The Conviction

by Robert Dugoni

  “Did you suspect the defendant to be underage?” he asked.

  “I did.”

  “How old did you suspect him to be?”

  “I don’t know. Sixteen or seventeen.”

  “Did you question his age before you asked for his ID?”

  “I believe I did.”

  “And what did he say?”

  “He said he was twenty-one.”

  “So he lied.”

  “You bet.”

  “He didn’t confess to being underage, did he?”

  “No, he did not. He lied to my face.”

  Sloane thanked the store owner and excused him.

  Pike followed with one of the arresting officers. He again led the man through each step up to his arriving at the general store and eventually arresting Jake and T.J. in the foothills above Truluck. He said they were both intoxicated and in possession of a loaded firearm. Again, Sloane’s cross was brief.

  “You took the defendant into custody?”

  The officer confirmed he had.

  “Did he confess to you, blurt out that he was guilty of breaking into the store, stealing the alcohol and the gun?”

  “No, he did not.”

  Sloane dismissed the man, hoping his strategy was becoming clear to both Pike and Boykin.

  Pike stood. “Your Honor, the State would like to move on to proving that Mr. Carter confessed to his crimes.”

  Boykin nodded. “Proceed.”

  With that Pike called Melissa Valdez. The clerk entered the courtroom in a simple blue dress. As expected, she testified exactly to what Pike said, that Jake confessed and waived counsel.

  Sloane dismissed her without asking a question.

  The final witness for the State was the clerk of the court, Evelyn Newcomber. She entered in a black and white knit sweater and black skirt. This morning her fingernails and necklace were red. Pike again walked her through the preliminaries, looking and sounding more confident. Then he asked her to explain the procedure employed when her office received a recording of a court hearing. At this point Newcomber began to look uncomfortable.

  “We put a copy of the disc in the file,” she said.

  “Did you place a copy of the disc used to record the hearing on June twentieth, two thousand and twelve, involving the defendant Jake Andrew Carter in his file.

  “Yes, I did,” she said.

  “Now, sometime later, was your office directed to transcribe that hearing?”

  Newcomber kept her focus on the right side of the courtroom, away from Sloane and Jake. “We were.”

  “Would you explain those circumstances?”

  “We received a motion from Mr. Sloane asking that the hearing be transcribed. Later that day Judge Boykin granted the motion.”

  “And did your office transcribe the audio recording of that hearing?”

  “We did not.”

  “Why not?”

  “When I went to the file I found the disc was blank. I don’t know how it happened, if it was erased accidentally, or perhaps never recorded, which can happen.” The last sentence sounded rushed, and Newcomber grimaced, as if she’d like to snatch back her words.

  “So there is no record of the hearing that morning?”

  “There is not.”

  Pike thanked her and turned to Sloane. “Your witness, Counselor.”

  Sloane stood. “Ms. Newcomber, you said that a recording can, from time to time, not be recorded. Would that be due to human error?”

  “I suppose it could be.”

  “Maybe a technical glitch of some sort as well?”

  Pike stood. “He’s asking this witness to speculate.”

  Boykin sustained the objection.

  “How long have you been the clerk here at Winchester County Superior Court, Ms. Newcomber?”

  “Fourteen years.”

  “And during that time, have you ever had a proceeding meant to be recorded not be recorded, for any reason that you’re aware of?”

  Sloane didn’t like to ask questions to which he did not know the answer, but he didn’t care too much what Newcomber’s answer would be. He just wanted to make her even more cautious in how she answered his questions, knowing that he would pounce on any misstep, overstatement, or outright lie. The fact that Newcomber didn’t immediately respond seemed to indicate his strategy was working.

  “No,” she said finally.

  “So we can say that this is not a usual occurrence here in Winchester County Superior Court, is it?”

  “No, it isn’t.”

  “In fact, it is unheard of, isn’t it?”

  “Yes, I suppose you could say that as well.”

  “Were you concerned that a hearing was not recorded?”

  “As I said, I don’t know if it was not recorded or if it was recorded and somehow got erased.”

