Directed Verdict (Failed Justice Book 1) (3 page)

Judge Kolkolski harbored resentment against self-important prosecutors from that day forward.

They can prosecute all they want; it’s still my court.

CHAPTER 2

Like most successful criminal attorneys, Robert Samuel Sugarman had begun his legal career as an ADA. He had heard while still in law school the old maxim, “If you’re going to be a good tax lawyer, your first job should be with the IRS. If you want to practice negligence law, get a job as an insurance claims adjuster. A criminal defense attorney; get a job prosecuting in the district attorney’s office.”

Know your enemy, and know him well.

Bob had the cubicle next to Wally Kolkolski for the first year and a half they were both ADAs. They shared more than a few beers together. He had been one of the first and very few to call when he heard about Wally’s son. When Bob learned of the stabbing in prison, he made a personal visit to the judge’s chambers. It was agreed the subject would never be mentioned again.

It wasn’t.

Sugarman heard the Ricardo case had been assigned to Judge Kolkolski. When he got the call, he was thrilled. It had been a convenient referral. It pays to have friends in the courthouse. Christmas gifts to court personnel, even when it’s not Christmas, are always a good idea. He knew in a “he said, she said” case, there was always room for reasonable doubt. Depending on how believable the complainant was on the stand and how hard he would push on cross, he knew this particular judge would grant him a great deal of latitude. There was always the possibility, no matter how remote, of a directed verdict.

As every defense attorney learns the second day of Criminal Law 101, a directed verdict is an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding no reasonable jury could possibly reach a decision to the contrary. After a directed verdict there is no longer a need for a jury to decide the case. Case closed, the defendant walks. End of story.

The cases of a directed verdict are few and far between. Bob’s criminal law professor had taught him well. The reasons range from taking a case out of the hands of the jury, the unquestioned decider of the facts, to a judge being criticized for being both judge and jury, to failure to follow the accepted way of handling a matter.

If there was one judge who had the nerve, the unmitigated balls, to direct such a verdict in a rape case, it was the Honorable Walter Kolkolski.

Bob Sugarman hoped it would be in this case.

Don’t ask, don’t tell.

It was more than a question one never asked a soldier about his sexual preferences. It was a cardinal rule for every defense attorney in the world.

Did you do it? Did you commit the crime?

Bob knew to never ask that question. He didn’t want to know. For all practical purposes, it didn’t matter. It merely complicated the case. What difference would it make? The DA still had to prove his case. Why make it easier for him?

If the client admitted he did it, whatever it was, his lawyer could never put him on the stand. To do so and have the client lie would be subornation of perjury.

That’s the very last thing I need.

Bob Sugarman knew he was cut out to be a criminal defense attorney the first day of class.

It’s all a big God damn game. It’s who can move the chess pieces with the most skill. Who can outthink, outwit, and outmaneuver the other side that decides the winner. All else is absolute bullshit. Criminal cases are never about guilt or innocence; nothing to do with right or wrong. If you want true justice, stay clear of the courthouse.

Bob Sugarman loved the game. He ate it up like a starving man in a sealed off cave; he drank it up like a water-deprived person in the desert. He felt more alive, more at home in a courtroom than he did in the bedroom with his second wife. At least in the courtroom he knew what to expect.

There was no right to a pretrial discovery in the bedroom.

It was the job of the state; city, county, state or federal, to prove the defendant was guilty beyond a reasonable doubt. It was up to defense counsel to do everything in his power to make sure that never happened.

Question the evidence and who was trying to present it. Question motive. Question how the evidence was obtained. Question the trail of money. Question every single fact. Suggest a Plan B, an alternative theory that fits the fact. Maybe it was the wife or girlfriend, maybe the jealous lover or the trusting partner. Or a disgruntled employee. Anybody in the entire God damn world except the party being charged with the crime.

Create doubt. Just a smidgen of doubt. That was all that was necessary.

The DA must prove the accused guilty. The defense attorney doesn’t have to prove a damn thing.

