by Joel Goldman
“We’re gonna let your little joke go this time, big man. Don’t fuck with us again or it’s gonna be a rough ride back up in the elevator. Got me?”
“Lighten up, Deputy,” Mason said. “He was yanking your chain and you just threatened him in front of his lawyer. That elevator gets stuck and you’ll be on the other end of a civil rights charge faster than you can sing ‘We Shall Overcome.’ Got me?”
The deputy turned on Mason, his hand on his nightstick. “You tell your client we don’t play games here.”
Mason looked at Blues. “No games or they’ll put you in time-out.”
The deputies shepherded Blues through a side door into the courtroom. Mason followed, glad to have avoided the press. Blues took a seat at the defendant’s table, the deputies occupying the row of chairs directly behind him.
Mason sat next to Blues, his chair covered in worn vinyl and thin padding. It swiveled and rocked, but Mason couldn’t get comfortable.
The judge’s bailiff, a stern-faced, middle-aged black woman, entered the courtroom through the door to the judge’s chambers.
“Judge Pistone says that if he sees a camera in the courtroom, he’ll add it to his collection. Pregame festivities are over. All rise! Hear ye, hear ye, hear ye! The Associate Circuit Court of the Sixteenth Judicial District is now in session before the Honorable Joseph Pistone. All persons having business before this court draw nigh and pay attention. Court is now in session.”
Everyone stood as Judge Pistone shuffled up the two steps to his seat behind the bench, elevated above the masses to remind them of the power of the court. They all waited for his permission to sit down. Without looking up, he offered a dismissive wave.
“Be seated.”
CHAPTER THIRTY-FIVE
Mason glanced around the courtroom as the door opened from the hallway. Harry Ryman and Carl Zimmerman slipped inside and leaned against the rear wall. Harry and Lou looked at each other, both trying not to reveal anything. Harry tipped his head at Lou, who responded with the same sparse gesture.
Mason found Rachel standing in the corner on the opposite side of the back wall from Harry and Zimmerman. They exchanged winks and smiles, comforting gestures, while the judge recited the name of the case and his instruction for the attorneys to state their appearances.
Leonard Campbell rose from his chair, buttoned his suit coat, and stepped to the podium in the center of the courtroom.
“The people of the state of Missouri are represented by Leonard Campbell, prosecuting attorney, and Patrick Ortiz, deputy chief prosecuting attorney. We are ready to proceed at the court’s pleasure, Your Honor.”
Campbell turned on one heel, struck a confident, serious pose for the crowd, and resumed his seat. Patrick Ortiz hated showboats and adopted Judge Pistone’s head-down posture, pleased that the next time Campbell got up it would be to go to the bathroom.
Judge Pistone raised his eyes at Mason, who stood.
“Lou Mason for the defendant. We’re ready. I’ve got a preliminary matter that I’d like to take up before we get started.”
“Proceed.”
“There are a lot of people in the courtroom, Your Honor. Some of them may be witnesses. I recognize Detectives Ryman and Zimmerman, who investigated this murder, and there may be some others. I’d like to invoke the rule that prohibits a witness from being in the courtroom prior to testifying.”
“Mr. Campbell?” Judge Pistone asked.
Patrick Ortiz rose in Campbell’s place. “We’ve got all our witnesses sequestered except for Detective Zimmerman. He’s our first witness, and I guess he’s just a little anxious to get started.”
Ortiz’s explanation drew soft laughter from the packed house, establishing his usual easygoing connection to his audience. There was no jury in a preliminary hearing. Only the judge would make the decision whether to bind Blues over for trial. Ortiz didn’t need all the boxes or the blowups to make his case for Judge Pistone. He understood that the reporters in the courtroom would tell everyone who read a paper, listened to the radio, or watched television how overwhelming the state’s evidence was. That message would reverberate with the people who would become the jurors who would decide this case. He also knew that Mason would pay close attention, gauging the gamble between trial and plea bargain, between a crapshoot for freedom and a date with a deadly needle.
“What about Detective Ryman?” the judge asked.
“We don’t intend to call Detective Ryman to testify. I don’t know what Mr. Mason’s plans are.”
