Cheater's Game

by Paul Levine

  “I’m afraid so.”

  “And Gilberto Foyo wasn’t in court to bail me out if I was held in contempt. He was feeding information to you so you could pump me for my trial strategy.”

  Pincher didn’t say a word. He didn’t have to. From somewhere in the yard, tucked into the branches of red bougainvillea, a mockingbird hooted.

  “I’m gonna go public, let the Herald know about your dirty dealing,” I said.

  “What’s the headline, Jake? ‘State Attorney Aids U.S. Attorney in College Scandal.’ I can live with that.”

  “That’s not the way it’ll play.”

  “Jesus, Jake, I didn’t make their case. Lucayo showed me their evidence, and I saw your nephew was toast. You know what prosecutors call a case like this? ‘A long, slow guilty plea.’ That’s what I was trying to tell you. Get another lawyer, someone objective who could have worked out a plea. But no, Last-Chance Lassiter thinks he can win a hopeless case.”

  “It’s not over,” I said, feebly.

  “It’s your ego that’s doomed Kip, nothing I did. Jury nullification? Really? Who do you think you are, Paul Newman in The Verdict? ‘Look for justice in your heart.’ Is that your case? Hollywood endings don’t come true, pal.”

  I leaned forward in my chair, my elbows on my knees. I couldn’t look at him. Nagging at me was the notion that he was right about my deficiencies.

  “Believe me, I don’t enjoy telling you that you’ve lost it, Jake.”

  “On Monday, I’m going to file a motion to dismiss for prosecutorial misconduct, and I’ll ask the judge to refer you to the Bar for discipline.”

  “I can’t wait to read your motion. You’re not known for your written work.”

  “I’m still working on the adjectives to describe you. Do you think ‘scum-sucking, two-faced, shit-eating dirtbag’ strikes the right note?”

  “Take your best shot, Jake. Two shots. Your whole cartridge belt.”

  “I want your ticket punched. I want you publicly humiliated and removed from office by the Governor and Lucayo fired by the Attorney General.”

  “Dream on if it gives you satisfaction.” Pincher exhaled a puff of smoke that mingled with the brackish aroma from the nearby marina. “But in the real world, you shouldn’t file that motion.”

  “Try and stop me. I’d like that.”

  He shook his head and made a cluck-cluck sound. “So unlike you to act tactically and not strategically.”

  “One step at a time. That’s all I’ve got.”

  “The old Jake would have thought ahead. If I do this, what will Ray do? What will Lucayo do? What will the judge do? But now . . .”

  “What? You’re threatening me. You betray me, and that’s all you’ve got? Not even, ‘I’m sorry, Jake. Forgive me for being a bigger shit than a ton of manure.’”

  “You would have done the same thing.”

  “The hell I would have!”

  He tapped ashes onto the gazebo’s wooden floor. “You’d do anything for your nephew, and I’d do anything for my daughter.”

  “There’s a line, Ray. There’s a line I won’t cross.”

  “You can’t know that until you’re standing at the line, jackals nipping at your heels.”

  I dug out of memory the line I’d made Kip read after he’d been indicted. “‘I can bend my own rules way, way over, but there’s a place where I finally stop bending them.’”

  “I give up. Who said it?”

  “Travis McGee.”

  He coughed out a smoky laugh. “A fictional hero! When did you start believing in fairy tales?”

  “When did you become so cynical?”

  We were both quiet. When we used to spar, we were each so gassed between rounds that we lost the ability to taunt each other. Now, I felt the same exhaustion, my energy—physical and mental—drained dry. My anger hadn’t ebbed, but my ability to exhibit it had melted away.

  Without saying goodbye or screw you, I stepped down from the gazebo and started back on the coral rock path. The sun was low in the western sky, and my shadow was elongated. Giraffe legs tapering to a small rectangular body topped by a tiny, ridiculous pinhead, which somehow seemed appropriate.

  He called after me. “You don’t want to hear it, but I’m telling you as someone who still respects you. Hang up your spurs. Get your medical treatments. Marry that wonderful woman who’s oblivious to all your flaws. But give up the law. These days, you couldn’t win a jaywalking case if the light was green.”

