by Adam Mitzner
I tried to take advantage of the pause. “Your Honor—” But Judge Pielmeier wouldn’t hear of it. She interrupted me with a wave of her hand.
“It’s not your turn yet, Mr. Sorensen. Just like in kindergarten, you have to wait your turn. Now, Ms. Kaplan, do you have anything to offer us in this enlightened discussion about pubic hair?”
So much for my buying goodwill.
Kaplan followed Ethan’s script, so much so that it occurred to me he likely drafted it for her. Right down to her standing when she addressed the judge.
“The prosecution has no dog in this fight,” she began, a phrase that didn’t seem natural coming from a woman wearing what I’d wager were five-hundred-dollar shoes. “Nonetheless, we certainly agree with both points made by Mr. Ethan. First, as Mr. Ethan said, the criminal procedure rules do not permit a defendant to obtain this type of discovery. And purely as a matter of decency and fairness, there’s no reason for someone of Mr. Brooks’s standing in the community to be humiliated—to have his marriage threatened—on nothing more than the unsubstantiated allegation that he was having an affair with the victim. In fact, Your Honor, allowing the defendant to pursue this type of discovery would sully two people’s reputations without any basis. Not only will Mr. Brooks’s reputation be irrevocably compromised, but Roxanne’s will be damaged as well. Many young girls looked up to her, and it would be a true tragedy if in death she was turned into some type of home wrecker, especially when there is absolutely no evidence of any sexual relationship between Mr. Brooks and Roxanne.”
The moment Judge Pielmeier turned to me, I knew I was in deep trouble. Her eyes were narrowed, like she was about to go for the kill.
“You got to admit,” the judge said, “they make a strong point. There’s no evidence you’ve presented that suggests Mr. Brooks and the victim were even intimate. You could just as easily be asking for my pubic hair now, couldn’t you, Mr. Sorensen?”
Even though I felt foolish doing it, I stood. “Your Honor, we have evidence that the hairs found in Roxanne’s bed came from a non–African American—”
“Congratulations, you’ve narrowed it down to ninety percent of the population, or thereabouts,” Judge Pielmeier said.
“That may be true, but what’s important is that it eliminates the defendant as a potential match.”
“But it doesn’t mean that person is Mr. Brooks, now, does it? And that’s all we’re talking about.”
“That’s precisely why we’re asking you to enforce the subpoena,” I replied. “If the hair belongs to Mr. Brooks, that proves the point. And if it doesn’t, then that also proves the point.”
Judge Pielmeier actually looked to be enjoying the back-and-forth. “How about that, Mr. Ethan?” she said. “Mr. Sorensen is telling me that all it’ll take is a few yanks of your man’s privates, and we’ll know for sure whether your man left this little gift in the victim’s bed.”
“Not to be disrespectful, Your Honor, but after Mr. Sorensen concludes that the pubic hair in Ms. Wells’s bed was not left by Mr. Brooks, why isn’t the same argument he makes now equally applicable to his asking for anyone else’s pubic hair? Just think about it for a second: he’s got as much basis for asking Mr. Brooks to provide a sample as he does you, as Your Honor just suggested.”
“Well, not mine, Mr. Ethan,” Judge Pielmeier said with a chortle. “He needs a white person’s hair. Maybe yours, though.”
“The court has driven home the point for me,” Ethan said, a triumphant smile on his face. “The exact same argument Mr. Sorensen makes now with regard to Mr. Brooks is equally applicable to my pubic hair, and to everyone’s pubic hair he decides he wants to test. ‘What’s the harm?’ Mr. Sorensen will say. If it matches, then it was a good thing he was able to get the hair. And if it’s not a match, then he will move on to the next person. I submit, Your Honor, that is precisely why the legislature expressly limited the kind of discovery that a defendant can obtain, to avoid these types of fishing expeditions that do, indeed, harm innocent third parties. No matter what Mr. Sorensen says, news of his request will get out into the media, and that will forever follow Mr. Brooks. The only way to avoid that is for this court to quash the subpoena.”
