The Color of Law (8 page)

So when he finished his steak, he pushed his plate aside and said: “Scotty, I appreciate the lunch, man. It’s been fun, catching up and all. But I know you didn’t invite me up here just to catch up, not after all these years. What’s up?”

Scotty glanced around, leaned in, and in a lowered voice said, “Buford appointed me to represent the hooker who murdered Clark McCall.”

Bobby almost spit out his iced tea. “You’re shittin’ me.”

“Nope.”

Bobby Herrin might not be the brightest bulb in the box, but it didn’t take him long to figure out this game: Scotty Fenney was giving him another hand-me-down.

“You want to hire her out?”

Scotty nodded. “Here’s the deal. I met with the defendant this morning, Shawanda Jones, black girl, hooker, heroin addict—Christ, she damn near puked on my suit! Says she didn’t kill him, but that’s bullshit—her gun was the murder weapon. Says McCall picked her up on Harry Hines, offered her a thousand bucks for the night, took her home, started slapping her around, cursing her and”—his voice was a whisper now—“using the N-word.” Back to his normal voice. “Anyway, they fought, she kicked him in the balls, took the money he owed her and his car keys, drove herself back to Harry Hines, and left the car. Police got her prints off the gun—she’s got prior prostitution charges—and arrested her the next day. She refuses to plead out, wants a trial. Bobby, Ford Stevens can’t represent a hooker!”

Bobby nodded. “Okay.”

“Okay what?”

“I’ll take her. What’s the pay?”

“Fifty an hour?”

“Plus expenses.”

“Like what?”

“Investigator, forensic experts, DNA tests…”

“Okay, but don’t go overboard.”

“Yeah, what the hell, she’s just a nigger.”

“I didn’t say that, Bobby.”

“Sorry. Cheap shot. You got a detention hearing?”

“Tomorrow morning, nine.”

“I’ll be there.”

They stood. Bobby pulled out his parking ticket.

“They validate?”

The athletic club was located on the top floor of the building adjacent to Dibrell Tower, connected by an air-conditioned skywalk so Scott Fenney didn’t have to sweat on the way to his daily workout. Most of the office buildings in downtown Dallas were connected by skywalks or underground tunnels, air-conditioned passageways so the lawyers and bankers and businessmen didn’t have to venture out into the heat or among the vagrants and panhandlers who called the downtown streets home; it was a prudent practice, particularly after a homeless man jumped a cop a few years back, grabbed his gun, and shot him point-blank in the face, right across the street from the downtown McDonald’s.

Scott had just traversed one such skywalk. It was now half past five and he was looking down on Dallas while running at 7.5 miles per hour up a ten-degree incline on a commercial treadmill and feeling pretty damn special. Which was not a new feeling for him. Scott Fenney had been special all his life. His father, Butch, had told him so when he was only eight, when he first put on pads and discovered his talent in peewee football. “You’ve got a gift, Scotty,” Butch had said. Later his mother said the same thing: “You’ve got a gift, but I don’t mean football,” she said. He never understood what she meant, and then she died.

But the notion took hold and grew inside him, nurtured by eight years of high school and college football heroics; the fans, students, cheerleaders, boosters, coaches, and reporters all assured him daily that Scott Fenney was indeed special. It became a part of him, like the blue of his eyes. And it had never left him; it had only grown stronger, through three years at SMU law school and eleven years at Ford Stevens. But now, instead of athletic ability, it was money that made Scott Fenney special. Money enough to buy a mansion, a Ferrari, a perfect life—and even an old friend.

For the first time in the twenty-four hours since the judge’s call, Scott’s mind was clear, his spirits high, and his eyes locked on the backside of the girl running on the treadmill in front of him, her amazing buns barely shimmying as they pumped up and down like pistons. Scott pulled his eyes off her firm butt and glanced at the mirror to his right; he caught the girl on the treadmill behind him checking out his firm butt. Their eyes met and she winked, and that intoxicating feeling of male virility formed in his brain, coursed through his nerves and veins like a narcotic, and energized his muscles. He increased the speed to ten miles per hour. He loved being special.

