by Ed Gaffney
When I finally made it through the imposing double doors, I withdrew the papers from my pocket and tried to look like I hadn’t just spent the last three minutes in hand-to-hand combat with an irrational phobia. I approached Kendra Styles, one of the assistant clerks in that office.
“Good morning, Attorney Carpenter,” she said, coming out from behind her desk to meet me at the counter. Kendra was a large, elegant African American woman who carried herself more like a seasoned ambassador than a state-court bureaucrat. “I thought you were on the Gomez trial…” And then she saw the fistful of papers I was holding, and sudden understanding washed over her face. “Oh. That’s why you’re here.”
Most lawyers know that the Arizona Supreme Court is the highest appeals court in the state. But what many don’t know is that according to the Arizona State Constitution, it is also the place where you request a writ if, in the middle of your trial, you have an emergency which requires an immediate ruling about the conduct of a trial judge.
“What have you got?” Kendra asked.
“A recusal motion,” I responded. I handed her the papers, and she scanned the handwritten one first, and then the others. “We’re in a short recess right now,” I said, “so I was hoping that I could get this before the court as soon as possible.”
“Chief Justice Bridges will hear the motion,” Kendra said, looking up. She was all business. “I’ll bring it to his clerk right after I call downstairs and tell them there’s a stay on those proceedings.” She hesitated. “You did intend to move for an immediate stay in the lower court pending this court’s ruling on this matter, didn’t you?”
I knew I’d forgotten something. Of course I wanted the Gomez trial to be put on hold while the Supreme Court considered my motion. “If I had thought of it, I would have,” I admitted.
She smiled. “I’ll take care of it,” she said, picking up the phone. “No extra charge.”
Two minutes and fifteen seconds later, a dozen reporters and three camera operators burst through the clerk’s office door. Before I could even apologize to Kendra, they started pounding me with questions.
Moments later, four court officers materialized out of nowhere. They escorted the media hounds out. As they left, I felt a hand at my elbow. A fifth officer ushered me through the side door of a cavernous courtroom. At one end was a raised platform on which sat a dark wood structure, serving as the bench for the seven members of the Supreme Court of Arizona.
I had actually been in this courtroom several times before, in my role as an appeals attorney. But the high court heard criminal appellate arguments only during the last week of every month. At those times, the courtroom was packed with lawyers waiting to be called, media, court officers, clerks, the court reporter, and dozens of spectators.
There was something very different about the room now that I was the only person in it.
Motions like mine were argued before only one of the justices, and since the hearings weren’t scheduled in advance, there were no spectators present. The podium where I stood was a full eight feet below the bench. The gold-leaf ceiling of the room was more than twenty feet high. I felt positively tiny—like a three-year-old entering a church for the first time.
After less than a minute, there was a sharp bang, and then a door opened behind the bench. A court officer entered the room and shouted, “Court! All rise!” He was followed by a court reporter, and then by a young woman—probably the Chief Justice’s clerk—holding a slim manila folder.
And then, very slowly, in shuffled Chief Justice Hugo Bridges.
Arizona became the forty-eighth state on February 14, 1912. The running joke in the bar association was that Justice Bridges didn’t attend the ceremony because his horse threw a shoe.
He really wasn’t that old. But he looked every one of his eighty-seven years. With the exception of a few stubborn wisps of white hair on top of his head, and a narrow fringe around the base of his skull, he was entirely bald. He walked in a stoop, his face was weatherworn and deeply wrinkled, and impressive jowls hung down on both sides of his jaw.
He wore huge, bottle-thick black glasses, which appeared to work only intermittently—at some times, he seemed almost entirely blind, and at others, you’d swear he was able to read the fine print on a contract you were holding fifty feet away.
But any deterioration in the man’s body had stopped short of his mind. Hugo Bridges had been the state’s leading jurist for over three decades and, despite his age, he showed no signs of slowing down. He’d written some of the most influential and groundbreaking decisions in the state’s history. He was a man of fierce integrity—sharp, fearless, and brilliant. In the handful of times I had appeared before the Supreme Court, he had always been the member of the panel of judges I feared most. He unerringly exposed and then relentlessly probed the weakest aspects of my arguments.
I tried not to think about that as I looked up from the podium and watched the old man move into position. He suffered from arthritis in his right knee as a result of a war injury, so it took him a while to get into his chair at the center of the massive bench. Once he was settled, he peered out at me and said in a rasp, “Good morning, Attorney Carpenter. Before we begin, I’d like to express once again the Court’s best wishes for a speedy recovery for your father. Assistant District Attorney Carpenter was one of Arizona’s best prosecutors. His appearances before this Court have been missed.”
My dad always said that he had never felt more like a lawyer than on those rare occasions when he’d argued cases before Chief Justice Bridges.
He also said that on those same occasions he’d never felt more like he needed a change of underwear.
“Thank you, Your Honor,” I replied. “I’m sure that my father will very much appreciate the Court’s kind words.”
But the Chief Justice had already turned his attention to the papers that his clerk had laid out before him on the bench. He picked up the single sheet I had presented to Kendra in the Clerk’s Office and held it close to his face. Then he pulled it away, and glared at me. “Did you handwrite this?”
