Unreasonable Doubts

by Reyna Marder Gentin

  “Hey, you! Guess what? I won Danny Shea’s case!” Liana looked forward to giving Deb some news, maybe a momentary lift.

  “I know, silly,” Deb said. “Gerry told me half an hour ago. Classic that the client I gave you turned out to be a winner.” Deb was kidding, but Liana could feel her longing to return to her normal life.

  “Oh, Deb. I would trade any win to have you here in the office doing your own work. You’ll be back soon.” It was a hard reassurance to pull off, but Liana tried.

  The mention of Gerry’s name reminded her that he had asked to see her.

  “Listen, Gerry wanted to talk to me. I guess I better go. I’ll talk to you soon. Kisses to Max.” She reluctantly hung up on Deb.

  Before heading to Gerry’s office, she called Jakob.

  “Hey,” Liana said excitedly. “I won the Shea case!” When Jakob didn’t respond, she added, “You know, the one you came to see me argue.”

  “Oh, that’s great, babe,” Jakob said. He sounded distracted; he’d put her on speaker, and she could hear him typing on his keyboard.

  “This case is important to me, Jakob.” She knew she should be glad he hadn’t figured out how emotionally involved she had gotten with Shea, but her disappointment at his lack of interest took center stage.

  Contrite, Jakob tried again. “I’m sorry, Li. I’m just in the middle of twenty things here. It’s wonderful that you won your case; I’m really proud of you. I hope Gerry is appreciative.” Jakob always got down to the bottom of things, and Liana realized she better deal with whatever Gerry had in store for her.

  “Thanks. I’ll let you get back to work,” Liana said. It was a way of getting off the telephone that Liana had picked up from her mother and that she detested. Whenever Phyllis wanted to end a discussion, she would say, “Well, I’ll let you go,” as though Liana had been the one to suggest that the conversation had run its course. It never failed to irk her. Jakob, on the other hand, seemed only too happy to be released from the call.

  Liana wasn’t sure what to expect when she went to speak with Gerry. There wasn’t much follow-up to do when the court reversed and ordered a new trial for a client. She’d have to write to Danny Shea and tell him the good news, being careful to manage his expectations. It wasn’t as though the appeals court had dismissed his case and he’d be let out of prison “forthwith”; rather, he’d be brought back to the trial court in Brooklyn, and the proceedings would start all over again.

  The fact that Liana believed in him—Why would such an intelligent, seemingly decent man have sat holding Jennifer Nash’s pink purse, “waiting to allay” her parents’ fears, if he had just raped her? And weren’t Shea and Nash friends, on their way to becoming friends with benefits?—was irrelevant. In all likelihood, Shea would be found guilty at trial again in six months or a year, and she’d have to represent him again on his appeal from the retrial. But she’d make sure not to mention that to Gerry, who would definitely not appreciate that, in her mind, her victory was already relegated to the pyrrhic.

  “Liana, come in,” Gerry said, motioning her to the guest chair. “Are you happy?” he oozed. Liana wasn’t sure if it was a trick question.

  “I’m pleased with the decision, Gerry. Is there something you wanted to discuss?” She’d warmed to Gerry slightly since Deb had become ill. He genuinely cared about her, and that did speak well for him. Besides, Liana had been invited to Deb’s birthday brunch and Gerry hadn’t, and she felt that proved something about their relative status in Deb’s eyes. But she still didn’t trust him as far as she could throw him.

  “Liana, I’m proud of the way you handled this case. And not just because you won. You put your heart and soul into representing Mr. Shea, and it showed. That’s a real achievement. That’s what we are about in this office.”

  She wasn’t sure she could pull off a neutral response, so she didn’t try. Gerry didn’t notice.

  “I just wanted to remind you of a few things,” he continued in his “I am your supervisor” voice. “First, if the press calls, we don’t comment on ongoing cases.” Liana knew the drill, but Gerry didn’t know about Randy Napoli. Liana was sure to be featured on the front page of tomorrow’s New York Law Journal on Danny Shea’s case.

  “Of course,” she said.

