Misjudged

by James Chandler

  “What is it?” Marci asked, rolling over to look at her husband.

  “Jon Howard killed himself.”

  “Oh my God! What happened? Why?”

  “Long story,” Daniels said. “Long, sad, shitty story. Might as well put on a pot of coffee.”

  “At this hour?”

  “Yes. I’m not gonna be getting any more sleep tonight, honey.”

  56

  “Judge, we need to talk—before we go on the record!” Sam slammed his briefcase on Daniels’s conference table.

  A red-eyed Daniels, Sam, Tommy, court security, Ann, and the court reporter were in Daniels’s chambers. Just as he’d told both Punch and Howard, Daniels had convened a Saturday morning hearing, and he knew now that Punch had contacted Sam. An injustice had been done to his client, and Sam would brook no interference in getting it fixed. So, Daniels knew that while he had docketed the hearing, Sam was going to have his say.

  “Detective Polson has told you about the additional evidence?” Daniels asked.

  “Yes. He told me about the evidence, and about the conduct of the investigation! About the State’s refusal to turn over exculpatory evidence—stuff I’m told you were aware of!”

  “Who said that?” Daniels looked at Ann.

  “That isn’t important,” Sam said.

  “The hell it isn’t!”

  “What’s important is that the State suppressed evidence that it was bound by law to turn over. What’s important is that you knew about it and have disgraced your office—”

  “Now you just hold on there!” Daniels said, pounding on the conference table with his fist. “You can’t come in here and accuse me of violating my oath of office—”

  “Oh, Judge, I’m accusing you of much more than that.”

  Daniels sat back in his chair. “What in the hell are you talking about?”

  “I’m accusing you of covering for Judge Howard,” Sam said.

  “The judge didn’t know, Sam,” Ann interjected quietly. “At least, no one in my office spoke to him.”

  Sam looked at Ann and then the judge. “I’m told differently, and I’ve got witnesses who will testify the two of you had a number of ex parte communications before and during the trial.”

  “You’ve got people telling you Ann came to my chambers on a number of occasions—that’s what you’ve got,” Daniels said. “I will not stand for these unfounded accusations! Now, I can understand how you feel—”

  “The hell you can!” Sam stood and loomed over both Ann and Daniels, nearly out of control.

  “Sit down!” Daniels barked, and Sam reluctantly complied. “I just found out some of what’s been going on recently. Now, I called you and Ann in for a reason.”

  “Judge—”

  “Mr. Johnstone, be quiet!” Daniels said. “In five minutes, we’re going to go into that courtroom, whereupon you are going to move for a new trial based on newly discovered information. You will outline that information—fingerprints, semen, and whatever else you know—in general terms. I’m asking you not to use Judge Howard’s name for the sake of Margaret. Don’t know if you heard, but it sounds like he killed himself last night.”

  “Oh my God!” Ann exclaimed.

  “Indeed.” Daniels trained his reddened eyes on Ann. “Ann is not going to object to a new trial—are you, Ann?”

  Ann stared at her swollen feet—the trial had taken its toll. “No, Judge,” she said.

  “Then I’m going to grant the motion, Mr. Johnstone, whereupon you are going to ask me to reconsider bond and ask that your client be released on his own recognizance with terms sufficient to ensure he appears for all further proceedings, whereupon Ann will tell me she has no objection—won’t you, Ann?”

  “Yes, Judge.”

  Five minutes later the parties were assembled in court, and five minutes after that, Daniels set aside the jury verdict, granted Sam’s motion for a new trial, and ordered Tommy released on his own recognizance. Tommy seemed not to realize what was happening until court security came over and unshackled his hands.

  “Give me a minute, will you?” Sam asked, and the two large men stepped back. When Tommy was ready, they’d transport him to the jail for out-processing and he’d be a free man. The few spectators who had assembled for the short-notice, undocketed Saturday morning hearing were abuzz as Sam turned to shake Tommy’s hand. “Tommy, you’ll have to go on over to the jail for out-processing and to claim your stuff.”

