The Defense: A Novel

by Steve Cavanagh

  Instead I started thinking. “Pass me the case files,” I said.

  Volchek looked into the suitcase. He seemed to be looking for a particular file. He found one and handed it over. It said DOCUMENT EXAMINERS on the spine of the folder. I began flicking through it. Volchek had gone to nearly every major criminal defense firm in the state and gotten reports from several forensic document examiners. The index to this file said there were eleven such expert reports. Volchek must have been desperate. I flicked through to the concluding summary of each one of the reports. They all said the same thing—in their opinion, Volchek wrote that name on the ruble bill.

  Miriam continued her opening statement.

  “Ladies and gentlemen of the jury, you will also hear from the victim’s family. You will hear from Tony Geraldo, the victim’s cousin. He’ll tell you about his cousin’s dispute with the defendant. He’ll tell you about the threats that the defendant made to Mario Geraldo’s life. He’ll tell you he feared the defendant would kill his cousin or arrange for his murder.”

  That name, Tony Geraldo, seemed to stir some memory for me, but I was so wired that I couldn’t trace the thought. Miriam stepped into a nice rhythm.

  “You’ll hear from the police officer who arrested and interviewed the defendant. You’ll hear this officer describe his investigation…”

  My interest trailed off. I’d found the witness list in the file of papers. In all, we would hear from five witnesses. A small, tight, well-prepared group. Miriam avoided the usual machine-gun approach to prosecution, which relied on the hit-and-miss tactics of just keeping going with witness after witness after witness and something somewhere is bound to stick. She knew better than that. The forensic document examiner, Dr. Irving Goldstein, was the first witness. A good strategy, I thought. Get the boring bit out of the way and put a smoking gun in the hand of the defendant on day one. But I saw this as my biggest chance. Volchek must have spent a fortune getting all those reports and paying all those lawyers only to get back the same result every time—It’s your handwriting. As far as he was concerned, this witness was a lost cause. He couldn’t find another expert to challenge Goldstein’s evidence. Every single lawyer that Volchek retained had told him that Goldstein was watertight.

  I had no choice. If Dr. Goldstein was as good a witness as Miriam hoped, Volchek could have his bail terminated within a few hours, and Amy would pay for that with her life. I had to destroy Goldstein’s evidence. If I could do that, I accomplished two things. One, I would get my remaining twenty-eight hours to figure my way out of this, and two, the Russians would begin to trust me. If Volchek thought I was busting a gut to keep him out of jail long enough to kill Benny, then he wouldn’t notice me cramming that bomb up his ass first chance I got. But before the con, I needed to gain his trust.

  In the confidence game, we called it a persuader.

  Miriam wrapped up her speech. “And, ladies and gentlemen, if you consider this simple proposition to be correct, then you must find the defendant guilty. We will show you his guilt and you must convict him.”

  Miriam sat down. The jury looked tired.

  Judge Pike said, “Mr. Flynn, will you be addressing the jury now or at the conclusion of the prosecution’s evidence?” I slowly rose from my chair and said, “Your Honor, the jury will want time to absorb Ms. Sullivan’s speech. Might it be preferable to give them a break and allow them some time for refreshments? I will need to take some instructions from my client before I address the jury.”

  This was my usual tactic and one that most defense attorneys employed. I always liked to speak to my client after I’d heard the prosecutor’s opening. It was usually only then that the defense got to hear what kind of spin the prosecution was putting on the evidence. That meant checking with the defendant again, to see if any of what the prosecutor said was true. I also wanted the jury to like me. They’d sat for almost two hours listening to Miriam. I wanted to be the savior. I wanted them to see me stand up, say something quick, and get them coffee and pastries. I’m concerned they might need a break; I’m caring, connecting, and listening to them. Pretty soon I would be the only show in town.

  Miriam saw my shot at wrestling the jury from her spell and tried to take back their favor. “Your Honor, I fear I may have gone on too long this morning. Perhaps instead of coffee, we could break for lunch?”

  “Back here in one hour,” said Judge Pike.

