Rule of Law

by Randy Singer

  She stood there for a moment, studying herself, a last-minute pep talk rattling around in her brain. She was blessed with decent looks, though she thought her green eyes were a little buggy. She had straightened her shoulder-length black hair for the occasion instead of tossing it up in a messy bun or pulling it back with a headband like she normally did. She had applied only a thin layer of foundation, a little lip gloss, and some basic eye shadow and mascara—nothing fancy. She wanted to be taken seriously as a professional.

  Paige was four years out of law school and had already argued in front of the Virginia Court of Appeals nearly fifty times. She had graduated third in her class and now worked for the attorney general of the Commonwealth of Virginia. She could do this. There was no one better.

  She gave herself a quick nod, picked up her briefcase, squared her shoulders, and left the restroom. She took a furtive glance around to make sure nobody was watching and headed straight to the courtroom.

  The usual suspects had already arrived. There were a few lawyers, like Paige, who made a living doing appellate work. This court consisted of three-judge panels who decided if the trial court had correctly applied the law. Most of the criminals here were represented not by appellate specialists like Paige but by their trial lawyers, a ragtag bunch who worked for court-appointed rates and seldom offered a real defense. Paige had lost only three times, and she’d seen every one of them coming.

  Today, in the back row, sat a reporter for the Tidewater Times. She knew he was here for her case, Markell v. Commonwealth, the most volatile case she had handled in her short career.

  Austin Markell was a twenty-eight-year-old trust-fund child of a wealthy real-estate developer from Portsmouth, Virginia. He had been convicted of raping a nineteen-year-old student from Old Dominion University. She reported it to the police the same night, and the DNA was a match. The woman, Grace Hernandez, had bruises on her arms and neck, where she claimed he held her down with his forearm. Markell said the sex was rough but consensual. The jury convicted him in an hour.

  A few weeks after the verdict, a juicy rumor surfaced, fueled by a hearing in a divorce case for one of the assistant commonwealth attorneys. It seemed that Markell’s defense lawyer, a young superstar in the defense bar named Lori Benton, had been having an affair with a lawyer in the prosecutor’s office. Markell promptly fired Benton and retained sixty-five-year-old Wyatt Jackson, a local legend, a man who hated the government and turned every case into World War III.

  Jackson raised an ineffective assistance of counsel defense, arguing that Benton had not told Markell about the affair. Jackson claimed that attorney Benton had pulled her punches. She didn’t go after the victim’s prior sexual history. She didn’t call character witnesses who would have helped Markell. Jackson even submitted an affidavit from Markell saying he would never have hired Ms. Benton if he had known about the relationship.

  Paige popped a mint, draped her winter coat over the rail behind her counsel table, and took a seat next to the embattled commonwealth’s attorney for the city of Portsmouth. The city was divided along racial lines, and Destiny Brown had been voted in as commonwealth’s attorney over her two white opponents. She had fired half the office immediately, and the rest were leaving in droves. The prosecutor caught in the affair had been forced to resign. Defense lawyers like Wyatt Jackson preyed on the chaos.

  Austin Markell had already begun serving his sentence and wouldn’t be in court today, but Jackson had managed to fill up an entire row with the defendant’s family and friends. Before court started, he came over to shake Paige’s hand. Jackson was six-five and a full head taller than Paige. She gripped his hand firmly but knew that hers was cold and clammy.

  “You nervous?” Jackson asked.

  “Not really,” Paige said. It sounded unconvincing even to her.

  Jackson was rail thin with sharp facial features. He had a formidable mane of silver hair that he shoved behind his ears. He had grown a mustache that could hide yesterday’s breakfast, and his piercing blue eyes were sheltered by bushy gray eyebrows. His smile was somewhere between a smirk and a grin. “I’d be nervous too if I were arguing your side,” he said.

  “Good luck,” Paige replied brusquely. “You’ll need it.”

  This caused Wyatt to smile more broadly. “Ah, the bravado of the young.” He nodded at Destiny Brown, who had refused to rise and acknowledge him. “Nice to see you again as well, Ms. Brown.”

