Qualified Immunity

by Aime Austin

  His next call was to the general counsel at Arron. “Gene, Peyton Bennett. Good news,” Peyton practically boomed over the speakerphone. “I’ve settled the Park case at no cost to you.”

  “No way,” Gene said, surprised.

  “That’s right. We got the plaintiff down to three million. The case is done today. I’ll get the dismissal papers and release over to you for signature by tomorrow, close of business.”

  When the next round of calls was completed, Peyton looked Sheila in the eye for the first time that day. “All done, crisis averted. I saved the client seven million, the insurance company two million, and the plaintiff gets his payday—everybody’s happy.”

  “But,” Sheila stammered. “Wasn’t that unethical? Shouldn’t you have shown the insurance company the entire tape?”

  “What can I say?” Peyton smiled, but it didn’t reach his eyes. “I’m my father’s child.”

  “I remember a time that would have been a curse.”

  “Cut the holier than thou crap. We are not lawyers for the insurance company. We represent Arron, and we just got them out of this case for nothing, nada, zip. What you did was possibly malpractice.

  “I don’t care who the client is. You never take their word for it. But we’re past the point of worrying about ethics, aren’t we? You and I know happy clients don’t sue for malpractice. We’ll put this one to bed today, but I can’t do any more favors for you. I don’t know how the management committee is going to view this. I’ll speak on your behalf, of course.”

  Despite the way their relationship had ended, Peyton had still spoken up for her when it came to the confirmation. She turned her attention back to the former congressman.

  “Good. Good. Now let’s talk about who you’re meeting,” Holman said, having reduced her problems to a footnote in her confirmation process.

  When Sheila entered room two hundred twenty-six, nearly two weeks after her meeting with Holman, she took a minute to appreciate what it had taken for a woman like her to be before the Senate. The sacrifice of thousands of slaves, and all those who came before her rested on her shoulders. The absence of her daughter sat like a pit in her stomach. The twin burdens of past and present nearly stopped Sheila in her tracks.

  A senator’s aide jostled her, apologized, and propelled her into the room. The chamber’s thirty foot ceilings soared above wood paneled walls. The rain pelting the leaded windows was silenced as if in reverence to what was about to happen.

  She was offered and accepted a beige leather chair, joining two other nominees at a long mahogany table. The two lawyers beside her were discussing the election and how the outcome could affect the judiciary. Sheila looked past the seal that represented the country she’d pledged to protect, toward the nineteen leather chairs arranged in a semicircle behind a wood rostrum. They were empty, aides testing the microphones before them.

  Behind Sheila, she could hear fidgeting children being shushed by stoic spouses. An acute sense of loss washed over her without Olivia on this important occasion. At least she had her elbow clerks and staff from her chambers, and she tossed them a smile, strained with remorse.

  At precisely two-thirty the senators filed in, taking their seats behind their name tags. The Judiciary committee chairman, Owen Hewitt, a Republican from Colorado opened the hearing. “Good afternoon. First I want to welcome Judge Grant, Judge McEnry. Mr. Overback, and Ms. Jandreau.

  “I know Judge Grant, her family, and the fine citizens of the northern district of Ohio are glad we’re having these hearings today. As my colleagues know, Judge Grant was appointed as a recess judge to fill a vacancy in the district. Her nomination was especially historic because she was the first black female to serve on that court. In order for Judge Grant to remain on the bench, she needs to be confirmed before the end of this congressional session. It’s only fitting and appropriate that she’s here today. Mr. Franklin, would you like to say a few words to introduce Judge Grant?”

  Senator Franklin angled the shared microphone and spoke. “Judge Grant, your Horatio Alger story is exceptional. I’d like to inform the committee, if I may, of a little about your background.” The senator pulled his small half-moon glasses from his pocket and perched them on the end of his nose. He pulled a paper from a stack before him and spoke again. “Judge Grant was the first person in her family to graduate from high school, college, and law school. After school, she started working at Bennett Friehof and Baker, the prestigious Ohio firm. While there, Judge Grant did exceptional work and became the first black woman partner in the firm.