  By the time I reached my car, his voice had faded away, and the only sounds were unseen birds in the palms and the ringing in my ears.

  CHAPTER FIFTY-FOUR

  Speaking with the Dead

  Melissa Gold . . .

  Melissa padded barefoot onto the back porch where Jake sat in one of the Adirondack chairs, a tumbler of Jack Daniels on the table, a yellow pad on his lap. It was nearly midnight, and Kip was asleep.

  Earlier, when Jake had come home, he told them what had happened at Pincher’s house. He seemed dazed, and he spoke with very little affect. He apologized to Kip for letting him down but said that now he had solid grounds to get the entire case dismissed. Kip shot Melissa a look then, as if he didn’t believe it. And neither did she.

  Jake was off his game, but did he know it? If he did, was he covering it up, protecting her from a deeper knowledge of the depth of his problems? Sometimes, when speaking, he sputtered an unintelligible syllable. She could see in his eyes when he’d forgotten a word—usually someone’s name—and he’d try to retrieve it like a man chasing a butterfly with a net.

  Jake hadn’t seen her approach from behind him on the porch. She paused and listened. Was he talking to himself?

  “Of course, Charlie. I know how to cross a cooperating witness,” he said, indignation in his voice.

  After a moment of silence, he continued, “Cross-exam is just storytelling. My story, not the witness’s. If you string all my questions together, there’s my story.”

  Another pause, and then, “No. If I win the motion, there’s no cross. Game over. We go to Joe’s for stone crabs and hash browns.”

  He was silent for several seconds. She cleared her throat and walked to the adjacent chair. “Hey.”

  “Hey, Mel.” He looked at his watch. “Whoa, it’s late. Sorry.”

  She spoke softly, gently. “You sounded like you were talking to someone.”

  “Ah. Well. Yes. Charlie Riggs.”

  “Uh-huh. But you know Doc Riggs passed away last year.”

  He shrugged. “I didn’t say he was talking back.”

  “But you seemed to be listening to someone, like a real conversation.”

  “I’m just imagining what he would say. He taught me so much about trying cases, even though he was the medical examiner, and not a lawyer. For a guy who dealt with corpses, he was remarkably knowledgeable about people.”

  “What did he say to you about Ray Pincher?” she asked.

  “That he’d like to do his autopsy, as soon as possible.”

  He smiled, and she felt a measure of relief. If Jake needed to talk to Charlie Riggs or even Napoleon, for that matter, that was fine, as long as he was just thinking out loud. Thirty minutes later, they were in bed, spooning, Jake’s breath warm against her neck, one strong arm draped across her hip.

  She slept a dreamless sleep, awakening with the hope that Jake could reach deep for reserves of strength and resolve and make it through the end of the trial without a physical or emotional breakdown. Then, win or lose, she had a plan she hadn’t yet told him about. Four weeks in the hospital for round-the-clock testing and observation. Brain scans with the latest equipment making the most precise measurements of brain functions and dysfunctions. After that, depending on the results, an even more potent array of experimental treatments. Given his condition and her assessment of the future, there really was no other choice.

  CHAPTER FIFTY-FIVE

  Written Work

  On Saturday afternoon, I wr
ote my “Motion to Dismiss for Prosecutorial Misconduct.”

  I spent three hours on Westlaw in the morning, which was roughly three hours more legal research than I had done in the last ten years. I came up with several cases in which prosecutors had crossed a bridge too far. Most involved hiding, destroying, or tampering with evidence. Or presenting false or misleading evidence. Or failing to disclose exculpatory evidence. Sometimes, prosecutors were not exactly the guardians of our liberty.

  I was following Judge Speidel’s beloved rules with a written motion and memorandum of law. Reading the case law as I worked, I dictated and Kip typed on his laptop: “The government is forbidden from planting agents to spy on defense preparations or invade defense work product.” I gave him the supporting citation, U.S. vs. Henry, a United States Supreme Court case. “Now, put this in quotes. ‘The defendant has the right to prepare in secret. The prosecution’s intrusion violates both the Fifth and Sixth Amendments.’”

  “Good one,” Kip acknowledged.

