A Case of Redemption (20 page)

The judge's law clerk knocked three times on her desktop. “All rise!” she cried out. “Please come to order. The Supreme Court of the state of New York, for the county of New York, the Honorable Linda A. Pielmeier presiding, is now in session. All present before this court appear and you shall be heard.”

Some judges seem embarrassed by the pomp of their office, choosing to have court meetings in their chambers, or immediately telling counsel to sit when they enter the courtroom. Judge Pielmeier was at the other extreme. I got the sense she wouldn't have minded if a marching band played some type of judicial equivalent to “Hail to the Chief” whenever she entered.

“I apologize for the delay,” Judge Pielmeier said, looking past the lawyers to the gallery, and without providing any explanation for her tardiness. “I'm going to ask the corrections people to bring the defendant in, unless there's something we need to discuss prior to that.”

Assistant District Attorney Kaplan and I stood in unison to tell her that there was not.

Judge Pielmeier nodded, a signal for the clerk to open the court's side door. Just like before, L.D. was accompanied by two guards and was wearing the same orange jumpsuit, complete with the wrist and ankle accessories. When they approached counsel table,
the guards once again unlocked only the handcuffs, leaving L.D. restrained about the ankles. Then they took their position about six feet behind us.

“What's this about?” L.D. whispered to me as he entered.

“We've made a few discovery motions,” I told him. “Stuff we need to get on the record.”

L.D. nodded. It wasn't clear to me whether he knew that the record mattered only in the event he was convicted, in which case it was what the appellate court reviewed.

“We're now on the record,” Judge Pielmeier said, ending my conversation with L.D. “We're here on several discovery motions filed by the defense . . . . I've read the papers, so you can assume I'm familiar with the facts. Mr. Sorensen, it's a defense motion, so why don't you go first?”

“Thank you, Your Honor,” I said. “My partner, Nina Harrington, will make the argument for the defense.”

Nina had written our briefs, and so we'd agreed that she'd make the argument. The first point she'd address was what we wanted most, the prosecution's witness list. With it, we had a road map for the prosecution's case. Without it, we'd be trying the case in the dark.

We knew, however, it would be an uphill battle. Witness protection was something of a paranoia for Judge Pielmeier, a vestige of her Chen-Tao experience, where she actually lost a witness midtrial. As a result, she was probably the worst judge we could have pulled on this issue.

“A criminal trial should not be an ambush,” Nina began, a prevetted line that we thought would be a good sound bite for the press. “We have absolutely no idea of the identity of the witnesses the people intend to rely on at trial. We cite in our briefs the case law setting forth the right of defense counsel to get a witness list sufficiently in advance of trial.”

Kaplan rose without Judge Pielmeier prompting her to respond. I couldn't help but think I would have earned a judicial rebuke had I done the same thing.

“Your Honor, we have serious concerns about the safety of our witnesses if we provide the defendant with a witness list. This case involves a brutal murder.”

“Thanks for that reminder, Ms. Kaplan,” Judge Pielmeier said with her tongue in her cheek. “I'd almost forgotten what the people are claiming happened here.” The gallery laughed, and Judge Pielmeier let them without interruption. When quiet returned, she continued, “But you need to remember that although we can all agree this was a brutal murder, the issue for us is whether this defendant committed that brutality. I'm not locking you up just because this was a brutal murder, now am I, Ms. Kaplan?”

The gallery laughed again. For once I was enjoying Judge Pielmeier's sense of humor, seeing that this was a rare occasion when the defense wasn't the brunt of it. But it didn't take long for her to put Nina back on the hot seat.

“Now, Ms. Harrington, I know life would be a whole lot easier for the defense if the defense knew ahead of time who was going to testify for the prosecution, but I need to balance that against the possibility of witnesses being intimidated or coerced, or something worse. What do you have for me that says I should give you what you want on this one?”

Although it sounded like she was asking for a bribe, I understood that the judge wanted Nina to cite some legal precedent to support our contention. I also knew we didn't have anything. At least nothing directly on point.