  The courtroom began to empty, and I felt a strong hand on my shoulder. Arturas said, “We’ll go upstairs to talk.”

  I didn’t have time to talk. I had one hour to read eight thousand pages and prepare the greatest opening speech and the greatest cross-examination of my life. I shifted around in my seat and looked at him straight. “We can talk later. I have to work. And I need your help.”

  CHAPTER NINE

  Victor closed and locked the door of the reception room that we’d occupied earlier, up on the nineteenth floor. Arturas stood with his arms folded and tapped his foot. He was nervous and angry. His boss simply folded himself into the couch and watched.

  “I need a laptop or a smartphone with Internet access,” I said.

  “What for?” asked Arturas.

  I ignored Arturas and spoke directly to Volchek—he was the client; he needed the answers, and he called the shots. “Your other lawyers tried to get expert testimony to challenge Dr. Goldstein directly. They wanted another handwriting expert to say that the murder note couldn’t have been written by you. I saw the bundle of reports in the case file; they couldn’t get anyone to offer that opinion. That’s because that opinion doesn’t exist. Not legitimately, anyway. You could probably get an expert to say that the handwriting may not be yours, but those guys don’t have Goldstein’s credentials, and when it comes to a Mexican standoff with expert witnesses, the one with the best résumé usually wins.”

  Volchek nodded. He seemed to be buying it, but Arturas wasn’t. “What can you do? The other firms had months to challenge this evidence. What can you do in one hour?” said Arturas.

  “Well, I have to do something. If we let this evidence go unchallenged, Miriam Sullivan will have your bail canceled, and you’ll be in handcuffs before Goldstein gets his ass out of the witness box. That means you don’t get the luxury of being able to jump on a plane tomorrow if this all goes to shit.”

  I could hear Arturas grinding his teeth. His lips curled up in a grimace as he began shifting his weight from foot to foot. He’d been planning this caper for a long time, and he didn’t like intangibles. But that was trial law. Stepping into a courtroom is just like going to Vegas and rolling the dice—anything can happen. Volchek continued to listen. It was his liberty at stake.

  “You don’t need me to tell you what the outcome will be if an accused goes into custody and something happens to a state’s witness. There is no way you will get out on bail until a full investigation has been done and you’ve been cleared. How long is that going to take? Two, maybe three years? Anything can happen on the inside. The state might not be able to link the bomb directly to you, but that doesn’t mean they won’t put you in a cell with a four-hundred-pound cannibal. And that’s if you can avoid the cartels’ soldiers. Yeah, your buddies in the courtroom will get to you on the inside real easy. I can take the fall if it means Amy is safe. I can live with that. Better that than the alternative. But if you go to prison—you lose.”

  Volchek exchanged glances with Arturas. He smoothed his pants and tried to swallow down a knowing grin. Despite what I’d just said to Volchek, I knew they weren’t going to leave me or Amy alive at the end of this. They didn’t want me telling the FBI about my daughter being kidnapped and my being forced to plant a bomb in the courtroom. But I needed to let Volchek and Arturas think that I had bought their bullshit story.

  “I still want to know what you can do that the other lawyers couldn’t,” said Arturas. A fair question, and I gave him a simple answer. “The other firms were trying to counter the evidence. That’s the wrong approac
h. It’s like football; say you’re a small, broke football team and you come up against a rich team with a great quarterback. You can’t win in a straight contest. Me, I don’t hesitate. If there’s some gifted, lightning-quick man mountain that I can’t compete with, it’s real simple—I take him out of the game. I cripple him. I tackle him so hard and so fast he isn’t going to wake up until the season’s over. It’s an old saying—sometimes you have to play the man instead of the ball. Litigation is the same; if I can’t destroy the evidence, I have to destroy the witness giving the evidence. If the jury don’t think Goldstein’s credible, it really doesn’t matter what he says. I need the Internet to dig on him. Look, it’s not like we’ve got a choice. Either help me, or I’ll hold your coat while the court security officer puts you in handcuffs. It’s that simple.”

  Volchek and Arturas nodded in agreement.

