Final Exam: A Legal Thriller

by Terry Huebner

  37

  Preparing for a trial, especially a big trial, always takes longer than you think, usually at least twice as long. That was a good rule of thumb, especially if you wanted to do it right. It was now late June and the trial was set for September 4th, the Wednesday after Labor Day. Ben felt confident that absent some unforeseen circumstances, the trial would actually start on that date. That left Ben with just over two months to prepare, through the heart of summer when everyone’s attention span and motivation invariably waned, either because of the weather, summer vacations or simply LOI - lack of interest. They were behind schedule and Ben knew it. He had to kick it into gear or they would be in trouble come trial. He looked at his watch, got up from the conference table in the garage and walked back through the office to the kitchen, where he grabbed a cold Rolling Rock out of the refrigerator.

  Walking back down the steps and through the short corridor separating the main part of the office from the garage, Ben was struck by the heat. Today, it was hot outside and even hotter in that small corridor, and it took Ben’s breath away as he made the short walk from the main part of the office. A blast of cold air hit him as he opened the door to the garage and stepped inside. With the air conditioning cranked, it felt like a meat locker and Ben shivered as he sat down and put his feet up on the conference room table. Ben took a pull from the beer and grabbed a legal pad off the table to make some notes, a To Do List of sorts. He watched out the door as the first batch of commuters dragged across the parking lot in the late afternoon heat.

  The list really consisted of two separate lists, one for Megan’s case and another for the rest of his files. He started the second list first and quickly abandoned it. If he felt under the gun on Megan’s case, he felt like he was hurtling off a cliff on his other files. The longer the list got, the more depressed Ben became until he finally ripped the page off the pad, crumpled it up and tossed it in the trash can then went back for another drink of his beer. He finally decided that he would devote at least one day per week to his other files through the end of July before the final push on Megan’s trial began on the first of August.

  He broke the trial preparation list down into several parts, beginning with legal research, then witnesses, documents, exhibits, experts and jury instructions. By now, they thought they had everything the State had and while the universe of documents was large, it was not insurmountable. Ben figured they had a pretty good handle on the documents with the possible exception of the grade reports and the exams Greenfield had been grading at or about the time of his death. They would be focusing more on those exams in the days ahead.

  The list of witnesses, however, was still an open-ended mess, as were the exhibit list and the jury instructions. Yes, there was a lot of work left to do and the days to do it in were growing quite short indeed. Ben tossed the pad back on the table, stood and paced around the room. He stopped at the door and watched a few more commuters shuffle through the parking lot, a couple wearing jackets despite the stifling heat, apparently having misjudged the temperature when they left the house that morning. Then Nancy’s voice came over the intercom. “I’ve got Ken on the phone for you.”

  “Put him through.”

  “Hey man, what’s up?” Ken said.

  “Oh, just going over the To Do List for trial.”

  Ken laughed. “Sucks to be you. Did you check out that Cub game last night?” The Cubs were in St. Louis playing a series against the Cardinals.

  “No, I got home just after it ended. The bullpen blew another one?”

  “Yeah. You got home that late? You’re working too many hours, my friend.”

  “Someone’s got to put money into Phil’s pockets.”

  “Ain’t that the truth. Say, I called because I’ve put together that stuff you wanted for the Motion to Suppress. I’ll drop it in an overnight envelope for you.”

  “That would be great,” Ben said. “I’ll try and take a look at it or have Mark do it by the end of the week.”

  They talked for a few more minutes about the case, then more baseball before Ken signed off. A couple of minutes later, Nancy stopped down on her way out the door.

  “So what’d Ken know?” she asked.

  “Same old shit.”

  Nancy looked around the cluttered room, banker’s boxes scattered around the floor and parts of two files spread across the conference room table. “It’s really starting to look lived in out here,” she said.

  “Too lived in,” Ben agreed, “with the amount of time I’ve been spending out here.”

  “Well, gotta go,” Nancy said. “I was actually going to cook dinner tonight. See you in the morning.”

  Nancy left and Ben grabbed the phone to call Meg. She picked up on the second ring. “Your husband home yet?” Ben asked.

  “No, not yet. I expect him soon though.”

  “Good. We can talk before he gets there. I’ve been thinking a lot about our witness list. Given that we may not have a lot of fact witnesses, and the likelihood that you won’t be called to testify, we may need to call some character-type witnesses, you know, people who know you and can testify about your background, character, relationship with your family …”

  Megan’s laughter cut him off. “Relationship with my family? You mean Joe? I don’t know how much you want to go into that.”

  “Probably not much,” Ben said, “but under the circumstances, we may not be able to avoid it. In fact, we may want to think about calling him to testify, particularly if he knew you were having an affair a long time ago.”

  “He didn’t know it was Greenfield,” Meg said. “I think he figured that there was some brief relationship during that time frame, but that all changed when I got pregnant with Anthony. We didn’t talk about it then and we don’t talk about it now, even with what’s happened.”

  “Right. What about other character witnesses?”

  “Well,” Meg said. “There’s always Fran and Sally Renfroe, even though I know you don’t think much of her.”

