Dick was driving that day. “Think about it, Jack. We’re on the road. We get ambushed. We have these guns but how are we going to fire them? Roll the windows down?”
“What guns?”
“Look under the backwards-facing seat behind the front seats.”
Jack pulled up the seat and saw what appeared to be four submachine guns and boxes of ammunition.
“What are those, AK-47s?”
“Yup.”
“What are those other contraptions?”
“Night-vision goggles.”
“Why are there four sets?”
“Because there may be as many as four of us in the car at one time. While we’re lounging out here on the range in the middle of nowhere, Joaquin and I are going to teach you, Pat and Maria how to use an AK-47,” Dick said with a big smile.
Jack just closed his eyes and slowly shook his head a couple of times. He’d left security up to these guys because he wanted to make sure everyone was safe. Now he felt like a star performer in the theater of the absurd.
While Jack and the others were rearranging their home life, the case against Wesley Brume and Clay Evans was moving right along. As Jack had suspected, Bill Sampson punted and asked the state’s Supreme Court to appoint a retired judge to hear the case. There were hundreds of retired judges in Florida, most of whom had stepped down at the mandatory age of seventy but were still willing to work. They filled in where there were shortages caused by illness, death, vacation, or in special circumstances like this one. It was up to the Supreme Court to appoint a judge to hear the case. They chose Judge Harold Stanton from Miami.
Jack obviously knew who Judge Stanton was, but he’d only tried two cases before him and they were both many years ago. Judge Stanton had made his name on the criminal bench, and it was quite a name. He was known as Hang ’Em High Harry. It was said of him—behind his back, of course—that he never gave less than the maximum sentence and that he never met a defendant who was innocent. Both statements were exaggerations of Harry Stanton’s very conservative record.
At first glance, Jack thought Hang ’Em High Harry might be perfect for this case, but he decided to check him out. He called his old friend Harley Booker.
Harley Booker was eighty years old and had practiced criminal and civil law in Miami for over fifty years. In his heyday, Harley had often been referred to as a lawyer’s lawyer because he was the first person any experienced trial lawyer in trouble would call. Harley had simply been the best.
He was almost retired now, still puttering around his office for a couple of hours a day.
“Haalo,” Harley’s deep Southern accent resonated on the other end of the line. His secretary had retired years ago.
“Hi, Harley, this is Jack Tobin.”
“Jackson, my boy, how the hell are ya?” Harley’s vocabulary—outside the courtroom—was as colorful as his personality. Inside the bar, he was a polished, homespun philosopher.
“Fine, Harley, just fine, but I need some help.”
“I don’t believe that for a second. I never met anybody as competent as you in the courtroom—except for myself, of course.”
“As I well know from experience. You’ve taken my pants down a few times.”
“That’s when you were a young ’un, Jackson. You needed a little learning, and not the book kind. So what’s the problem?”
“Well, I don’t know if you know this, Harley, but I’m the state attorney in Cobb County now.”
“I didn’t know it until I started seeing you and Jimmy DiCarlo trading blows on the news every night. Don’t know much about the case, but I can tell you’re already inside his head.”
“It’s a murder case.”
“Only kiddin’, pardner, I know all about it. I’ve always thought Clay Evans was a crook. Got to be honest, though, I didn’t know he was a murderer. Serves him right to have Jimmy DiCarlo as his lawyer—Jimmy’s been payin’ that sum-bitch for years. The money’s goin’ to be flowin’ the other way now. I’m sorry, what was your question?”
“We just got Hang ’Em High Harry appointed as our judge. I just wanted to know if that was good news or bad news.”
Harley thought about it for a minute. “Well, it might look good for you, pardner, off the top, but I think you’ve just got your ass stuck in a bucket of cowshit.”
Nobody could spell it out like Harley.
“Why do you say that?”
“Well, pardner, he’s a law and order guy, but he’s a guy who likes to stay in the box, if you know what I mean.”
“I’m not sure.”