  “When is Mr. Shea due back in the trial court in Brooklyn?” Gerry asked.

  “I haven’t heard yet from the DA’s office, but I’d assume it could be as early as next week,” Liana said. “Why?”

  “Well, you need to appear on that first date when Mr. Shea is brought back to Brooklyn Supreme,” Gerry said.

  So this is why he wanted to see me.

  There was no reason for Liana, the appellate attorney, to represent the client in the trial court—the assigned public defender from the trial office would be much better suited to taking care of the preliminary matters than she would, as well as the retrial down the line. Besides, there was no way she was risking seeing Danny Shea again in person, much as some part of her longed to do just that.

  Liana’s distress was written all over her face; Gerry continued. “His trial attorney was found ineffective, Liana, so when Mr. Shea comes to court for the first appearance on his retrial, he won’t have anyone representing him until the court appoints a new trial attorney. You need to go and stand up with Mr. Shea until you’re relieved by new trial counsel.”

  “But, Gerry—”

  “It’s no big deal—you just stand there next to your client, remind the judge of the grounds of the appellate court’s decision granting a new trial, and wait for the court to assign a new trial attorney. It’ll be five minutes max—you barely have to say anything. You’ll take the kid with you.”

  Liana snapped to attention. “What kid?” she asked.

  “Bobby—you’ll take Bobby with you. It’ll be a good experience for him to see what it’s like in trial court and how you interact with a client,” Gerry said. Liana was sure that Gerry was smirking, although the expression was so close to the normal arrangement of his facial features it was hard to tell. “You did a great job with this case, Liana. I know that a number of months ago, you were feeling conflicted about our clients, but it seems like your experience representing Mr. Shea has reignited your fervor. I’m so glad to see that. We value your work here. It’ll be good for you to see Mr. Shea in court; I’m sure he’d also like to express his appreciation.”

  Did Deb share with Gerry that Danny Shea affects me in a way that is not entirely professional?

  The thought was humiliating, and Liana ordinarily would have been angry at Deb’s betrayal, but under the circumstances, she didn’t begrudge Deb the laugh she must have shared with Gerry at her expense.

  When she returned to her desk, there was an email from Randy Napoli.

  Awesome decision, Liana. You knew you had this one as soon as you filed it. Call me when you get a minute. Working on the article for tomorrow’s paper. As Liana gave Randy the lowdown over the phone, her feelings about the testimony and about Shea came rushing back to her. She tried to remain as clinical as possible, but she knew it wasn’t working; she could feel her breathing quickening.

  “Hey, this guy really made an impression on you!” Randy said, sounding a little jealous. “I know you can’t give a comment, right?” Randy tried. Liana felt the constraints slipping away from her. In her attempt to figure out Danny Shea, she had already broken more serious rules—destroying client correspondence, visiting a client on a total pretense, secretly lusting after a client—this one seemed like nothing.

  “You can quote me as saying that I’m confident that, with competent trial counsel, Daniel Shea will be acquitted of all the charges at his retrial.” She was so lost in her own fantasy world that she forgot Bobby was sitting there.

  Bobby followed Liana into the criminal court building at 320 Jay Street like an obedient puppy. She had been leery of taking him along, but now she felt that maybe it hadn’t been such a bad idea. He could act as a reality check—a r
eminder to her that Danny Shea was just like any other client, if conceivably innocent and on a totally different order of magnetic. Bobby would also be a buffer zone—a pudgy, obsequious one—between her and Shea. She realized she was being overly dramatic; how much damage could be done in a ten-minute appearance in open court with a man who was only momentarily out of handcuffs and surrounded by court officers?

  They entered Justice Martin’s courtroom and made their way over to the defense table. “You sit here,” Liana directed Bobby, placing him in the middle so that he would be between herself and Shea. Bobby, who had never seen the inside of a trial courtroom before, had no idea what was happening and dutifully sat down. Liana glanced over at the prosecutor’s table and noticed that among the attorneys was Ms. Wellington, the assistant district attorney who had handled the appeal.