Mason was surprised at Ortiz’s decision to keep Harry off the stand. He wondered if Harry had asked to take a pass to avoid a confrontation with him, or whether it had been Ortiz’s idea. Either way, Mason knew Harry wouldn’t help his defense of Blues.
Mason said, “I don’t intend to call Detective Ryman and I have no objection to his presence in the courtroom.”
“Very well, Counsel. The rule is hereby invoked. No witness will be permitted in the courtroom until after he or she has testified. I expect the lawyers to enforce the rule by keeping a close eye on who comes and goes. Don’t expect me to take roll. If you let somebody slip in, it’s on you. Any opening statement, Mr. Ortiz?”
“Yes, Your Honor. Even though this is a pretty cut-and-dried case, I’d like to put the evidence in context for the court and let you know who you are going to be hearing from.”
Mason was glad that the state had the burden to prove its case. He understood that was why the prosecutor got to go first at every stage of the preliminary hearing and trial—first to make an opening statement, first to put on witnesses, first to make a closing argument. But Mason couldn’t stand going second. Sitting on his hands while Patrick Ortiz did his this-defendant-is-so-guilty-why-bother-with-the-trial routine was worse than having a tooth pulled slowly.
“How about you, Mr. Mason?”
“Your Honor, I’m certain that Mr. Ortiz believes that all of his cases are cut-and-dried, that the police only arrest the guilty, and that we could save a lot of tax dollars if we just skipped all this trial stuff. Fortunately, the Founding Fathers decided not to leave it up to Mr. Ortiz, or me or you, to decide innocence or guilt in this case. The jury will make that decision. I’ll save my opening statement for the trial.”
Mason didn’t want to admit that he had nothing to say at this point in the case except that the prosecuting attorney was taking orders from Ed Fiora to offer Blues a plea bargain. He could add that Amy White wanted Mason to find Jack Cullan’s secret file on the mayor even though she assured him that it had nothing to do with the murder. He might mention that someone had tried to kill him after he refused to play ball with Ed Fiora. He could describe how Fiora had blackmailed Beth Harrell into trying to seduce him and that she had asked Mason to get back the blackmailer’s blackmail so she could seduce him, for her own reasons. None of which, he would have to admit to Judge Pistone, he could prove any more than he could prove that Blues was innocent. So instead, Mason took a shot at Ortiz’s understated arrogance and sat down.
“I would suggest that both counsels save their editorial comments for the press, except I’m imposing a gag order. No one connected with this case will discuss it in public outside of this courtroom. When we’re done here, this case is going to be assigned to a circuit court judge. I don’t want the first motion filed by the defendant to be one moving the case out of the county because there’s been so much publicity the defendant can’t get a fair trial. Now, let’s get to it. Mr. Ortiz, you may begin.”
“Excuse me, Your Honor,” Mason interrupted. He stood, hands raised, underscoring his regret at delaying the proceedings again. “I’m certain you didn’t intend to prejudge this case, but your comments suggest that you’ve already decided to bind the defendant over for trial. If that’s so, I’m compelled to ask that this case be reassigned to another court.”
Judge Pistone glared at Mason. “The last time you were before me, Mr. Mason, you practically accused me of being pressured to deny
your client bail. I invited you to prove such and you declined. Now you are suggesting that I have prejudged the case against your client. Tell me? Is it your desire to be held in contempt by this court? If you are, I shall be happy to oblige you.”
“Not at all, Your Honor. I’m certain that you misspoke when you said that this case was going to be assigned to a circuit court judge. That will only happen if you bind the defendant over for trial. You can’t know until you hear the evidence whether you will make that decision. I didn’t want to leave that impression on the record without bringing it to the court’s attention. Perhaps you’d like the court reporter to read back your comment.”
Mason was willing to dig a deep hole because Judge Pistone had made up his mind, and, just like Ortiz, Mason had more than one audience. The judge had just testified on behalf of Blues in the court of public opinion. Mason had given the press a different lead than one about Blues’s guilt. They could now write a story about how Mason had trapped the judge with his own words, continuing Rachel Firestone’s theme that Blues was getting the bum’s rush. The judge wouldn’t hold Mason in contempt since that would elevate Mason to martyr status for a wrongfully accused client. Instead, the judge would have to swallow hard.