  “Now put this into coherent English for me. ‘There is an unholy conspiracy between U.S. Attorney Juan Lucayo and State Attorney Raymond Pincher to spy on the defendant’s trial preparation. The government’s conduct is shocking to the universal sense of justice and violates due process as well as the defendant’s right to a fair trial.’”

  “Universal sense of justice,” Kip repeated. “Love it.”

  I dictated several paragraphs about Ray Pincher pretending to be “a confidante and ally of defense counsel,” when he was, in fact, a government informant.

  “The only remedy,” I continued, “is dismissal of all charges with prejudice and appropriate disciplinary action against the malfeasors, Juan Lucayo and Raymond Pincher.”

  “Malfeasors,” Kip echoed, apparently liking the word.

  Kip printed out the document. I edited and polished. On Sunday morning, I tightened the language even more. In the afternoon, I filed the motion electronically. No more rushing to the courthouse to have a clerk hand-stamp my documents like the Dickensian lawyer Jaggers in Great Expectations. These days, you hit a few keys, and whoosh, your document sails through the ether and instantaneously appears in the courthouse or in a cloud above it.

  Still, I did not expect such a hasty response. Thirty-four minutes after filing, I received a phone call from one of Judge Speidel’s eager young law clerks.

  “The judge would like you and your team in chambers at eight a.m.,” the fellow said.

  “I’ll alert my team. I assume the judge will be hearing the motion.”

  “That would likewise be my assumption,” he said, noncommittally.

  I told Kip, who asked, “Is it a good sign that the ratchet tool is giving us such a quick hearing?”

  I gave him the truth. “I have no idea. All I know is that we’ve got the tool’s attention.”

  CHAPTER FIFTY-SIX

  There May Well be a Hanging

  At 7:55 a.m. on Monday, an old Mexican proverb popped into my head for no discernible reason: The week begins badly for the man hanged on a Monday.

  I was sitting in Judge Speidel’s chambers, Kip at my side. No judge, no court reporter, no law clerks. The quiet was deafening.

  At precisely 8:00 a.m., Judge Speidel, in a light seersucker suit, rather than his robes, waddled into chambers from a side door that led to his private office. Behind him, nearly obscured by his bulk, Margaret Bolden followed. Not a good sign, the two of them huddling. Why did I think they weren’t talking about the Sunday evening seafood buffet at their country club?

  The judge plopped into his high-backed chair, which groaned in response. “Let’s get to it.”

  “Your Honor, shouldn’t we wait for the court reporter?” I asked.

  “No reporter. No law clerks. No assistants. And please ask your client to wait in the courtroom.”

  “I have a right to have every hearing transcribed,” I said, “and my client has a right to be here.”

  The judge exhaled a sigh that rattled loose papers on his desk. “Trust me on this, Mr. Lassiter. It may be hard to believe, but I’m looking out for you.”

  Kip stirred. “It’s okay, Uncle Jake.” He got up and left.

  “I’ve sealed the motion to dismiss you filed yesterday,” the judge said. “The media and the public have no access to it. If you choose to withdraw the motion, it will never see the light of day.”

  “I choose not to withdraw it.”

  “Jesus H. Christ, just hold your horses, Lassiter.” The judge tugged at the knot of his tie, pulling it down to half-staff, and two hidden chins jiggled free. “I read your motion and your memorandum of law. Surprisingly, your written work is acceptable.”

  He said it reluctantly, like a miser forced at gunpoint to give alms to the poor.

  “You allege a conspiracy between the U.S. Attorney and the State Attorney,” the judge continued. “You claim the U.S. Attorney’s office planted a spy in your camp, and you want an evidentiary hearing to put everyone under oath to prove your allegations.”

  “In front of a court reporter,” I said, gesturing to the empty space where she should have been taking down every word.

  “Before taking such an unprecedented step, I will inquire of you. Not under oath. No court reporter. Just the three of us. Officers of the court seeking common ground.”

  He’s laying a trap for me. Anyone could see that. But how and why?

  “Now, did Ms. Bolden or Mr. Lucayo break into your office or hire someone to do so, à la Watergate?”

  “Of course not.”

  “Did they tap your phones?”

  “Not that I know of.”

  “Hack your computer?”

