Against the Wind

by J. F. Freedman

  Anyway, this is only a hearing, a first step. At best what I get from Judge Martinez is the chance to present fresh evidence showing that the original trial was tainted, and that he should grant a new one. Even if we win here, the odds are long that Martinez will ultimately reverse his decision. But the beginning of the process starts here, and it’s vital, because if we strike out this time, it’s curtains.

  Robertson fought me tooth and nail; he was bitter when the judge ruled he’d hear the appeal, based solely on testimony from a self-admitted perjurer.

  “Last time I was a gentleman,” he told me. “This time I’m not taking any prisoners.”

  “Not by the hair of my chinny-chin-chin,” was my flip-the-bird reply.

  Privately, I’m legitimately outraged that he’d take such a hard line. This enmity between him and me has gotten too bitter for my taste. We’re lawyers, can’t he remember that? Can’t he remember that the bikers saved his ass, the governor’s, everyone’s, just a few months ago? He’s taken such a stand on this, on a principle floating on quicksand, that if it doesn’t go his way it could do something terrible to him.

  We glare at each other as Rita swears to tell nothing but the truth and takes her seat.

  There are only a few people in the courtroom. Mary Lou and Tommy are at my table with me; on the other side, Robertson sits next to Moseby, with Gomez and Sanchez in the first row behind them.

  I lead her through the deposition that she gave in Denver. She’s scared, but speaks calmly, directly. Occasionally Martinez asks her a question, mostly for clarification. Otherwise, it’s low-key.

  Robertson takes over after lunch. He strolls up to her, strikes his aw-shucks pose.

  “Have you ever read a book called Alice in Wonderland?” he asks her.

  “No, sir.”

  “You’ve heard of it though, haven’t you?”

  “Yes, sir. Didn’t they make a movie?”

  “Probably,” he says dryly, “they’ve made movies about everything. So you know generally what it’s about.”

  “Sort of,” she answers tentatively, as if she’s afraid he’s going to quiz her on it and she won’t have the answers.

  “Do you know what I think?” Robertson continues, kind of smiling at her, almost in a friendly fashion. “I think that you have read Alice in Wonderland, Miss Gomez.”

  “No sir. I never have.”

  “I think you read Alice in Wonderland and thought to yourself ‘doggone this sure is neat, the way everything gets twisted all around in here ’till nobody knows what the truth is, if there is any truth to begin with.’ That’s what you thought to yourself after you read Alice in Wonderland, isn’t it?”

  “No. I told you. I never read it.”

  “What is it they say in that book?” he asks rhetorically. “About black being white and everything’s turned upside down until you can’t tell what’s what … curiouser and curiouser is one of the phrases, do you remember that, Miss Gomez?”

  “How could I if I never read it?” she asks, bewildered.

  “And you thought, boy, it sure was fun in that book the way truth got stood on its head. More fun than I’ve ever had. I’ll bet it’d be neat to do something like that … to turn the truth on its head.”

  “No!”

  “Objection!” I say. “He’s badgering her. Furthermore, this line of questioning is ludicrous.”

  “Is it?” Robertson roars, turning to me. He turns back, faces the judge. “Is it any more ludicrous than this complete fabrication that this witness has come in here with today? She makes Alice look like Diogenes, your honor.”

  “Make your point, counselor,” Martinez chides him.

  “My point, sir, is that everything this witness has said here today is a pack of vicious lies, a pack of frightened, evil lies of a paranoid, confused woman. This woman was on the stand for a week at the trial, your honor. She was grilled mercilessly by not one but four separate and distinguished lawyers for the defense. None of this bilge was ever remotely alluded to. And now, more than a year later, she mysteriously materializes and recants everything. On the face of it, it’s impossible to believe what she’s saying.”

  Rita Gomez is out of it now; it’s between Robertson and the judge. I watch his face as Robertson illustrates how bogus her entire new story must be.

  “If this witness is telling the truth now,” he says passionately, “then the entire District Attorney’s office, and the entire Santa Fe police force, are corrupt from top to bottom. If she’s telling the truth now, I’m corrupt.”

  He’s looking up at him, daring Martinez to call his bluff. Martinez has no intention of doing anything of the kind; John’s a fair-haired boy in these parts and an acknowledged straight-shooter.

