The Lawyer's Lawyer

by James Sheehan

  Chapter Fifty-Six

  Robert Merton was already in the courtroom when Tom and Jack arrived. He greeted them both amiably as if they were business rivals who had just arrived for a negotiation. Anyone looking at the tall, handsome defendant and his even taller elder statesman lawyer would have thought the State had no chance based on appearances alone. Merton was a short, thick, unattractive man with olive skin and black, greasy hair. Both Tom and Jack knew, however, that appearances didn’t mean anything in a courtroom battle. Merton’s reputation preceded him. He was an experienced, efficient, tough prosecutor who had aspirations for higher office. This was the beginning of a war and they knew it.

  As the nine o’clock hour approached, the reporters and spectators filed in. By ten minutes to nine when the bailiffs closed the doors, the courtroom was more than half full. Jack knew that would change once the trial started.

  Judge Holbrook walked in at nine and everybody stood.

  “You may be seated,” he said, almost shouting to be heard over the fans and the creaking benches. The courtroom was air conditioned but with window units. The windows were old and they leaked and the ceiling was thirty feet high, so there was a lot of space to cover and the antiquated ceiling fans that hung down from long poles to about fifteen feet from the floor had to stay on, swaying and creaking. Still, even with the courtroom only half full, it was warm. It didn’t take long for people to start sweating.

  “We have a motion for change of venue set for hearing today and then we have some housekeeping issues if we are going to proceed in this venue,” the judge said. “Mr. Wylie, I have read your motion. Is there anything you would like to add?”

  Tom stood up. “Yes, Your Honor. The newspaper articles we have attached to our motion show clearly and consistently that my client cannot receive a fair trial in Apache County. We have not attached any recent editorials or letters to the editor because, surprisingly, since Mr. Tobin was arrested for the murder of Thomas Felton, there haven’t been any. Nothing has changed, however, and there is no reason to conclude that public sentiment has changed.”

  “Do you agree with that, Mr. Merton?”

  “No, Your Honor.”

  “Do you have evidence to disprove it?”

  “Yes, Your Honor. May I approach?”

  “Come on.”

  Merton handed some documents to the judge and immediately gave a copy to Tom. “Judge, this is our response to the defendant’s motion. I’d like to summarize it if I could.”

  “Proceed, Counselor.” The judge seemed irritated with Merton’s formality.

  “Your Honor, the State doesn’t take issue with the defendant’s assertions in its motion. Those assertions simply do not tell the entire story and they don’t accurately reflect public sentiment at present.

  “Obviously, public sentiment was against Mr. Tobin’s efforts to free a man who was convicted of terrorizing this town and killing its citizens ten years ago. I don’t think the record reflects that those sentiments were against Mr. Tobin personally at that time. Now, after Kathleen Jeffries was killed, emotions were very high and they were personal in the immediate aftermath of that tragedy. There is no denying that. However, this public emotional sentiment is not static, it has been continuously changing.

  “I would point out to the court—and this evidence is contained in the State’s response—that there were letters to the editor attacking the State and the undersigned personally for setting Mr. Felton free, so the animosity was on both sides. Now, however, things have changed again. Jack Tobin killed a man who everybody in this town believes was a serial killer. People are happy about that. There are no recent editorials or letters to the editor against Tobin because the animosity is no longer there.

  “Just two days ago, the Oakville Sun published an editorial questioning whether the State should even be spending the money to prosecute Jack Tobin. I submit to you, Your Honor, that the evidence shows that the worm has turned in Mr. Tobin’s favor. Maybe the State should be asking for a change of venue.”

  “Well, do you want one?” the judge asked.

  “No, sir. We’ll take our chances with the good citizens of this county.”

  “The guy makes me want to barf,” Jack whispered in Tom’s ear.

  “He’s good, though,” Tom said. “He tends toward the dramatic but he’s making his point.”

  “Mr. Wylie,” the judge asked. “Do you have a response?”

