Primary Justice

by William Bernhardt

  “Don’t press your luck,” Christina whispered.

  Ben passed the picture to Skull, who accepted it without saying a word. Mona’s identification of Ben as a cop seemed to have seriously altered the degree of respect he was receiving.

  “He’s been here,” Skull said after examining the picture a moment. “Not recently, but he’s been here.”

  “Do you remember if he was here Monday night, last week?”

  “Yeah. That sounds right. He sat in one of the back booths talking to some other guy. I guess it was a guy—I never actually saw a face. Was wearing a long white overcoat with one of those high collars. They both left together. That’s all I know.”

  Why is it, Ben wondered, other strangers come here and go unnoticed and unmolested, but I’m here maybe ten minutes and practically a dead man? He circulated the picture throughout the bar. A few people remembered seeing Adams the night he was killed, but no one had anything to add to what Skull (whose actual name turned out to be Marvin) had said. No one had seen the face of the person he talked with.

  Ben returned the photo to his wallet and started toward the door. He saw Mona and stopped.

  “Thanks,” he said.

  She placed her right hand against his cheek. “I’ve missed you, Ben. Ever since the night of the party. It meant a lot to me. I think about you all the time. You haven’t been returning my calls.”

  Ben smiled uncomfortably. He couldn’t tell whether Christina was hearing this.

  Mona twirled her finger through a lock of his hair. “You don’t have to run off, you know. The night is young.”

  Ben took a step back. “Thanks, but I have a court hearing tomorrow morning.”

  “Hey,” Marvin said, stepping beside Ben, “I’m sorry about everything, man. I mean, the darts and the rough stuff. I’ve been drinking. I got a little crazy—you know how it is. I didn’t know you were friends of Mona’s. Maybe we could all get together sometime and double date or something.”

  Ben swallowed. “Yeah, or something.”

  “Yeah, it’d be fun, huh?” Marvin put his arm around Mona, then slapped her on the backside.

  Mona gave him a chilly smile. She clearly had not forgotten his earlier remark.

  Ben waved, and he and Christina left the bar. The cool night air was bracing. “I feel like I just crawled away from the edge of a crumbling cliff,” he said.

  Christina smiled. “You know, that Marvin dude was kind of scary at first, but when you got to know the real man inside, he was all right. Kind of cuddly, actually.” Ben didn’t say a word.

  24

  TEN AFTER TEN. THE judge was late.

  Probably reading the briefs at the last moment, Ben mused. He hoped the waiting didn’t last much longer. Bertha sitting in the chair next to him at the defendants table, was already so nervous Ben had serious misgivings about having her testify. But he had no choice. She was his only witness.

  He had tried to calm her; he carefully described a domestic proceeding to her as a sort of miniature trial without a jury and most of the procedural hassles. Despite his efforts, the idea of cross-examination and Perry Mason tactics sent her into a quiet panic.

  Not that Bertha had an exclusive on nervousness. Ben felt a trembling in his knees he feared would not disappear when he stood up to address the court. Derek, of course, was no help at all. He had ambled to the courthouse and now sat in the back row of the tiny spectators’ gallery. Earlier, Derek had opined that it would not be to their advantage to have more lawyers sitting at their table than the Department of Human Services did. The Raven firm already had a reputation for being overpriced big shots—the kind of lawyers state court judges, who typically come from small firms or unsuccessful solo practices, hate. They didn’t want to seem to be overdoing it or trying to strong-arm the judge. Therefore, Derek explained, he would not sit at counsel table with Ben and Bertha.

  Besides, Derek had told Ben, you have to learn to fly solo sometime. Being in court is a long series of tough, quick decisions made by the seat of your pants. It won’t do you any good to have me there to defer to when the hard decisions come. This is your chance to prove you have the fire of a litigator. So Derek sat calmly in the back of the courtroom while Ben prepared to bring the experience of not quite two weeks of private practice to bear before the court.

  Ben checked his watch. Ten-fifteen.

