Gone Again: A Jack Swyteck Novel

by James Grippando

  “We have an argument for ineffective assistance of counsel. Your trial lawyer was an alcoholic. He failed to follow up on important leads.”

  “What’s the chance of winning on that?”

  “The problem is that if you read the transcript, Herb doesn’t come across as ineffective. He’s a high-functioning alcoholic, at least in the courtroom. No one would fault him for advising you not to testify. That was a strategy call—and, frankly, it was probably the right one. I would have given you the same advice. I give ineffective assistance maybe a five percent shot. Probably less.”

  “Shit. Anything else?”

  “Nothing I have any degree of confidence in.”

  He looked away, then back. “Okay. Then there’s your answer, Swyteck.”

  “And the answer is . . .”

  He swallowed hard, and in what surely was a reflex, he brought his hand to his throat and stroked it exactly where Volkov had been slashed. “I got no choice. Go for it.”

  “Good decision.”

  “Just one thing, Swyteck.”

  “What’s that?”

  “Don’t fuck it up, man. Please. Don’t fuck this up.”

  CHAPTER 50

  Courtroom tension. Jack had felt it many times before. Often it came with a dose of self-doubt and second-guessing. Should I have stricken juror number five? Should my client have testified in his own defense? Should we have taken a plea? On that Wednesday morning, the tension was laden with doubts of a different stripe—and perhaps a touch of cynicism: Is there anyone in this courtroom who is telling the truth?

  The trip to and from FSP had left him stiff and exhausted, but the adrenaline was pumping—and Jack was determined to get an answer.

  “Mr. Swyteck, please proceed with your cross-examination,” said Judge Frederick.

  It was just after six, and the judge had allotted exactly one hour for Carlos Mendoza. Jack had that much time to pick the witness apart. He rose, buttoned his suit coat, and stepped forward.

  “Thank you, Your Honor.”

  Jack understood the size of his task. It would have been hard enough to raise questions in the minds of jurors—to simply make them wonder if Mendoza had been involved in the disappearance and murder of Sashi Burgette. Herb Graner had missed that opportunity at the trial three years earlier. At this stage, Jack couldn’t simply stir things up and hope that, in the confusion, a jury would find “reasonable doubt” and vote for acquittal. At the habeas stage—even with his client’s life on the line—Jack had to convince a federal judge that Carlos Mendoza was such an important witness that the prosecutor’s failure to point the defense in Mendoza’s direction was a violation of Dylan Reeves’ constitutional rights.

  Jack approached and stopped just a few feet away from the witness. He faced Mendoza squarely, planted his feet firmly, and looked his target straight in the eye. It was the “I’m in control” body language that made for effective cross-examination.

  “Mr. Mendoza,” he began in a firm voice, “you don’t deny that—”

  “Excuse me, could I have a glass of water, please?” asked Mendoza.

  Jack stared at the witness for a moment, then glanced over his shoulder into the public seating. Mendoza’s lawyer was watching from the first row, and she seemed pleased. Like any good lawyer, Maddie Vargas assumed that Jack had worked long and hard on his first question—the wording, the delivery, the cadence. The interruption was calculated to throw him off: it was the courtroom version of “icing the kicker”—a football coach calling a time-out just as the opposing team’s place kicker was about to kick the winning field goal.

  “Surely,” said the judge. “Some water for the witness, please.”

  A courtroom deputy filled a plastic cup and brought it to the witness. Mendoza drank slowly, seeming to enjoy the fact that all eyes were upon him. Or perhaps he was taking one more look around the courtroom to see who had come to watch the show. Debra and Gavin Burgette were seated at opposite ends of row one in the public gallery, as far away from each other as possible. Several reporters had shown up, though the media seemed far less interested in the fate of Dylan Reeves when someone other than Sashi’s parents was on the stand.

  “I’m finished,” the witness announced.

  “Wonderful,” said the judge, but he was looking straight at Mendoza’s attorney. “Ms. Vargas, there will be no more of this sort of nonsense, please,” he said, completely onto her tricks. “Mr. Swyteck, proceed.”

