Ames could not suppress a disgusted explosion of breath. Norcross, who usually disliked this kind of display, gave her a quick sympathetic look. No power existed in heaven, hell, or anywhere in between to wipe the memory of that DVD out of the jurors’ minds. It was impossible to imagine evidence any more indelible or any more unfairly prejudicial.
Sensing where things stood, Campanella moved quickly on. “Alternatively, the government would assent to a defense motion for a mistrial, based on circumstances outside the government’s control—outside the control of anyone, really—and we could immediately reempanel the case with a new jury and without reference to the DVD. It would be a fresh start, perfectly fair to both sides.”
Norcross grimaced. “It took us forever to pick this jury. How easy do you think it will be to pick another one after this morning’s news hits the papers?” Norcross nodded at the Republican reporter. “I see Ms. Crawford writing away with her usual energy.” Ames glanced back at the corner of the courtroom to see the reporter—without pausing in her scribbling—dart the judge a quick, professional smile.
Norcross turned to Ames. “Okay. Ms. Ames, what do you say? Have a seat, Mr. Campanella.”
Taking care to stay unhurried, Linda Ames walked from her seat up to the podium and arranged her yellow pad and a copy of her memorandum on it. Campanella had stayed back at the counsel table to deliver his remarks, which was almost always a mistake. Best to get right under the judge’s nose.
“Circumstances outside the government’s control. Really?”
She raised her voice and looked up at the bench. “Let me say, first of all, and loud and clear, that the defense is not, repeat not, moving for a mistrial.” She pointed back at the government table, where Campanella sat, not bothering to look at her. “Mr. Campanella is fully aware that retrials strongly favor the government, and he’s trying to lure me into asking for one.
“He’d like to have another crack at Sid Cranmer, after this practice swing, a do-over where the government could get its act together. But under our Constitution, the government only gets to try a man, or woman, once. I’m asserting that right, Judge. I’m moving for dismissal without possibility of a retrial, based on the horrendous mess the government has made of this case.”
She stepped to the side of the podium to mark her transition.
“Let me begin, first, by reviewing what we know for sure about what has been going on here. Then I’ll move to things I don’t explicitly know, but which I can be pretty sure about. Things that are obvious. Just a second, please.”
She stepped back to the government’s table and spoke to AUSA Campanella, being sure to keep her voice loud enough for the judge to hear. She pointed at the DVD on the corner of his table. “May I borrow that?” When Campanella shrugged, she said, “Thank you,” picked it up, and returned to the podium.
“Okay. First, we now all know that Sid Cranmer never ordered this awful DVD. Mr. Campanella’s suggestion that there is only ‘significant evidence’ suggesting this is a ridiculous understatement. He now knows flat out, or he ought to know, that an Amherst College undergraduate named Ryan Jaworski, not Sid Cramer, ordered this DVD using the flyer he stole out of my client’s wastebasket. So much for the government’s Exhibit One.”
She turned, tossing the DVD on the table so that it clattered and skidded toward Campanella. The gesture confirmed Ames’s point: the DVD was now trash. Without missing a beat, she turned her face up to Norcross and pushed on. “Second, we know that the government has been aware of Mr. Jaworski for a very long time. They’ve known about him since way before this trial started.
“Third, we know that Agent Patterson has actually spoken to Mr. Jaworski. The government provided some vague information about this contact in its pretrial disclosures, even though Mr. Campanella never included Mr. Jaworski on the government’s witness list. So, we don’t know all the details, but we do know they’ve talked to him.
“Next, um, jeez, I forget what number I’m at.” This was deliberate, keeping the judge with her.
The judge broke in, just as she’d hoped. “I think you’re at fourth.”
“Thanks. Fourth, I can tell you, Judge, that I tried to contact Mr. Jaworski. I doubt I possessed one-quarter of the information the government had about him, but it seemed clear enough to me that Mr. Jaworski had important information. I left three phone messages for him, and I wrote him a letter, but he never got back to me. Ryan Jaworski has been hovering around the edges of this case, Judge, since the beginning. The government has had full access to him, and I haven’t. That’s how it is. There can be no debate about that.