  What’s taking so long? The trembling in his knees became more pronounced. He looked back at Derek. Derek seemed to be in a perfectly wretched mood, even by Derek’s standards. Rumor had it that he had separated from Louise, was living by himself in an apartment on the south side, and spending entire nights in high-class watering holes. Great. Derek never struck Ben as being all that stable even in the best of circumstances, which these evidently weren’t.

  Mercifully, Emily would be spared the full proceeding, although she had to be available if either side wished to call her as a witness. Not very likely. The DHS would assume she wanted to stay where she was, and Ben knew she couldn’t help Bertha’s case. She would not be called.

  Ben tried to review his notes while he waited for the judge, but it was impossible. His mind was racing. A snippet of Gilbert and Sullivan kept running through his head: “The law is the true embodiment/Of everything that’s excellent/It has no kind of fault or flaw …”

  “All rise.”

  Everyone in the small courtroom rose. Judge Mayberry walked into the courtroom and settled himself in the thronelike, elevated black chair. Ben marveled at the amount of ceremony even the most low-level domestic disputes judge could insist upon. Mayberry enjoyed the pomp and circumstance, the black robe, the latinate phrases, the whole legal works. Ben made a mental note to be advocative, but with the most deferential attitude toward the judge possible.

  The court’s bailiff read the style of the case. “In the matter of the minor Emily X, case number FS-672-92-M. Two motions are presently before the court. The Department of Human Services has brought a motion to remove the child from her present place of residence to the custody and supervision of the DHS. In response, the court has ordered Bertha Adams to show cause why the child should not be so removed. Also, Bertha Adams has brought a motion to legally adopt the minor child Emily X.”

  “Are all the parties present?” Mayberry asked. He spoke slowly, with a hint of a drawl. Ben wasn’t sure if it was the judge’s background showing through or his desire to affect a folksy, good-ol’-boy persona.

  The man sitting at plaintiff’s table rose and began speaking.

  “The Department of Human Services is present, your honor. My name is Albert Sokolosky.”

  Sokolosky was in his mid-thirties and wore round, rimless eyeglasses, probably to affect a lawyerly look and make him appear older than he really was. He was extremely tall and thin, as if he had been held at both ends and stretched.

  In a sudden rush, Ben realized he didn’t really know the protocol of the courtroom. Should I stand now? Should I wait for the judge to look at me? Why the hell isn’t Derek up here to tell me these things?

  He stood. “My name is Benjamin Kincaid, your honor. I represent—”

  “Just a minute, son. Give the clerk a chance to get the first name down.”

  Ben waited as the woman sitting beside the bailiff painstakingly scrawled out her best guess at the spelling of Sokolosky. In domestic proceedings, true court reporters, able to silently transcribe testimony at the speed of light, were not used. Instead, a tape recording was made, and for a fee, the court would make a copy of the tape available to any party who wanted to pay a court reporter to transcribe the tape, at an exorbitant rate often exceeding the monetary value of the domestic dispute. Which explains why lawyers rarely had a transcript made of proceedings in domestic matters. Which the judges knew. Which had the unfortunate result of giving the judges carte blanche to indulge themselves in any eccentricity or petty bullying their hearts desired.

  The judge at last looked up; he offered Ben a patronizing, frighten
ing grin.

  “All right, son, give us your name now.”

  “Benjamin Kincaid, your honor.” He swallowed hard. “I represent Bertha Adams in regard to both motions.” His voice shook a bit, but he managed to control it. He hoped.

  “Gentlemen,” Mayberry said, scanning the courtroom without making eye contact with anyone, “I don’t see any reason to drag this thing out and complicate what should be a simple, unified matter. If you will give me your basic positions in your opening statements, we’ll hear from Mrs. Adams, and then we should be able to resolve the motions in short order.”

  Ben listened carefully. The subtext, he thought, is the judge has something else he wants to do today. Pressing golf game or an attractive piece on the side. Ben made a mental note to cut his presentation to the bare essentials.

  “Opening statements, gentlemen.”