  “I would just comment that it seems a little strange, Your Honor, that since Felton was killed, there have been no editorials about the killing and my client—none—until two days before this hearing when the Oakville Sun suddenly woke up and questioned the wisdom of my client being tried at all. This is a hometown setup all the way.”

  “Mr. Wylie,” the judge said, “you can’t base your reasons for a change of venue on the Oakville Sun and criticize the paper at the same time. You’ve got to take the good with the bad.”

  “I disagree, Your Honor. What’s happening here is pretty clear.”

  “Maybe to you, Counselor,” the judge replied, “but not to me. Your motion is denied. I will, however, agree to sequester the jury because once this trial starts there is going to be all sorts of stuff on the airwaves and in print. Now we need to discuss logistics.”

  It was the ruling both Tom and Jack had expected, but one never gets used to injustice. Tom needed a minute to collect himself, so he sat down and let Merton take the lead.

  “Your Honor, I have my list of witnesses and evidence, which I am giving to the defendant’s counsel this morning in open court. I believe these documents satisfy the state’s obligation under Rule 3.220 of the Criminal Rules of Procedure. Having said that, Your Honor, we are ready to proceed to trial at your earliest convenience. This is a case that needs to be disposed of as soon as possible, respecting the rights of all parties, of course.”

  “Have there been any plea bargain discussions?” the judge asked.

  “No, sir,” Merton replied, “nor will there be.”

  That got the judge’s attention. He looked at Merton as if to say, Are you sure you want to do this? You can offer this guy a year, maybe two, save a lot of face and guarantee your reelection.

  Jack leaned over and whispered in Tom’s ear, “Cocky bastard, isn’t he?”

  “He sure is but we wouldn’t have it any other way, would we?”

  “Nope. Makes our decision a lot easier.”

  “Changed your mind on Sam yet?” Tom asked.

  “Not yet.”

  “Mr. Wylie, how do you feel about a trial date?” the judge asked.

  “Your Honor, I obviously have not looked at the State’s disclosures yet. My client is not opposed to setting an early trial date, say three weeks from today, with the caveat that if we decide we need to do further discovery after reading the State’s disclosures, we can get a new trial date.”

  “What do you think, Mr. Merton?”

  “That’s fine with me, Your Honor, so long as we set a deadline as to when Mr. Wylie will make his decision.”

  “That sounds fair. How much time do you think you need to make your decision, Mr. Wylie?”

  “Ten days, Your Honor.”

  “How about June sixth?”

  “That’s fine, Your Honor,” Tom said.

  “That’s agreeable to the State, Your Honor,” Merton said.

  The reporters in the front rows were feverishly writing down the dates in their notebooks.

  “Okay, if no request is made for a continuance on or before June sixth, we will have a pre-trial on June ninth and the trial will be set for Monday, June sixteenth. Mr. Tobin, if no continuance is granted, you will turn yourself over to the custody of the Oakville Police Department on the morning of June sixteenth at seven a.m. Is that understood?”

  Jack stood to address the judge. “Yes, Your Honor.”

  “Okay, gentlemen, if there is nothing further, this hearing is adjourned.” The judge stood up and walked out of the courtroom
as the press moved in unison toward the lawyers and Jack.

  “Let’s get the hell out of here,” Tom said.

  Chapter Fifty-Seven

  For the next ten days Tom and Jack pored over the State’s disclosures and its case, taking everything apart piece by piece, making sure they weren’t missing anything before finally agreeing to the early trial date.

  They met every morning in Jack’s condo. Tom would bring the bagels and Jack would make the coffee. Henry was there for breakfast and he’d usually hang around for a while to see if they needed him to do anything. If not, he’d leave them alone.

