“Personality?”
“All jury pools have a certain personality.”
“Cool. How do you find out?”
“Well, you can spend a lot of money and hire what is known as a jury consultant. Jury consultants study a certain demographic area and tell you what kind of people live there and what kind of person you want to sit on your jury.”
“That work?”
“When the lawyers on the side that hires a jury consultant win, they say it works.”
“What about when they lose?”
“They say they hired the wrong consultant.”
Hang Creswell laughed.
“My way,” I said, “is the product of necessity. I can’t afford to hire a consultant. So I try to talk to people in the area, get a feel for what they might think, who they are.”
“That why you’re talking to me?”
“Partly. The other part is that little scuffle that just took place. What happened?”
Smiling, Creswell said, “Oh, Darcy. He gets a little out of it sometimes.”
“You know him?”
“Sure, man.”
“So what was the fight about?”
“He said something about my sister. See, he likes the ladies. And he’s got money, family money, so he thinks he can say what he wants. I smacked him in the face, and he screamed and jumped me. That’s all.”
“That’s all? You make it sound like a friendly game of badminton.”
“You expect that from Darcy, that’s all. Anything else? I wanna get back to my friends.”
There wasn’t any reason to ask him the next question, but I did anyway, like a stab in the dark. “Did you know Rae Patino?”
Hang Creswell’s face, which had been sort of macho friendly, suddenly changed to macho cold. His eyes slowly widened. “You the lawyer for her husband?”
“That’s me.”
Creswell stood up quickly. “Thanks for the beer, man, but I ain’t talking to you.”
“Hey, why . . .”
“Forget it.”
I stood up and faced him. “Listen to me then. Did you know Chip Delliplane?”
Hang’s red-rimmed eyes turned serious and had a hint of sadness about them. “Oh, man, yeah. We surfed.”
“You think he drowned?”
“What are you talkin’ about, man?” He took two steps toward me and raised his right hand in a fist.
“Easy,” I said, “I’m just asking questions.”
“Well, you better not ask around here again, you got it?”
Before I could say another word, he turned and headed back to the bar.
I started to sense an undercurrent.
High-profile cases usually create an undercurrent, some unspecified but real feeling that permeates a community. When the community is small like this one, the undercurrent has greater palpability.
The problem is, you can’t predict the direction of the under-current. And, if you get caught in it, you don’t know where you’re going to end up.
Back at my apartment, I was assaulted by the angry blinking of my answering machine. It was Barb, and her voice was not friendly. “Call me the minute you get in.”
I called her.
“How could you do this, Jake?”
“I was up north. On a case.”
“Really?”
“Do you think I’m making this up?”
“I don’t know anymore, Jake. I really don’t. One of the things a drinker will do . . .” She didn’t finish.
“What’s that supposed to mean?” I said.
“Have you been drinking today?”
My first instinct was to lie, but I knew she wouldn’t believe a denial. She had my number, in multiples. So I went into attack mode. “Is that an accusation of some kind?”
“Jake—”
“Because if it is, I’m not going to sit here and listen to it. I’ve got too many other things to deal with, like making a living.”
“Jake, will you—”
“Now why don’t you just settle down and bring Mandy over here right now.”
“No, Jake.”
“What do you mean, No, Jake?”
“Mandy’s with Rick’s mom.”
“I don’t want her with Rick’s mom. I want her here.”
“She’s not coming.”
My face was getting hot, and my rationality was getting kicked downstairs by my anger. “You can go pick her up and bring her over here.”
“Jake, we have to talk.”
“Did you hear what I said?”
“I’m not going to bring her, Jake.”
“Then I’ll go get her myself.”
“No, you won’t.”
“Watch me!”
“Listen, Jake,” Barb said softly, “there’s something I have to tell you.”
I waited, hardly hearing her, aware of my own breathing.
“I’m going to change the custody arrangement,” she said.
My head erupted with rage. “You what?”
“You’re a danger to yourself and to Mandy,” my ex-wife said coolly, as if she had the whole thing rehearsed. “I can’t have her in that environment.”
“Spell it out for me, Barb.”
“You need help.”
“About Mandy!”
“No unsupervised visits.”
“There’s no way.”
“It’s already that way, Jake. I’m going to get a restraining order.”
I suddenly felt like a blind man in an avalanche, not knowing which way to turn and powerless before the onslaught. “You really thought this out, didn’t you?”
Her tone sounded apologetic. “How else can we get through to you?”
“We? Who is this we?”
“Mandy and me.”
“Does she know about this?”
“Yes.”
“And I suppose she agrees with you?”
“She knows you need help.”
“She’s five years old! She knows what you tell her to know, and what you’ve told her is pretty obvious! Well, I’m going to report that you’ve kidnapped her, that you’re using her, that you’re an unfit mother. I’ll fight you every step of the way!” Specks of sweat popped out on my forehead.
“I’m sorry you feel that way, Jake. I had hoped we could talk about this like adults.”
“I won’t forget this, Barb. I’m going to make your life miserable. I’m going to get you.”
No answer this time, just a click on the other end of the line.
