by Webb Hubbell
“No, it won’t.” Micki retorted. “Sam’s the prosecutor, not a detective. Sam’s perspective on this case is different from yours, Clovis. Normally, he receives a nice, tidy case from the police or the sheriff, not a mystery or a bunch of clues to figure out. It’s a package, and Sam only worries about whether he can prove his case beyond a reasonable doubt. He doesn’t wrestle with motive unless there’s real doubt that the defendant committed the act. As long as he makes no mistakes, he has no reason to believe this won’t be a slam-dunk for the prosecution. He presents the senator’s body, the murder weapon, places the murder weapon in Woody’s hands, and sits down”
She stopped speaking and looked at me, but I could see she wasn’t finished. I gestured for her to go on.
“The difference between you and me, Jack, is that I look at this purely as a defense lawyer. Can I create a reasonable doubt about intent by developing the relationship between Woody and Russell and Woody’s claim that it was an accident? Can I garner enough sympathy for Woody that the jury doesn’t want him executed? What will it take to get the charges reduced to second degree murder or manslaughter? I don’t think Sam foresees an accident as our defense, but when he gets wind of it through discovery, he’ll get prepared. I’ll try to nibble enough around the edges to make him nervous, and maybe he’ll make a mistake.”
I nodded. “I’m with you.”
“As Woody’s friend,” Micki said, “you’re trying to make sense out of it all. You still think understanding why he did it can help Woody. I’m not so sure it will. The ‘why’ may be the motive, but it’s not necessarily a defense. Sometimes you end up finding more than you wanted to know. It seems that Woody had this pretty well planned out. The only flaw, from his point of view, is that the wrong person is dead. Dig too deep and you might bury your friend.”
No one said a word.
“Was I too blunt?” she asked.
“No,” I sighed, rubbing the back of my neck, “that’s why you’re here. I just wish it were different. Truth is, though, there won’t be any defense unless I figure out enough of it to prevent Woody from pleading guilty.”
“Touché,” Micki said.
“No, it’s just the reality we’re faced with. You know a different Sam than I have known, but some things in a man or woman don’t change. Deep down, Sam’s bothered. He’s bothered for the same reasons I’m bothered. Sam’s going to want to know about the ‘why’ as much as I do”
I asked Clovis, “Do you think I can take a walk in the morning?”
“I’d rather you didn’t.”
“Surely there’s a way—some high-school track off the beaten path where you can have a clear view of the surroundings? I’ve got to get outside to clear my head.”
“I want to go too,” Beth said, glaring at Paul. “I haven’t even been able to get in a good walk, much less a real run.”
Micki joined in, “If it’s okay, Beth, I’d like to join you, although I’m not sure I can keep up.”
I stifled a grin. A marathoner telling Beth she may not be able to keep up—this was going to be fun.
“What about Riverfront Park? It’s flat with no obstructed views, and it’s plenty busy. If Clovis walked with Jack, and Paul joined Beth and me, we’d be okay.”
“I’ll see what I can do,” Clovis said, smiling. I imagined we were thinking the same thing. Poor Paul was in for the run of his life. “What time are we shooting for?”
“Six-thirty—plenty of light by then,” Micki replied.
Beth groaned, “I’m not a morning person. I’m, like, suicidal before eight.”
Micki said, “Well, sugar, it’s probably time to get over that.”
Maggie informed me that Ron had called again. I knew why he was calling. I needed to have my wits about me when we spoke, so I put off the call. She also gave us each copies of the clips she’d been sent, pointing out the headline on the top page: “Assassin’s Former Wife Alleges Abuse.” I picked my stack up and chucked it in the trash.
Maggie looked peeved and a little hurt.
“I’m sorry—I know we need them, but I can’t look, at least not now. I need to get a quick walk-through of local criminal law from Micki, and I need to spend some time going over Beth’s research. Clovis, I know you have plenty to do, and Maggie, you have a fiancé who would probably like to see you for at least an after dinner drink. It’s been a long day. We’ll meet in the morning.”