  “Get lost,” Destiny said.

  Wyatt just shook his head. “Didn’t realize we were so touchy today. But then again, you are a little short-staffed at the office.”

  He turned and headed back to his side of the courtroom. Paige sat down, but Destiny couldn’t help herself. “What an arrogant jerk,” she whispered, loud enough to be heard by those sitting behind her.

  Paige knew better than to underestimate the man. Born just this side of the Virginia/West Virginia line, he combined the charm of a Southern gentleman with the hide of a mountaineer. He reportedly lived in an RV at a KOA campground, but the rumor was that he had more money in a Swiss bank account than most Silicon Valley execs. He was the kind of lawyer everyone loved to hate until they needed one.

  Then they called him.

  6

  Wyatt Jackson stood ramrod straight as he faced the three judges who would decide this appeal. He gave them little deference, sometimes interrupting as they fired questions at him. Paige admired his tenacity but thought he was alienating the panel. Either way, it didn’t help her nerves to have the lawyer for the other side set such a combative tone.

  Jackson’s main antagonist was Judge Anna Colson, who was also probably the swing vote on the panel. She did not seem to be buying the ineffective assistance of counsel claim.

  “I understand we have this relationship going on,” she said, peering over the top of wire-rimmed glasses. Judge Colson had a pudgy face and thinning gray hair. “But I’m not seeing where it affected the way Ms. Benton tried the case. What would you have had her do differently?”

  “Everything,” Wyatt said confidently. “She called no character witnesses. She didn’t cross-examine the victim about prior sexual history.”

  Colson practically snorted at that argument. “Perhaps you’ve heard of this thing called the rape shield statute,” she said.

  “It doesn’t protect victims if the prosecution puts the victim’s prior sexual conduct in play,” Wyatt shot back.

  “I’ve looked through the entire transcript and didn’t see that happen here,” Colson responded.

  “Volume 1, page 372,” Wyatt Jackson said without consulting his notes. “When Ms. Hernandez was asked whether the sex was consensual, she said, quote, ‘I would never consent to sex like that,’ end quote. That’s a plain statement about her prior sexual conduct, and defense counsel should have jumped all over it.”

  “You’ve got to be kidding,” Colson scoffed. “If I were the trial judge, that wouldn’t be enough for me to let someone like you cross-examine a victim on her sexual history.”

  “A zealous defense lawyer should have at least tried, Your Honor. This case is worse than the Thornburg case, and the defendant got a new trial in that one.”

  Colson leaned back in her chair and crossed her arms, apparently unconvinced. Paige was surprised Wyatt had even mentioned the Thornburg case. It was a ruling from a trial court in Richmond that wasn’t binding on the court of appeals. In Thornburg, a defense lawyer who was married to an attorney in the commonwealth’s attorney’s office had not only failed to inform his client but had failed to call a single witness. He had fallen asleep during the prosecution’s case. Not surprisingly, the trial judge had granted a new trial.

  Paige had come across dozens of similar cases during her research, but none of them were from the Virginia Court of Appeals or the Virginia Supreme Court, the only two courts that were binding on this three-judge panel. In her opinion, Wyatt had made a mistake even mentioning Thornburg.

  Paige watched as the r
ed light at the front of the podium came on, signaling the end of Wyatt’s twenty-five minutes. Out of respect for the court, Paige always concluded in a single sentence when that happened. But Wyatt pulled himself up to his full height and, without asking the permission of the court, continued to plow ahead.

  “In Shakespeare’s play As You Like It, one of the characters says that ‘love hath made thee a tame snake.’ Here, Ms. Benton was a tame snake. She didn’t strike when she had her chance, and my client is entitled to a new trial with somebody not afraid to do so.”

  “Thank you very much,” Judge Colson said curtly.

  7

  Standing at the podium, before she could get a word out of her cotton-dry mouth, Paige found herself on the defensive.