Innocent until proven guilty. That’s what they taught in law school. That’s what it says in the Constitution.

All I have to do is create doubt. Not a whole lot of doubt, just maybe one percent.

It had been close to thirty-some years since he had learned the tricks of the trade. He had learned and learned well. Bob Sugarman was now one of the most sought-after criminal lawyers in Newark. He was good and good does not come cheap.

As Bob well knew, crime does pay, as long as you’re a criminal defense lawyer.

When Lawyer Sugarman first interviewed his prospective client in the holding cell, he quietly and politely informed Mr. Anthony Pauli Ricardo there would be an initial retainer of $45,000. Bob had already figured a three day trial plus pretrial negotiations and at least a day of homework. Ten thousand a day seemed about right.

“Mr. Sugarman, I don’t have forty-five thousand dollars. I don’t even have forty-five hundred. My mother is not a wealthy lady. We don’t have that kind of money.”

“I understand. Perhaps you should take your chances with assigned counsel. A young lawyer who is learning the ropes. I’m sure there are still a few good ones out there. Of course it’s a gamble and the gamble could be seven to ten years. Or if your mother owns her home, I’m sure I could arrange a second mortgage.”

Sugarman already knew from the bail bondsman the house only had a mini-mortgage.

Bob left the jail with something for Anthony to think about. If he was correct, and he usually was, the mortgage company he had in mind would cut a check in the next five days.

Of course there was an additional fee for expedited service. There always was.

CHAPTER 3

What was I thinking? How could I have been so stupid? I had no idea who she was. All I saw was those big brown bedroom eyes, that long silken hair, and that rack that was just waiting to be caressed.

Anthony could not believe she actually meant no. Everyone says no the first time. Then no becomes maybe and maybe turns out to be yes. A great, big, appreciative yes. That’s the way the game is played. He was sure she wanted it. Why else would she come to his room so willingly? It wasn’t even his room. He lived at home with his mother, but one of his buddies had a room he could always use if it were a sure thing. This had to be a sure thing. She was willing to go to the room with him to work on a math assignment on a Friday night. No one was that naïve.

Ms. Bedroom Eyes was wearing an NYU oversize sweatshirt. She could have been wearing a God damn canvas tent and those boobs would have been noticed. She played the role of an innocent virgin right to the hilt, or so he thought.

When she started scratching, biting, crying, and screaming, he realized it wasn’t a game. She really meant no. By then it was too late. Afterwards he was afraid to be seen with her; he refused to drive her back to her car or home or a hospital or anywhere. She probably would have asked him to drive her to the nearest police station so he could turn himself in right there and then.

I’m screwed. I fucked up—big time.

Anthony was not surprised when two days later there was a knock on the front door of his mother’s house. They were in the same math class. It wouldn’t have taken long for her to point out his face at the Bursar’s office. Every student had a photo ID.

He had talked to a few of his buddies the day before. He would swear it was consensual. She came to the room voluntarily, he didn’t force her, yes she played rough, scratching and biting, but he thought that’s the way she liked it.

“Maybe she did say no, but she was so hot she couldn’t stop herself. At least that’s how I remembered it.”

It was not until the trial began did Anthony understand who Victoria’s father was. Forget college, forget law school, and forget living till he was seventy-five years old. He knew he would never be safe in jail. The penitentiary would be full of murder-for-pay convicts. For a couple of packs of cigarettes, his life would be history.

Being convicted of rape was now the least of his worries. Staying alive was at the top of his list. And for what? A roll in the hay with someone who fought him every step of the way. He would have received more satisfaction masturbating.

Why me, why me?

It was the next step in the grieving process.

***

Sugarman had cleared the most important hurdle of the case. He had been paid. The mortgage company had come through—again.

Bob had learned well. Get paid up front or the chances of receiving a fee were slim to none. Suing a client who ended up in jail was compounding the matter, throwing good money after bad. He never forgot; time was money. Wasting time trying to collect an old debt was just plain foolish.

My time could be better spent representing a new client.