Maggie and Clovis got their things together and left. As Beth, Micki, and I were gathering our various papers, I mused, “We meet the judge tomorrow. Another fun variable for our equation. Any idea what we should expect?”
“Well,” Micki said, “he runs a very tight ship. He’s intelligent and his rulings are fair. He doesn’t lean pro-prosecution or defense. He’s very literal; sarcasm goes right by him, so don’t try it. All in all, he’s as good as we can hope for.” She smirked as she looked pointedly at the news clips I had just thrown in the trash. “It’s been in all the papers—Judge Marshall Fitzgerald.”
“Uncle Marshall?” Beth’s surprised look must have mirrored my own.
Micki frowned, “You know Judge Fitzgerald?”
“He’s my godfather.”
“Who are you people?”
I responded, “Let’s go upstairs, and I’ll tell you all about Marshall Matthew Fitzgerald.”
It had never crossed my mind that Marshall might be our judge. There’s no way Marshall will hear this case. He’ll recuse. Then again, Sam hadn’t.
28
WE ORDERED UP beer and wine when we got to the room. I loosened my tie and sat on the sofa with my leg stretched out to the side. Beth offered to get the pillows, but I told her I didn’t need them. It didn’t hurt as much as it had earlier, but it still felt good to elevate it. Beth and Micki sat in the comfortable chairs facing me. While we waited on room service, Beth told Micki about her Uncle Marshall.
“Uncle Marshall introduced Mom and Dad. He was around all the time when I was a kid, and I thought he was the most handsome man I knew. He was so sweet, sort of a gentle giant. He’d let me climb and jump all over him. Mom always said Marshall was the big brother she never had, so he became my Uncle Marshall.” Beth smiled. “My white friends were sort of scared of him at first. We were all these silly little girls, and he was, you know, big and coal black, way darker than me or Mom. And he always wore this funny hat. But he has a smile that can win over anyone.”
“So you guys stayed close?” Micki asked.
“When I was in high school, he’d send these great care packages—books about Dr. King, Nelson Mandela, and poetry by Maya Angelou. Stuff I’d heard about but had never read. At the same time, he’d tell me his heroes were Mickey Mantle, Chris Evert, and Louis Brandeis. I thought he was kidding, but then he’d spout off their statistics and rave on about the great decisions written by Justice Brandeis.
“Uncle Marshall gave the eulogy at Mom’s funeral. He talked about their early friendship and how Mom was his best friend, little sister, and soul mate. It was beautiful. I asked him for a copy after the service. He apologized, but said he hadn’t written down a word—he just spoke from his heart.”
Turning to me, she said, “Dad, I love you, but there are some things I can’t really talk to you about.” I can only imagine the expression that had been on my face, because she quickly said, “No, don’t look at me like that—I don’t mean sex. I mean race. For the longest time Uncle Marshall was the only adult I could talk to about being neither black nor white. I’m both, and sometimes, it’s been hard to figure out. Mom wasn’t much help either. I know she led a pretty sheltered life growing up in New Orleans—private schools and stuff like that, but she had to learn to deal with prejudice in college. I’d try to get her to talk about those times, but she wanted so much to pretend that the same racist shit didn’t exist for me. Like, ‘You’re empowered. You have role models that I never had.’ It was not her favorite subject.” She stopped to take a breath.
“I
’m sorry—I have no idea where all that came from, especially now. I haven’t seen him much since the funeral, but Uncle Marshall always takes my calls. He’s really good about listening and helping me find answers. So in a way, he’s been my big brother as well … like Mom’s, you know?”
You could have heard a pin drop. I was searching for the right thing to say when room service arrived. Beth looked relieved, and I busied myself with the wine bottle and one of those terrible hotel corkscrews. I poured wine for Beth and me, and handed Micki a cold beer.
I felt an explanation was in order. “Beth’s right. Marshall did introduce us—sort of. One day, during my junior year in college, I caught sight of Angie, Beth’s mom, as I was coming out of Psych class. She was holding her books to her chest, talking and laughing with a group of friends. She was the most beautiful girl I’d ever seen. I walked right up to her and introduced myself. She didn’t say a word, just stared, and her friends started ragging me. ‘What you doing, white boy?’ and stuff like that. I didn’t budge. She finally said, ‘My name’s Angie.’ Like a fool, I asked her right then and there if she’d go out with me. Her friends went off on me again, until she said that she didn’t think she could, and they all left.