  “At least she’s not as bad as she used to be.”

  “I wish you’d give her a break. She’s changed from back in law school. Having a baby mellowed her out quite a lot.”

  “I’ll take your word for that, although I suppose I could agree that I like her better as Sally Renfroe than I ever did as Sally Brzycki. I’ll tell you what, I’ll give her a call and see if she is even willing to do it.”

  “Oh, I know she is. She’s already told me as much.”

  They talked for a few more minutes before Ben called Sally Renfroe. Megan was right. She was eager to testify and with her background as an attorney, probably would make a good witness too. Much as Ben hated to admit it, her status as a mother of a young son working part-time as a lawyer would also create a favorable impression in front of a jury.

  “Why don’t you make a list of things you’d want to say about Megan, how you came to know her, how your friendship has developed, stuff like that, and we’ll get together at some point in the next few weeks either here or downtown somewhere and go over it. That way, we can see if we can create a direct examination out of it.”

  “No problem,” Sally said. “I could come out there if you’d rather. My regular sitter can watch David if we need to meet. Whatever you need.”

  Ben hung up the phone and decided to give Sally Renfroe the benefit of the doubt. Even though she’d been far from one of his favorites while in law school, it seemed as though marriage and family life had made a new woman of her.

  Ben spent the next couple of hours paring down his witness list and reviewing the possible witnesses who could be called by Bridget Fahey and the prosecution. Satisfied that he had made a good start, Ben turned to the exhibits and reviewed a series of document summaries prepared by Dan Conlon and Brad Funk.

  Meanwhile, his fellow lawyers and tenants in the building filtered out to the parking lot and went home. At seven-thirty, Casey Gardner stopped out and told Ben that everyone else had left the building. “Y
ou’re it,” Casey said. “I didn’t lock the front. My car’s out back.”

  “No problem,” Ben said.

  “You got Court tomorrow?”

  “Who the fuck knows?” Ben said. He thought about it for a moment and then added, “No, I don’t think so.”

  “Okay then, I’ll see you tomorrow.”

  After Casey left, Ben stood and went back into the kitchen and got himself another beer. A little while later, Ben looked up and noticed the daylight outside beginning to wane. Another night he wouldn’t be home in time to play catch with his son. He worked for another half hour, by now it was dark, and decided to pack it in for the day. He turned off the lights in the garage and walked to the front of the building, where he locked the front door and turned off the lights in the kitchen.

  Then he went upstairs and walked directly into Phil’s office and turned on the TV hanging from the ceiling in the far corner next to the window. He checked out the score of the Cub game. It was 4 to 4 in the top of the fifth inning. If he left now, he could get home in time to catch the last inning or two and maybe kiss the kids goodnight before they were entirely comatose. Ben watched for another minute, then turned off the TV, crossed through the French doors into his office and turned out the lights. He didn’t even take his briefcase. Three minutes later, having shut off the remainder of the lights, set the alarm and locked the back door on his way out, Ben was in his car and ready to head home.

  Upstairs, the Protector emerged silently from the hiding place in Phil’s closet and tiptoed to the top of the stairs listening all the while for a hint of Ben’s presence in the building. Had he left? Couldn’t tell. The Protector couldn’t believe it earlier when Ben strolled right into the office and turned on the television to check out the stupid baseball game. They had only been a few feet apart. The Protector hid in the closet afraid to peer out for fear of being seen in the reflection in the bay window. Then Lohmeier had simply walked into his office, shut out the lights and taken off.

  The Protector heard Ben go downstairs and it sounded like the door outside had opened and closed. Maybe he was gone. What could I do now? The Protector asked himself. Just unlock the door and leave. That was it. Just unlock the door and leave. But first, if he is gone, I could look through his office at will and even the conference room area as well. The Protector crept to the top of the stairs and listened. Nothing, not a sound. He must be gone. The Protector padded back through Phil’s office and into Ben’s office stopping at the first window to peek out of a crack in the curtains at the parking lot below. The car was gone. The Protector laughed aloud. “I’m alone,” the Protector whispered. Still, I’d have to be more careful in the future. He almost walked right in here and found me. That could never happen again. That could ruin everything.

  The Protector spent a few minutes rummaging through Ben’s office, finding nothing of significance, before moving downstairs to the garage. As the Protector reached the bottom of the stairs and turned the corner, a slight clicking sound was followed by a loud BEEEEEP. Startled, the Protector lurched forward. What in the hell was that? An alarm? Have I tripped an alarm? The Protector looked wildly around in all directions as the beeping noise continued unabated. Up ahead on the ceiling, the Protector spied a white sensor about the size of a dollar bill, a red light in its lower right corner flashing. “Shit,” the Protector said. The Protector moved quickly through the corridor and across the lobby to the front door peering outside for any signs of life anywhere. Unnoticed on the opposite wall and looking very much like a programmable thermostat, was the control panel for the alarm system. Seeing no one outside, the Protector unlocked the door and stepped out onto the porch. With the door shut, the alarm didn’t seem so loud.

