by Adam Mitzner
“Mr. Sorensen, are you having trouble hearing me? I made my ruling. You best move on to another topic, or I’m liable to end today’s proceeding right now.”
I was now 0 for 2. I decided to ask for something I was sure to get, if only to experience success for once.
“Last thing, Your Honor,” I said. “I’d like the court’s permission to have a few minutes with my client after the hearing. There’s an issue that just came up recently that I’d like to discuss with him.”
“Court time is my time, Mr. Sorensen,” Judge Pielmeier said, sounding not unlike a pedantic schoolteacher. “Just like I don’t write my decisions or hear other cases on your time, I don’t expect you to be visiting with your client on my time.”
This earned Judge Pielmeier some laughs from the gallery. She waited for the laughter to die down before continuing.
“Okay, then, since we have nothing else, I’m going to set our next conference for sometime after the New Year, at which time I’ll set a trial date and hear from the parties if there are any discovery-related issues that require my attention.” She turned to her clerk, who was sitting beneath her. “Eleanor, what’s the first open day on the calendar in January?”
“The second,” her clerk said without looking up. “At ten.”
Judge Pielmeier stood. “See you all on the second at ten. And happy holidays, everyone.” She then exited the courtroom through the door behind her chair, which led back to her chambers.
“Ain’t she s’posed to bang that hammer thing?” L.D. said to me.
“Only on TV,” I said.
By this time the corrections officers who had been standing a few feet from us throughout the hearing were already reapplying the handcuffs behind L.D.’s back. L.D. looked at me with wondering eyes, and it occurred to me he had no idea what had just transpired.
There was no way to raise Marcus Jackson’s claim that L.D. had already confessed to the murder, or Matt Brooks’s revelation that he wasn’t who he claimed to be. Not in a crowded courtroom full of members of the press. That discussion would have to wait until we saw him next.
“L.D.,” I began, talking quickly because I knew the guards would not wait for me to finish before removing him from the courtroom, “we weren’t able to convince the judge to release you on bail. I’m sorry about that. We’re going to get the prosecution’s evidence by Christmas Eve, and we’ll come in and see you on Christmas morning, okay?”
He looked at me in a way that caused Alexa to flash into my mind. An expression of such utter dependence that it made me swallow hard.
“Okay,” he said with a forced smile. “But you don’t need to ruin your Christmas.”
“No, I want to see you as soon as we have the prosecution’s discovery.”
He was already a few feet away from me, with the gap increasing as the guards pulled him away. “Thank you,” he called out before turning his back and leaving the courtroom.
15
Nina and I left the courthouse without sharing a word. The quiet didn’t last long, however—the moment we stepped outside, the shouting started.
“Did he kill her?” called out the redheaded reporter from one of the local television news programs.
“Is Legally Dead guilty?” said a tall, thin man whom I didn’t recognize, holding a microphone.
Others just yelled out my name, and occasionally Nina’s.
I leaned in and whispered to Nina, “The trick is to walk by them fast and look like you didn’t even see them. If you wave them off or say no comment, that’s what they’ll use on the news. And believe me, no one ever made their client look innocent by saying ‘no comment.’ ”
We turned at the first corner and increased our pace slightly. A few blocks later we’d reached a playground in Chinatown filled with kids who must have been on recess, and I figured we were in the clear.
Ten minutes after that we were in Tribeca, standing in front of a restaurant that Nina said was great, although I’d never heard of it, despite the fact that it was only a few blocks from my apartment. Once inside, it didn’t take me long to realize it was the kind of place where the waitstaff is all models. Our waitress fit the bill, a lanky blonde who asked us what we wanted to drink without ever making eye contact.
I’d now gone a third day without a drink. I was contemplating whether that show of willpower deserved to be rewarded, when Nina said, “I’ll have a seltzer with lime.”
“Me, too,” I said, feeling noble about not imbibing at noon, which, when I reflected on it, made me feel far less noble.
