Shoot the Lawyer Twice

by Michael Bowen

  “Any idea why?” Melissa asked.

  “You may find out tonight if you accept Boone Fletcher’s invitation to track him down at Major Goolsby’s later on. He knows almost everything, and what he doesn’t know he makes up.”

  “How did the government’s brief look?” Rep asked.

  “Scared the hell out of me, but the dream-teamers will take it in stride.”

  “Those guys don’t impress you too much, do they?” Melissa asked.

  “I’m not wild about having a case jerked out from under me and handed to a couple of celebrity lawyers. When you’re picking a jury for a rape case with your nose stuck so far in a jury-consultant’s report that you don’t notice one of the prospective jurors is wearing a Take Back the Night button, you’re not likely to impress me much.”

  “That raises an interesting point,” Rep said. “The last time I hired a jury consulting service it charged my client eighty-thousand dollars, and that was for barebones work without any frills at all.”

  “This one had plenty of frills. They pulled out all the stops to get a good cross-section on that mock-jury panel. That’s how I ran into your buddy Angstrom. They used him to round up some part-time students to flesh out the demographic. And he didn’t come cheap, either.”

  “So Valerie Clevenger not only paid for that, she brought in two left-coast celebrity lawyers. She has to have shelled out, let’s see, carry the two, something north of four-hundred-thousand dollars in litigation costs.”

  “No comment,” Kuchinski said.

  “White collar crime work must pay better than I thought.”

  “Any idea why Fletcher wants to talk to Rep?” Melissa asked.

  “Well, he has been on the sex-or-swim case since before it was a case.”

  “You might say he was immersed in it from the beginning,” Rep said.

  “I’d work up some comeback about that comment being all wet, but we’ll save that for the movie version. Point is, that boy thinks he’s on to something big. Just ask him.”

  ***

  “Something big?” Fletcher bellowed ninety-five minutes later in the non-smoking section of Major Goolsby’s bar and grill. “I’ll tell you about big. If all I get for this is the Pulitzer Prize I might not even show up for the ceremony. Anything short of a Nobel and I’ll be sulking.”

  “We’re used to that,” a man wearing a 1982-vintage Brewers uniform jerseywith Robin Yount’s name and number on it said.

  “This gentleman, by the way, is Quintus Ultimusque Kazmaryck,” Fletcher said.

  “‘Fifth and Last,’” Rep translated, with a hint of puzzlement in his voice.

  “Whoa, how’d you do that?” Fletcher demanded. “You’re way too young to have learned Latin as an altar boy.”

  “Law school. Picked up just enough Latin to mispronounce prima facie.”

  “Q had four siblings, you see,” Fletcher said.

  “Stop it,” Kazmaryck said.

  “The youngest was seven when Q’s mom missed her period because of him. His dad wanted to leave no doubt that Q would be the end of the line.”

  “So I ended up with a Catholic joke for a name,” Kazmaryck said.

  “If your parents had been atheists you might have ended up in the bottom of a d-and-c pail,” Fletcher said.

  “True. It gives me an excuse for being risk averse.”

  “Appearances to the contrary notwithstanding,” Fletcher said as he took a hit from a schooner of beer, “that was background, not digression. I want you to help me get this story.”

  “What makes you think I can help?” Rep asked.

  “What makes you think I’m talking to you, counselor?” Fletcher paused for a beat, then grinned. “Gotcha. After that lame gas attack at Villa Terrace, I could tell you were worried about Frauen Professor Pennyworth still being at UWM, where it happens Angstrom’s office was broken into. I figured she might be up to her Phi Beta Kappa key in this, and your eyebrows almost touching your scalp just now tells me I might be onto something.”

  “‘More matter, less art,’ to coin a phrase,” Melissa said, as her knee ungently nudged Rep’s in a spousal admonition not to react.

  “Fair enough, Lady MacBeth.”

  “Technically, that was Queen Gertrude, from Hamlet.”