For a long moment I just stood there, frozen in an emotional vice, not sure where the pressure was greatest. Images of Barb flashed into my head, setting off more rage, but they were quickly followed by a picture of Mandy, at a distance, beyond my reach, maybe forever.
The next moments were like a waking dream. I watched myself yank the phone off the wall and hurl it at the window, hearing the sound of breaking glass and the small shower of shards on the floor and feeling in that disembodied state what we sometimes feel in dreams—a sense of falling, falling, falling, toward the impact of a dark, certain death.
Part Two
The law hath not been dead, though it hath slept.
—Shakespeare
CHAPTER TWENTY-FIVE
THE MURDER TRIAL of Howie Patino began on a Monday morning in the Hinton County Superior Court, Judge Adele Wegland presiding.
It was the biggest show in town.
Judge Wegland’s courtroom was stuffed. I’d made sure there were seats for Janet and Fred Patino and Lindsay, and all three were there. Behind them were two rows reserved for the press. Judge Wegland apparently was not taking any chances. She was going to make sure that any member of the media who wanted to report on the drama in her courtroom would be sure to have a spot. This was her big moment.
Small-town judges do not normally get such moments. When they come, however, they can be career makers—or breakers. Judge Wegland was going to turn this moment into a maker, and that was bad news for me a
nd my client.
At fifty-two, Judge Wegland was ready for a move up the legal ladder. She was a former prosecutor, naturally, with black hair pulled back so tight it looked like she had an ongoing face-lift. Her small, thin-lipped mouth seemed incapable of the physiological strain of a smile.
She was, I’d heard, looking for an appointment to the court of appeal. And with the tenor of the times the way it was, that meant showing she was tough on defendants, giving them no quarter and tolerating no “nonsense.” Nonsense in this case meant a defendant pressing his legal rights under the Constitution of the United States.
That is exactly what I was doing this morning—running a motion to suppress evidence.
Howie was seated at my counsel table. There was also a chair for Triple C. He was running late, but I didn’t need him for my pre-trial motion. Benton Tolletson and Sylvia Plotzske sat at the prosecution table.
After Judge Wegland called the proceedings to order, she said, “Mr. Denney, I understand from your papers that you take issue with two items of evidence. The first is the defendant’s confession. Is that right?”
I stood up. “It’s not a confession, Your Honor. It’s a statement uttered under the protection of privilege.”
The judge waved her hand. “It doesn’t matter.”
“But it does,” I insisted. “A confession is a full and unequivocal acknowledgment of all the facts necessary to establish guilt. That’s not what we’re talking about, and it matters very much that Your Honor sees the distinction.”
The heat from Judge Wegland’s glare was no doubt palpable to everyone in the courtroom. I had determined I wasn’t going to roll over in front of this or any other judge in Hinton. While this was a minor point, I was right about it. But it meant that from the very start the judge and I were not dancing in unison. I was stepping all over her feet.
“If you want to play legal games,” Judge Wegland said icily, “I suggest you do it elsewhere. We all know what we’re talking about, and we don’t need to spend twenty minutes figuring it out. We have a statement by your client, and you want me to rule on its admissibility at trial. You indicate in your motion that you want to call a witness.”
My witness was going to be the police officer who had stood guard at Howie’s hospital room and heard Howie cry out, “I did it, Jake! I did it! I killed her, man! I killed my wife!” I’d subpoenaed him but hadn’t seen him in the courtroom. Before I could even say his name, which was Cheadle, Benton Tolletson was on his feet.
“Your Honor,” he said, “in order to expedite matters here, we’ll stipulate to the facts as laid out in Mr. Denney’s moving papers. This is a purely legal argument.”
“I don’t agree, Your Honor,” I said quickly. I wanted this officer on the stand. I wanted the judge to see him testify, to look into his beady eyes. It might not be enough to move her, but it would surely be better than a cold legal dispute. I also hoped the officer wasn’t around, so I could look with anguish at the judge and say that the other side was obviously not cooperating.
But Judge Wegland said, “Well, I do agree, Mr. Denney. There is no dispute about the facts if Mr. Tolletson stipulates to them. It’s a legal matter only. So, let’s go over the arguments.”
I looked at Tolletson. He had what appeared to be a slight smile on one side of his face. I also glanced at the Patinos, all three of whom were leaning forward as they listened to this first legal scuffle. The prosecution had landed the first blow, and everyone seemed to know it.
“Fine,” I said to the judge, trying to sound like I hadn’t lost any breath. “The issue is one of attorney-client privilege, pure and simple. A defendant in custody has the absolute right to privacy in consulting with his attorney. Denial of this right is a violation of the Sixth Amendment to the Constitution. I cite Barber v. Municipal Court for that proposition.”
“Yes, yes,” Judge Wegland said, “I’ve read it.”
“Mr. Patino was in custody, Your Honor—in the hospital. I was consulting him as his attorney. The officer knew that, but he purposely opened the door during the consultation and heard the statement my client made. He violated the privilege, Your Honor, and the People cannot benefit from that violation.”