  “Let’s go over the obvious first,” Jack said after the seventh day when they had been through just about everything. “They’re going to use the two cops to establish that I said I was going to kill Felton. We can deal with them. Then they put Jeffries on and he goes through how he found the body, that there was no gun, and that Danni and I both told him that I shot Felton. Jeffries then talks about motive—he brings in the claims bill and the contingency fee agreement and makes the argument that I killed Felton because he screwed up my payday. Merton has got to ask him then why I didn’t plant the gun if I planned this all along, and that’s when he comes up with his theory that I was going to plant the gun but he, Jeffries, thwarted that plan by arriving on the scene so quickly. We don’t know they’re going to do that for sure but there’s no other way they can handle that problem that I can think of.”

  “That’s the basic case. Now let’s get into the nitty-gritty,” Tom said.

  The two men had developed a style between them of talking things out and taking them apart in brainstorming sessions. Jack found his older counsel to be sharp as a tack and totally flexible in going where the evidence took them. He was also brutally honest at times and Jack knew and appreciated that that was an absolute necessity.

  “Let’s talk about those documents for a minute,” Tom said. “How are they going to authenticate them? They can’t use you.”

  “They’ve listed a handwriting specialist. The contingency fee agreement is an original. If they can establish my signature on the agreement, I think it’s in. Once they get the agreement in evidence, I think the judge will have to let the claims bill in even though it’s a copy.”

  “Do they have enough original examples of your signature for the specialist to work with? They haven’t yet asked for any samples,” Tom asked.

  “I sent a few letters to the police department a few years back,” Jack said. “They can use those. And I filed some pleadings with Judge Holbrook, so they can look at the court file for those.”

  “Okay, so they have enough examples to establish your signature. They’re going to get the documents in. Why don’t we agree to their admissibility,” Tom suggested.

  “Why don’t we wait,” Jack countered.

  “I’m not sure I understand.”

  “Wait until trial. When Merton calls his handwriting expert, you stand up in front of the jury and tell the judge in open court that you think Mr. Merton is calling this witness to establish the authenticity of certain documents. Then tell the judge there’s no need for that—”

  Tom cut him off excitedly. “We stipulate them into evidence right in front of the jury so the jurors know we’re not hiding anything. It’s brilliant.”

  “Thank you,” Jack said. “I told you I was brilliant, you just weren’t listening.”

  Tom smiled. “I’m an old man, I don’t hear everything.”

  “You hear plenty. What were you going to tell me about the coroner’s report?”

  “She lists the cause of death as a gunshot wound but the back of his head was smashed in.”

  “I know. He fell backward, and it looks like he hit his head when he landed. Let’s look at the pictures again.”

  Tom pulled out the pictures Merton had provided in the package he produced in open court. Tom turned to the pictures of Felton’s head.

  “Look at that. He’d have to hit the ground awfully hard to do that kind of damage,” Tom said. “Maybe somebody smashed his head in because he wasn’t dead when he arrived.”

  “Don’t go there, Tom. Look at the rock under Felton’s head. It’s certainly big enough to cause that kind of damage, and there’s blood all over it. Besides, the coroner didn’t say anything about somebody smashing his head multiple times.”

  “The coroner probably didn’t look that closely because of the gunshot wound. Maybe you’re right, Jack. Maybe we should leave it alone, but this is your life we’re talking about. Why don’t we delay the trial and hire our own pathologist to look at this.”

  “Look, Tom, you’ve read enough of these reports in your day. The bullet nicked the aorta. Now it wasn’t a big nick but that just means that it might have taken him twenty minutes to die rather than ten. There’s no doubt that my bullet killed the man.”

  “You can get an expert to say anything.”

  “I’ve seen it a thousand times. You pay them, they’ll say anything. We’re not going that route.”

  “I didn’t think so. I’m just raising possibilities.”

  “I know, Tom, and I appreciate that.”

  “You should at least let me explore the possibility that the head wound may have expedited Felton’s demise.”

  “For what reason?” Jack asked. “To suggest to the jury the possibility that Jeffries bashed Felton’s head in? I assure you that’s not going to help our case. Besides, I’m not going to do it.”

