At the request of the Department of Justice, however, the board agreed to let Jake’s conviction stand so that the appeals court ruling would mandate he received a new trial. They advised Sloane that Jake had a right to have his case heard by an impartial judge, as did all those juveniles whose cases would be reheard. Sloane declined. In fact, he specifically asked that the matter remain assigned to Judge Earl Boykin. The review board, though confused by the Justice Department’s mandate that Earl Boykin remain on the bench, and by Sloane’s request that Jake’s retrial remain assigned to him, had granted the request.
Most judges would have smelled a trap. Most would have recused themselves and put as much space between themselves and Sloane as possible. Most in Judge Boykin’s position, with his attorneys seemingly in heated discussions to negotiate an immunity agreement with the Department of Justice, would have stepped aside, acknowledged they had dodged a bullet, retired, and moved on, grateful not to be spending their glory years in a federal penitentiary. But Judge Earl was not most judges. When the Justice Department dangled the carrot that he would not only receive immunity but also remain on the bench, his family legacy intact and preserved, he could not resist the temptation, and now his ego would not allow him to walk away from what he considered a direct challenge to his authority. He had already justified his actions to himself, as unbelievable as that seemed. Men like Boykin could rationalize just about anything. In his mind he still had a score to settle with David Sloane, the attorney who does not lose, and he was not about to allow that opportunity to pass.
The first thing Sloane did was file a motion to have Jake’s confession thrown out. Boykin took that bait as well, denying the motion and holding that the State had the right to prove in the retrial that Jake had admitted his guilt, ruling that it went to Jake’s credibility now that he had recanted his in-court confession.
The die cast and the stage set, Sloane and Archibald Pike stood and stated their names for the record. Pike looked nervous and drawn, dark bags beneath his eyes, gaunt through the cheeks, a man who had not slept or eaten much. Pike was not like Boykin. He likely would have preferred to have been anywhere but in court that morning, standing opposite Sloane, but his fate was dictated by others. His sickly appearance also could have been attributable to nerves. This morning Pike was not playing to an empty house and reading from a well-rehearsed script. This morning the gallery was full, every seat taken front to back with overflow spectators seated in the jury box and standing along the back wall. And there was no script. This was live theater. Anything could happen, and Sloane suspected from the buzz of the audience that they felt the same.
Tom Molia sat in the front row behind Sloane, T.J. and Maggie beside him. T.J. had wanted to be present for Jake and Maggie said she wasn’t about to take any chances leaving the two of them alone again. Dave Bennett was in the gallery, along with Frank Carter and Tamara Rizek, the reporter who had met with Sloane and Molia at the Shanghai Ale House. The news of the arrest of Victor Dillon and of his marijuana ring had initially drawn the attention of hundreds of reporters and media outlets. They had descended on Winchester County and Truluck in a horde. Their nightly reports had been splashed all over the world news. This morning, two weeks after the bust, only half a dozen of those reporters remained, either curious or talented enough to smell something more was about to happen. They, too, sat in the gallery, along with Winchester County’s citizens.
Boykin nodded to Pike’s side of the table. “Mr. Pike, the State may proceed.”
Pike called the owner of the general store first, and the tall, lean man loped to the stand, raised his right hand, and swore to tell the truth, the whole truth, and nothing but the truth. Pike ran him through the preliminaries before getting to the meat of his testimony, establishing that Jake had attempted to buy beer and cigarettes and had produced a fake ID. The man testified that he confiscated it, which led to a confrontation. When Pike sat, Sloane stood and approached.
“Did you suspect the defendant to be underage?” he asked.
“I did.”
“How old did you suspect him to be?”
“I don’t know. Sixteen or seventeen.”
“Did you question his age before you asked for his ID?”
“I believe I did.”
“And what did he say?”
“He said he was twenty-one.”
“So he lied.”
“You bet.”
“He didn’t confess to being underage, did he?”
“No, he did not. He lied to my face.”
Sloane thanked the store owner and excused him.
