The Edge of Justice

by Clinton McKinzie

  Other columnists and commentators picked up on the theme. They openly discussed my brother and his manslaughter conviction, theorizing that we were cut from the same cloth. Devastated by the lives I'd taken and my brother's incarceration, I read the articles with a horror that finally culminated in a simple numb depression. For the last year and a half I had felt as if a low-pressure system, the kind so intense that it sucked tornadoes from across the plains, had settled over me. For a long time now I have fantasized about punching Don Bradshaw in the face and releasing the storm.

  But when I pass him in the aisle of the packed courtroom, I repress the urge even though my anger is undiminished. I'm just too weary. So I hit him with my mouth instead of my fist.

  “Hi, Don. Your boy out of rehab yet?” I ask. Even before I arrested him for dealing ecstasy, he had a juvenile conviction for sexual assault. Bradshaw's son was a stereotype for his generation: a selfish, narcissistic, spoiled young man. And he got a better deal than any other kid in his position simply because of the influence and fame of his journalist father. A deferred judgment would forever dismiss the case as long as he completed a rehabilitation program.

  Bradshaw responds in kind. “Howdy, QuickDraw. Kill anyone lately?”

  “Not lately. But who knows, maybe I'll have to come by your house with another arrest warrant sometime. . . .”

  He blanches at the threat, and I immediately feel like an ass. McGee overheard the short exchange from where Rebecca seated him in the front of the courtroom. He whacks me across the ankle with his cane before pulling me down beside him with a quaking hand.

  “Christ, Burns. . . . What are you trying to do . . . set back the reputation of . . . Wyoming law enforcement . . . fifty years?”

  I roll my eyes. “If only they knew, Ross.”

  He grunts to silence me. The quiet ride from Laramie had improved his color. The coughing is still fierce but not as frequent. Rebecca sits close by him, holding his other heavy paw. I know this is a bad sign, just as was his allowing us to help him into the truck. That McGee is accepting support and pity means he is close to the edge.

  My attorney approaches us. Clayton Wells looks about eighteen years old and now wears a pathetic goatee in an attempt to make himself look older, more masculine, more assured. But it's an obvious mask. No one looking at his nervous, unblemished face could mistake him for anything but a scared kid right out of law school. I've never asked him how many cases he's tried. I didn't really want to know, but I expect this is his first. I heard that none of the other civil trial attorneys in the AG's Office wanted to touch this case.

  “You've been doing good, Agent,” he tells me with a smile, attempting to be funny, to be one of the boys. “See if you can get them to attack you again in the courtroom here, in front of the judge.”

  I just stare at him until he looks away and busies himself with the papers on his desk. Young attorneys who work for the state or a local prosecutor's office are all too often frightened to take on the defendant, his attorneys, and a system of justice that is partial to everyone but the police. They're willing to sell their souls to avoid a trial. Once they become experienced and more cynical, they leave to make more money as defense or plaintiff's attorneys and take advantage of those they were once like.

  “How come you never called me back?” he says, trying again at conversation as he shuffles nervously through his papers. “We might have been able to settle this. We still might be. The office has authorized me to offer up to fifty thousand to each of the families.”

  “Clayton, do you really think Mo Cash would take that? He stands to make more from the state just for his attorney's fees, even if he loses.”

  At the table just ten feet away sits Morris Cash, popularly known as Mo Cash, who represents the Torres, Lopez, and Gallegos families in their suit against the AG's Office and myself. He's a florid man, dressed sharply in a suit too fancy and stylish to have been bought in Wyoming. Armani, I guess. And Cash can afford it. It's rumored that in this case, like his others, he keeps forty percent of any damages as his contingency fee. And even if he loses, even if no money is awarded to his clients, a federal law allows him to recoup his attorney's fees from the state. He has quite a racket going, and he's said to be quite good at it.

