bull, too.

  Going to trial is always a crapshoot. No matter how slam-dunk you think your case is, there’s always something the other side will come up with to knock your socks off, and if there’s anything I hate, it’s a surprise during trial. As good as this case looks for us to get acquitted, I’d much rather have it dismissed before we get to the Superior Court arraignment.

  Forget about avoiding double jeopardy. I don’t even want single jeopardy to attach. There’s only one way to do this, so I pick up the phone and call Myra’s office. When I’m put through to her and she hears my voice, she’s reluctant to talk.

  “Peter, I’m the Deputy assigned to this case and you’re one of the defendants, so I can’t talk to you about anything... not without your lawyer being present.”

  “Yes, I know who you are, and who I am, but this isn’t going to be a conversation about the case.”

  “Then why are you calling? I hope it’s not for any misguided social reason.”

  “Don’t flatter yourself. The purpose of this call is for you to set up a meeting tomorrow with your boss. I’m going to come in and help you all avoid making fools out of yourselves.”

  “You mean you’re coming in to make a full confession?”

  “Yeah, right. I’m coming in to make a statement to show you all what a wrong track you’re on. Maybe I can show you how to avoid a disaster. And while you’re at it, you might as well have a court reporter there too… and don’t worry, I’ll waive my right to have counsel present.”

  *****

  Chapter 15

  District Attorney Bill Miller is a few minutes late to the meeting. We all wait for him in their conference room on the nineteenth floor of the Criminal Courts Building in downtown Los Angeles. Aside from me, there’s Myra, her assistant, the court reporter I requested, Miller’s assistant, and two investigators - the ones who arrested me. They also have a video camera set up to get my statement on tape, so that no one (meaning me, probably) can get away with distorting the facts in any subsequent press conference or court hearing.

  Miller comes in and everyone around the table exchanges polite, but insincere greetings. All I get is a nod of recognition. He signals the camera operator and stenographer that the show is about to begin and then he gives me the floor. I’m surprised he doesn’t put a beret on his head and use a megaphone to shout “Action!” Instead, he tries to maintain some small amount of professionalism.

  “Mister Sharp, before you make any statement we want to state for the record that you are presently under indictment for the felony of conspiracy to commit fraud against an insurance company, and that anything you say here can and will be used against you in further proceedings.” I interrupt him.

  “Mister Miller, I’m a licensed attorney in this state and I know my Miranda rights to remain silent and that an attorney can be appointed for me, and for the record, I waive them all here and now.” He looks around the room. The general consensus is that a proper waiver has been given, so he nods for me to continue. I look at the camera and begin. “My name is Peter Sharp, attorney at law, and on this date, having willingly waived my Miranda rights to have legal counsel, I make this statement voluntarily. Concerning the indictments brought against doctor She
rman Gault and myself, I would like to explain why the indictment should be immediately quashed.

  “First of all, doctor Gault never murdered his wife. She’s been alive all these years, suffering from Alzheimer’s in a private convalescent home on Catalina Island. Out of respect for her desire to live out the few remaining years of her life quietly, he never revealed this fact and suffered through an unjust criminal prosecution to protect her privacy. She died last week and was buried there, on the island.” I pause for a second to see the reactions in the room. They range from surprise to disbelief, but everyone there keeps their cool, trying to look like whatever I’m saying doesn’t mean much to them. I go on.

  “We are prepared to document this fact with testimony from the attending nurse, who has brought DNA samples from the deceased. The sample can be compared with previous samples of the doctor’s wife, as well as one from her daughter. The nurse is now in town and has the DNA sample with her. We will make her available to you and your lab techs.

  “Here is a document containing her affidavit and present location. Once you’ve had an opportunity to question our witness and do your own DNA tests, you will see that I’m telling the truth.

  “Now, you have a decision to make. Do you want to take this to trial, and in front of a packed courtroom and media circus have me prove up what I’ve just said, making complete idiots out of all of you, or would you like to do what you should have done already… complete your investigation, verify the truth of everything I’ve just told you today, and quietly dismiss the charges. I have no doubt you’ll be able to concoct some phony reason that still makes you look good, and don’t worry about us. Unlike you, all we care about is truth and justice. We’re not running for office or trying to give our miserable careers a boost, so we’ll keep our mouths shut and let you save face any way you want to.” You can hear a pin if it drops in this room. The silence is deafening.