Certain Justice

by Dennis Carstens

  “It’s a great case for you. The publicity will make your practice,” the older man replied while holding Marc’s shoulders at arm’s length. “You’ll see.”

  “Larry, I’ve had all of the publicity I need for a while,” Marc replied while thinking: Why do I doubt this?

  Marc turned to lead Larry back to his office and saw everyone staring at him. “C’mon back,” he said as he walked to his door ignoring the inquisitive looks.

  Thirty-five minutes later, Marc and his uncle emerged. Marc walked Larry to the exit door where they shook hands as Marc said, “I’ll look into it. We’ll take it one step at a time.”

  Larry looked at his nephew and said, “Okay but let’s go and you know what I want to do so, show them who’s in charge.”

  “Larry….” He began to sternly reply then thought better of it. “I’ll get back to you. Okay?”

  With that, Marc opened the door and politely ushered the older man out. Marc closed the door, turned to face the wall and while everyone in the office waited to hear about this meeting, leaned forward and lightly thumped his forehead several times on the wall.

  Connie Mickelson came out of her office laughing while he did this then said, “What was that about?”

  Marc turned to face her. Drew a deep breath, shook his head and said, “You can choose your friends but not your family.”

  Marc sat down in one of the waiting area chairs to face all of his officemates who were now quite curious to find out what this was about. He looked up at the ceiling, laughed an ironic laugh, looked at his friends and said, “First of all, Larry’s wife passed away about three years ago. Ellen. Nice lady. I liked her a lot and Larry was hit pretty hard. Anyway, he’s been alone ever since.”

  “Oh, oh,” Connie said correctly guessing where this was headed.

  “Larry,” Marc paused before continuing, “got arrested yesterday for soliciting a prostitute. He got caught up in a sting downtown…” he tried to continue amid the laughter.

  “Good for him,” Chris Grafton said.

  “What’s the big deal?” Connie added. “The cops should’ve let him slide on it.”

  “Actually, that’s what I thought when he told me,” Marc agreed with a big smile. “But,” he continued, “that’s not the problem. Larry says he won’t plead. He says he wants a trial. And he wants the TV and newspaper people to cover it.”

  “What?” Carolyn said as the others burst into another round of laughter.

  “Yeah, he, ah, wants the publicity. See Larry lives in a senior apartment complex…”

  “Oh no,” Connie said covering her mouth to stifle more laughter.

  “Exactly,” Marc said looking at Connie. “He wants it to get out to all of the single women living there that he still has, as he put it, plenty of lead in the pencil.”

  This revelation brought another roar from the small crowd that could be heard in the hallway. Even Marc couldn’t help himself and joined in.

  “Actually,” Marc continued when the laughter died down, “the best part, for me at least, is he wants me to make sure his sister, my mother, doesn’t find out about it. How I’m supposed to get this on TV and not let my mother see it? He didn’t have that part figured out.”

  “And of course, he’s not paying you,” Barry Cline asked.

  “No, of course not,” Marc said as he stood up.

  “What are you going to do?” Connie asked.

  “I don’t know,” Marc sighed. “I’m not going to trial, that’s for sure.”

  A short while later Marc was out of his chair and putting on his suit coat to go to lunch with Barry and Chris when the intercom buzzed.

  “Chuck McReady’s on the phone,” he heard Sandy say when he answered it. “He says it’s important.”

  “Really? Okay, put him through,” Marc said. McReady was the number two lawyer at the State Public Defender’s office. They handled appeals for indigent defendants and McReady had recently handled one successfully for a client of Marc. Before McReady came on the line. Marc searched his memory for any current cases but came up blank.

  “Do you want the bad news first or the bad news first?” McReady asked him.

  “Please, by all means, give me the bad news first. I hardly ever get any bad news doing criminal defense work,” Marc sarcastically replied while he sat down again.

  “That’s a good point,” McReady replied. “Criminal defense is all feel good, peaches and cream. Anyway, I hope you’re sitting down. Do you remember a client of yours by the name of Howard Traynor?”

