Troubled Waters (35 page)

I stepped up to the appellant's table and laid out my file, taking my time. I owned the courthouse. I, not the men and women on the high bench, set the pace. I stepped to the podium, adjusted the microphone to my height, and said the opening words I'd rehearsed a hundred times. My voice sounded too loud in my ears; I wasn't used to a microphone. I backed up an inch and continued telling the court why I was here, why the conviction of Keith Jernigan had to be reversed.

Madigan and Rizzo looked bored. Bored is not good in a judge. Neither is impatience, which was what emanated like a malevolent aura from Hochheiser and Lieberman. Only Doolan gave me the minimal attention basic politeness called for.

I raised my chin and looked straight into his twinkly blue eyes. The eyes of an Irish charmer. The eyes of a loving uncle. The eyes of a man who hated me and my client and everyone on the planet like us. If I managed to get him on our side, I'd win. If I didn't—well, there were still four others to work on. But it didn't hurt to go for the hardest nut first.

“Your Honor, my client was wrongly convicted of robbery in the first degree because the identification procedure to which he was subjected was fatally flawed.”

Presiding Justice Aaron Lieberman woke from what had seemed a trance and leaned into his microphone. “We
can
read, Counselor. Please don't quote your own brief.”

Blood rushed to my face. Did Lieberman think I was talking like that because I wanted to? I figured that was the way you were supposed to address the appellate court. You were supposed to sound formal and stiff and bloodless.

Well, hell, if he wanted me to be myself—

“Keith Jernigan served two years and five months in prison for something he didn't do.” I stopped and raked the bench with my eyes.

“Yes, a jury found him guilty,” I went on, answering what I'd expected would be the first objection. “And, yes, three witnesses identified a photograph and then picked him out of a lineup. But the photo array was completely tainted by the arresting officer's showing the photographs to the witnesses at the same time, instead of separately. He should have—”

“Counselor,” Justice Hochheiser cut in, his old man's voice a weak instrument, “even if the photo array was less fair than it should have been, didn't the subsequent lineup serve to purge the taint?”

Judges get to interrupt. That's one of the basic rules of appellate argument. The lawyer is there to answer questions. In fact, to be a successful advocate, you have to love the questions. You have to embrace them as an opportunity, not view them as an interruption.

So I embraced the question. “Far from it, Your Honor,” I replied. “In fact, one of the witnesses actually admitted on the stand that he picked my client out of the lineup not because he actually recalled him from the incident, but because he'd seen my client's photograph.”

I tapped my forefinger on the podium for emphasis and the microphone magnified the sound so that it resembled a galloping horse on an old radio show. I clasped my hands behind my back to keep them from touching anything else, and plowed ahead.

“This is what happened with all the witnesses, Your Honor. They picked Keith Jernigan out of the lineup because he was the only one whose face they were familiar with, and they were familiar with it because his was the only photo Officer Bentley showed them.”

“Counselor, are you accusing this officer of framing your client?”

Deep breath time. Because the appellate judges weren't there to make new findings of fact, and this question was designed to pull me into a discussion of fact instead of law. If I let them do that, they had the perfect out as far as reversing Keith's conviction was concerned: the jury heard the facts, the jury decided the case, and they weren't going to interfere with that.

“No, Your Honor,” I said. “I am not speculating as to how the photo ended up being shown to the witnesses. All I'm saying is that the showing tainted identification procedures and resulted in my client's conviction for a crime he did not commit.”

There were two little button-lights on the podium. The first one, the white light, went on at the two-minute warning mark. I'd missed that light completely; now the red one lit up. It was over. My time was up. I'd said everything I'd be allowed to say.

I hoped to God it would be enough.

I sat down, my knees shaking and my body bathed in sweat. I felt as if I'd run five miles and then been doused with a bucketful of ice-cold water.

Water. I picked up the pitcher and poured some into the paper cup on the table. My hand shook; the water spilled on the shiny surface. I was only half-listening to the D.A.'s argument. I felt faint; if I didn't get some water, I might fold up.