While waiting for our food to arrive, Nina and I engaged in the usual gossip that follows a court appearance. Nina said she wasn’t too impressed with Kaplan, although I suspected that was a bit of wishful thinking on her part. The mere fact that Kaplan was assigned to the case meant she was the best they had. On top of which, I’d long ago learned not to discount the power of a pretty face with jurors, although sitting across from Nina, I realized we had that more than covered on our side.
We also disagreed about Judge Pielmeier. “She’s going to be a nightmare for us” was the way Nina put it.
“We’ll be okay,” I said. “I’ll take a smart judge who’s pro-prosecution over a stupid one any day of the week. When you appear before a bad judge, it’s like the Wild West. You never know what’s coming in or what you can get away with. But with a smart one, you can anticipate the rulings, because nine times out of ten, they’re going to be right. She’s likely only going to be a problem for us in the ego department.”
“She’s funny, at least,” Nina said with a chuckle. “That whole ‘court time is my time’ thing.”
The idea of time made me think of Legally Dead.
He’d almost certainly be spending Christmas without seeing his daughter. That made two of us, I thought. And then, of course, Roxanne’s mother made it a trifecta.
“I hope it was okay that I told L.D. we’d see him on Christmas,” I said. “You don’t have to come if you have other plans, but I figured we’d go in the morning and be done by noon or so anyway.”
“No, it’s fine. I actually think it was very thoughtful of you to say that we’d be visiting him on Christmas. It must be a hard day.”
“They’re all really hard.”
“Are we talking about you or L.D.?” she said.
“Touché,” I replied with a subtle nod.
“Well, given that we’re spending Christmas Eve together looking at documents, and then Christmas morning at Rikers, care to come with me to Rich and Deb’s for Christmas dinner?”
She looked at me hopefully.
“Thanks for the invite, but I think I’ll pass.”
“Unless you start telling me very convincingly about other plans, I’m not letting you off so easy.”
“If you must know, I was going to order in some Chinese food and then maybe go to the movies.”
“That just sounds too depressing for words, Dan.”
I chuckled, an effort to show her that my plans weren’t that sad. Her expression didn’t change, however, which told me rather emphatically that it hadn’t worked.
“It’s not so bad,” I said. “Sarah called it Jewish Christmas. She said that’s what her family did growing up. Trust me, I’m not going to be alone. The movie theater will be filled.”
“Not buying it, Dan. Come with me to Deb and Rich’s. It’ll be fun.”
“Did you say it’ll be fun? They write books about how painful Christmas with the extended family can be. And if you recall, the last time I spent any time at Deb and Rich’s apartment, I had no recollection of it twelve hours later.”
“Let me amend that, then. It’ll be fun after dinner,” she said with a sly smile. “If you go with me and provide some buffer from my family, I promise that we’ll leave early and I’ll buy you a really good glass of scotch. God knows, after a few hours with my family, I’ll need a drink. More than one, I’m sure.”
It was my turn to smile at her. “It’s nice to know I’m not the o
nly suffering soul in our law firm. So tell me, what’s driving you to drink?”
“Dan, we all have our secrets.”
“But we’re partners. There should be no secrets between us. Isn’t that in our partnership agreement?”
“We don’t have a partnership agreement, as you well know.”
I could tell she was thinking about how much to trust me. That she didn’t stabbed at me, as I’d already come to think of Nina as the first friend I’d made since the accident, which, sadly, made her now my only friend.
Probably thirty seconds passed while she made the calculations, and then she said, “Do you really want to know?”
“I do, but if I’m prying, I’ll be able to live with the disappointment of not knowing. So, only if you’re comfortable sharing.”