  “What’s she doing here?” Bobby asked. Just as it was unusual for Liana, the appellate defense attorney, to be present in the trial court, so too there was no obvious reason that the prosecutor who handled the case on appeal would be there.

  “I have absolutely no idea,” Liana answered, trying not to let Ms. Wellington’s very being unnerve her.

  “All rise!” the bailiff called out. The attorneys got to their feet as Justice Martin entered the courtroom.

  “Good morning, everyone. We are here today to begin the proceedings on the retrial of Mr. Daniel Shea. I see that new counsel is here for Mr. Shea. Counselor, are you ready to proceed? If so, we will bring the defendant up from the holding pens.”

  Liana quickly addressed the court to correct the misimpression her presence had made.

  “Your Honor, my name is Liana Cohen. I served as appellate counsel on this case. I’ll be appearing for today’s adjourned date only, until Your Honor can appoint new counsel for Mr. Shea, who was and remains unable to afford his own attorney. As Your Honor may recall, the Appellate Division found that Mr. Shea’s trial counsel was ineffective, and therefore he must have a new attorney appointed for these proceedings.”

  “Ah, Ms. Cohen!” the judge said, his tone a mixture of false delight and masked annoyance. “I believe you also convinced my esteemed colleagues at the Appellate Division that I also didn’t adequately protect your client’s rights during the first trial. I’m surprised that you didn’t ask for the retrial to proceed before a different judge. That was a remedy you could have pursued, was it not?”

  Liana started to squirm. She wanted this to be over, and she was beginning to think that too much was happening without Shea in the courtroom—the last thing she wanted was for the defendant to be able to claim that she was ineffective because she hadn’t protected his constitutional right to be present at all phases of his trial.

  “Your Honor, we didn’t request a new judge, nor are we asking you to recuse yourself now. We’re very confident that you’ll conduct the retrial in accord with all of the defendant’s rights. At this time, I’d ask you to please have the defendant brought into the courtroom so that he may participate in the proceedings.”

  “Of course, Counselor,” the judge said, directing his courtroom clerk to call for the defendant. “I see, Ms. Cohen, that you have a young colleague with you observing, and that’s fine, although if you’re going to be the one speaking to the Court, I would ask you to switch seats so that your client can have your ear,” the judge instructed. Liana and Bobby swapped places, Bobby giving Liana a look that said, Didn’t you know that? Then the judge turned to the prosecution.

  “And Ms. Harrison, I see that you have another attorney with you. Can you state your appearance please?”

  “Ava Wellington, Your Honor. I handled the appeal for the DA’s office. I’m here in case the Court has any questions about the legal basis for these proceedings, especially regarding what we believe is going to transpire here today.” Bobby shot Liana a questioning glance, but she had no idea what Wellington was talking about. Nothing at all was supposed to “transpire”; that’s what Liana was prepared for—nothing. She’d kill Gerry if this got out of hand.

  Liana heard the jangling of keys, and her heart plunged into her stomach. She reassured herself that Bobby would attribute the look of panic that crossed her face as courtroom jitters rather than nervous anticipation at the thought of seeing the man who, with just a glancing touch, had caused her to flee a maximum-security penitentiary without her undergarment. The court officer unlocked the side door and led Danny Shea in; another officer followed behind him. Someone, probably his Uncle Liam, had brought Shea civilian clothes for his court appearance, which Liana thought was both unusual and unnecessary, since he was going right back to the facility after this brief court appearance. Shea was wearing a crisp haint-blue button-down shirt that exactly matched the color of his eyes—how did I miss those eyes when I saw him before?—and a pair of pressed black trousers. He could have walked straight out of GQ magazine. Even Bobby unconsciously whistled under his breath.

  The officer uncuffed Shea, and everyone sat down. Shea leaned in toward Liana and whispered in her ear, “Hey, what a relief. I didn’t know you’d be here.” His breath was warm and sweet. She put her hand reflexively up to check her hair.

  “Please be quiet, Mr. Shea.”

  “I just wanted to say thank you for everything you’ve done,” he persisted.

  “You’re welcome. But remember, you’re not going anywhere but back to Green Haven today,” she said quietly.