  “Don’t you think defense counsel should have at least disclosed this relationship to her client?” The question came from Judge Rahul Patel, a former public defender. He was the judge on the panel Paige knew would be the toughest sell.

  “Under the ethical rules, yes. But I don’t believe it entitles Mr. Markell to a new trial.”

  “Why didn’t you submit an affidavit from the assistant commonwealth’s attorney who had the affair, denying that he ever discussed the case with defense counsel?” Judge Patel leaned forward on the bench. “That would have been an easy way to buttress your argument, no?”

  Paige had known that question was coming, but there was no good answer. “He refused to talk to us.”

  This caused a few raised eyebrows on the panel. “Really?”

  Yes, really, Paige wanted to say. Her frustration was beginning to beat back her nerves. “It doesn’t actually matter. Mr. Markell was well represented. There is nothing his defense counsel could have or should have done differently.”

  For the next few minutes Paige found herself on solid ground. “Ms. Benton was smart not to call any character witnesses. The defendant had a long list of reprehensible acts that the prosecutors could have used if Ms. Benton had opened the door by calling character witnesses. As to the matter of the victim’s prior sexual history, Ms. Hernandez’s claim that she would not have consented to sex that left bruises on her arms and neck is hardly a statement putting her prior sexual history in play. If this court were to hold otherwise, every time bruises are left on a rape victim and she denies that she consented, defense counsel could drag her entire sexual history before the court. That can’t possibly be the law.”

  Paige had now found her zone. It happened this way every time. Nerves. Fear. A rough start. But ultimately her obsessive preparation kicked in, and her adrenaline would fuel focus instead of fear.

  Judge Patel asked Paige about the Thornburg case. Didn’t that case stand for the proposition that any time a defense lawyer had an intimate relationship with someone in the prosecutor’s office and the relationship wasn’t disclosed, there would have to at least be an evidentiary hearing to see if the defendant was entitled to a new trial?

  “Thornburg was wrongly decided,” Paige said confidently. “If this court adopts the reasoning in Thornburg, it will open a huge can of worms.”

  Judge Colson leaned forward. “Tell me more.”

  The remark drew a smattering of chuckles, and Paige felt an uneasy chill tingle down her spine. The only one in the room not getting the joke.

  “Thornburg wrongly holds that any undisclosed relationship between defense counsel and a member of the prosecutor’s office is enough for the defendant to have a hearing to determine whether he is entitled to a new trial. What if the prosecutor and defense lawyer had been on a date three months earlier? What if they were friends from law school? What if they went to the same church? What if they played tennis together? What if—?”

  “But that’s not what we’re dealing with here,” Judge Colson interrupted. “There’s no doubt that Ms. Benton and a member of the commonwealth’s attorney’s office were having a long-term affair.”

  “I agree, Your Honor. But I still believe that defense counsel should have to prove some prejudice against his client before he is entitled to a hearing.”

  “But how does he know if his client has been prejudiced without a hearing where he can examine Ms. Benton, the defense lawyer, under oath?”

  Paige felt herself backed into a corner. “We just have to look at the entire record. In a case like this, there’s no doubt the defendant was well represented.”

  “But how do we know Mr. Markell’s lawyer wasn’t talking to her lover about the case?”

  “There’s no evidence that she did.”

  “But there is evidence that she was not forthcoming with her client. Why didn’t she just tell her client about the relationship?”

  The red light flashed. “I see my time is up,” Paige said. “May I answer the question?”

  “I think you’d better answer Judge Colson’s question,” Judge Patel quipped.

  “Courts should not get into the business of second-guessing defense counsel based on the lawyer’s alleged motivations. What if Mr. Jackson over there has other clients who pay more than Mr. Markell—though I doubt he does. Should that allow the defendant to second-guess Mr. Jackson’s representation here and claim he didn’t try hard enough? No. We should look at the record and the conduct of defense counsel during the trial. Because Ms. Benton did an adequate job, the conviction should be affirmed.”

