Last Witness

by Unknown

  ‘Ten. I know. Find a seat. Mr Mann is here, somewhere. He checked in already. I’m going to finish up my calendar, but let me give you the same advice I gave Mr Mann, who attempted to give a press conference in my hall this morning. Don’t. Got that? I hate finding out what I’m going to say before I say it. Especially when it turns out to be wrong. I won’t have this fiasco turn into the circus it became last time.’

  ‘I don’t think you’ll have to worry about me, Your Honor,’ C.J. said. Rule with me, dismiss this thing, and we won’t have to worry about it at all, Judge.

  ‘Good. I’ll finish up here and then the rest of the morning is yours, although I don’t suspect it will take that long.’ He held her stare with his own for a long second before turning back to his calendar.

  The judge’s final ad lib could be good or bad. Obviously somewhere along the line, Chaskel had made up his mind about a few things. He was a no-nonsense former state prosecutor and a great judge who did not like his cases coming back on appeal. For any reason. C.J. said another prayer to St Christopher.

  She sat down in the gallery on the side reserved for the State and stared straight ahead at the jury box, or ‘the box’ as it was known. The line of defendants brought over from DCJ sat chained together in the same street clothes they wore to every court appearance, the same clothes they had been arrested in. Some looked nervous, others looked clueless, others defiant and angry. None of them cared about C.J. Townsend, Bill Bantling, Cupid or Black Jacket – they all just waited for the judge to call their name and make them an offer. Some would get no offer but the statutory max, having chosen the wrong victim – one who came to every court appearance and demanded to be heard. Others would get the deal of a lifetime – no victim to make a fuss, no family members who cared, no witnesses who wanted to be bothered.

  C.J. watched the young B-prosecutor at the podium handle her cases. Out of law school maybe two years, she held the futures of so many in her hand as she offered up her pleas.

  The defendant scores non-state prison sanctions. The State offers a withhold and two years’ probation.

  The State offers five years’ state prison, followed by ten years’ probation.

  The defendant is a habitual offender. The offer is fifteen, concurrent on each count.

  Twenty years.

  Thirty years.

  The offer is life.

  Prosecutorial discretion allowed for plea offers anywhere between the score on the defendant’s sentencing sheet and the statutory maximum for the crime he was charged with – sometimes a difference of many years. Some prosecutors were harder, some more liberal. It was just the luck of the draw for a defendant whose division they ended up in. Years were sometimes divvied-up over lunches with fellow prosecutors and Division Chiefs, like pennies at a poker game.

  He scores to thirty-six months on a second-degree burglary. Two priors for grand theft. What should I offer?

  The max is fifteen years. Hmmm… offer him five, then. Pass the ketchup, please.

  Charlie, man, you’re a fucking ball-buster. Five? Offer him three years, Tim, plus five probation. And I’ll take the salt when you’re done.

  Alright, alright. I’ll split the difference and offer four plus two probation if he takes it tomorrow. You think that’s enough?

  Deal done. Lunch over.

  That had been C.J. just a few years ago. At a different podium, in a different courtroom, with a different judge, juggling one hundred cases set for trial, one hundred lives at a time. Where were they all now? she wondered. Had she made a difference after all?

  Neil Mann, a tall man with a long, drawn and sad face, shuffled into the room and found the wall opposite C.J., on the side reserved for defense counsel. A former Assistant PD and one-time intern at the State Attorney’s Office, Mann had disappeared into private practice for years, specializing mostly in criminal appellate work and avoiding the courtroom and litigation at all costs. He was no great shakes, but he was also easier on the pocket-book, C.J. assumed, than Lourdes Rubio had been at $300 an hour. Appeals were tedious and time-consuming and expensive and Bantling was gainfully unemployed now. The once-significant stash that had financed his trials was long gone, but unfortunately for him, he still had enough of it to disqualify him from the free services of the public defender. Just not enough to hire anyone really good.

  ‘Alright then,’ Judge Chaskel said finally at eleven thirty, after the last chained defendant was marched back out the jury door. He surveyed the courtroom. It had mostly emptied now, the prosecutor and the PD packing up their stacks of boxes. He spotted the few reporters who had actually decided to stick it out through his plea calendar, and his eyes narrowed.

