"All right," the judge said, 'we're now in business. If you'd identify the matter for the record here now, Sandy."
This'd be United States of America versus John Doe, civil docket number Ninety-five-dash-eight- hundred-seventy-four, In re Ambrose Merrion,"
Robey said.
"And if counsel'd identify yourselves now for the record, please?"
Foote said.
"Assistant United States Attorney Arnold Bissell for the government,"
Bissell said. He was thirty-four years old, six-two, about a hundred-fifty pounds, his blond hair in a Fifties-retro pompadour up swept in the front. It made his head look disproportionately small.
His chin was narrow. Ever since learning from classmates at Cornell Law School why his future as a poker player was not bright, he tried very hard at all times to keep his face expressionless, lest he reveal his trial strategy prematurely and give his opponent time to devise tactics to defeat it. Discerning his effort, opposing counsel misconstrued his apprehensive prudence as slyness, making it plain they distrusted him before he had given them any reason. Perceiving their mistrust as unwarranted hostility, and resenting it as unjust, he often acted precipitously and unpredictably. Those actions created surprises, the situation litigators fear most and therefore loathe as sneaky, thus inadvertently validating their initial suspicions that he was underhanded. Angered, they felt justified retaliating. Judges, most having been trial lawyers, tended to sympathize with them. They exercised their discretion not only to allow Bissell's opponents to get even with him, but to make sure that jurors understood the provocation.
That made Bissell feel persecuted, wounded and friendless, prompting him to become harsh and scornful. In his two years as a federal prosecutor the vicious cycle had happened repeatedly; he acquired the reputation as 'a shifty prick, a sneak, and one rude cocksucker." He became discouraged; his increasingly perfunctory efforts to deal civilly and pleasantly with opponents he encountered for the first time were usually greeted with disdain.
Mindful that United States Attorneys with hopes of future federal judgeships are ill-advised to discharge troublesome assistants whose families' political contributions have been generous enough to bring them invitations to state dinners at the White House, the Chief Assistant US Attorney in Boston had settled for excluding him from civil matters and minor criminal cases. "For you this's not a promotion; it's purely damage-control, the only way I can get any use out of you. We now know your only chance of winning is by making sure the defendant's someone the jury'll dislike more'n they've come to dislike you, bite clean through their lower lips and convict him by default. Otherwise they'll ignore the evidence and acquit the bastard, just to give you the finger."
"Geoffrey Cohen, counsel for Ambrose Merrion," Cohen said. "Mister Merrion is also present."
"And also for the record, before we get started here," the judge said.
"Several years ago Attorney Cohen was my personal lawyer, providing excellent counsel during my divorce. Mister Bissell, I take it you and your superiors in the US Attorney's office in Boston are aware of this?"
"We were aware of that, your Honor," Bissell said. "We perceive no potential problem of prejudice or bias inhering in your past attorney-client relationship with Mister Cohen."
"And so I take it the US Attorney's office does not wish me to recuse myself from this proceeding, voluntarily, as I am willing to do is that right?"
"That is correct," Bissell said.
The judge exhaled. "Sorry to hear it," she said.
Bissell frowned. "Beg pardon, your Honor?"
"Oh, nothing," she said. "I'm not in a very good mood today. This morning we had a civil case unexpectedly settle. Ordinarily this'd be a development I'd welcome, parties finally able to come to an agreement without taking up any more of the court's time; too bad they couldn't've done it sooner. But this one was different. Wrongful Death action, but quite unusual. This was the dead parachutist.
Remember him? The landscaper from Suffield, Nicholas Hardigrew. Summer before last. Took off from Barnes Airport, one of a party with four other sky divers, planning to jump over Conway. He was experienced; over the course of several years he'd done it a good many times without even spraining an ankle. As far as anyone seems to know, everything went fine, according to the book. He was third in the chain at the door, so two people saw him leave the plane and drop clear of the tail wing That's when you're supposed to pull the ripcord. When he went out his hands were in the proper position. But for some reason his chute didn't open.
"The case was about the reason. His family's theory as the plaintiffs was straight res ipsa loquitur. They don't know what went wrong with the parachute, whether it was some defect in the chute itself or the person who packed it didn't do it properly. They do know and'd proven, at least to my satisfaction that he was a veteran sport parachutist.
People who'd jumped with him considered him highly skilled. He knew all the pre-flight and in-flight precautions, proper safety procedures.
He was famous for being meticulous, going through the pre-jump checklist, every item double-checked. They noticed nothing different this time, can't explain why his chute didn't open. Dead men tell no tales, but for his family his death speaks eloquently; somewhere there was a defect. Someone had to've been negligent.
"The defendants are the parachute manufacturer and the technicians at the airport who packed it. They can't account for it any other way than by saying it must've been suicide. The packing's a two-person procedure: one packs and another inspects. Both of the people who prepared his equipment said it passed muster. He was face-down when he hit on a hard-packed clay surface.
His thumb and fingers were still in the D-ring. The chute took the same terminal-velocity impact he did; that probably affected it.