She squinted at me and then took a deep breath, almost as if she were going to swim underwater. “Okay, here it is. Rich and Deb are great, but sometimes they’re like robots or something. Their lives are just too perfect. They have great jobs and that great apartment and a perfect little daughter. I mean, their family portraits look like freakin’ Ralph Lauren ads. Add to that, my parents are going to be there, and the whole time they’re going to be staring at me and wondering—How’d we go wrong with her? She’s thirty-three, never married, not even in a relationship . . .”
“Somehow I don’t think you have that much trouble finding a man, Nina.”
“From your lips to God’s ears. But I shouldn’t complain, especially not to you. And I know many people have it much harder. Besides, I only have myself to blame. All my wounds are self-inflicted.”
“I think everyone’s wounds are self-inflicted,” I said. “God knows, I should have spent more time at home, tried harder to be a better husband and father.”
She didn’t say anything at first, but then she reached over and patted my hand. Not a caress, exactly, but the way you might comfort a child. Her touch was nonetheless welcome, even if she removed her hand to her lap before it had turned into actual hand-holding.
“Thank you,” she said in a quiet but serious voice.
“For what?”
“For letting me in. Even if it was only a little.”
“No charge,” I said, and smiled.
“Ah, there it is—the elusive Sorensen smile.”
“Am I really that much of a sad sack?”
“Let me answer by saying that being around you is a little like living in London. It’s not like the sun never comes out, but when it does, everyone is that much happier.”
I chuckled. “Well, I guess it’s nice to have your smile compared to the sun.”
I didn’t notice her hand until it was back on top of mine. This time she held it in place.
Our hand holding lasted less than ten seconds, but it was long enough for me to realize that I was sad when she pulled her hand away.
16
I initially thought that the head of the Sex Crimes Bureau, a guy named Henry Ortega, would try the Darrius Macy case. Ortega had attended nearly all of the pretrial court conferences, and given his well-known ambition (he was gunning to be the next DA if the current occupant ever stepped aside), it made sense that he’d grab a high-profile case for himself. But when it came time to pick the jury, his deputy, Nancy Wong, was in the first chair. I got the sense that the switch was made recently, largely because Wong seemed somewhat unprepared.
By contrast, I’d never been better prepared for a trial. I’d been working nonstop for six months and knew every fact backward and forward. As Sarah would sometimes say, usually without humor, I knew more about Vickie Tiernan, Macy’s accuser, than I did my own daughter.
It’s a cliché that trials, like wars and athletic contests, are won in the planning. But clichés are such for a reason—they’re usually true.
The trial lasted two weeks. Jury selection took almost half that time, mainly because Judge Ringel had an expansive view of what constituted good cause for dismissal. The experts testified for a day each—the prosecution’s guy saying that Vickie Tiernan suffered a trauma consistent with forcible rape, and our guy saying the exact opposite—and the rest of the trial was the he said/she said that is the hallmark of all rape cases.
Vickie Tiernan was on the stand for two full days. You could hear her nervousness when she said her name, and I knew that no matter how she performed on direct, she’d be in trouble when I got my chance.
And that’s exactly what ended up happening.
All modesty aside, I cross-examined the hell out of poor Vickie Tiernan. It was the kind of cross that you see on a bad Lifetime movie, where the defense puts the victim on trial. Not one of my proudest moments, but one of my best professional ones nonetheless.
The jury heard that she was a twenty-two-year-old high school dropout with two children by two different men, and she had no idea where either man lived today. After the rape charge against Macy, she’d filed an assault charge against her current boyfriend, and then dropped that charge, which opened the door to a series of questions in which I accused her of having a history of fabricating charges against men with whom she had willingly chosen to have sex.
Vickie Tiernan had testified on direct that she delayed reporting the rape because she needed two days to summon the courage to make the charge, given Macy’s celebrity status. But on cross, I made the point, over and over again, that she was not summoning strength so much as calculating profit. She admitted she was deeply in debt and had been contacted by lawyers about filing a civil suit against Macy. Although she claimed that she had not retained any of them, she conceded that they’d advised her it would be that much easier for her to prevail in a civil suit if Macy was convicted. And while she vehemently denied that she’d ever had sex for money, the mere repetition of my questions on the subject made it impossible for the jury not to think that there might be some truth to the claim.
