The Conviction

by Robert Dugoni

  Just fifteen minutes after filing their motion Newcomber pushed open the smoked glass door and stepped into the rotunda. She wore colorful beads that matched the color of her long, decorated purple fingernails and handed Sloane the file-stamped copies. “Judge Boykin will hear the motion first thing this morning,” she said.

  Sloane flipped to the second page and saw Boykin’s flowing signature in black ink.

  Challenge accepted. The fight was on.

  They made their way to Judge Earl’s ornate eighteenth-century courtroom on the third floor and took seats in the gallery.

  “Like stepping back a hundred and fifty years,” Lynch said, looking about.

  “Wait until you meet Judge Earl,” Molia said. “You’ll think Judge Roy Bean was cryogenically preserved and brought back to life, without his brain.”

  Not long after they sat, the courtroom door opened and the prosecutor from the prior morning walked in. Balding, with wire spectacles and a thick mustache, Archibald Pike apparently favored three-piece suits, this one brown. The gold chain of a pocket watch draped from a button on his vest and looped to a pocket.

  “Looks like everyone is in costume,” Lynch said.

  Pike carried a stack of files, a loose pleading on top, no doubt Sloane’s motion for a new trial. He used a leg to push through the swinging gate and set up in the location he had taken the prior day, at the end of the table closest to the jury box. Once settled he picked up the loose pleading and flipped through it, occasionally adjusting his glasses while reading.

  Lynch and Sloane made their way to the rail when Pike lowered the pleading. He turned to shake their hands. “I understand Judge Earl has granted your motion for shortened time.”

  “We’re sorry we were unable to provide you with more notice,” Lynch said, ever gracious. “Given the urgency of the matter we felt it necessary to file it first thing this morning.”

  Pike nodded. “Would you consider a continuance to allow the court clerk to transcribe the recording of yesterday’s proceedings?”

  “How long would that take?” Sloane asked.

  “I could ask that it be expedited. I would think we could get a copy early this afternoon and hold the hearing first thing Monday morning.”

  It wasn’t an unreasonable request, but Sloane didn’t want to wait three days.

  “Do you plan to oppose the motion?” Lynch asked Pike.

  “I stipulated to the motion for shortened time; I will oppose the motion for a new trial. Both boys waived their right to counsel and confessed. I was here in court when they did.”

  “We don’t believe the waivers or the confessions were made intelligently and with full knowledge of the consequences,” Lynch said. “They didn’t have counsel to advise them, or a guardian present.”

  “Judge Earl spelled it out pretty clearly,” Pike said, a smirk to this tone.

  “We also don’t believe Judge Boykin should have sentenced them without holding a separate hearing with parents present. This entire thing was rushed.”

  “A gross miscarriage of justice?” Pike asked with a bemused smile.

  “And if it was your son what would you think?” Sloane asked.

  Pike looked from Sloane to Molia, who had joined them at the rail. “I don’t have anything personal against either of your sons, gentlemen. We get juveniles through here regularly, but this wasn’t some penny-ante crime they committed either. They broke into an establishment, stole alcohol and a firearm, and discharged that firearm within range of a populated area.”

  “They’re boys; they made a mistake,” Molia said.

  Pike shook his head. “Mistakes are accidents. This was no accident. It was a premeditated act of vandalism. We’re just lucky no one was seriously hurt, or worse.” He turned to Sloane. “And it isn’t the first time for your son, Mr. Carter. He’s developing quite a file, and it reveals a continuing pattern of progressively worse criminal conduct. Maybe this is what he needed, to get him back on track.”

  Lynch stepped in before Sloane could speak, like a referee separating two boxers. “What about getting the transcript and having the hearing this afternoon?” Lynch asked. “We’d be amenable to that.”

  “If the clerk can get it transcribed that quickly, I wouldn’t oppose it.”

  The woman who had been in the well beneath Boykins’s elevated bench the prior day entered the courtroom through the door leading to the Judge’s chambers and retook her seat. The courtroom bailiff followed, with Judge Boykin fast on his heels. Boykin strode past a brass spittoon, an old wooden box, and what looked like an antique stenographer’s machine, and took the three steps to his bench in one bound. Once there he wasted no time.