“Fifth, the government has known about Elizabeth Spencer, the young lady who obtained by informal means, highly informal means, Mr. Jaworski’s confession. In fact”—Ames tapped on the podium with her pointer finger—“they’ve known about her since the very day this investigation blossomed, the very day”—she tapped again—“of the very first raid at Sid’s house nine or ten months ago now.”
Ames took a breath to remind herself never to refer to Sid using the unsympathetic “Professor” prefix.
“Ms. Spencer was there, right in Sid’s living room, right there, going over some research with him, when the FBI’s raid team came charging through his door. The government has had months and months to follow up with their investigation by interviewing her. They’ve had ample opportunity to find out from either one of these kids all about this so-called prank. Instead, this whole time they sat on their big, fat …”
She paused and looked to the side to draw out the tension. “They sat on their hands and did nothing.”
At this point, the door to the courtroom swished, and Ames turned to watch Patterson walking across the gallery. He stepped through the small swinging door that marked the entrance to the well of the court, nodded to Ames, and took his seat next to Paul Campanella.
Ames turned back to the judge. “Good. I see Agent Patterson is here. Now, finally, let me tell you something I don’t know absolutely for sure, but which I’m ready to put money on. Agent Patterson, who has just joined us, submitted an affidavit a few months back in support of a second search of my client’s home, claiming that he had received information about a big cache, supposedly, of hidden child pornography. In that affidavit, Agent Patterson quoted an anonymous, purportedly reliable confidential informant who knew about this hidden mother lode of pornography that Patterson’s team had somehow overlooked during the first raid. This supposedly reliable CI had even informed Agent Patterson of where the pornography was hidden.
“As you know, this search came up dry. Nothing was found. Zilch. The pornography never existed. Now, Judge, I haven’t so far been permitted to learn who this anonymous—not reliable but actually highly unreliable—CI was, but I’ll tell you who I think it was. I think it was this same character, Mr. Ryan Jaworski, the same guy who, encouraged by one of Sid Cranmer’s jealous colleagues at Amherst College, sent the flyer in using Sid Cranmer’s name and credit card information. They thought this whole nightmare would be just hilarious, I guess.”
Ames pointed over her shoulder back at Patterson and Campanella. “Have them disclose to you who this CI was, Judge. Right now. Have Mr. Campanella walk up to side bar right now and tell you if it was Mr. Jaworski.” She pointed back at her chair. “I’ll stay in my seat. You can turn on your white noise, and I promise to stick my fingers in my ears.” She was jabbing her finger back at the prosecution table. “I will lay you one dollar to a hundred that the lying CI was Ryan Jaworski, the same guy who we now know sent the flyer in and who was on a crusade all along, with this Professor Mattoon, to have a little jolly fun at my client’s expense.” She pointed back at Campanella and raised her voice. “They’ve known this Jaworski guy somehow got inside Sid’s house, and they’ve known he was a liar with a motive to tell stories about Sid for months.” She smacked the podium and shouted. “Months!”
&n
bsp; Ames paused to let herself settle down. She’d taken a risk by dialing up the intensity, and she could see Norcross shifting uncomfortably. The judge, Ames knew, liked people to make nice. She needed to reassure him that she wasn’t going to go ballistic.
She let her voice slip into a conversational tone. “And let me interject something here, Judge, if I might. Something personal.” She took a break to look down, a consciously tactical move this time, then looked right up into Norcross’s face. “Last month, I pressured Sid Cranmer to plead guilty.” She tapped herself on the chest. “I did that. I made sure he knew the decision was his, but, frankly, I hammered him hard to take the two-year deal the government was offering. As a result, I put him through the humiliating plea attempt a few weeks back, and in the process, I’m afraid I irritated you.”
Norcross broke in. “These things happen.”
“They don’t happen to me, Judge. Not like that.”