“He’s so straight he starches his undershorts. He’s always been on the right side of things. Middle of the road—God, the law, and apple pie. He hated me because I played outside the lines. He once asked me, ‘Harley, why do you represent all them criminals?’”
“What did you say?”
“I just walked away from the sum-bitch.”
It was hard getting a straight answer from Harley, he enjoyed the art of conversation so much. Jack knew he would eventually get the right answer. He just had to keep at it. “I still don’t understand why he’s bad for me in this case.”
“Because you’re upsettin’ the applecart, boy. You don’t prosecute a prosecutor, especially when he’s now a federal judge. A cop you might get away with, but you just aimed your guns a little too high. Son, I believe Hang ’Em High Harry is gonna hang your ass out to dry.”
It wasn’t what Jack wanted to hear, but he needed to know more. “You said he didn’t like you, Harley. How did you maneuver around him?”
“Good question, Jackson. I knew you’d get it all out of me. I let the sum-bitch know right away that I was gonna appeal his ass if he ever stepped outta line with one of his rulings. He prides himself on never having one of his convictions overturned on appeal. He thinks he’s some kind of intellectual, but the real reason is he never goes out on a limb. He’s in the box! Always in the box! Now I’m not sayin’ he’s dumber than a stump or anything. He’s probably smarter than a jackass, but not by much.”
“So the way to approach him is to let him know he’s on shaky legal ground?”
“That’s a start, Jackson, that’s a start. But give the man somethin’. Give him a little fear so he’s listenin’ to ya—he wants to keep his record intact—but give him a solution too. You know, create a need, then solve it.”
“Gotcha. Thanks, Harley!”
“One other thing,” Harley continued. “Don’t blow smoke up his skirt. He hates that. Give it to him straight. Tell him what you got. Let Jimmy toss the cowshit, because you know he will.”
“Is Jimmy really a gangster like everybody says?”
“Nah, he’s worse. He’s a gangster wannabe. But he’s dangerous, son. There’s nothin’ he won’t do for a client if the money’s right. You keep that in mind.”
“I will. Thanks again, Harley.”
“Hell, call me anytime, son. I’m lookin’ forward to seein’ you gut old Jimmy there.”
Jack just sat by the phone chuckling for a few minutes. That Harley was a character—and a fountain of knowledge.
Forty–four
Jack didn’t have an opportunity to see Judge Stanton until the hearing on the Motion to Dismiss. It was strange: This was one of the most important moments in the entire case and he wasn’t nervous at all. He had prepared his legal memorandum even before he called the grand jury into session. All he had to do now was review his research and strategize. His strategy leaned heavily on incorporating Harley’s tips into his overall approach.
As for Jimmy DiCarlo, he had a new love, besides himself: television. In the week leading up to the hearing on his motion, he managed to get himself on a major station every night and at least one cable channel. The press was enjoying itself as well. A good story like this was fodder for the cable talk shows and made easy headlines for the newspapers. On the morning of the motion hearing, the area around the courthouse was teeming with news trucks, talking h
eads, television cameras, reporters and throngs of ordinary people.
Jack understood the media presence, but he didn’t understand the people. What was their stake in this? Did they really want to see justice done? The most surprising thing was that when he and Jimmy DiCarlo walked up the courthouse steps, they cheered Jimmy as if he were a movie star, while all he heard were catcalls and boos. Jack couldn’t miss the opportunity to take advantage of the situation, however. He sidled close to Jimmy as they reached the top of the steps.
“They love you, Jimmy. But if you win today, it all goes away. This crowd is nothing compared to what it will be at trial.” He didn’t wait for a response. He headed straight for Judge Stanton’s chambers.
So far, Jimmy was telegraphing all his punches nicely. Jack hoped it stayed that way. Jimmy had filed a second motion the week before asking to have the hearing in open court, but Judge Stanton denied the request the next day. He wasn’t going to allow the press to make a circus of his courtroom, at least not yet. He allowed one reporter in his hearing room after instructing her in so many words to sit down and shut up and if she did anything to disrupt the hearing in any way, she would be removed by the bailiff.
