Single Jeopardy

by Gene Grossman

  I don’t think we’ll be finding anything remarkable while we’re here, but I’m counting on our office to analyze the info we collect and spot whatever looks out of the ordinary or important to the case.

  We finish up at the convalescent home, tip the two attendants generously for helping with the exhumation, thank Nurse Judy and depart the way we came, via VW van. All the way back to the airport and during the half-hour flight back to Santa Monica Airport, Myra says nothing. I can tell that something is going through her mind, there usually is, but this time I’m locked out of the loop. Just like during our marriage.

  I’m glad it’s a quiet trip, because I need some thinking time before reporting back to doc and Rita about how we dug up what was supposed to have been their mother’s grave.

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  It’ll be several weeks before DNA results from the island come back, so in the meantime I start looking into what can be done on Maggie’s case. Criminal matters move a lot faster than civil ones do and I want to be able to nail Palmer for some of his money before it’s all spent on a high priced criminal defense team. I call both Maggie and Stuart in for a briefing on Sexual Harassment law, and some possible strategy talk about her case.

  When they arrive at the boat I think it best to give them a brief overview of the subject, so that we might all be on the same page while planning strategy. I hand Stuart a dollar bill. He’s now considered on my staff as an investigator, so that in accordance with our state’s evidence code, he’s a person ‘present to further the interest of the client,’ and thereby doesn’t endanger Maggie’s right to assert the attorney-client privilege, should that be necessary at any time in the future.

  In many previous cases the courts have held that the presence of a third person who was neither a party to the case nor associated with counsel has broken the expectation a client should have for enforcement of that privilege, but one dollar took care of that problem today. Suzi reminded me to get a receipt form Stuart.

  It’s now time to start my little lecture, and I can see why so many lawyers like to teach at local law schools for very little money: it’s an ego trip.

  “First of all, you should know that the federal law recognizes two different sets of legal grounds for claiming sexual harassment. The first is quid pro quo. Under that one, the plaintiff, that’s you, Maggie, gets a demand from a person in authority, like a boss or supervisor, that you provide a sexual favor as condition for getting a job benefit, or keeping your job. So if someone where you worked tried to take advantage of you, that’s one ground we might have to work with.

  “The second category of the sexual harassment cases is called hostile work environment. That’s when some co-worker or supervisor of yours engages in any unwelcome and inappropriate sexually based behavior, and his hostile behavior creates an intimidating workplace environment that’s so bad that it makes it difficult for you to do your job, and in some cases to even come to work at all.

  “Does it have to be a federal case?”

  “No Maggie, it doesn’t. The plaintiff usually has a choice of whether to file in the federal court or locally in a state court.” I’m glad to see her asking some questions, because it assures me that she’s paying attention and getting involved.

  “What’s the difference?”

  “Federal law sets minimum guidelines. Each state has the right to enact its own laws covering these situations, and many of the states go farther than the federal law does. This means that here in California we’re much better off using the state court.” She looks relieved. There’s a remark people often make when they hear someone else trying to blow a situation out of proportion: “hey, don’t make a federal case out of it.” This has given proceedings in the federal courts a stigma of complication that they don’t deserve. The Federal Rules of Procedure are so unfamiliar to the average attorneys that they try to avoid taking cases to the federal courts whenever possible.

  “In most cases, the offender won’t go so far as to create the quid pro quo situation. They won’t actually threaten you with being fired or denied a promotion you might deserve, they’ll just keep being abusive to you at work, often in a sexual way. Some examples of past cases included calling you offensive nicknames, writing obscenities on your work space or in your locker, directing degrading comments at you, propositioning you, touching you inappropriately anywhere on your body, covering the walls near your workspace with pornographic pictures and making rude references to it, and doing other cruel, stupid juvenile things that make it a horrible place for you to work.

  “So first, we have to establish what conditions you were experiencing or subjected to. Second, we need some way to make your claim believable. That’s done in a number of ways, like showing that you reported the behavior to your boss or told other people about it, finding others who have experienced the same things from the same people, finding someone who may have actually witnessed the bad behavior, stuff like that.

  “Then we have to be able to put the blame on the company, by showing that they either knew or should have known that the bad behavior was taking place and did nothing to stop it. Once that’s done, we go on to proving up fair damages, and the court looks at four main things to help out there: frequency of the events, severity of the conduct, whether or not it was physically threatening or humiliating, or mere offensive utterances, and lastly, if it unreasonably interfered with you doing your job properly.

  “Got all that? Good. Now, keeping all those things in mind, let’s talk about what happened to you, and maybe we can find a case somewhere in your facts.” I see that Stuart is feverishly taking notes. When I finish my mini-lecture, I put his mind at ease by handing him the eleven pages I used as a reference. They were copied off of some university’s website and they nicely sum up the subject. I know that Stuart wants to sound as lawyer-like as possible in the future. No doubt I’m inadvertently creating another Ricky Hansel. I’m beginning to feel like the Doctor Frankenstein of law clerks.