Judge Pistone, known for his disinterested demeanor, was eye-popping mad at Mason and gripped the edge of the bench as he fought to keep his self-control. He wouldn’t risk asking the court reporter to read his comments aloud.
“Thank you for bringing to my attention what was clearly an unintended and unfortunate choice of words. I assure you that I have the highest regard for the presumption of innocence. If you have any doubt on that score, you may request another judge. Is that your desire, Mr. Mason?”
Taking hits from the court to deflect attention from his client was a defense attorney’s high-risk, don’t-confuse-me-with-the-facts ploy that meant one thing: the defense attorney didn’t have dick. Having played the card, he let it go.
“Not at all, Your Honor. As you said, let’s get to it.”
CHAPTER THIRTY-SIX
Patrick Ortiz ambled to the podium, a rumpled, overweight everyman who knocked back a few brews on the weekend, watched sports, talked about women, and sent men to death row.
“Your Honor. I agree with Mr. Mason about one thing. It’s not his job or mine to judge the facts. It is our job to tell you what the facts are. But don’t make the mistake Mr. Mason did. You are the only judge of the facts at this point in this case. Before a jury is asked to decide the defendant’s guilt, you are asked to decide whether there is reasonable cause to believe that a crime was committed and that the defendant committed it. If you find that there is probable cause to believe those things, then you must bind the defendant over for trial.
“Mr. Mason seized on an innocent misstatement by the court to suggest that you have prejudged this case, although he knows that you haven’t and wouldn’t. Mr. Mason has his own reasons for trying to keep our attention away from the facts and away from his client. When the state has finished presenting its evidence, listen closely to hear if Mr. Mason denies any of the facts we present to you. Listen to hear if he offers any other explanation for who shot Jack Cullan in the eye with a .38-caliber pistol. Listen to the silence from Mr. Mason, because that’s all you will hear.
“I told you that this case was cut-and-dried. Tell me if I’m wrong. Jack Cullan was found murdered on Monday, December tenth, by his housekeeper. He’d been shot to death. Mr. Mason won’t deny that. The preceding Friday night, Mr. Cullan and Beth Harrell had been customers at a bar owned by the defendant called Blues on Broadway. Mr. Cullan and Ms. Harrell quarreled. The defendant intervened and fought with Mr. Cullan. Afterward, the defendant threatened Mr. Cullan with physical harm if he interfered with the defendant’s liquor license or came back to his bar. Four witnesses, including Ms. Harrell, will testify at trial to the fight and the threat. Mr. Mason won’t deny that.
“Blood and tissue belonging to the defendant were found under the fingernails of the murder victim. The defendant’s fingerprints were found in the room in which Mr. Cullan died. The defendant has a history of violent conduct, including shooting to death an innocent and unarmed woman while he was a police officer. The defendant has no alibi. Mr. Mason won’t deny any of that.
“There is more than enough evidence to bind the defendant over for trial on the charge of murder in the first degree. I call that a cut-and-dried case and make no apology for it. I wonder what Mr. Mason calls it.”
CHAPTER THIRTY-SEVEN
Patrick Ortiz presented his evidence in a smooth procession of well-prepared witnesses, finishing at five o’clock. Mason did not call anyone to testify.
Blues remained impassive throughout the long day. When Dr. Terrence Dawson, chief of the forensics lab, testified that Blues’s fingerprint had been found in Cullan’s study, Blues reached over to Mason’s legal pad, writing bullshit, pressing hard enough with his pen to cut through to the next sheet of paper.
Judge Pistone said that he would deliberate in his chambers before announcing his decision. When he returned fifteen minutes later with renewed pep, Mason concluded that he had used the time to go the bathroom and have a cup of coffee.
The judge ordered that Blues stand trial on the charge of first-degree murder in the death of Jack Cullan and that he continue to be held without bail. He added that the case had been assigned for trial to Judge Vanessa Carter and that Judge Carter had set the case for trial beginning Monday morning, March 4.