  “Judge Grant, before you take the oath, please introduce those people who came to support you today.”

  Sheila stood, partially turned, and swept out her arm in a gesture to indicate the row of expectant faces looking at her. “I’d like to introduce my chambers family, who I’ve come to know and rely upon in these past months. First, my clerks, Claire Henshaw, Liza Salzano, and Adam Hirsh. Also, I’d like to introduce my deputy who keeps my courtroom running, Nancy McFadden.”

  Senator Hewitt gestured for Sheila’s group to stand. “Please, please, I just want you to stand, and get your names on the record. You’ll be entered into the record and become part of history.”

  After Sheila and her chambers staff sat, Chairman Hewitt continued. “Judge Grant, if you would stand and please raise your right hand.” Sheila stood again, and raised her right hand as so many did in her courtroom. “Do you solemnly swear that the testimony you give before this senate committee shall be the truth, the whole truth, and nothing but the truth, so help you God?”

  “I do,” Sheila said and sat.

  “Judge Grant, please begin with any statement you have before we start with our questions.”

  Sheila sat up straighter, pushed her shoulders back, and looked down at her prepared remarks. “Thank you. Members of the committee, and the distinguished senators from Ohio Mr. Franklin and Mr. Hodges, I’d like to thank you for bringing my nomination up for hearing. It is both an honor and a privilege to be here before you today. This is truly the high point of my legal career.

  “Before I continue, I’d like to acknowledge two people without whom I wouldn’t be here. My parents, Herbert and Keziah Harrison. My mother was a domestic, and my father was a shipyard worker. Though they weren’t formally educated, they instilled in me the importance of education. Without their support and devotion, I would not be sitting before you today.

  “I am pleased to be here and look forward to answering your questions. Thank you.”

  After Sheila’s introduction, similar introductions occurred for the other nominees.

  Chairman Hewitt looked at Sheila again. “Judge Grant, we have your written answers to our earlier questions, but we’d like you to clarify a couple of issues for us today. What is the principle of stare decisis?”

  Sheila explained that it required judges follow established principles of law and that she wouldn’t be an activist judge. Her answers to every other question the senators lobbed were clear and concise. She had not worked, cajoled, and arm twisted to get to the goal line, only to fumble. In the end, she was proud of her performance to be as neutral a judge as was ever appointed.

  “Thank you, Judge Grant. You’ve been doing a good job and we’ve only heard good things from your colleagues.” Chairman Hewitt asked similar questions of the other nominees, and the senators, rather than ask questions or give speeches, put their written statements into the record. “This will conclude the hearings for today. The senators and I could ask you many more questions, but I think all four of you are stellar candidates, and you should be proud to be here today. Federal judges are appointed for life, so you have an awesome responsibility to uphold the Constitution of this great nation. You will be the backbone of the American justice system. I salute the President for presenting these nominees, and I urge the full senate to vote on confirmation as expeditiously as possible.”

  She’s been told this morning by Hewitt’s chief of staff that
the democratically controlled senate would push these nominations through. The contentious election was leading to sweeping changes and it was in everyone’s best interest that all open nominations such as hers be confirmed before another Republican logjam gummed up government works. If only juvenile court could be greased as easily.

  Thirty-Eight

  Doth Protest too Much

  December 6, 2001

  Sheila held the cordless receiver to her ear as she made one final pass across the wood floors with a dust mop. “Bottom line this for me, Casey. What can I expect from this meeting?”

  “I don’t know what Sherry Otis’ approach will be, but I can tell you what I do when I interview parents as the child’s guardian,” Casey said.

  “Go on.”

  “By the time I visit their house, I’ve talked to them on the phone at least once. I’ve also talked to the child, the social worker, the foster parents.”

  “What are you looking for?”

  “I’m trying to figure out if the parents are as crazy, or neglectful, or whatever the heck the social worker has said. Then I try to assess whether they want their children back. Can they fix the problems that caused them to lose their kids in the first place? I have to also separate poverty issues—like having no lights and gas, from other issues like limited abilities or substance abuse.”