  Jack went straight to it. Hannah had prepared a PowerPoint of photos and exhibits that Jack needed. He brought up the first photo on the screen: a mug shot.

  “You recognize this man, don’t you?”

  “Yeah. That’s Mikhail Volkov.”

  “Mr. Volkov managed the Bali Hai Motel, correct?”

  “Yes.”

  “He testified before the grand jury against you, correct?”

  “He did.”

  “You subsequently entered a plea of guilty to charges of sex trafficking, correct?”

  “Right.”

  Jack brought up the next photo on the screen—one that Theo had snapped on his cell phone the night before. “This is also Mr. Volkov, right?”

  “It looks like him.”

  “You see the scar on his neck?”

  It was clearly visible, but Mendoza flashed a puzzled expression and shook his head. “I don’t see any scar.”

  The judge leaned over and gave him a stern look. “It’s as thick as a rope, Mr. Mendoza. Witnesses do not play games in my courtroom. Now, take another look and answer the question.”

  His gaze shifted toward the screen. “Oh, that scar. Yeah, I see it.”

  “That scar wasn’t there before Mr. Volkov testified against you, was it?”

  “I have no idea.”

  “Mr. Volkov managed the motel where you lived, right?”

  “Yeah, that’s what I said.”

  “You lived there for six months.”

  “About that.”

  “You saw him every day.”

  “Almost.”

  Jack was satisfied: the judge knew that Mendoza was a liar who would lie about everything. It was time to move into the substance.

  Jack returned to his table and took the notebook from Hannah. “Your Honor, the court has heard testimony from Debra Burgette that in the six-week period prior to her daughter’s disappearance, Sashi had some sexually explicit communications with strangers over the Internet. I want to question this witness about some of them, but I prefer to use this notebook rather than flash the images bigger than life on the screen.”

  “Any objection from the State of Florida?”

  “Yes, we strongly object,” said Carmichael, rising. “This hearing started out as a limited inquiry into whether or not Sashi Burgette is still alive. Mr. Swyteck has kept pushing and pushing to the point that we are now essentially retrying the case. This notebook was made available to the defense before Mr. Reeves’ trial but his lawyer never offered it into evidence.”

  “Mr. Graner would have offered it,” said Jack, “had the prosecution lived up to its obligations and disclosed the fact that Debra and Gavin Burgette were in rehoming negotiations with a human trafficker before Sashi disappeared.”

  “That’s a cheap shot,” said the prosecutor. “Mr. Swyteck knows that at the time of those communications, neither Debra nor Gavin Burgette knew that Carlos Mendoza was a criminal.”

  “I wasn’t taking a shot at the Burgette family, Your Honor. Before the trial began, the police had Mr. Mendoza in custody and they had in their possession the disposable cell phone that he’d used to call the Burgettes. All I’m saying is that the police and prosecutor should have connected the dots, realized that Carlos Mendoza might have had a connection to the disappearance of Sashi Burgette, and complied with their disclosure obligations under the United States Constitution and the Supreme Court’s decision in Brady v. Maryland.”

  “Save the legal arguments for your briefs,” the judge said.
“The objection is overruled. But I’m not giving you carte blanche, Mr. Swyteck. For the tenth time: this is not a retrial.”

  “I understand, Judge.” Jack turned to the witness and handed him the notebook, which was opened to the appropriate page. “You’ve seen this photograph before, haven’t you?”

  “Nope. Never.”

  “You recognize the face in that photograph as Sashi Burgette, don’t you?”

  He looked again. “Yeah. Very pretty girl. A shame what happened to her.”

  The judge leaned over again. “Just answer the questions, Mr. Mendoza.”

  “Yes, Judge.”

  Jack retrieved the notebook and handed him another exhibit. “Mr. Mendoza, yesterday you testified that your first communication with Debra Burgette was through a message board called Way Stations of Love. Do you recognize this exhibit as a printout of those online communications?”

  He checked it and nodded once. “Yes.”

  “What’s the date of your first message-board communication?”

  He checked again. “August tenth.”

  Jack stepped away, holding the printout in one hand and the notebook in the other. “So it’s your testimony that the naked selfies that Sashi Burgette sent to Mikhail Volkov on August third were completely unrelated to the communications you initiated with Debra Burgette on August tenth.”

