Bad Lawyer (28 page)

“That’s correct.”

“No more questions.”

Carlo made a half-hearted attempt to get Rodriguez to concede that he might have made an error, an attempt Rodriguez resisted by answering, “That’s the way I remember it,” thus reinforcing the fact that he had a memory of events independent of his notes.

Delaney cut him off after a few minutes, reminding Carlo that there was no jury present, then declared a fifteen minute recess. I remember following Priscilla into the courtroom next door, noting the swing of her hips, her determined stride. As if she hadn’t a care in the world.

Priscilla wasn’t the only one happy with the turn of events. Rebecca termed my cross-examination “marvelous” and “outstanding.” Even though it hadn’t produced any tangible results and no jury would ever hear it. But I didn’t spoil the celebration. Instead, as I listened to Rebecca go on, I found myself wishing with all my heart that it was Julie speaking, that it was Caleb hoisting a glass of Sprite to my legal prowess.

When McLearry retook the stand, I had him repeat his estimate, that he’d only been inside for eight or ten minutes, before confronting him with the log. To his credit, he took some time to think it over, but there was no place for him to go, a fact I proved to him by reconstructing the search. I walked eighteen steps, as McLearry would have, pantomimed opening a pantry door, looking under a sink. Then I took twenty steps into the bathroom, then ten to the bedroom, finally thirty to the front door. At each point I went through the motions McLearry had described earlier. The whole thing, even done slowly, took six minutes.

“Rodriguez must have made a mistake,” McLearry, his legs crossed, his face a mask, kept insisting. “I couldn’t have been inside that long.”

“And that’s because it could not have taken twenty-two minutes to perform the search you described?”

“That’s correct.”

“And you’re saying that if you were inside the apartment for twenty-two minutes it’s because you were doing something other than what you’ve described?”

“That’s argumentative,” Carlo interrupted. “The witness had already stated that the log is inaccurate.”

“I withdraw the question. Detective McLearry, did you keep a record of the time you entered and left the crime scene? Did you write anything down?”

“I already told you I didn’t.”

“Did you look at your watch before and after you searched the apartment?”

“No.”

“But you want us to believe that the only
written
record is inaccurate?”

“It has to be.”

“And that’s because if the log is, in fact, accurate, you did something other than perform the search you described?”

Carlo objected again, as well he might since I’d asked exactly the same question I’d withdrawn a moment before. Delaney sustained him, then asked me to move on.

I signed off then, figuring I’d done all the damage I could. If Delaney decided to believe McLearry, or if he concluded that the time discrepancy was irrelevant, there was nothing I could do about it.

To my surprise, Carlo didn’t try to rehabilitate McLearry, perhaps because he couldn’t accomplish the task without tainting Rodriguez. In any event, I clearly surprised him when I recalled Rodriguez to the stand.

“Mr. Kaplan,” Delaney asked, “is this absolutely necessary?”

It was like asking a trapeze artist not to finish his act with a triple somersault. “I only have a few questions, your Honor. On a matter not yet examined. It won’t take more than ten minutes.”

Rodriguez, when he came back, seemed considerably subdued. Apparently, his testimony hadn’t drawn rave reviews.

“While you were in the Police Academy, Officer Rodriguez,” I began, “did there ever come a time when your instructors discussed a concept called ‘in plain view’?”

“Yes.”

“And was the concept of ‘in plain view’ mentioned in connection with general search and seizure law as it pertains to police officers?”

“That’s right.”

“And would you explain ‘in plain view’ as you understand it?”

Carlo rose from his chair to object on the grounds of relevance.

“It’s foundational, your Honor. And goes directly to the credibility of the witness.”

The irony of my attempt to establish the credibility of a prosecution witness wasn’t lost on Delaney who smiled before instructing Rodriguez to answer the question.

“To me it means that I never have to ignore evidence that’s lying out in the open.”

“When you say ‘evidence,’ would that include, for instance, a weapon?”

“Yes.”

“Would it also include a clear plastic bag filled with cocaine?”

“That’s right.”

I took a few steps forward, my hand extended as if about to offer a blessing. “And were you aware of the ‘in plain view’ concept when you searched the Sweet apartment on the evening of January 16?”