When Scott walked into her bedroom that night, Boo was already in her pajamas and in bed, propped up on pillows against the headboard. Her hands were folded in her lap, her hair brushed smooth, and her face scrubbed pink. She smelled like fresh strawberries. She had positioned a chair next to the bed, as she did each night before bedtime, with the current book Scott was reading to her in the seat. Scott picked up the book and sat down, rubbed his eyes, and replaced his glasses.

“Where were we?” he asked.

“Number six,” Boo said.

Scott opened the book and turned to the Sixth Amendment to the Constitution. Boo’s teacher had mentioned the Bill of Rights in class one day, so naturally Boo wanted to know everything about these special rights she never knew she had.

So he read: “‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.’” He looked up. “What do you think that means?”

“The cops can’t lock you up and throw away the key.”

“That’s right. And your trial can’t be held in secret.”

“So if your prostitute doesn’t cop a plea, anyone can go to her trial.”

“Yes. And she won’t.”

“Won’t what?”

“Cop a plea.”

Boo leaned forward, her eyes wide. “You talked to her?”

“This morning, at the jail.”

“What’s she like?”

Scott shrugged. “Young, not very well educated, strung out, says she’s innocent.”

“Do you think she is?”

Scott shook his head. “No. Her gun was the murder weapon and her fingerprints were on the gun.”

“She had a gun?”

“Yeah.”

“
Shit
…I mean,
wow
.”

She leaned back, thinking, so he read again: “‘By an impartial jury.’ You know what ‘impartial’ means?”

She shook her head. “Uh-uh.”

“It means jurors who are fair, not prejudiced against the defendant. ‘Prejudiced’ means hating people just because they’re different.”

She nodded. “We talked about that at school last year during Kwanzaa. So if someone hates black people, they can’t be on your prostitute’s jury.”

“That’s right.”

“How do you make sure?”

“You get to ask potential jurors questions before they become jurors.”

“Like what?”

“Well, in the prostitute’s case, you’d ask whether they’re prejudiced against black people or prostitutes or drug addicts.”

“But they’ll just say no.”

“Well, you don’t ask it straight out; you ask subtle questions, like, uh, have they ever been to a black person’s home? And you watch their body language, say a white guy is sitting next to a black guy, does he lean away.”

“Have you?”

“Have I what?”

“Ever been to a black person’s home?”

“Uh, no.”

“But you’re not prejudiced, are you?”

“No, Boo, of course not. I used to have black friends, guys I played ball with at SMU.”

“Like who?”

“Well, like Rasheed…and Leroy…and Big Charlie—”

She smiled. “Who’s Big Charlie?”

Now Scott was smiling. “Charles Jackson. He was my right offensive guard. He blocked for me. He saved me many times on the field…and a few times off the field.”

“Y’all were good friends?”

Scott nodded. “Yeah. He was a great guy.”

“Is he dead?”

“No…I don’t think so.”

“Why aren’t y’all friends anymore?”

Scott shrugged. “He went off to play pro ball. I went to law school. We lost touch.”

She nodded. “So the only reason you don’t have black clients is because you don’t represent people, only corporations.”

“Exactly.”

She pointed at the book. “What’s next?”

Scott read again: “‘To be informed of the nature and cause of the accusation,’ which means to be told the crime you’re charged with.”

“Murder, that’s the crime your prostitute is charged with.”

“Yes.” Reading again: “‘To be confronted with the witnesses against him.’ That means the prosecution must put the witnesses on the stand in court to testify against the defendant. ‘To have compulsory process for obtaining witnesses in his favor.’ That means you can call witnesses to help you.”

“Your prostitute can get people to say she didn’t do it.”

“Right. If she can find anyone. And to have the assistance of counsel for his defense.’”

“What’s counsel?”

“A lawyer.”

“Your prostitute has a right to a lawyer?”

“Yes, she does.”

“Even if she can’t pay you?”

“Yes.”

“Why?”

“Why what?”

“Why does she get you for free when everyone else has to pay you three hundred and fifty dollars an hour?”

“Well, George Washington and the other Founding Fathers…you know about them?” She nodded. “Well, they didn’t think it would be fair for the government to charge someone with a crime but not give him a lawyer to defend him.”

“Because he might be innocent and if he didn’t have a lawyer to prove he’s innocent, he might still go to jail.”

