by David Ellis
I once knew a man named Lyle.
26
THE COURTROOM OF Nicole Bridges is on the fifteenth floor of the County Building, the same floor on which Bennett used to work as a prosecutor. I’m hoping this will bring good luck. Because luck is something a criminal defendant searches for around every corner, especially when he’s more likely to find a small gaggle of reporters who want a photograph and a comment.
There are four by my count, someone from the Watch and smaller local papers, only one from television. We are setting a trial date today, nothing more, so there’s not much for a story. But anything having to do with this prosecution will merit at least a paragraph on page 3 of the Metro section.
We stride right by the media, Bennett politely refusing to comment. I try to smile myself, like I’ve seen countless public officials do in the midst of scandal. But I’m not cut out for it, never was, and I’m unable to muster any facial movement beyond a frozen glare.
The courtroom is not heavily populated with spectators, only a handful of people sprinkled throughout the seven rows. The walls are walnut, decorated with the state and county seals and the U.S. flag.
A young woman in a light blouse and curly hair approaches us. “Mr. Carey?” she asks. She appraises him, seems favorably impressed. I can’t imagine a woman who wouldn’t be. “The judge wants the parties in chambers.”
We follow the woman behind the bench, through an open door. Daniel Morphew is already seated in the secretary’s office. “Gentlemen,” he says.
The young woman opens the judge’s office door and speaks softly. Then she turns to us. “You can go in.”
Morphew rises and extends his arm. We walk in first. My first look at my judge.
Nicole Bridges is not in her robe. She is seated at her desk, wearing a buttoned lavender silk blouse. She has large eyes, thin eyebrows, smooth dark skin. Her hair is long but pulled back in a clip at her neck. A sensation I never would have imagined in meeting the judge grips me. She is undeniably attractive.
“Counsel,” she says without looking up from a paper she appears to be signing. She looks at the court reporter, sitting in the corner of her office with hands poised over her transcriber. “Let’s go on.”
“Good morning, Your Honor,” says Ben. “William Bennett Carey appearing with the defendant, Jonathan Soliday.”
“Morning, Judge. Daniel Morphew for the People.”
“Nice to see you all.” Her Honor’s voice is appropriately even, no hint of a city accent. She places her hands on the desk and looks at us. “You’re here for a first status.”
“That’s correct, Judge.” Bennett speaking.
“Okay.” The judge looks at some notes. “This is a first degree?”
“The defendant is charged with murder in the first degree,” says Morphew. “He is charged with murdering Dale Garrison in his office on August 18, 2000.”
“Let me stop you there, Counsel.” She gives the prosecutor something close to a smile. She is not overly sober, I can see, a nice relief from some of the sour old judges in these courtrooms. “Dale Garrison appeared before me on two occasions, two different cases. Looking back over my files, I see that he represented defendants in cases of aggravated kidnapping and an attempted murder. To the extent it’s relevant, each of his clients was found guilty by a jury. I don’t see anything to show that these convictions were overturned on appeal. I found Mr. Garrison to be highly competent and professional. Other than that, I don’t have any personal opinion of the deceased. I don’t see even a hint of a conflict here. But I wanted to make everyone aware. I don’t take SOJs personally.”
A motion for substitution of judge, she means. Every party in every case, criminal or civil, gets a “free one,” the right on at least one occasion to ask for a different judge. If we looked around for a judge who never had Dale Garrison in his or her courtroom, we’d either end up with a fresh-faced juvenile court judge or someone out of state.
“We’re comfortable,” says Morphew.
“We agree with Your Honor’s assessment,” says Bennett.
“Fine. Why don’t we start with a trial date.”
“Your Honor,” says Ben, “we seek the earliest trial date possible. These charges are outrageous, and my client seeks the earliest possible moment for vindication.”
Daniel Morphew gives a quick look at my attorney. He seems surprised. It was something Ben and I discussed, something Grant and I considered as well. Some would say, take as much time as possible, especially when you’re trying to find the real killer. But I want to win this case right now, as soon as possible, before the election. I want to win this thing and turn it around on Langdon Trotter and his henchman, Elliot Raycroft.
“Then you will not waive the speedy trial,” the judge says to Ben.
“For the record, no, Your Honor.”
“Mr. Morphew?”
“Thank you, Judge. Certainly, Your Honor, we understand the need to move expeditiously. The constitution gives us ninety days. We would be happy with sixty.”
“Why do you need sixty days, Mr. Morphew?”
“Standard preparation, Judge. As well as schedule conflicts.”
“Well, Mr. Morphew.” The judge raises her eyebrows. “If you have other trials scheduled, perhaps I would take that into account. I was under the impression that your trial schedule was rather light these days.”
Morphew laughs. “It’s good to be back in the trenches,” he says. “I’m certainly willing to be as flexible as need be. I’m not asking for trial on the ninetieth day.”
“But I’m still waiting for a reason why we couldn’t try this case in a month.”