Judge Pielmeier turned to me. “What’s your evidence of this sexual relationship?”
I knew I needed to really sell it. Unfortunately, I also knew I didn’t have much to sell.
“We have evidence that Mr. Brooks was with Roxanne at a hotel only a few days before the murder,” I said.
“What hotel? Where?” the judge asked.
“In South Carolina. That’s where Roxanne was staying over the holiday. Mr. Brooks was also there.”
“Your Honor,” Ethan interjected, coming to his feet. Although I was hoping that Judge Pielmeier was going to tell him that it was my turn now, I knew that she wouldn’t. “This is the first I’ve heard of this, so I cannot, at this time, confirm or deny the truth of Mr. Sorensen’s claim. However, it does not matter. Even if Mr. Brooks was there, and I reiterate that I have no reason to believe that to be the case, it would hardly be surprising, given that Mr. Brooks and Roxanne Wells did work together. It is entirely possible that Mr. Brooks was in South Carolina on business.”
Judge Pielmeier gave him a raised eyebrow. It emboldened me.
“Your Honor,” I said, “we also had a witness that saw a man matching Mr. Brooks’s description kissing Roxanne in front of her home.”
“You’re getting warmer with the kissing part,” Judge Pielmeier said, “but what do you mean you had a witness?”
“We spoke to this witness a week or so ago, at which time she told us that she observed Roxanne kissing someone who matched Mr. Brooks’s general description. At the time, we had no reason to suspect Mr. Brooks was her lover, because we didn’t know about Mr. Brooks and Roxanne being together at a hotel in South Carolina over Thanksgiving. The other day, however, we returned to the witness’s home to ask whether the man she saw Roxanne kissing was Mr. Brooks, but we were told that she was no longer in the country. We are trying to track her down, but we’re not sure we’re going to be successful on that front.”
Ethan was quick to respond. “In other words, Your Honor, they have nothing. No evidence of a sexual relationship whatsoever. And as I said before, the law is quite clear on this issue. Even if there was a sexual relationship, the defense is still not entitled to obtain this type of discovery. The legislature has already weighed in on this subject and, with all due respect, Your Honor, it is not for the courts to override the legislature.”
“You have anything for me on that, Mr. Sorensen?” Judge Pielmeier asked.
Ethan was right on the law, which didn’t give me much leeway to convince Judge Pielmeier that he was wrong. So I played the fairness card.
“This defendant is being charged with a crime that, if he were to be convicted, could likely send him to prison for the rest of his life. Surely he’s entitled to obtain evidence to defend himself against such charges.”
Judge Pielmeier smiled at me, and for once I didn’t feel like she did so in a mocking fashion. This was worse, however. She felt sorry for me. She knew that I should be right, and yet I wasn’t.
She looked down at her notes, which suggested that she had decided the outcome of this hearing well before anyone said a word. Then she turned in the direction of the court reporter and began to read her decision.
“Defendant’s subpoena requesting fingerprints and pubic hair samples from Matthew H. Brooks is hereby quashed. Pursuant to the rules of criminal procedure, specifically, section 240.20, the type of discovery sought by defendant’s motion is not permitted to the defense.”
Ethan stood again. “We request that this hearing be filed in the court’s records under seal, and that the court further order counsel to refrain from discussion of the motion or its result.”
“That seems to be a reasonable request. So granted.”
I looked over at Ethan, who stared right back. At least he wa
s enough of a professional not to smirk in triumph.
33
As soon as we got out of the judge’s chambers Benjamin Ethan sidled up to us. “We should talk.”
“Whenever you want,” I replied, trying my best not to seem too deflated by the events in court.
“No time like the present. We can borrow the witness room.” He turned back to the others. “Lisa, do you have a few minutes to join us?”
I wasn’t sure what I found more disturbing: that Ethan invited the ADA to a meeting, that he was on a first-name basis with her, or that she immediately agreed with an “Of course.”