  “What will you find in an hour?” said Arturas.

  “I won’t know it until I see it.” I really didn’t know. But I had an idea where to look. I could see a smile attempting to force its way through Volchek’s lips. He looked intrigued.

  “Okay,” said Arturas, taking out his iPhone. “You tell me what to look for.”

  “He’s from the University of Wisconsin. Start with his university bio and then a list of his work. Let me see his published articles for 2000, 2004, and 2008.”

  “Why?” asked Arturas.

  “If you’re cross-examining any academic witness, you have to look at their publications for those years. Those years were the ARAE: the American Research Assessment Exercise. The more articles published by academic staff in the ARAE, the more funding comes to their university and the more money those nerds take home. During those years, everyone writes articles like crazy, and perfectly reasonable academics write crap that they wouldn’t dream of writing ordinarily. Writing for volume does not promote good theories, and pretty soon they’re writing papers on fairies and UFOs. Back then articles meant cash. So if there’s anything out there that will give us something on Goldstein, that’s where we’ll find it.”

  I’d cross-examined a few academics and I’d learned all about the ARAE some years ago. It never failed to give me ammunition. It’s just like everything else in life—you follow the money and it always takes you to where you need to go.

  While Arturas looked online, I read through Goldstein’s expert report. I’d once represented Archie Mailor on a check fraud indictment, so I had read reports like this before. Archie had been my counterfeit guy when I was running my insurance scams. He had talent. IDs I got from Archie were usually pretty good. During his case, I had to cross-examine a forensic document examiner who testified about Archie’s handwriting and the fraudulent checks. I had a little knowledge of what these guys looked for, but I hadn’t thought about it for a long time. What I remembered was that they tended to look at the capital letters at the beginning of words. From scanning Goldstein’s report, I saw that he had indeed focused on the capital “G” at the start of “Geraldo,” which Volchek had written on the bill in marker pen. Behind Goldstein’s report, I found a statement from a CSI. He had analyzed the one-ruble bill for fingerprints. Apparently, Little Benny’s fingerprints and those of the custody officer at the precinct who handled Benny’s property had either obscured or wiped out all other identifiable prints.

  Arturas took seven minutes to find the right page on the university’s website—List of Publications 2008—nothing. We checked 2004 and nothing leaped off the page.

  We hit 2000 and there it was, staring at me like gold in a panhandle. Goldstein, like most academics, wanted the greenbacks while they were hot. He’d written half a dozen stupid articles to boost his volume, standing, and pay.

  And he’d written one particularly bad one. That gave me a great idea.

  “I need this article printed out. I need a photocopier, paper, hot coffee, and to be left the hell alone,” I said. With Arturas listening in, I called the judge’s clerk, Jean, on Arturas’s iPhone, and I sweet-talked her into printing the article for me. I told her I owed her a box of doughnuts and told her where to find the article online. I thought that Miriam probably didn’t even know Jean’s name. Most hotshot lawyers ignore court staff that they would call the “little people.” They did so at their peril and at their cost. Most of the time, the little people were, in fact, the best people.

  I had peace in the chambers at last. Victor was in the outer reception, trying to turn on the photocopier. Once he got it working, I would just need to photocopy a couple of pages and blow them up so the jury could take a better look. I spread out some papers on the desk and stared into space, letting the plan come to me. My head still hurt from the punch I’d taken to the back of the head in the limo. If I was to even attempt to double-cross the Russians, I had to put them at their ease, get them to trust me—so they would stop looking over my shoulder. My dad told me you can’t con an honest man, but the hard part was getting the dishonest mark to trust you. Good fraud was all about trust.

  “Volchek,” I said. He gestured for me to sit next to him on one of the couches. “Your former lawyers were all excellent, talented professionals. You don’t need me to tell you that, right? You know these guys are at the top of their game. They told you the handwriting expert would kill your defense.”

  Volchek’s every action seemed halting, considered, planned. It was almost as if he’d taught himself restraint in order to mask his true nature. He lit a cigar and let it burn down while he thought about his answer. Finally, he said, “They told me that, on its own, it’s not enough to convict me.”