I lifted the cup. Some joker had punched holes in the bottom with a pencil. Water streamed out of the holes as if from a fountain, splashing on my skirt. I put it down and smiled weakly at the bench.

I had violated the first rule of appellate argument; I'd tried to drink the water.

CHAPTER TWO

I was wet from head to toe, wearing a shroud of clammy sweat and water from the leaky glass.

Why call it a glass when it was made of waxed cardboard?

And why think about cardboard glasses when the district attorney was trying to convince the judges to let Keith rot in jail?

Mainly because there was nothing I could do about it. I had no right to rebut the D.A.'s argument, and I knew what he was saying based on the brief he'd submitted. According to him, the identification procedure was perfectly fine, and even if it wasn't, no defendant was entitled to a perfect trial, just a fair one.

I tuned in to the fact that Lieberman was hammering the guy, hitting him hard on the issue of the single photograph.

Hope leapt in my breast. Was there a chance I hadn't blown it with what I was sure the judges would see as an emotional rather than a legal argument?

When it was over, the D.A. picked up his file and I followed suit, making my way on wobbly legs down the long aisle to the doors in the rear of the courtroom. I felt wired to the gills and exhausted at the same time; I had a quick fantasy of going into the men's club lawyers' room and sacking out on one of the red leather couches.

Outside, the long low light of late afternoon filtered through the autumn leaves, creating a scene any painter would have loved. The Gothic church across the street added a sinister note, an Edgar Allan Poe heaviness to the Brooklyn Heights street scene. The cold wind went through my light jacket; my sweat-soaked clothes felt like an icy blanket as I walked the mile or so to the brownstone that contained my office and my home.

A yellow cab pulled up in front of the building just as I reached the corner Nellis Cartwright stepped out and paid the driver. She started up the stairs, but stopped and waved when she saw me.

She was a new divorcée, subletting the apartment above mine. Dorinda's restaurant, the Morning Glory, occupied the ground floor, my office spanned the parlor floor, I lived on the third, and rented out the fourth. My prime tenant, Jerry Laboda, who taught at Brooklyn Law School, was doing a stint as a visiting professor in Indiana. So for the balance of the term, he'd sublet to this woman, who'd moved in three weeks earlier.

“Cass,” she said, drawing out the name as if to add warmth to the single syllable. She was tall and slender with short platinum hair cut in an asymmetric style that only a truly beautiful face could carry off. I felt unusually clumsy and drab whenever I caught a glimpse of her.

“Can I buy you a cup of coffee?” She even stood like a model, leaning on one hip with the other leg thrust forward in a stance that should have looked artificial but somehow worked for her. She was a moving sculpture instead of a flesh-and-blood woman, and the long, smoke-gray Donna Karan dress emphasized her angles.

“Can you ever,” I replied. “I have never in my life stood more in need of the healing brew than I do at this moment.” I pushed sopping wet hair off my brow and tried not to feel envious of her impeccable grooming; I suspected that blond, slender Nellis had never broken a sweat in her life.

“If I know Dorinda,” I said, gesturing toward the Morning Glory, “she's got a cup with my name on it ready and waiting.”

This was the literal truth, although the cup said
CASSIE
, since Cassandra isn't a name you can always find on coffee mugs.

“Actually,” Nellis said, dropping her eyes in a shy gesture I recognized at once as the sign of an acquaintance about to become a client, “there's something I need to talk to you about. Do you think we could take the coffee upstairs to your office?”

A private practitioner never turns down the chance to acquire a new client. A lawyer whose entire income depends upon what she can earn by the sweat of her own brow is always ready to listen, always open to new business.

But I was tired and drained and hyper and preoccupied with Keith Jernigan and it was late and I was in no mood to start a new case.

“Listen,” I said, “ordinarily I'd say yes, but it's been a long day. Do you think you could make an appointment and see me during office—”

“Oh, God, yes, of course, I didn't think.” She turned away, her face flaming. “I'll go up and see your secretary right—” Nervous fingers twisted the ring on her left hand.

