Hate Crime

by William Bernhardt

  “Well,” she said, clearing her throat awkwardly, “I did wonder if you’d consider any sort of deal that-”

  He held up his hand. “I’m sorry, Ms. McCall, I can’t. There’s just too much pressure bearing down on us, demanding a conviction. And frankly-our case is too strong. I don’t envy your position at all. I know you can’t win, but I sincerely hope you can save face and not appear incompetent.”

  “Or perhaps I prefer cases that come with built-in excuses because I really am incompetent.”

  He flashed some teeth. “Don’t be modest, Ms. McCall. You’ve had a distinguished little career. Not many legal assistants make it to your level.”

  She hesitated. “But-you understand-I’m a lawyer now.”

  “Of course. But that’s a recent development, right?”

  “Well, relatively speaking, I suppose.” And your point is?

  “Most of your death penalty cases have actually been handled by your partner. What’s his name again?”

  “Ben Kincaid,” she said slowly.

  “Right, right. You two handled that cop killer case. Very impressive.”

  “Well… thank you.”

  “I’m glad I haven’t had anything like that on my watch. This Barovick case has been my highest profile gig yet, and I’m glad of it. I just want to do my job, without all the interference you had to brook in that case. Of course, Tulsa is not Chicago by any means. You don’t have our resources. I’d like to think we could’ve taken care of that here in one trial and a lot less time. But it all worked out in the end, right?”

  “Riiiiight.”

  “Have you met Judge Lacayo yet?”

  “Haven’t had the pleasure.”

  “Well, he hasn’t always been the most open-minded about women lawyers. Especially as lead counsel in important cases. But I’m sure it will be fine.”

  So was this guy deliberately trying to psych her out, Christina wondered, or was it just the effect of her own insecurities impinging on an innocent conversation? Didn’t matter-time to bring this conversation to a close.

  “I should probably be getting to the courtroom.”

  He checked his watch. “Oh, me, too. Gotta meet a reporter first, then I’ll be right there.”

  “Can you give me directions?” Christina asked. “This is my first time here.”

  “No problem. Lacayo’s courtroom is not in this building. Cross over on the catwalk to Building Two, then keep going to Building Three. Take the elevator down to the basement and turn left. His courtroom is the last one on your right.”

  “Got it. Thanks.”

  “Sir,” the receptionist said, interrupting, “here are the briefs you wanted.”

  He appeared mildly distressed. “Oh, geez, Mona, I can’t carry those to my interview. What would the reporter think? I told you to have them couriered to the courtroom.” Again he glanced nervously at his watch. “Now it’s too late.”

  “No problem,” Christina said. “I’ll take them.” She held her briefcase horizontally in both hands, taking the tall stack of manila envelopes on top.

  “Are you sure?” Drabble said with concern.

  “It’s a snap. See you in a few minutes.”

  “Yes, see you.”

  Fifteen minutes later, she was five minutes late, still hauling all those papers, sweating profusely, and nowhere near the courtroom. She had found Building Two with ease, but somewhere along the way to Three, she’d gotten lost. She’d ended up on the wrong side of the building and had to go down to the ground floor and reenter in order to get to the catwalk. It took her forever to find the elevator; her arms felt as if they were about to give out. With great relief, she punched the button marked B.

  And stepped out to find nothing.

  Not nothing in the strictest sense, but no sign of life. Before her was a dirty, dank corridor filled with cleaning supplies and a floor waxer. Certainly no courtrooms. Not even close.

  She glanced at her watch again. Ten minutes late, now.

  She’d been hometowned.

  Summoning her strength, she got back in the elevator and ran all the way to Building One. She got directions from the man at the newsstand. Turned out Lacayo’s courtroom was near the front door-just down the hall from where she and Drabble had had their little conversation. By the time she finally arrived, she looked as if she’d just run the marathon and was almost twenty minutes late. She assiduously avoided the throng of reporters and spectators and made her way to her table.