  Maggie tells us that most of her problems were with just one guy, a fellow named Vito Renzi, the manager of Palmer’s car parking valet service. He didn’t bother her much in the daytime, because he only worked nights, but every evening she was waitressing at the restaurant, he would come in with customers’ car keys and keep hitting on her to go out with him. She found him really offensive in the way he looked, talked, acted and smelled, and I sympathize with her, but so far I just don’t see an actionable case here. One very prominent female local attorney would no doubt accuse me of being a sexist for not jumping on the bandwagon and starting some protest in front of the defendant’s businesses, but I’d rather try to keep a cool head and let the facts do my marching for me.

  Before going on to see if we can find anything to hang our hat on for her getting fired, I ask her how long the valet was bugging her. She says it started about six months ago and kept up right until that Tuesday. “What Tuesday was that, Maggie?”

  “You know, the day that poor Chinese man got shot outside.”

  “You mean you saw the valet that afternoon? I thought he only worked nights.”

  “Yeah, but I was next door working on the books at the seafood place and he came running in the back door. I remember how strange it was, because when he saw me, he didn’t even stop to ask me out or anything like that, so I knew that something else kinda heavy must’ve been on his mind.”

  I tell them I’ll consider the facts and do some research, but the most amazing thing she told me was about the valet running in the back door that afternoon. If he wasn’t working, what was he doing there that day? Maybe killing someone next door? This presents a new problem. Maggie told me about the guy running into the restaurant during our private meeting. She was telling it to me as her lawyer, so how can I then violate her expectation of privacy by reporting what I’d heard to any outside third person?

  The solution appears out of nowhere. Suzi comes in to the saloon to say hello to Stuart. I take the opportunity to work it to our a
dvantage. “Maggie, I wonder if you’d do me a favor. This has nothing to do with your case, but I wonder if you’d mind telling Suzi what you told me about that guy running into the restaurant the day of the murder. She’s been following that case quite closely and would appreciate hearing any new bit of info that might concern it.” Maggie complies by telling Suzi about the incident. I can’t help but feel that the kid already knew. She hears everything that goes on in the boat, but at least this ruse succeeds in getting that little bit of information out of the privileged category and into the public domain.

  The office has now started to work on a complaint to file on Maggie’s behalf and a set of written interrogatories to serve on Palmer’s restaurant company. The interrogs ask all the standard questions, like their policy for processing harassment complaints, names of employees who left their jobs in the past year and a lot other things

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  Chapter 18

  The DNA results haven’t come back on the island tests yet, but we did find out something about that convalescent home there: county records show title to the ten acres the home was built on is held by RGRET. Acronyms like that usually mean that it’s a real estate trust. Our resident computer guru finally broke through the veils of secrecy and found out that RGRET is the Rita Gault Real Estate Trust. Hmmmn.

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  Bill Miller is seated at his desk going over budgets for the department’s quarterly expenses when one of his flunkies comes into the office. “Chief, I’ve got some interesting news for you.” Miller looks up, disturbed by the interruption. The flunky continues. “I got an invoice from the lab on the DNA tests we sent in for Gault’s wife.”

  “So, what’s interesting about that? It’s old news. We’ve already used that.”

  “Yes chief, but this was from another test of the exact same DNA, sent in after our test was done.”

  “I’m still not interested. Sharp was probably re-testing the sample to firm up his civil case against the insurance company. If I remember correctly, we refused to release the original sample back to him, so he had to go get another one.”

  “That may be true, sir, and this test showed identical results as the one that we ran.”

  “Look young man, I’m a little busy right now. Is there some point you’d eventually like to get to?”

  “Yes sir, the sample that the lab ran last week for attorney Sharp’s office wasn’t dried. It was done with fresh blood.” Miller looks at him with a blank stare on his face. The stare lasts so long that the assistant starts to get uncomfortable. Miller finally stands up and gives him an order.

  “Tell my secretary to call the grand jury foreman and let him know we’re back in business. They finally made a mistake, and I’m going to shove it down their throats. And when it’s over, Myra Scot Sharp and her conniving husband will be lucky if they can get a client who wants a simple name change. And if they do, hopefully it’ll be a cellmate.”

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  The local evening news features our famous district attorney Bill Miller making an announcement: “This office is pleased to announce the arrest of doctor Sherman Gault and his daughter Rita, as the result of indictments returned against both of them for attempted insurance fraud and investigation of murder. They submitted a false death certificate to their insurance company in a claim to collect life insurance on Robin Gault, the Doctor’s wife, who is still alive. Furthermore, they may be involved in the murder of an innocent victim who we believe is buried in a grave that they wanted us to believe is Robin Gault’s.”

  This was a turn of events that Myra wasn’t planning on, and it was only by some stroke of fate that the DNA lab sent an invoice to the District Attorney’s office. Nevertheless, she’s involved now, and I convince her that we’ve got to see it through.

  We draw straws and Myra gets stuck handling the arraignments. Bail is set at fifty thousand dollars each and with the help of Fradkin Bail Bonds, Doc and Rita are back on their boat later that same afternoon.