  “My bad. Anyway, start with the last night of the sex-or-swim trial. Grady Schoenfeld is the only juror who didn’t think Clevenger was guilty, and not long after that Schoenfeld’s main squeeze shows up in court looking for Reppert. Plus, Reppert—I can call you Reppert, can’t I?”

  “I’ve been called worse, by better men than you.”

  “Burn,” Kazmaryck said, with the lip-smacking delight of a connoisseur.

  “Anyway, plus Reppert is office-mates with Milwaukee’s very own Perry Mason, the gruff-but-lovable shyster who just happens to be representing Jimmy Clevenger.”

  “I’m keeping up so far,” Melissa said. “So what?”

  “No idea. I mean not the foggiest notion. I’m a simple, Midwestern police-beat reporter, and I couldn’t connect the dots on something this ungodly complicated if my next Baggie of Vancouver Premium Blend cannabis sativa depended on it. That’s why I want your help.”

  “It’s nice to be wanted,” Rep said, paying Melissa back for her knee-nudge as her mouth opened and closed.

  “Why should you help me? Funny you should ask.”

  “Because anonymous sources end up looking better in investigative journalism pieces than their subjects do,” Rep said.

  “Son of a bitch,” Kazmaryck said. “He saw right through you.”

  “Get to work on your beer, Q. If we don’t kill this pitcher by closing time, the terrorists win. And even without you I am overmatched tonight.”

  “Not a new experience for you.”

  “Well, you got me there. You’re right, Reppert. Reason number one is that when you give me information you get to spin me.”

  “You mean there’s another reason?”

  “Well, there’s quid pro quo. I’m a fair guy. I get information, I give information. Why would a couple of innocent bystanders like you care about information from the likes of me? Just because Reppert shares an office with Kuchinski, who’d like to be the local hero in a big case?”

  “Something to keep in mind,” Rep said.

  “Close the sale, you dumb mick,” Kazmaryck said.

  “A taste,” Fletcher said, holding up an admonitory finger. “A flash of what’s under the pasty, to mix metaphors.”

  “That is not a mixed metaphor, by the way,” Kazmaryck said. “That is at most a meta-three, and maybe only a meta-two.”

  “You see,” Fletcher said, “Q here doesn’t just run a locksmith and collectibles shop where all goods and services are sold for cash only.”

  “No credit,” Kazmaryck said. “Don’t believe in it.”

  “He’s also a politician. And a good one. He’s never won an election.”

  “Zero for thirteen,” Kazmaryck said happily.

  “In its passion for clean government, the State of Wisconsin provides public financing for legislative campaigns.”

  “God bless Fighting Bob LaFollette.”

  “Of course, any campaign needs a good campaign manager.”

  “I’m a very good campaign manager,” Kazmaryck said. “And I work cheap. I don’t charge an arm and a leg like those sharks from out of town.”

  “Plus space for campaign headquarters.”

  “Plenty of room in my shop, and the rent is very reasonable.”

  “And then there are campaign posters and brochures.”

  “Amazing what they charge for those things.”

  “Although, remarkably enough, the union shops that supply such ephemera seem to require a lot of locksmith work in years divisible by two.”

  “Always buy union, that’s my motto,” Kazmaryck said. “Solidarity forever. The union makes us strong.”

  “Bot
tom line,” Fletcher said, “Q is plugged in.”

  “That was quite a segue,” Rep said.

  “Entertaining, though,” Melissa said.

  “We aim to please. Give our friends some inside dope, Q.”

  “Assistant United States Attorney Terence Finnegan would very much like to be Attorney General of the State of Wisconsin,” Kazmaryck said.

  “And who can blame him? The last Democrat who could get through the day without a beer and served as attorney general is now governor. Once you’re a governor you start humming Hail to the Chief in the shower.”

  “He has nurtured this hope for at least five years,” Kazmaryck said. “He has gotten convictions or headline-worthy settlements in many cases that warm progressive hearts.”

  “A suit on a perp-walk gladdens the liberal soul,” Fletcher said.

  “A number of other Democrats, however, would also like to be attorney general, some of whom do not suffer from the handicap of being male.”