  “Ms. Valdez, call the first case.”

  Valdez stood. “The People of the State of California versus Jake Andrew Carter and Thomas James Molia,” she said.

  Lynch pushed open the swinging gate and stepped to her left. Sloane caught the gate and followed. Boykin looked up and raised a meaty palm. “Mr. Carter, you may remain in the gallery. Only attorneys and defendants at counsel table.”

  Lynch spoke. “Your Honor, this is David Sloane; he’s a licensed attorney in the State of California and cocounsel in this matter.”

  Pike turned his head at the mention of Sloane’s name then picked up the pleading, flipping to the last page with the signatures.

  “I thought you told me yesterday you’re the boy’s father,” Boykin said.

  “His stepfather,” Sloane said.

  Boykin stroked his beard, no doubt considering this another power play, but he had no basis to keep Sloane from appearing at counsel table. Recognizing this, Boykin motioned Sloane forward to join Lynch.

  “I have granted a motion for shortened time to hear defendants’ motion for a new trial this morning. Mr. Pike, the State stipulates to the motion for shortened time? Mr. Pike?”

  Pike looked up from the pleading, the bemused smile gone. “Uh, yes, the State does, Your Honor.”

  “Are we going too fast for you, Mr. Pike?”

  “No, Judge. My apologies.”

  “Then what I have before me is a motion for a new trial and a motion to have a transcript made of yesterday’s proceedings.”

  Lynch spoke. “Your Honor, we spoke with the prosecutor this morning and discussed the possibility of putting this matter over until this afternoon, after we have obtained the transcript and had the chance to consider it.”

  Boykin cut her off. “The prosecutor is very generous with my time, but does not keep my calendar.”

  “I apologize, Judge,” Pike said.

  “I have a criminal trial continuing this afternoon. Besides, the issue is moot. I had Ms. Valdez check with the clerk’s office this morning and she has advised that the recording of yesterday’s proceedings is not available. Is that a correct statement, Ms. Valdez.”

  The woman in the well spoke. “That’s correct, Judge.”

  “What does that mean?” Sloane asked. “When will it be available?”

  “It means, Mr. Sloane, that the recording was inadvertently erased. The clerk’s office made a mistake and did not retain it.”

  “A mistake?” Sloane asked. Evelyn Newcomber had not said a word to them about it. He turned to Pike. “As opposed to a deliberate, premeditated act?”

  Boykin leaned forward. “You will watch your tone, Counselor, or you will again find yourself a guest of Sherriff Barnes, and this time I will not be as lenient.”

  “So we have no record of the proceeding?” Lynch asked.

  “I believe that’s what I just got through explaining, counsel. Now—”

  “Then we would request that the court grant the motion for a new trial,” Sloane said.

  Lynch looked caught off guard. So too did Pike. Boykin leaned forward. “Excuse me?”

  “The defense requests that the court grant the motion for a new trial.”

  Boykin looked bemused. “I heard you the first time, Counselor. Perhaps you would care to educate me on w
hat basis the court would do that?”

  “Without the transcript the State has no evidence to meet its burden that either the confessions, or the waivers of counsel, by either defendant, were made knowingly and intelligently. Unable to meet that burden the court must grant the motion.”

  “Must? Did you just say ‘must’? Let’s get something straight, Mr. Sloane. I am a superior court judge of Winchester County. Duly elected. The only things I must do are pay taxes and die. Do not presume to tell me what I must do in my courtroom.” He turned his head. “Does the State wish to add anything, Mr. Pike?”

  Pike did not immediately respond, an indication he had been unaware of this development or, if he had been, hadn’t considered this potential ramification. “The State opposes, Your Honor.”

  Boykin shook his head. “Would the State care to enunciate the basis for its opposition?”

  “Uh, yes, it would,” Pike stammered. “We, uh, the State has witnesses. I was here, as was Deputy Langston and Ms. Valdez. I can have another attorney from my office examine me if necessary.”

  Sloane responded. “It’s extremely prejudicial to the defense, Your Honor. We should not have to take the word of the county prosecutor and a peace officer.”