  “But you’re not a social worker or psychologist, so—”

  “I’m not trying to solve the problem, just getting a sense of whether there is a problem, and if it can be solved.”

  “That sounds all well and good, but you’re still at the stage of your practice where you think the best of people and have good intentions. What’s Sherry Otis’ angle, do you think?”

  “Okay, look. I think everyone in juvenile court knows that Otis plans to run for the next opening on the bench. Since you’re where she wants to be, in a manner of speaking, you may be able to play that up. I don’t know what kinds of recommendations she makes. All cases are confidential. But she’s known as a good guardian ad Litem. She always turns in written recommendations, and last year the GAL project recognized her for her dedication to the county’s children.”

  “Ah. Gotcha,” she said. This woman was going to be one of those moral superior people resentful of Sheila’s hard earned position. It wouldn’t be the first she’d encountered. “The bell rang,” she lied. “I have to go. I’ll let you know how it went.”

  The butter yellow suit that was one of Sheila’s favorites, hit the bedroom floor seconds after the call. It would probably be the equivalent of wearing judges’ robes in front of a woman who aspired to have the same. She quickly changed into white Juicy Couture sweats. Casual elegance. A grieving mother at home, she’d telegraph.

  The doorbell rang for real this time, and she jammed on navy flats and clattered down to the front door. Despite the day, Otis was dressed not much differently than the last time Sheila had seen her. The suit today was turquoise, the jewelry gold, the lipstick maroon.

  The red haired woman looked her up and down, judgment on her face. “Judge Grant?” Otis questioned. When Sheila nodded, she continued. “I’m Sherry Otis, Olivia’s guardian ad Litem. Nice to meet you.”

  Sheila gripped the proffered hand in a firm shake, not mentioning their meeting at that first hearing weeks ago. Instead she said only, “Thanks. Please come in. I’m up the stairs.” She turned and led Otis up the dark wooden staircase and through the open living room door. “Please sit,” she said, offering the guardian a seat on the white upholstered couch. “Can I get you anything to drink?”

  “I’m a bit of a teetotaler,” Otis said.

  Taken aback, Sheila tried not to show how much the comment had stung. “I have water, coffee, tea,” she said like the last hadn’t passed between them.

  “A glass of water, please,” Otis said prissily.

  Sheila took her time walking to the kitchen, opening the cupboard, pouring the water from the filter pitcher. By the time she came back, ice cold drinks in hand, her emotions were in check.

  She pulled out two coasters, and lifted the glasses to slide them under. “What can I tell you about myself and Olivia that will help you make a decision?”

  Otis pulled a lined white legal pad from her briefcase. “I have some questions here,” she said before flipping some pages. “Has being a judge affected your ability to parent?”

  “Can I call you Sherry?” When the woman nodded, she continued, “Being a judge has been a pleasant challenge, on the one hand. Managing a docket is different than managing a case load. But what’s far better than logging long hours at a firm is the amount of time I have now to deal with Olivia. I work an eight hour day, so I can dedicate more time to my daughter.”

  “That’s good to know,” Otis said neutrally. “Have you started on the case plan?”

  “No, I haven’t.” Otis looked up from scratching on the pad, her eyes wide with surprise. “The county, the social workers, that counselor have gotten it all wrong. I’m a hard–working, single mother. It has taken a lot of sacrifice to get where I am today. I’ll admit I haven’t been home as much as I could have been, but working for a big firm, making partner. That took a big commitment. I think men,” Sheila lowered her voice conspiratorially, “are always looking for a reason to deny you the big case, the better office, the promotion to partner. I had to work really hard to get to that point. In the meantime, my marriage crumbled, and Olivia’s father disappeared. So Olivia may have suffered.

