Double Tap

by Steve Martini

  “What do you think I should do?” He looks at me through a blue haze curling toward the ceiling.

  You can hurdle the bar exam and sally forth to spend decades in front of the bench. You can deflect thunderbolts tossed by gods in black robes and do battle daily with other lawyers. But in the end it is this question posed by someone in the position of Emiliano Ruiz that is the riddle most feared by every attorney I have ever met.

  “We’re not talking dollar damages,” I tell him, “or whether you should do a few years of hard time as opposed to going to trial. We’re talking about your life.”

  “You haven’t answered my question.” There is no fear visible in his eyes as he says it. It’s not that Ruiz is cavalier about death. If I had to guess, he has confronted the issue before and more than once, though maybe not on the certain level of capital punishment, which in this state is slow and tortuous at best, taking years to grind out appeals. But there is no question in my mind that Ruiz is a man who has studied closely the dimensions of his own mortality and done so enough times that, while what lies beyond the veil is a mystery, it is not one that terrifies him.

  I’m shaking my head. “It’s the toughest thing for a lawyer. I can’t tell you what to do.”

  “But you must have an opinion?” he says. “Forget the death penalty. What I want to know is, what are my chances of beating the case if we go to trial? Of walking free?”

  He has already made up his mind. A man like Ruiz would claw the walls inside his cell until his fingers bled the moment he knew he had no chance of ever getting out. A death sentence—and my guess is he might not even appeal it—would be preferable to life without possibility of parole.

  I have told Ruiz about my meeting with Harold Klepp and reports of an argument between Chapman and General Satz. According to Emiliano, this squares with Chapman’s concerns conveyed to him in the days immediately before her murder that Chapman was scared to death. This, according to Ruiz, was the reason she hired him off the books to provide security at a distance.

  “You’re entitled to the truth. I won’t dress it up,” I tell him.

  “It’s that bad, is it?”

  “Unless we can crack the wall around Isotenics to get at the evidence of what was happening inside the company when Chapman was killed, if we go to trial we’ll be throwing dice for your life. And that’s a dangerous game. One usually reserved for fools and those who are desperate.”

  “You’re telling me to take the deal?”

  “I’m telling you that, given the evidence as it is right now, your chances of an acquittal are not good.”

  He gets up from the table, cigarette to his lips. The guard outside the door turns to look through the glass to see if perhaps we are finished.

  “Can they …” Ruiz stops to reorganize his thoughts. “What happens if they convict me? They go to a penalty phase, right? The jury, I mean.”

  “That’s right.” I have talked with him about the procedure before.

  “What happens if they decide not to give me the death penalty?”

  “If it’s a conviction for first-degree murder, you’ll be sentenced to life without possibility of parole.”

  “Promise me one thing. Promise me that you won’t let that happen.”

  “I can’t promise you that.”

  “You have to.”

  I shake my head, take a deep breath, and look up at him. “I’m your lawyer, not your executioner. I can’t do that.”

  “I’d rather be dead than locked up for the rest of my life.”

  “I know.” I sit in silence for a moment as he paces a couple of steps, all that the room will allow.

  “I’ll convey the message to them. Tell them that you’ve rejected their offer.”

  All I can see is his slowly nodding head from behind.

  I would like to console him, tell him not to dwell in the dark corners. But anything I say at this moment would sound cheap, condescending. Ruiz is a man who is broken in many ways, has seen too much, and—unless I am wrong—has lived grasping the thin edge of life far too long.

  To the average person his attitude at times can be off-putting, seemingly careless, almost casual in the face of death. I worry about the jury and what they might think if this becomes their perception of him at trial.