  “That’s a pretty serious insinuation,” Rep said.

  “What, that Finnegan is a male? I can back it up.”

  “No, that Finnegan bootstrapped a low-rent sexual assault charge into a federal crime so that he could buff up his credentials with feminist activists.”

  “Did I say that?” Kazmaryck asked Fletcher.

  “Libel lawyers call it ‘colloquium,’” Fletcher said. “Comes up all the time in the newspaper business—especially the stories I work on, for some reason. Don’t sweat, though. It’s probably covered by your homeowner’s policy—right, counselor?”

  “I’m just a copyright lawyer,” Rep said, hiding an internal wince.

  “Right, I forgot that for a minute. Anyway, got anything for me?”

  “A business card with a cell-phone number on it that I only give to my very best clients,” Rep said as he and Melissa got up and began to move away from the table. “I’ll see if I can come up with anything more substantial.”

  “That would be appreciated,” Fletcher said, looking thoughtfully upward and raising his beer schooner. “And don’t bother with the stuff about how that so-called gas canister at Villa Terrace was just a can of wasp-spray painted gray, with the top twisted off with pliers. Sergeant Mittlestedt figured that out before the evidence techs got there.”

  Rep stopped and looked back.

  “I wouldn’t want to be in Taylor Gates’ shoes,” he said.

  “Neither would I,” Fletcher commented, without turning his head toward Rep. “Like you said, it’s better to be a source than a subject.”

  Chapter 16

  The second Friday in December, 2007

  Rep still hadn’t come up with anything for Fletcher two months later, when the United States Court of Appeals for the Seventh Circuit heard oral argument in the sex-or-swim appeal. That didn’t reflect sloth on Rep’s part but a rocket docket in Chicago. The court had scheduled argument with unwonted celerity.

  “When criminals lose appeals here,” Melissa whispered to Rep as they settled into the eighteenth floor courtroom, “do they go to prison or does the floor just open up and drop them straight into hell?”

  “The ambience is formidable,” Rep agreed.

  A ripple of excitement stirred the spectators as the lawyers in the case ahead of United States v. Clevenger packed up their papers and prepared to leave. Appellate court audiences are usually just the lawyers paid to be there. Not today. In addition to Rep and Melissa, the crowd included Valerie Clevenger and Carolyn Hoeckstra; Boone Fletcher and at least two other reporters that Kuchinski had pointed out; a crowd of activists whose views could readily be surmised even though they’d had to leave their Say-No-to-Rape pins at the metal detector downstairs; and Quintus Ultimusque Kazmaryck, sitting next to another politico younger and glossier than he.

  Augmenting this array at the last minute was René Mignon, who came just in time to hold the door open for exiting lawyers from the last case. With a polite nod and his customary I-know-something-you-don’t-know smile at the room in general, he seated himself behind Rep and Melissa.

  The clerk called United States versus Clevenger. Finnegan, six feet tall, trim and wiry with short black hair, strode briskly to the appellant’s table. Two lawyers Rep didn’t recognize took seats on the other side. The professionally courteous smile Finnegan flashed at them scarcely softened a mocking glint in his lively blue eyes. Kuchinski kept his seat in the front row of the gallery.

  “May it please the Court,” Finnegan said a nanosecond after the presiding judge nodded at him. “The only issue—”

  “Counsel, what is this case doing in federal court?”

  This question, from a dour jurist at the presiding judge’s left, clearly came as no surprise to Finnegan. He slipped seamlessly from his prepared argument to a crisp exposition of the crime-on-the-high-seas theory.

  “I’m not asking why you could bring it, but why you did. Why stretch so outlandishly for federal jurisdiction over a garden-variety state law offense?”

  Finnegan had barely started on the strong federal interest in the country’s navigable waters when the third judge interrupted him.

  “Counsel, do you feel that erroneous exercise of prosecutorial discretion, if indeed it was erroneous, is jurisdictional?” She pretended that this was a question to Finnegan, but every lawyer in the room recognized it as a barbed comment aimed at her dour colleague.

