by A. Turk
“It’s been fifteen years since my last murder trial, and the Nichols prosecution was more than thirty years ago, as I reminded you. I hate to admit it, but I’ve slowed down since then.”
“That’s why I want Ben to participate. You bring the brains, and he brings the stamina.”
Davis had been silent until now. “I’ve got no criminal law experience, except holding his briefcase through some white-collar matters. A murder trial is a big deal. You need seasoned lawyers prosecuting and defending. I’m not right for that.”
“I know, but you’re a trial lawyer. Judges and juries like and respect you. More important, they believe you. If you say Charlie Garcia killed my sister, then there will be a conviction.”
Davis turned to Morty, “When was the last time the state appointed a special prosecutor?”
Morty thought a moment. “It’s most commonly evoked when a politician is charged with corruption. The courts and the state want someone independent to prosecute the case to avoid even the appearance of impropriety or party politics.”
The senator came prepared. “The technical name for a special prosecutor is ‘an attorney pro tempore.’ Both the Tennessee Constitution and the Tennessee legislature have provided for such a special prosecutor.”
Sammie got up, went to the bookcase, and pulled the first volume of the Tennessee Code Annotated, the T.C.A., all of the laws passed by the Tennessee legislature, starting with the Tennessee Constitution. She began reading out loud, “Article VI, Section 5, provides that an Attorney General for the State shall be appointed by the Judges of the State Supreme Court and shall hold this office for a term of eight years. In all cases where the Attorney General for any district or circuit fails or refuses to attend and prosecute according to the law, then the Court shall have the power to appoint an Attorney pro tempore.”
Sammie went on to read that the order appointing the attorney pro tempore was not required to state a reason. The logic was that for whatever reason the state was not in a position to prosecute, the Tennessee Supreme Court had the power to find the right person for the job.
Sammie turned to Morty and Davis with half a smile on her face. She was enjoying watching the older man squirm. “What stronger authority do you need than the Tennessee Constitution?”
Daniels chimed in, “There’s also a Tennessee statute, T.C.A. 8-7-106, passed in 1858, which follows the constitutional provision.”
Sammie pulled that volume from the shelf and read it to herself before commenting, “The senator’s right. There’s ample authority for the Supreme Court to appoint you.”
Davis didn’t like being pushed, particularly outside his comfort zone. He said, “You’ve forgotten about one important condition that can’t be satisfied. The district attorney general of Hewes County wants to prosecute this case. In fact, at the last motion hearing he handled it himself and refused to delegate the motion to an assistant DA. If his office wants to prosecute, there can’t be an attorney pro tempore.”
The senator sighed and then smiled. “I’ve spoken to the governor. He’s the attorney general’s boss, who’s the boss of the district attorney of Hewes County. I think there just may be an opening to try this case.”
Davis looked at Morty and Sammie and then turned to her, “How did you convince the governor to push so hard?”
“I made him an offer he couldn’t refuse.”
Everyone in the room knew the line came from the Godfather, but no one other than Daniels understood what she meant.
Morty let the drama linger and then responded, “I guess we’ve just left private practice to go work for the state of Tennessee.”
Davis wouldn’t argue with the old man. He’d done so much for him personally and professionally. “I hear the pay stinks, but the fringe benefits are worse.”
It was a done deal. The senator shook everyone’s hand and silently left the room.
CHAPTER FORTY-THREE
AN AWKWARD HANDOFF
Thursday, August 3, 2000
Morty, Sammie, and Davis entered the Hewes County DA’s office, and all eyes fell upon them. The entire staff knew they were there to replace them. General Andrew Palmer felt compelled to warn his office that the Davis team would be taking over the Garcia prosecution. General Palmer did so with grace and class. He insisted that everyone give Mr. Steine and Mr. Davis their full cooperation and support. He told them, “We’re all on the same side. We want a conviction.”