  “Let’s look at what she’s said today,” he continues. “She was told by an assistant District Attorney that if she didn’t lie on the stand she would be arraigned as an accessory to murder. If that statement is true, that man, who is my top trial assistant, who has conducted hundreds of trials, is corrupt.

  “If what this admitted perjurer says is true,” he presses on, “if what is true now was false then, they fed her information. They made the case for her. If that’s true, those men are guilty of obstructing justice in a murder case. They could go to jail until hell freezes over if that is true.”

  I’m watching the judge; he’s paying close attention to what Robertson says.

  “How much coincidence are we willing to believe?” Robertson asks him. “How is it that this admitted perjurer, who knew the men that were subsequently convicted by an impartial jury and are now awaiting the properly and soberly arrived-at carrying out of their sentence on Death Row for this heinous crime, how is it that she knew them, she was with them on that night, she was with the victim on that night, the convicted murderers knew the victim and were seen with him on that night, she was raped by them, on that night, the victim was murdered by them in the same location where they raped her, on that night, all of this is indisputable, it isn’t being called into question here today, how is it with all that coincidence, somehow they didn’t kill him? It’s impossible to believe that. As I stand here and recount it for you now it’s impossible to even consider. Listen to what she’s saying.”

  He turns and looks at her.

  “According to her, someone got to her. She says, now, not then, but now, more than a year later, that it was the police, the prosecutor’s office. Well, she’s lying.”

  He leans in to her. She jerks back in her chair.

  “Maybe she’s telling the truth,” he says. “Partially. Maybe someone did get to her. But I warrant it wasn’t the police or my deputy. I’ll stake my reputation on that. I’ll put my career on the line. If someone did get to her,” he says, “it was someone from the Scorpions, the outlaw bikers who committed that murder. They found her and they threatened her and they scared her to death. They’re a hell of a lot scarier than Mr. Moseby, I guarantee you that.”

  “They did not!” she yells.

  Martinez pounds his gavel.

  “Please restrain yourself, Miss Gomez,” he admonishes her. “This is not a trial, but a hearing.”

  “Objection, your honor,” I say.

  “On what grounds?” he asks me.

  “This is a summation, your honor, and a damn fanciful one at that.”

  “And this is a hearing, Mr. Alexander. Not a trial.”

  Having put me in my place, he nods to Robertson to continue.

  “Isn’t it much more logical to conclude, your honor, that what I’m saying now has the ring of truth, and that this witness’s testimony today is a frightened attempt to save her skin? Isn’t that where she’s coming from, if you look at this with any objectivity at all?”

  He walks back to his table, leans up against it, calm now, in control (not that he always wasn’t).

  “The point of this hearing today is to decide whether there is a compelling reason to grant a new trial. I repeat, a compelling reason. And there
isn’t. You know it and I know it. All we’re being presented with here today is one solitary witness who’s saying one thing now and another thing at another time. That’s over, if it may please this court. That’s what the trial was about. Whether her testimony, and that of dozens of other people, was truthful or not. The jury made its decision. It’s over now. It’s history. This petition must be denied or we will all be party to a terrible miscarriage, not only of justice, but of our entire legal system.”

  Martinez takes a half-hour break. He asks Robertson and me to join him in his chambers.

  “Your argument’s great, John,” he tells Robertson. “But if she really was lying then, four innocent guys are going to die. Do any of us want that on our conscience?”

  He turns to me. “Do you have any other witnesses, any other evidence, anything to present, that will bolster your position?”

  Read between the lines, he’s saying. You’re a hero, you helped the state, but you have to give me something else if I’m to help you now; if this is all you have it’s thin gruel, he can’t go against the District Attorney after he’s put forth such a compelling argument.

  Before I can answer, the phone rings. Martinez picks it up, listens a moment.

  “Yes, I am,” he replies to whatever question’s been put to him.

  He cups the receiver, peers over it at us.

  “The governor,” he says quietly.

  He listens again.