We all assembled in the witness room. Ethan took a seat at the head of the table, as if he was chairing this meeting.
Kaplan spoke first. “I’ve got a belated Christmas gift for your client. I’ve been authorized to make a very generous plea offer. Man one, with a sentencing recommendation of fifteen. With good-time credit, he’ll be out in ten.”
Kaplan delivered the offer with a grimace, which told me she was clearly not happy to have had her case hijacked by Benjamin Ethan and the powers that be in the DA’s office. And she was right—the offer was a gift. The statutory sentence for the top count of the indictment, murder in the second degree, was twenty-five to life. Kaplan’s offer meant the difference between L.D. attending Brianna’s high school graduation and possibly never seeing the outside world again.
The first rule of negotiating is never to accept the opening offer. So I pushed back a little, mainly to see if Kaplan might shave off a couple of more years.
“It sounds to me like we’re getting close to the truth about Mr. Brooks’s role in all of this,” I said. “We all know that Judge Pielmeier’s ruling isn’t going to stop us from calling Brooks at trial. What’s he going to say under oath when we ask him if he was having an affair with Roxanne? And we’re going to have evidence of the affair. We’ll find that witness, or another one. Believe me, someone will talk.”
Kaplan said, “You should know that I am not a supporter of giving your client such a sweetheart deal. So if you want to roll the dice, be my guest. But be advised, this is our best and last offer, and it expires the moment we see Judge Pielmeier again.”
Ethan, however, was not so cavalier. In his Dutch-uncle voice he said, “Daniel, you are missing the bigger picture here. Just because Mr. Brooks might—and I say might—have been engaged in a sexual relationship with Ms. Wells, that doesn’t mean your guy didn’t kill her. You know that, right?”
34
The next day we were back at Rikers. It was “Come to Jesus” time.
“I didn’t expect to see you guys until the trial,” L.D. said when he waddled into the small visiting room. His usually smooth complexion was marred by a creased forehead. He knew something was up.
I didn’t say anything as I watched the guards do their thing. When they were done and had left the room, I said, “A lot’s happened since we saw you last, L.D.”
“Yeah, like what?”
All of a sudden the sheer magnitude of just how much L.D. didn’t know hit me. We’d never even told him we were going to Stocks, no less that we’d found out that Brooks had been there over Thanksgiving. Last but not least, there was the plea offer.
I stuttered, trying to find a suitable place to begin. Then I just spit it all out.
“After we visited you, we went down to Stocks, South Carolina. We were hoping that someone down there might know something about Roxanne’s love life. What we found out was that Matt Brooks was there over Thanksgiving.”
“Brooks was there? With Roxanne?”
In a flat voice I said, “We believe that Matt Brooks was having an affair with Roxanne at the time she was killed.”
“That motherfucker, cocksucking—”
I’m sure that the string of profanity would have gone on longer, but I cut him off. “Let me tell you all of it, okay?”
“What else I need to know but that Matt Brooks is setting me up to take the fall for killing Roxanne?”
I assumed the question to be rhetorical, but Nina took it at face value. “We don’t have any proof of the affair, L.D., and we have absolutely nothing linking him to the murder.”
“What about the pubes?” L.D. asked. “Are they Brooks’s?”
“I was getting to that,” I said. “Brooks refused to allow us to test his pubic hair, so we went to the judge to ask her to force him to give us a sample. Unfortunately, we got shut down. That was yesterday. And remember I told you that we had a witness, a housekeeper for one of the families who lived on Roxanne’s block, who saw Roxanne kissing an older man? Well, we went back to her place the other day to see if she could identify that man as Brooks. No good news there, either. She’s left the country.”
“I’m gonna fucking kill that motherfucking Brooks my damn self.”
“That’s not going to help things,” I said.
