But that thought didn’t bear thinking. I couldn’t lose this case. I just couldn’t.
I heard Kate’s voice before I saw her. I lifted my eyes from the fallen leaves to see a large, solidly built woman walking toward me, a smile softening her strong features.
“‘Oh, there once was a union maid,’” she sang, her deep voice booming the words all over Henry Street. She wore a trenchcoat with a teal-and-rust scarf around her throat, slacks, and comfortable shoes.
I took up the next line of the song, “‘who never was afraid.’” My voice was an octave higher than hers; we both struggled through the next words of the song. It had been a while since we’d sung it.
We belted out the chorus together: “‘Oh, you can’t scare me, I’m sticking to the union. I’m sticking to the union, till the day I die.’”
Kate Avelard and I had met during a Legal Aid strike. New York’s Legal Aid Society, essentially the biggest law firm in the world, was a union shop. We’d voted to strike twice in my time; our slogan the second time out was “Manhattan talks, Brooklyn walks.” And walk we did; I must have covered twenty miles a day just marching in front of the Brooklyn courthouses, a huge hand-lettered cardboard sign around my neck.
But we hadn’t stuck to the union; we hadn’t stayed with Legal Aid. We’d both left to form our own private practices. I still specialized in criminal law, while Kate had become one of the leading divorce experts in Brooklyn Heights, where spouses were inclined to fight to the death for the right to stay in the brownstone both had renovated with a great deal of sweat and tears.
“Kate,” I said, letting myself be swept into her embrace and giving her the almost-kiss of two women who had once been close and were now something more than acquaintances but less than friends. “How are you doing?”
As I headed toward the close of my first half-century, this was no longer a rhetorical question. It meant various things, from “Did they find a lump?” to “Have you scheduled your hip replacement yet?” to “You mean Benjamin didn’t get into Yale?” In this case, it meant “Are you getting through the day without Marc? Is it possible to lose a husband like him to a horrible disease and still find life remotely worth living?”
“I’m okay,” she said shortly. “So are the kids, believe it or not. Zachary just started middle school at St. Ann’s and Hilary’s on the honor roll at Packer. If it weren’t for my goddamn clients,” she went on with a bitterness I hadn’t heard from her even in the darkest days of Marc’s illness, “I’d be fine.”
“Been there, done that,” I said, trying to keep it light. “I’m on my way to AD2 even as we speak.” I didn’t bother keeping the brag out of my tone.
“The Appellate Division?” She raised an eloquent eyebrow. “Does that mean you’re going respectable? Cass Jameson, fighter for truth and justice, putting on a three-piece suit and groveling before the madams?”
The reference was to legendary Legal Aid lawyer Martin Erdmann, who once said in Life magazine that appeals judges were nothing more than whores who had become madams.
“So,” Kate went on, in what struck me as a forced version of her old blunt humor, “are you on a winner or a loser?”
“I have to win,” I said. “My client is innocent.”
“You have my sympathy,” Kate replied with a wry twist of her mouth. “So is this your first appeal, or what?”
“It is not,” I replied indignantly.
Kate knew me too well. The humor lines around her generous mouth twitched as she put her next question to the witness: “Is it your third?”
“Well, no, now that you mention it. I did one appeal in a previous life, when I was pissed as hell at Judge Anselm for the way he treated me during the trial. My client ran out of money the minute the handcuffs clicked on his wrist, so I did it for free. And lost it for free.”
“But did it make you feel better?”
“Hell, no. The appellate judges gave me a hard time for saying bad things about their old pal Noah Anselm and affirmed without opinion.” Enough years had passed that I could smile as I told the rest of the story. “And then my ungrateful bastard of a client proceeded to bring a pro se writ of habeas corpus on the grounds that his appellate lawyer was not only incompetent but sleeping with the prosecution. To this day that turkey owes me five hundred bucks for the transcript I had made for him.”