  “Sure, he was my first homicide trial. The case, and my client, both scared the hell out of me. Why, what’s up?” Marc said.

  “Have you seen today’s paper?”

  “No, come to think of it, I haven’t,” Marc said.

  “You got the Star Tribune there?”

  “Yeah, why?”

  “Go get it, the Metro section. I’ll wait,” McReady said.

  Marc went out into the common area to find Barry and Chris waiting for him. “Ready?” Barry asked.

  “No,” Marc said as he picked up the paper from a table of magazines. “I’m on a call and I may be a while,” he said looking over the front page of the “B” section. He looked at Barry and said, “You guys go ahead. I’ll catch up if I can but don’t wait for me.”

  Marc returned to his desk, sat down and picked up the receiver. “Okay, what am I looking for?”

  “Below the fold on page one, the one with the headline about tainted evidence,” McReady said.

  “Okay, found it,” Marc quietly said while he started to read the story.

  “Take a minute to read it,” McReady said.

  Half-way through the article, Marc said into the phone, “Holy shit! Is this true?”

  “We got a call from the AG’s office yesterday afternoon. They’ve known about it for about a week but kept it quiet while they checked up on it. They called us because we handled the appeal for all six of them and the AG wanted to give us a heads up. Then they released the statement to the media. We’re calling all of the trial lawyers.”

  “Okay, now what?” Marc asked.

  ”I’ve been assigned your guy’s case. I’m going to schedule a motion to have him released as soon as possible. You should be there. I’ll put your name on the pleadings and you’ll have to sign off.”

  Without realizing it, sweat broke out along Marc’s hairline. “The appeal was based on ineffective assistance of counsel because I didn’t get an independent DNA test done. I’m going to get disbarred,” Marc said.

  “Stop it,” McReady said. “It wasn’t your fault. I read the case file. Judge Peterson denied your request for money to have the test done. You’re not obliged to pay for it out of your own pocket on a public defender assignment case.”

  Feeling a little better, a little relieved, Marc said, “So, they’re going to let Howie Traynor out. I have to tell you, Chuck, that does not give me a warm, fuzzy glow. In all my years of practice, I’ve never met a guy quite like him and I’ve represented some bad dudes.”

  “All of these guys are serious assholes,” McReady said. “Except for a couple of them who were, past tense, serious assholes.”

  “Two of them are dead?”

  “Yeah, both died in prison.”

  “Well, that’s something,” Marc replied.

  “As defense lawyers, aren’t we supposed to be glad that we’re getting these people released?” McReady asked.

  “I’ve heard that somewhere,” Marc answered. “Normally, I would be but Howie Traynor…”

  “I’ll let you know when the hearing is and send the pleadings over when they’re done, probably later today.”

  Mark took out his personal phone and pressed a button to dial a friend. The man he was calling answered on the second ring.

  “Hey, counselor,” he heard the gruff voice of his private investigator friend, Tony Carvelli. “What’s up?”

  “What are you doing for lunch?” Marc asked.
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br />   “I’d planned on letting you buy me lunch today,” Carvelli answered.

  “Well, I’m glad I called. See you in a little bit,” Marc replied.

  Tony Carvelli was a Minneapolis police detective who retired from the force about ten years before. He started his own P.I. business and had thrived. He did mostly corporate security, background checks and investigations. Tony also did the occasional investigation for criminal defense lawyers which is how he met Marc. The two of them, kind of an odd couple in reality, had become good friends.

  While Marc was still on the office phone with Chuck McReady, he remembered that Carvelli had been one of the arresting officers in the Traynor case. Knowing this, Marc decided he better give his friend a heads up that Traynor was likely to be released soon.

  “How the hell did this happen?” Carvelli angrily asked Marc after the waitress took their lunch orders and left. The two men were seated in the back booth of a small Italian restaurant in the Uptown area of Minneapolis; a place where the two men met with some regularity.