  “Let’s assume it was not recorded; would that concern you?”

  “Yes it would.”

  “One of the functions of the clerk’s office is to be the custodian of the court record, is it not?”

  “It is.”

  “And you are in charge of that office; the buck stops with you, so to speak.”

  “I suppose it does, yes.”

  “You take responsibility.”

  A pause. “Yes.”

  “You certainly wouldn’t want this to happen again, would you?”

  “No.”

  “I’m sorry, Ms. Newcomber. I’m having trouble hearing your answers. Could you perhaps lean forward and speak into the microphone?” There was nothing wrong with Sloane’s hearing.

  Newcomber shifted in her seat and leaned closer to the microphone. “I said, ‘No.’”

  “But as concerned as you were you never sought to determine what actually happened?”

  She blanched. “No.”

  Sloane walked back to counsel table and picked up his notes, letting her answer, and its implications, linger. He carried the papers with him to the witness stand and flipped through them, as if searching for something. “And what if the alternative had been true? What if the lack of a record was not because the hearing was not recorded; what if it had been recorded and subsequently erased? Would that alarm you?”

  “Of course.”

  “Because that would indicate someone had tampered with an official court record, wouldn’t it?”

  Pike was on his feet to object that the question called for speculation, but not before Newcomber answered.

  “Well, no, not necessarily.”

  “Really? Can you explain that to me?”

  Pike remained standing, now uncertain whether to object or not. “Well, it might have been a mistake. Someone, someone might have erased it by mistake,” she stammered.

  Sloane nodded, as if understanding. He turned to look at Pike. “And a mistake would be an accident, as opposed to a premeditated and deliberate act. Is that what you’re saying?”

  “Yes.”

  “So which was it in this instance—a mistake or a premeditated act?”

  This time, Pike got his objection in. “Speculation.”

  Boykin agreed. “Sustained.”

  “You don’t know?” Sloane asked.

  “I don’t know,” Newcomber agreed. Pike sat.

  “Because you never investigated it.”

  She did not answer.

  “Or because you already knew this was no accident?”

  Pike shot from his chair. “Objection, Your Honor.” He fumbled a bit. “No foundation. This witness has testified she did not investigate the incident. Therefore she can’t possibly know if the erasure was by accident or an intentional act.”

  “Sustained,” Boykin said. “Your question is bordering on harassing the witness, Counselor.”

  “My apologies, Your Honor. Let me try to lay a foundation. Ms. Newcomber, do you have personal knowledge whether the disc recording the proceeding on June twentieth was erased by accident or by a deliberate act?”

  Pike had remained standing. “Your Ho
nor, it’s the same question. Same objection.”

  Before Boykin could respond Sloane spoke. “I beg to differ. It is not the same question. I’m asking this witness, sworn by oath to tell the truth, whether she knows, without having undertaken an investigation, if the disc was erased accidentally or intentionally.”

  Newcomber reached for the glass of water on a table to the side of the witness chair. Her hands trembled as she sipped. Sloane waited. So, too, did Pike. The rest of the courtroom, as well as Boykin, leaned a little farther forward in their seats.

  Newcomber appeared to swallow with difficulty.

  Boykin stepped in, as Sloane knew he would. “I think it’s the same question and I’ll instruct the witness that she need not answer it.”

  Pike rested the State’s case. He looked tired but relieved. The State’s case had gone in relatively smoothly. It looked, for all intents and purposes, like Jake would be convicted. They broke for lunch and returned at one thirty, Judge Boykin advising he needed an extra half an hour to attend to a personal matter. Sloane suspected he was talking to his attorneys, trying to ascertain what type of deal the Justice Department had offered.

  When they resumed, Sloane stood. “Your Honor, the defense calls Ms. Eileen Harper.”

  Sloane had to provide Pike and Boykin with a list identifying each witness he intended to call in his case in chief. Harper’s name was on that list, so his calling her did not come as a surprise, though what she might testify about surely intrigued them. Harper took the stand in a navy blue skirt and jacket and white blouse, swore to tell the truth, and spelled her name for the record.