“Yes, Your Honor. I’m on trial downstairs, and an emergency situation arose—”
“I can’t read this,” he interrupted impatiently, turning to his young clerk, who was sitting next to the court reporter in front of the bench. “What does it say, Miranda?”
Miranda stood up, and read in a clear soprano from her copy of the motion. “Now comes the defendant, Juan Gomez, and pursuant to Article Six, Section Five, of the Arizona Constitution, moves this honorable court for an emergency Writ of Mandamus directing the immediate recusal of Judge Rhonda M. Klay from Superior Court Trial Number 4201, State of Arizona versus Juan Abdullah Gomez. As grounds therefor, the defendant states that Judge Klay has a conflict of interests which renders her involvement with the aforementioned trial—”
“Thank you, Miranda.” Justice Bridges turned back to me. “I assume that you have already raised this issue with Judge…who is it?”
“Judge Klay, Your Honor,” I responded. “Yes, I did. I included in my filings with the Court the motion that I presented to her this morning.” My heart was thudding. I remember wishing that I’d had more sleep the night before. If I could coherently explain myself, I had a chance. As tough as Judge Bridges was, he was fair. But if my concentration slipped for even a moment, I was through, as was any chance for Juan Gomez to receive a fair trial before a reasonable judge.
The Chief Justice sifted through the papers before him, and pulled up the relevant motion. He read through it quickly. “What did Judge Klay say?”
“Well, she said that the fact that she was on the Trentacorp board of directors did not support my position because the company had nothing to do with this case.”
“She did not dispute your assertions regarding the corporation?”
“No, Your Honor. She simply said they weren’t important. And then she said that she could decide the case impartially, so…” My mind wandered for a second.
I was thinking about whether Judge Klay thought that she looked like a lizard. The effects of the caffeine were wearing off.
“So?” Justice Bridges glared at me.
I took a deep breath. Where was I? “So she denied the motion.”
“And why is that wrong?”
“Because, Your Honor, there is a concrete and extremely important connection between the corporation at issue and Mr. Gomez’s case. Trentacorp is a federal contractor that produces millions and millions of dollars of weapons, body armor, and other equipment specifically designed to combat terrorism. If Mr. Gomez is found guilty in this case, there will be a tremendous benefit to Trentacorp. President Richie, and many in his administration, especially Secretary of Defense Ivanov and Undersecretary of Defense Newton, have made numerous public statements indicating that as the incidents of terrorism increase, the amount of money the federal government needs to spend combating terrorism will increase. And—”
“What is your defense in this case, Mr. Carpenter?”
The seeming non sequitur caught me by surprise. “My defense?”
“Yes, Attorney Carpenter. Your defense. What is the theory of the defense in the case at issue? Arizona versus Juan Gomez. What is your defense?”
It was a good question. The same good question that had made my opening statement something of a mess. “Um, the defense is, uh, that…” Sadie M. was a saint? “The defense is that the defendant is innocent. He didn’t do it.”
“So, your defense is mistaken identity?”
I knew enough about Chief Justice Bridges to know that he never fooled around. If he was asking about my defense, it wasn’t because he was merely curious. It was because it was relevant to his decision. But if I admitted that our defense was mistaken identity, Chief Justice Bridges would want me to tell him who we thought did do the crimes. Of course I had no idea. So I tried to dodge the question.
“Your Honor, I’m quite new to the case, and, well, I guess I don’t feel entirely comfortable being too specific about the defense at this point.”
The statement was true, but it came out sounding flippant. Like I didn’t think the highest court in the state of Arizona had any right to poke around in my business.
The old man sat back in his chair. He looked at me steadily for just long enough for me to start thinking about that spare underwear my father used to mention. Then he leaned forward again, and spoke forcefully. “Forgive me for making you uncomfortable, Attorney Carpenter. My inquiry is designed solely to provide me with the information I require to rule on your motion. So I will ask you again: Is the defense in your case mistaken identity?”
At this point, I finally managed to come up with a useful thought, even though I still didn’t understand why my trial strategy was so important to the Chief Justice. What I recognized was that Justice Bridges was way too smart for me to successfully dance around his questions. If I didn’t lay it all out for him—as ugly as it might be—I didn’t have a chance. “Your Honor, the only reason I’m hesitating is because claiming that we intend to argue mistaken identity to the jury seems to imply that I know more than I actually know. All I can confidently tell the court at this time is that the defense is that Mr. Gomez did not do these things. That he is innocent. That he was set up. I don’t know who did it, I don’t know why Mr. Gomez was set up, I don’t know much of anything. I’m afraid that, at this very moment, I don’t even know yet how I will present the defense.”
The old judge pondered that little confession for a moment, then he nodded. “Am I to understand that you will not contest the fact that there was an attack in Denver last May?”
