Blind Justice

by William Bernhardt

  “I’ll send you an invitation, just in case.”

  He accompanied Ben to the door. “May I also send an invitation to a companion? A lady friend, perhaps?”

  “No, I don’t—” Ben thought for a moment. “This gala is going to be at the country club?”

  “Oh yes. We’ve reserved it for the entire day.”

  “Pretty big bash?”

  “The biggest Tulsa has ever seen. Or is ever likely to see.”

  “Okay then. Send an invitation to Harriet Marmelstein.” Ben smiled. “I believe you have the address.”

  19

  JONES LEFT BEN A message on his answering machine: Alexander Moltke requested a meeting before the preliminary hearing, at 8:30 sharp, in the law library at the courthouse.

  If Moltke wanted to talk, Ben reasoned, he must be planning to offer a deal. Thank goodness. Even if Ben didn’t like the offer, even if he turned Moltke down cold, the fact that it was proposed indicated the prosecution perceived some weakness in their case, some possibility of failure. That alone would make Ben breathe a lot easier.

  At 8:35, Ben pushed open the library door. Before he had a chance to get his bearings, a stark white light blinded him. He could hear Moltke’s voice, reverberating through a microphone somewhere at the front of the room.

  “Rest assured, ladies and gentlemen, that in this court of law, this ingenious device by which we mortals achieve some measure of earthly justice, the guilty will be punished.”

  Ben blinked his eyes, wiped away the tearing caused by the stinging lights. His vision began to clear. He was surrounded by reporters, armed with microphones and minicams and plastic hairdos.

  The realization dawned on Ben slowly but certainly. It was a sucker play. This was a press conference, goddamn it. A press conference!

  “I see my worthy opponent has arrived,” Moltke said, in his bombastic oratorical voice. “I must say, I sometimes despair of the direction our youth are taking. So much energy is channeled into pursuits of such little moral value. My opponent formerly practiced with one of the most distinguished firms in this city, but after that relationship was terminated, Mr. Kincaid was forced by economic circumstances to take cases such as this one, assisting certain liberal judges in their quest to return the guilty to the streets.”

  “I resent that,” Ben said. The reporters parted, letting him move to the front. “The Constitution guarantee every accused person the right to counsel.”

  “I’m not challenging the right of your client to counsel, son. I’m just glad I don’t have to be the one to do it. I don’t know how I’d live with myself, much less sleep at night.”

  Ben’s face flushed with anger. “How can the court of law be an effective device to achieve justice if cheap politicians like you try to pressure lawyers to not represent the accused?”

  The reporters pressed forward, minicams whirring. Someone from Channel 2 shoved a microphone under Ben’s nose. They were loving it—great fodder for the six o’clock news.

  Moltke looked calmly into the cameras. “Now don’t get all riled up, son. You do your job, and I’ll do mine.” He leaned forward, his eyes steely and determined. “But rest assured, ladies and gentlemen, that justice will be done in Tulsa. The pernicious taint of South American drugs, destroying our children and poisoning our society, will be eliminated. That’s my promise to you.”

  He straightened and smiled. “That’s all for now. I’ll answer questions after the hearing.”

  Ben wasn’t normally given to bouts of claustrophobia, but he could swear the walls of the magistrate’s hearing room were closing in on him. The room was small to begin with, and was even more so now, with bailiffs, clerks, court reporters, newspaper reporters, and members of the U.S. Attorney’s office all jockeying for position. Everyone was talking at once; the cacophony was giving Ben a headache. He was queasy, sweaty, and nervous. And Christina was late. Again.

  The prosecution team, Moltke and two other men, no Myra, seemed supremely confident. They were whispering among themselves; periodically, one would glance at Ben, smirk, then look away. If that was supposed to be an intimidation tactic, it was working.

  To Ben’s surprise, Moltke walked over to his table. “Good morning, Mr. Kincaid.”

  “You set me up, you son of a bitch.”

  “Whatever do you mean?”

  “You invited me to a plea bargain. Instead, it turned out to be an ambush.”