Pike followed with one of the arresting officers. He again led the man through each step up to his arriving at the general store and eventually arresting Jake and T.J. in the foothills above Truluck. He said they were both intoxicated and in possession of a loaded firearm. Again, Sloane’s cross was brief.
“You took the defendant into custody?”
The officer confirmed he had.
“Did he confess to you, blurt out that he was guilty of breaking into the store, stealing the alcohol and the gun?”
“No, he did not.”
Sloane dismissed the man, hoping his strategy was becoming clear to both Pike and Boykin.
Pike stood. “Your Honor, the State would like to move on to proving that Mr. Carter confessed to his crimes.”
Boykin nodded. “Proceed.”
With that Pike called Melissa Valdez. The clerk entered the courtroom in a simple blue dress. As expected, she testified exactly to what Pike said, that Jake confessed and waived counsel.
Sloane dismissed her without asking a question.
The final witness for the State was the clerk of the court, Evelyn Newcomber. She entered in a black and white knit sweater and black skirt. This morning her fingernails and necklace were red. Pike again walked her through the preliminaries, looking and sounding more confident. Then he asked her to explain the procedure employed when her office received a recording of a court hearing. At this point Newcomber began to look uncomfortable.
“We put a copy of the disc in the file,” she said.
“Did you place a copy of the disc used to record the hearing on June twentieth, two thousand and twelve, involving the defendant Jake Andrew Carter in his file.
“Yes, I did,” she said.
“Now, sometime later, was your office directed to transcribe that hearing?”
Newcomber kept her focus on the right side of the courtroom, away from Sloane and Jake. “We were.”
“Would you explain those circumstances?”
“We received a motion from Mr. Sloane asking that the hearing be transcribed. Later that day Judge Boykin granted the motion.”
“And did your office transcribe the audio recording of that hearing?”
“We did not.”
“Why not?”
“When I went to the file I found the disc was blank. I don’t know how it happened, if it was erased accidentally, or perhaps never recorded, which can happen.” The last sentence sounded rushed, and Newcomber grimaced, as if she’d like to snatch back her words.
“So there is no record of the hearing that morning?”
“There is not.”
Pike thanked her and turned to Sloane. “Your witness, Counselor.”
Sloane stood. “Ms. Newcomber, you said that a recording can, from time to time, not be recorded. Would that be due to human error?”
“I suppose it could be.”
“Maybe a technical glitch of some sort as well?”
Pike stood. “He’s asking this witness to speculate.”
Boykin sustained the objection.
“How long have you been the clerk here at Winchester County Superior Court, Ms. Newcomber?”
“Fourteen years.”
“And during that time, have you ever had a proceeding meant to be recorded not be recorded, for any reason that you’re aware of?”
Sloane didn’t like to ask questions to which he did not know the answer, but he didn’t care too much what Newcomber’s answer would be. He just wanted to make her even more cautious in how she answered his questions, knowing that he would pounce on any misstep, overstatement, or outright lie. The fact that Newcomber didn’t immediately respond seemed to indicate his strategy was working.
“No,” she said finally.
“So we can say that this is not a usual occurrence here in Winchester County Superior Court, is it?”
“No, it isn’t.”
“In fact, it is unheard of, isn’t it?”
“Yes, I suppose you could say that as well.”
“Were you concerned that a hearing was not recorded?”
“As I said, I don’t know if it was not recorded or if it was recorded and somehow got erased.”
“Let’s assume it was not recorded; would that concern you?”
“Yes it would.”
“One of the functions of the clerk’s office is to be the custodian of the court record, is it not?”
“It is.”
“And you are in charge of that office; the buck stops with you, so to speak.”
“I suppose it does, yes.”
“You take responsibility.”
A pause. “Yes.”
“You certainly wouldn’t want this to happen again, would you?”
“No.”
“I’m sorry, Ms. Newcomber. I’m having trouble hearing your answers. Could you perhaps lean forward and speak into the microphone?” There was nothing wrong with Sloane’s hearing.
Newcomber shifted in her seat and leaned closer to the microphone. “I said, ‘No.’”
“But as concerned as you were you never sought to determine what actually happened?”