“Angie told me later she thought I was either crazy or that it was some college fraternity prank. I went to Marshall. Yes, he knew Angie Bolden and agreed that she was indeed beautiful.” I looked at Micki, “You said Judge Fitzgerald is a literal guy. That’s true. If you tell him to redline a paper, he searches for a red pen. When I asked him if he knew of any reason why Angie wouldn’t go out with me, he responded, ‘I don’t know why she shouldn’t.’ I asked for his help, and the next week, Marshall went with me to see her.
“She and her friends had just left class. Marshall’s presence must have impressed them, because this time, no one said a word. Angie calmly said, ‘Hello, Marshall.’ I remember his words exactly, ‘Angie, this is my good friend, Jack Patterson. He wants to go out with you, and I don’t see why you shouldn’t.’ Her friends were staring, but they kept quiet.
“Angie raised an eyebrow and asked, ‘Well, can you tell me why I should?’
“Marshall laughed and said, ‘No, not really.’ To the shock of her friends, Angie ended up taking my arm, and off we went.”
Beth stepped in. “He takes his godfather role quite seriously. A lot of times, a godparent loses track of his godchildren, but not Uncle Marshall. Every year, on the anniversary of my christening, I receive a present from him and a letter. The letters are really quite something. I’ll let you read a few someday, Dad. Mom told me that he was very protective of her—just as he is of me now. He’s someone I know I can always trust.”
I said, “If he’s our judge, we won’t have any kind of a leg up on the prosecution. He’ll expect the same from me as he would any other lawyer appearing before him, no more, no less. Marshall is one of the smartest men I’ve ever known. Everyone was surprised when he took the trial bench. We’d assumed he’d end up an appellate judge in the federal system, but he wanted to go where he could interact with people and do the most good.”
Micki said, “You make it sound like he should be on the Supreme Court.”
“Well, I think he’d be a great justice, but it won’t happen. There’s not a political bone in his body, and the current process would never let a Souter type on the court again. Those days are over. The process is way too partisan.”
“How did you two meet?” Micki asked.
I thought about how best to explain it. “There were four black students who integrated Westside High the day I started high school, and Marshall was one of them. Sam talked us both into trying out for football, and we showed up for practice on the same day. Despite his size, the coach wanted no part of Marshall playing ball, but he couldn’t deny him the right to try out. In retrospect, it’s hard to believe. By that time, every major southern university had black ballplayers, as did most high schools.
“The first moment we set foot on the practice field, we heard coach yell, ‘Patterson, Fitzgerald, twenty laps around the track, now!’ From then on, coach tried every way he could think of to get us to quit—running laps, laying sprinkler pipes, being blocking or tackling dummies—his tactics were obvious, even to a bunch of teenagers. He knew he couldn’t single out Marshall, so I got the same treatment.
“One day, I asked Marshall why he didn’t quit. He said, ‘The people who put me in this school told me I couldn’t quit no matter what.’ It was a matter of honor for Marshall, and I followed his lead. We put up with all kinds of crap, until one day, after a really vicious tackling drill, the team rallied around us, and coach decided to let me practice with the team. I wouldn’t unless Marshall did, and coach had to relent.
“Marshall and I never played a down that year, but we made the team. Marshall earned his teammates’ respect and good will, but he never played football after that season. He was always happiest reading books.
“Marshall got to know Woody through Sam and me. By junior year, Woody said, sometimes he’d come home after a date to find Marshall and Helen watching TV and eating popcorn. He graduated summa cum laude from State and then went to Yale Law and got a master’s in Law at NYU. Definitely not a dim bulb. Anyway, that’s the whole story. Sorry to go on like that.”
“He’s still a good-looking man, even if he’s gotten a little heavy lately. What’s his wife like?” Micki asked.