  Ben rose to his feet, then realized that Sokolowsky was also standing. Sokolosky’s motion was first on the docket. That meant he spoke first.

  “I think it would be better if we spoke one at a time, son.” The judge chuckled, then looked to his clerk for a response. The woman grinned.

  Mortified, Ben sat down.

  Sokolosky walked to the podium. “Your honor, as you say, this is an extremely simple case. It is also a textbook litany of wanton misbehavior, of disobedience to the laws and policies of this state, and a testament to the prudence of the judicial tenets announced by courts such as this one.” He gestured deferentially to the judge.

  “Your honor, Emily X is a foundling Bertha Adams found the child. She did not report her discovery to the Department of Human Services, although she was advised to do so. She did not report the finding to any of several missing child agencies active in this state. She did not attempt to find suitable foster parents or to locate the child’s biological parents. She simply took the little girl home, to lead a cloistered, secluded life. She lied to her neighbors and kept the little girl to herself.

  “In this day and age, we hear many rumors about elderly people snatching children from shopping centers and forcing them to become domestic servants or … to adopt even more revolting roles. While we are not suggesting that anything like that has occurred—”

  The hell you aren’t, Ben thought.

  “—there is something … unusual about Mrs. Adams’s handling of this matter.”

  Sokolosky shuffled through a file. “The Department has prepared a report, your honor, based upon what little information is known about the woman who calls herself Bertha Adams. Although I do not wish to appear indelicate, the Department earnestly believes that she is not a suitable foster or adoptive parent for several reasons. She fails to meet many, indeed most, of the objective criteria established by the Department.”

  Sokolosky gave a copy of the report to the bailiff, who then handed it to Judge Mayberry. He gave another copy to Ben.

  Ben quickly glanced over the report. It was a graph-style report titled “Parent Evaluation.” Long graph lines indicated the areas of inadequacy. Age was the longest. The report also noted her lack of experience at child raising, the absence of any regular income of her own, and, without explanation, the fact that she was a single parent.

  Ben closed the report folder, furious. The report was intentionally misleading.

  “Your honor, we do not doubt that Mrs. Adams has formed some sort of attachment or”—he paused meaningfully—“dependence on the child she has kept for so long. But we have been charged by the state of Oklahoma to try to find the best home possible for each such ward of the state. We have an extensive list of ideal parents who would simply love to adopt a little girl, even one as old as Emily. We respectfully request that this court deliver custody of the child to the DHS so that we can assign her to a permanent home.” Sokolosky collected his papers and sat down.

  The judge evidently felt the need for some levity. “Now it’s your turn to talk, son,” he chuckled. He looked again to his clerk for a response, which she freely gave. How nice to have your own standing audience, Ben thought.

  Ben rose, attempting to exude confidence. He placed his notes on the podium. He had meticulously planned his strategy for his opening argument. He couldn’t possibly justify the way Jonathan and Bertha had kept Emily without telling anyone, so he was better off not dwelling upon it. Instead, he would emphasize Bertha’s warmth and good nature, her nurturing of the child despite difficult circumstances, and the bonding that had taken place.

  “Your honor,” he began. His voice sounded scratchy. He cleared his throat and started again. “Your honor, I notice that, although the DHS complains that my client doesn’t meet many of their generalized, preconceived qualifications, they have never stated that she is or would be an unfit parent. Emily has lived with Mrs. Adams for almost a year now, and yet the DHS has made no complaints whatsoever about the child’s treatment during that time. Mrs. Adams may not have followed the proper procedures, but I submit that she nonetheless has earned the right to be considered Emily’s foster parent in loco parentis. I understand that the Department has its rules and procedures, and that it likes to see that they are observed. But the dispositive legal question in a proceeding of this nature is: What is in the best interests of the child? A slavish devotion to administrative procedure is not more important than the child herself, and I’m sure that this court cannot be fooled into making a decision that holds otherwise.”

  “Don’t underestimate me,” the judge said. Again, the chuckle, the quick glance to the peanut gallery. Ben had the distinct feeling he was not making an impression.