She blanched. “No.”
Sloane walked back to counsel table and picked up his notes, letting her answer, and its implications, linger. He carried the papers with him to the witness stand and flipped through them, as if searching for something. “And what if the alternative had been true? What if the lack of a record was not because the hearing was not recorded; what if it had been recorded and subsequently erased? Would that alarm you?”
“Of course.”
“Because that would indicate someone had tampered with an official court record, wouldn’t it?”
Pike was on his feet to object that the question called for speculation, but not before Newcomber answered.
“Well, no, not necessarily.”
“Really? Can you explain that to me?”
Pike remained standing, now uncertain whether to object or not. “Well, it might have been a mistake. Someone, someone might have erased it by mistake,” she stammered.
Sloane nodded, as if understanding. He turned to look at Pike. “And a mistake would be an accident, as opposed to a premeditated and deliberate act. Is that what you’re saying?”
“Yes.”
“So which was it in this instance—a mistake or a premeditated act?”
This time, Pike got his objection in. “Speculation.”
Boykin agreed. “Sustained.”
“You don’t know?” Sloane asked.
“I don’t know,” Newcomber agreed. Pike sat.
“Because you never investigated it.”
She did not answer.
“Or because you already knew this was no accident?”
Pike shot from his chair. “Objection, Your Honor.” He fumbled a bit. “No foundation. This witness has testified she did not investigate the incident. Therefore she can’t possibly know if the erasure was by accident or an intentional act.”
“Sustained,” Boykin said. “Your question is bordering on harassing the witness, Counselor.”
“My apologies, Your Honor. Let me try to lay a foundation. Ms. Newcomber, do you have personal knowledge whether the disc recording the proceeding on June twentieth was erased by accident or by a deliberate act?”
Pike had remained standing. “Your Honor, it’s the same question. Same objection.”
Before Boykin could respond Sloane spoke. “I beg to differ. It is not the same question. I’m asking this witness, sworn by oath to tell the truth, whether she knows, without having undertaken an investigation, if the disc was erased accidentally or intentionally.”
Newcomber reached for the glass of water on a table to the side of the witness chair. Her hands trembled as she sipped. Sloane waited. So, too, did Pike. The rest of the courtroom, as well as Boykin, leaned a little farther forward in their seats.
Newcomber appeared to swallow with difficulty.
Boykin stepped in, as Sloane knew he would. “I think it’s the same question and I’ll instruct the witness that she need not answer it.”
Pike rested the State’s case. He looked tired but relieved. The State’s case had gone in relatively smoothly. It looked, for all intents and purposes, like Jake would be convicted. They broke for lunch and returned at one thirty, Judge Boykin advising he needed an extra half an hour to attend to a personal matter. Sloane suspected he was talking to his attorneys, trying to ascertain what type of deal the Justice Department had offered.
When they resumed, Sloane stood. “Your Honor, the defense calls Ms. Eileen Harper.”
Sloane had to provide Pike and Boykin with a list identifying each witness he intended to call in his case in chief. Harper’s name was on that list, so his calling her did not come as a surprise, though what she might testify about surely intrigued them. Harper took the stand in a navy blue skirt and jacket and white blouse, swore to tell the truth, and spelled her name for the record.
“Where do you work?” Sloane asked.
“I work in the Winchester County Superior Court clerk’s office.”
“What do you do as a clerk of the court?”
“We manage the court’s files, accept pleadings, file them, make sure they are kept in the proper files, and provide copies to the Judge’s chambers.”
“And that would include juvenile proceedings?”
“It would,” she said.
“Is every juvenile proceeding recorded?”
“It’s supposed to be.” Harper explained the system the court employed to record each proceeding.
“So normal procedure would have been that the proceeding involving my client would have been recorded?”
“Yes.”
“And you would have put a disc of that recording in his file.”
“Yes.”
“Did you put a disc in his file?”
“Yes.” The answer caught the room off guard, though not Sloane, who had purposely decided not to cross-examine Newcomber on this fact so as not to give her a chance to correct herself.