Everyone stood while the judge made his exit. Leonard Campbell clapped Patrick Ortiz and his assistants on their backs, straightened his jacket, and left, looking for the nearest microphone. Ortiz packed his briefcase and shook Mason’s hand, telling Mason that he’d done a good job. It was the standard empty praise of an adversary who’d won the day, Mason grinding his teeth as Ortiz delivered the bromide.
The three deputies surrounded Blues again while one handcuffed him. Mason pressed into their circle and tapped fists with him.
“Today was their day, man,” Mason told him. “Tomorrow will be ours.”
Blues nodded. “Get ‘em,” he said, and left with his escort.
Mason looked around the empty courtroom. On paper, no one could have found fault with what had happened there. The state had met its burden of proof. Even he conceded that. No appellate court would overturn Judge Pistone’s ruling, even though Mason was convinced the judge had decided the case before breakfast.
The system had worked, except for one thing. Mason was certain that Blues was innocent. That realization had led him to another conclusion. He would have to find justice for Blues outside the courtroom.
Now, hours later, worn with fatigue, Mason stared at the notes he’d written on the dry-erase board, replaying the few points he’d scored during cross-examination of the prosecution’s witnesses, looking for leads.
Carl Zimmerman testified first. He was an experienced witness, directing his answers to the judge, who sat upright in his chair, watching Ortiz and Zimmerman play catch with softball questions. Mason wasn’t surprised that Judge Pistone had abandoned his usual head-down disinterest. Murder had that effect on people.
Ortiz took Zimmerman through each step of the investigation, beginning with the call he received from the dispatcher about a hysterical woman claiming to have found her employer shot to death. The woman turned out to have been Norma Hawkins, the housekeeper. Mason started his cross-examination with that description.
“Norma Hawkins told the dispatcher that Mr. Cullan had been shot to death. Is that correct, Detective?”
“Yes, sir.”
“The body was found facedown and hadn’t been moved when you arrived at the scene, correct?”
“That’s right. The uniformed officers who arrived at the scene first secured the area. The housekeeper said that she hadn’t touched anything in the study.”
“No gun, bullets, or shell casings were found at the scene, correct?”
“Correct.”
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“In fact, when you arrived at the scene, you didn’t see anything that told you Mr. Cullan had been shot. Isn’t that correct, Detective?”
Zimmerman stiffened as he saw the high hard pitch coming. “I suppose that’s correct, Mr. Mason. But, there’s no question that Mr. Cullan had been shot.”
“Yet, somehow, Norma Hawkins knew that Mr. Cullan had been shot. That’s what she told the dispatcher. True?”
“Well,” Zimmerman said, stalling for a better answer than the one he had, “I don’t know what she told the dispatcher. I could have heard him wrong.”
“There is another explanation, isn’t there, Detective?”
“What’s that, Mr. Mason?”
“Norma Hawkins shot Mr. Cullan.”
“Objection!” Patrick Ortiz said. “The question calls for speculation. There is no evidence that Norma Hawkins committed this crime. She’s an innocent woman who doesn’t deserve to be smeared by Mr. Mason.”
“The police and the prosecution rushed to judgment in this case,” Mason shot back. “They picked their suspect at the beginning and disregarded any other possibilities.”
“Sustained, unless you’ve got better evidence than that,” Judge Pistone said. Mason didn’t.
Norma Hawkins was the next witness. She was a slightly built white woman in her late thirties whose rough hands and sloped shoulders testified to the hard work she did and the hard life she led. Norma spoke slowly and softly, in the upstairs-downstairs tradition of domestic help, describing her daily routine at Jack Cullan’s house. Then Ortiz asked her about finding the body.
“What happened when you came to work on Monday morning, December tenth?”
Norma leaned forward in the witness box and clutched the hem of her dress. “Well, it was like I told the detectives. The alarm wasn’t on, so I figured Mr. Cullan was still home. He usually wasn’t there when I got to work, so I’d have to turn off the alarm. He gave me the code ‘cause he knew he could trust me, you know. I been cleaning people’s houses since I was fifteen. Everybody gives me their alarm codes. I never had any trouble till that morning.”