  ‘Mr Mann, State. I’ll see you all in chambers now. With the court reporter,’ he said, rising. He turned to his clerk and added, ‘Janine, bring the Bantling file.’ Then he disappeared off his throne in a puff of black, even before Hank the bailiff could shout, ‘All rise!’

  55

  ‘It’s late,’ Judge Chaskel said, taking a seat at the head of the table. He looked at his watch. ‘I didn’t mean to run this late. I have a lunch appointment.’ He motioned for everyone to sit. ‘I know that you’ve all got a lot to say, most of which I don’t want to see repeated on the front page tomorrow. There’s no need for that now. I don’t want the press speculating every day for the next couple of weeks, so I thought we’d let them sit this one out till then.’

  C.J. felt the knot in her stomach grow as she took a seat across from Neil Mann, a bad feeling spread through her bones. She began to unpack her boxes off the cart anyway. ‘Your Honor, did you get my answer?’ she said slowly. ‘I filed it on Monday.’

  ‘Yes, yes I did. But after careful consideration and a review of the case law, I think it’s clear we’re gonna need a hearing.’

  She stopped unpacking. ‘I thought that’s what we were here for,’ she replied.

  He looked at her strangely, as if they both knew a bad inside joke but couldn’t share it. ‘An evidentiary hearing,’ he said slowly. ‘To see what it is we’ve got here.’

  ‘I don’t think we need to go that far, Judge,’ she opened up her legal folder. ‘First off, the motion is untimely. He had his window and that closed.’

  ‘Counselor, it’s a new evidence claim. There’s no time bar on that.’

  ‘The defendant has raised the same grounds of ineffective assistance of counsel and new evidence that he did in his last Rule Three,’ she pressed. ‘And you ruled last summer that that was an issue that should have been, and was, raised by him on direct appeal. So he’s procedurally barred from raising it again.’

  ‘This claim of ineffective assistance is new,’ Mann piped up. He twisted his Bic pen in sweaty fingers. ‘It’s now based on the newly discovered 911 tape that his own attorney confessed she failed to admit at trial.’ He cleared his throat, then added, ‘On purpose.’

  ‘If Lourdes Rubio knew about such a tape at trial,’ C.J. snapped back, ‘then how can it be new evidence? Evidence that, and I quote from the rule, that was “unknown to the defendant or his attorney at the time of trial and could not have been ascertained by the exercise of due diligence”? The rule says if the attorney knew it, or could have found it, then she can’t come back after conviction and complain when things don’t go her way. Lourdes Rubio says she knew about it. Obviously, this was simply case strategy and not new evidence under the rule – this is sour grapes.’

  ‘That’s a good point,’ said Chaskel thoughtfully. Then he opened his daybook. ‘Make it at the hearing.’

  For some reason she had not expected or truly believed it would come to this. She really had thought she could dodge another bullet – refusing to accept the reality that would come as a consequence of defeat today. ‘Your Honor,’ she continued, hoping to pull a rabbit out of a hat, her voice edgy and sharp, ‘with all due respect, do you think it is in the public interest to bring Mr Bantling all the way down from Raiford for a hearing that you just agreed may not e
ven be necessary?’

  The judge’s eyes narrowed again, and he looked at her coldly, as if he had just lost all respect for her and her argument. He did not like being challenged. Not from the very person who might have actually put him in this tenuous position. It was his reputation at stake now, with the public and the press and, of course, the appellate courts – a reputation he had carefully built over the years with sound and prudent rulings and a very low reversal rate. A reputation which he thought might earn him a nod one day to one of those appellate positions.