Withdrawing from a case due to failure to get paid was also a waste of time. It simply did not happen. And it sent a message to the judge; you’re not as smart as you thought you were.

There were no guarantees a lawyer can make except his best effort. He had received all of the DA’s case. The statement by Victoria Cummings, the report taken by the officer at the station house, copies of the rape kit, and the report of bruising, tearing, and trauma to the victim’s vagina by the attending physician. There was also a collateral statement by the nurse who was there at all times during the examination.

Damn.

Bob looked at the entire file for the second time. He was not surprised. The DA had done a good job. He could see no major flaws in their case. It was all now in front of him in a tightly wrapped bow. All he could do was cross examine and hope it was enough. He too had done his homework and knew Victoria was a frail, frightened young lady. He would use that to whatever advantage he could. He would hammer away at her testimony, her memory—every single thing she said or did to humiliate and embarrass her. It was his job; it was why he was getting the big bucks—to be as miserable a bastard as he could. He hoped it would cause her to crack or forget or make a mistake. One mistake would be enough. If she forgot or lied about one thing, why wouldn’t she lie or forget about something else?

Everything else.

That was how the game was played.

He also knew he would be watched like a circling hawk by Victoria’s father.

He had not yet known about No Neck One and No Neck Two. It would not have changed his strategy one single bit. He had a job to do. He was paid to do it and would to the very best of his ability. No Necks came with the territory.

Bob Sugarman was not easily intimidated. In fact, he was never intimidated.

He still didn’t know who Victoria’s father was and what he was capable of doing. That would come later. For now he had to concentrate on the bail hearing. He knew Judge K, as he privately referred to him, would not be opposed to nominal bail.

Maybe no bail at all.

Anthony was wearing a navy blue suit that was one size too small. He had on a white shirt and a red tie. Sugarman made a note to himself to have Anthony buy a few pair of chinos or tan slacks. He didn’t need a suit or jacket. Image was the key.

Anthony had to look relaxed—and believable.

Mrs. Ricardo was sitting in the front row fingering her well-worn rosary beads. She was wearing a long, shapeless black dress that came to her ankles. She was on the verge of tears.

“Your Honor. Anthony Ricardo is clearly not a flight risk. He lives at home with his saintly mother…” Bob paused, turned around, and looked directly at the slightly saintly Carmela, “…attends Newark Community College, works part time at Costco on the weekends, and hopes one day to attend law school. He has never been in trouble with the law before. He acknowledges he had sex with the complainant in the dorm room of one of his friends. She voluntarily went to the room with him. There was no force, there was no coercion. It is a classic case of ‘he said, she said.’ In matters like this there are never any witnesses. To set bail when the defendant has no assets would mean a presumed innocent man would be thrown in jail with convicted felons. I hate to think what could happen to him there.”

Sugarman was clearly playing on the emotions and past memory of the court. If not illegal, it was definitely unethical.

“We would ask for own recognizance, Your Honor.”

The ADA was not sure how to respond. He didn’t want to appear to be a hard ass but his preliminary investigation showed there was no consent. He didn’t want the defendant to simply walk out on own recognizance but knew the judge had a tendency to be most lenient.

“Your Honor, the state would ask for $25,000 bail.”

Judge K leaned over the bench and stared at the young ADA, who was ordered to argue the bail hearing only. He was far too green to be trial counsel in a felony case such as this.

“Would you want to spend the next three months locked up with the scum of the earth, not knowing who was sleeping next to you, if you were innocent but could not afford bail, Counselor?”

“No, Your Honor.”

“That’s what I thought. The defendant is released on his own recognizance.”

The judge now directed his attention to the frightened boy standing at attention, afraid to even breathe.

“Don’t disappoint me, young man, and listen to whatever your attorney tells you to do. Next case, Bailiff.”

Sugarman tried to hide his smile.

Carmela, no longer able to contain herself, broke out into tears and thanked the now embarrassed judge profusely.

No one gave a crap when my own son requested own recognizance.