  “We got some guys standing by, so you ought to be released in an hour or so,” a guard said. “Counsel, do you need another minute?”

  Sam took one look at Tommy’s stunned face and smiled. “No, get him out of here. Tommy, come see me Monday.”

  “Uh, where?”

  “My office.”

  “Where’s that?” Tommy asked, and Sam realized he and Tommy had only seen each other in jail and the courthouse. He’d never even seen Tommy in civilian clothes, except for the cheap suit he’d purchased for the trial. Sam gave him directions and patted him on the back. “Get going—and Tommy?”

  “Yeah?”

  “No booze.”

  “Ahh, Sam!”

  “Seriously. Now is not the time.”

  Several hours later, Sam was listening to the buzz in his head. He knew he shouldn’t—things were happening way too quickly—but he ordered another scotch. He was celebrating Punch’s phone call: the prints matched.

  “That’s three,” Veronica said gently. “Be careful.”

  “You counting?”

  “I’m sorry. It’s just, well, I worry. And you’ve got to get ready for another trial, right?”

  During dinner, he’d tried to explain what was going to happen, but Veronica clearly hadn’t understood.

  “I don’t think so. Can’t see them bringing charges against Tommy again, barring some new evidence. Howard’s print and his DNA might have been enough for the jurors to find reasonable doubt—that’s why Ann didn’t disclose in the first place. And any jury in the state will know she hid evidence. You can try and screen the jury, but they’ll know he already got a raw deal.”

  “So, Judge Howard killed Emily Smith,” Veronica said, shaking her head. “I still can’t believe it. He was such a nice man. A gentle giant, we all thought.”

  “I’m finding it a little hard to believe myself.” Sam nodded in agreement. “And now, with Becky’s prints at the scene and on the weapon, I’m finding it even more unlikely.”

  “I guess the important thing is that Tommy is out of jail.”

  “Yeah,” Sam said, finishing the last of the double and clinking the ice. “I guess it doesn’t really matter who did it.”

  “I want my money!” Frac said. He and Fricke were in the maintenance office. Frac had closed the door and was looking at Fricke with his hand extended.

  “Now, wait a minute,” Fricke countered. “Tommy got convicted. That’s what the bet was. No one said anything about the verdict getting overturned.”

  “I want my money,” Frac insisted. He took a couple of steps closer. “Fifty bucks. You said.”

  “Damn it, what don’t you understand? I told you we were betting on what the jury said. You were just too stupid to understand that.”

  “Money. Now.” Frac inched closer.

  “Screw you. Get outta here,” Fricke said, waving Frac off.

  Frac’s brow furrowed momentarily, then he struck Fricke with a heavy blow. Fricke was stunned, and when his head cleared, Frac was holding him by the collar, prepared to shake him.

  “Money! Money!”

  “Okay, okay!” Fricke said. “Jesus, I’ll get you your money!”

  “What’s going on here?” It was Daniels, in the courthouse late for some reason.

  “Nothing, Judge,” Fricke said. “Just horsing around.”

  “Well, you boys better knock it off,” Daniels said. “Someone could get hurt. You okay?”

  “Fine, Judge. Fine.”

  “Okay, well, good night, men
.”

  57

  Sam walked up to Becky Olsen’s door, again dodging the toys and garbage strewn along the sidewalk. “Mrs. Olsen?” he said through the open screen.

  “What the hell do you want?” she asked, looking through the screen door. “I told you to get your ass out of here.”

  “Do you take the newspaper? Listen to the radio? Social media?”

  “Why? What’s this about?” she asked, wiping hair from her eyes.

  “The trial verdict was set aside.”

  “What? Why, for God’s sake?”

  “New evidence came up. Evidence the prosecutor had but didn’t turn over to the defense. Seems Judge Howard had been having an affair with Emily. His fingerprints and semen were in her house. That’s evidence that should have been turned over to the defense.”