“It occurred to me.”

“And did you look for incriminating evidence lying ‘in plain view’ as you walked through the apartment?”

“I didn’t go through the rooms with a magnifying glass, but I did look around.”

“And did you notice a plastic bag filled with cocaine lying on a nightstand in the bedroom?”

“No, I did not.”

W
HEN DELANEY, AFTER LISTENING
to fifteen minutes of closing argument from each side, tossed out the cocaine (and with it, of course, the charge of possession), the crowd behind me let out a collective gasp. A babble of conversation surged upward, blended smoothly with a shuffle of feet as several reporters fled the courtroom. Carlo, standing to my right, slapped a palm to his forehead; his lower lip rose almost to his nose and actually quivered. I turned slightly, tried to suppress a grin, then distinctly heard Caleb’s voice in my left ear.

“The boy is
back
,” he whispered. “Ohhhhh, yessssssss.”

Before I could react, Delaney slammed his gavel down, plunging the courtroom into a sudden, complete silence.

“We’ll take our noon recess, now,” he said, “start the
voir dire
this afternoon. Be prepared, gentlemen. I want jury selection completed before we go home.”

Carlo, apparently recovered, demanded a continuance while he appealed Delaney’s ruling to the Appellate Court. It was a mistake; he couldn’t win, but he could (and did) make an enemy of Judge Thomas Delaney.

“If you want to appeal, Mr. Buscetta,” Delaney replied evenly, “that is, of course, your privilege. But there will be no delay in the start of this trial. Your request for a continuance is denied.”

A few minutes later, with Janet out fetching sandwiches and Rebecca searching the hallways for a working telephone, I explained it to my client.

“The only issue here is credibility. Rodriguez claims that you consented to his entry. McLearry says the cocaine was out in the open. Delaney believed the one, but not the other. It’s that simple. The Appellate judges who hear Carlo’s appeal weren’t sitting in the courtroom this morning. They can’t extract McLearry’s body language, his posture, and the tone of his voice, from the trial transcript.”

It was a speech, the kind of pompous lecture Julie might have grinned at in times past, and I was acutely aware of my own voice as I made it. I was aware of an underlying fear, as well, a fear no amount of self-congratulatory bullshit could erase. And what I again feared was a descent into pure madness, a descent that some distinct obscure and thoroughly debased aspect of my being was prepared to welcome.

Priscilla was sitting next to me on the front bench of the little courtroom. The knee-length skirt of her dress lay in bunches across her legs. At that moment, I wanted to flip the skirt up into her lap, run the fingers of my right hand over the inside of her thigh, get my descent off to a good start. Some piece of me was absolutely certain that I could make it all the way back, that I could enjoy a life of wealth and celebrity with an appreciative Priscilla Sweet on my arm, that she would know me in a way (and to a depth) that no other woman ever had. If I could just bring myself to forget.

Priscilla touched my arm. “You know, Sid, after … everything that happened, I was afraid … I was afraid that you’d sell me out.”

I recognized the hesitant tone immediately. It was one I’d been coaching her to produce when she spoke of her love for her dead husband.

“But after listening to you out there today …Well, I know it’s not true.”

Rebecca Barthelme returned at that moment, passed through the outer door by the attentive Sergeant Mason.

“I managed to reach Pat Hogan,” she said. “He’s going to check out Kaisha Norton, see if she’s testified in other cases. He told me to tell you that he’s making progress on the other job you gave him and you should look for results as early as tomorrow.”

I remember Priscilla’s eyes jumping over to mine, her head cocking slightly to the right. “You working on another case?” she asked.

“Several.” I returned her gaze evenly. “Pro bono doesn’t pay the rent. Meanwhile, what do you say we get to work on winning this one?” I held up the jury questionnaires. “By the end of the day, twelve of these citizens will be charged with deciding your fate. It’d probably be good if they were the
right
twelve.”