  “The story in the paper has it that this guy, Douglas Dylan, was a tech in the lab at the BCA in St. Paul when he was in college. He claims the cops let him know on a few occasions, with certain suspects, that a positive DNA test result would put away some very bad people. He claims they never put pressure on him, just let him know which ones. So he made sure the test results came back the way they wanted.

  “He’s now terminally ill with cancer and doesn’t want to die without coming clean about it. They are all cases where the defense didn’t request an independent test or he claimed the sample was too small for a second test. He says if anyone requested a second test he would always say the sample was too small and had been destroyed during the original test.”

  “And Howie Traynor was one of them,” Carvelli said, a statement not a question.

  “I thought you should know. After he was sentenced he made some statements about getting even with some people,” Marc replied.

  “Most of these assholes say shit like that,” the P.I. said waving a hand in dismissal. “Though I have to admit, Howie was one of the few guys who scared just about everyone, including Jake Waschke.”

  “Is he still in…”

  “Yeah, but I hear he’s getting out soon,” Carvelli replied.

  “Good,” Marc said. “I was always sorry about what happened to him.”

  “I forgot that you were Traynor’s lawyer. How’d that happen?”

  “I was a couple years out of law school and working for Mickey O’Herlihy. Remember him?”

  “Sure, everyone remembers the Mick.”

  “O’Herlihy got the judge to assign the case to him. Lots of publicity…”

  “Which Mickey was never shy about.”

  “Right. Anyway, I was kind of assisting him, my first homicide, and learning from him. Then two months before the trial, Mickey has a heart attack and dies on me.”

  “Is it true he was in the sack with a high-class hooker client?”

  “Yep, he sure was,” Marc replied. “He dies, I have no experience so I go to the judge to withdraw and have someone else assigned. The judge looks at me and says, ‘Too bad, you’re up.’ So I had to try it. I got him off on the first-degree charge but he went down for everything else. Judge Peterson came down on him like a ton of bricks.”

  Marc then gave Tony the names of the other five convicts, including the two who were now deceased. Tony recognized most of them but he still wrote their names down in a notebook anyway and said he would check on the four who were still alive.

  “Tell your friends at the MPD, they’re about to let this psycho out,” Marc said.

  “And a couple others,” Tony added as he held up the small notebook.

  NINE

  Marc entered the courtroom where the hearing was being held and looked around the room. To his left, seated in the gallery’s first three rows closest to the bar railing were at least a dozen members of the media. Several of them turned to look at him while he stood in the doorway. Gabriella Shriqui, a reporter Marc knew well, smiled and wiggled her fingers at him. Marc made a mental note to ask her how she found out about today’s event.

  Seated at a table in front of the railing, also to his left were three men. One he recognized was the lawyer from the state public defender’s office, Chuck McReady. The one seated in the middle with his back to Marc, must be Howie Traynor Marc assumed. The third man, seated to Howie’s left, startled Marc and caused him to stare. He was an older man, probably mid-fifties, wearing the coat and collar of a Christian cleric. Marc was unsure if the man was a Protestant minister or a Catholic priest. Just seeing him with Howie Traynor was enough of a shock.

  While he stared at the man, the door behind him opened and the attorneys from the county attorney’s office and state AG’s office came in.

  “Hey,” Marc quietly said to the lawyer from the county, Steve Gondeck.

  The two men shook hands and Gondeck introduced Marc to the woman from the AG’s office, Alicia Carlson. Marc and Gondeck had known each other for many years, having tried several cases against each other. The two men were at least friendly, if not friends.

  Marc noticed McReady turn to look at the three lawyers in the doorway and then Marc gestured to McReady to join them. McReady stood and walked back to the doorway and the foursome of lawyers all went out into the empty hallway. Marc introduced McReady to Gondeck and Carlson then asked them, “What’s your position here today?”

  Gondeck gave Marc a puzzled look then said, “We filed pleadings. Didn’t you get them?”

  “No, I didn’t,” Marc answered.

  “Did you?” Gondeck asked McReady.