  “So what?”

  “Well, Tommy was released.”

  “Tommy’s out of jail?”

  “Yup. Judge Daniels set a personal recognizance bond.”

  “But I thought—”

  “It’s complicated, I know. But I still think most wives would be interested in finding out how they might help their husband.”

  “Most wives weren’t married to Tommy Olsen!” Becky said. “Besides, he’s out of jail and we’re getting a divorce. I left with the kids, remember? He might come after me!”

  “Why would he do that? You were at the trial supporting him every day.”

  “Only because you thought it would look right. ‘Good optics,’ I think you said—whatever that is.”

  “So, can we talk?”

  “Come in,” she said, and stepped to the side. “Sit yourself.” She cleared a chair of papers by sweeping them to the floor.

  Sam stepped gingerly over the papers and took a seat. He watched as Becky began to pace about the room. “What’s this really all about?” she asked.

  “I don’t think Tommy killed Emily.”

  “No shit. If you’ll recall, you already told me you think I did it!” Becky said. “But now, you’ve got that judge’s prints. Maybe he did it.”

  “Well, maybe,” Sam said. “But Howard is dead.”

  “How?”

  “Looks like suicide.”

  “Well, there you go.”

  “Maybe. But I’ve got some new evidence.”

  “What evidence?”

  “Forensic stuff.”

  Becky was picking up toys and papers and tossing them all into a toy box. “What kind of forensic stuff?”

  “Those fingerprints we talked about last time?”

  “What about ’em?”

  “They’re from a smoker.”

  “So? Lots of people smoke.”

  “They’re yours.”

  Becky stopped picking up toys, turned around, and looked at Sam. She inhaled smoke and blew it toward the ceiling. “Mine?”

  “Yup. I got them off the beer bottle from the other day.”

  “You are an asshole.”

  “Yeah, well, what can I say? Polson had your prints run. They match the ones on the weapon and on the shot glass.”

  “So what? Someone planted ’em.”

  “You expect me to believe that?”

  “Not really. You don’t know what the hell to believe. If you’ll recall, you’re the dumbass who got my husband convicted.”

  “It’s over, Becky,” Sam said. “Tommy’s out of jail and the police are going to be looking at all the evidence with a fresh set of eyes.”

  “And what’s that mean to me?”

  “It means you probably ought to find a sitter for your kids. Long-term, I’m thinking.”

  58

  “Sam, come in and sit down.” Paul gestured to the chair Sam had sat in hundreds of times when they’d worked together. “How are things?”

  “Better than they were a couple of days ago,” Sam said. “What’s up? Case I failed to close?”

  “Look, Sam, I just wanted to say that I’m sorry for the way things worked out.”

  “What do you mean?”

  “Well, giving you the heave-ho when you took on Tommy’s case. I think that was a mistake. I was worried. I mean, I built this,” he said, gesturing at the walls and ceiling. “It’s not much, but whatever it is, it’s sort of what I’ve done with my life. I was trying to protect—”

  “I understand, Paul. No hard feelings. I can’t blame you for that. You’ve got ties to the community and a family to feed. No reason to risk that for a guy you hadn’t seen much of for twenty years.”

  “Really?”

  “Really.”

  Paul looked tired. “Sam, what are you going to do now?”

  “I’m going to go fishing.”

  “Of course you are.” Paul laughed. “I was thinking more long term.”

  “I’m not entirely sure. Haven’t given it much thought.”

  “Would you consider coming back to this office?”

  Sam sat quietly for a moment. “Not sure.”

  “I mean as a partner, this time,” Paul said. “Anyone who can try a murder case deserves partnership.”

  “I lost.”

  “Well, the State hid crucial information about Judge Howard from you. Maybe things would have turned out differently had you had all the information. That’s why Daniels granted your motion, right?”

  “Right. But Tommy’s still technically a suspect. Eyes are still on him.”

  “I know. So, will you think about it?”