  “You look as if you could use a hand,” Drabble said, offering to take some of the paper load.

  “Imagine that,” Christina said, as she dumped it all on the defendant’s table.

  “I take it you’re Ms. McCall?” Lacayo said, leaning down from his bench. He looked almost reptilian, hovering, his beak nose pointed downward, and was obviously unhappy.

  “I am, sir.”

  “You’re not a member of our bar, are you?”

  “No, sir. But Kevin Mahoney has filed a brief on my behalf to be admitted pro hac vice.”

  “Apparently local counsel failed to give you adequate instruction, Ms. McCall, so allow me to fill in the gap. I’m not a stickler for much, but there is one thing I absolutely insist upon. And that is punctuality.”

  It would be. “Yes, sir. I’m sorry, sir.”

  “Ask any lawyer in this county and they will all tell you the same thing. Judge Lacayo is a tolerant, patient man. But he will not put up with dillydallying. Everyone knows that.”

  Of course they do, Christina realized. That’s the whole reason for this little prank. Poisoning the well before I have a chance to take a drink.

  “Maybe they do things differently in-” He glanced down at his papers, then made a face as if he’d just sucked on a lemon. “-Ok-la-homa. But here in Cook County, we expect our lawyers to behave as professionals.”

  “Yes, sir.”

  “It’s more than just nit-picking. It goes to the whole caliber of representation. A tardy lawyer is a sloppy lawyer. That’s what I always say.”

  “Certainly, sir.” Should she tell the judge what happened? Of course not. Then he would consider her a whiner-and a stooge-in addition to a dillydallyer.

  “I’ll overlook your flagrant misconduct this one time, Ms. McCall, but only this once. If it happens again, there will be consequences. I’ll be watching you.”

  She glared at Drabble, who studiously avoided her gaze. He’d won this round and they both knew it. He’d ensured that she got off on the wrong foot with the judge-and the client as well, since Ellen Christensen was in the gallery. All she could do was grit her teeth and bear it-and plot her revenge.

  “Are you ready to move forward, Ms. McCall?”

  “I am, your honor.”

  “And you are death-qualified?”

  “Yes, sir.” Though perhaps not in the way that he meant…

  “Very well. We shall proceed.” Christina had no experience with Judge Lacayo, but she couldn’t believe that he normally behaved this way. He seemed uncommonly stiff and formal, doing a stern paternal routine that almost seemed like an SNL send-up of a judge. Probably the influence of all the reporters in the courtroom, she speculated. Not to mention all the protesters outside.

  Judge Lacayo called the case and got right to the nitty-gritty. “Ms. McCall, I have your motions before me. Normally, I would not allow what are essentially pretrial motions at this stage of the proceeding-when the jury has been selected and the trial is simply in recess-but as we all know, there have been some extraordinary circumstances, so I granted this hearing.”

  “Thank you, your honor.”

  He turned his attention to the papers on his bench. “Predictably enough, your first motion is another request for a continuance of the trial date. I thought I had already made clear-”

  “If I may, your honor.” Christina grabbed her notes and headed for the podium. “I know the court is anxious to get this trial moving, but as you’re aware, I received this case only a few da
ys ago.”

  “We’re all aware of the regrettable circumstances that required Mr. Mahoney to step down.”

  “Exactly. So given the magnitude of the penalty potentially faced by my client, I’m requesting a three-month continuance in order to have time to thoroughly prepare-”

  “Do you have access to Mr. Mahoney’s notes?” the judge asked, cutting her off.

  “Well, yes, sir, I do.” The problem was, there was nothing there.

  “And I believe you even have access to Mr. Mahoney himself.”

  “That’s true, your honor. He’s been very good about-”

  “So I don’t see the problem.”

  “The problem, sir-” Christina took a deep breath. The trick was to make her point without suggesting that Kevin Mahoney had been negligent in preparing the defense the first time around. “-is that every attorney has his or her own style, and while the materials that Mr. Mahoney was prepared to use at trial might have worked for him, I’m finding them somewhat…”

  “Yes, counsel?”

