"You're still not convinced I'm a girl, are you?"
"I'm getting there."
"Is that so?" Myra said, peering at me as she sipped at her drink. I was still settling in, getting used to the fact that I was here, and wasn't sure I was quite ready to actually go to bed with her.
"The thing about this kind of music," I said, "I like it, but then there's this moment where I'm about to suggest somebody put some music on."
"You want thrash, Joel?" Myra said. "Because I can give you thrash."
"Is that a fact?" I said, reaching out for her.
This kiss was different from the one on the street, less tentative, with a bit of an edge to it. Myra softly bit my lower lip. I responded by sliding my hand under her shirt. I was moving it up toward Myra's breasts when her phone rang.
"Do you need to get that?" I said, wondering who the hell was calling her this time of night.
"I don't answer the phone this late," Myra said. "Anybody ever call you with good news after midnight?"
After four rings the machine picked up, Myra's recorded voice saying her number but not her name. After the beep a man's voice came over the speaker. "Myra, this is Adam Berman at the Journal. Give me a call when you get this. We've got some breaking news over here relating to your case, and would love to get your comment. It seems Malik Taylor was just murdered."
I UNDERSTOOD when Myra kicked me out shortly after returning Berman's call: suddenly we both had a lot of work to do before the morning. Myra had assigned me the task of researching whether Taylor's death gave us grounds for reopening the trial to present evidence regarding his murder.
Back in my apartment I went straight for my bookshelf, shaking my contracts textbook so that the packets of heroin fell to the floor. I snatched them up, moving quickly now, not allowing for any pause to let myself think or try to rationalize away what I was about to do. I didn't even know when I'd made the decision to do it, hadn't even realized that I had.
I didn't turn on the bathroom light, just stood over the toilet and opened my hand, letting the packets fall. I looked down at them a moment as they floated there, then watched as they disappeared in the soft roar of the flushing toilet.
I was clear. For now, I was clear.
36
YOU WANT me to do what?" Judge Ferano asked. It was a little after nine a.m., and Myra and I were gathered in the judge's chambers along with O'Bannon and Williams.
I'd stayed up most of the night reading cases on my laptop, trying to establish a legal basis for our getting news of Malik Taylor's death in front of the jury, while Myra tried to find out whatever facts she could. We'd met up at the courthouse at eight thirty in the morning, Myra brisk and entirely businesslike, no acknowledgment of what had happened between us the night before. I wondered if it had all been a temporary aberration, a frisson born of anxiety, stress, and a primitive need for comfort.
"You should declare a mistrial," Myra said firmly to the judge. "In the alternative, we move that you instruct the jury to cease deliberations, and then allow us to reopen our case to present evidence relating to Malik Taylor's murder."
"Your Honor—" O'Bannon began, but Judge Ferano held up his hand to stop him.
"I don't see how this is possible grounds for a mistrial," Judge Ferano said. "As for telling the jury to stop deliberating, I've been a judge for seven years, and I've never had a party ask to reopen the case after the jury had begun deliberations. You have any authority for this proposition?"
"The Court of Appeals has established that a trial court can reopen a criminal case when new evidence of a defendant's guilt or innocence has come to light during the jury's deliberation. People v. Olsen," I said, handing first the judge, then O'Bannon, copies of that opinion. "It's obviously not a commonplace thing, but our situation here provides a perfect example of when it needs to be done."
"Let me read this," Judge Ferano said. We were all silent for a minute while the judge quickly scanned the opinion, O'Bannon doing the same with Williams looking over his shoulder.
After a minute Judge Ferano turned to O'Bannon. "It appears from this decision that I do have the authority to reopen the trial if new evidence has come to light," he said. "So it seems the real question is whether or not this constitutes new evidence. What do you know about Malik Taylor's murder?"
"I don't have any independent knowledge that he's even dead, Your Honor," O'Bannon said. "All I know is what defense counsel has said."
Judge Ferano turned back to Myra and me.