  “She was a latch-key kid. I didn’t do the whole ‘mommies and muffins’ thing. But I’ve done the best I can and Olivia having to think and fend for herself some of the time is stronger because of it.” It wasn’t an answer, exactly. She hadn’t practiced law this many years to be unaware she was avoiding the question. But she had no intentions of starting down the slippery slope the case plan presented. She’d bided her time. Done things the right way. It was time to get her daughter out.

  Otis’ necklace strands jangled as she bent to her briefcase again. “I’ve finally gotten a copy of the complaint from the court. There are some serious allegations here. How do you respond to these?” She waved the papers.

  “These specious allegations are completely untrue.” Sheila sighed. “Look, you know how this goes. We’re in a profession where drinking is its own specialty. The nightly get-togethers at the Lincoln Inn are the biggest parties in town.

  “When I was an associate, I had to prove I could hang with the boys. As partner, I was constantly entertaining clients. Social drinking was expected. I don’t keep much alcohol in the house, but do have an occasional drink at night to relax.”

  “Got it,” Otis said. “Us career women have all the pressures. It’s the same in juvenile court. When hearings go late, the men just roll with it. While the women are scrambling to make child care arrangements. And the judges, they just continue on through the late afternoon, no child care worries of their own.”

  Otis was coming over to her side. Sheila nodded her head in sympathy. “It’s hard being a woman in this profession.”

  Fostering their newfound camaraderie, Sheila offered Otis a tour of the two floor apartment, showing off some of the historical features, like the original fireplace, the leaded glass cabinets in the dining room, the quirky milk chute. As she showed her out, Sheila put a firm hand on Otis’ upper arm. “I’m probably not supposed to ask you this, but have you seen Olivia? How is she holding up?”

  “She seems to be doing well in her placement.” Otis’ eyes shifted away from her.

  “Sorry to put you in an awkward position. Thanks,” she said and closed the door behind the guardian.

  She trudged up the stairs, rubbing her face with her hands. It was overwhelming, convincing the well-meaning folks in the Cuyahoga County juvenile system that she could do what she’d already done for years, raise her daughter. Sheila poured out the water they hadn’t drank, put the coasters back in the drawer, then got her keys and drove to Chagrin Wine and Beverage. />
  Thirty-Nine

  The Civil Rights Lawyer

  December 6, 2001

  “You’re not wearing that are you, Keith? You look like a security guard,” Valene said, smoothing her own hair and checking her teeth in a saucepan’s reflection.

  “I am a security guard,” Keith said, brushing stray lint from his pants. “What’s wrong with this?”

  “Your work uniform? I got us an appointment with the best black lawyer in Cleveland. We need to dress like we’re going to church,” she said. “I heard he picks which cases he takes. We don’t want to give him a reason not to take us.”

  “We’re not going to fool him into thinking we’re rich because I have on a suit,” Keith said.

  “Change,” she said.

  Valene drove herself and Keith in his good suit to Vernon Dinwiddie’s office in Buckeye, an Eastside neighborhood.

  Looking around the cracking pavement in the parking lot, Keith wondered aloud, “If this Dinwiddie is so good, why doesn’t he have an office in Key Tower? Sheila always said the important lawyers practice downtown.”

  “Hmpf, Sheila said. If it wasn’t for her….” Valene muttered under her breath. Out loud she said, “From what I hear over at Antioch, he owns this building he’s in. He gets so many clients, he doesn’t need a downtown address.”

  Valene settled her Chrysler into a space close to the front door. While it wasn’t a downtown skyscraper, the building looked to be maintained, but its sixties architecture didn’t inspire confidence in Keith.

  According to the building directory in the empty lobby, Dinwiddie’s office was on the third and top floor of the building. The gold carpeted, shiny brass fitted elevator took them to the top floor, absent of sound.

  Dinwiddie’s receptionist held her palm like a stop sign, in a sort of greeting. “Law Offices,” she said, answering the call. “Mm-hm,” she paused. “Ma’am, I appreciate your son’s predicament, but Mr. Dinwiddie’s not in right now,” she paused again. “As soon as he gets back in, he’ll give you a call.” She dropped the phone in the cradle. “Now, how can I help you?”