by Kenneth Eade
“Just asking.”
“Of course, depending on the crime they were accused of, we could take samples while they were in custody. I could arrange that.”
***
Visiting scumbags in jail was not the only remnant of Brent’s former life as a poor man’s lawyer. He had also done more than a few divorces for bikers and their biker bitches. Of the many offers Brent had received during those times, many included lines of coke or lids of weed in return for legal services, which he politely declined. But the most interesting offer was a “biker party.” Basically, for a case or a keg of beer, an entire biker gang would show up at the home of your “friend” and have a party, driving motorcycles in and out of the house, swimming naked in your swimming pool, trashing your living room, and spinning donuts on your front lawn with their hogs. Of course, Brent had always declined these offers as well, but there was a particular job he thought suitable for these ex-clients, who owed him numerous favors.
Brent waited in his car at Tucker’s Grove Park. The unmistakable distinctive sound of a Harley Davidson preceded the dust cloud as the bearded, pot-bellied biker road up to Brent’s window. Letting the hog idle, the biker smiled a mouthful of yellow teeth.
“Hey counselor. You’ve looked better.”
“Thanks. Now, remember, nothing criminal. You just verbally provoke them and let them start the fight.”
“Nothing criminal? What fun would that be? And no repeat business for you, counselor.”
“You promised.”
“Yeah, yeah, you got the envelope?”
Brent handed the guy a manila envelope containing pictures of the two suspects and all the information that Jack was able to obtain on them. He snatched it, revved his hog, and gave a salute to Brent as he rode off.
30
Like the sand slips through the hourglass, time slips through your fingers. The trial was less than five weeks away, and those weeks had a peculiar way of turning into days, then hours, then minutes. By the same token, Brent’s long hours at the office turned the days into nights and the nights into days. It was dark when he arrived to the office in the morning, and it was dark when he left it at night. So, the call from Angela at 7 p.m. was just what he needed.
“Hey Brent, you’re working too hard,” she said. “Why don’t you take a break and meet me for dinner?”
“Are you asking me out?”
“Why don’t you meet me and find out?”
“Now that sounds intriguing. Where?”
“How about my place? I think a bachelor like you could use a home cooked meal. Around 8?”
Brent had barely enough time to shower, shave and dress for dinner. With his regular caseload and the trial preparations, and the loss of Rick, his lunches with Angela had evolved into being his only social life. He often found that his thoughts drifted in her direction before he closed his eyes to sleep every night.
***
Angela’s apartment was a two-level in a Spanish style building with a beautiful stone paved courtyard that contained a garden exploding with flowers of all colors and a fountain in the center. Brent parked his car out front, and took a bottle of wine and red roses from the passenger’s seat that he had bought on the way. As he passed through the courtyard, the scent of the roses was overpowered by jasmine and plumeria. Brent found Angela’s apartment and knocked on the door.
“Flowers!” she exclaimed when she opened the door. “And wine! You are truly a gentleman, Mr. Marks.”
“Thank you,” Brent said as Angela showed him in.
“Now, sit down and relax. No working tonight.”
“Okay doctor.”
“And give me your cell phone.”
Brent reluctantly complied. But, just as Angela went to switch it off, he said, “What if someone calls?”
“Brent, there’s a new technology. Perhaps you’ve heard of it. It’s called voice mail.”
Brent chuckled and figured, what the hell.
31
To the novice, it may have appeared that a storm was rolling down Stagecoach Road, accompanied by dark clouds and the roar of thunder. But it was not an act of God; rather a pack of hogs rolling into the Cold Spring Tavern Saturday night. The clan of bearded men and tattooed women rumbled in on their bikes, peeled their leather coated bodies off their saddles, and packed into the bar area.
Fifteen minutes later, the beer flowed and sweaty, bearded riders told riding stories, while their biker bitches gathered in sewing circles around the tables. The door opened and a lone, clean shaven white man in jeans with no leather pushed through the crowd and had a seat at the bar. He was physically fit, confident, and tall. Looking around, he realized that he fit in about as well as a watermelon in a pumpkin field.
“What brings you here, friend?” said the pot-bellied biker on his left. The man ignored the faux-friendly advance, and ordered a beer.
“Dude, I’m talkin’ to you. Ain’t you got no manners?” The biker got in his face.
“Get lost, dirt bag, I didn’t come here to socialize.”
“Then why did you come here, you little faggot? Can’t you see they only allow real men in here?”
The stranger regarded him with snake-eyes, cold and calculated. “Look, you fat fuck. You think I’m afraid of you and your dickless little biker buddies? Back off. I won’t say it again.”
As another equally out of place meatneck entered the tavern, he recognized the stranger at the bar and sat down next to him.
“Why the fuck did you pick this biker hangout to meet me?” asked the meatneck.
“What are you talking about? You left a message to meet me here,” said the stranger.
About the time they realized they had been had, a small circle of beards had come to surround them at the bar area. The stranger threw a fiver on the bar and stood up, as did his meatneck friend.
“You boys leavin’ without apologizing to my friend?” asked a bearded leather mountain.
