Unreasonable Doubts

by Reyna Marder Gentin

  She turned to look around the rest of the courtroom, trying to pick out anyone who could be Shea’s mother or girl-friend—he hadn’t told her anyone would be coming to the argument, but sometimes relatives showed up anyway. She didn’t see anyone that fit the bill. She nodded at Deb and Gerry, who were seated a few rows in back of her. Deb motioned to her, and Liana made her way over to where they were sitting.

  “Are you ready?” Gerry asked.

  “Of course,” Liana said.

  “Not quite,” Deb said, standing up with some difficulty and carefully retying Liana’s scarf. “I have such good taste. Now you look fabulous, and now you’re ready. Go get ’em.” She gave Liana a little push back toward the front of the courtroom.

  Liana had seen Deb only sporadically over the last few weeks—she was holding her own, but between appointments with her oncologists and her chemo treatments, she was coming in to the office less and less. Still, Deb had kept track of Danny’s case—or more accurately, had kept protective tabs on Liana’s involvement in Danny’s case—and she had come to lend moral support. Gerry had come to be a pain in the ass, although officially he was there to make sure Liana gave it her all, which amounted to the same thing. If she weren’t so focused on her argument, she would have been disgusted.

  Why do I feel like a probationary attorney all over again, when I’ve proved my worth so many times?

  The first argument was lively, the judges actively engaged in questioning the attorneys. When the litigants had left the lecterns, the clerk announced, “The People of the State of New York versus Daniel Shea.” As Liana rose to take her spot, she saw Jakob enter the courtroom through the back doors and quietly take a seat in the last row. Liana’s heart raced a bit, as it always did when she saw him—but she also had the uncomfortable sensation that somehow he had caught her, in flagrante delicto, with Danny Shea. Jakob didn’t normally take time out of his schedule to watch Liana argue but he knew this case might determine her future in the office. Besides—he was no fool. Liana suspected that he knew that Shea had gotten under her skin in a way that was different from her other clients. She pushed the image of Shea out of her mind and turned to face the court.

  The prosecutor, sitting at the table to Liana’s right, waiting her turn, was like a seething volcano. Liana could feel that venomous fervor that the assistant district attorneys exuded, especially the women, wafting over her. The rivalry between the Public Defender’s Office and the State almost always remained civil, but when it did bubble over, it was usually here, in the majestic room on Monroe Place, with its oak-paneled walls and gold-leaf ceiling. This particular ADA, Ms. Ava Wellington, looked like she could eat Liana and the judges for breakfast.

  Liana waited for the presiding justice to give her a nod, indicating she should begin.

  “May it please the Court, my name is Liana Cohen of the Public Defender’s Office, and I represent the appellant-defendant, Daniel Shea,” she began, her voice as authoritative as she could make it.

  “Trial counsel in this case made one mistake that completely vanquished Mr. Shea’s ability to get a fair trial. These jurors were diligently doing their job, taking their oath seriously, and deliberating conscientiously for three full days, when they were suddenly faced with a startling revelation. At least according to the plain words on the piece of paper that had been entered into evidence by the prosecutor, this defendant’s DNA had been found in the rape kit of a second woman, not Jennifer Nash, the alleged victim here, but some other woman the jury knew nothing about.” Liana paused for effect. “And once the jury was exposed to that fact, true or false, this case was over.”

  The judges jumped in.

  “What is the legal standard for finding trial counsel ineffective?”

  “Was the judge’s proposed curative instruction sufficient to fix defense counsel’s blunder?”

  “How competent was defense counsel during the other parts of the trial?”

  Most of the questions were softballs—the court already knew the answers, allowing Liana to argue even more forcefully the merits of her case. She was feeling confident and very well prepared when Justice Simon leaned over the bench and asked, softly but deliberately, “But, Counselor, who is Alba Velez?”

  At first, Liana was dumbfounded. Does the judge really not know that Alba Velez was the second woman on the DNA report that set this whole legal error in motion?

  Then it dawned on her. The judge knew full well that Alba Velez was the name on the report. The judge wanted to know who she was—how did she have Danny Shea’s DNA in her rape kit? Liana was appalled, and her tone reflected it.