  Cash notices me looking at him and winks. That's his style. In court, on the record, he is both ferocious and contemptuous. But in person he can be as amusing a man as I have ever met. Once, in a simple distribution case where I testified as the arresting officer, he offered me the “services” of his client, who also worked as a stripper when she wasn't selling brown heroin. For that, all I had to do was change my testimony a little. At the time I laughed but knew he wasn't joking. She was standing next to him when he made the extraordinary offer, and she'd smiled at me.

  The bailiff pounds the gavel and calls out, “Hearye, hearye, hearye. The United States District Court for the District of Wyoming is now in session, the Honorable Judge John S. Upton presiding. God save the United States and this honorable court!” I move up to the table and stand beside my attorney. The judge comes out and allows us to sit.

  McGee has told me about Judge Upton. He was a corn-fed Wyoming cowboy, literally, before becoming a lawyer. Appointed to the bench by a liberal president who is despised across the state, the judge is unaffected by politics because unlike state judges, as a federal judge he's appointed for life. Rather than a former cowboy, he looks like a recently retired professional football player, easily six foot five and with a build to fit.

  “Gentlemen, I've read the pleadings and the amended pleadings and the amended, amended pleadings.” He shakes his head at the amount of paperwork he has been made to read. “Do you have anything else to add by way of oral argument? You first, Mr. Wells. It's your motion.”

  My attorney looks at me, his eyes wide in fear. The judge has just taken the bench and already things are moving too fast for him. I nod at him encouragingly, then finally poke his leg under the table with a pen. When he gets to his feet he is visibly shaking. He steps behind the podium and grips its upper edge until his knuckles turn white. When he begins to speak, his voice squeaks. Mo Cash catches my eye and again winks at me.

  In a quavering voice, Clayton starts to repeat exactly what he wrote in the pleadings he filed with the court to support the motion for summary judgment. I suppress a groan. The judge displays his agitation, tapping his fingers on the bench before him, the sound amplified by the microphone, but my attorney is oblivious to it, caught up in his own nervousness. After a few more sentences the judge cuts him off.

  “Mr. Wells, I told you I read the pleadings, amended pleadings, et cetera. If you don't have anything new to add, then sit down and shut up.”

  I want to slump lower in my seat. Not only is Mo Cash grinning at me, but so are his clients—the parents of the men who tried to kill me. Clayton apologizes to the court in a sudden rush and sits down. He doesn't look at me again.

  “Mr. Cash, anything you want to add?”

  Cash doesn't even bother to rise out of his chair. “No, your honor,” he says smugly. Motions for summary judgment are only rarely granted. Only if there are absolutely no facts in dispute will the judge rule to dismiss the case.

  I'm surprised and relieved to see Cash lose his grin when the judge tells him, “Good, because I have some questions for you. Exactly what evidence do you intend to present to show that Agent Burns here wasn't acting in self-defense?”

  Now Cash rises. “Your honor, it's all there in the pleadings and in our answer to the defendant's motion.”

  “Exactly where, Counselor?”

  Cash's face becomes shiny in the courtroom's fluorescent lights. He begins rifling through papers on his desk while the judge again impatiently taps his fingers near his microphone. Finally Cash stands erect again and proudly holds up a sheaf of paper. “In our answer to the defendant's motion, you can see on page thirty-two that I intend to call two friends of the victims. Both of them will testify that Dom
inic Torres, Luis Gallegos, and David Lopez had absolutely no intention of harming Agent Burns that evening. Their affidavits are attached at the end.”

  Cash has recovered his composure. But not for long.

  “Tell me if I'm wrong,” the judge asks, “but aren't your witnesses in prison?” He puts on a pair of glasses and reads, “Let's see, for robbery, sexual assault on a child, kidnapping, et cetera? Crimes that were committed the night of the shooting?”

  Cash smiles weakly. “Unfortunately that's true, your honor.”

  McGee leans over from the first row of the spectator benches and hisses to my red-faced attorney, “It's also hearsay.” I understand what he means—with a few limited exceptions, one witness cannot testify to the words or intentions of another. In this case they shouldn't be allowed to testify that the deceased did or did not intend to kill me.

  But Clayton ignores McGee.