  He thought for a moment, seeming to make sure he wasn’t stepping into a trap. “Yeah. That’s what I’m telling you.”

  “The one had nothing to do with the other?”

  “That’s right.”

  “A total coincidence, you say?”

  “Objection. Asked and answered for the third time.”

  “Sustained. Point taken, Mr. Swyteck. Move on.”

  Jack went to the table and put the exhibits aside. Then he returned to his place before the witness. “Mr. Mendoza, you testified yesterday that you spoke to both Debra and Gavin Burgette about rehoming their daughter Sashi. Is that right?”

  “Yes.”

  “You found a couple in Tampa who were interested in taking Sashi. Correct?”

  “That’s right.”

  “And at some point they changed their mind; that Tampa couple were no longer interested in Sashi. Do I have that right?”

  “Yeah. Uh-huh.”

  “You believed that the Burgettes were serious about rehoming Sashi.”

  “Right.”

  “You thought you had a deal with them, correct?”

  “More or less.”

  “You were angry when the Burgettes backed out.”

  The prosecutor was on her feet again. “Objection. That wasn’t the testimony of the witness. The Burgettes did not back out. Mr. Mendoza testified that he called off the deal.”

  “Sustained.”

  Jack moved on. “You’re not in the business of rehoming adopted children, are you, sir?”

  “No. This was my first attempt.”

  “The only business you were in was the trafficking of minors in the sex trade. Isn’t that right?”

  “I never did that, except that one time. The one I was convicted for. I’m sorry I did it, and I’m paying my debt to society now.”

  Jack almost expected Maddie Vargas to stand up in the gallery and applaud her client’s speech. “When the rehoming deal with the Burgettes fell apart, you still wanted Sashi, didn’t you.”

  “I wouldn’t say that.”

  “You created the power of attorney that was needed to rehome Sashi. That was your testimony yesterday, right?”

  “Yes.”

  “You drafted it so that the power of attorney was granted to you, correct?”

  The witness hesitated.

  “I have a copy of yesterday’s transcript if you need it,” said Jack, and it did the trick.

  “Yeah,” said Mendoza. “I made it out to me.”

  “You did it that way because you never intended to rehome Sashi with anyone in Tampa.”

  “That’s not right.”

  “You intended to keep Sashi, didn’t you, Mr. Mendoza?”

  “No. The deal fell apart. End of story.”

  “But you can’t remember the name of the couple in Tampa.”

  “No, I forgot it.”

  “Let’s be honest, Mr. Mendoza. That couple never existed. Did they, sir?”

  “Objection.”

  “Overruled.”

  “That’s completely false,” said Mendoza.

  Jack took a step closer to the witness—as close as he could get without the judge telling him to back away. “Now, Mr. Mendoza, were you aware that Dylan Reeves had been watching Sashi Burgette for several days before she disappeared?”

  “Objection, Your Honor. Once again, that evidence is not in the record.”

  Judge Frederick scratched his head. “Ms. Carmichael, I’ve been at this since nine o’clock this morning, and even with my brain half fried, I would know enough not to object to that question if I were the prosecutor.”

  She took the hint: Jack’s point did seem helpful to the prosecution. “I’ll withdraw the objection.”

  Mendoza answered. “Uh, no, I didn’t know that. But I’m not surprised.”

  “You’re not surprised because you asked him to watch Sashi, didn’t you?”

  “No.”

  “So this is huge coincidence number two—is that it?”

  “Objection. Vague.”

  “I’ll clarify,” said Jack. “Mr. Mendoza, your testimony is that you—a sex trafficker—tried to convince the Burgettes to rehome their daughter. You drafted a power of attorney granting all parental authority to yourself. And it was a complete coincidence that Sashi was simultaneously being watched by Dylan Reeves. Do I have that right?”

  “Stranger things have happened.”

  “Yes, stranger things did happen, didn’t they, Mr. Mendoza? Isn’t it a fact that you thought Sashi Burgette would be a perfect fit for your sex-trafficking business?”

  “I didn’t give it any thought.”