  Recently in these sessions when we meet, looking at him through the haze of smoke, it is as if I see another aspect, larger, more brooding: memories of the dark visage of my uncle. I get flashes of Evo from my childhood, in the haunted decades of life after his return from Korea. I remember veiled and faded images of what had once been a hearty and happy soul, a spirit that was buried inside by the violence he had seen and what he had endured. Emiliano may be made of harder stuff, but when I listen to his voice and look into his eyes in times like these, moments of stress, I can see the outline of tiny fissures where the hard emotional veneer is beginning to pull away. I sense that he is starting to crack at the edges.

  It is in these moments that the pain for me is real. Looking back, I cannot be sure when it happened, but at some point in the months that have intervened since we met, the trial of Emiliano Ruiz has taken on a frightening dimension that even I do not fully comprehend.

  Lately this has been accompanied by dark visitations. They seem always to come at night when I am alone, after my daughter Sarah is asleep in her room. I am left to huddle with the documents that would condemn Emiliano—police reports and the state’s forensic details of the crime—and one set of items in particular: a few photos of Ruiz in uniform, battle fatigues, his face haggard and dirty. He is with a small group, other men similarly worn and tired, all huddled in a semicircle, giving it their all to smile.

  The reason is no doubt lost in the dark recesses of my childhood, but looking at these pictures in the solitary hours of the night there is a palpable sense of fear. It emanates from somewhere deep in my core, ominous and cold, as if I am being paralyzed. There is a feeling that I am locked in battle with dark forces, held in a death embrace by the demon, scrapping, tearing, pulling hair at the edge of the pit for the damned who are about to be lost. Somehow this ordeal has become the battle I could never wage as a child. I cannot explain it, but Emiliano has become the proxy, the surrogate, that somehow has me struggling for the redemption of Evo’s soul.

  CHAPTER SIXTEEN

  This morning Harry and I dodge a projectile the size of a cannonball. Judge Samuel Gilcrest is up on the bench, peering down at the five lawyers assembled at the other counsel table. In flowing black robes, his narrow, crooked nose and hairless dome shining under the beams from the courtroom’s overhead canister lights, Gilcrest resembles a wingless bald eagle about to hop down from its perch to eat its prey.

  Gilcrest has decided that there will be no cameras in the courtroom for Ruiz’s trial.

  Harry is leaning back in the chair next to me at the defense table, taking a deep breath, psychically hyperventilating.

  Templeton has given up the prosecution table temporarily to the legal brain trust for the media, lawyers representing three of the national television cable franchises. They may be arguing lofty First Amendment issues, but the bottom line is dollars. The trial of Emiliano Ruiz—the man accused of killing Madelyn Chapman in what is now being called the “Double Tap” Murder—is worth tens of millions in ad revenue if they can get it on live TV. What is driving the story in terms of news value is not only the lurid details that have slipped out—the fact that Chapman was part of the international superwealthy and is believed to have been having an affair with the defendant—but the fact that her company was up to its eyebrows in IFS and the seething controversy in Congress over government intrusion and individual privacy.

  They try to haggle with the judge.

  “You’ve heard my ruling. The answer is no.” Gilcrest’s tone climbs a couple of decibels in volume, not quite angry but getting there.

  The only thing that didn’t come up during more than an hour of pitched argument is the eight-ton elephant,
the psychic presence of Larry Templeton. The cute little man has his feet propped up on top of his briefcase, which he has set on the floor in front of his chair to use like a footstool. Templeton has the fingers of both hands laced together and braced behind his head, his elbows spread as he leans back, enjoying the argument. His head is a full four inches below the top of the chair’s backrest. It is just this kind of lovable, take-me-home-and-squeeze-me image in front of the jury that has Harry and me worried.

  Gilcrest is in his mid-sixties. With narrow, slumping shoulders, his slender six-foot-four-inch frame drips folds of black polyester as his robe fans out from his skinny neck and disappears behind the top of the bench. Everything about the man is sharp, from the angle of his nose to the high, prominent cheekbones set like boulders under eyes that are sunk so deep in the man’s skull that any color from the pupils is lost in shadow.