  “Thank you, son,” the judge said suddenly. “I think I’ve grasped your point.”

  Ben stammered, then fell silent. He wasn’t half-finished yet.

  “It’s pretty clear to me that these two motions are mutually exclusive,” the judge continued. “If I give the DHS the girl, I can’t let Mrs. Adams adopt her. And if I let Mrs. Adams adopt the girl, then the DHS ain’t gonna get her. So I’m going to consolidate these two motions and make a single decision at the conclusion of the hearing. If the Department has no objection, I’m going to ask Mr. Kincaid to call Mrs. Adams to the stand, ’cause it looks to me like she’s the only person I’m gonna need to hear from to decide this one.”

  Sokolosky half rose with a little bow. “No objections, your honor. We concur.”

  Consolidation. Cut straight to the key witness. Again, the hurry-up treatment. Why was Mayberry so determined to conclude this hearing?

  Ben called Bertha to the stand. She took her seat at the judge’s lower left with relative ease, but it was clear to Ben she was extremely nervous. Realistically, Ben knew he couldn’t count on her for much.

  Slowly and methodically, Ben took Bertha through the course of her life with Emily. How her late husband brought her home. How they took her to the police, but no trace of a parent could be found. How happy Emily made their home. How, at the suggestion of Joseph Sanguine, they found a lawyer to help them legally adopt Emily. Following Ben’s prior recommendation, she did not mention Emily’s neurological condition. Bertha spoke in a flat, even tone of voice. Ben knew that her nervousness was affecting her voice, but he was worried that it might be making her sound disinterested or artificial.

  The judge listened to her testimony without comment or expression.

  “Mrs. Adams,” Ben continued, “if this court allows you to adopt Emily, will you do everything in your power to raise her in the best possible way?”

  “Yes,” she answered simply.

  Damn. Ben didn’t know what to do. That leading question was her opening to expand on her testimony, to deliver a persuasive speech, to convince the court of her earnestness. Ben had prepared her for this before the hearing. In her nervousness, though, she had forgotten everything. She had given a dry, one-word, almost noncommittal answer.

  “Let me ask you again, Mrs. Adams.”

  “Objection,” Sokolosky said, rising to his feet. “Asked and answered.”

  “Susta
ined,” the judge responded without hesitation. “Anything further, counsel?”

  Ben couldn’t think of anything more to do. “No more questions,” he said.

  Sokolosky rose and walked to the podium to begin his cross-examination. Ben noticed that his long yellow legal pad apparently contained pages of canned questions. He hoped Sokolosky’s plan was not to badger Bertha into saying something harmful by keeping her on the stand for an unbearably long period of time. He sensed that Bertha was already close to her limit.

  “Mrs. Adams, you’ve kept Emily for almost a year now, is that correct?” Sokolosky was adopting a businesslike, just-the-facts-ma’am approach. Distancing himself and the court from the situation and its inherent emotionality.

  “Emily has stayed with us, yes.”

  “You reported discovering her to the police, didn’t you?”

  “Yes, I’ve said that.”

  “But, Mrs. Adams, the police told you that you should contact the Department of Human Services, didn’t they?”

  Bertha hesitated. “Yes.”

  Sokolosky continued to drive his point, home. “In fact, I think it’s safe to say that they assumed you would do so, don’t you?”

  “Well, I don’t know. Perhaps. Yes.”

  “Yes. Probably you even assured them that you would. But you didn’t, ever, at any time, contact the Department, did you?”

  Bertha looked downward. “No.”

  “No. You kept your little treasure to yourself.”

  Ben didn’t know what to do. Nothing Sokolosky said was really objectionable. Obnoxious, yes. Prejudicial, sure, but a judge, unlike a jury, is assumed to be able to sort the prejudicial from the probative without help from counsel. Ben didn’t see Mayberry as the sort of judge who would enjoy a lot of time-consuming objections, especially when he was so anxious to move things along.

  “I expect Emily is quite a good little helper to have around the house.”