“Just so there’s another point of view represented here,” Nina said, “it is also entirely possible that Brooks was down in Stocks for some business reason and the man the housekeeper saw was someone else. And in that case, the pubic hair could belong to the guy the housekeeper saw, or just some random guy Roxanne picked up or something. We just don’t know, L.D., so that’s another reason why making threats of murdering Matt Brooks isn’t the thing to do right now.”
“Besides,” I said, “that’s not even the most important thing we came here to talk to you about. After the hearing, we met with Kaplan and with Benjamin Ethan.”
“Who’s he?”
“He’s Matt Brooks’s lawyer. He, or rather Kaplan, with a strong push from the Brooks camp, made us a very attractive plea offer.”
“No,” L.D. said firmly. “No fuckin’ way.”
“L.D., you need to hear me out,” I said, trying to be equally resolute. “She offered a jail term of fifteen. That means you’ll likely be eligible for parole in ten, maybe even less than that.”
He was already shaking his head that this offer, and I suspect any offer, was completely unacceptable. Then he put a point on it: “Fuck you.”
“We’re not the enemy here,” Nina said. “We’re trying to help.”
“If you want me to say that I killed Roxanne when I didn’t, then you fuckin’ are the enemy. You sure as hell ain’t friends.”
No one said anything for a few seconds.
“You’re right, L.D.,” I finally said. “We’re not your friends. But we are your lawyers. And as such, we have a duty to tell you the truth. Not what you want to hear, but the truth. And so here it is: You were Roxanne’s boyfriend and you have no alibi for the night she was murdered. The prosecution is going to claim that she dumped you, and that’s motive. And that goddamn song . . . everybody on earth has heard you say—some people would say brag—that you’re going to beat a singer to death with a baseball bat.” I stopped and shook my head at him, as much in sadness as in anger.
Nina said, “That’s why it’s our professional opinion that you should take this deal. We don’t think we can win with what we have.”
I expected something of a tirade in response, but L.D. seemed to be in complete control of himself. Almost too calm, given the circumstances.
“So lemme ax you something, then, Dan. If I take this deal, and I do whatever you said, ten years, fifteen years, do you get to spend that time at home in your bed?”
There was no emotion to the question. No sarcasm at all. It was like he really wanted to know the answer.
“Yes,” I said.
“And if I don’t take no deal, and we go to trial, and I lose, and that motherfuckin’ judge, she throw the book at me and I do life, no parole, fifty or sixty years, what happens to you then?”
I knew where he was heading on this, and felt obliged to play along. “Nothing,” I said. “I’m still going home to my own bed.”
“That’s right. And so that’s why I don’t give a fuck what you think I should do. Because I know. I didn’t kill Roxanne, and that’s all that matters
to me.”
“That’s all that should matter,” I said, “but you know that it’s not all that does matter. You don’t need me telling you about the real world, but, just in case you might have forgotten, innocent men do go to jail. Especially if they’re black and are accused of killing white women. We’re not saying that we think you’re guilty. But we are saying that, based on the evidence as we know it right now, a jury will find you guilty. That’s what matters here. I know that ten years seems like an eternity, but it’s not. You won’t be much older than Nina when you get out and a lot younger than me. Look how much life there is to be had after that. How can you give all that up?”
He shook his head again, looking almost betrayed. It was as if he’d been trusting that I’d understand why he was making this decision, and now he was all alone.
“You really don’t get it, do you?” he finally said. “I can live with a bad result, even if I have to live with it in prison for the rest of my life. But I can’t live with myself anywhere if I say I beat Roxanne to death. Which. I. Did. Not. Do.”
35
Our last pretrial conference was held four days before the real deal was to begin. Judge Pielmeier had it made clear that she wanted to get right to jury selection on Monday morning, and so she had scheduled this appearance for the parties to voice whatever last-minute issues had arisen.
For us, that meant being heard on our motion in limine, which was our effort to keep the “A-Rod” song from the jury. Nina pegged the odds of our success at roughly the equivalent of L.D. nabbing the Nobel Peace Prize.