  “Where do you work?” Sloane asked.

  “I work in the Winchester County Superior Court clerk’s office.”

  “What do you do as a clerk of the court?”

  “We manage the court’s files, accept pleadings, file them, make sure they are kept in the proper files, and provide copies to the Judge’s chambers.”

  “And that would include juvenile proceedings?”

  “It would,” she said.

  “Is every juvenile proceeding recorded?”

  “It’s supposed to be.” Harper explained the system the court employed to record each proceeding.

  “So normal procedure would have been that the proceeding involving my client would have been recorded?”

  “Yes.”

  “And you would have put a disc of that recording in his file.”

  “Yes.”

  “Did you put a disc in his file?”

  “Yes.” The answer caught the room off guard, though not Sloane, who had purposely decided not to cross-examine Newcomber on this fact so as not to give her a chance to correct herself.

  “You did? It wasn’t Ms. Newcomber?”

  “No, I did it.”

  “And did you also go to get the disc upon receiving Judge Boykin’s order that it be transcribed?”

  “No. Ms. Newcomber did that.”

  “Were you present working that day?”

  “I was.”

  “And even though you had been the one in the office to file the disc, you weren’t the one to retrieve it. Did Ms. Newcomber ask you to get it?”

  “No. She never did.”

  “And did she come to you later and tell you that the disc had been erased?”

  “No.”

  “She never told you?”

  “No.”

  “Did she ask you if you knew what could have possibly happened, since it was you who filed the disc?”

  “She never told me about it. Never asked me any questions.”

  “Did you subsequently learn the disc had been erased?”

  “Yes. I heard from another person that the disc was erased.”

  Pike stood. “Objection, Your Honor. No foundation this witness has any personal knowledge whether the disc was ‘erased.’ Further, if it was a statement made by another, it’s hearsay.”

  “Sustained,” Boykin said. “You will contain your answers only to what you personally know, Ms. Harper. Do I make myself clear?”

  Harper smiled up at him. “Very clear.”

  Sloane nodded. “Let me ask you, Ms. Harper. Do you have any personal knowledge whether the disc was erased?”

  “Yes.”

  Pike shot Boykin a glance. The judge shifted in his seat, leaning forward, about to speak. Sloane beat him to it.

  “How could you possibly know the proceeding was erased? Maybe, as the prosecutor and Ms. Newcomber suggest, the hearing was never recorded?”

  “Because when I heard that the disc was blank I pulled the disc of the same hearing from the other defendant’s file, Thomas James Molia, and I checked that disc, and the hearing was recorded on that disc.”

  A murmur spread through the gallery. Tamara Rizek smiled. When Sloane invited her to attend the hearing he said it would provide context to the contents of the package he had delivered earlier in the week. He said if she did attend he’d also make sure she finished the story she began years earlier about Judge Boykin, that she would have more Fresh Start inmates and parents to talk to than she could have ever imagined. He also said he would give her the inside track on a federal drug investigation that would implicate a superior court judge, and make front-page news across the country.

  Pike’s face went blank. Boykin paled. Sloane faced Harper, so he did not see Newcomber’s reaction, but he could guess that she, too, looked sickened, sitting in the gallery.

  “Did you put that disc back in Thomas James Molia’s file?” Sloane asked.

  Harper shook her head. “I put a blank disc back in the file in case someone had intentionally erased the other one. I didn’t want that to happen again. I kept the original to protect its contents.” She opened her purse and held up the disc.

  Boykin banged his gavel. “Bailiff, seize that disc. That is court property. You had no business taking that from the file. Bailiff, you will confiscate that piece of evidence.”

  The bailiff did as instructed. Harper handed it over willingly. The courtroom stirred ever louder.

  “I will take custody of that,” Boykin said, reaching down and seizing the disc from the bailiff.

  “Ms. Harper, you must be relieved to know that the court now has possession of that disc,” Sloane said.