  “Well, I think that’s what happened,” Tom said. “I think Jeffries took the gun and I think he bashed Felton’s head in.”

  “You may be right, but those theories are not going to leave this room unless we have concrete evidence to support them.”

  “I understand. That was our deal. Let’s move on. Do you think they’re going to call that girlfriend of yours?”

  “Danni? She’s not my girlfriend.”

  “I know, she’s just a friend. Do you think they’ll call her?”

  “Of course. She can buttress Jeffries’s testimony that I said I shot Felton.”

  “Any other reason?”

  “None that I can think of.”

  “Well, think hard because she’s an unknown for me.”

  “I can’t think of any other reason they’d call her.”

  “You’re sure, Jack?”

  “Sure as I can be.”

  “Okay, so far we have the cops, Jeffries, the coroner, your friend Danni—anybody else we can think of?”

  “I was thinking about this—how are they going to establish it was me that called Felton?”

  “I don’t know. I expected them to call somebody from the telephone company but nobody is listed on their witness list.”

  “Dammit! I forgot,” Jack said. “They can get that from Danni. I called her a few times.”

  “Let me ask you this one more time—is there anything else they can get from Danni?”

  “No. I know I forgot about the telephone number but why do you keep pressing that issue, Tom?”

  “Because she’s your blind spot, Jack. You think only a certain way about her and you know as well as I do that in a trial for your life you can’t have any blind spots.”

  “Well, I’m pretty sure that’s everything.”

  “Keep thinking. We can’t afford any surprises.”

  “I will, Tom, but as of now I’ve got nothing.”

  “So what do you think? Are we ready to go to trial?”

  “I’m ready,” Jack said. “If you agree, I don’t want to wait.”

  “I agree,” Tom said. “Let’s get it done.”

  Chapter Fifty-Eight

  Monday, June sixteenth, was a cloudy gray morning. Magnificent storm clouds were looming in the distance. Flashes of lightning could be seen and vague rumbles of thunder could be heard—omens of trouble to come.

  “I love days like this,” Jack told Henry. They were standing outside the condo looking toward the horizon. “Cloudy skies are so complicated, as if secre
ts are hidden within them.”

  Henry slid into the driver’s side of his vehicle. Jack settled next to him.

  “Let’s hope there’s no secrets hidden in that courtroom today,” Henry said as they pulled out of the driveway.

  “It’s just jury selection.”

  “Jurors don’t have secret agendas?” Henry asked.

  “You’ve got a point, Henry. Let’s hope there are no hidden secrets today.”

  They picked up Ron in front of The Swamp. He had his hands full. He handed a bag to Jack, got in the back, and started handing out cups of coffee.

  “Henry, you’re black, no sugar. Right?”

  “Are you insulting me? Of course I’m black,” Henry said. “But I’m sweet.”

  It wasn’t all that funny but it was good enough. This was a serious day and they all needed a little levity.

  “Could have fooled me,” Ron said as he handed Jack his coffee. “I thought you were Jamaican. Jack, there’s bagels in your bag—one for each of us. I already toasted them and loaded them with cream cheese. Who knows if they’re going to give you breakfast.”

  “Thanks, Ronnie. I appreciate that.”

  Ten minutes later, Henry pulled the car up in front of the jail.

  “It’s six thirty, Jack. You’re early. Wanna just hang out in the parking lot for a while?”

  “No, let’s get it over with.”

  The three men exited the car. Thunder could still be heard in the distance.

  “It’s moving this way,” Jack said.

  “It’s going to kill my business,” Ron added, which made both Henry and Jack laugh out loud.

  “What?” Ron asked. “That’s funny?”

  “You’re funny,” Jack said as he gave his friend a hug. “I’ll see you in a few days.”

  “I’m counting on it,” Ron said.

  Then Jack turned to Henry.

  “I was thinking we haven’t been fishing much lately.”

  “Yeah,” Henry said. “I miss our days out on the lake waiting for the fish to jump in the boat.”