The stranger had no fear. “Tell your buddies to move their gang bang over and let us pass,” he commanded. The mountain man just moved closer.
“Didn’t you hear my friend, Harley? Step aside, we’re leaving,” said the meatneck.
“It’s a good thing, Nancy,” said the mountain. We don’t take kindly to no fudge pushers meetin’ their faggy friends in our bar.”
Meatneck snapped, and grabbed the mountain’s hand, twisted it, and slammed it down on the bar. “Maybe I didn’t make myself clear,” he spit, through clenched teeth.
The mountain man just flashed a big grin of tobacco stained teeth, as if he felt no pain at all. “You drew first blood,” he said, as he grabbed the meatneck by the back of the head and slammed it against the bar.
The meatneck sprang up from the bar with incredible strength, ripping through the mountain man’s vice-like grip and struck at him and three other men like a caged-in cobra. His partner, the stranger, became a whirling dervish, kicking, punching and spitting, and knocking out one biker after another, until he reached the mountain man, who had already been kicked down by his partner.
In a devilish frenzy, the two took turns kicking the fat man into a pulp while his biker friends tried to come to his aid. They threw off the first three bikers, then spun around, back to back and flashed knives to the circle. “This party’s over,” said the meatneck. “Now back the fuck off unless you want to join your fat friend on his fucking back.”
The bikers did as instructed. As the two misfits made their way to the door, the riders came to the aid of the moaning mountain man.
Suddenly, four cops in riot gear entered the bar. “Nobody move!” said the lead cop. Upon quickly ascertaining who the victims were and who were the perpetrators, two cops handcuffed the two intruders, and pushed them out the door, while the other two cops took statements from the bikers. Two EMT’s ran in with a gurney and started working on the mountain man. Clearly visible in his fist was a clump of hair.
32
There comes a point in time
when deadlines catch up to preparations and you realize that you can never be prepared enough. Compare a trial to a battle of gladiators in the ancient Roman Colosseum, in which two gladiators (the lawyers) fight to the death, to entertain the spectators. In this game, a prepared mind is more important than anything else.
Brent’s case was about as strong as a paper bag. His star witness was dead, and the only choice he had to present that testimony was to show the video tape of the deposition or read the dry transcript into the record. It would take a great deal of theatrics to get the jury to return a RICO verdict against the bank. But the first obstacle would be Joe Stein’s motion in limine to exclude the deposition transcript and the video tape from even being presented.
Judge Virginia Masters took the bench at exactly 8:30 a.m. Every minute of each of the six days of the trial had been allocated, and each side’s time for presenting evidence as well as the time for argument, had been divvied out and accounted for up to the last second. Brent felt sorry for her husband.
“This is the trial of Marsh v. Prudent Bank, case Number CV 13 – 61940. Counsel please state your appearances.”
“Good morning, Your Honor. Brent Marks appearing for the Plaintiff.”
“Good morning, Mr. Marks.”
“Good morning, Your Honor. Joe Stein appearing for Defendant Prudent Bank.”
“Good morning, Mr. Stein.”
“Good morning, Your Honor. William Black appearing for Defendant Steven Bernstein.”
“Good morning, Mr. Black. There are two motions pending before this Court. First is Defendants’ motion to dismiss the Plaintiff’s case due to the death of George Marsh, the principal Plaintiff. My tentative ruling is to deny the motion. Clearly the causes of action touching and concerning the property flow with the property. Therefore, his daughter, his only heir and the executrix of his estate, can maintain them.
With regard to the RICO claim, it is a little more complicated. Although there is no Ninth Circuit law on the subject, Mr. Marks points out that at least one Circuit Court of Appeal, in the case of Faircloth v. Finesod, has ruled that RICO is a remedial statute and that Congress intended it to survive the death of the Plaintiff. I tend to concur with this decision. The floor is now yours, Mr. Stein.”
After a limited 15 minutes of argument on the part of Joe Stein, and rebuttal by Brent, the judge’s tentative ruling stood, and Brent looked confidently at April, who was sitting next to him at the counsel table, silently basking in the victory. But it was a victory short lived.
“Regarding the Defendants’ joint motion to exclude the deposition of George Marsh,” said Judge Masters, “I have read the motion and supporting documentation and the opposition. My tentative ruling is to grant the motion. There is no case law which authorizes the presentation of evidence by argumentative or alternative communication, and it would be confusing enough to the jury to have Mr. Marsh present his testimony live, let alone posthumously by video tape.”
Brent’s heart dropped through his stomach. He had lost the first battle before having the opportunity to fire one shot.
“Mr. Marks, I will hear from you,” said Her Majesty.
“Yes. Thank you, Your Honor. As the Court will note from the authority I have filed with my opposition, augmentative and alternative communication as interpreted by Mr. Marsh’s doctor is no different than allowing an interpreter to present testimony by a person who does not speak English.”
“Come on, Mr. Marks, you can’t expect Mr. Stein and Mr. Black to be able to cross-examine a witness effectively under these circumstances.”