"Explain to me precisely why you believe that Taylor's death is evidence of Lorenzo Tate's innocence in the shooting of Seth Lipton and Devin Wallace."
"It has been the contention of the defense throughout this case that the police should have investigated Malik Taylor as a suspect in that shooting," Myra said, "given that he was an equally plausible, if not more plausible, suspect as our client. The fact that he's now been murdered strongly supports our theory. Devin Wallace has not cooperated with the police in this case, and it is obviously possible that Taylor's murder is a case of street justice."
"Do you have any actual evidence that Taylor's murder was in any way related to this case?" Judge Ferano asked.
"Taylor's murder happened less than twelve hours ago," Myra said. "I've left messages with the investigating detectives but have yet to speak to them. Which in all fairness, I might not always return an after midnight call by nine the next morning either."
"So what you're telling me is that you don't have any knowledge of the circumstances of this murder," Judge Ferano said. "For all you know Taylor was mugged on the street, or the police have already arrested somebody for the crime and established that it was unrelated."
"Barring someone else already having confessed or a batch of eyewitnesses, I can't imagine the police wouldn't consider Mr. Wallace a potential suspect," Myra replied.
"On the basis of what?" O'Bannon said. "Ms. Goldstein's speculation, coupled with her innuendo in your courtroom?"
"Now, Counsel," Judge Ferano said to O'Bannon. "However tenuous the defense's claims might have been in regards to establishing that Malik Taylor shot Wallace and Lipton, they did legitimately show bad blood between Taylor and Wallace. I would think the police will likely have some interest in talking to Wallace about Taylor's death if they don't have a clear suspect. But really, everybody in this room is just whistling in the dark here, because none of us knows what actually happened last night."
"Your Honor," I began quickly, ready to hand out additional case law to try to keep Judge Ferano from denying our motion.
"Relax, Mr. Deveraux," Judge Ferano said. "Here's how I see it. If Wallace is legitimately a suspect in Taylor's death, then it looks to me like jury deliberations should be suspended and you should be allowed to present evidence in that regard. But if it looks like Taylor's murder was just a coincidence, then there's no reason it should go before the jury. The interests of justice suggest that I shouldn't let the jury continue their deliberations until we sort this mess out."
"But, Your Honor—" O'Bannon began.
"What else would you have me do?" Judge Ferano interrupted, glaring over at O'Bannon. "Think it through, Mr. O'Bannon. Let's say the jury reaches a guilty verdict today, and then tomorrow the police arrest Wallace for killing Taylor, who promptly confesses that he did it because he believed it was Taylor who tried to kill him. We'd have to try this whole case over again, assuming your office could even reprosecute. Meanwhile the New York Journal is running frontpage articles asking how an innocent man had been convicted of a crime he didn't commit, and that doesn't help any of us."
O'Bannon and the judge looked at each other for a moment; then O'Bannon shrugged. "I understand that it would be relevant evidence if the police believe Wallace actually killed Taylor," O'Bannon said. "I would just stress that if there is no evidence of such a link, the defense should not be able to just present evidence that Taylor was murdered. I mean, the guy lived in a bad neighborhood; who knows what happ
ened?"
Judge Ferano proceeded to work out the details of how we'd go forward. The jury would be told to stop their deliberations, while the judge attempted to get the details of Taylor's murder from the police.
Lorenzo was brought to court from Rikers every morning; the first time we would usually see him was when the COs brought him to the courtroom. We hadn't had a chance to even tell him what had happened, so we went down to the holding cell where Lorenzo was being kept in case the jury reached a verdict.
Myra ran through everything, moving so quickly from Malik's death last night to the suspension of the jury's deliberations a few minutes ago that I felt vertigo, even though I'd just lived through it. I watched Lorenzo carefully to make sure he was following; his shocked expression told me he was.
"So you think Devin might have gone after Malik?" Lorenzo asked.
