Then I head out to Seattle.
I've got an oral argument to prepare for in the Court of Appeals. It will have to be the best presentation I've ever made.
And it will be. I've been around long enough to know I can make that happen: in fact, I can already hear most of what I'm going to say running through my mind.
I think we've got a shot at winning.
DAY 20/30
Last night I worked until after midnight. Verona was in a deep sleep by the time I slid in beside her. Then I was out.
I awaken in Seattle. It's impossible to tell what time it is—Verona closed the blackout curtains last night. My watch is on the nightstand. I check the time. No wonder it's dark in the bedroom: it's dark outside, too: 5:14 a.m. Time to make hay.
This is day twenty. Only ten days left for Cache, according to the State of Washington. I have lots to do, so I climb out of bed, pull on my robe and traipse into the living room of our suite. The red light on our room phone is beeping. I dial the access code for the message.
It's the Court of Appeals, Clerk's office. Oral argument on my appeal is set for tomorrow at one o'clock in the afternoon. A bolt of excitement shoots up my back. This is actually going to happen.
It can't come soon enough.
I make coffee. One of those things that only makes two cups at a time. But it will do. I notice my coffee standards are getting lower the closer I get to the Court of Appeals.
Over at the desk, I place a call to Marcel. He's been working up the background on Wanda Singh, the pediatrician who wants to take Leo away from us. Marcel doesn't answer. Too early for him? I can only guess. Or maybe off with Dr. Riddell? Who knows with this guy? One thing about Marcel is that ladies love him. He's never been without the company of a woman when he wants one. Which is often. So who knows where he spent the night? I leave a message to call me.
Now I crack my laptop and wait for it to come online. No emails of any import. It's time to file my brief, which I finished last night. Filed. Next, I write out my oral argument—an old habit, so I don't leave anything out. I do this also to make sure I can support every sentence of what I'm going to say, with reference to either a case or a statute to support what I'm telling the court. This exercise will take half the day; the second half will be taken up by researching and differentiating all of the cases that are against me.
The U.S. Attorney will have a jillion cases that they drag out and use against prisoners over and over in cases like mine. But my job is to anticipate what those will be and be prepared to explain to the court how those are different than my case and thus shouldn't control the outcome. I'll also Shepardize all cases, both pro, and con. This means tracing each case to determine if it's been later overturned or changed by a subsequent case that refers to it. Shepardizing is tedious and time-consuming, but it's also where you can lose your butt if you rely on a case in your argument only to have the other lawyer gleefully tell the court that your case has been overturned. That's disastrous and cannot be allowed to happen tomorrow. Finally, I will also Shepardize the State's case to see whether I can set the same trap for them by finding one of their key cases that's been later overturned or modified by a subsequent case. Two can play the same game.
By two o'clock in the afternoon, I'm about halfway through my review of the State's cases, when my phone rings. Marcel calling.
"Hey, Boss. Guess what I'm doing."
"I hope you're dredging up dirt on Dr. Singh that we can use against her to keep Leo with me."
"Better than that," he says, and I can hear the intrigue in his voice.
"All right, I'm clueless. Fill me in."
"Guess who has a dinner date with Dr. Singh tonight."
"Who?"
"Me, Boss."
"You're kidding me. What did you do, get her to agree to an interview?"
"No, I told you, I have a dinner date with her. She thinks I'm a new psychiatrist she met in the doctor's lounge at the hospital."
"Marcel, you amaze me. How did all this happen."
"Easy. I bought a doctor suit at the local doctor store."
"Come on; you stole some scrubs somewhere. Right?"
"That might be more accurate. Then I followed another doc into the lounge and waited. I had made an appointment with her. She finally showed, a half hour late."
"Typical. That's the usual wait to see a doctor."
"Anyway, she shows up, and I introduce myself. We start talking."
"How did you know she'd come to the lounge yesterday?"
"That's where it becomes an art form, Boss. I called her office and told the receptionist that I was opening a practice in town. Then I let it be known that I would like to meet with her to discuss back-and-forth referrals."
"Referrals?"
"Yes, I'm a new psychiatrist in town, and my specialty is kids. She's a pediatrician. She jumped at the chance to meet me. So we set it up for yesterday afternoon at three when she would be making rounds at the hospital."
"Amazing."
"So we chatted. One thing led to another; she agreed to take my referrals and agreed to refer back to me, as well. We exchanged business cards—I only had five cards, printed off my computer. Long story short, we're meeting tonight for dinner. It turns out she's single, I'm single, so we'll see where it goes."
"And you're looking to get dirt on her, am I right?"
"No, Boss. I'm just nosing around to see what her life is about. If something comes up that we can use, so be it."
"Well, I can't say I approve, but I'm amazed at your ingenuity. Plus, I have to say, Leo is going to stay with me no matter what."
"My thought exactly. So how about I call you after my date?"
"Perfect. Don't get crazy on me, but if you turn something up, I'm happy."
"Exactly. Later, Boss."
"Later, Marcel."
We end the call. I can only sit here and shake my head.
Back to my computer. Miles to go before I can join Verona and Leo out at the pool.