“The defendant's rights should outweigh the prosecution's unfounded fears,” Nina said. “The appellate court stated in the
Hutchinson
case—”

“Oh, that's not right, Ms. Harrington. Not right at all,” Judge Pielmeier interrupted. She did it with a smile, indicating that she was looking forward to showing Nina how wrong she was. “Now, I could go through the reasons why you're wrong, not the least of which is that
Hutchinson
was a white-collar prosecution—and before you start
with me on this, I'm not saying white-collar defendants get more rights than blue-collar ones, even though from what I've seen of your client's professional wardrobe, he's a no-collar worker, or should I say, a no-shirt worker.” She laughed at her own joke, getting the expected support from the gallery. “But there's a great difference between letting an accountant know who is going to testify against him about fraudulent tax returns, which was the issue in
Hutchinson
, and allowing a self-professed”—she looked down at her notes—“ ‘meanest dude there is' to know the identity of the people who stand between his freedom and a lifetime of incarceration. So if that's the best you got, I'm denying the request for a witness list.”

Although not completely unexpected, that one hurt. Having a witness list would have gone a long way. Without it, we'd have to prepare for every conceivable witness.

“What else you got for me, Ms. Harrington?”

Dwelling on failure served little purpose, and so like a pitcher who had just given up the go-ahead homer, Nina turned to face the next batter. Unfortunately for her, it was still Judge Pielmeier.

“We'd also like a ruling that Mr. Patterson can wear nonprison clothing at trial,” Nina said. “And for the corrections officers to be seated in the gallery, also wearing civilian clothing, so as not to call attention to themselves as guards.”

This was truly a no-brainer. Nothing was more prejudicial to a defendant than a prison jumpsuit and uniformed officers holding guns sitting behind him. Kaplan could have easily conceded the point, but true to form, she made us work for it.

“The people take no position on the issue of the defendant's wardrobe, Your Honor,” Kaplan said, “but decisions regarding the safety of the court and courtroom personnel are extremely serious. We believe that the defense should make an application to the prison officials with regard to that request.”

Judge Pielmeier took the bait. “Mr. Patterson can wear whatever he wants, so long as he's got a shirt on.” She paused to allow the gallery
time to laugh, which they did, as if on cue. “But I'm going to reserve judgment about security until after I consult with the corrections people. You got anything else on your list, Ms. Harrington?”

I wished she did, but I knew she didn't. “No, Your Honor,” she said.

“Okay, then. So let's talk about when we're going to do this,” Judge Pielmeier said.

How quickly to go to trial is one of those issues on which clients almost always disagree with their lawyers. From the defense lawyer's perspective, time is almost always an ally. The more time that passes, the more recollections dim, key evidence might be lost, or, if you're really lucky, a witness or two dies.

Clients, however, are like little kids—they want to jump to the end as quickly as possible to see how it all turns out. They talk about how terrible it is that people
think
they're guilty, without much recognition that being found guilty itself is much, much worse.

There's one caveat to that rule of delay, however. If you know your client is guilty, and a key piece of evidence has not been found by the prosecution—the body, or a witness, or the murder weapon—then you want to get to trial before the prosecution can find it.

Nina favored going to trial as soon as possible. When I asked her why, she said it was because our client was already incarcerated. I couldn't help but wonder, however, if it was more because she believed that if the bat was found, L.D.'s prints would be all over it.

If Judge Pielmeier had asked me, I would have requested a trial date four months from now, around mid-May, but that would have been a negotiating position. I expected Kaplan to ask for three months before whatever date I picked in order to take advantage of the prosecution's built-in head start—she'd been engaging in fact finding and evidence gathering well before the indictment. Judge Pielmeier could be expected to split the difference. So asking for mid-May translated into a trial date toward the end of March, which is where I really wanted to end up.

Judge Pielmeier, however, never even broached the subject.