When Wong rested the prosecution’s case, I thought we had a better than 50-50 shot at an acquittal if we didn’t put on a defense. When I floated that idea to Macy—resting now, without his taking the stand—he shot it down without a second thought.
So, we put on our expert, who testified on direct that Vickie Tiernan’s physical condition was consistent with consensual intercourse, and then conceded on cross that he could not definitively rule out the possibility of rape, especially if the assault had happened, as Tiernan claimed, a few days before she’d reported it. In other words, he offered the mirror opposite testimony of the prosecution’s expert.
That meant it was all going to come down to Darrius Macy.
There’s a school of thought among certain members of the criminal defense bar that your client should never take the stand. Benjamin Ethan was of that belief—I’d heard him say many times: “There’s nothing the client can say that I can’t phrase better in my closing, and the prosecution doesn’t get to cross-examine my closing.”
I’m of the other view, however—if you don’t talk, you don’t walk. But that works only if your client can sell it. To make sure Macy could, we held hours of mock questions, and a small army of consultants and lawyers would critique every word of his answer (“Call her Vickie, not Ms. Tiernan—and definitely never refer to her by a pronoun—to establish more of a feel that you actually knew each other”). Focus groups analyzed everything from his demeanor (sit forward in the witness chair so you look engaged) to whether he should wear a tie (yes, but monochromatic), and even whether his children should sit beside his wife in the gallery (no, they were too young and the testimony was too sexual). And because Macy was used to analyzing game film, we taped most of the sessions so that we could watch them together at the end of the day, while I offered further critiques.
By the end of our preparation, Macy’s testimony was much more like a scripted play than a search for the truth, which is exactly what I wanted. Wong, obviously chastened a bit by Judge Ringel’s rulings during the Tiernan cross, let me ask whatever I wanted without objection, and I took full advantage. At tim
es it seemed as much like Macy was doing an ESPN interview as defending himself against rape charges. He went on about the struggles of his childhood, how his mother was a single mother like Vickie Tiernan, and so he understood how desperate such a situation could make you, and he spoke at length about his Super Bowl heroics, to the obvious pleasure of the eight male jurors who seemed to feel privileged at having such an intimate view of a superstar.
It was truly a virtuoso performance. I ended the direct examination with the million-dollar question. “Mr. Macy, did you rape Ms. Tiernan?”
And he hit it out of the park. “No. No, I absolutely did not. What I did was terrible, to my wife, to my children, to my teammates, and to this city. To them I have apologized and will make it my life mission to regain their trust. And while I am very sorry that Vickie seems to be so emotionally distraught about what happened, I know that I am not to blame for the misfortunes in her life. I take full responsibility for my conduct, which was terrible in its own way. I broke a vow I made to my wife and to God to be faithful, and as a result of breaking that vow, I have hurt people I love, who trusted and depended on me to be a better man. But something I learned on the football field is that we all get knocked down. What matters most is how you get up. I have pledged to Erica that I will never betray her again, and that I will seek her forgiveness through my conduct. And just as I have sought the forgiveness of those I have wronged, I am willing to offer such forgiveness to Vickie for making these false charges against me. It’s not my place to judge the pressure she was under that caused her to do this, but I pray that she, too, can make amends and move on with her life.”
The jury got the case late on Tuesday. We didn’t hear a word from them on Wednesday. On Thursday morning they asked to hear the parts of Tiernan’s direct testimony when she claimed that she had repeatedly screamed the word stop.
Macy asked me what I made of the jury’s inquiry, and I told him that there was no possible way even to venture an educated guess. “They either want to hear it because they believe her, and that means they’re going to convict, or because they don’t believe her, and that means they’re going to acquit.”