Allowing for that, the people who inspected it after the incident said they couldn't find any evidence that it'd been tampered with since it left the packers' custody. They found no indication of pre-impact defect of materials or workmanship; no fatigue-condition of components, wear and tear, before the impact, that prevented it from deploying.
"Obviously it hadn't. The glaring question is Why. The investigators said they found no indication that it hadn't been activated properly, but they couldn't rule that out. He might've had a sudden cramp in his hand so he was unable to pull the ripcord at the precise moment he planned; caused him to panic, and freeze. They can't tell. Maybe the ripcord snagged a little, gave him more resistance than he was used to, and that made him panic and freeze. Again, no way to tell. Maybe, maybe he didn't pull the cord and never meant to; the fatal defect was the human condition. As far as the defense experts can see, everything else was just fine.
"The defense team put on one eyewitness, another experienced parachutist, fourth in the chain that day. She said she could see him part of the way down, until she pulled her ripcord and her chute opened, but he just kept on free-falling. She doesn't think he ever tried to pop his. She saw no sign he was having a problem or struggling with it. She said it looked to her like he just kept his hands on the pack in front of him, head sort of bowed, "looking down, almost as though he'd been praying." He went by the other divers who'd gone out ahead of him; since their chutes were open and his wasn't, he was now dropping much faster than they were. Their depositions said they didn't have time to see much, and anyway they were too shocked and horrified to've noticed much anyway. He had goggles on and they were too far away to see whether he had his eyes open.
"Nobody on either side ever really addressed the issue that I would have thought to be central to the case. Why was he washed out of Jump School? He never told anyone, so far as we know. He always said he didn't know. The Army lost his records in a fire some years ago. Now no one could track down the people in his unit. Did someone there think maybe the kid had a death wish? Or was the reason for washing him out so insignificant, and so long ago, nobody even remembers? Well for sure, no one knows now.
"So there we had it
: either it was a mysterious accident and we'll never know what caused it, or else this successful, healthy, well-to-do family-man, real zest for life, movie-star good-looking and very well-liked, apparently happy, killed himself for some reason we'll never know.
"This one I wanted to go to the jury. Then at least we would've had a six-person consensus of which explanation's the likeliest. Of course they might not've been able to dope it out either; would've come back reporting a deadlock. But evidently both sides, after hearing each other's case go in and watching how the jury seemed to be taking it, came to the same conclusion: letting the jury decide it was taking more risk than they wanted. The defendants pre-trial offered sixty-five thousand; how they arrived at that figure I do not pretend to know. The family made the customary multi-million-dollar demand. In the pre-trial conferences I had the clear impression that they'd settle only if they got the whole pot in the defendants' liability insurance pool, three million dollars. So the trial accomplished something for both sides. The family gets a million-one that they wouldn't have if they hadn't sued, around eight hundred thousand after they pay their lawyer. And the underwriters, after they pay their experts and lawyers, get to keep about a million and a half they might've lost.
"That leaves us with a third mystery: If all of the evidence'd come in, what would the jury've decided? Now we'll never know that answer either. I feel cheated. I suppose I'm being childish. I want life to be neat, with clear cut answers. Never mind about the money: I want to know why Nick Hardigrew died. But life isn't neat, so I don't.
"Anyway," she said, 'just what've we got on here this afternoon?
Something a bit simpler, perhaps? One of you gentlemen want to tell me what it's about, so I can put my steel-trap mind to work on it?"
"Why don't you kick it off, Arnie?" Cohen said. "We're sort of coming in here in the middle of things. I'm not sure we've got it all straight."
"Sure," Bissell said. "Back in February, the US Attorney directed the Political Corruption Unit to undertake a very broad-gauged investigation of contracts awarded by the Commonwealth of Massachusetts and its sub-divisions; counties; cities and towns; various and sundry authorities port, turnpike, state reservations, water and so forth.
"What he had in mind was really a massive undertaking. He told us to develop a data base of every contract, bid and no-bid, that's wound up costing the Commonwealth taxpayers more than one hundred thousand dollars, awarded during the past twenty years. Going back to the middle Seventies; covering not only contracts for projects expected to cost more than a hundred thousand, but also contracts originally awarded for lesser amounts which as a result of cost-overruns exceeded the one-hundred-thousand floor."
"Gracious," Cohen said. "That must've been a huge project. Who got the contract for that work? How much did the taxpayers have to pay him7. Must've been 'way over one hundred grand."
"It was done in-house," Bissell said, grimly, biting off his words. "It wasn't contracted out. The capability was already in place. The FBI and the IRS and the GAO have plenty of people and lots of machinery to gather data and crunch numbers, analyze what they come up with, spit out the files that meet stated criteria. The employees were trained and in place. It didn't cost the taxpayers one extra dime to have them doing this work."
"Right," Cohen said. "Instead of some other work. In the spring of the year with Tax Day coming up, when a civilian'd think the IRS'd probably have enough coming in to keep occupied but what do civilians know, huh? To the government it was a free play not just more government waste."
"Your Honor," Bissell said, "I realize this's an informal session and all, but could I ask you to please instruct Attorney Cohen to let me get on the record why we're here? If that's what he wanted me to do, when he requested this session? Because if he's going to sit there baiting me like this and make me spend all my time fending him off, we'll never get anywhere here."