  Rita gets notification that she is being suspended with pay by the airline, giving Stuart another case for him to ‘look into.’ The only good thing that comes from this unfortunate new experience is that the doc and Rita get a chance to see Myra go up against her former office, so they feel a little better about her working on the case. Myra doesn’t feel too good about representing a guy she thinks is a murderer, but she’s got the big picture in mind, hoping that he gets what he deserves in the end.

  Doc has done some reading on the subject. “Peter, this was the second grand jury they convened for the exact same set of facts, returning an indictment for the same crime. Isn’t that double jeopardy?”

  “That’s a really insightful question doc, but I’m sorry to tell you that it’s not.”

  “Why not?”

  “You read the papers, Doc. Even if you’re not a political junkie you might remember what happened to a guy named Bill Clinton. In his case, special counsel Kenneth Starr convened a grand jury and tried to nail Clinton for lying under oath about his sexual relationship with Monica Lewinsky, and he was impeached by the House of Representatives. But, he was acquitted by the Senate, so he was allowed to serve out the rest of his term in office.”

  “I remember that, but what does it have to do with me?”

  “Nothing at that point doc, but more than two years later, Starr’s successor, special counsel Robert Ray convened another grand jury to determine whether or not Clinton lied about Lewinsky in his testimony in the Paula Jones case, and all the constitutional experts came up with the same conclusion, which applies to your case here: a grand jury doesn’t convict or acquit people, it’s the trial jury that handles that part of a criminal prosecution. The grand jury is looked upon as merely an investigative body, so that jeopardy doesn’t attach when a grand jury is convened or an indictment is issued. That only happens when the case goes to trial and a jury is impaneled or the first witness is sworn in. So they can convene as many grand juries as they want and get as many indictments as they want, without it being barred by your Fifth Amendment protection from double jeopardy, because the first jeopardy never attaches at that stage of the investigation or proceeding.”

  They nod in understanding, but still don’t know what basis of fact the grand jury could have been working with. “Peter, the DNA tests brought over from the island show that the body in the grave is my wife, so what the hell is the prosecution basing its case on?” I can’t answer his question at this time, because I don’t really know. The only way they could be going ahead with this much confidence is if they know about the second DNA test that Suzi had done on phony nurse Judy. A boat conference is in order.

  Without an appointment, I knock on the forward stateroom door. The kid sticks her head out with an inquiring look. “Suzi, I hate to bother you, but did you happen to leak any information to your police friends about that DNA test on nurse Judy?” She nods in the negative. “Did you pay the bill that the lab sent us?” Another ‘no’ nod. Conference over. I call the lab to speak to their bookkeeping department, and found out what happened. Suzi told a little white lie to the lab when she sent in that sample, leading them to believe she was working with the district attorney’s office. When they didn’t receive payment for their invoice from Suzi, they sent a copy of the invoice to Miller’s office. I’ll bet Miller went ballistic with joy when he thought he finally had nailed us. Unfortunately, he was probably right.

  Myra calls. “Peter, what the hell happened? How did Miller beat us to it? Did you or your office leak any information?” I tell her about the invoice and the telephone call to the lab.

  “Listen, all this means is that if the doc is guilty, Miller beat you to the punch.”

  “Yeah, that’s easy for you to say, but I’ve already appeared as his attorney of record. I’m going to have to try this losing case against Miller, and I’ll be ruined again.”

  “Will you please relax? The DNA tests aren’t back from our island trip yet. Maybe they’ll reveal
something we can use.” She isn’t impressed with my optimism. A dog-mail tells me that the DNA tests conducted on Catalina Island just came back, and they contain the truth about the entire matter. Suzi’s message tells me that she now knows who the real Robin Gault is, who is guilty or innocent of all the crimes, and who is buried in that grave on Catalina Island.

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  Chapter 19

  The newspaper and television vultures are already congregating at the locked gate that leads down to our dock. From there down is private property and we have a guard posted to inform them that no trespassing will be allowed. I decide to use their presence to our advantage. Jack Bibberman and I walk up to the gate, go through it and try to reach my Hummer. The press mobs us and I stop them cold with “Ladies and Gentlemen, I’m now on my way to the district attorney’s office, and we intend to be driving slow enough for you all to have a chance to call your offices and prepare for my press conference. I’ll be making a statement on the steps outside District Attorney Bill Miller’s office building.” We have already made a call to his office and know that he will be in when I arrive.”

  The trip to his office looks like a celebrity’s funeral procession My yellow Hummer is in the lead, with news vans following and a news helicopter overhead, no doubt broadcasting a block-by-block description of the trip. Riding in the back seat of the Hummer, I feel like O.J. Simpson during his famous slow-speed freeway chase.

  When we reach the civic center office building, Jack drops me off and I strike a pose on the outdoor steps. The news people crowd around like sharks in a feeding frenzy, microphones and cameras ready. I hold up my new cell phone with the ‘speaker’ function on as I dial Miller’s office. “I’m now dialing district attorney Bill Miller’s office to let him know that I have right here in my briefcase, positive proof that the Gaults are not guilty of any crime.” The phone rings and microphones are held up close to it. With the speakerphone function turned on, everyone outside with us can hear the conversation.