  “My press conference ran a little longer than I anticipated.”

  “Bullshit. You planned the whole thing, so you could score a few points at my expense on the six o’clock news.”

  “Well…I’m sorry if you were rattled, son. The people have a right to know.”

  “The Rules of Professional Conduct restrict press statements on pending criminal matters.”

  “Try explaining that to the press.”

  “Where’s Myra?”

  “Myra?” Moltke grinned. “Myra’s a fine girl. A bit green, but she has potential. She can be an invaluable assistant, at times, if you know what I mean.”

  “I hope I don’t.”

  “Under my tutelage she’ll expand her talents. She’s already displayed an exceptional flare for…oral argument.”

  “You’re disgusting, Moltke. Nothing personal. I wish you had sent Myra.”

  “Myra is perfectly adequate for an eight-thirty bail hearing, but this is the big time.”

  “You mean, there’s press coverage galore, so you dismissed the acolytes so you could soak up the glory yourself.”

  Moltke made a harrumphing noise. “A man learns to take advantage of his opportunities. If he hopes to make anything of himself. I’m sure you’ll learn that in time. If you ever make anything of yourself.”

  Touché. “We probably shouldn’t be conferring, Moltke. The reporters will assume you’re offering me a deal.”

  “Actually, son, I am.” He whipped his arm around Ben’s neck and steered him away from the gallery. “I’m proposing an offer that will save us both considerable trouble.”

  Ben looked at him suspiciously. “Are you proposing a plea bargain?”

  “No, son, this isn’t a plea bargain. The press would hang my carcass out to dry if I did that. I’m just suggesting that we…simplify this proceeding.”

  “Simplify?”

  “Tell you what. You promise me you won’t move to dismiss after we put on our evidence, and I’ll spare your client the ordeal of hearing a litany of nasty testimony against her.”

  Tiny wrinkles appeared around Ben’s eyes. “I’m not sure I understand.”

  “It’s like this. If we think you’re going to try for a demurrer after we put on our evidence, we’re going to have to haul out everything we’ve got. No reason your client should be put through that. We’re here to search for the truth, not to put on a show. Just agree not to make the motion, and we’ll save your little lady a lot of unnecessary hell. It’s the humane approach. What do you think?”

  “I think,” Ben said, removing Moltke’s arm, “I’m not nearly as green as you think.”

  Moltke seemed taken aback. “What’s that?”

  “That’s my way of saying, take your offer and get the hell out of my face. Nicely.”

  “I thought it was a fair proposition—”

  “You thought you could con me into being incredibly stupid. If I accepted your soft-soap appeal to my better nature, not only would I forfeit my chances of getting the charges dismissed today, I would also lose the opportunity to learn about your case—because you wouldn’t put forward your best evidence. Given the lack of cooperation from your office so far, this may be the only discovery I get. I’m not going to throw that away.”

  “I was just trying to spare your client—”

  “I know exactly what you were trying, Moltke, and it had nothing to do with the search for truth or any of your other sanctimonious twaddle.”

  Moltke’s face became grave. “You’re making a mistake, son. Our case is stronger t
han you think.”

  “We’ll see. If you’ll excuse me, I’d like to review my notes.”

  Moltke walked away solemnly, shaking his head.

  A few moments later, the bailiff cracked open the door. “All rise.”

  Magistrate Gould stepped into the courtroom. He was a relatively young man, probably in his mid-thirties. Ben had never been before him; Gould had only been appointed about eight months earlier, to work in conjunction with Judge Derek. Word on the street was that he had a case of judgeitis—carrying himself ponderously, pushing people around at hearings, wielding sanctions like a whipping stick. If true, Ben knew Gould wouldn’t be the first person who had trouble adjusting to the immense power of his new position.

  Gould hushed the bailiff before she could read the case file. “Where’s the defendant?”

  “I’m sure she’ll be here soon,” Ben said, fingering his collar. “Any minute.”

  “This hearing was scheduled to begin ten minutes ago. She’s late.”

  Ben decided not to mention that His Eminence was also late. “I’m sure you’ve had parties arrive late before, sir.”