  “Yes, I know,” he says at length. “I’m fully aware that these men saved eleven lives. I agree with you—they deserve consideration.” He listens again for a moment, shakes his head. “No. I won’t go so far as to say I think they’re innocent, not even to you in private. They probably aren’t, the case against them was strong and compelling. But I tend to agree with you that if there’s any possibility, any shadow of a doubt that this witness could have perjured herself earlier, then they deserve to be given another chance.”

  He listens for another moment.

  “I will, and thank you.”

  He hangs up, looks at us.

  “The governor thinks they deserve the benefit of the doubt.”

  “If there was one,” Robertson replies, hanging tough. “The governor’s entitled to his opinion, but the law’s the law.”

  Stubborn bastard. You’ve got to hand it to him.

  Martinez looks at him coolly. “I’m aware of the law,” he responds without emotion.

  There’s a letter of commendation from the warden. Also a strong plea from the eight guards and the three women. The bikers, especially Lone Wolf, saved their lives.

  “While in chambers, I received a telephone call from the governor,” Martinez states. We’re back in open court. “He asked that I give whatever consideration I can to the plight of these men who helped avert what could have been a major tragedy.” He pauses, looks off above our heads. Then he’s back to business. “I thanked him for his advice and support, but I reminded him that I have to base my decision on the law. And nothing else. He understood.” He bends down to our brief, looks up again.

  “Please understand that I am casting no aspersions whatsoever on you or anyone in your department or on the police,” Judge Martinez now says, staring intently at Robertson.

  “In fact, in looking at the present evidence, I believe that a second jury, in a second trial, will come to the same conclusion that the first jury came to. But under the circumstances, I feel it is proper, and will serve the cause of justice, that these men be allowed the chance to have another trial, because even if there is only a one percent chance that there was perjured testimony at the first trial, fairness compels us to examine the case once again.

  “Therefore, we are granting defendants’ motion for an evidentiary hearing for retrial on the original charges.”

  Robertson accosts me in the hallway.

  “I guess you’re feeling pretty good,” he says. He’s surprisingly calm for having lost one he wanted so badly.

  “Better,” I reply.

  “This was politics,” he says, his voice under control. “Pure and simple. You were a hero, you helped the state out of a mess, we threw you a bone. Now we’re even. They’re still guilty and they’re still going to pay for what they did, Will. And I’m going to personally escort that little old lady in the wheelchair to the execution when it happens.”

  I watch him walk away, ramrod-straight. It isn’t a case with him anymore; it’s a cause, a vendetta. Let him rain on our parade. We won today. We’re alive.

  PART FOUR

  PATRICIA WAS FIRED. SHE calls, naturally, while I’m in a closed-door meeting. An important meeting, with an important client and his wife. A client who, if I do my job right and well, is going to make me a lot of money.

  Susan tip-toes in, apologizing profusely for disturbing us, of course she wouldn’t have if Patricia hadn’t told her it was urgent. She whispers this message in my ear, that my former wife needs my counsel immediately; then quickly, before my blood-pressure starts elevating dangerously, she assures me that Patricia wanted me to know it isn’t about Claudia, Claudia isn’t hurt or anything like that. It isn’t about her at all. Just so I don’t panic.

  “If it isn’t about Claudia, then whatever else it is doesn’t matter,” I quietly tell Susan. I turn, smile reassuringly at the clients. “My daughter lives with her mother, in Seattle. My former wife … the first one,” I add, needlessly modifying. Shut up already, man, they don’t want to know your entire history. They’ve got their own problems.

  They smile back understandingly; they have children of their own. They smile back because they want me to like them. Because they need me, or think they do.

  “I’ll have to call Patricia back. Don’t bother us again,” I instruct her, “unless it’s the Supreme Court or the governor. On the murder appeal.”

  Susan apologizes to my clients and leaves. They smile back understandingly; smiling’s about all these unfortunate people have right now.

  This man I’m with is the first potential new major-money client I’ve had since the firm and I parted company. His name is Clinton Hodges and he’s permanently paralyzed from the chest down with a spinal-cord injury. He can move his head and neck freely, talk and swallow, and he’s got limited hand and arm mobility, but not much. Not enough to hand-push his new Everest & Jennings wheelchair. He had to get the motorized version, the one that lets you do all the work even if you can only move one finger. If you can’t move even one finger, sometimes you can learn to drive the chair by blowing into a tube. Clinton’s not that bad off; he can move his fingers. People like Clinton learn, over time, to count their blessings in tiny increments.