As a normal practice, clients did not attend motion hearings held in chambers. Although Clay Evans wanted to attend and offer his legal expertise during the argument, he decided against it. Even though he was one of the accused, he was still a sitting federal judge and the possibility existed that Judge Stanton might resent his being in chambers and offering his legal opinions. It was an unnecessary risk. Jimmy could handle the proceedings himself.
Once inside the hearing room the lawyers sat on opposite sides of a long table that jutted out from the middle of the judge’s desk. The clerk was seated to the judge’s left and the court reporter was at the far end of the table in a position where she could watch all the lawyers and the judge as he spoke. The only other person in the room was the news reporter, and she was seated in a chair in the corner clearly trying to be very quiet. At 9 a.m. sharp, Judge Stanton entered the room from a side door and sat at his desk.
“Are we ready to proceed?” he asked without acknowledging anyone in the room.
“The defense is ready, Your Honor,” Jimmy said.
“The state is ready, Your Honor.”
“Very well. Mr. DiCarlo, it is your motion, you may proceed.”
Jimmy spent the next half hour outlining the facts, referring to the transcript of the grand jury testimony as necessary and then discussing points of law. Jack noticed that Jimmy’s fiery rhetoric was completely absent. He was going through the motions! Apparently he didn’t want his day in the sun to end just yet, even though it exposed his clients to a murder trial. The seed Jack planted had sprouted. And Clay Evans had made a tactical mistake letting his lawyer appear alone at this hearing. Jack chuckled to himself. There was a certain delicious irony in the thought of a crooked judge being sold out by a crooked lawyer.
“I agree with most of what Mr. DiCarlo says, Your Honor,” Jack told the judge when it came his turn to speak. “The prosecutor does enjoy absolute immunity in the prosecution of his case regardless of his motives. But this case is about what these men did two years after the prosecution of Rudy Kelly was over. They were presented with evidence of someone else’s guilt and they hid that evidence. As a result, Rudy Kelly, an innocent man, died in the electric chair. That fact alone takes this case outside the zone of immunity that a prosecutor normally enjoys.”
“But is there enough evidence that their actions were criminal?” the judge asked. Jack jumped on the question.
“The court is absolutely right to focus on that issue. This court already knows from the facts admitted in the motion that Lucy Ochoa had sex with someone other than Rudy Kelly the night of her murder and that on the night of her murder a man named Geronimo was down the street having a beer when Rudy left Lucy’s trailer. The police never talked to this Geronimo fellow because he disappeared right after the murder. Two years after Rudy’s conviction, the Bass Creek police department receives a letter from the Del Rio, Texas, police department stating they have just arrested a man named Geronimo Cruz for rape and murder and he has a Florida driver’s license listing an address in Bass Creek. They want to know if the Bass Creek police department has any information on this individual that might help them in their prosecution. I have a witness who says Wesley Brume called Clay Evans as soon as he received this letter and immediately went to his office with the letter in hand. After that, the Del Rio police department was never called back and the letter disappeared. Is that enough to convict? I’m not going to make that argument now. Is that enough to send the case to the jury? I’m not even going to make that argument now. Is it enough to let the case go to trial? Well, the law favors a trial on the merits whenever possible. Only in the rarest of circumstances should a case be dismissed before trial. If you allow this case to go to trial, Your Honor, the public’s interest will be served, the law will be followed—and you can still give counsel the same relief he is asking for by granting a Motion for Acquittal during the trial itself. Besides, we may hear some new information. Something always happens at trial that you don’t expect. Perhaps somebody in the Del Rio police department can shed some light on this mysterious letter. I don’t know.”
It was a very brief argument but it gave the judge options, which is what Harley had suggested.
“Do you have any rebuttal, Mr. DiCarlo?” Jimmy was ecstatic over Jack’s argument. He could have a trial and have that national exposure for another month or so and still have the case decided by a Motion for Acquittal. It was perfect—but of course he couldn’t tell the judge that.