  “Yeah, I saw them,” McReady answered.

  “Sorry, Marc,” Gondeck shrugged. “You must’ve been overlooked.”

  “We’re totally opposed to release,” Carlson interjected.

  “And we believe there was enough additional evidence to sustain a conviction,” Gondeck added.

  “Okay,” Marc said. “I guess we’ll see.”

  Marc followed McReady through the gate and as he did so, Traynor and the cleric stood to greet him. Marc noticed Howie looked basically the same, a little older for sure, but except for his hair being three or four inches long, he was the same man.

  When Howie saw Marc, he extended his hand and with a genuine smile, pleasantly said, “Mr. Kadella, it’s great to see you again. You’re looking well.”

  A startled Marc shook hands with Howie then Howie said, “I’d like you to meet my good friend, Father John Brinkley. Father John,” he continued turning to the priest, “this is Marc Kadella, the lawyer who handled my trial.”

  The two men shook hands, exchanged a brief pleasantry then Howie stepped up to Marc and quietly said, “You might not believe this, Marc, but I’m a changed man and Father John is totally responsible for it.”

  “That’s great, Howie,” Marc said looking directly into his eyes. “Maybe we can get you released and you can salvage your life.”

  “Bless you, Marc,” Howie sincerely said. “That would be a gift from God.”

  “All rise,” the sheriff’s deputy said as Judge Whitney Hogan came through the door and onto the bench. She quickly ordered everyone to be seated. The court clerk read the case number and file number into the record. The judge then took a few minutes to say a few words to the audience about court decorum.

  Judge Hogan looked over both tables and said, “Starting with the Petitioner, let’s have the lawyers enter their appearance.”

  McReady went first then each of the four lawyers stood and announced their name to the court reporter and whom they represented.

  Hogan looked at the priest and politely asked, “Is it Father or Reverend?”

  The priest arose from his chair and said, “Father John Brinkley, your Honor.”

  Hogan looked at the court reporter and said, “Let the record reflect the Petitioner is accompanied by his priest, Father John Brinkley. Okay,” she con
tinued looking at McReady, “you may proceed.”

  For the better part of an hour, each side, in turn, argued about whether or not the tainted DNA was sufficient to overturn the second-degree murder conviction. Since both sides had already submitted lengthy legal briefs detailing their respective arguments, complete with legal authority, the oral arguments were not all that necessary. Both sides essentially restated what was already in the pleadings and affidavits previously filed with the court. Marc sat quietly during the entire exchange, as did Alicia Carlson, and allowed McReady and Gondeck to do all of the talking.

  When both lawyers had exhausted their argument, Hogan said, “Bearing in mind, I’ve read the pleadings, briefs and affidavits, do you have anything else?”

  None of the lawyers had anything further and after a moment of silence, Judge Hogan looked at Gondeck and Carlson and said, “From what I can see, without the DNA evidence, the prosecution has no way of linking anyone to the death of Lucille Benson. She died of a heart attack and without the DNA you can’t prove beyond a reasonable doubt that she wasn’t already dead before Mr. Traynor entered her bedroom.

  “The lipstick and saliva on the pillow are hardly enough and even the bruising on her jawline does not point to Mr. Traynor without the DNA. Do you have any other evidence to link Mr. Traynor to the deceased to prove causation?”

  “No, your Honor,” Gondeck reluctantly replied.

  The judge looked at Howie and said, “Do you have anything you wish to say to the court?”

  Howie stood up and when he did, Father John also stood causing Marc and McReady to stand as well. “Yes, your Honor,” Howie began. “I admit I was a bad man. A criminal with no concern for anyone or anything. Then, in prison, I met Father John and through his help and the love of our Lord and savior, Jesus Christ, I changed my life around.

  “I believe God is giving me this second chance and if you agree and overturn my conviction, I won’t let you down.”

  Impassively, having heard this same claim or close variations of it dozens, if not hundreds of times, Hogan said to the priest, “Would you like to add anything, Father?”