  He’s learning how to drive the wheelchair; some days he does better than other days. Some days he drives the machine into the wall and can’t turn it around. His wife or the technician will find him spinning his wheels like a stuck wind-up toy, pinned up against a corner.

  Forget his functioning normally again; this poor fellow won’t even have the ability to have a regular bowel movement. He’ll need constant attendance and monitoring for the rest of his life. If he’s lucky, he’ll be able to feed himself—if someone hooks the food tray onto his chair, places the utensil in his hand, and folds the hand closed.

  He’s thirty-three years old. When he was able to stand on his own two feet he was six-three, 215 pounds. His wife is terrific-looking, a statuesque brunette. Their oldest kid is eight, and the baby is just a year old.

  Before the accident last year, Clinton coached his son’s T-ball team to a league championship. He’s one of those extremely physically-oriented guys—owns his own construction company, with sixteen full-time employees, which he built from scratch. Last year they netted over a million dollars, and he’d still be out at a site on the weekend, personally pouring concrete. His company’s built up so much business all over the Four Corners he had to get a pilot’s license and buy his own airplane. It was delivered less than six months ago, while he was in intensive care, being fitted
for a halo brace.

  Now he’s strapped into a wheelchair, straining every muscle that still responds, just to try to scratch an itch on his nose. Sometimes the itch goes unscratched.

  Personal-injury cases are how lawyers get rich. Lawyers like me, who don’t have clients like Mobil or IBM. A $3 million liability judgment, which isn’t so outlandish these days, can net the lawyer for the plaintiff a million bucks or more. A couple cases like that and the bills take care of themselves.

  What happened with Clinton was, he’s out riding his bike one bright, sunny morning. A Sunday, it’s the one day he allows himself personal recreation, while the wife and kids are at church—they’re Mormons, pretty devout, but not smug assholes about it. He’s out there with a bunch of his hard-core biking buddies, all strong athletes, they’re racing a hard 50K, he’s somewhere in the middle of the pack, trying to catch another group ahead of him, so he’s about twenty-five yards behind one group and the same distance ahead of another, momentarily separated from a bunch of riders. He’s a good rider but some of these guys ride six days a week, plus they’re five to fifteen years younger, still he’s holding his own, as he’s crossing a thoroughfare the light’s about to turn from green to yellow to red, he’s barreling through on the yellow, he’s clearly got the right-of-way, several witnesses will attest that the light had barely hit yellow when he started through the intersection at thirty-five miles an hour or so on his new boron-graphite racing bike, customized for him at a cost of over two thousand dollars. As he’s pumping through, head down, intent on catching the leaders, a lady trucker who’s hauling a load of drilling equipment is driving in the opposite direction, on the other side of the road. Now this lady truck-driver just had a fight with her husband, who told her to go fuck herself and the horse she rode in on, if she doesn’t like it she can lump it, which means he’s out of there for a couple-three days, he’s done that before, lammed on her and the kids, drunk up his paycheck on Jim Beam boilermakers, the usual domestic grief. So she’s out there on the highway, she’s late on her delivery and when you’re late for her boss you hear about it all afternoon, she doesn’t need anyone else bitching at her, she’s had it up to here, thank you, she’s trying to light a Virginia Slims, drink a cup of take-out coffee, and she’s wrestling through the gears of her twenty-five-year-old Mack, the old-fashioned kind of tugboat no one manufactures anymore. And she’s not doing a good job at any of it, the clutch is almost shot, the brakes are metal on metal. She’s halfway through the intersection before she realizes it’s her turnoff, it’s two miles to the next place she can turn around, she sees that the light is changing, no cars coming from the opposite direction, so she does a fast spin of the steering wheel, down-shifting like her arm’s on a piston, fishtailing a sharp left across the divider, and there’s Clinton. And it flashes through her mind if I stand on the brakes I spill coffee on my new stone-washed jeans and scald the shit out of myself. So she kind of half-brakes, half-swerves, and slides sideways into Clinton, who never saw it coming.