  “Right, but they didn’t tell you it might be enough to blow your bail and get the prosecution a retrial, even if Benny’s dead.”

  He said nothing. I pressed on.

  “And your old lawyers had months to work on this guy’s evidence, right?”

  “Right.”

  “They couldn’t challenge him, right?”

  Volchek sighed. “Right. What’re you getting at?”

  “I’m going to obliterate the expert’s evidence, and you’re going to give me a chance to win this case without making Little Benny into soup.”

  I told Arturas to let Volchek read Goldstein’s paper. He flicked through the article on Arturas’s iPhone, and cigar ash fell over the screen.

  “This is nothing. How does this help?”

  “Leave that to me. If I wipe the floor with this guy, you’ve got to give me a shot at Benny. I’ll do whatever it takes to save my daughter. She’s my world, my life, and I’ll go to jail to protect her. But I’m not relishing spending the rest of my life in an eight-by-six. Give me a shot at Benny. Let me cross-examine him, and if it doesn’t go well, I’ll press that button and blow him to hell myself.”

  The first rule of the hustler’s bible—give the people what they want.

  Before he whipped his head around to Arturas, I saw fire in Volchek’s eyes. He didn’t want to have to blow up a witness in live court. The risk was huge. Running was just as big a risk. He’d given up all hope of winning this case a long time ago. And I was giving that hope back to him.

  “There is no chance you can win this case, lawyer. Better, smarter lawyers looked at all of this before,” said Arturas.

  “It doesn’t cost you anything to let me try. At least with Goldstein, I have no choice. I’ve got to work on his evidence or your boss loses his bail.”

  The room became silent. I could hear Victor’s heavy breathing. The hum from the photocopier fans. A car horn outside. Volchek wanted this, I could tell. I was the answer to his prayers.

  “There’s one more thing,” I said.

  “What?” barked Arturas.

  “You haven’t brought me my coffee yet,” I said.

  Tipping the ash from his cigar onto the floor, Volchek said, “Victor, get Mr. Flynn some coffee.”

  CHAPTER TEN

  Lunch had taken an hour and fifteen already.

  I checked my watch and saw twenty-six hours left on my clo
ck. The watch was a twenty-dollar digital with an LCD display. Cheap, nasty, and I loved it more than any other watch that I’d ever owned. Amy and I shared the same birthday—September first. I had picked her up on the morning of our last birthday and taken her shopping. Christine and I had been separated since late June. I’d felt awkward going to the house in Queens that I’d once shared with my family, and Amy and I went out instead. I’d had no idea what to buy for a ten-year-old, so I thought she should pick something out. As we passed a little jewelry store off Broadway, I felt Amy tugging at my sleeve. In the store window she saw digital watches for sale. We went in and she said she wanted two exactly the same—one for me and one for her. I told her I already had a watch, a gift from her mom. She put her mane of white-blond hair on the glass counter and studied the watch she’d chosen. Christine often worried about how serious our daughter could be; I hadn’t listened. I thought Amy was just more mature than most girls her age and that she had an adult’s intelligent curiosity.

  Amy curled her little fingers around the watch and said, “Daddy, you’re going to stay with the doctors to get better, right?” She was talking about the residential alcohol clinic that I’d tentatively signed up for, at Christine’s insistence. The store clerk walked in back, giving us some room.

  She whispered the rest of her plan, like it was our secret. “Well, I thought if we both got these watches, we could set the alarms for eight o’clock. Then you would remember to call me and we could like, talk, or you could, like, read me a story, or something.”

  She was so sincere, so earnest. And although she was tall for her age, and impossibly cute and even mischievous at times, the beauty in her heart shone out of her in everything that she did. Her kindness saved my life that day; if we hadn’t bought those watches on our last birthday, I wouldn’t have made it through rehab. Every night, our alarms went off simultaneously at eight, and I called her. I had called her from the clinic, and I had read Alice’s Adventures in Wonderland to her over the phone. She was much better at being a daughter than I was at being a parent.