  “Your Honor,” she began, as respectfully as she could, “as you know, that would be a fact totally outside the record. It makes no difference whatsoever to the legal issue here who Alba Velez is or why her name appeared on that report. The only pertinent issue is that her name was, in fact, on the report, defense counsel failed miserably in not noticing it, and this error caused this jury to convict my client within an hour of being privy to that information. Who Alba Velez actually is is completely irrelevant here.”

  Justice Simon tilted back in her plush leather chair behind the bench, keeping her eyes fixed on Liana, a small frown hovering around her mouth.

  “That may be so, Counselor, in our ivory tower, and I’m just thinking out loud here, but in the real world, who Alba Velez is, and whether she was indeed another woman victimized by your client, may be the only question that makes any difference,” she mused. “I’m not asking you to tell us, Counselor,” she continued, “but do you know who Alba Velez is?”

  Liana felt totally dejected. In a tiny voice, she answered, “No, Your Honor. I don’t know who Alba Velez is. If the court has no further questions, I will rest on my brief.” Liana sat down, feeling as if she had let herself and her client down. She knew that the judge’s question had no legal significance to the issue on appeal. But stripped of all the official niceties, what the judge wanted to know was, Should we feel badly for Danny Shea, that he got a raw deal here, or is he a serial rapist? It was the question she had been fighting against asking herself for months.

  She was so distracted that she did not hear any of the prosecutor’s argument, and only the clerk’s calling the next case woke her from her trance and sent her walking out to the antechamber.

  Deb and Gerry were waiting right outside the doors to the courtroom. “Liana, you were great!” Deb gushed. “You totally had the better side of every legal argument; the prosecutor barely made a dent. Although, as usual, she killed in that pantsuit; we might have to take you shopping again . . . .” Deb looked Ms. Wellington up and down admiringly as she exited the courtroom. Gerry was more muted.

  “You did a fine job, Liana. You might have come up with something a little stronger with Justice Simon—she was totally out of bounds, asking you those questions about a fact not in evidence. Of course, she’s right, in a certain sense. The question of who Alba Velez really is goes to the heart of why this was reversible error. You should have argued that the jurors were left to their own devices to make up whatever they wanted after seeing that name—they could have decided that Alba Velez was the nun that taught the defendant in fourth grade and whom he stalked all these years later and brutally raped. The fact that the jury was free to invent an identity for Alba Velez is why defense counsel’s lapse was so prejudicial to his client. But it’s hard to think that fast on your feet,” Gerry said.

  Thanks, Gerry.

  “I still think you are going to win,” Deb said, putting her arm around Liana. Deb had gotten so frail that her touch barely registered, and Liana realized what an effort it must have been for her to make it to court.

  “Thanks again for being here,” she said, giving Deb a quick hug and ignoring Gerry. She knew he was right, and she hoped the judges were smart enough to draw that same conclusion, even though she hadn’t fed it to them.

  Jakob was waiting near the front doors, checking his watch and looking antsy when
Liana approached him. They had seen each other only a handful of times since the Thanksgiving trip to Newport three weeks before; Liana had decided that she would back off, let him focus on work, and try to be there for him when he surfaced. Not having to manage her expectations left them both less stressed-out, but she missed him.

  “Hey,” she said. She hadn’t yet recovered from the oral argument, but seeing Jakob there helped.

  “Hey, yourself. I brought you these,” he said, handing her a small bouquet of lilacs, her favorite.

  “Where did you find these in the middle of winter? They’re beautiful, Jay,” Liana said. “What are you doing here?”

  “You’ve been pretty obsessed with this case—I thought I should come down and get some tips on the kind of guy that really turns you on,” he teased. Liana looked away, trying not to let Jakob see her squirm.

  “Seriously, Li, you were great in there. So passionate. I love to watch you. If I didn’t know better, I would think you really believed in this guy,” he said. He poked her lightly in the ribs. Liana blushed. She hoped Jakob would think it was because he was messing with her and not because he had, inadvertently or by design, revealed that she had some feeling for Danny Shea, whether it was a belief in his innocence or something less lofty. “I’ve got to go back to work,” he said. “Are we still on for New Year’s Eve?”