  “Unavailing. If the court would simply allow me adequate time to prepare my own defense, I think the results would be far more salutary.”

  “If I may, your honor,” Drabble said, rising to his feet, “the State would oppose giving the defense additional time to fish around and see if they can come up with something better.”

  “It’s not a matter of fishing around,” Christina insisted. More like praying for a miracle. “But in a case of this magnitude-”

  “If I understand what you’re saying,” Judge Lacayo said, “you’re essentially asking for more time because Mr. Mahoney had a different defense style than you do. I’m sure you take great pride in your style, Ms. McCall, but if the defense has had adequate time to prepare-and this one has-I see no need to extend it. Furthermore, the speedy trial provisions of the Constitution mandate that we proceed.”

  “But your honor-”

  “If, on the other hand, as I suspect, you just want more time to see if you can dig up a better defense, it would be positively unfair to allow you more time. So if you have nothing else…”

  Christina rifled through her notes. Where was that case? “Your honor, I would direct the court’s attention to State v. Harmon.” Thank goodness for Paula. Christina had found this case in her e-mail this morning, with the rest of Paula’s invaluable research. It was exactly what she needed.

  “I know the case, counsel.”

  “Then you know that the Harmon court established that in addition to the needs of the defense and the interests of fairness, public policy considerations should be examined when determining whether to grant a continuance.”

  Judge Lacayo sat up at attention. “Are there public policy issues here, counsel?”

  “Yes, sir. Needless to say, there has been an enormous amount of public interest in this case.” She glanced back to both sides of the gallery, making her point. “It’s more than just a murder case. In the eyes of many, it has taken on a symbolic mantle. It’s become about tolerance, diversity, and the effectiveness of the American criminal justice system. People are looking to this case, this courtroom, to give them a sense of resolution and, if I may say so, a sense of justice. It is important that we don’t fail them.”

  Lacayo appeared to be listening intently. “Go on.”

  “If I am required to proceed with haste, there will always be some who will say the result was tainted by the circumstances in which the defense was prepared and presented. In order to give people a sense of resolution, we must assure them that the trial was conducted in such a manner as to give the truth a full and fair opportunity to arise.”

  “So what I hear you saying, counsel,” said Lacayo, inching forward, “is that in order to keep people from claiming your client was railroaded, I have to give you everything you want.”

  Christina felt the prickly heat creeping up her collar. “I wouldn’t put it like that…”

  “And how far does that go, Ms. McCall? I notice you’ve also filed a motion to suppress. Do I have to cave in on that one, too? In order to assuage the public need for resolution.”

  “Your honor, equity always plays a larger role in continuance motions, and here-”

  “No, I’m sorry, counsel.” He eased back into his black leather chair. “When you raised the public policy concerns, you had me going for a moment. But you have to realize there are many factors that favor going forward-principally an increasingly clogged criminal docket. Also, if I continue this case for three months, the jury will have to be dismissed and a new one impaneled. And for what? So you can appease the public? So you can develop a defense that’s more in your style? I’m sorry, Ms. McCall, but you just haven’t given me adequate grounds for a continuance. Motion denied.”

  “But your honor, the needs of-”

  He looked at her harshly. “Here in Cook County, Ms. McCall, when the judge says he’s ruled, it’s over. Move on.”

  Christina reluctantly turned to the next page. That was by far her best shot-the motions to suppress evidence were major-league long shots.

  After Tony Barovick’s body was found in the frat house, the Chicago PD put out an APB and began rounding up every member. They found Johnny and Brett, along with several other frat boys, at Remote Control, the bar where Tony had worked. A visual inspection showed that both Johnny and Brett had scraped knuckles and blood splatters on their clothing. They arrested the two and read them their rights. Johnny stayed cool for a while, but the police continued to needle him, hoping he would do exactly what he did-display some of the temper that would’ve been necessary to exact the punishment visited on Tony Barovick. He pushed the officers away, screaming, “Who the fuck cares what happened to that flaming faggot?”