  “I’m not claiming that.”

  “As for Raymond Pincher, is he your co-counsel?”

  “You know he’s not. He’s a public official.”

  “And, in fact, a prosecutor, just like Ms. Bolden, though in the state system.”

  “Ray’s also been a friend for decades.”

  “Don’t you mean an adversary, someone you’ve tried cases against, down by the river?”

  “An adversary who became a friend through mutual respect and beating each other’s brains out in the boxing ring.”

  “Did you voluntarily disclose your trial strategy to Mr. Pincher?”

  “Yes, on the basis that he would keep it confidential.”

  “Did he sign a non-disclosure agreement to that effect?”

  “No. I trusted him.”

  “Did you ever say to him, ‘Ray, don’t tell a soul?’”

  “It was understood.”

  “Did Mr. Pincher rifle through your desk or your briefcase?”

  I struggled to contain my anger. “Your Honor, you’re missing the point. This unholy conspiracy violated my client’s rights because there was a quid pro quo. The U.S. Attorney made a secret deal with Pincher not to prosecute his daughter in return for his acting as a spy.”

  The judge turned to Bolden. “Is that true, Margie?”

  “Your Honor, I can categorically state that I made no such deal.”

  “I didn’t say Margie made the deal. Her boss did! Pincher admitted it!”

  “In writing? Under oath? Do you have an audio or video recording? Will he repeat that admission in court?”

  “Let me put the three of them under oath, and we’ll find out.”

  “What next, the Attorney General? Is this another of those Lassiter fishing expeditions where—what did you say?—you’ve caught some big grouper?”

  I felt like I was rowing a dinghy into a headwind and against the tide. The judge was in the bag for the government, and I felt helpless. “Your Honor, I just want a chance to—”

  “What it sounds like to me, Mr. Lassiter, is that you were negligent in disclosing confidential information to a third party who had no legal duty to refrain from sharing it with the government. The fact that the third party is a prosecutor only underlines the magnitude of your negligence.”

  “What a
re you saying? You’re denying my motion?”

  “Oh, we’re not done quite yet. Margie?”

  “Mr. Lassiter makes this motion with unclean hands. Last Friday afternoon, he impersonated an A.U.S.A. on the telephone, in violation of at least two federal criminal statutes.”

  Ah, so that’s where this is going. Had been going, ever since the law clerk’s call yesterday and the judge’s ex parte tête à tête with Bolden before the hearing.

  The judge turned back to me. If I could have seen his eyes through his bulbous cheeks, they probably would have been twinkling. “Good gracious! Your response, Mr. Lassiter?”

  Now I knew why that Mexican proverb about a Monday hanging had popped into my head. I must have known, at least subconsciously, that I couldn’t get a fair shake from Judge Speidel. A song came to me. Tom Russell’s red-dirt classic, “The Sky Above, The Mud Below,” where the local deacon was also the sheriff, the judge, the executioner, and the undertaker. “Someone go and dig a ditch, there may well be a hanging.”

  “Mr. Lassiter?” the judge prompted me. “If you desire, you can consult with an attorney before speaking or simply plead the Fifth Amendment.”

  “Fuck the Fifth,” I mumbled.

  “What was that?”

  “I’ll forego the Fifth.”

  “Then answer carefully, fella, because I’ll drop-kick your ass into jail without a second thought.”

  “Stated succinctly, I did not impersonate an Assistant United States Attorney.”

  “All calls from our lobby phone are recorded,” Bolden said. “We have the audio.”

  I pointed a finger at her. “Then you didn’t listen very carefully. What I said was, ‘This is Jess Kalartie in the U.S. Attorney’s office.’ In fact, I was in your office when I made the call. There is no A.U.S.A. named ‘Jess Kalartie,’ so I wasn’t impersonating him. That’s an anagram of my name. I also said, ‘I’m in trial with Margaret Bolden in the college admissions case.’ That statement is one hundred percent true. I said, ‘I’m wondering if you could come down to the office Monday after court adjourns.’ That’s true, too. In short, I didn’t violate any federal statutes. I merely uncovered with very little effort your office’s egregious misconduct that the court is happy to sweep under its Persian rug.”