The prosecutor regards the judge a moment. There must be something between these two; Morphew used to be in charge of her when they worked together at the county attorney’s office. Now she’s calling the shots. My take on Morphew is he’s probably a little gruff, certainly old school. It wouldn’t surprise me if there was tension between a career prosecutor who grew up in the office before there were any females and probably few African-Americans, and an intelligent, ambitious black woman.
“A month? Judge, I have witnesses to line up. We’re still—we’re still putting the case together.”
“If I could, Judge.” Bennett. “If they haven’t put their case together yet, then I have to wonder why my client was arrested at all.”
“I think everyone here knows better than that.” Morphew adjusts in his seat. “I’m in no way suggesting that we have anything other than a rock-solid case against the defendant. By the defendant’s own admission, he was the only person with the victim when he was strangled. I hope opposing counsel will keep that in mind before he vents his indignation.”
“We all understand the rigors of formally preparing a case for trial,” says Judge Bridges. “But can we be more specific, Mr. Morphew?”
“Judge, I’d like to go off the record, if we could.”
The judge considers the request. “If we go off the record, that’s fine. But then we will go back on, and I will decide to what extent our off-the-record conversation goes on.” She nods to the court reporter, who places her hands in her lap.
“Judge.” The prosecutor speaks in a quieter tone. “We found a blackmail note written to the defendant. It was fairly cryptic. We think the victim was blackmailing the defendant. The defendant won’t tell us why he was at the victim’s office. That’s his right. But it means we have to dig around.”
“Motive isn’t an element of the crime,” says Ben. “It’s just icing.”
Morphew opens a hand. He maintains his composure. “Of course it’s not essential, in the technical sense, to our case. But we’re trying to put together a puzzle.” He pauses a moment. “Am I asking you to extend this trial beyond the constitutional limit? No. Am I seeking the last possible hour of the last possible day? No. I’m just asking for sixty days.”
The judge turns, without offering any overt response, to Bennett. “How do you feel about forty days
?”
“What’s the date you’re thinking of, Judge?” Ben opens his calendar.
“Wait,” she says. “I can’t do that. I have a trial starting at the end of that week that will go at least two weeks.”
Both the prosecutor and Bennett hold their breath. That means she’ll set the trial closer to sixty or closer to thirty, depending on how she’s leaning.
“October…October second.”
She went our way. Just over thirty days until trial.
Four weeks before the election.
“Fine with us, Judge.”
Morphew does not conceal a frown.
The judge places her hands under her chin. “Anything else?” Both sides say no. “Okay, let’s go back on.” She nods to the court reporter, who poises her hands.
“We’ve set a trial date of Monday, October second. Let’s hear motions in limine September twenty-ninth. File them with me two days before.” The judge looks up from her calendar and folds her hands on the desk. “Before we continue, I want to address something Mr. Carey raised. There is obviously a volatile aspect of this trial. I’ve read the papers. I’ve read the articles linking the defendant to Senator Tully, and I’ve read the articles where you, Mr. Carey, have accused the prosecution of doing the dirty work of the Attorney General. That’s your right, in the media. But I want it clear that I do not look favorably on unsupported accusations in my courtroom.”
“Of course, Judge.” Bennett nods.
“I will be entertaining any appropriate pretrial motions on that point, and I will expect any opposition to those motions to be supported by facts.”
“Of course.”
“Now, Mr. Morphew, you had a motion for a protective order, I believe.”
“Yes, Your Honor. The People ask that the parties be barred from commenting on the facts of this case to the media. There is a jury pool out there, Your Honor, that is being treated to daily doses of unsupported accusations about the motives of this office.” The prosecutor is wisely picking up on the judge’s earlier admonishment. “For the next several weeks, potential jurors will be tainted from these unfounded reports.”
“As well as information accusing the defendant of the crime,” adds the judge. “Information which favors your side, Mr. Morphew.”
“All the more reason, then, to shut off the faucet.” A nice response from the prosecutor. “Let’s not give the jurors any bias for either side. We don’t want it. We don’t need it. Let’s get the best jury we can.”
The judge seems impressed with the argument. She looks at Bennett.
“Your Honor,” he starts, “there are constitutional rights at stake here. A court should only abridge the right to expression where it is necessary for the rights of the accused. Well, Judge, we’re the accused, and we don’t want the gag order. If anything, the gag order will prejudice us more.”
“Could you explain that to me, Mr. Carey?”
“Judge—whether detailed information comes out or not is only part of the problem. The mere fact of the prosecution itself—under these circumstances, when my client is a top adviser to Senator Tully—the mere fact of the prosecution is news. As are the comments of nonparties to this case. Editorial writers, commentators, other politicians. Everyone and his brother have an opinion on this, if not an ax to grind. And none of those people would be covered by your order. So the public will read endless articles about this high-profile trial of Senator Tully’s aide, and how any surprises may or may not impact the race for governor. It’s out there, Judge, it’s all over the place, and there’s nothing we can do about it. The prosecution now wants to say that we can’t give our side of the story. That’s outrageous. That’s a complete affront to our rights.”
The judge observes Bennett a moment, making sure he’s finished. “Mr. Morphew? Anything else?”