  Gould drummed his fingers on the bench. “True. The defendant at a detention hearing I held yesterday was ten minutes late.”

  “Well, there you go.”

  “I revoked his bail and sanctioned his attorney.”

  Ben craned his neck and adjusted his tie.

  Suddenly, Gould leaned forward across the bench and boomed, “What is that you’re wearing?”

  Ben looked back over his shoulder, then front and forward. “Who, me?”

  “Yes, of course, you.”

  What was it? His shirt, his shoes, his fly? Ben quickly checked himself out. Everything seemed to be in order.

  “I’m referring to your tie, counselor,” Gould explained. “Is that…pink?”

  Ben had to look. “Well, yes, sir. With little blue squiggles—”

  “This is a courtroom, counselor. Not a discotheque.”

  “Of course it is, sir.”

  “I guess you think that because I’m just a magistrate rather than a full federal judge you can dress in this disrespectful manner?”

  “Not at all, sir.”

  “I don’t want to see that tie in my courtroom ever again, counsel. Do you understand me?”

  “But my mother gave me this tie.…”

  Gould pointed a finger at Ben. “You’re—” He seemed to be hauling a memory out of some faraway corner of his brain. “You’re the one who filed this pleading.” He held up several stapled sheets of paper.

  “Yes, your honor. That’s our pretrial motion to—”

  “It’s on legal-size paper.”

  “Uh, yes, your honor. So it is.”

  “That’s eight-by-fourteen-inch paper.”

  “I believe that’s correct.”

  “This is federal court, counselor. We file our pleadings on eight-by-eleven-inch paper.”

  “I’m sorry, your honor, my secretary must’ve—”

  “That’s no excuse, counsel.”

  “No, of course not. I hope your honor will permit the pleading to be considered despite this grievous error.…”

  “Of course I will.” Gould reached into a drawer and withdrew a pair of scissors. In two quick snips, he cut off the bottom three inches of Ben’s motion. “There. Now it can be considered by the court. I hope we didn’t lose anything important.”

  “Me too, sir.” Why did he have the feeling he was losing this hearing before it had begun?

  Gould reached for his gavel. “Under the circumstances, with no defendant present—”

  Ben heard a shuffling of feet behind him. It was Christina. Thank God. “Magistrate, may I have a minute to talk with my client before we begin?”

  Gould glanced at his watch. “One minute.”

  Ben met Christina in the gallery.

  “Did I miss anything?” Christina whispered.

  “Nothing worth mentioning. Where have you been?”

  “The police showed up this morning for a follow-up investigation of the break-in.”

  “Did they find any indication of who tore the place up?”

  “Not as of half an hour ago. I had to leave them to get here. Is that all right? Mike was with them.”

  “If Mike was there, I’m sure it will be fine. Take a seat at defendant’s table.”

  Christina walked briskly to the table, giving Ben a chance to inspect her more closely. She was wearing a thin V-necked dress with purple flowers. Her high-heeled sandals were laced up to her knees.

  “Christina,” he whispered, “I specifically told you to dress normal!”

  “What’s wrong with this?” she asked, astonished. “It has padded shoulders.”

  “I know. You look like Herman Munster.”

  “You told me to wear what I would wear to church. This is it.”

  Ben sighed. If this case went to trial, he would have to choose her clothes himself.

  “Can you still get the charges dismissed?” Christina asked.

  “There’s a chance. As far as we know, all they’ve got is your presence in Lombardi’s penthouse when the FBI found the body. That might look good in the papers, but Magistrate Gould is going to require something more concrete.”

  Ben heard a pronounced throat clearing from the bench. “Are we ready to proceed yet, counsel?”

  “Yes, sir.”

  “Very well. Let’s begin.” Gould rushed efficiently through the preliminary rigamarole. “Call your first witness.”

  Moltke rose to his feet. “The United States calls James Abshire.”

  Abshire was sworn in. He gave a bit of personal background information, then described his activities the night of the murder. He’d rushed into Lombardi’s suite expecting to find a drug deal in progress, but instead, he found Christina hovering over Lombardi’s body. He’d searched her, then cuffed her.