  It was not a confession, but to the jury, it would have the exact same effect.

  “First of all, your honor, we move to strike from the prosecution’s witness list all those persons who overheard statements made by Johnny Christensen and Brett Mathers at the bar the night of the murder. Allowing them to repeat what was said by a third party is, by definition, hearsay.”

  “We don’t disagree,” said Drabble, rising once again. “But it falls within acknowledged hearsay exceptions. The defendant’s statements are admissions against his interest. His partner’s statements are admissible because the declarant is obviously unavailable-being dead.”

  “Hearsay exceptions are allowed at the court’s discretion,” Christina rejoined, “and should only be permitted where the circumstances suggest reliability. Here, there are no such assurances. The men were all drinking heavily. The two suspects were both puffing, trying to impress their friends.”

  “By bragging about mercilessly beating a man,” Drabble added.

  “The point is that nothing about this scenario suggests trustworthiness.”

  Lacayo shook his head. “I’m sorry, counsel. Once again, I can’t agree with you. The statements combined with the close proximity in time to the murder suggest trustworthiness to me. The fact that they even knew a beating had taken place so soon after the event, only minutes after the body was found, suggests that the statements were truthful. And, frankly, if someone’s stupid enough to make remarks of that nature in a public place, they deserve to hear them repeated in court.”

  “Pardon me, sir, but it sounds as if you’re punishing my client for being stupid.”

  “No, ma’am. Life punishes the stupid. No need for the courts to get involved.”

  Christina felt her knees weakening. She was bombing out here, and she damn well knew it. If she couldn’t do better than this, Johnny Christensen was a dead man.

  She glanced over her shoulder to the front row of the gallery. Since her client hadn’t been released for this hearing, his mother-as the woman who had hired Christina-was the most important person in the room. Ellen Christensen sat with a remarkably stoic expression.

  “Your honor,” Christina said, trying to pull herself together, “if I might direct your attention to on
e statement made by my client after he was taken into custodial arrest.”

  “That’s the one we like to call ‘the confession,’ ” Drabble said.

  Christina flashed him an evil look.

  “You’re talking about the”-Lacayo cleared his throat, then spoke in lowered tones-“the ‘flaming faggot’ remark?”

  “Yes, your honor. Contrary to being a confession, this statement isn’t even relevant to the crime. It doesn’t indicate what he did or did not do, only his… opinion regarding persons of different sexual preference. It should be excluded, since it is potentially damaging and not probative of the matter at issue.”

  “I greatly disagree,” Drabble said. For the first time, his voice rose. “This statement is uniquely probative of one important fact-the defendant’s venomous hatred of homosexuals. This was a hate crime. And this statement evidences that hate more clearly than I could do in a thousand closing arguments.”

  “I’m sure the DA would love to have this statement in his closing argument,” Christina said, “but that doesn’t make it relevant.”

  “It goes to motive,” Drabble said. “More than that, actually. It proves motive.”

  Lacayo shook his head. “I’m afraid that once again I’m inclined to agree with the prosecutor.”

  Christina tore desperately through her notes. “What about Miranda rights?”

  Lacayo glanced down at his briefs. “I have an affidavit stating that the rights were read and that the defendant waived them.”

  “The defendant had been drinking,” Christina insisted. “His table was littered with tequila shot glasses. The police saw that. They knew he was in a vulnerable mental state. So they read him his rights real quick and started pounding him with questions.”

  “Again, counsel, I’m not willing to give the man special privileges because he voluntarily engaged in foolish conduct.”

  “Your honor, if the police can do this, they could pick up any kid who’s had a few too many and start hassling him till he says something incriminating. No one would be safe.”

  Lacayo removed his glasses. “I think this is getting a bit far-fetched.”