  “I do not. The ground for dismissal here was lack of subject matter jurisdiction, and with the court’s permission I will turn to that issue now.”

  Finnegan segued back into his prepared argument. Over the next fourteen minutes he got exactly one more question—“Where is that in the record, counsel?” After he reserved the rest of his time for rebuttal and sat down, the older and heavier of Clevenger’s lawyers went to the podium.

  “Whatever Jimmy Clevenger may be, he isn’t a pirate. If every word in the indictment is true, he would at most be arguably guilty of a crime under Wisconsin law, implicating no substantial federal interest. There is simply no excuse for literally making a federal case out of this. That is—”

  “What if he had actually raped the victim?” the third judge asked. “Would that be chargeable under the piracy statute?”

  “No. Rape is a state law crime.”

  “So is armed robbery. But armed robbery on the high seas is piracy, and the same guys who wrote the Constitution didn’t think twice about hanging people for it under federal law.”

  “Robbery is ‘depredation,’ which is the term the piracy statute uses.”

  “And rape isn’t?”

  “It is not,” the lawyer said amidst indignant gasps from the activists. “‘Depredation’ involves pillaging, which requires the forcible taking of goods.”

  “So if the defendant had used the threat of force to swipe a beer from a cooler on deck the government could legitimately have charged him with piracy, but threatening the victim with forcible rape doesn’t meet the statutory standard—is that your argument, counsel?”

  “I didn’t write the statute, your honor. The men who did knew how to say ‘assault and battery’ or ‘sexual assault’ when that was what they meant, and they chose not to include those offenses in this law.”

  “So what you’re saying,” the presiding judge interjected, his eyes twinkling as if this were cocktail party repartee, “is that there must be a threat to property, not person?”

  “Not just a threat, your Honor. An actual deprivation by force.”

  “Or by the threat of force?”

  “Well, yes, the threat of force can be enough.”

  Rep straightened in alert attention, the way he did when a pitcher with a three-run lead went two-oh on the leadoff hitter in the eighth. Melissa noticed, and saw Valerie Clevenger doing the same thing. She wondered why. For his part, Rep wondered whether Clevenger’s lawyer had heard the air whistling past his ears as he dropped through the trap door.

  “Doe
sn’t the indictment allege that here?” the presiding judge asked.

  “It does not. It alleges overreaction to jocular banter during a run-of-the-mill sexual proposition.”

  “‘Jocular banter?’” the third judge demanded. “‘Sex or swim?’ On Lake Michigan, near midnight, almost half-a-mile from shore?”

  “Even interpreted in the worst possible light, that comment threatened the victim’s honor—not her property. She was not deprived of any property.”

  For the briefest of moments the presiding judge allowed himself what, if he had been anything but a judge, would have been a smile. Leaning forward with his left hand cupped around his chin he asked innocently:

  “What about the boat, counsel?”

  “Excuse me, your Honor?”

  “The sailboat, the ship, the watercraft. According to the indictment, when the victim dove overboard the defendant was left in possession and control of the ship.”

  “The ship was back in the victim’s possession within two hours.”

  “So what? Isn’t the victim’s use of her own ship for two hours a valuable property right?”

  The lawyer knew he had no good answer. ‘No’ would be silly, and ‘yes’ would start him down a slippery slope, with no place to stop before the bottom.

  “Not in the context of the facts alleged here,” he finally said. “A clear and present threat of death or serious physical injury is one thing, and a clumsy, frat-boy come-on is something else.”

  He paused, visibly bracing himself for a blistering challenge from the third judge. The next question, however, came from the dour judge, the one who had started out on Clevenger’s side.

  “Counsel, isn’t that a jury question?”

  There wasn’t much after that, and what there was struck Rep as anticlimactic. After a limp finish by Clevenger’s lawyer and a brisk rebuttal from Finnegan, the presiding judge said the court would take the case under advisement. A general exodus began. Rep tracked Kuchinski down and dusted off a couple of the encouraging bromides lawyers resort to after getting smoked by an appellate panel.