  “Harmless,” Ben whispered to Christina. “Nothing in his testimony establishes sufficient cause to hold you over for trial.”

  Moltke continued his direct examination. “Did Ms. McCall say anything as you arrested her?”

  “Yes.” Abshire looked up at the magistrate. “She said, ‘I killed him.’ ”

  There was an unmistakable reaction from the gallery, audible for all its silence.

  Ben pressed close to Christina’s ear. “Is that true?”

  “I’m not sure. I remember saying something, but it didn’t happen like that.”

  “No more questions,” Moltke said, stepping down.

  “Very well.” Gould turned toward Ben. “Any cross?”

  Ben was trying to understand what Christina was whispering in his ear. “Just a moment, sir.”

  “It’s now or never, counselor.”

  “Then I guess it’s now.” Ben went to the podium. “Agent Abshire, did you see Ms. McCall fire the gun?”

  “No.”

  “Did you even see her holding the gun?”

  “I’m not sure.”

  “Agent Abshire, can you swear under oath that you saw Ms. McCall holding the gun?”

  He frowned. “No.”

  “You did not come into the apartment until after the crime was committed.”

  “True.”

  “When you searched Ms. McCall, did you find a gun on her person?”

  “No.”

  “Or any other weapon?”

  “No.”

  “Did you find any drugs or other illegal substances?”

  “No.” He glanced at Moltke. “I didn’t.”

  What was that supposed to mean? “And that self-serving hearsay statement you repeated, what was the context of the statement?”

  “I’m…not sure I understand you.”

  “Well, didn’t you first accuse Ms. McCall of killing Lombardi?”

  He shifted his weight slightly. “I may have said something to that effect.”

  “Did she seem to comprehend your question?”

  “She sure a
s hell didn’t deny it.”

  “Please answer my question.”

  “She confessed right there in my face.”

  “Isn’t it true she merely repeated your words?”

  “Look, if she wasn’t guilty, all she had to do was say so.”

  “Please answer the question.”

  “But instead, she says ‘I killed him.’ Now if that isn’t a confession, I don’t know what is.”

  “Magistrate, please instruct the witness to answer my question.”

  “It’s your job to control the witness on cross-examination, counselor. But I will instruct the witness to listen carefully to the question and try to be more responsive.”

  “I’m sorry, sir,” Abshire said contritely.

  “I’m sure you are. Proceed.”

  “Agent Abshire, would it be fair to say that your comment, whatever it was, provoked Ms. McCall’s statement?”

  “Cards-on-the-table time? No, I didn’t make her say anything. Maybe her own guilt did—”

  “Move to strike the last remark. Agent Abshire, she didn’t just start babbling out of the blue, did she?”

  “I don’t exactly remember.”

  “She was responding to what you said.”

  “I suppose.”

  “In other words”—Ben paused—“you had begun questioning her.”

  Abshire drew back. He was beginning to see where they were headed. “I wouldn’t say that.”

  “Had you read Ms. McCall her rights yet?”

  “Well…” He licked his lips. “Not yet. We hadn’t had time.”

  “You had time to initiate a conversation. One designed to elicit…what were your own words?…a confession. Sounds like a Miranda problem to me.”

  Moltke rose to his feet. “Magistrate, I object. If we’re going to have legal argument, it should be addressed to the court, not a witness.”

  “That will be overruled, Mr. Prosecutor. He’s entitled to explore the legalities surrounding this alleged confession, to determine the full extent of the taint created by this apparent Miranda violation. Unless,” he added significantly, “you wish to withdraw that testimony.”

  Ben watched the magistrate stare down Moltke. The choice he was offering was clear. Withdraw the testimony, or risk a ruling that a custodial interrogation took place prior to reading Christina her rights, a violation that could conceivably make all their evidence to date inadmissible. No choice at all, really. Moltke would have to confer with Abshire later to determine the gravity of the problem and plan a course of action for the trial. But he couldn’t run the risk now.