“It’s water under the bridge, Ms. Ames. All part of the world we find ourselves in.”
“Maybe so.” Ames paused and cleared her throat to mark another transition. “Last of all, I’ll tell you another thing I don’t have to infer, something I know. Ryan Jaworski has flown the coop. I spoke to his girlfriend, or probably ex-girlfriend, Ms. Spencer, this morning, and she’s already heard that he’s landed in Chicago, where his very well-connected father no doubt has him walled up, two thousand miles from here, behind so many lawyers we couldn’t hack our way through with a battle-ax. He’s gone, at least for the foreseeable future.” She glanced back at the government’s table. “Mr. Campanella may be able to drag him back eventually, assuming he wants to, but it’s not going to be easy and it’s going to take a while.”
Ames stepped out from behind the podium again and stood next to it.
“Okay, there’s only one thing to do here, and that’s to dismiss this utterly, utterly bungled case. Mr. Campanella’s suggestion that we might continue forward with this jury is ridiculous. His suggestion that I should somehow join with him in a motion for a mistrial is even sillier. To be blunt, I’m not that dumb. Mr. Campanella knows very well that any request by me for a mistrial would undercut my motion to dismiss, which is why he cleverly suggested it. But no new trial and no new jury can cure the violation of Sid Cranmer’s rights.” She held her hands out in front of her, cupped, as though she was holding something precious. “The Fifth Amendment to the Bill of Rights protects us all. It says ‘nor shall any person be subject for the same offense to be twice put in jeopardy.’” She dropped her hands. “I ask that this indictment be dismissed based on the gross negligence of the government, with prejudice, without possibility of retrial.”
Ames returned to her seat.
Campanella immediately stood up. “Your Honor, if I might …”
“Just a minute, Counsel.” Norcross leaned down to Ruby Johnson and said, “Please tell the jurors they are excused for today. I’ll want to see them tomorrow, either to continue the trial or to thank them for their service.” Ruby got up and hurried out of the courtroom.
Norcross returned his attention to Campanella. The judge’s expression was troubled, and he rubbed at the crinkled skin under his eye. Ames knew that her argument wasn’t the clear winner she’d tried so hard to make it look like. A judge, or a court of appeals, might conclude that this was just a hiccup, a crazy fluke that was nobody’s fault. Unexpected things happened all the time in this alternate universe—jurors couldn’t agree, inadmissible evidence popped out accidentally, a lawyer or judge dropped dead, whatever. If this wasn’t the government’s fault, they could retry Sid with a new jury, and retrials were almost always deadly for a defendant. The defense had an argument here, but so did the government.
Campanella made his way to the podium. Like Ames, he took care not to appear in the least frazzled. He spoke softly.
“Judge, we can solve this quickly. I can put on a witness right now who will testify that up until this morning, about two hours ago, the government had absolutely no inkling, and more importantly no way of knowing, that it was this Amherst College student who sent the flyer in. We are as astonished as Ms. Ames is, or, I presume, as you are.”
“No one is as astonished as I am, Mr. Campanella.”
“Fair enough. But this testimony will demonstrate that the responsibility for any mistrial, if that is what you’re considering, simply cannot be laid at the feet of the government. If you don’t like the option of striking the DVD, we can excuse this jury and resume promptly before a new one. That will be fair all around.” He looked back at Ames. “But that’s her choice, not ours. We’re not moving for a mistrial—I don’t think it’s necessary—but we would not oppose it if the defense wants one. The reason she’s not asking for one is that she doesn’t want twelve impartial jurors to hear this case.”
“I’m not happy being put in this position, midtrial, Mr. Campanella.”
“Your Honor, let me repeat. I can show—can show clearly—that Ryan Jaworski’s bizarre confession came entirely out of the blue.”
Norcross was beginning to settle down and look thoughtful, which was a bad sign. A quick, emotional response was what Ames was hoping for.
“What’s this testimony that you want to offer, Mr. Campanella, that you’re so sure will convince me of the government’s innocence here?”