Myra cocked her head slightly; she hadn't actually suggested that yet, although that was where she was going. "We don't actually know one way or another," she said after a moment. "But we think the police have to at least be considering that possibility."
"Devin gone after Malik because he heard about how Malik be hooking back up with Yo-Yo," Lorenzo mused. "I can see how he'd come to do that."
"You never know," Myra said. "The point is, we don't have to prove that Devin did it. If the DA can't disprove that, then it could be enough for reasonable doubt."
"So what happens now?"
"I'm kind of curious about that myself," Myra said.
IT WAS a little after eleven by the time Detectives Dwayne Franklin and James Scott arrived at the judge's chambers. Franklin was black, late thirties, dressed more like a businessman than a cop. Scott was white, fleshy, on the far side of fifty. They did not look like partners with too much in common, though they were united in how unhappy they looked about being there.
Now that we were all gathered in chambers nobody seemed quite sure what to do, everyone looking to Judge Ferano, who for the first time in the case appeared distinctly uncomfortable with the attention. He offered Franklin and Scott an elaborately courteous greeting, which neither detective acknowledged with more than the slightest of nods.
The judge then proceeded to summarize the relevant parts of our trial, emphasizing our attempts to put Malik Taylor forward as an alternative suspect, the detectives keeping their expressions neutral while the judge spoke.
"So," Judge Ferano concluded, "the question I have for you, Detectives, is this: are you investigating, or are you aware of, any possible links between the shooting of Devin Wallace and the murder of Mr. Taylor?"
"We spoke to Yolanda Miller last night, after we learned that she was the mother of Malik Taylor's child. She told us about this case, and about the previous disagreement between Mr. Taylor and Mr. Wallace," Franklin said. Franklin must have spent a lot of time on the witness stand, because what he was doing now was so clearly cop in a courtroom. "She also indicated her own suspicion that Mr. Wallace might have been looking to go after Mr. Taylor based on this situation, and what had come out in court."
"When you say 'what had come out in court,' is there something specific you are referring to?" Judge Ferano asked.
"Yes," Franklin answered. "Ms. Miller told us that the defense attempted to question her about a recent sexual encounter she'd supposedly had with Mr. Taylor."
"I remember that," Judge Ferano said. "I sustained the objection. I didn't allow her to answer and told the jury to disregard it."
"Apparently she thought maybe Devin Wallace didn't disregard it."
"And have you questioned Mr. Wallace?" the judge asked.
"We haven't been able to locate him yet," Franklin replied.
Judge Ferano tilted his head skeptically, giving a long look at the detectives, who looked back at him, Franklin deadpan polite, Scott through hooded lids. "When you say you haven't been able to locate Wallace," he said, "does that mean you have police actively looking for him?"
"Yes."
"And you've tried his apartment, I take it?"
"Of course," Franklin replied.
"Do you have people watching his apartment?" Judge Ferano asked.
"We're keeping an eye on it, yes."
"So he's hiding out from the cops," Myra couldn't resist saying.
"I don't want to hear from you, Counsel," Judge Ferano said sternly, glaring at Myra briefly before turning back to Franklin. "Do you have any reason to believe he's hiding from you?"
"All we know is, he doesn't appear to have come home last night." This was Scott, finally interjecting. "Lots of men don't sometimes—it doesn't necessarily mean they're hiding from the police."
"Are there any witnesses to the crime, or any other evidence suggesting either that Wallace is a viable suspect or that he isn't?" the judge asked.
"All we got from witnesses was two black men in a car, a darkerskinned man at the wheel, a lighter guy who did the shoot," Scott said.
"With all due respect, Your Honor," Franklin began, showing more animation than he had so far, "you're putting us in an impossible position. We understand that the reason we're here is to see if our investigation is tanking another murder case. And the simple fact is, we just don't know enough yet to answer that. We talked to Detective Spanner, who handled the Lipton murder, this morning. She told us she's sure that Tate was the right guy. Now maybe there was some underlying beef between this Wallace and Taylor, but even so, that doesn't mean it has anything to do with the shootings—"
"With all due respect to you, Detective," Judge Ferano interrupted, "don't try to tell me how to do my job. I don't like this either—the jury has started deliberations—but I can't ignore it when the person proffered by the defense as an alternative suspect is murdered. I'm sure you're not ignoring the problems between Wallace and Taylor in your investigation, and I can't ignore them either.