And then, suddenly, the dawn broke, and I finally stepped into the light. The reason my strategy mattered was because it was directly relevant to whether Judge Klay had a conflict of interests. If all I hoped to do at trial was claim that the government had arrested the wrong terrorist, I was basically admitting that the Denver Tunnel Bombing was a terrorist attack. In that event, whether Gomez won or lost the trial wouldn’t have any effect on the financial health of Trentacorp. To agree that the bombing was the work of some terrorists—any terrorists—I would have already acknowledged that there was increased terrorism in the United States.
The only scenario under which Judge Klay would have a conflict of interests was if our defense was that the Denver attack wasn’t an act of terrorism. Under those circumstances, Trentacorp—and Judge Klay—would have a financial incentive to see that Mr. Gomez was found guilty. His guilt would prove the government’s theory that Denver was a terrorist attack. And that, in turn, would justify ever increasing governmental expenditures on Trentacorp’s products.
Am I to understand that you will not contest the fact that there was an attack in Denver last May? Now that I understood the thrust of Justice Bridge’s questioning, I wasn’t quite sure how to respond. So I went with the unadorned truth.
“All I can say to that, Your Honor, is that I don’t know yet whether we will contest that the Denver Tunnel Bombing was a terrorist act. Almost everything I know about the case is what I’ve read in the papers and heard on the news. I’ve only had a chance to speak to my client for a few minutes up to this point—”
“Well, why didn’t you ask for a continuance?” the old man snapped. “Why in heaven’s name are you trying a case like this without proper preparation?”
“I did move for more time, Your Honor,” I replied. “Just this morning.” He fished around in the papers before him, scowling. “Judge Klay denied the motion.”
His eyes were on the document he held. Then he looked up and sighed heavily. “Of course she did,” he said, shaking his head in disgust. “So you claim the judge has a conflict of interests, because your defense might rely on a challenge to the government’s position that this bombing was a terrorist act, and in that case, the judge has a clear financial interest in making certain the defendant would lose.”
“That’s correct, Your Honor.”
Judge Bridges picked up a pen and began to write. “Assistant Clerk Styles has informed me that your trial has been stayed pending my ruling.”
“That’s right, Your Honor.”
He nodded, but kept on writing. Moments later he put down his pen, tore a piece of paper from a legal pad, and handed it to his clerk, saying, “Type this up for me, please, and get it to Judge Klay’s clerk immediately.” Then he stood up, looked down at me, and said, “You better hurry back to your trial.”
SEVEN
AS I LEFT THE courtroom I saw that the reporters—minus the cameramen—had been in the room all along. I just hadn’t noticed them.
They all followed me into the hallway, and the barrage of questions started up again.
But this time when I ignored their inquiries and walked quickly to the end of the hall, there was no pretense. I went right into the bathroom. My bladder was about to burst.
I washed up in a hurry when I was done. I was afraid I didn’t have time to take the elevator, so I started down the steps. Once again I tried to ignore the seemingly infinite chasm at the center of the stairwell as I descended, this time while being trailed by the shouting reporters.
I finally emerged into the first-floor hallway, breathing heavily, sweating prodigiously, my personal cadre of stalkers having witnessed every moment of my embarrassing phobia on the descent. But clearly, I had made it down in time. Dozens of people were creating quite a din in the hallway outside the courtroom, waiting until the intermission was over.
The scores of reporters who hadn’t chased me up to the seventh floor began swarming, yelling questions at me as I approached the door. Sarge, thank God, had anticipated the crush. With the help of another court officer named Mike, he helped clear a path for me to make my way back into the room.
The clamor inside the courtroom was even more intense than in the hallway. The spectators in the gallery were talking as if they were at a noisy cocktail party. Sarge knew to speak loudly enough for me to hear him as he walked beside me to the front o
f the room and left me at the defense table. Unfortunately, all he said was, “I hope you know what you’re doing, Tommy,” before he disappeared through a side doorway, probably to bring Gomez back into the courtroom.
I knew the senior court officer well enough to know what he meant. It was damn risky trying to toss Judge Klay off the case.
It shouldn’t have been. Judges are supposed to conduct all aspects of trials without taking the actions of the lawyers personally. Especially things like motions to recuse.
But Rhonda Klay did exactly the opposite, which is one of the reasons she was such a bad judge. If I lost this gamble, and Judge Klay stayed on the case, she would do everything she could to make my life a relentless festival of misery, and we all knew it.
I checked my watch. Almost ten minutes had passed from when I had left Chief Justice Bridges. Fatigue was beginning to creep up on me. I considered standing and walking around, just to keep myself alert.
But then a noise to my left caught my attention, and I turned to see Sarge leading Gomez into the courtroom. Judge Klay must have received Chief Justice Bridges’s decision. There was no other reason to bring the defendant in.
Gomez was wearing his green prison jumpsuit, and as usual, his feet and hands were shackled. His eyes looked unnaturally large behind his glasses. He sat down next to me and asked urgently, “What’s going on, man? What’s the holdup?”
Under normal circumstances, keeping my clients informed of my actions in their case was easy. As an appeals lawyer, I was either doing legal research, writing their brief, or waiting for a decision on their case. Pretty much a predictable routine.
This was the first time I’d sprinted up six flights of stairs to try to throw a judge off a trial.
“I made a motion to have Judge Klay removed from the case,” I told Gomez.