“Exactly…well, the lawyer doesn’t have to prove him innocent, the government’s got to prove him guilty. And that’s the lawyer’s job, Boo, to make the government prove the defendant’s guilt beyond any reasonable doubt.”

“So the government proved your prostitute is guilty?”

“Not yet. And she’s not
my
prostitute, Boo. She’s my client.”

“But you wanted her to cop a plea, say she’s guilty.”

“Yes, to confess that she did it.”

“So the government wouldn’t have to prove she’s guilty.”

“Right.”

“Then why does she need you?”

Scott chuckled. “Well, I’m supposed to, uh…I mean, the court appoints a lawyer so she, uh…Well, the Bill of Rights says she has a right to a lawyer even if she’s guilty and decides to confess. To make sure the rules are followed.”

“And the judge appointed you to make sure the rules are followed for her?”

“Yes, but she doesn’t want to confess. She wants to go to trial, so I hired her out.”

She frowned. “Explain.”

“I hired an old law school buddy to take her case to trial.”

“Why?”

“Because I’m too busy.”

“You’re too busy to make the government prove she’s guilty?”

“Yes. So I’m paying a friend to do it for me.”

“Like if I hired a friend to do my homework?”

“Exactly…well, no, not exactly. You’ve got to do your own homework, Boo.”

“Why?”

“Because that would be cheating.”

“But it’s not cheating if you’re a lawyer?”

“Yes…well, no. I mean…it’s complicated, Boo.”

She pointed at the book. “Does that Sixth Amendment have one of those things, what did you call it, a pro…prov…”

“Proviso?”

“Yeah, a proviso.”

“What do you mean?”

“A proviso that if the lawyer’s real busy, you don’t have a right to a lawyer?”

“No. But you don’t have the right to a particular lawyer, just a lawyer.”

“Any lawyer?”

“Yeah.”

“Even a bad lawyer?”

Scott shrugged. “Yeah.”

“Is your friend a good lawyer or a bad lawyer?”

“Well…I don’t really know.”

“Is he as good as you?”

Scott smiled. “No.”

“So the judge appointed you as her lawyer and you’re a great lawyer, but now she’s going to get stuck with your friend, who’s not so great?”

“Well, yeah. Not everyone can have me as their lawyer.”

“Only corporations that can pay you three hundred and fifty dollars an hour.”

“Exactly.”

She sighed. “That doesn’t seem like such a great deal.”

“What?”

“That right to a lousy lawyer.”

EIGHT

T
HE NEXT MORNING,
Scott was back at the federal building at a quarter till nine, anxious to punt Shawanda Jones to Bobby Herrin and get back to his perfect life. Outside, he was mobbed by TV cameras and reporters sticking microphones in his face and shouting questions. He pushed his way through with several “No comments” and entered the courthouse. He rode the elevator to the fifteenth floor where he found Bobby standing outside Judge Buford’s courtroom, wearing the same awful suit and smelling of cigarette smoke. They entered through tall double doors and took a seat in the church pews with the other lawyers awaiting their clients’ hearings, arraignments, and sentencings.

For the last three decades, Judge Samuel Buford had presided over this courtroom. And looking at the waiting defendants, the drug dealers up on federal charges, black and brown and nervous, and the white-collar criminals, white and well-groomed and indignant that tax dollars were being wasted prosecuting them for securities and tax fraud—all wondering if they would be going home on probation or to the federal penitentiary for five to ten—Scott couldn’t help but consider all the lives that had been changed in this one courtroom by this one judge. For raw power, it was hard to beat the law.

The bailiff called the first case on the docket:
“United States of America versus Shawanda Jones.”

Scott put on his glasses—he always wore his glasses to court—and he and Bobby stood and stepped past the bar and to the defendant’s table. A preppy lawyer, midthirties, walked over to them.

“Bobby, what, you moving up to the big leagues?” the lawyer said. His smirk indicated that it was a smart-ass comment, not a compliment. “I didn’t know you were on this case.”

“Just trying to help an innocent citizen being railroaded by an overzealous government prosecutor, Ray,” Bobby said in a deadpan voice.

Ray chuckled and said, “Yeah, right,” then extended his hand to Scott. “Ray Burns, Assistant U.S. Attorney.”