Palmer led the Davis team into an office with two desks and a folding table. “This will be your office away from home. Anything you need, ask Jill Hoskins. She’ll be your contact with this office because she has the greatest familiarity with the Garcia case. Jill will be valuable, but she’s upset that you’ve stepped in. I suggest you keep that in mind and play nice. She’s a good prosecutor, with great potential, but she’s young and she’s been hurt. If you have any problems that Jill can’t handle or if you just want to talk and bounce an idea off me, my doors always open.”
Morty grabbed General Palmer by both arms and squeezed tightly. “General, thank you for being so gracious.”
“From what I understand none of us had much of a choice. I almost forgot. All of you raise your right hands.”
Morty, Sammie, and Davis did as General Palmer instructed and repeated the oath taken by assistant district attorneys.
“All three of you are assistant DAs. Starting salary is $4,000 a month. Welcome aboard.”
Morty laughed. “At least it’s honest work.”
The three sat down at the desk and opened the first file. It contained the three search warrants and a list of all the items seized from Robyn Eden’s apartment.
The next file pulled was the indictment. Dr. Charles Juan Batista Garcia had been charged with two counts, second-degree murder and reckless homicide.
Davis asked Sammie, a recent law school graduate who also recently studied for the Bar, to identify what they’d have to prove to convict on each count.
Rather than wing it, Sammie pulled volume 7 of the Tennessee Code Annotated from her briefcase. “There are two subsections to second-degree murder. The first part is ‘a knowing killing of another.’ The other definition is ‘a killing of another which results from the unlawful distribution of a Schedule I or Schedule II drug when such drug is the proximate cause of the death of the user.’ It’s a Class A felony.”
Morty took over. “We can’t prove the first definition, but hopefully we can prove the second. We need to determine if Garcia ‘unlawfully distributed’ the drug to Eden. Sammie, confirm what Robyn took was a Schedule I or II drug.” He pointed out, “I’ll bet there will be conflicting testimony as to the cause of death. Harrelson is smart. He’ll find an expert who will testify that the proximate cause of death was something other than the drugs.”
Davis said, “So we don’t have to prove that Garcia killed her with deliberate purpose as long as the drugs are found to be the cause of death. What are the minimum and maximum sentences for second degree?”
Sammie answered, “Minimum, ten years. Maximum, life.”
Morty was getting into his groove. “Tell me about reckless homicide.”
Again Sammie knew the answer. “It’s when a killing is caused by reckless conduct.”
Morty connected the dots. “So Garcia can be convicted if he should have done something and also if his action was reckless. What class felony is it?”
“Class E, punishable by at least a year, but not more than five.”
Morty looked serious and softly said, “I’m surprised. There are several crimes in between a Class A and Class E felony, such as manslaughter, that should have been charged. It’s too late now. The die has been cast.”
A young woman knocked on the door and, when acknowledged, walked in. She was petite and brunette, no more than twenty-six or seven.
“I’m Jill Hoskins, and I’m here to help. What have you looked at so far?”
“The indictment and the search warrants.”
“Well, we just got two motions from Pierce. We were expecting the first but not the second.”
Davis took the bait. “What’s the first?”
“Motion to suppress the evidence discovered from the three search warrants.”
“And the second?”
“A motion to recuse Judge Tanner.”
Hoskins made copies for them, and they sat there and read.
Sammie spoke first, “I can’t comment on the motion to suppress, but the motion to recuse is a suicide mission.”
“I get it,” Morty said out loud. “Pierce realizes that the jury, not the judge, will decide her client’s guilt or innocence. Tanner is a hard-ass and will be angered by this motion. Pierce will push the judge, hoping to push him into reversible error, which would allow her client to remain on bond, out of jail, until the last appeal is exhausted. How much is Garcia’s bond?”
Hoskins was the only one who knew the answer. “It’s $500,000. His father put up cash.”
Surprised, Morty looked at Hoskins and said, “That’s much too low. We need a much higher bond for this rich kid. At least $2 million! Sammie and Jill, you work on that motion to increase bond.”