The prosecutor shrugs. “On the one hand, Mr. Carey accuses me of wanting to drag this whole thing out. He says we want to stain his client and Senator Tully in the media. But I’ve filed a motion to keep everything inside this courtroom out of the media, and now he accuses me of trying to abridge his rights. Counsel is speaking out of both sides of his mouth.” He leans forward, frames his hands in front of himself. “Judge, we’ve kept this evidence about the blackmail note out of the public eye. We haven’t breathed a word of it. We could have. It would have been perfectly within our rights. But we are trying to be responsible. We don’t know exactly what the facts of this blackmail note are yet, so rather than run to the media with a lightning rod of an accusation—can you see the headlines, Judge?—we are keeping it quiet. If we really wanted to stain Senator Tully, we’d be yelling ‘blackmail’ at the top of our lungs.” He pauses a moment, then adjusts his tone. “We believe that what happens within the corridors of our office should stay there until trial.”
“But you’re not suggesting I keep out the media?” The judge has a look of concern. “It’s one thing to tell the parties not to grandstand, another to tell the press they can’t come in.”
“I’m suggesting we hold all pretrial hearings in chambers—no press—and that the parties not speak out at all.”
The judge looks down at her desk. “You both make good points. I understand that the defense does not want the gag order, and that’s an important concern. But my overriding concern is the integrity of this trial, which includes but is not limited to the concern for the defendant. If the defense intends to use its access to the media to stir up a wave of support, I worry for the taint to our jury pool. And I certainly can’t issue an order which limits Mr. Carey to only making certain comments and not others. So in the interest of the integrity of this trial, I must grant the People’s motion. The parties are hereby barred from making any statements to the media concerning this trial.”
We can’t talk to the press? I look at Bennett; he returns the stare briefly before considering his next move. We want the idea of a political persecution to play out not only for my defense in this case but for Grant Tully’s sake in the campaign. The senator has been careful not to comment on the matter, and so far his colleagues in the senate have followed suit. It has been Bennett, in his capacity as my defense attorney, who has taken the lead. Now he can’t?
“Judge,” says Bennett, “we withdraw our jury demand.” This catches the attention of judge and prosecutor. “We’ll take a bench trial.”
My mouth opens briefly before I catch myself. A bench trial. Judge Bridges as the trier of fact. It makes some sense, I suppose. Bennett had mentioned the idea to me. I just didn’t know he was going to decide on the spot.
“You are waiving the right to a jury trial?” the judge asks.
“We are,” says Ben. “And we would hope that you will reconsider your ruling in light of this fact.”
“Well—” The judge looks at Morphew. “Counsel, can you think of any reason to issue a protective order when there’s no jury to taint?”
Morphew adjusts his glasses. “Well, Judge. This is a different set of circumstances.”
“Mr. Soliday?” The judge is looking at me. I was not prepared to be addressed in this room. “Do you understand that you are waiving your right to a jury trial?”
“I do,” I answer without hesitation. For some reason, I sense the need to appear confident, in control.
“Well, in light of the withdrawal of the jury demand, I see absolutely no reason for this order. So I will reconsider my ruling and deny the People’s motion for protective order.” She looks at Bennett with a wry smile. “Mr. Carey, your First Amendment rights are alive and well.”
Bennett thanks the court. The Honorable Nicole Bridges sets a date in a couple of weeks for a status hearing. The three of us leave her chambers, walk in silence out of the courtroom.
We allow Daniel Morphew the first elevator. We won’t travel together. When the doors close, I turn to my defense attorney. “Nice switch-up,” I say. “But a bench trial?”
“It’s what we want anyway, I think,” says Ben. “You have a lot
more latitude with a bench trial than with a jury. A judge trusts herself to disregard testimony that is irrelevant or inflammatory much more than she trusts a jury. That’s the theory, at least.”
“And that helps us,” I say, more a question than a comment.
“Yeah. We may have to point a few fingers in this trial. Most judges would put a clamp on us before the jury heard too much. Judge Bridges would make us go back in chambers and explain ourselves, and have a solid foundation for our accusations before we got back before the jury. But with a bench trial, judges usually let you go on, assuring both sides that they can separate the relevant from the irrelevant in reaching their verdict.”
“And that helps us,” I repeat.
“Sure it does. Because no matter how much you say you’ll ignore irrelevant testimony, it’s not completely true. Judges are human beings. They can’t just shut out information in their possession because it’s technically irrelevant. The brain doesn’t work that way. Especially when it helps the defense. No way she’ll convict someone who she believes in her heart is innocent, whether that’s based on relevant or irrelevant evidence.”
“Bennett.” I take his arm. “You still haven’t told me how that helps us.”
“It helps us because we’ve got a blackmail note out there that we can’t explain. So I might have to get creative.”
“Creative,” I say, “as in throwing out some inflammatory, possibly irrelevant accusations?”
An elevator opens up for us. “Of course, Jon. If that’s what it takes.” Bennett steps into the waiting elevator. I watch him pass and regard him a moment before following him in.