  Ms. Wellington stood. “Your Honor, if I may, I’d like to update the court regarding what has happened with this case since the defendant’s first trial.” Ms. Wellington was dressed in another of her signature pantsuits, which lent her a certain military air, and her expression broadcast that if she could have spit on Mr. Shea, she would have. “This case was sent back to you for retrial because defense counsel failed to notice that the DNA report proved that Daniel Shea is a serial rapist.”

  “Objection, Your Honor!” Liana leapt to her feet.

  “Counselor,” the judge said, almost patiently, “we’re not on trial here yet. You don’t need to formally object. And I believe I understand what Ms. Wellington is doing—it’s a bit out of line, but I’ll let her say her piece. I have a feeling I see where this is going,” the judge said, sounding a bit melancholy. Liana didn’t see at all where this was going, and having Danny Shea six inches away from her was making it difficult to think clearly.

  “May I continue, Your Honor?” Ms. Wellington asked.

  “Please do, Counselor.”

  “This defendant was convicted on December 3, 2011, which is almost a year and a half ago. Since that time, the complainant in this case, Ms. Jennifer Nash, fortunately, has moved on with her life. She has worked extremely hard to begin to get past the trauma of the attack.” Ms. Wellington paused for effect, and Liana started to get to her feet again, but the judge shot her a look that kept her in her seat. “And she’s decided to pursue her education out of state. She’s no longer within the jurisdiction of the court, and she has no interest in reliving the night of July 4, 2010, in court or anywhere else. Therefore, we’re in the position of not being able to pursue the retrial.” Ms. Wellington looked as if she would prefer to rip Danny Shea’s head off, but instead she merely gazed beseechingly at the judge.

  Liana felt the courtroom begin to spin, and she had no choice but to put her head down on her folded hands on the table. Ava Wellington was actually telling the judge that her office was going to let Danny Shea walk—not because he was not guilty but because the victim no longer wanted to testify. And although Liana had allowed herself to believe in Shea’s actual innocence many times over the past six months, she had never remotely contemplated that he might exist in her world as a free man.

  “Are you okay?” Shea’s voice was so full of concern and his body was so close to hers, she almost swooned again. Liana managed to pick herself up in time to hear the judge admonishing the prosecutor.

  “Ms. Wellington, I’m not about to tell the District Attorney of Kings County how t
o run his office. But there’s a very obvious solution here. Ms. Nash gave sworn testimony at the first trial. At the retrial, you can simply read that testimony into the record, and it will stand as her testimony at this trial. It isn’t ideal, but that’s what happens when a witness has become unavailable. Certainly you would have to make more of a showing first that she really wouldn’t come in and testify, but I think it would be a better way to proceed than ditching the whole case, don’t you agree?” Justice Martin asked.

  As Wellington consulted with the trial ADA, Bobby kicked Liana under the table. “Don’t you think you should say something in favor of dismissal?” he whispered. Liana looked at him as if he were an alien from another planet and then rose to her feet.

  “Your Honor, as you’ll recall, this jury was out for three days before returning with a verdict an hour after they saw the prejudicial DNA report. That is an indication that they were weighing very seriously the competing accounts of the events of that night. In fact, the descriptions by Ms. Nash and Mr. Shea of a fully consensual encounter were almost identical, until they diverged in the final moments. So for those three days, the jury must have been considering the demeanor of the witnesses on the stand and their credibility. And until that moment when the reversible error occurred, the jury was unable to decide who was telling the truth. There’s no way that Mr. Shea can receive a fair retrial if his accuser isn’t in court for the jurors to evaluate, to hear her voice, to look into her eyes. Jennifer Nash can’t be words read by court personnel from a piece of paper.”

  Liana realized with astonishment that Shea had himself fed her this very argument months before. Just as he had convinced her that to truly represent him she needed to know the man behind the transcript, Liana was now arguing that justice demanded that a jury assess Jennifer Nash in person as well. She sat down, praying it would work. Bobby gave her a thumbs-up. Shea looked at her proudly and nodded slightly.