  “Mr. Templeton, if you could join us, take your seat so we can move on to the other items.” The judge motions with a hand and a nod toward his bailiff, sign language to clear the courtroom now that the issue of cameras is behind us. Next up are motions on pretrial evidentiary items. These are closed to the public, though ultimate rulings and their significance are sure to seep onto the front pages of the newspapers and the minute-by-minute cable TV accounts of the trial.

  Noise and commotion as foot traffic heads for the exit. The mob is out of their seats, milling toward the double doors at the back of the courtroom.

  At the other counsel table the lawyers juggle loose papers and grab their briefcases, one of them holding a pen in his teeth, his half-open briefcase in one hand and papers in the other. Templeton lifts his feet off his briefcase and up onto the seat to avoid getting trampled. He arches his eyebrows and smiles at me, a portrait in miniature: Escaping the Exiting Horde. Harry is right. Templeton is going to kill us in front of the jury.

  “Next item is the videotape?” says Gilcrest.

  “I believe so, Your Honor.” Harry fingers through the folder to find our notes.

  Templeton lugs his briefcase forward. Lifting it shoulder high, he pushes it up onto the table. He is joined by Mike Argust, one of the lead detectives in Homicide and the man who headed up the investigation of Chapman’s murder. He will be state’s representative for “the People,” entitled to sit in the courtroom and listen to all the testimony even though he is a witness and will be called to the stand. Argust’s name had been conspicuous in the papers before the court issued its gag order silencing both sides on the case. The detective’s face and image are still highly visible in file footage whenever Chapman’s murder pops up on the televised news.

  “Your Honor, if we could have some help with the seat assist.”

  Gilcrest is reading, trying to get a head start on the next motion. He looks up abstractedly from the file, as if encountering a man from Mars. “What? Oh, yeah, of course. Jerry!”

  He calls to his bailiff, who is just locking up the back doors. Jerry turns toward the bench.

  “Chair,” says Gilcrest. The judge, who has resumed reading the file, gestures absently with his hand toward Templeton. More sign language. This is understood in all the criminal courts where Templeton does business.

  “Oh, yeah. Sorry.” The bailiff hooks his keys onto his belt and hustles back toward the judge’s chambers. A couple of seconds later he emerges carrying a dark square object like a box with rounded corners.

  The county has designed a special fixture for the cushioned tilting armchairs used by the lawyers at counsel table. This device, made of wood, padded, and covered with dark fabric, fits inside the arms of the chair and lifts Templeton to a height so that he is seated on a level playing field with everyone else. The bailiff installs the thing and Templeton scrambles up into the chair like a truck driver climbing into the cab of an eighteen-wheeler.

  “On this issue I don’t know that I’m gonna take a lot of time,” says Gilcrest. “I have looked at the tape and, except for a case I once heard involving prurient interest and socially redeeming values in the realm of porn, I have to admit it is pretty graphic.” The judge is talking about the videotape from the camera in Chapman’s office that caught her and Ruiz in half dress, going at it on the couch. “Of course, I can’t verify that they consummated the act,” says Gilcrest, “but a jury can come to its own conclusion, I suppose.”

  “That’s the point, Your Honor.” I’m on my feet, the only advantage I have over Templeton, at least in front of the judge. “The tape proves only that they engaged in a single indiscreet act,” I say.

  “I’m inclined to lean toward Mr. Madriani’s argument,” says the judge.

  “Surprise me, Your Honor.” Templeton is smiling up at him from the other table, still pulling papers from his briefcase, not missing a beat. “The video speaks for itself. It is the best evidence of the relationship between the defendant and the victim. The state believes that that relationship was at the heart of this crime: that it is the reason the defendant killed the victim. The tape is vital. And it is corroborative of other evidence pointing to this relationship.”

  I turn it around on him: “If they have other evidence, why do they need the tape, Your Honor? The contents of that tape are highly prejudicial.”