  “I am,” she said, smiling up at Judge Earl. “I wouldn’t want anything to happen to it.”

  “Your Honor,” Sloane said, “I’d like to play the disc. Its contents are clearly relevant to the issues before this court as to whether my client confessed to his crimes or waived his right to counsel, as well as the credibility of Ms. Valdez, Officer Langston, and the court clerk.”

  “Your request is denied, Mr. Sloane. The court will review the disc to ensure there is nothing inadmissible.”

  “Then I would request an immediate recess to allow the defense an opportunity to file an interlocutory appeal with the Third Circuit Court of Appeals to have this matter resolved forthwith. It greatly prejudices my client’s ability to effectively cross-examine the witnesses the State has proffered here today. Furthermore, Your Honor, the contents of that disc may very well be grounds for Your Honor’s immediate recusal.”

  Boykin’s eyes blazed.

  “To the extent that disc reveals Your Honor has subordinated perjury,” Sloane said, adding the final brush that painted Judge Boykin into the proverbial corner. If Boykin denied Sloane’s request to play the disc, it would be suspected by all present that Boykin had subordinated perjury. And if he granted the request, the entire courtroom, including Tamara Rizek and her cohorts in the media, would hear for themselves that Boykin had done just that. They’d also hear how Boykin sentenced Jake and T.J. by having T.J. count the number of pigeons on the courthouse window ledge.

  It was largely unnecessary, for reasons that would unfold in a moment, but Sloane had followed courtroom procedure because, at the very least, when he did return to Seattle and had the chance to sit down and have a beer with Father Allen at The Tin Room, he wante
d to be able to look the priest in the eye and tell him that for once Allen had been wrong. Sloane had resolved the matter in a court of law. The system, while imperfect, could still work. But, just in case, Sloane had covered his bets.

  On cue, the courtroom doors opened. One by one, those boys Boykin had wrongfully sentenced to Fresh Start filed in, accompanied by one or more parent. They were dressed in long shirts and pants. Some wore jackets and ties. Assembled in the back they looked like the Vienna Boys Choir. Sloane had not placed them on his witness list for his case in chief, and court rules did not require he list his rebuttal witnesses. Now he intended to call each and every one to rebut the State’s position that Jake had willingly and intelligently confessed to his crimes. Their testimony would show that the State engaged in a pattern of intimidation and trickery to elicit confessions and that they had not been given intelligently.

  Boykin, having figured this out, though too late, slammed his gavel. “We’ll take a recess. I’d like an opportunity to listen to this disc in chambers and decide whether there is inadmissible material that must be deleted before its introduction.” The judge retreated quickly from the bench. The gallery stood, and those present no longer tried to suppress their voices. Questions and conversation filled the room.

  Sloane wasn’t concerned with what Judge Boykin would do to the disc. Harper had made a dozen copies. One was in the packet Sloane had given to Rizek.

  The last person to enter the courtroom after the families was Don Wicks, known to Judge Boykin as Carl Wade. Wicks stepped through the railing to where Molia had met Sloane. “Ready?”

  “As a newlywed on his wedding night,” Molia said.

  Wicks led them to the door leading to the judge’s chambers. The court correctional officer stood guard. Wicks badged him. “Step aside or I will have you arrested for interfering in a federal investigation.”

  The murmur in the room lowered to a hushed silence. The officer stepped aside.

  They proceeded through the anteroom. Wicks pushed open the door to Boykin’s chambers. Several federal agents were already inside the office, waiting. Judge Boykin had his back to them, staring out the window, gazing down upon the roofs of the buildings in Winchester’s Old Town. He did not acknowledge their presence; his ego would not allow it. Sloane knew Boykin was not just considering the town, he was also considering his heritage, and his legacy, which he had disgraced. No shortage of people would want to write about the four generations of Boykins and their abuse of power in Winchester County. They would not speak glowingly of Earl J. Boykin or his ancestors. That’s how it was with history, forever at the mercy of modern-day historians. Sloane had no pity or sympathy for a man who made a sport out of abusing young men for financial gain.