“The judge won’t increase bond,” Hoskins said. “Did you know that Garcia was on probation under pretrial diversion? A New York lawyer named Harrelson negotiated the deal for Garcia in Kentucky. It was before Eden’s death. They went to the Derby, and Eden od’d. The Jefferson County DA agreed to an eighteen-month probation rather than go to trial. Garcia had already surrendered his Tennessee license, so Tennessee didn’t care.”
Davis smiled and said, “We’d better check in with Dr. Garcia’s Kentucky probation officer.”
Morty commented, “We’ve got our work cut out for us. Pierce is one hell of a lawyer, and she’s sneaky to boot.”
CHAPTER FORTY-FOUR
A CHIP PLAYED
Wednesday, September 27, 2000
Harrelson felt better now that Alan Baxter was on the payroll. Through careful planning, Harrelson and Pierce determined Baxter’s contribution to the defense. The time had come to communicate to Baxter his role and only his limited role.
Pierce made it clear to Harrelson that Judge Tanner was above reproach. He’d served ten years and didn’t need or want money. He was smart, liked by the Bar, and would run with little opposition in six years. He’d be fair, but Harrelson wasn’t interested in fair. He didn’t want to leave anything to chance.
Harrelson didn’t trust juries. They certainly weren’t his peers. He’d discussed with Pierce the possibility of getting to a juror. That was dangerous; there were long sentences for a lawyer who got caught. It would be the ultimate hedge of one’s bet, but if it backfired, someone would go to jail, probably Charlie, but possibly Harrelson or Pierce. Charlie Garcia wasn’t worth that risk. Pierce was an excellent lawyer, smart and cunning, but she had to be cautious, having already had her license suspended for three months.
Through the investigator for Harrelson’s firm, prior to her hire, a complete background check on Amy Pierce was provided. She was a single mother, with a son, Carter, age twelve. She graduated number two from the University of Virginia Law School, married number one, and both worked several years at big New York law firms. The marriage dissolved, she came home, and her ex-husband, Dan Smith, went to rehab, which didn’t help. He was an addict with no self-control. As far as the investigator could tell, Dan had little or no contact with Pierce and their son. After five years at Dunn, Moore & Thomas she made partner.
The report described the Plainview cases and the disciplinary charges brought against Pierce and another lawyer named McCoy. Reporting another attorney to the IRS, solely for revenge, wasn’t illegal, but Pierce breached a confidential clause and her conduct was in such bad faith, it was unethical. The board basically slapped her on the wrist with a three-month suspension.
The client, an issuance company, was impressed with her commitment, so when she left her law firm, DMT, two years later to form her own firm, she took the anchor client with her. She now had two former DMT associates working for her. She was tough, and Harrelson liked and respected her.
She’d been caught once, but Harrelson’s big question was, how many times had she actually broken the rules? More important, how many times did she get away with breaking the rules? The report didn’t say. Was she smart or just lucky? The consensus of Señor Garcia and Harrelson was that Pierce was dishonest and could be trusted by them in executing their plan. All co-conspirators were completely on board. Baxter was part of the plan but didn’t know the plan.
Harrelson dialed Baxter’s number. “Mr. Baxter, David Harrelson, how’ve you been, sir?”
“About to retire the end of next month. I’ll let you know how I’m doing after that. It will be weird not to come to the office every day.”
Harrelson already knew about Baxter’s retirement. Charlie received notice from the state that he’d be reporting to a new probation officer beginning November 1st.
“Will money be a problem?”
“I’ve saved and I’ll have my pension, but money will be a problem. I’m just a public servant.”
“We may be able to help each other. Dr. Garcia could use your help.”
“How so?”
“We need help finding a witness. I need a drug dealer to testify at Charlie’s trial that he sold Robyn Eden oxycodone, the week of July 2nd. These sales took place in or around Hewes County, so the witness must have been able to be in Hewes County whatever date he claims he sold the drugs.”