  “I agree,” says Templeton. “It shows that he had a reason to kill her. He was in love and she’d cut him off.”

  “It shows nothing of the kind, Your Honor.”

  “One at a time,” says Gilcrest. “Mr. Madriani, since it’s your motion to suppress, you first.”

  I cite provisions of the state’s evidence code that give the court discretion, allowing the judge to keep items in evidence out of the hands of the jury in situations where they could poison their view of the defendant to such an extent that he could not get a fair trial. “Prejudicial effect versus probative value,” I say. “What is the state trying to prove? That two people had an affair that lasted over a period of time, and that it became so intense that the defendant became infatuated with the victim to the degree that when she told him to go away he killed her. That’s their case.”

  “That and the murder weapon and some awfully good shooting,” says Templeton.

  The judge swats him down. “Enough, Mr. Templeton. You’ll get your chance.” Templeton bows his head toward the bench in acquiescence and straightens his bow tie.

  “But does the content of that videotape prove the existence of such a long-term and torrid relationship? No. It establishes one incident of what can only be called a moment of lust. Not a motive for murder. And the images on the screen are so likely to offend a jury as to make it impossible for the defendant to redeem himself or have any chance of a fair trial. Your Honor, to show that tape to the jury is to poison their minds so irreversibly against the defendant that the contents of the videotape must be excluded.”

  Gilcrest absorbs this without any hint as to whether it sways him. “Mr. Templeton. Now.”

  Templeton somehow gets the heels of his shoes on the front part of the seat of the chair so that an instant later he is standing on the seat, the wrinkled knees of his suit pants an inch or so above the level of the table. The image is a gripper.

  It is a first for me, never having tried a case against him. My jaw drops. When I turn back toward the bench, it’s apparent from the judge’s expression that he has caught the astonished look on my face.

  “My learned opponent says that the tape fails to establish a long-term and torrid relationship,” says Templeton. “What does he expect, a four-night miniseries? That tape proves that they had an affair. It is one piece in a sequence of evidence that establishes the duration and the intensity of a relationship between the defendant and the victim that is at the heart of the victim’s death. Without that tape, the state’s case would be immeasurably weakened,” says Templeton. “And that relationship is central to our theory of the crime. Take it away and you may as well”—he pauses for effect—“cut off my legs.”

  Still standing at the table, I glance sideways down at H
arry, who is seated next to me. Harry’s face is an expression of I told you so.

  “That’s all fine and good,” says Gilcrest, “but I’m still concerned about the tape. How do we get the jury to disregard all of that huffing and puffing, to say nothing of the sweaty bodies on the screen? Especially since only one of those bodies is going to be present during the trial?”

  Gilcrest is the best kind of former defense lawyer, the kind that wears black robes.

  “It goes with the turf,” says Templeton. “It is what it is. What’s on the tape is what they did.”

  “But what’s on the tape isn’t an act of murder,” says Gilcrest. “Not unless he humped her to death.”

  “Of course not, and we’re not saying that it is, Your Honor.” Templeton laughs. “But it’s an incremental part of our case. Vital evidence,” he says.

  “It’s also highly prejudicial—”

  Gilcrest puts up a hand and stops me as if to say he’s heard enough from my side of the argument. “So it comes down to whether there is anything that the state might be able to substitute for the contents of that tape. Is that where we are?” asks the judge.

  “Your Honor, there’s nothing that can substitute for that tape,” says Templeton.

  “If my goal was to poison the jury, I’d agree with you,” says Gilcrest. “As I recall, there was a young woman who entered during part of the tape. Though my eyes were riveted—as yours were, I’m sure—on the action, I believe she was a redhead.”

  I supply the name. “Karen Rogan, Your Honor.”

  “Good. For the record: Ms. Rogan. She’d have to be blind not to have seen what was going on,” says the judge.

  “The defense would stipulate that Ms. Rogan can testify as to what she saw,” I say.