“Yeah,” Kate said with a sympathetic shake of her head, “this would be a great job if it weren’t for the clients.” It was an old Legal Aid mantra, and I gave it the perfunctory smile she seemed to expect.
I was about to go into the obligatory we-must-have-lunch noises when Kate grabbed my arm with a grip so tight it hurt.
“Speaking of crazy clients,” she began in a tone that tried for lightness and sounded frantic instead, “There’s this ex-wife I represented who thinks I’m responsible for her husband’s being a vindictive bastard. She thinks I should have been able to get her a fortune even though she signed away her rights in a prenup you couldn’t break with a blowtorch. She’s filed a complaint against me with the disciplinary committee.”
“Gee, that’s—” I had to run. I had to get to court. But this wasn’t the kind of thing you could blow off; a lawyer’s entire right to practice was governed by the disciplinary committee of the state bar. No wonder Kate seemed agitated.
Her grip grew even tighter and she closed her eyes. “Those last few months with Marc were just so hard,” she said in a low voice. “He couldn’t sleep. He couldn’t move. He couldn’t talk. It was really important to him that I sit with him for as long as I could every night. But that meant I was running on two, three hours’ sleep. I made a few mistakes.”
Words were beyond inadequate, but I made a stab at it anyway. “It sounds horrible.”
The scene was all too easy to picture. The back parlor of Kate and Marc’s very Victorian house on Willow Place; Marc lying on the overstuffed chaise longue they’d bought on Atlantic Avenue. He’d been one of the most passionate and articulate lawyers I’d ever seen work a courtroom, pacing back and forth on long, restless legs as he challenged the jury to do the right thing. By the end, he lay on that couch day and night, unable to move or form words or eat more than baby food. His mind was still active, but none of his muscles would obey his brain’s commands. He was like a log, stiff and unmoving. A log with eyes; a log who could dream.
“So maybe I didn’t do as much hand-holding as I usually do with my divorce clients,” Kate went on. “Maybe I didn’t answer every phone call or explain every clause in the settlement agreement. Maybe I sent my associate to court on my behalf once too often. But I swear to God, Cass, I did not neglect a legal matter to the point where I deserve to be disbarred.”
A cold chill traveled down my back. “It’s that serious?”
She nodded and let go of my arm. The blood rushed back in, causing a tingling sensation. “The hearing is next week. Do you think you could—that is, I need—could you come in and say a few words for me?”
“Of course,” I answered warmly. I gave her a hug. “I’ll do whatever I can.”
Which wasn’t much. Kate and I had lunch maybe four times a year, went to the occasional play or movie together, and saw one another at the rare Women’s Bar Association meetings we both chose to attend. What concrete evidence I could give regarding her competence as a lawyer would take all of five minutes and do her very little good. That she had asked me at all spoke to her desperation.
As I said my belated good-bye, I reflected on the terrible turn Kate’s seemingly charmed life had taken. First Marc, now this. What would she do if the committee barred her from the practice of law? How would she support herself and her children?
I banished the thought from my mind; I had enough to worry about. And I was worried; I hastened my steps toward the courthouse, dashing across the street just in time to beat a car racing toward the corner. I was a bundle of nerves by the time I reached Pierrepont Street.
That alone was exciting. Whe
n was the last time I’d been nervous about a court appearance? Even a full-blown criminal trial no longer had the power to knot my stomach. I might lose sleep working on the summation, but it wasn’t sheer fear that kept me awake, the way it had the first fifty times I’d stood before a jury.
But this would be different. This wasn’t a street fight disguised as a legal proceeding. This was an argument in which differing interpretations of law would be presented.
If the Appellate Division, First Department, courthouse in Manhattan, where I’d taken my oath as a lawyer, was a Gothic cathedral of the law, then the Second Department was a Protestant meetinghouse. Its austere lines and jewel-box proportions were in sharp contrast to the ornate, overblown style of its Manhattan counterpart, with its stained-glass dome and overpowering wood-and-brass ornamentation. This courthouse was equally dignified, but without the florid Gilded Age excess. The cloakroom didn’t boast long brass pegs on which nineteenth-century lawyers once placed their beaver hats while addressing the court.
