Undue Influence

by Steve Martini

  With a little coaxing I finally get Sarah to help with the dishes. She’s in the dining room. We can see her over the pass-through, setting place mats and dishes, mine at one end, her own dish nearly on top of it, and another lonely plate, by itself, at the far end.

  Dana looks at me. ‘Now who do you suppose is sitting way down there?’

  ‘It’s a tough time for her,’ I say. Though I have to admit that at times Sarah is awful. We both laugh.

  ‘Hey, I understand. She’s a little doll.’

  The steaks are well done, we sit down, pour the wine, and Sarah makes a show of grace. It was always her treat when there was company. Ten minutes and Sarah is full. She eats like a bird, weighs fifty pounds, with spindly legs that now represent two-thirds of her height, like a baby gazelle. But she will have two snacks between now and bedtime.

  ‘Two more bites,’ I tell her.

  She argues a little and makes a face. When this doesn’t work, she fills her cheeks and excuses herself, disappearing into her bedroom to play.

  ‘You’re a lucky guy,’ says Dana.

  We talk about children. Dana lamenting that she’s missed her chance, the biologic clock.

  I scoff. Somehow I think the only clock that is keeping Dana from having kids is the one that beeps hourly with the appointments of her ambitious schedule. The idle speculation on a judicial appointment, the so-called A-list, has suddenly turned real. It has been whittled down to two candidates, a fifty-four-year-old white male and the woman now sitting across from me at my dinner table. According to today’s paper, their résumés are being shipped to a special evaluation panel for a thorough review of qualifications and background. Word is that Dana has already met the political litmus test. She has the backing of higher-ups in the Justice Department in Washington, and the two United States Senators from this state, both women with aggressive gender programs.

  On the couch we’re doing coffee. Sarah is now asleep. My invitation to Dana this evening is only partly social. She would have to be sedated not to sense this.

  ‘Something’s wrong,’ she says.

  ‘Nothing,’ I say.

  ‘What is it?’ She puts her coffee on the table and gives me her undivided attention.

  ‘I suppose you’re packing boxes in your office,’ I tell her. ‘Doing fittings for a black robe.’

  ‘Is that what’s bothering you?’

  ‘Not really bothering me. Just curious.’

  ‘Ah.’ She gives a knowing tilt to her head.

  Now I’m embarrassed. Dana must think I’m part of the testosterone troop, the guys who can’t deal with women in black.

  ‘You’re thinking it would change things,’ she says. ‘Between us, I mean.’

  ‘Do you?’

  ‘I asked you first,’ she says.

  I make a face, something thoughtfully Italian, stretching the cheeks a little and shrugging.

  ‘Actually I think it might be fun. I’ve always had this fetish.’

  ‘And what’s that?’

  ‘I’ve always wondered what it would be like to do it to a judge, from behind, up on the bench,’ I tell her.

  ‘Maybe I won’t allow you to approach,’ she says. Then a smile as she drags a single nail of one finger, like some predatory claw, across the worsted fabric of my thigh.

  I clear my throat, hoping that when I speak again my voice won’t be an octave higher. I’m using a napkin to keep the perspiration from being noticeable on my upper lip.

  ‘Actually I was going to ask you for a favor,’ I say.

  ‘Have I ever refused you anything?’ She gives me a look that could defrost my freezer. At this moment I think neither of us is certain whether we should laugh or just jump each other’s bones.

  ‘I’m not worried about your taking the bench,’ I tell her. ‘I’m worried about when it might happen.’

  ‘No, you’re not. You’re worried about when my office is going to take the wraps off of Jack’s sealed indictment, and his plea.’

  ‘Always the lawyer.’ I smile at her and sit back a little in the couch.

  ‘I think Jack Vega deserves whatever he gets,’ she says.

  ‘It’s no secret that I didn’t embrace the notion of letting him walk based on hardship. That decision was driven by higher authority.

  ‘And it is true we cut a deal with him. Of course, exactly when we release the news concerning that deal, well, that’s more of a housekeeping matter.’

  ‘Can I take it that I’m talking to the upstairs maid?’