Campanella nodded over his shoulder back at Patterson.
“I propose to put on Special Agent Michael Patterson for just a few questions. He’ll confirm that this video confession has been as much a surprise to us as it has been to you.”
“Well, Mr. Campanella, the court has—”
Picking up on the continued skepticism in Norcross’s voice, Campanella hazarded an interruption and lifted his tone. “Judge, we have a ton of independent evidence here, seized from Professor Cranmer’s computer. This material has no connection whatsoever to the flyer or the DVD.” The AUSA lifted his hands up, stretching his fingers out. “If the government is without fault, if we did nothing to create the dilemma about the DVD, we should be permitted, at least, to present this independent evidence to a new jury. It’s just not fair, Judge, to deprive the government of this opportunity in a situation where the public interest is so prominent and where the government did nothing wrong.”
Ames could see something that Campanella, who was facing the bench and totally focused on Norcross, could not see. Agent Patterson was staring at Campanella with a distinctly unhappy expression, a stormier version of his usual game face. Did Patterson resent being shoved onto the front line like this?
Whatever was going on, Ames needed to protect the record. She stood up. “Your Honor, I strongly object. This is not—”
“Sorry.” Norcross shook his head curtly. “I want to hear from Agent Patterson. It is a straightforward question: How did we end up down this rabbit hole? And there are some basic facts I’m looking for.”
Norcross’s expression made it clear that it was pointless to push this.
“Very good. May I make a personal request then?” Ames gestured down at Sid. “My client and I have been here for some time, and we would like, we actually badly need, a short break, if the court would be so kind.” These were the standard polite phrases typically used to request a bathroom break. It was a rare judge who would turn this down. Ames actually had no idea whether her client needed a pit stop. She didn’t, but she urgently needed time to absorb where things were going now and to think over the questions she might put to Patterson.
“Fine,” Norcross said. “We’ll take a fifteen-minute recess. One final matter before we break. I want counsel to speak with Ms. Vaidyanathan”—he nodded down at his law clerk—“and make arrangements with her to get me a video file of Mr. Jaworski’s confession. I want to review it myself in chambers before we pick up with the testimony.”
Campanella stood up. “Right now, Your Honor?”
“Right now.”
Both Ames and Campanella began talking at the same time.
“Judge, it’s kind of …” Ames said, just as Campanella said, “Your Honor, it’s not the usual …”
“I don’t care,” Norcross said gruffly. He stood up. “I want to see it, however unusual it may be. Talk to Ms. Vaidyanathan. The court’s in recess.”
44
Judge Norcross had a bad habit sometimes of telling his law clerks to do things they had no idea how to do. His brusque assignment to Chitra to get a copy of Jaworski’s video confession was a good example. She knew how to download a video file, of course, but this transfer would have to be handled so that it could be preserved for the record and retrievable months or years from now. How could she ensure this? The technical challenge was complicated by the fact that the judge had instructed Chitra to work with counsel to make the download, and the two attorneys were barely speaking.
The defendant disappeared right after the judge left the bench, and within less than a minute, it was clear that neither Campanella nor Ames was going to be any help. Chitra knew more about this kind of technical thing than either of them, which was frightening. In the end, she had Attorney Ames forward the video clip to her at her personal email address as an attachment. In a few seconds, it popped up on her iPhone, and she hurried down the back hallway to chambers.
She found the judge sitting at his desk, reading over Campanella’s memo. He looked up when he saw her.
“Got it?”
“I just had them send it to me on my phone. I couldn’t think of any other way to …”
“Good for you. That’s fine.”
“I’m worried about preserving the record.”
Judge Norcross stood up as she approached.
“We can have the IT staff transfer it to a DVD, and I’ll mark it as a sealed exhibit.” As Chitra approached, holding the phone out, Norcross said, “Sorry if I’ve been a bear. You really are doing a great job here, Chitra. I’d be up the creek without you.”
The One-Eyed Judge Page 34