Beth grinned, “Oh, Grace is the exact opposite of Uncle Marshall. She’s a whirlwind, always has a million things going on. Their four sons are all athletes, smart, but a handful. She lives in the car, talks a mile a minute, and Uncle Marshall just says, ‘Yes, dear,’ to whatever she says or wants. He’s never rattled, and I know one thing—he adores Grace and those boys. I bet you can guess their names.”
Micki said, “Don’t tell me … Mickey, Chris, and Louis?”
“Yep, you got it—his idols. And the fourth one is named Thurgood for Justice Marshall.”
“Thurgood, after his own namesake too,” Micki added.
Beth and I looked at each other and laughed.
Beth said, “Everybody assumes that, but once, I asked him how he felt about being named after Thurgood Marshall. He laughed and said he wasn’t named after Justice Marshall. His mom was a big fan of Gunsmoke on TV. She named him after Marshal Matt Dillon—Marshall Matthew Fitzgerald.”
BETH AND I refilled our wine glasses and Micki grabbed another beer, then we got down to business. “Let’s move on to the law, Micki. What have you got for us?”
She glanced at Beth and said, “This is pretty basic, but I thought it might be helpful.” She handed us both a short memo. I skimmed the two-pager. It outlined the difference between first-and second-degree murder, along with quirks in this state’s laws. I noticed she went into some detail regarding felony murder, the harshest charge Woody could face.
“Thanks. What type of defense do you think we can mount? What are our biggest problems?”
“Well, we have to get through arraignment, discovery, psychiatric evaluations, and who knows what else before we worry about defenses and a trial. Why don’t you let me concentrate on the legal aspects of the case? If I get a nibble on my line, I’ll holler. You need to work on the more pressing task—what’s behind all this, and how do we get Woody to cooperate?”
“That sounds good, but let me throw you a bit of a curve-ball. I want to explore an idea I had in the shower this morning.”
“Fire away.”
“In the federal system, a preliminary hearing is often waived by the defense, but sometimes it can be used to the defendant’s advantage. In the O.J. Simpson case, they used the preliminary hearing to learn the facts of the prosecution’s case. And O.J., as we all know, got off.”
Beth interrupted, “Wait a minute—what exactly is a preliminary hearing”
Micki said, “A preliminary hearing is sort of a ‘trial before the trial,’ except that the judge uses it to determine if the prosecution ha
s enough evidence to force the defendant to stand trial. The judge listens to evidence from both the prosecution and the defense and then determines if there is probable cause to bind the defendant over for trial. Jack, you’re not seriously considering asking for a preliminary hearing, are you?”
“I just want to know what our options are. I want to be sure Sam can’t avoid one by convening a grand jury or some other maneuver.”
“By state law, the only way to avoid one is for the defendant to waive it. But it’s a terrible risk. I’ve never seen one where the defendant hasn’t been bound over for trial. The video of the shooting alone is enough to find probable cause. Plus, Sam gets to see what we’ve got, which right now is absolutely nothing.”
“Micki, with just what we’ve already discovered, it’s obvious this isn’t a simple murder. Too many things don’t add up. I honestly don’t think Woody is guilty of first-degree murder. But I need time to prove it. Maybe we can use the preliminary hearing to create enough doubt in the minds of the prosecution and the judge that Sam will decide to reduce the charges. Woody’s staring at the death penalty. I need to use every arrow in our quiver.”
She looked doubtful, so I decided to let it go—for now. “It was just a shower thought. Some are better than others. Let’s take a break. Sorry, but I need to change this bandage. And I’m really ready to get out of this suit and into some sweats. Then I want to hear about your research, Beth.”
I CHANGED CLOTHES, Beth took care of my leg, and we all settled in again. “So, Beth, what have you got?”
“Nothing that jumps out. I’ve listed Russell’s major contributors by year, state of residence, and other relevant information on an Excel spreadsheet. I was able to download all this from his state and federal filings.” She gestured with her head to a corner of the room. “Those file boxes contain the rest of the raw data, and I’ve tried to summarize that information in a separate file on the computer.”