  ‘Monsieur. Perhaps you will allow me to polish the knob of your gentleman’s walking stick.’ Dana is quick.

  If state prosecutors find out that Jack has copped to a couple of felonies, they will never put him on the stand. If I subpoena him into my case-in-chief, it won’t take Jack and his lawyers long to figure that I am grooming him for the lead role in Melanie’s murder. He would refuse to testify, take the Fifth, and leave the jury thinking that he was merely worried about more political carnage, additional uncharged crimes involving corruption.

  In trial, as in life, timing is everything.

  No doubt Cassidy, the prosecutor, is building a good part of her case around Jack the victim – Jack the psychically martyred widower. What could be better than a community leader bereft by the loss of his wife and the murder of his unborn child? With any luck, and if the gods of timing are on my side, there will be a mugging on the way to Jack’s canonization. But if I have my way, Vega will end up just a few miracles shy of sainthood. As I gaze into Dana’s gleaming eyes, I get a shiver of excitement that shutters all the way down to my sphincter, what for a defense lawyer is the equivalent of an intellectual orgasm – the prosecution is building its case around a convicted felon and they don’t know it.

  Chapter 17

  Judge Austin Woodruff is from an old-line GOP family in the valley, more conservative than God, but without the compassion. He is fifty-four, with a ruddy complexion and an aristocratic bearing made more patrician by his utter lack of humor. Woodruff is a stone-face that could slay a dozen comics.

  He has the look of authority, like some aging anchorman from the network days of yore – a flowing gray mane and eyebrows like spun silver. He is what the average citizen thinks of when he or she hears the word ‘judge.’

  He can be called fair in every way that the word is defined and spelled, from lack of bias to ability on the bench. Though at times I have wondered if he has ever seen a defendant he likes or a golf course he does not. He is stern, with the personality and warmth of a bronze bust, which has moved some cruel observers to lay on a few monikers. I have heard cursing references to the Ice Prince and Old Marblehead issuing forth from stalls in the men’s room, but the one I like best, and which seems to have stuck, is Chuckles.

  For better or worse, Austin Woodruff is our trial judge. At the moment he’s shuffling papers on the bench.

  Harry and I are in Department Twelve to argue motions intended to prevent the state from putting its own spin on the various faces of truth. Dana has joined us today, just behind the railing. She is here earlier for a luncheon date. Since Hawaii she has taken a particular interest in the case.

  This morning Morgan Cassidy sits at counsel table with Jimmy Lama, the cop from hell, and a young assistant DA, a kid getting his first glimpse down into the volcano of crime.

  Laurel is not present, as is the custom when a defendant is in custody. I have tried to impress upon her the significance of these motions. Lose on a critical piece of evidence here, and half of our case can be flushed before the judge impanels the first juror.

  The state’s case is one of circumstance. The prosecution will argue that Laurel is a woman consumed by jealousy, a former spouse shed like old clothes, who was embittered and furious with Melanie for stealing her husband. They will insist that this rage was stirred and rekindled when Jack made a grab for the kids. Among suspects, they will show that Laurel had the best motive, as well as ample opportunity to kill. The stat
e will argue that that is exactly what she did.

  To the idle observer all this might seem the barest of suspicions, and they would be right if it were not for a few items of evidence that put the cloak of credence on this theory. Cassidy has these, items of evidence fixed into her case like screws in a coffin lid.

  Two pieces of physical evidence presumably purporting to show that Laurel was at the scene the night of the murder could be viewed as highly incriminating; the small rug that Laurel was busy laundering when she was arrested in Reno and which Jack insists was in the master bath the night Melanie was shot, and a gold compact with Melanie’s initials found in Laurel’s purse after the arrest.

  The police also have a witness, Mrs. Miller who will testify that Laurel was seen in the neighborhood, near the Vega house, about the time of the murder.

  Woodruff’s voice has the tonal qualities of an aging baron of broadcast, like a bullfrog who swallowed honey, mellifluous and deep, as it is this morning when he asks us if we are ready to proceed.

  He doesn’t wait for a reply, but immediately launches a series of questions, like torpedoes under the waterline of our first motion.