  “You’re suggesting they would lie?”

  “Lying has nothing to do with this. Without a transcript of the hearings, the defense can’t conduct a proper cross-examination of the witnesses. We have no way to corroborate that what they might testify to is an accurate recollection of what was and was not said.”

  Boykin sat forward. “I disagree. I was also present in court and can make that determination.”

  “Then the defense requests that Your Honor recuse himself if he intends to be a witness for the State,” Sloane countered.

  “Don’t be insolent, Counselor. I have no intention of recusing myself or becoming a witness. I was merely attempting to alleviate your concern that Mr. Pike, Deputy Langston, or Ms. Valdez would lie, under oath, in my presence.”

  “Begging Your Honor’s pardon,” Sloane said. “But it’s your presence that concerns us.”

  Boykin flushed and took a moment to adjust his glasses. “Are you suggesting, Counselor, that I would subordinate perjury?”

  “Not at all, Judge,” Sloane said, “Only that it is your ruling that these fine citizens of Winchester County would be trying to uphold. With all due respect, it’s not the same as having a transcribed record.”

  “Maybe not, but it is what it is. Do you wish to proceed or not?”

  Lynch looked to Sloane with hopeless resignation. They both knew the witnesses weren’t about to say anything but that the confessions and waivers were knowing and intelligent. In fact, Sloane and Lynch’s motion now provided a road map of what they needed to say to meet that legal standard. Without a record, Sloane and Lynch had no way to challenge their testimony.

  “We’d like to examine someone in the clerk’s office concerning this mysterious disappearance of the recording of yesterday’s hearing,” Sloane said.

  “So now you’re suggesting the loss of that recording was the result of something untoward?” Boykin asked.

  “I am merely trying to create a full record, Your Honor,” Sloane said, meaning a complete record to be submitted to the court of appeals.

  Boykin looked to his clerk. “If you wish to conduct a full hearing with the testimony of witnesses we will have to place this on my regular hearing calendar. Ms. Valdez, when do I have an afternoon free?”

  Valdez played with the keys on her computer screen, studying it. “Two weeks from next Wednesday, Judge.”

  Lynch stepped in. “Your Honor, if the court is unable to hear this matter this morning we are prepared to stipulate, without conceding the accuracy of their recollection, that the witnesses for the State will testify that Jake and T.J. waived their right to counsel and confessed if the prosecution will stipulate that the defendants did not have counsel present, no counsel was offered, and each appeared in court without a parent or legal guardian within six hours of their arrest.”

  Boykin looked to Pike.

  “The State will so stipulate,” Pike said.

  “Then we would request that you deny the motion and issue your order,” Lynch said.

  Though it pained Sloane to hear it, he knew Lynch’s strategy was correct. It made no sense to wait more than two weeks for a hearing that would most certainly result in the witnesses testifying as had been represented and Boykin denying their motion for a new trial. To go forward with a full hearing would only be wasting time, and after his conversation with Jake, Sloane felt even more compelled to get the boys freed quickly. By pushing Boykin to issue his order they could now move immediately to file an appeal and seek to have that appeal expedited. The suspicious lack of a transcribed record only strengthened their case. It wasn’t great. An appeal, too, would take time, but they were not going to get anything better, not in Winchester County, not from Judge Earl.

  “Fine,” Boykin said. “Defendants’ motion for a new trial is denied. Mr. Pike, you will prepare an order for my signature. Counsel may obtain a copy of that order from the clerk’s office.”

  “Your Honor, may we ask to have the order faxed to my office,” Lynch said. She would waste no time drafting her appeal.

  “Leave your business cards with Ms. Valdez and she will see that it is taken care of.”

  Sloane and Lynch left their business cards on the oak railing.

  Boykin never even dismissed them. He just shifted files. “Ms. Valdez, call the next matter.”

  Turning from the railing, Sloane watched a correctional officer escort two boys into the courtroom. The door had nearly closed when a hand emerged, grabbing the edge and pushing the door open. Carl Wade stepped in wearing his Truluck police uniform, pausing when he caught sight of Sloane and Molia.

  “State of California versus Griffin Knight,” Ms. Valdez said.