  “I will. What’s the buy-in?”

  “I’m not sure. I’ll get with my accountant—our accountant, maybe?—and see what he thinks. While you think about it, I mean. I’ll just ask sort of parenthetically.”

  “Okay.”

  “Where you going?”

  “Not sure, except that it’ll be somewhere I’ve never been. I’ll get the maps out, look for blue lines, pick one, and see if there’s any fish in the creek. Just wander around, really. Clear my head.”

  “You deserve it.”

  “Thanks, Paul.”

  “I’ll have something for you this week?”

  “That’ll work.” Sam stood to leave.

  “Thanks, Sam,” Paul said, extending his hand. “And again, I’m sorry. I didn’t mean . . . I panicked. I mean, I know this place don’t look like much, but . . . Will you think about it?”

  Sam took Paul’s hand. “I will. At least until I get near the water. After that, I can’t make any promises.”

  “Judge, I have a question.” Mary placed a cup of coffee on the desk in front of him. She didn’t have to do that, of course, and she knew it. But she’d been his judicial assistant for more than twenty years, and made certain allowances—primarily because he appreciated it.

  “Yes?”

  “Were you surprised at all?”

  “About?”

  “About Judge Howard and Emily?”

  “Not really. I’ve heard all the same rumors you have.”

  “I mean about the fingerprints. And his, uh, his DNA at the house.”

  “Well, I didn’t think he’d gone that far, of course.”

  “I can’t believe he did it.”

  “Well, we don’t know he did yet.”

  “He killed himself. That’s enough for me,” Mary said. “I heard he left a note admitting to everything.”

  “You did?”

  “Yup. Word on the street is that he admitted it and felt so ashamed for everything he did to Margaret that he just decided to kill himself. Good riddance, I say. Man that age running around with young women. And a judge!”

  Judge Daniels smiled and sipped his coffee.

  “Can I ask another question?” she asked.

  “Of course.”

  “Why didn’t you stop the trial when Punch came in here and told you?”

  “Listening through the keyhole, were you?”

  “Of course not!” Mary answered. “But these walls are thin.”

  “I thought about it,” Daniels said. “But a couple of things. First, evi
dence has to be turned over to the defense if it is exculpatory—if it tends to show the defendant didn’t do the crime. There’s at least some argument to be made—and Ann would have made it—that given the amount of evidence against Olsen, the presence of Judge Howard’s print and even his DNA wouldn’t have mattered. And there is no evidence that she knew about the first print until after the preliminary hearing.”

  “It was unfair.”

  “Right. Just as important, though,” Daniels continued, “I thought Johnstone was doing a good job—holding his own or better. Easy decision at that point. The match with the semen sample was more of an issue. My thinking was that if Johnstone had walked Olsen without the Howard information, then everyone goes home happy and no lives would have been ruined. Remember, when they got the case, the jury knew the judge’s fingerprint was there, that there was a matching set on both the weapon and the shot glass, and—as far as they knew—there was unidentified DNA there. They knew someone else had been there, and if they were paying attention, they knew two people besides Olsen had been there around the time of her death. I thought Johnstone might get them to bite on reasonable doubt or get one juror—that’s all it takes—to bite on that and hang the jury. I would have made Jon step down, of course, but at least his pension would have been good. Margaret deserves that.”

  “Judge, can you do that?”

  “Well, I did it,” Daniels said. “But two things happened. First, Olsen testified. I think there was at least some doubt in some of the jurors’ minds before he took the stand. But like most defendants, he didn’t fare well under cross-examination. Second, Juror 465 got put on the jury, which killed any chance of an acquittal.”

  “But if your plan had worked and if Olsen was acquitted, Judge Howard would have gotten away with it!”

  “Well, Judge Howard would have resigned immediately after the trial—I’d have seen to that. Punch would have continued his investigation—he never really stopped. And honestly, we don’t know that Judge Howard killed Emily. Someone left those other prints.”

  “So when the jury said guilty—”