I start laughing as I try to refocus on my work. Marcel, a psychiatrist?
Dr. Singh never had a chance.
DAY 21/30
I'm up early the next day. It's argument day. My last chance at saving Cache. I'm so effing nervous I could scream. And stress. It's seeping into my joints and inflaming all muscles and ligaments.
I leave the hotel at 11:30 by taxi. It drops me off just before noon. Very little traffic. The court building is unimposing—two American flags out front and two sets of stairs.
Inside, I head upstairs to Suite 420, the office of the Clerk. At the counter, I check my courtroom and time.
Federal courtrooms are locked until a half-hour before the session starts. So I find a not too uncomfortable bench down the hall where I'll pass the next half-hour. My plan is to study; but, I find, my mind is racing. I meant to be much calmer at this point, but I'm not.
At 12:30 the bailiff opens the courtroom doors. Then I'm inside and headed for counsel table.
Cases scheduled for oral argument are usually assigned twenty, or occasionally thirty minutes per side. Our case allotment is twenty minutes. We've been told that the judges have the briefs and excerpts of the record and they will be familiar with the facts and issues of our case, so there's no need to waste time with a factual introduction or summation. Instead, we are to spend our argument time clarifying issues and responding to questions raised by the judges.
Forty minutes later, we've begun. I'm into it, clarifying the difference between one line of cases of ineffective assistance of counsel that favor the State and another line of cases that favor Cache. Suddenly, Judge Crittenden, a rickety old jurist who looks like his expiration date was a year ago, raises his hand and motions for me to stop talking. He levels his gaze at me, and I can see piercing blue eyes that are steady and look very much alert and alive.
"How, Mr. Gresham," he asks me, "are we to believe it wasn't possibly your client who infected Judge Wilberforce? As I understand the facts, he
r strain of HIV and the judge's strain of the virus match perfectly. The women's affidavits prove that three more women have the same virus. So maybe the odds are one-in-four your client was the carrier who infected the judge. But that doesn't mean the jury couldn't have found it was her, period. In fact, they did find it was your client, and this court cannot overturn what the jury said is a fact."
"Well, I—"
"No, wait, Mr. Gresham, I wasn't finished. According to your client's affidavit, she was put upon by Judge Wilberforce, and she infected him only when she was forced to have sex with him. Isn't that it?"
"Yes, Your Honor. That's the gist of it."
"But what proof, what hard evidence, do you have that changes the outcome? The Strickland case says her lawyer was ineffective only if he did something or didn't do something that would definitely have changed the outcome of the trial. Give me that something, please."
"Her affidavit is very compelling."
"That's what you say. But I'm not convinced."
"The other women's affidavits are also compelling. Taken together, the four lines of testimony could very well have changed the jury's mind."
"That's argument, not objective fact."
"Can we come back to this?" I finally ask, the last gasp of the drowning man. "Maybe the affidavits can be modified. Please."
"You're saying you need time to change the facts again? I'm sorry, Mr. Gresham, but the self-serving affidavit of Cache Evans isn't enough to make me consider overturning the jury's verdict. You don't have my vote, sir."
The other two judges are nodding with him.
Then I remember Dr. Riddell. "What about Dr. Riddell's affidavit? She says Cache's virus was suppressed with drugs."
"That's what a doctor says who wasn't called by your client's lawyer. The affidavit she gave you, that testimony may or may not have changed the outcome. Again, we can't say for sure. You needed to prove to us your client didn't even have HIV, Mr. Gresham before I'd be compelled to take action on her behalf. You haven't and cannot do that. I'm sorry, but there you are, sir."
"Well, according to what you're telling me, my case is unwinnable no matter what I do. Is that it?"
"Mr. Gresham, Dr. Riddell's affidavit shoots down your theory. There's just no certainty that she didn't infect him. I think you're a little too close to your case, Mr. Gresham, and you don't have a clear view."
At this point, the judge to his right leans over and speaks into Judge Crittenden's ear. Judge Crittenden nods then looks up at me and adds, "Mr. Gresham, I've just learned that the prisoner is your daughter, I'm sorry for you, sir. And for her. But I cannot support you."
I look at the two other judges. I only need two—but they're nodding in agreement with Judge Crittenden. It's all over for me. It's all over for Cache.
I don't have an answer. The U.S. Attorney jumps onto the court's line of reasoning and drills me further into the ground. At the conclusion of our forty minutes, the judges thank us and tell us their decision will be forthcoming in seven days. That's forty-eight hours before Cache is scheduled to die. Not enough time to do anything at that point even if there were anything I could do. But there's not.
The taxi ride back to my hotel is like a dream. I am detached from reality; I am in a feeling state that is so strong, so overwhelming, that I see nothing of the world around me.
I have drowned.
Verona is adamant that I keep a promise to Leo and join him in the hotel swimming pool. So I change, grab a couple of towels and take him by the hand. We head toward the end of the hall and the entrance to the pool.
As we walk along I'm wondering whether we'll ever do this again, my grandson and I. Or if we'll ever do anything together again.