  “That’s why you tried to convince the Burgettes to rehome her, isn’t it?”

  “No.”

  “That’s why you gave yourself power of attorney.”

  “No again.”

  “You were angry when the rehoming deal fell apart.”

  “I—not really.”

  “You spent six minutes on the telephone with Mr. Burgette trying to persuade him to reconsider.”

  “No, he offered to pay me a hundred grand to take her.”

  “Really? And was that going to be Visa, MasterCard, or American Express?”

  “Objection.”

  “Sustained.”

  Jack stayed with it, sensing that Mendoza was beginning to boil. “When the rehoming deal fell apart and you couldn’t put Humpty Dumpty back together again, you came up with a new plan.”

  “I have no idea what you’re talking about.”

  “You asked Dylan Reeves to bring Sashi to you.”

  “I didn’t ask him to do anything.”

  “Dylan Reeves failed you, and that’s when you took matters into your own hands.”

  Mendoza narrowed his eyes, and Jack could see that he was getting under his skin. He hoped the judge could, too.

  “I still don’t know what you’re talking about.”

  Jack took another step closer. “You took Sashi Burgette.”

  “That’s a lie,” he said, his voice rising.

  “You took her, and within hours, if not minutes, you found out why the Burgettes considered rehoming her. Sashi Burgette was way more than you could handle.”

  “Not true.”

  “You bit off more than you could chew. You had to get rid of her, and you killed her.”

  “No, sir.”

  “You killed her, and only you know where her body is.”

  “Objection, Your Honor. Mr. Swyteck has crafted a very interesting story, but there’s not a single fact to back it up.”

  The judge hesitated. He clearly had his doubts abou
t Mendoza, and he knew Mendoza was a sex trafficker and a liar. Jack seemed to have his judicial mind engaged. But the prosecutor was right.

  “Sustained. Mr. Swyteck, I need to reel you in here.”

  “My apologies, Your Honor.”

  “No need to apologize. But we do need to move this along. If we finish on schedule, the prisoner can be transferred back to FSP tonight.”

  “Just one more question,” said Jack, as he turned to face the witness. “Mr. Mendoza, Mikhail Volkov knows what you did to Sashi Burgette, doesn’t he?”

  “You’ll have to ask Mr. Volkov what he knows.”

  It was the answer Jack wanted. “You’re right,” he said, and then his gaze drifted toward Judge Frederick. “You’re absolutely right. We need to ask Mr. Volkov. No further questions, Your Honor—for this witness.”

  Jack returned to his seat at the table beside Hannah. She said nothing, but she seemed to know as well as Jack did that he hadn’t hit the home run they needed. Jack’s hope was that the judge would bite at his suggestion and let him call one more witness.

  “Any redirect examination?” asked the judge.

  “No, Your Honor,” said the prosecutor.

  “Then that concludes this evidentiary hearing.”

  Jack popped to his feet. Subtlety was not the solution. “Judge, Mr. Mendoza testified at some length about a man named Mikhail Volkov. The petitioner would request the opportunity to call—”

  “Judge, really?” said the prosecutor, interrupting. “When is this going to end?”

  “It’s going to end now,” said the judge, turning toward the defense team. “Mr. Swyteck. Ms. Goldsmith. You’ve done admirable work, and your commitment to your client has been nothing short of exceptional.”

  Oh, God, thought jack. Compliments to the defense lawyers: the judicial kiss of death.

  “This court has reviewed the extensive record in this case. The court has allowed post-trial discovery and conducted a post-trial evidentiary hearing that went well beyond the scope of relief ordered by the court of appeals. The petitioner has had the opportunity to present and cross-examine new witnesses. I have weighed the credibility of witnesses, considered the substance of their testimony, and reviewed hundreds of pages of new exhibits. Based on all of this, it is the court’s determination that Mr. Reeves was afforded a fair trial. The state of Florida probably could have been more diligent in complying with its pretrial disclosure obligations to the defense, particularly with respect to communications between the Burgette family and Carlos Mendoza. However, any and all errors alleged by the petitioner had no impact on the verdict of guilty or the sentence of death by lethal injection. Any such errors were what the law regards as ‘harmless error.’