The judge nodded. "Put a lid on it, Geoff, would you please? I do have the afternoon free, which I certainly didn't expect. But I bet if I try I can find one or two other pending matters that'd warrant my attention." Cohen pretended to pout. She chuckled and shook her head. "Go ahead, Arnie," she said. "If he doesn't behave I'll hold him in contempt, along with his client."
Merrion looked at the judge the way a cornered cat measures a large menacing dog, calculating how much damage it can do before the dog mauls it. She saw this and was angered for a moment, but then reconsidered. "Excuse me for a moment, Arnie," she said, putting up her right hand as Bissell started to speak. "Mister Merrion," she said, "I think I might've just made a needlessly provocative remark. If it sounded threatening, I apologize; that was not my intention."
"Thank you, your Honor," Merrion said, surprise in his eyes.
"Certainly," the judge said. "Now, Arnie, if you would."
"We haven't completed the data collection," Bissell said. "It'll probably take another year, at least. But this is a rolling program.
We're not waiting until we've finished collecting all the data before we start our analysis. We're initiating new grand jury proceedings contemporaneously, each time the data profile another cohering and discrete cell of individuals we call 'em hives, or nests isolating them as it were, picking them off one at a time. Our hope is to keep pace as much as possible between the data-profiling and the field investigations that producing the actual evidence corroborating or contradicting, also possible but unlikely what the data tell us to expect. Otherwise we're going to face a terrible backlog down the line. This particular John Doe investigation we've got underway both in Boston and out here started during the first week of August."
Cohen interrupted wearily. "I know I'm not supposed to interrupt, your Honor, but could we ask Arnie to spare us all the disingenuous John Doe make-believe about who's the target here? Dan Hilliard's in the cross-hairs; it's been common knowledge since the day after they chose him, which was the day before the leaks began."
"John Doe's a formality," Bissell said coolly, 'custom and usage. We know rumors and leaks occur. They start the minute we begin serving subpoenas. We know it'll happen, so we don't issue subpoenas until we're pretty sure a given investigation's going to yield a prosecutable case. Usually our expectations turn out to be right; we develop a prosecutable case against the person or persons our subpoenas seemed to point to. Therefore when we complete the investigative phase and enter the formal accusatory phase, the rumors turn out to be true. Post hoc, propter hoc.
"That doesn't mean we start the rumors. We don't. The minute some bank treasurer is subpoenaed as the Keeper of the Records, specifying whose records we want, he knows who we're after. The fat goes in the fire and the gossip's in the wind. We can't stop it, so we've done the next best thing: stopped worrying about it.
"So, everyone knows who we're after? Usually. But experienced criminal lawyers know we never publicly name any target 'til he's been indicted. We can't, we're not allowed to. Constitution states no citizen shall be held to answer for a capital offense or crime of infamy except upon presentment of grand jury. Remember, Geoff?
Black-letter law."
Cohen stared at him thoughtfully, picking at the edge of his lower right front tooth with the nail of his left ring-finger, saying nothing.
"Children, children," the judge said. "Get on with it, Arnie."
"The review of state and state sub-division contracts awarded to private companies and individuals in the Western District showed a striking correlation between people benefiting from them and people who'd been heavy financial supporters of Daniel Hilliard's political career major campaign contributors. Hilliard is the queen bee; his rich pals are his worker bees. Or ants, as you prefer."
"I object to this, your Honor," Cohen said. "There's no need for Mister Bissell's gratuitous and demeaning insults."
"I'm sorry," Bissell said. "You said John Doe offended you. I thought you wanted me to use the same vocabulary here we use among ourselves when we're discussing people like your client here today."
<
br /> "I don't want any more of trash-talk out of either one of you," the judge said. "Do you want me to make it clearer than that? Get to work."
"We have a number of individuals under investigation for their dealings with Hilliard, your Honor," Bissell said. "I'm going to use Haskell Sanderson, Junior, for an example. He began doing business with the state several years before the opening date wed arbitrarily chosen for our investigation, but when we saw the pattern emerging in those years, we went back to his first state contracts. The pattern was clear from the start. Sanderson began contributing generously to Hilliard. Very soon he got his first state printing contract. He increased his contributions. He got more state printing contracts. Until the state campaign financing law took effect, he contributed between five and ten thousand dollars to the Hilliard Committee every two-year election cycle, equivalent to thirty or forty thousand today.
"When the statute prohibited corporate donations and limited individual contributions to two thousand dollars per individual per cycle, Sanderson complied. He reduced his contributions to the statutory amount. But his wife, when he had one, gave two thousand dollars, and his son, who claims to be a golf pro but spends half the year tending bar, gave two thousand a cycle. Four of Sanderson's employees gave a thousand each. Hilliard's total receipts from Sanderson were unaffected by the new law.
"In the past twenty-five years or so Sanderson's state printing contracts've totalled several million dollars. He holds three today, long-term agreements worth in excess of nine hundred thousand dollars over the next two years."
"Dan Hilliard hasn't been in the House since Nineteen-eighty-four,"
Cohen said, at the same time gripping Merrion's left forearm to prevent him from speaking.
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