  “Of course,” Liana said. “Although now that Dick Clark is dead, I’m not sure exactly what we’ll do.”

  “I think we can figure out something,” Jakob said, giving her his best lascivious smile. He kissed her on the cheek and walked out into the cold.

  Gerry and Deb, who had kept a respectful distance while Liana was talking to Jakob, walked over to her. “We’re going to stop at Starbucks on the way back to the office,” Deb said.

  “But we think that gentleman there is waiting for you; he was in court for your argument. Must be a relative,” Gerry said, gesturing toward a solid looking white guy wearing a leather jacket and dark jeans, standing outside the attorney room near the coat racks. Deb and Gerry got their coats.

  “We’ll meet you on Montague,” Deb said.

  “Okay. Can you get me an iced skim latte?” Liana said, but they were out the door, chatting animatedly to one another. Sometimes she envied their closeness—it seemed so much less complicated than the relationships she had with each of them.

  “Hi. Were you waiting to speak with me?” Liana said.

  “Yes,” the man said. He was tall—around Jakob’s height—but older, maybe close to fifty. His hair was attractively grey around the temples, and he had small wrinkles around his deep-set light eyes. Liana could see he was in good shape, even with his winter clothes on. She could envision him tending bar in some classy pub downtown, then remembered that this was only coming to mind because she thought he was one of Danny Shea’s Irish relations.

  “I’m Liam O’Flaherty,” he said. Liana’s mind was still a bit addled from the argument, but she knew she recognized the name from somewhere. As she tried to remember, O’Flaherty added, “I’m Danny’s uncle.”

  “Oh, yes!” Liana said. “He testified that he worked construction for you. I wasn’t sure if that was something he just made up on the stand to make himself look like he had a responsible job or if he was telling the truth,” she said, forgetting herself for a moment. O’Flaherty laughed.

  “No, it was the truth. He’s worked for me on and off since he was in high school—I’ve always tried to help him out if I could,” O’Flaherty said. Liana was embarrassed; she’d just inadvertently suggested that she thought her client had been lying on the stand.

  Sometimes I really worry about myself in this job.

  But O’Flaherty was undeterred.

  “I don’t know if Danny mentioned it, but I sat through his trial. Now, mind you, I wasn’t up on that rooftop. But Danny is basically a good kid who has had a rough time of it. I think a lot of what he said when he testified was probably the truth—not just about working for me or going to school but about that girl too. Anyway, I just wanted to thank you for putting so much effort into Danny’s case. I know you people must not get paid much; I think it’s a real service you do, dedicating yourself to those less fortunate.” Liana tried to see herself as Liam O’Flaherty did—a bright, articulate attorney, attractive even in a conservative five-year-old black suit, fighting the good fight for the disenfranchised and disadvantaged. It was a pretty picture, but she wasn’t sure she fit the bill.

  “Thanks, Mr. O’Flaherty,” she said. “I really hope we win. As I explained to Mr. Shea, though, even if this court reverses his conviction, he won’t get out of prison. He’ll just get a second shot at a fair trial,” Liana said.

  “I know, Ms. Cohen. Danny told me when I went to see him. By the way, he was very touched that you had come to visit,” he said. Something in the way O’Flaherty looked at Liana gave her to understand that Danny Shea had said more than that, and she decided it was time to wrap up this little conversation. She wasn’t proud of the fact that by visiting him in prison when it hadn’t been necessary, she had led Danny Shea on; it had been a severe lapse in judgment on her part. And Liana knew that the excuses she had made to herself for her behavior did nothing to change the reality. She had stepped just marginally out of the bounds of the attorney-client relationship, and it had been simultaneously foolish and undeniably exciting. This wasn’t what Gerry meant by “feeling for the client.” Liana knew it must never happen again.

  “Well, we’ll know more in a couple months. Have a Merry Christmas and a Happy New Year, Mr. O’Flaherty.”