  The Protector walked quickly down the steps and turned toward the parking lot. Rounding the corner in the general direction of the bar, the sound of the alarm grew fainter. You almost couldn’t hear it from out here, the Protector thought. The Protector turned and looked back toward the garage - no one coming. Look like you belong. Then the Protector walked, never run, that would be too obvious, through the parking lot to the bar, climbing the steps and entering through the back door. The Protector stepped right up to the bar and asked for a gin and tonic, placing a five dollar bill on the bar. A moment later, the bartender, a burly man with an unusually large head and prominent jaw, returned with the drink and picked up the money. As the Protector took a sip of the drink, a squad car, with lights on, but no siren, passed by on Irving Park Road.

  The Protector watched the squad car turn left and head back toward the law firm, swallowed, smiled and said, “Keep the change.”

  38

  Ben grew suspicious after the tripping of the alarm, particularly since he had only left the building moments before. He confirmed that he had been the last one in the building, but insisted that he had locked all of the doors before he left. The Ithaca Police later said that the front door was unlocked and the building was empty when they arrived in response to the alarm.

  A few days later, Ben and Mark sat in the garage talking about it with Ken, who had stopped in with some additional materials for the Motion to Suppress. Ken laughed at them. “You bozos haven’t thought of the most important possibility. Maybe the alarm got tripped while someone was trying to get out, not while someone was trying to get in.” Ben looked at Mark, who raised his eyebrows as if to say, “Could be.” “You said you locked the front door, right?” Ken continued. “If that’s true, maybe somebody was inside until after you set the alarm and took off. That happened to me a couple of times while I worked upstairs in your office,” he said gesturing to Ben. “Guys on the other side of the building would leave and set the alarm without checking and not realizing that I was still upstairs working. I would come downstairs, get caught by one of the sensors and trip the alarm. Next thing you know, the Ithaca cops are here. One time, I realized that somebody had done it and I called to have somebody come over and turn the alarm off. I had to sit at my desk for about forty-five minutes so I wouldn’t set the alarm off. You know, Phil gets pissed when that happens. The police charge for false alarms.”

  Ben nodded. “So I’m told.”

  He thought about the possibility of someone unknown being in the building with him the other night and didn’t like the idea. Ken and Mark could read the discomfort on his face.

  “Don’t like the sound of that, do you?” Ken said.

  “No, not really” Ben replied. “I don’t think I’ll share that one with my wife.”

  The defense filed a Motion to Dismiss and a Motion to Suppress Evidence, both basically designed to attack the evidence proffered by the State. The Motion to Dismiss the indictment never really stood much of a chance. Ben knew that, but filing it was just one of those things you had to do in a case like this. You couldn’t just roll over and take it. The Motion to Suppress, on the other hand, was an entirely different matter. It focused on the small building blocks of the State’s case, the individual pieces of evidence from which inferences could be drawn to plant the seeds of guilt in the minds of the jury. If enough of these building blocks could be knocked out or excluded from the trial, the State’s case could very well collapse under its own weight, leading to a not guilty verdict or a directed verdict entered by the Court at the end of the State’s case. Although this was an unlikely scenario, the dynamics of a jury trial were such that a lawyer could never know for sure which piece of evidence could become significant in the minds of the individual jurors. Therefore, the more bits and pieces you knocked out, the better off you would be.

  The defense focused on three key pieces of physical evidence - the blood on the scarf, the hair and the fingerprints on the baseball bat. In ruling against the defense, Judge Wilson concluded that any arguments proffered by the defense went to the weight and sufficiency of the evidence, not to its admissibility. Although disappointed, Ben couldn’t really disagree.

  The defense enjoyed mixed results with the other evidence as well. Judge Wilson a
greed that any mention of the paternity of Anthony Cavallaro should be excluded from the trial. This was likely a foregone conclusion once the results of the DNA tests had been learned. Conversely, the defense lost in its efforts to have certain phone records excluded from evidence, namely records of phone calls made from the law school to Megan either at her townhouse or her office at the Appellate Court. The defense reasoning revolved around the way the law school phone system routed and tracked outgoing telephone calls. The system did not trace outgoing calls back to a particular telephone in a particular location. For example, it was impossible to identify all of the specific calls made from the telephone in Daniel Greenfield’s office. To the contrary, the calls could only be traced to a series of phone lines which handled outgoing calls from the law school building. Thus, the defense argued that anyone at the law school could have made those telephone calls. Nevertheless, pending the testimony at trial, Judge Wilson concluded that the jury should be entitled to hear the evidence and determine the appropriate weight to give it subject to the cross-examination by the defense.

  On the drive back to the office, Ben and Mark were musing about the various rulings issued by the Court and their potential impact at trial. “My view is the blood was the key one,” Mark said. Ben grunted in agreement. Mark continued. “I wish we had a way of proving that the blood came from his nose like she said it did and not from the wounds on the rest of his skull.”

  “Does that really make that much of a difference?” Ben asked.

  “Well, sure it could. If you remember the pictures, the front of his face wasn’t really caved in. All the damage was to the side and the back of his head.”