“I'm afraid April is off-limits for me,” she said, looking at a computer screen that I presumed had her trial calendar. “And I have another matter that is already scheduled for much of May. Can we push this out until June?”

I turned to L.D. He was vigorously shaking his head. Completely unacceptable. June meant another six months in jail.

“Your Honor, the defense would object to that,” I said. “Given that the court has denied Mr. Patterson an opportunity at bail, every day he's incarcerated is a gross miscarriage of justice. Under the speedy-trial rules—”

“Don't quote basic criminal rules to me, Mr. Sorensen,” Judge Pielmeier snapped. “You gonna play hardball with me? Okay, then, I'm going to play hardball with you. Let's say January twentieth.”

This time I didn't even consult with L.D. “Your Honor, while we greatly appreciate the court making time on its schedule so soon, I'm not sure the defense can be ready by the twentieth, which is little more than two weeks away.”

“I know when it is, Mr. Sorensen, but let me remind you why we're here. You said you wouldn't waive your right to a speedy trial. You said you wanted to go to trial as soon as possible. You said that every day your client is incarcerated is—I think the term you used was—‘a gross miscarriage of justice.' How gross a miscarriage of justice is acceptable to you?”

Over the giggles in the gallery, I said, “If Your Honor had time in February or even any time in early March, that would be preferable.”

“My courtroom is not a restaurant that takes reservations, Counselor. If you are invoking your speedy-trial rights, it's January twenty. And I appear to have misspoken about my availability in June. So your choice, Mr. Sorensen, is to proceed on January twentieth to avoid the gross miscarriage of justice that you are so concerned about, or to waive your speedy-trial rights, which will put this matter in line for sometime during the summer, although now I'm thinking
it might be as late as September. Perhaps even October. So, Mr. Sorensen, which one will it be?”

“We'll be ready to go on January twenty,” I said in utter defeat.

Judge Pielmeier announced that we were adjourned even before I could ask her for the opportunity to speak to Legally Dead. I could have shouted out to her as she left the bench, but I knew she wouldn't grant the request, and I didn't want to be told again how court time was her time and that I should speak to L.D. on my time.

“L.D.,” I said as the guards started to cuff him again, “we're going to try to see you tomorrow about something important.”

“I'll be home,” L.D. said just as he was being led away.

God, we were so screwed.

T
he Christmas decorations had already been removed when we returned to Rikers the following morning. I doubted they were getting ready to put up the Valentine's Day stuff.

Legally Dead was brought in to see us by a different guard than last time, but this one also subscribed to the grooming regimen of a big bald head and a black goatee. He followed the standard operating procedure with respect to the restraints, unlocking L.D.'s handcuffs but keeping his legs shackled.

L.D.'s eyes lit up when he saw us. I wondered if that was because of Nina, given that he didn't see any women other than when she visited. But even if that was the reason, L.D. was always respectful toward her. More so than Brooks or even Marcus Jackson. At least L.D. didn't stare at her breasts when he was talking to her.

“Tell me you got some good news for me,” he said.

“Let me tell you the news, and then we can talk about whether it's good or bad,” I said. “I hate to just blurt it out like this, but we have pretty good evidence that Roxanne was involved with another man.” I stopped to check his reaction, but there really wasn't one, and so I pressed on. “First, one of her neighbors saw her kissing somebody, although that's a very shaky ID because she doesn't remember when it was, but she did think that it was an older, white man. The bigger thing we found out was through the autopsy report. You remember I told you we hired some guy who just left the medical examiner's office to be our expert witness?” L.D. nodded. “Well, he hit us with a bombshell.” I waited a beat. “Apparently, Roxanne didn't have
any pubic hair when she died. She'd waxed it off. So the pubic hairs found in her bed must belong to some other Caucasian.”

He waited a moment, seemingly taking in this information. A good ten seconds later he still hadn't shown any emotion. His subdued reaction didn't match up with L.D. beating a woman to death in a jealous rage. Then again, maybe that's why he was acting subdued.