  “Tell the judge that,” I say to him, again poking him in the leg with my pen. He shakes his head and continues staring down at the legal pad in front of him.

  I push back my chair and stand. “Excuse me, your honor, but I don't believe his witnesses can testify.” The entire courtroom turns to stare at me. The judge's bailiff looks aghast that a nonlawyer would dare speak uninvited in her courtroom. Despite the judge's frown, I go on, “Their testimony would be hearsay.” Exhaustion has emboldened me.

  There's a long silence, then the judge says with a smile he tries to suppress, “Mr. Burns, you sit down too. You let your attorney speak for you, understand? Now, Mr. Wells, do you have something to tell me?”

  Clayton gets unsteadily to his feet. He gives me a dirty look before saying, “Your honor, the testimony Mr. Cash is referring to would be hearsay.”

  “Good point, Counselor,” the judge says. Clayton nearly collapses back in his chair with relief. “Mr. Cash, I believe defense counsel here has a point. How do you intend to admit this testimony of your felons?”

  Cash looks beseechingly at the row of his paralegals that sit just behind the plaintiff's table. None of them will acknowledge his silent plea. I speculate that Cash has so many cases going on at any one moment that he lets his paralegals and junior associates handle everything but the trials, hearings, and public appearances. And his assistants don't look much older or much more experienced than my lawyer. “Well, Judge,” he finally says, “I believe that some of the hearsay exceptions will apply.”

  “Oh? Which ones?”

  Cash looks again to his paralegals unsuccessfully. I hear a couple of the reporters in the back of the room snicker and McGee begins to cough. Even Clayton raises his head from the legal pad and smiles. I don't, though. I know the judge will turn it back on us. The rare, good judges like Upton pride themselves on being tough but fair. What goes around will come back and slap us in the face. They are equal-opportunity punishers, brutal in their treatment of sneaky, pompous, or incompetent lawyers.

  “Even if you are somehow able to get around the hearsay rule, Counselor, do you really expect a jury is going to buy the story of your two felons who kidnapped and raped an eight-year-old girl that very night?”

  “There's also Agent Burns's testimony, your honor. I plan to cross-examine him.”

  “Oh? Hasn't Mr. Burns already testified under oath during the depositions that he acted in self-defense? How will that help your case?”

  Cash is really grasping now. But instead of being amused, I hate him for what he says next. “I'll impeach his credibility, your honor.”

  “With what?”

  “His brother is an escaped convicted killer—”

  Even Clayton knows enough to leap to his feet and loudly object to that. But Cash goes on over Clayton's high-pitched voice, “And when he filled out his application to become a law enforcement officer, he signed an affidavit saying no one in his family had ever been convicted of a crime.”

  I hiss at Clayton, “I signed that two years before my brother was convicted!”

  Clayton repeats it to the judge, “He signed that two years before my, excuse me, his brother was convicted, your honor.”

  The judge sighs and shakes his head at both attorneys. Then he speaks to Cash.

  “Do you think you're going to have a Perry Mason moment as you cross-examine Mr. Burns? Do you think you're a brilliant enough interrogator that you'll break him up there on the stand? Mr. Burns doesn't look like he breaks easy, Counselor. Look at those bruises on his face—it appears somebody may have already tried that and failed. Now I know that you have a reputation as a hotshot litigator, although I've yet to see why, but I don't think anyone's that good except on TV. I'm tempted to find for the defense right now that there's no genuine issue of material fact. If I were you, I'd be talking settlement with Mr. Wells here.”

  Both the attorneys' confidence has turned around 180 degrees. Cash is red-faced and looks ill, although I know it won't last. Attorneys like him are shameless. Clayton Wells, on the other hand, is positively beaming. Hubris, I think. But for a moment even I'm hopeful. Then I wince when the judge turns his penetrating stare toward the defendant's table.