Delaney brought the potential jurors down in panels of fourteen, the number of chairs in the jury box. Carlo and I were each allowed fifteen minutes of questioning per panel, slightly more than one minute per individual. Ordinarily, we’d be working completely in the dark, picking jurors by pure instinct. In this case, we had the questionnaires, filled out to screen jurors influenced by the pre-trial publicity, but while they were certainly helpful, the most obviously prejudiced jurors had already been removed. As advocates, Carlo and I shared two distinct problems. Not only were we tasked with finding the liars, we had to uncover the direction of their prejudice. There was nothing I would have liked more than to place a single individual already committed to my end of the argument on that jury.

I handled my end of the problem by asking the same general questions over and over again. Jumping them from juror to juror as if addressing the entire panel at once.

“Do you believe, Mr. Abernathy, that people have a right to defend themselves against physical attack?”

“Mrs. Kenzick, how about you, do you believe in the right to self-defense?”

“And you, Ms. Battle, do you think
everybody
has the right to defend themselves? Is there anybody who doesn’t have that right?”

“What about a murderer in a prison, Mr. Goldstein? Would a murderer in a prison have the right to self-defense if he was attacked by another prisoner?”

“And a drug dealer, Mr. Guidanzo, would a drug dealer have the right to defend herself? Or would a drug dealer have to let herself be killed?”

I stood close to the jury as I worked, kept my voice as friendly and intimate as possible. My posture was relaxed, my hands spread out before me or folded just above my waist, my expression quizzical, as if I didn’t know the answer and needed the jurors’ help. Most of them responded positively, with a nod or a word. Occasionally, one of the more assertive declared, “Only if they try to get away first.” I used their declarations to my advantage, asking other jurors, often the same individuals who’d replied with a simple affirmative to my original questions, if they felt that way, too.

“How about you? Do you believe that people have to try to get away before they’re allowed to defend themselves with deadly force?”

“Well, yes,” I remember one woman, Latisha Garret, saying as she raised a lace handkerchief to her lips, “I think you must at least
try
. Otherwise it’s revenge, isn’t it?”

Isaiah had a different problem. Though his manner was far more deferential than Carlo’s, he was forced to ask pointed questions. A number of female jurors had indicated that they or someone they knew had been a victim of domestic abuse. Isaiah had asked that they be excused
en masse
, a request Delaney had quickly turned down. Instead, he’d put a single question to each.

“Do you believe that despite your experience you can reach a fair and impartial verdict?”

I watched this part of it from the defense table, knowing that jurors hated questions that challenged their honesty. Isaiah must have known this, too, because he smiled as he worked, managing to convey an implied apology while he dug for the information he needed. His goal was to evoke a revelation grave enough to produce a dismissal for cause, thus conserving his peremptory challenges for the hard cases.

Unfortunately, Isaiah was almost exclusively targeting women and they clearly didn’t like it. Of course, with a bare fifteen minutes in which to question fourteen individuals (Delaney, predictably, was keeping us to a tight schedule), there was no way Isaiah could reach everyone. But I felt that he could have been more subtle, and when a hand dropped lightly to my shoulder halfway through Isaiah’s examination of the fourth panel, I turned to share my insight with Julie.

For a moment, a very long moment, I was completely disoriented. The face of the woman opposite me was vaguely familiar, the face of a friend of a friend to whom I’d been introduced in the distant past. I watched her lips move without understanding a word she said, found myself wondering why she wasn’t smiling. Had I done something to offend her?

I was just about to ask, “Where’s Julie?” when I came back to myself. Rebecca was staring at me. Her white hair, curled into a shoulder-length pageboy, seemed to float away from her skull, a pure halo.

“You okay, Sid?” she asked.

The concern in her voice seeming to me, at that moment, perfectly sincere, I felt it best to reassure her. “Never better,” I said with a smile. “Never fucking better.”

By five o’clock we had a panel of nine women and five men. There were five whites, four blacks, two Latinos, and one Asian on the standing jury, plus two black alternates. Isaiah had spent thirteen of fifteen peremptory challenges dumping women, but had still failed to produce a male majority because Delaney, may God bless his chauvinist heart, readily dismissed men who claimed hardship while retaining women, thus virtually guaranteeing a gender-biased panel. If it had gone the other way, Delaney’s rulings might have formed part of an appeal after conviction. The prosecution, on the other hand, could do no more than bemoan an acquittal.