The judge nodded slightly, which to me was a major victory. It was impossible to tell what she was thinking, of course, but the fact that she made a slight gesture of affirmation was heartening. She turned to Tolletson and said, “Your response?”
Tolletson stood up confidently and looked like a marine holding fully-loaded twin carbines aimed at some cowering enemy lying weaponless in a swamp.
“Mr. Denney has stated the legal basis quite adequately, Your Honor, both in his papers and in his statement. However, he is seeking to assert a privilege where there is no privilege.”
I almost didn’t believe what I was hearing. No privilege? How could any sane lawyer make that statement? I had cases in my motion papers stating unequivocally that defendants in hospital rooms enjoyed the privilege. I had expected Tolletson to try a flank attack by distinguishing the facts of these cases from ours, and I was sure he wouldn’t succeed. But this was an all-out frontal assault.
Judge Wegland seemed almost as surprised as I was. “Your argument is that there is no privilege here, Mr. Tolletson?”
“That’s right, Your Honor. The privilege was waived.”
“It certainly was not,” I objected.
Shuffling papers in front of her, Judge Wegland said, “I don’t see that here, Mr. Tolletson. When was it waived?”
“At the very moment the consultation commenced.”
“That’s just not true, Your Honor,” I said with as much moral indignation as I could muster. Tolletson was making a big mistake, I was sure, and I was determined to play it for all it was worth.
“I still don’t see it,” Judge Wegland said in a tone that suggested she wished she could see it.
Tolletson paused and picked up a paper that had been lying on his table. “It’s not in our opposition papers, Your Honor, because I just learned more about the facts this morning. As we all know, for the privilege to apply, the consultation has to be confidential.”
“Which it was,” I interjected.
Tolletson went on as if he didn’t hear me. “That means, if the participants knew that another person was able to hear what they were saying, they cannot claim privilege because they knew there was no privacy.”
“But Your Honor,” I said quickly, “I did address that point in my papers. Officer Cheadle was seated outside the room. There was absolutely no indication that he would be listening to us.”
“That’s not who I’m talking about, Your Honor,” said Tolletson. He glanced at the paper in his hand. “Officer Cheadle informs me that Mr. Denney had his daughter with him in that hospital room. That waived the privilege.”
You could have knocked me over with a parking ticket. I’d forgotten. Mandy’s presence in the room that day had melted into the fabric of my memory.
Now it was blowing a hole in my case. A big one. I stammered a response. “Your Honor, Mr. Tolletson hasn’t offered . . . any proof . . .”
“Is what he is saying incorrect?” Judge Wegland asked.
“No. . . .”
“Well, then, how do you respond?”
“She’s my daughter, Your Honor. She’s five years old.”
“Is that legally significant?”
“No,” Tolletson said. “It isn’t. Under section 952 of the Evidence Code, a confidential communication means the client discloses no information to third parties unless those parties are there to further the interest of the client in the consultation. I don’t think there is any way to conclude that a five-year-old child is filling that requirement.”
Tolletson had done his homework, and it was now clear that I had been sandbagged. He’d kept this information under wraps until this moment, waiting for me to wander into his trap.
I hunted around my brain for something, anything, to say. “This is a little girl,
Your Honor. How can she possibly be deemed competent to understand what was going on?”
“Is there a competency requirement, Mr. Tolletson?” The judge was relying on my opponent as the legal authority! I was cooked.
“I don’t believe so, Your Honor,” said Tolletson. “Besides which, a five-year-old child is certainly capable of understanding simple language, such as ‘I killed her.’ I don’t think Mr. Denney is here to assert that his daughter is mentally challenged.”
I could have punched him then. That was a needle he didn’t need to stick in me. But I decided that it was time to lick my wounds, move on, and preserve the issue for appeal.
“Your Honor,” I said, “I’ll submit the question. It’s my opinion that the attorney-client privilege has not been waived in this case.”
Without hesitation the judge said, “Your motion to exclude the statement is denied. Next issue.”
That was the motion to suppress the knife. I had not been able to run the motion at the preliminary hearing when Officer McGary was on the stand. Now I could.
Under the Fourth Amendment, police are required to have search warrants before they enter a home. There are a few exceptions to this, but if a search is warrantless, the burden to justify the entry shifts to the prosecution, which is why Benton Tolletson was forced to call Officer McGary to the witness stand to testify.
Tolletson led the officer through the events of that night. McGary basically repeated his testimony from the prelim, with one little change. Now McGary was “sure” that the call he got was for domestic violence. That one word, violence, as opposed to disturbance, was all-important. If Tolletson could convince the judge that McGary had acted like a reasonable, well-trained officer, the “exigency” exception to the search warrant requirement would apply. Officers who respond to certain emergency situations, like a possible victim inside a residence, don’t have to wait for a warrant.
I was convinced that McGary was embellishing, but it wasn’t going to be a walk in the park to establish that through the testimony of an unfriendly police officer.
“Good morning, Officer McGary,” I said when it was my turn to ask questions.
McGary looked at me with cool suspicion. “Good morning,” he clipped.
Blind Justice Page 14