Scott shook hands with Burns and said, “Scott Fenney, Ford Stevens.”

“I heard Buford tapped private counsel for this case,” Burns said. He turned his palms up and glanced from Scott to Bobby and back. “So, what, you bailing on the defendant?”

“No, I’m not bailing. I’m trying to do the right thing, hiring her a real criminal defense attorney.”

“The right thing?”
Burns said with the same smirk, clearly his trademark expression. “Looks an awful lot like bailing to me.”

Ray Burns, Assistant U.S. Asshole, returned to the prosecution table, his right shoulder riding low under the weight of the king-sized chip he was carrying around. Government lawyers always have chips on their shoulders when dealing with big-firm lawyers like Scott because the big firms didn’t hire them out of law school: if you can, you do; if you can’t, you teach; if you can’t teach, you hire on with Uncle Sam.

Bobby leaned in and whispered, “Burns is a dick. Trying to build a conviction record so he can move up to D.C. Asshole’s put a couple of my clients away for life, for possession. Course he called it ‘intent to distribute.’”

A side door opened and a strange black woman appeared in a white jail uniform. Scott stared at the woman for several seconds before realizing that she was Shawanda. She had looked awful yesterday; today she looked like she was dying. The same black guard escorted her into the courtroom, his arm under hers, almost carrying her over to Scott. By the time she arrived, her face was a brown frown.

“Morning, Shawanda.”

Her entire body was trembling, shaking, twitching. Scott almost reached out and embraced her, to warm her like he did Boo when she got a chill after getting out of the pool, but at the last second the thought of his client throwing up on his expensive suit dissuaded him. He eased a step away from her.

“Who’s him, Mr. Fenney?” she said in a weak voice, gesturing at Bobby.

“Bobby Herrin, your lawyer.”

“Thought you my lawyer?”

“Shawanda, I represent corporations, not criminals…I mean, people charged with crimes. I hired you a real criminal defense attorney.”

“All rise!”

The bailiff’s voice boomed out and everyone in the courtroom stood as Judge Samuel Buford entered from a door behind the bench. He was the very image of a federal judge: the white hair, the patrician face, the black reading glasses, and the black robe. He sat behind the bench, which was elevated, as if to emphasize the supreme power of the law. To look him in the eye Scott had to angle his head up about twenty degrees.

“Be seated,” the judge said. He shuffled through papers on his desk and glanced up over his glasses, first at Ray Burns, then at Scott and Shawanda and Bobby. Finally he said, “
United States of America versus Shawanda Jones
. Detention hearing.”

He looked at Shawanda again.

“Ms. Jones, are you okay?”

He was a father asking his young daughter if she was hurt after falling off her bicycle. Shawanda nodded and the judge then turned to the lawyers.

“Gentlemen, please make your appearances.”

Burns said, “Ray Burns, Assistant U.S. Attorney, for the government.”

Then Scott said, “A. Scott Fenney, Ford Stevens, for the defendant. If I may, Your Honor, my firm has retained Robert Herrin, Esquire, to assume representation of the defendant. Mr. Herrin is a well-respected criminal defense attorney in Dallas. He possesses much more experience than I in criminal matters and will be able to provide the defendant a more competent defense. With the court’s permission, I ask to withdraw from representation of the defendant and for Mr. Herrin to be substituted in my place.”

The judge was eyeing Scott over his reading glasses; a wry smile crossed his face.

“Didn’t really want to be another Atticus Finch after all, huh, Mr. Fenney?”

Scott knew better than to respond. The judge’s smile dissolved into a look of disappointment that, for some odd reason, bothered Scott. The judge sighed and dropped his eyes. He started writing on what Scott knew was the case docket, officially substituting Robert Herrin, Esq., as counsel for the defendant in place of A. Scott Fenney, Esq. Scott felt like a kid about to get out of detention hall.

The judge said, “Well, since it’s okay with Ms. Jones…”

Shawanda Jones rubbed her face but her skin felt numb. She hadn’t slept in forty-eight hours; the cravings kept her awake all day and all night. She had never been without heroin for this long since she had gotten hooked, and it was killing her. Her mind was fuzzy and she couldn’t get her thoughts straight. She had a blinding headache that wouldn’t quit. She ached all over. Every muscle and bone in her body was throbbing with pain, and her skin was covered with goose bumps from the chills that swept over her regularly.