“That would be quite an admission. Why would somebody agree he sold drugs to Robyn Eden that caused her death? He’d be inviting a murder charge, wouldn’t he?”
Harrelson had anticipated that problem. He knew what he needed and knew it wouldn’t be easy. “People will do many things for the right amount of money. You’ll need to find someone who’s already in trouble facing serious jail time or worse and who desperately needs the money.”
“He’d have to be pretty desperate!”
“Think outside the box, and it doesn’t have to be a he. A she with kids, going to jail for a long time, is a real possibility.” Harrelson made a good point.
“Let’s stop bullshitting. Are you taping this conversation?”
“Why would I? I have a law license to protect. Why, are you?”
“That’s the million-dollar question. It would be pretty stupid if you ask me. This conversation violates several state and federal laws. Dr. Charles Garcia won’t be the only one going to prison if this all blows up. I did a little research. They’d probably put you and me in prison for a dozen years. Garcia has nothing to lose, but you and I do. I could kiss my pension good-bye, and your law license could be used as toilet paper. I’m not doing this for $10,000.
“Before I make one phone call or lift a finger, I’ll need fake paperwork to get me out of the country in case our little scheme falls apart. After we’ve worked out the details, but before I take any action, I want $250,000 deposited in an offshore account of my choosing, where the banking laws protect the identity of their customers. This payment is my protection if everything just goes to shit, and despite my efforts, Charlie is convicted anyway. If that happens, our deal ends, I move on to Bora Bora, and Charlie spends the next twenty-five years to life in Brushy Mountain Prison in West Tennessee.
“Now, if there’s a not guilty verdict or even if Charlie gets off on appeal, when he’s a free man, I get another $250,000 for my help toward his victory. Charlie’s happy, his parents are happy, and I’m happy.
“But, Mr. Harrelson, let me warn you. If you do try to double-cross me, I’ll bring the house of cards down, and you’ll go to jail and lose your law license. That’s a promise.”
Harrelson knew that Baxter was susceptible and basically dishonest, but how far the paper pusher thought through his options surprised him. Harrelson took his pocket watch out of his vest and started rubbing it between his thumb and middle finger. He preferred Baxter’s
greed as long as the man did his part and remained silent.
Taking charge, Harrelson said, “We need to create reasonable doubt. A jury shouldn’t be able to convict if reasonable doubt exists. If the jury concludes that the drugs came from a source other than Charlie, the jury shouldn’t be able to convict him of murder in the second degree. The jury for murder must find that he was the distributor or the source that proximately caused the victim’s death.”
Baxter immediately seized on the direction of Harrelson’s defense strategy. “I’ll need as much information about Robyn Eden as possible. I will need to know her drug background and, most important, her drug of choice. We need to determine Robyn’s calendar the week of her death. It’s critical that we discover when she may have been in the company of other people. I need to feed the right information to the drug dealer. Our witness isn’t going to be the brightest person in the world, but he must be under my absolute control. I’ve got a few good candidates. They’re more than willing to be a false witness; they’ve broken most of the Ten Commandments …”
Harrelson interrupted, “We’ll have to figure out how to present this testimony. I’m not a trial lawyer, and I’m not licensed in Tennessee. We’re going to have to find the witness, and then my co-counsel, Amy Pierce, will work with the person.”
CHAPTER FORTY-FIVE
THE DEFENSE’S PLOY
Friday, November 10, 2000
At nine sharp, Judge Tanner took the bench with lightning speed, wasting no time. “There are three pending motions, two scheduled to be heard today. The third, the motion to suppress, is scheduled two weeks from today. I will first hear arguments as to why I should recuse myself in this case. After that, we’ll address the bond issue. Ms. Pierce, how much time do you need to argue your motion to recuse?”
“I’d like unlimited time, Your Honor. I don’t think such an important motion should be hamstrung by a time limit restriction.”