"However," Judge Ferano continued. "I do also, and I want to make this clear, understand that you are in the midst of a murder investigation that began just a little over twelve hours ago. We've got a lot of cross-purposes at work here, and my job is to try to balance them as best I can. So, Detectives, let me ask you this: it is my understanding that the first forty-eight to seventy-two hours of a homicide investigation are the most important; would you agree with that?"
"Absolutely, Judge," Scott said immediately, clearly thinking he saw a way out of this room. I caught Franklin giving his partner a look.
"Am I correct, then, in taking that to mean you will be investigating this case all weekend?" the judge continued.
Now even Scott sensed a trap. The two detectives looked over at each other, neither immediately responding. "Unless we make an arrest today, we will, yes," Franklin said at last.
"So here's what I propose," Judge Ferano said. "We have enough of an issue here that I'm going to send the jury home for now. I'm going to require at least one of you to appear before the court at nine a.m. sharp on Monday to inform me as to where your investigation stands. Based on what I hear, I will either let the jury resume deliberations, or I will reopen the case to allow the defense to call one of you to testify about Taylor's murder. Detectives, I wish you luck in your investigation, and I very much hope you can shed some light on it come Monday."
37
ALL RIGHT," Myra said. "Let's try it where you're just a total asshole."
It was late Sunday afternoon, and Myra and I were in the neutral territory of a conference room in our office. We were role-playing, with me pretending to be the detective and Myra crossing me. With the other witnesses we'd at least had some idea of what their testimony was going to be and how we were going to attack it, but with the detective—based on their appearance before Judge Ferano we were guessing it was going to be Franklin, but we didn't even know that—we were going to be totally winging it. So Myra and I had brainstormed for every possibility we could come up with of what the detective's testimony would be and how he would present it, and had spent the afternoon running through the possibilities.
<
br /> It was also entirely possible that the police would've found a way to clear Devin Wallace in Malik Taylor's murder by the time Monday morning rolled around. If so, the detective wouldn't testify, and the jury would just be allowed to resume its deliberations. On the other end of the spectrum, it wasn't out of the realm of possibility that the police would've come up with direct evidence connecting Wallace to Taylor's murder. It wasn't impossible that they would've arrested him.
We'd run through that scenario at the start, but hadn't spent much time on it: if Wallace had been arrested Myra wouldn't need much practice to get the important concessions out of the detective. It was the middle ground that mostly concerned us, situations where there was enough that the judge let us go forward and bring in the detective's testimony but not enough to make it a slam dunk that Wallace was involved. If that was the case, we'd be hard-pressed to get much out of the detective, homicide cops being old hands at rebuffing defense attorneys.
We'd been at this for a few hours now, and I was running out of ways to pretend to be a recalcitrant cop. We spent about twenty minutes with me in asshole mode—hostile, sarcastic, refusing to admit the obvious.
"Okay," Myra finally said. "I think I'm as prepared as I can be, under the circumstances. Let's call it."
Myra and I hadn't talked about the other night, hadn't even acknowledged it. Now that we were suddenly back in the throes of the trial, I didn't feel comfortable bringing it up. If it was bothering Myra at all she was doing a good job of hiding it; she seemed entirely focused and businesslike, lacking any trace of the openness and vulnerability that occasionally leaked out of her.
"You think it's a game changer if we get this sort of testimony before the jury?" I asked.
"If we get the judge to reopen the case at all, I think it's at least a bit of a game changer. The jury will understand that something strange is happening."
"Where are we if the judge just throws it back to the jury without letting us call the detective?" I asked.
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