“On the contrary, Your Honor, they already have. I hardly got the chance to ask Mr. Marsh a question during the deposition. Most of the questioning consisted of their cross-examination.”
“But it is not a different language; it’s Mr. Marsh’s own special language that he and his doctor have invented.”
“Actually, Your Honor, as you can see from the declaration of Dr. Senlon, the basis of their communication is very simple, and utilizes a communication board with an English alphabet.
In my brief, I cited the case of Vasquez v. Kirkland, a Ninth Circuit case, where the witness in that case was deaf, and communicated with a set of gestures and facial expressions, which were interpreted by another deaf person in sign language to a court certified interpreter who then translated the sign language to the jury. The Court held that the jury, having been instructed about the process, could put the weight on the testimony that it saw fit. In light of that decision and the others cited in my brief, it would be improper to exclude his testimony, especially now that he has passed away.”
“Mr. Stein?”
“Thank you, Your Honor. The defense agrees with the Court’s tentative ruling. This case is a far cry from Vasquez. In Vasquez, a certified court translator did the interpreting, not the witness’s psychologist.”
“Mr. Marks?”
“Your Honor, I agree that this is not exactly the same case as Vasquez. In Vasquez, the witness’s testimony went through two filters of interpretation. In Mr. Marsh’s deposition, there was only one. That makes it even more reliable than the testimony in the Vasquez case. Moreover, at Mr. Marsh’s deposition, Dr. Senlon, who is an expert in augmentative and alternative communication, testified under oath about the process as it applied to Mr. Marsh, and her interpretation of the communication can be relied upon as expert testimony.”
“Your Honor, if I may,” said Stein. “Counsel is trying to shove an entirely new method of communication down the Court’s throat. It is not another language. It is not sign language, and Mr. Marsh was not deaf.”
“Your Honor, 47 states including our own, and the District of Columbia allow public funding of augmentative and alternative communication devices. In William T. ex rel. Gigi T. v. Taylor, the District Court held that Medicare programs should cover these devices. This is nothing new,” argued Brent.
“Plus his doctor, who is an expert in this method of communication and who designed the system of communication will testify as an expert witness. The United States Supreme Court inDaubert v. Merrell Dow Pharmaceuticals in 1993 established requirements for admissibility of expert testimony, including whether or not the employed technique has been peer-reviewed and published, has a known error rate, can be tested, and is a generally accepted practice within the field. Dr. Senlon will testify that augmentative and alternative communication of this kind is a generally accepted practice in her field.”
“Gentlemen, I have read your briefs, now I would like to watch a portion of the video tape so that I can make a determination. Court is adjourned for two hours.”
***
“What does it mean?” April interrogated Brent at the counsel table.
“It means we have a 50-50 chance of getting her to change her mind, but she’s going to decide it on her own, after she watches the tape.”
“And if she excludes it?”
“No RICO, no mortgage fraud. We need his testimony to establish the elements of our case.”
“I should have never attacked them. Dad’s dead, your friend is missing, and it’s all for nothing.”
April sobbed, gasped for air, and the streams turned into rivers. Brent put his arm around her to comfort her.
“Don’t cry. Let’s wait and see what happens. If she denies it, we go through the trial and appeal. If she doesn’t, we’re back in the game.”
Thus began the longest two hours in the history of Marsh v Prudent Bank.
33
When the buzzer rang in the courtroom, signaling the entrance of Judge Masters, it was as silent as a church. All eyes were on the judge as she took the bench.
“Back on the record in Marsh versus Prudent Bank. I have read and considered all papers in support of Defendant’s motion in limine, and the opposition, considered the argument of counsel, and watched two hours of the videotaped deposition. I have decided to reverse my tentative ruling and to deny the motion. The jury can decide what weight, if any to give
the testimony.”
Stein sprang up from his seat. “Your Honor, may I be heard, please?”
“No, Mr. Stein, you may not. I have made my decision. Are there any further matters for the Court to consider before proceeding to jury selection?”
“No.”
“No.”
“Very well then, the clerk will send in the jury panel.”
***
Brent was looking for jurors whose lives had been touched by foreclosure or loan fraud. It was a good bet that Stein would not allow any juror to remain on the panel who had any direct experience with foreclosure; but Brent was looking for subtleties – people who had fallen on hard times and felt the demon of foreclosure breathing at their neck, but somehow had made it. Or people whose family member had been touched by foreclosure. These potential jurors would have a hard time feeling sorry for Prudent Bank in this case. Brent gave the panel list to Jack, who did a quick background check to determine who may potentially fall into these categories.
Potential jurors from the panel were called up 12 at a time, and sat in the jury box to endure the process of “voir dire,” a kind of cross-examination of their backgrounds. Stein’s questioning nitpicked at the financial background of each potential juror, looking for proud hard working men and women who had always been able to pay their bills and would not tend to see someone who had not paid their mortgage as a victim.
Finally, Brent used up the last of his allotted voir dire time, with two possible wild card jurors still left in the jury box – Franklin Thomas, a middle-aged black factory worker who probably would never be able to afford his own home, and Claire Deans, a single mother.