  ‘What is this about the rug?’ he says. ‘You want to keep it out? On what grounds?’

  ‘No, your honor.’ I am waving him off. ‘That’s not our motion.’ Something more defensible, I tell him.

  ‘Well, what is it?’

  Not an auspicious start. Woodruff hasn’t read any of the moving papers, our written agreement.

  ‘The rug can come in,’ I tell him. ‘Though I would alert the court that there is a factual dispute as to its ownership and where it came from.’

  ‘That’s a question for the jury,’ he says. ‘Not for this court. Not for a motion.’

  ‘I agree.’

  Our motion is more subtle, not exactly home turf for Chuckles. So I lead him through the argument. Jack’s testimony that the rug came from the murder scene is damaging enough, though Laurel will insist otherwise. I can hope for some neutral pitch on this, a jury that is at least in doubt as to who they will believe.

  What I want to avoid are the unstated inferences by Cassidy that might allude to Laurel destroying evidence when she washed the rug or dipped her hands in solvent.

  I am a believer in the adage that facts seldom settle an argument. It is the implications drawn from them that most often win the day or cause the damage.

  This is the case in the state’s lab report given to us in discovery. It refers to gunpowder-residue tests which were ‘inconclusive because of chemicals into which the defendant intentionally dipped her hands.’

  I make my pitch to Woodruff, and we go at it tooth and tong, Cassidy and I. She is insisting that the rug speaks for itself. A talking rug is one thing. What I’m afraid of is that left to her own devices in trial, Cassidy may try to jump on this thing and fly.

  ‘What other reason could the defendant have for taking it to Reno and washing it,’ she says, ‘but to remove blood or other evidence?’

  ‘That’s what I’m afraid of,’ I tell the judge. ‘That kind of speculation.’

  ‘It’s a natural conclusion to be drawn from the evidence,’ says Cassidy.

  ‘Did the state find any blood?’ I say. ‘Or any other evidence?’

  ‘How could they? Your client washed it off.’

  ‘That’s speculation,’ I tell her.

  Woodruff is becoming a potted plant. He finally notices.

  ‘Address your arguments to me,’ he says.

  ‘Your honor. The rug is stolen property,’ she says. Morgan Cassidy has a positive gift for torturing facts. In her hands evidence can take on more twists and embellishments than wrought iron.

  ‘According to whom?’ I ask.

  ‘According to the victim’s husband.’

  ‘Stop. Stop. One at a time,’ says Woodruff. ‘First you.’

  He points to Cassidy. Morgan doing what she does best, seizing the initiative.

  She argues that the rug is stolen property, that the state is entitled to a reasonable inference, that mere possession of this item by the defendant is evidence of her guilt.

  I bellow like some wounded bull before she can finish.

  ‘There’s no evidence that the rug was stolen.’

  Woodruff is scratching his head, a blizzard of dandruff on the bench blotter. They don’t pay enough for these decisions, he’s thinking.

  I lead him to the affidavit signed by Laurel under penalty of perjury that the rug was hers, that it was never at the victim’s residence.

  ‘So what?’ says Cassidy. ‘We have a counteraffidavit signed by Mr. Vega to the contrary. It clearly puts the rug in the victim’s house at the time of the murder.’

  ‘Fine. There’s a dispute of fact,’ I say. ‘There is nothing approaching established evidence that the rug was stolen. That’s for the jury to decide.’

  ‘And if they decide that it is stolen, are we entitled to an instruction?’ says Cassidy. She’s talking about a jury instruction so that they can infer guilt from the mere possession of the rug.

  ‘That’s an argument for another day. We’re not here to talk jury instructions. Or am I wrong?’

  ‘Good point,’ says Woodruff. He’s finally on the same page with us.

  Cassidy is making an effort to frame the issues to her own liking. Enough sand thrown up and maybe I’ll lose my place on the sheet, start singing out of tune. We’ve done a complete circle and we’re back to square one. Woodruff points to me.

  ‘Your turn.’

  ‘The problem is not what the jury might be allowed to deduce from fairly presented evidence,’ I tell him, ‘but what the prosecution might be permitted to infer when talking about that evidence – the rug and the solvents on her hands,’ I say.