You walked in through tall brass doors, into a lobby bounded by four black marble columns. They flanked twin entrances, one to the clerk’s office and the other to the single courtroom. Straight ahead was the lawyers’ waiting room, carpeted in crimson, with long polished tables of dark wood and wine-colored leather chairs. It was like a men’s club, with pictures of long-dead judges on the wall in place of hunting prints.
I announced myself and my case to the clerk at the lobby desk. I tried to keep the pride out of my voice, but there was something about arguing an appeal that made me feel truly lawyerly. The courthouse itself was so clean, so quiet, so unlike the criminal court where I spent so much of my time. The appellate process was so far above the dirt and grime and sorrow of my usual work in the bowels of the criminal justice system. Like that “Star Trek” episode where some people lived in the clouds and the rest worked the mines underneath the surface of the planet.
How had I gotten stuck in the mines when the clouds were only as far away as Monroe Place?
The clerk announced that the judges were taking the bench. My heart leapt, and I had to reassure myself that I was more than ready for action. Only the action wasn’t ready for me. The judges took their time in coming out and there were five arguments ahead of mine. I tried my best to listen, figuring I could learn something, but my mind wouldn’t stay focused. How could I listen to a civil case about a subcontractor in a cement deal when I had to marshal my thoughts about Keith Jernigan?
If it please the court, I would begin, this is an appeal from a conviction of the Supreme Court, Kings County—
Did it have to be that wordy? What if I forgot to say Kings County? Should I say a conviction for robbery in the first degree then or later? What had the Legal Aid lawyer standing before the bench just said in her opening?
My palms were wet. Not damp. Wet. And it wasn’t hot, either outside or in. This I knew from the fact that my feet were cold.
If only Keith were guilty.
If he’d really committed the crime, this would all be an intellectual exercise, a game with no downside to losing. But it wasn’t. It was Keith’s life. He either walked free or did seven more years for a crime I was totally convinced he hadn’t—
I couldn’t let myself think about that. Not and do the job I’d come to do.
Back to the issues. This conviction should be reversed for three reasons: one—
No. This conviction must be reversed. Much stronger.
The Legal Aid lawyer who’d been arguing sat down, smoothing her skirt and perching on the chair like a cat. The district attorney, a pale young man in a brown corduroy jacket, stood and poured himself a glass of water.
Rule Number One of appellate argument: never drink the water.
The D.A. had one eye on the presiding judge and the other on his shoes. Which left no eye for the pitcher or the glass. The water missed the glass by two inches; the poor guy was pouring water directly onto the floor. When it splashed his pants leg, he jumped. The pitcher dropped from his hand and hit the carpet. Water was everywhere. He turned red. He mumbled. He dropped to his knees as if he could mop up the spill with his bare hands.
Then he keeled over. He’d been kneeling and he just went over, stiff as a dead dog, his face landing in the wet spot next to the pitcher.
Heart attack? I wasn’t the only one with my own heart in my mouth. All the lawyers rose and craned their necks. The court officers ran to the guy and turned him over. One loosened a tie. The other picked up the pitcher. A third opened the D.A.’s mouth.
“He just fainted, Your Honor,” one of the officers called to the presiding judge.
“Then get him out of here. Let’s get on with the docket.” Louis Hochheiser waved his hand as if to spirit the hapless D.A. into another world. The court officers helped the man to his feet and walked him outside.
I sat back and let out a long breath. What if that happened to me? What if I got up to the bench and forgot every word I was going to say? What if my eyes rolled up in my head and I hit the ground in a dead faint?
I’d have to leave town and change my name.
Too much money for new stationery. I squared my shoulders and reminded myself I’d been in practice for as long as I’d been an adult. I’d faced hundreds of lower court judges, and appellate judges were, as Kate had reminded me, members of the oldest profession.