  “Don't look so pleased, Mr. Wells. If a jury somehow were to believe Mr. Cash's witnesses, you could be in for the biggest wrongful death verdict in the history of Wyoming.” I see Clayton visibly swallow. “And I can assure you, Counselor, that a verdict like that wouldn't look very good on your résumé. I suggest that you make Mr. Cash a generous offer. I'm going to recess for ten minutes. I expect that the two of you will have worked this out by then.”

  Fifteen minutes later Clayton comes out from a conference room alone. His face is whiter than normal, his skin glossy with sweat. He sits down at the table next to me and looks as though he might cry.

  “I thought we had it,” he says to me.

  McGee had pulled off his oxygen mask when Clayton first sat down. He growls, “What the fuck happened?”

  “I offered them everything, fifty grand per family, the maximum I was authorized to offer. Cash said he'd take it. I called the office to get the approval and was connected through to the Attorney General himself—the man's never said a word to me before. He said there's to be no offer. None. He said he wants it to go to trial; he wants you, Agent Burns, ‘to sweat it out.' ”

  Only rarely have I heard anything like the haranguing the judge gives Clayton in chambers when Cash indignantly tells the judge his previous settlement offer has been revoked. It reminds me of the times my brother and I bicycled around the bases on which my father was stationed and listened to the drill sergeants abuse the new recruits. I feel truly sorry for my attorney. He has been pulled into a game that he was never schooled in, a game he doesn't even want to play. My pity is so great that I risk interrupting the judge to say just that.

  Upton angrily demands to know what I mean.

  McGee, who had hobbled into the judge's chambers after us clutching his oxygen bottle, answers for me. “There's a pissing contest going on,” he rasps, “between Burns and the AG . . . about a case he's investigating . . . in Laramie.”

  The judge slams his massive hand on the desk and says to us all, “Then you tell the Attorney General to come across the street and see me. I want to hear from him by tomorrow afternoon. That's an order. I'm not going to be wasting my time and the taxpayers' on a case that's tried out of spite.”

  I wish I could be there to see the AG get reamed by the angry judge.

  Back out in the judge's private hallway Morris Cash is lurking as I somewhat impatiently wait for McGee, who's a friend of the judge. I'm anxious to get back to Laramie and back to work. I intend to have an arrest warrant for Heller and Brad Karge drawn up within two hours.

  Cash sticks out his hand and grins at me, but I ignore both the hand and the smile. He should never have brought my brother into it and he knows it.

  “C'mon, Agent Burns,” he says plaintively. “I got to do my job. Anyway, you got trouble with the office, you call me. We'll sue the shit out of them together.”

&n
bsp; I intend to respond with a simple “Fuck you,” but the words don't leave my lips. Out of the corner of my eye I see McGee down the hall arguing hotly with someone in a suit. He looks as furious as I've ever seen him. McGee has both hands on the head of his cane, which is shaking like a rattlesnake's tail. His face is again a pasty white above his beard. The quiet force of the words he's speaking sends a spray of spittle into the air. I don't immediately recognize the man in the suit he's speaking to, but know he's familiar. Then it comes to me—he's the Assistant Attorney General, the office's second-in-command. He's also my boss's boss.

  I walk away from Cash and toward the two.

  The Assistant AG, seeing me, says somewhat nastily, “Ah, Mr. Burns. Just the man I've been looking for.” Anyone in McGee's clique is automatically suspect in the administration's eyes.

  “What can I do for you, sir?”

  “You can start by giving me your badge. I have the unfortunate duty of informing you that as of now you're officially suspended, pending the filing of criminal charges for the deaths of Dominic Torres and two others.”

  I look to McGee in outrage. But he's staring fixedly at the Assistant's chest, his lips white, his cane beginning to whirl in ever-larger circles beneath his weight. His mouth is open but he has stopped breathing. Then he teeters to one side and starts to collapse.

  “Ross!” I lunge toward him and catch his head and shoulders before they hit the ground.

  “Get an ambulance!” I shout at the Assistant AG. He's standing frozen a little ways away from us, having taken several involuntary steps back. “Do it now!” I yell again to break his trance.

  He comes to his senses and turns to go for a phone. As he turns away from us I swear I see him smile.