  Like a light has come on behind Woodruffs eyes. He finally gets it.

  ‘They wouldn’t do that,’ he says.

  I read to him from the lab report, the supposition that Laurel intentionally frustrated the powder-residue tests by immersing her hands in the chemicals.

  ‘Oh,’ he says.

  Cassidy, sensing the hammer about to fall, starts to argue.

  ‘Enough,’ says Woodruff. He looks at her. ‘Did you find any powder residue on her hands?’

  ‘How could we, your honor?’

  ‘Anything on the carpet?’

  ‘It was washed clean.’

  ‘And you want to infer that this involves intentional destruction of evidence?’

  ‘We should be given the latitude,’ says Cassidy. ‘What’s so speculative?’ she says. ‘The defendant fled the scene, took the carpet, washed it to clean away any evidence. What could be more clear?’

  I don’t think Woodruff is going to buy this, but he is listening – a dangerous sign.

  ‘Is that a reasonable inference?’ I ask. ‘Think about it, your honor, if the state’s theory is correct. Let’s assume you commit a murder. So you grab a soiled rug from the scene, splotched with blood, and drive a hundred and thirty miles to another city to wash it. If it’s evidence of a crime, why not leave it at the scene? If it’s true what the state says, that the carpet was in the house, then its discovery there after the crime would in no way implicate or incriminate you, would it? Unless the killer had a fetish for cleanliness, why take it?’ I say.

  ‘Maybe she panicked,’ says Cassidy.

  ‘Fine. Then why not dispose of it somewhere on the road, after panic had subsided?’

  For this Cassidy has no response.

  ‘If any inference is to be drawn from possession of the rug, from its washing in a public laundromat in full view of other patrons, that inference should not be one of guilt, but innocence,’ I say. ‘People with guilty knowledge don’t act in this way,’ I tell them.

  Dead silence. Woodruff looking at me.

  It is hard to argue with the stupidity of this act. If Laurel murdered Melanie, the antics with the scrap of carpet defy all logic.

  ‘Seems pretty clear,’ say
s Woodruff. He looks at Cassidy. ‘You can introduce the rug into evidence. But I don’t want to hear any inference about nonexistent bloodstains or powder residue on the defendant’s hands that couldn’t be found,’ he says.

  ‘Your honor–’

  ‘Is that clear?’

  ‘Yes,’ she says.

  ‘Next.’ Woodruff looks at me.

  ‘What about the statement in the lab report?’ I ask him. Why settle for a half loaf if I can get it buttered? ‘We would move to have it stricken,’ I say.

  An imperious look from the judge.

  ‘Maybe you can soften the language.’ He looks at Cassidy.

  ‘She put her hands in the solvent. How many ways are there to say it?’ she says.

  ‘Take out the word “intentionally” and we can live with it,’ I say.

  ‘There. How about that?’ says Woodruff.

  Cassidy, shaking her head. ‘Fine,’ she says.

  ‘Why couldn’t you two have stipulated the point before coming here?’ The judge looks at me.

  He has never tried the word ‘compromise’ on Cassidy.

  ‘Now… what’s next?’

  Woodruff is poring over the papers.

  ‘Looks like a witness-identification problem,’ he says. ‘What do we have, a bad lineup?’ He looks down his nose at Cassidy. She’s not winning any points here: what happens when you circle the wagons and make an issue on every point.

  ‘The lineup was tainted,’ I say.

  ‘How?’

  ‘We’ve subpoenaed witnesses,’ I tell him.

  ‘Is that necessary?’ says Woodruff.

  I think maybe he’s got an early starting time on the links.

  ‘I think we could handle it in oral argument,’ says Cassidy.

  She would.

  ‘Is the prosecution willing to stipulate?’ I ask.

  ‘To what?’ says Cassidy.

  ‘To exclusion of the identification evidence.’ I’m talking about the witness who claims she saw Laurel at Vega’s house the night of the murder.

  ‘Not on your life,’ she says.

  ‘Then I’d like to call my witnesses.’

  A lot of grousing from the judge. I do some groveling, assurances that I will move it along.