  ‘Ms Townsend, Mr Bantling is alleging Brady violations. Very serious Brady violations, I might add. That you and your office purposely withheld evidence from him in a death penalty case. In my court. And he’s arguing collusion, that you were in on this plot to withhold exculpatory evidence with Ms Rubio from the beginning. Now you want to argue semantics with me about when she knew what she was doing was bad?’ He struggled to keep his voice low and devoid of anger, but he slipped. ‘If Mr Mann proves collusion, I’ll tell you right now, I don’t see any weight in your argument. Now, I don’t even know what this tape says. I don’t know if it’s exculpatory. I don’t know what Ms Rubio’s testimony will be, about what she actually knew and when she actually knew it, but I’ll tell you, I’m damn anxious to hear it. Because I sat in that courtroom for four weeks trying that case with you, and I don’t recall hearing anything about a 911 tape. I do, however, remember Mr Bantling’s allegations that he had assaulted you when you were a law student, and the united thinking between you and his attorney that this court simply did not need to be burdened with the knowledge of such allegations during a death penalty trial. And let me just say, I did not appreciate being kept in the dark in my courtroom. It was a thin line you had both walked.

  ‘So, Ms Townsend, this hearing could very well mean a wasted afternoon or two or ten for all of us, but that’s what we’re all going to do. And I’m gonna get to the bottom of this. The right way. Now let’s all pick a date, shall we?’ He matched her stare with his own until she finally looked down at her day timer.

  ‘Yes, Your Honor,’ she said quietly. Her head began to spin and she bit her cheek so the pain would bring her back.

  His face. She saw his face smiling up at her from the open page.

  ‘Ms Townsend? Is that date satisfactory with you?’ It was the judge, and he was tapping his foot impatiently under the table while Mann, the clerk and the court reporter all stared at her, waiting for an answer.

  ‘I’m sorry. I was thinking, Your Honor. What was that date again?’

  ‘March first. It’s a Monday. I’m going to clear my afternoon calendar for the week to try and finish this up, so that the defendant does not have to keep getting bused back and forth. He can remain at DCJ with extra security.’

  One week. That’s all she had left. ‘Yes, Judge, I suppose that’s fine,’ she stammered.

  ‘No. It is fine, then. No excuses. I want all your witnesses, Mr Mann. No hodgepodge. The first one I want to hear from is Ms Rubio.’

  ‘No problem, Judge. She’s very anxious to testify,’ Mann said, nodding excitedly. His shoulders had picked up a bit, as if he, himself, hadn’t really thought he might win today and the good news had put a little extra bounce in his step. ‘This has weighed on her heavily,’ he finished with a concerned frown.

  ‘Spare me. Just have her here on the first. With that tape. And play nice – send a copy to the State. Just in case they don’t have it already.’

  ‘If he’s alleging ineffective assistance, he’s waived attorney-client privilege. I get access to Lourdes Rubio’s defense files,’ C.J. said. At least that would help her prepare for Lourdes’ full frontal assault in the courtroom.

  ‘Make a motion to compel, and they’re yours,’ said the Judge.

  ‘I have them already, Judge,’ said Mann. ‘I’ll provide the State with a copy. There’s about four boxes full.’

  ‘I love it when everyone gets along. As for your witnesses, Ms Townsend,’ the Judge continued quietly, ‘I think we have a problem. Officer Chavez is no longer with us. Nor is Officer Ribero, although I don’t know how much his testimony matters for the purposes of this hearing.’ He thought for a moment, then, as if having made up his mind, but deciding not to share, he finished with, ‘Let’s see where Ms Rubio leads us. Chavez’s sworn trial testimony may be enough.’ He turned to Janine. ‘Order me the transcripts from Officer Chavez’s trial testimony and his testimony from his motion to suppress. Check the court file for the dates. And order me Officer Ribero’s as well. I want them for this hearing. And Corrections… Janine, make sure Corrections has the defendant down for that week. He’s a death row inmate, so call the warden at Raiford and make sure the proper security precautions are put in place. We’re gonna keep him down here for a while, so call DCJ as well and see if there is anything special they need to do to prepare.’ He paused for a moment before adding, ‘Bantling can be difficult. I’ve had problems with him before, and so has Corrections when he gets violent. Let’s not have any more this time. Let’s be prepared.’

  He nodded at all of them, as if this was a good time for everyone to go home and for him to go to lunch. Then his eyes fell on the Herald under Neil Mann’s accordion file.