He could have argued very forcefully that it was unfair to put his clients through the trauma of a trial when there wasn’t enough evidence to convict them. He could have—but he didn’t.
“Not at this time, Your Honor.”
Judge Stanton put his head down and started rubbing the sides of his temples pretending he was thinking hard. The truth was that Jack’s argument made sense. You never decide a case before trial unless it is a total sham. And he could still dismiss the case after the trial began on a Motion for Acquittal, which is exactly what he planned to do.
“All right, I’m not going to dismiss this case at this time. I agree that the same relief can be provided through an acquittal motion. In making this decision, I am by no means indicating that there is enough evidence to send this case to a jury. Do I make myself clear?” Both attorneys stated that they understood. “While we’re here, why don’t you gentlemen take out your calendars and let’s talk about setting this case for trial? How long do you think it will take?”
“A week,” Jack said.
“Two weeks,” Jimmy countered.
“Two weeks?” the judge scoffed. “What do you need two weeks for, Mr. DiCarlo? There’s no forensics. We know how the death happened. Hell, we know who did it. Do you want to bring the state’s executioner in to testify how he did it?”
“No, sir,” Jimmy replied rather sheepishly. He really didn’t have an answer for the judge. He just wanted to keep the trial going for two weeks.
“The way I see it, it’s real simple,” the judge continued. “The question is, did your clients intentionally let Rudy Kelly die in the electric chair? Now Mr. Tobin here, he’s got to put on a circumstantial evidence case, so he might take a few days. The only decision you’ve got to make is whether to put your clients on the stand or not—that is, if I don’t dismiss the case after Mr. Tobin rests. Now is my analysis accurate?”
“Sounds about right to me, Judge,” Jack replied.
“Yes, sir,” Jimmy answered meekly. He was starting to wonder if maybe he rolled over on the motion a little too quickly.
“All right then, let’s say a week. It will probably take a day to pick a jury. I don’t see a big problem there. If we need to we’ll go into the next week, but let’s not plan on it. The sooner we get this circus over with, the better. Now, ho
w much time do you need to get ready for trial?”
“We’re ready, Judge,” Jack offered. “I’ll need a week to get my subpoenas out but that’s it.”
“How about you, Mr. DiCarlo? Do you need a few more months to hit every show on television?” The judge clearly meant it as a joke, and everybody took it as one. Even Jimmy laughed.
“I can be ready in two or three weeks, Your Honor. I need to check some things out.” Jack knew exactly what he was talking about. He’d stuck in that little teaser about the Del Rio police department to send Jimmy on a wild goose chase. If Jack kept him occupied, Jimmy wouldn’t see the real surprises in store for him.
“Fine. We’ll set it for three weeks from today. And let me say this, you two gentlemen are fine lawyers. I’m not going to put a gag order on you. But see if you can control the personal barbs and let’s not try our case in the press, okay?” He looked right at Jimmy as he spoke.
“Yes, sir,” Jack replied.
“Sure, Judge,” Jimmy chimed in, hardly paying attention. There were cameras out there waiting for him.
Forty–five
An amazing thing happened shortly after the motion hearing, much to Jimmy’s disappointment. The press went home and the crowds dispersed around Jack’s office and the courthouse.
“Where did those people come from?” Jack asked the group at dinner one night. “They weren’t from Bass Creek.”
“Maybe there’s a group of sensation seekers out there that go from event to event,” Pat offered.
“Yeah, or maybe the press pays them to show up,” Dick added. “There’s no hype if there’s no crowd.”
“You’re getting awful cynical in your old age, honey,” Joaquin said, punctuating it with a tsk-tsk and a wagging finger. Dick whacked him on the shoulder.
“Don’t ‘honey’ me. I’m not your sweetheart.”
“Thank God,” Jack said. “I don’t know if Maria’s ready for that yet.” They all had a good laugh, really enjoying themselves for the first time in a long time. “I think we can actually relax for a while,” Jack added. “With the crowds gone and Jimmy getting his trial, I think the heat’s off.”
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