  A few minutes later, Paige learned what the chuckling had been about. During his rebuttal argument, Wyatt Jackson pounced gleefully on her mistake.

  “Your Honor’s opinion in Thornburg should not be brushed aside so quickly,” he said to Judge Colson.

  Paige felt her face flush, her mind reeling. She had read that case. Surely she would have recognized Colson’s name if she had been the trial judge who decided Thornburg. Then the panic hit. Paige remembered something about a divorce that occurred before Judge Colson was elevated to the appellate bench. At the time she read Thornburg, Paige hadn’t been thinking about Judge Colson’s prior married name—she didn’t even know that Colson would be one of the judges chosen for Paige’s panel until this morning. But now it made sense—why the judges had wanted to talk so much about Thornburg.

  Paige hardly heard another word that Wyatt Jackson uttered. She was too busy replaying her dismissive remarks about Thornburg. She would have addressed the matter differently if she had known Colson was the trial judge who had decided that case. Paige would have been far less critical of the reasoning; she just would have distinguished the facts.

  “Accordingly, we ask that this court at least direct the trial court to provide the defendant with an evidentiary hearing to see if he is entitled to a new trial,” Wyatt Jackson concluded. The red light was on. This time he thanked the judges and sat down.

  After the judges left the bench, commonwealth’s attorney Destiny Brown shook Paige’s hand and told her she had done a good job, but they both knew it was a lie. Wyatt Jackson came over and told Paige she’d had a tough case. She shook his hand and congratulated him, resisting the urge to ask how he could live with himself. She busied herself packing her stuff and grabbed her coat, determined not to make eye contact with anyone else on her way out.

  But that proved impossible. First the reporter from the Tidewater Times approached her, though she was able to brush him off with a quick “no comment.”

  And then, looking over the reporter’s shoulder, Paige saw him—the last person she wanted to see on the day of her humiliation. He was standing in the back row, wearing a baggy gray hoodie, hands in his pockets. He must have been there for the entire hearing. He seemed so out of place, like he belonged in an entirely different part of Paige’s compartmentalized life.

  When she approached him, he broke into a broad smile.

  “What are you doing here?” she asked.

  Patrick Quillen shrugged. “Scouting out the best lawyers in case I get a traffic ticket.”

  She couldn’t decide whether to laugh or cry. She was already fighting back tears of frustration. And now she felt a whole ne
w set of emotions bubbling up.

  8

  They’d met through an online dating service. Paige later described their first date to a friend as “awkward and enchanting all at once.” Patrick was a little old-school for Paige, like he had stepped off the set of a Western where men held doors for women and protected the fairer sex. He seemed to have a simplistic view of life powered by a sense of unbridled enthusiasm for God and country, a sharp contrast with Paige’s cynical lawyer friends.

  The enchanting part was his smile. He had deep-set eyes, a model’s jaw and cheekbones, and short black hair. Even if she hadn’t read his profile, Paige would have known he was military. But when he flashed that smile—and for Patrick Quillen that was a frequent occurrence—he was all Hollywood.

  The other thing she liked was that Patrick, unlike the others she had met on that same dating site, didn’t try too hard to impress. He actually seemed to care more about Paige than he did about himself. It wasn’t until their third date that she learned he was a SEAL.

  “Why didn’t you tell me that before?” she asked.

  He shrugged the question off. “That’s just the way we roll.”

  That same night Patrick told her about his parents, killed in a car accident when Patrick was only three. He was raised by his grandparents on a dairy farm in upstate New York. His grandmother had died from cancer just three months before Patrick headed to BUD/S.

  “She was the bravest person I’ve ever known,” Patrick said. “She fought through chemo and weight loss and hair loss. I never heard her complain or get angry at God. If someone asked how she was doing, she would just say she was blessed.”

  “She sounds incredible,” Paige said. “I wish I could have met her.”

  “So do I,” Patrick said.

  By now they had been seeing each other for a month—long enough for Paige to close her online dating account and develop real feelings for Patrick. But not long enough for him to see her at a moment of weakness like this.