  ‘And that’s another thing,’ he continued, his eyes narrow slits that read caution once again, ‘I saw the paper today. The rumors are already spreading and I don’t try cases by rumor. I want them to stop. There will be no more leaks to the press, no speculation, nothing filed unless it’s under seal. You are all gagged. Got it? If the press has a problem, which I am sure they will, they can go through the proper channels, but I won’t have what happened last time happen again in my courtroom. They were practically swinging from the chandeliers with their cameras and microphones. Waiting for me in the parking lot,’ he finished with disgust and shook his head, as if to rid his brain of that last vulgar image. ‘Are we all clear on that?’

  ‘Yes,’ the room murmured in agreement. C.J. rose with Neil Mann, who practically danced out of chambers, anxious to use his cell phone, his thick files flopping under his arm. She watched him leave, knowing who he would be dialing in just a few minutes. She gathered her own files and her box of case law, which hadn’t even been cracked open, and placed them back on the cart. She was still in a fog, stunned by the reality that she had only days to prepare for, her stomach a churning pit of acid.

  It was just the two of them now, Janine having headed back to her desk in the outer office, the court reporter to another courtroom, Mann to brag of victory to his wife/secretary before placing his phone call to FSP. ‘Good afternoon, Judge,’ she said, as she wheeled her cart out of his conference room.

  ‘This could be very interesting, Ms Townsend,’ Judge Chaskel said quietly with a frown, taking off his robe and putting on his sports jacket. She turned to face him again in the doorway of his office. ‘Too interesting, I’m afraid. Make sure your legal department is on hand. This could get very sticky for you. Just an FYI.’

  Then, without another word, he walked past her out of his conference room, down the empty back hallway of judge’s chambers, and headed off to lunch.

  56

  C.J. sat at her kitchen table, surrounded by stacks of legal treatises and boxes of file folders, and stared at the words she had just read. The words that leaped out at her from the endless pages of Lourdes’ otherwise illegible chicken scratch.

  chloe, Larson? Bayside, NY, 1988, Rocky Hill Road, sexual assault – in home = vindictive?

  She felt her heart pound fast and she reached for her wine glass.

  Things had piled up in the two weeks she’d been gone from the office. The hearings that she’d missed had mostly just been reset, and her days were filled with motions, depos and pre-files to prep for on her other cases. So she’d dragged home Lourdes Rubio’s client files that had been couriered over by Neil Mann, and had spent late nights all week, meticulously combing through every document and each word. It was unsettling,
to say the least, to read the attorney—client notes that Lourdes had taken. Particularly the ones about her.

  She rubbed the crick in her neck and pushed herself away from the table. It was time for a cigarette.

  She took her glass, walked out onto the patio and lit up a Marlboro. A white moon filled the night and she watched the parade of boats float down the Intercoastal for a few minutes. She and Dominick had sat out here so many nights, in hard plastic chairs, just talking for hours over a bottle – or, on occasion, bottles – of wine. He had talked about getting a boat for the longest time, joking that when they finally retired, he would cruise her around the world. Or at least down to the Keys, since they would both have state pensions.

  She dialed his cell phone and got his voicemail, but hung up without leaving a message. Missed calls would tell him that she had called again. He was probably out with Manny or Chris, or maybe by himself, drowning his sorrows – the very ones she was responsible for – in more than a few drinks. She pressed the phone against her forehead, wishing he had just answered. Wishing she had heard his voice tonight. Wishing he didn’t hate her, but knowing she couldn’t blame him.

  It felt like everything was falling apart. Dominick. Her career. Her life. And even though she struggled to push the negative thoughts out of her head and focus on what needed to get done, the days seemed harder to get through. And she felt more and more isolated. Not a good sign.

  At the lowest point of her depression years ago, when sleep had stopped coming, she had seen him everywhere – the stranger in a clown mask whose face could be anyone’s. Therapy had saved her then, and for the next twelve years, it had kept her functioning, helping her control her fears so that they would not control her. The last ten of those years she had spent in the care of forensic psychiatrist Gregory Chambers. Greg had not been just her doctor, but her friend and colleague, as well, serving as an expert witness for the State on more cases than she could count. For those ten years, he had been there to make sure she didn’t slip back into the darkness of depression. He had been her confidant, her consoler, her life rope when times were bleak and it was hard to just get out of bed some days. And then she suddenly found out, when she needed him most, he had also been treating the man she had been running from all along in her nightmares. That she hadn’t been in therapy – she had been in a twisted experiment.