Her eyes were dry and gritty as she raised them to the white man standing to her right, this Robert Herrin Esquire. He was short, had a belly on him, and must have had bad acne as a boy because his face was pockmarked. His brown hair clearly hadn’t been washed that morning. He was wearing the cheapest suit she had ever seen on a white lawyer—the damn thing
shined
under the fluorescent lights! His white shirt had yellowed a shade and its button-down collar was missing one of its buttons. His tie screamed
Sale at JCPenney!
No doubt, she made more money hooking than he did lawyering.

She turned to the white man to her left, Mr. Fenney. Tall and blond and handsome, wearing a dark pin-striped suit that hung like a silk dress over his broad shoulders, a crisp white shirt with French cuffs, a maroon silk tie, and the overall appearance of a white-boy version of the baddest pimp in the projects, he had a look that said,
I’m a stud
.

A stud or a dud?

Shawanda was twenty-four years old. She had dropped out of school at age fifteen when she got pregnant. She had only nine years of formal education. But she wasn’t stupid. And her prior experiences with the American legal system had taught her an important lesson, one she wasn’t ever going to forget: rich lawyer means good lawyer; poor lawyer means bad lawyer. She looked up at the judge and said, “It ain’t okay!”

Scott’s heart froze as the words from the black woman standing next to him hit his brain. The judge’s head shot up. His eyes locked on Shawanda Jones. Scott turned and stared down at her, stifling the urge to strangle this client who refused to go away quietly.

“What?”
the judge asked.

“It ain’t okay with me,” Shawanda said. She pointed a trembling black finger at Scott. “Judge, I’m innocent and I want Mr. Fenney be my lawyer.”

The judge yanked his reading glasses off his face and cocked his head at Scott.

“Mr. Fenney, did you not discuss this with your client prior to asking this court to substitute counsel?”

Scott cleared his throat. “Uh, no, sir.”

“Well, maybe you should have.” The judge returned to Shawanda. “Why?”

“Why what?”

“Why do you want Mr. Fenney as your lawyer?”

“Judge, I believe in him. I feel confidence in him. I know he can prove me innocent.”

The judge again turned to Scott.

“Mr. Fenney, it’s the defendant’s right to counsel, so it’s her decision.”

“Your Honor, may I have a moment with Ms. Jones?”

The judge gave him a brief wave of the hand.

Scott stepped between Shawanda and the judge, leaned down to her, and whispered through clenched teeth: “Look, goddamnit, my firm is hiring a lawyer for you. I’ve got better things to do than take you to trial. I’m not gonna be your lawyer. Now you tell the judge it’s okay for Bobby to represent you.”

Scott straightened up and faced the judge. The judge held his hands up.

“Well, Ms. Jones?”

Shawanda again turned to Robert Herrin—
Dud!
—then to A. Scott Fenney—
Stud!
She pointed at Mr. Fenney and said, “I want him.”

“Jesus H. Christ!” Dan Ford was upset now. “A goddamn hooker holding this firm hostage!”

Scott had just come from the courthouse with the bad news. “Can we appeal the appointment?” Scott asked.

“Hell, no! Even if we could, we wouldn’t. That’d piss off Buford big-time. We would never be able to set foot in his court again.”

“What am I supposed to do?”

Dan stared at his protégé, the finest young lawyer he’d come across in thirty-five years. The boy was a natural: smart, shrewd, articulate, and possessed of the intestinal fortitude to bill a client until he cried uncle. He looked upon Scott as his son.

“Keep Herrin on the case, let him do all the heavy lifting, write all briefs and motions, make all pretrial appearances—that’ll keep the firm’s name out of the papers and off TV. And no goddamn interviews, make sure Herrin knows that! You”—a finger pointed at Scott—“you work for our paying clients.”

Dan checked his watch and walked over to the coatrack. “Keep me posted. I don’t want any surprises, Scott.”

Scott departed, and Dan slipped into his coat; he was wearing a black suit today. He had to go to a funeral.