A wedding ring. A divorcée still wearing her wedding ring.

I sighed. Only one thing, in my considerable experience, had the power to transform a poised, mature woman like Nellis Cartwright into a basket case of self-conscious embarrassment.

I was willing to lay odds that her ex-husband had been emotionally if not physically abusive.

“Hey, no problem,” I said with forced cheerfulness. “I'll get that coffee from Dorinda and be right up. You can tell Marvella—that's my secretary—that we have an appointment. Do you want plain or flavored?”

It took a good three minutes to convince her I was sincere. She finally agreed to decaf but insisted on waiting for me instead of going inside by herself.

Dorinda wanted a blow-by-blow account of the oral argument, but I said it would have to wait and took two cups of coffee upstairs.

My waiting room reflects my interest in photography. Posters from museum shows mingle with old political posters; a Louis Hines black-and-white shot of an immigrant boy in a cap three sizes too large is next to Shirley Chisolm's Unbought and Unbossed poster from her presidential campaign. My Mailer-for-mayor poster faces the newest addition: press photogs with huge bulky flash cameras and oversized press passes in the bands of their jaunty fedoras.

And then there were one or two little things of my own. Pictures of which I was inordinately proud, even if they did look amateurish next to the masters.

As we stepped into the waiting room, Nellis pointed to a photograph I'd had mounted on wallboard. It showed a little girl swinging in the park; the swing chain had become a blur, as had her outstretched, sneakered feet, but her bright eyes in her dark face grabbed the camera and wouldn't let go. I'd liked the picture a lot, and decided it cheered the place up to see a happy child on the wall.

“Did you take this?” She walked over to it and stood before it in her model-stance.

“Yes. I'm something of an amateur photographer.”

“Me too,” she said. Then she looked at the carpeted floor and murmured, “Only I guess I'm not exactly an amateur.”

“I'd like to see your work,” I said, and meant it. For one thing, I love photographs, and for another, it might help relax this tightly strung woman to talk about something other than her unhappy marriage before getting down to business.

“I have a few things upstairs if you'd like to see them sometime.” Her voice was soft, tentative. As if there was a possibility I might decline, might decide seeing her photographs wasn't worth the climb up one set of stairs.

“How's now?” I handed her the decaf, still with the cover on the Styrofoam cup. “We can talk just as well in your apartment as we can here.”

Her smile wiped the tentative look from her face. She visibly relaxed, as if my ready acceptance of her offer dissolved a great fear. We climbed the stairs to the top floor apartment in silence.

The place looked about the same as it did when Jerry Laboda occupied it. He'd left his mismatched furniture and oversized stereo, but he'd taken his books with him to Indiana. The main difference was the wall space. Nellis had taken down Jerry's Miró and Kandinsky prints and replaced them with her own framed photographs.

The first one hit me between the eyes. A skull. A skull hidden behind a model's face. The skull beneath the skin. The face was perfectly made-up, vacant, a doll's face. Only upon closer inspection could the shadows be seen as hollow spaces where the eyes used to be. Only at a certain angle did the sharply curved lips cover skeleton teeth.

It hit me then. What she meant by saying she wasn't exactly an amateur.

“Oh, my God. I saw your show at the Witkin.” The Witkin Gallery was the most prestigious photography gallery in New York City, which made it the best in the world.

I clapped my hand to my mouth. “I can't believe this. I really loved your stuff. You want to know the truth, I had a pretty bad case of photo envy for a while. I kept thinking, Why am I even bothering to take pictures anymore? I'll never do anything that good.”

She didn't simper. She didn't even say thank you. She frowned a little and asked, “You don't think it owes too much to Jerry Uelsmann?”

I laughed. “The mark of a true artist. Never think your work is good enough. There's always room for criticism.”

“Yes, but you haven't answered the question.”

“Well, he does double exposure too, so I guess there's a connection. But you added color to some of yours, which he never does. You also pushed the envelope of the grotesque. I liked that clown series a lot. Nothing more sinister than a clown.”