  Molia timed his walk with Wade’s approach to the swinging gate and spoke into the police officer’s ear. “I hope you liked chocolate,” he said before following Lynch to the exit.

  In the corridor outside the courtroom, Molia said, “That was a waste of time.”

  Lynch tried to sound optimistic. “We had to go through this step to file the appeal. Now we’ve gained a stipulation that Jake and T.J. were tried without counsel and without a parent.”

  “We already had that,” Molia said.

  “And that they were tried and convicted within six hours of their arrest. I’ll get a toxicologist’s opinion, but I suspect he’ll conclude from the amount of alcohol the police report states they consumed that Jake and T.J. were still legally drunk when they appeared before Judge Earl.”

  “That’s got to help,” Molia said, brightening.

  “And the loss of the record is just one more thing for the court to look at and conclude something untoward occurred. I’ll have someone working on the appeal while I’m driving back. We’ll get it filed first thing Monday morning and seek to have it expedited.”

  “You think it was an accident, David?”

  Sloane turned and looked at Molia but did not answer. His mind remained in the courtroom. He had seen no attorneys or other adults seated in the gallery. “He’s going to do the same thing to those two boys,” he said. “Boykin’s going to railroad them.” Before Lynch or Molia could respond Sloane pulled open the door and stepped back into the courtroom. Archibald Pike had been reading the complaint, making reference to violations of the California Penal Code section when Sloane pushed through the swinging gate. Pike stopped in midsentence.

  FRESH START YOUTH TRAINING FACILITY

  SIERRA NEVADA MOUNTAINS

  The morning had not started with a shower, it started with twenty-five minutes of calisthenics in the yard, though Jake noticed that Big Baby went directly to the bathhouse. The workout wasn’t particularly rigorous—push-ups and sit-ups and jumping jacks. Jake’s wrestling practices had been much more arduous, but in his weakened physical co
ndition he had trouble keeping up and Atkins took every opportunity to berate him. He felt light-headed, like when he would crash diet to make wrestling weight, and at one point thought he’d throw up, though there was nothing in his stomach to vomit. After calisthenics they proceeded to the showers, five minutes in lukewarm water. Still, it felt refreshing to be clean for the first time in days. When Jake entered the dorm he found clean bedding on his mattress. The other inmates moved with robotic precision, remaking their beds to military standards. One of them, the blond-haired boy who Jake suspected had been Big Baby’s victim the prior night, saw Jake struggling with the sheet and quickly approached.

  “Like this.” He took an end, shook the sheet out and let it fall so that the top was six inches longer than the mattress. “Tuck it in,” he said. He repeated the process with the blanket until Jake’s bed looked the same as the others. When they had finished he said, “Atkins likes to drop a quarter and see it bounce.”

  They’d find out quickly enough. At precisely 7:55 AM Atkins appeared in the dorm, greeted again by the shout of “Officer in the barracks.”

  As they had the previous night, each boy snapped to attention at the foot of his bed. Jake did the same, not out of any respect for Atkins, but because he had vowed not to do anything to jeopardize his chance to eat his first meal since the dinner at Whistling Pete’s in Truluck, nearly forty hours ago. He needed to regain his strength, suspecting he would likely have more encounters with Atkins.

  Atkins inspected each bed, pulling on corners to ensure snug fits. He also considered each inmate’s appearance, telling one to zip his coveralls, another to retie his shoelaces. He didn’t like the way one had shaved. Each responded without hesitation. When Atkins reached the foot of Jake’s mattress his eyes narrowed. Jake suspected Atkins had hoped to find the bed unmade, another reason to punish him. He turned without comment.

  After Atkins released the dorm they walked single file to the mess hall. Jake was salivating by the time they entered the building, but to his bitter disappointment they did not get in line for food. They took seats at one of the tables closest to the plate-glass windows. Streams of pale light shone on administrators in civilian clothing who stood to discuss a wide range of topics, from their classroom work to structured recreation time, group therapy, and assigned afternoon chores. As if to further taunt him, each person spoke while standing in front of the serving counter, where wisps of steam from water boiling beneath the food pans filled the room with the aroma of eggs and bacon.