  “To you as well, miss,” he responded. Liana started to walk toward the exit and then turned back.

  “Mr. O’Flaherty—do you know who Alba Velez is?”

  “I do, miss,” he said, looking down at his hands, in which he held a grey woolen winter hat.

  “And?” Liana wasn’t sure she wanted to know, but she had gone this far.

  He looked at her intently, holding her gaze much as Danny Shea had weeks earlier. “And that’s Danny’s story to tell, miss, not mine. But I hope you won’t rush to judgment like that jury did,” O’Flaherty said.

  Liana nodded and quickly left the building, racing toward the caffeine fix she so desperately needed.

  CHAPTER 14

  When she awoke on New Year’s Day, it was almost noon. Liana instinctively reached out to Jakob’s side of her bed, patting the emptiness but hoping he might still be there. Although in her attempt to be convivial she’d had a few too many when they had gone out with Jakob’s work friends the evening before, she had kept herself in check, and she distinctly remembered him sleeping over and making the night worth her while. She felt around on his pillow, even though she knew for certain now he was gone, and her hand landed on a folded-over piece of paper.

  Dear Li, Sorry to leave so early. Believe me, you wore me out—I could have slept all day. My mom texted me this morning—Kyle and Rebecca are both home. She asked me to come and spend the day. Maybe you want to call your mom? I can meet you back at your place tonight. Love, J.

  For a moment, she was overwhelmed with hope—the easy intimacy of the note made her think that maybe 2013 would be the year they would really figure things out.

  Liana felt around on the floor among her discarded bra and jeans for her phone and called her mother. After chatting for a few minutes about the G-rated portion of her New Year’s Eve, she asked her mom if she would like a visit, explaining that Jakob was already gone for the day with his family.

  “Thanks, sweetheart,” her mother said, “but I have other plans.”

  The words “What other plans could you possibly have?” were halfway from her brain to her lips when Liana swallowed them back. Her mother was nearly seventy years old, an accomplished, intelligent, and independent woman. Wasn’t she entitled to have a life without justifying it to her daughter? Liana could be the mature one here and just leave it alone. She told her mother to have a good day and quickly hu
ng up the phone.

  Left to her own devices, Liana poured herself a bowl of Froot Loops, dragged a quilt to the couch in the living room, and ordered her favorite movie, The Notebook, on Netflix. It had come out in 2004, when she was a junior in college, but she had first seen it a few years later with Charlotte and Katie in their apartment in New Haven, the three women swooning with abandon over Ryan Gosling. Since then, she had probably watched it ten times. Liana was always transported by Allie and Noah—the improbable romance between the poor but ridiculously sexy country boy and the beautiful, spoiled little rich girl. So mismatched on every level yet such chemistry between them. She had just gotten to her favorite part—where Noah, begging Allie to stay with him instead of going back to her far more appropriate fiancé, says, “I want all of you, forever, everyday. You and me . . . everyday”—when she noticed, with a start, that in her mind’s eye she had cast Danny Shea as the leading man opposite herself. She marched into a cold shower, forcing herself to stay there as long as she could stand it and until she could return Jakob to his rightful place.

  She was still in a towel and dripping wet when the buzzer rang at three o’clock. “Who is it?” she said into the intercom.

  “It’s us; let us up. It’s freezing out here,” Katie said.

  “What are you doing here?” Liana said.

  “We brought Chinese. Open the door!” Charlotte yelled. When the girls barreled into her apartment, Liana said, “Don’t you people have better things to do on New Year’s Day?”

  “Well, clearly not,” Katie said matter-of-factly.

  “Go put some clothes on,” Charlotte ordered, always the sensible one. Before she knew it, Charlotte had set paper plates and chopsticks on the small table in the vestibule that doubled as Liana’s dining room, and Katie had unveiled vegetarian dumplings, moo shu chicken, beef with black bean sauce, and Liana’s favorite, chow fun. They ate ravenously, barely speaking, until they had demolished everything. Then they sat, stomachs gurgling, in an uncomfortable food coma, wishing they had been more restrained.