I pictured Presiding Justice Lieberman in a low-cut dress, sitting in a red-wallpapered parlor, honky-tonk music playing in the background. Oddly enough, it helped. By the time the clerk called “People of the State of New York versus Jernigan,” I was calm.
You have to own the courthouse. Words of wisdom from my first Legal Aid mentor. I hadn’t thought about Nathan for a long time. I owed him a lot. He’d died a long time ago, but he was still with me in so many ways.
I stepped up to the appellant’s table and laid out my file, taking my time. I owned the courthouse. I, not the men and women on the high bench, set the pace. I stepped to the podium, adjusted the microphone to my height, and said the opening words I’d rehearsed a hundred times. My voice sounded too loud in my ears; I wasn’t used to a microphone. I backed up an inch and continued telling the court why I was here, why the conviction of Keith Jernigan had to be reversed.
Madigan and Rizzo looked bored. Bored is not good in a judge. Neither is impatience, which was what emanated like a malevolent aura from Hochheiser and Lieberman. Only Doolan gave me the minimal attention basic politeness called for.
I raised my chin and looked straight into his twinkly blue eyes. The eyes of an Irish charmer. The eyes of a loving uncle. The eyes of a man who hated me and my client and everyone on the planet like us. If I managed to get him on our side, I’d win. If I didn’t—well, there were still four others to work on. But it didn’t hurt to go for the hardest nut first.
“Your Honor, my client was wrongly convicted of robbery in the first degree because the identification procedure to which he was subjected was fatally flawed.”
Presiding Justice Aaron Lieberman woke from what had seemed a trance and leaned into his microphone. “We can read, Counselor. Please don’t quote your own brief.”
Blood rushed to my face. Did Lieberman think I was talking like that because I wanted to? I figured that was the way you were supposed to address the appellate court. You were supposed to sound formal and stiff and bloodless.
Well, hell, if he wanted me to be myself—
“Keith Jernigan served two years and five months in prison for something he didn’t do.” I stopped and raked the bench with my eyes.
“Yes, a jury found him guilty,” I went on, answering what I’d expected would be the first objection. “And, yes, three witnesses identified a photograph and then picked him out of a lineup. But the photo array was completely tainted by the arresting officer’s showing the photographs to the witnesses at the same time, instead of separately. He should have—”
“Counselor,” Justice Hochheiser cut in, his old
man’s voice a weak instrument, “even if the photo array was less fair than it should have been, didn’t the subsequent lineup serve to purge the taint?”
Judges get to interrupt. That’s one of the basic rules of appellate argument. The lawyer is there to answer questions. In fact, to be a successful advocate, you have to love the questions. You have to embrace them as an opportunity, not view them as an interruption.
So I embraced the question. “Far from it, Your Honor,” I replied. “In fact, one of the witnesses actually admitted on the stand that he picked my client out of the lineup not because he actually recalled him from the incident, but because he’d seen my client’s photograph.”
I tapped my forefinger on the podium for emphasis and the microphone magnified the sound so that it resembled a galloping horse on an old radio show. I clasped my hands behind my back to keep them from touching anything else, and plowed ahead.
“This is what happened with all the witnesses, Your Honor. They picked Keith Jernigan out of the lineup because he was the only one whose face they were familiar with, and they were familiar with it because his was the only photo Officer Bentley showed them.”
“Counselor, are you accusing this officer of framing your client?”
Deep breath time. Because the appellate judges weren’t there to make new findings of fact, and this question was designed to pull me into a discussion of fact instead of law. If I let them do that, they had the perfect out as far as reversing Keith’s conviction was concerned: the jury heard the facts, the jury decided the case, and they weren’t going to interfere with that.
“No, Your Honor,” I said. “I am not speculating as to how the photo ended up being shown to the witnesses. All I’m saying is that the showing tainted identification procedures and resulted in my client’s conviction for a crime he did not commit.”
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