He's chatty and tells me about the poolside dives he can do and asks if I'll watch him. I tell him of course I will, that the only reason I'm going to the pool is to watch him. Now his face lights up, and I see what an effect having a man pay attention to him is having. No discounting Verona and maybe Cache, but this little guy is just lapping up everything about being with a man who's interested.
We get to the pool and wade in. I find that Leo can swim pretty well. I have no idea who taught him or when, especially since he was living in a pimp hotel when I paid to take him away. But there you are, he's swimming to beat the band, and I'm following along behind, cheering him on.
Now he wants to hit the hot tub—he's cold. So we move the party into the hot tub, and he shows me how well he can swim in hot water, too. I tell him it's fantastic that he can swim in both cold and hot water. He beams; we're already in love with each other. My only prayer is that somehow I get to keep him with me and raise him to be the man he can be.
Which is the exact moment Verona comes into the pool area, carrying my phone in her outstretched hand.
"Marcel," she mouths.
I dry my hands on a towel and take the phone from her. She leaves us there, apparently not wanting to interfere in the grandpa-grandson moments. Leo continues splashing around as I take the call.
"Marce," I say, calling him by the nickname I use, "what's up?"
"Sorry I didn't get back sooner, Boss. But I've got some news."
"What's that?"
"It turns out Dr. Singh and I hit it off pretty good. I stayed over last night."
"Did you practice any child psychiatry on her?"
"No, we got way down the road past that. In fact, we got so friendly that I told her who I was."
"And she threw you out."
"No, she said nothing would surprise her about her brother and the kid and Cache. She was resigned to the fact anything could happen."
"So what did you find out?"
"There was an old doctor by the name of Henry Easter. Henry was a pediatrician, too. He had a practice out at Liberty Lake, fifteen miles east of Spokane."
"Go on."
"He practiced out of his home/medical clinic. The town wasn't big enough to support a regular office, so he kept it small and built a clinic along the front of his house. Something like fifty years he practiced there."
"As a pediatrician."
"Yes, but he did colds and flu and sprains and allergies, that kind of stuff with adults, too. But mainly he doctored little kids."
"So where's this going, Marcel?"
"It turns out that he doctored Cache at one time. Dr. Riddell sometimes let him use an examination room in her office to meet patients who couldn't come all the way out to Liberty Lake."
"Hold on. Why would a Liberty Lake doctor be treating a Spokane minor child? How does that work?"
"Because he had a sub-specialty in infectious diseases, HIV being one of those."
"Okay, so what?"
"He examined Cache after the trouble at Serenity House. He was on call at the hospital that night."
"He examined her after the rape, okay. Then what? Did he follow her case after?"
"He did. He ordered the first blood draw, and it was negative. Then he ordered another one ninety days after—maybe more—and it came back HIV positive. On the second blood test, she had contracted the disease."
"So she got HIV from the boys who raped her. Didn't we already know that?"
"Here's the good part. Dr. Easter also tested the boys who raped Cache. None of them was HIV positive."
"Oh, my God!"
"That's right. Cache got HIV somewhere else."
I'm thinking, thinking, my mind is running a hundred miles an hour. This fits with what Dr. Riddell was suggesting might have happened. Unlike her possibilities, however, this new development is based on facts.
"You're saying—"
"I'm saying we've got our smoking gun. Cache caught the HIV from Judge Wilberforce. She was clean when she went to work there, a couple of months later she's HIV positive. The only thing that's happened in between is Judge Wilberforce raped her."
"Hold it. How do we prove Wilberforce raped her?"
"Simple. She has the same HIV virus he has. That's the only history anyone knows.
On top of that, don't forget at trial the testimony was that Wilberforce did have intercourse with her, the claim being that she blackmailed the poor, innocent old guy."
"Where is Dr. Easter?"
"He's dead. A car crash on icy roads."
"Where are his records?"
"Wanda doesn't know. I can only guess they're still at his home in Liberty Lake. Assuming the doc's widow is still living there. And assuming she didn't burn all his records after he died."
"I could hug you right now, Marcel."
"That's not why I called. Your hugs mean more to other people than me, Ace."
"I'm on my way to Spokane in an hour."
"Call me when you land. I'll come pick you up."
"Yes. And tell Wanda thank you."
"Who?"
"Wanda."
"Oh, her. See, we already broke up. She doesn't want anything permanent and, well, you know me, Boss."
"See you at the airport, Romeo."
"Marcel is close enough."
"Marcel, then."
We disconnect. I am stunned. I cannot even move across the hot tub. Leo is lying on his stomach in the water, his arms outstretched, holding onto the side of the tub, kicking his legs like a wild man.
I grab an ankle and pull him to me.
"C'mon, my boy. Grandpa has to run."
"Why are you running?"
"Actually, I'm flying."
"Which is it, grandpa, running or flying?"
He laughs, and I haul him up out of the water.
The court of appeals absolutely has to know about this.
There isn't a moment to spare.
Spokane is less than an hour by air tonight. The plane lands, and I deplane and, sure enough, Marcel is waiting just outside the terminal. He's rented a white Highlander with blackout windows. "How's it look on me?" he asks me once we're inside and belted in, surrounded by a wavelet of red leather.
30 Days of Justis Page 19