Witness for the Defense (3 page)

“Is that your vicious rapist?” Randy said, nodding toward Cappell. She was a tall young woman with cropped black hair, dressed in a county-issued blue denim dress.

“That’s her.”

Kellogg pounded his gavel, waiting for silence while most of the reporters filed out of the courtroom.

“If you’re in a big hurry,” I said to Randy, “you can forget it.” I nodded toward Harris. “Five bucks Blondie gets priority.”

“Are you done with your little gab session?” Kellogg barked, scowling at me. “If you are, maybe we can all get out of here on time.”

Randy jumped to his feet. “I’m ready, Your Honor.”

“In a moment, Mr. Rogers.” Kellogg looked at Sarah. “How about you, Counselor?”

She stood and scanned the courtroom behind her, then turned back to Kellogg. “Thank you,” she said politely. “I’m Sarah Harris, and I’m appearing on behalf of Peter Jessup. I would appreciate the court placing his matter on second call. Mr. Jessup is out of custody, and I am expecting him at any moment.”

“Isn’t he the attorney who embezzled his client’s funds?” Kellogg asked.

Now, there’s an impartial judge for you, I thought. But I had come to expect no less from Kellogg.

“I believe what the court is referring to are only charges. My client will be entering a not-guilty plea.”

That was the Sarah Harris I remembered. Like her father, she didn’t appear to give anyone an inch. I had to admit though, her overly confident attitude served her well in court: She gave every appearance of being a good lawyer.

“Of course,” Kellogg oozed. “Well, you just let us know when your client arrives.”

I stood, but pointedly ignoring me, Kellogg turned to Randy.

“And what brings you to my humble little courtroom?” he asked.

Typical Kellogg. A big-name lawyer and his two-thousand-dollar suit got instant respect.

“The Tomlinson arraignment and bail motion,” Randy answered.

“No bail, huh,” the judge grunted. “Mr. Lipton, are you prepared for Mr. Rogers’s bail motion?”

“Your Honor,” the D.A. replied as he lifted his pants over his expanding belly, “the Tomlinson matter has been specially assigned to another member of our office, Mr. Kroft. If your clerk will call him, I know he strongly opposes bail.”

Lipton glanced at me. “However, I am ready on Mr. Dobbs’s case,” he said, like I was an afterthought. “And I believe he is also requesting a bail reduction.”

“Just one moment.” Kellogg said to Lipton and then turned back to Randy. “I apologize for you having to wait, Mr. Rogers. But I’ll make sure Mr. Kroft is up here momentarily. In the meantime, we will handle Mr. Dobbs’s case.”

I stepped forward, trying my best not to smile. Randy wasn’t as high on Kellogg’s pecking order as he might have hoped. If he’d been some out-of-town powerhouse, Kellogg would have had the A.D.A. up there in a matter of seconds.

“Before we set a prelim date, Mr. Dobbs,” Kellogg said, turning to give my client the once-over, “you also want to be heard as to bail?”

Normally, Kellogg would be gawking at someone half as good-looking as my client. But with her lack of sleep, wrinkled denim dress, and unkempt hair, she didn’t get more than his parting glance.

“I would,” I said.

Kellogg waved at me to proceed.

“Your Honor, Miss Cappell has been a resident of San Francisco County for over fifteen years. She has been employed as a grade school teacher for six of those years and has had no prior contact with the criminal justice system. I am requesting she be released on her own recognizance.”

“And how do you feel about that?” Kellogg asked Lipton, but not before he smiled at Sarah, again.

“We would strongly oppose the defendant being released OR,” Lipton said, glancing over his shoulder to see whom Kellogg was smiling at. “She lives next door to the victim, and we are afraid she might try to continue her aberrant behavior.”

“Aberrant behavior!” I said, more than a little too loudly. “My client is being charged with statutory rape. In the realm of things, I would hardly characterize such behavior, even if she is guilty, as aberrant.”

“Your Honor,” Lipton continued, “our investigation is ongoing. We have information that the listed victim may not be the only one.”

It was absurd. He was implying that my grade school teacher was some kind of
serial statutory rapist
. I couldn’t believe it. And the sound of Randy chuckling behind me sure didn’t help. I tried to gather my thoughts.

“If Mr. Lipton has other victims,” I said, glaring at the stocky D.A., “then tell him to file additional charges. Otherwise, he should be instructed to limit his argument to the charges before the court and not baseless rumors.”

Lipton didn’t miss a beat. “All we are asking for is fifty thousand, which is exactly what the bail schedule calls for. If we do file additional counts, Mr. Dobbs can rest assured we will be requesting additional bail.”

I looked up at Kellogg, hoping to see that he shared my opinion. Unfortunately, he was still staring at Sarah. I was sure he hadn’t heard a thing either one of us had been saying. Clenching my teeth, I moved a few steps to my right to block his view.

Oblivious to what was really happening, Lipton went on. “Additionally, since Miss Cappell is a school teacher and is therefore around minors on a daily basis, I would request that as a condition of bail, the court restrain the defendant from teaching until this matter is resolved.”

I slammed the palm of my hand on the counsel table. ‘That’s ridiculous. This court cannot take away my client’s ability to earn a living!”

Kellogg sat forward and propped his elbows on the bench. His eyes were darting back and forth between me and Lipton. If my hand slap had done nothing lese, at least it got his attention.

I took a deep breath. “Your Honor,” I continued, a bit apologetically, “my client has been a teacher for over six years. To take that away from her would be disastrous. She is as ideal a candidate for an OR release as I have ever seen.”

“But rape is a serious charge, Mr. Dobbs, and if you have nothing more to add, I will have to go along with Mr. Lip ton’s request.”

“Rape!” I shouted. “What are you talking about? The charge isn’t rape. Read the complaint and you’ll see it’s statutory rape. Maybe if you would take the time to read the penal code, you’d see that means the minor consented.”

Kellogg’s mouth dropped. He sat motionless, paralyzed, glaring at me. Then his attention was drawn to the few reporters who still remained in the front row, their pens poised. I looked over at the bailiff, who was waiting for the judge to just say the word. It was the OK Corral, and I was outgunned. Kellogg’s face turned a bright red. Except for the creaking of the bailiff’s leather holster, the courtroom was totally silent. Then Kellogg bellowed, “I’ll see you and Mr. Lipton in my chambers.”

I had no idea what he had in store for me. But as I followed Lipton from the courtroom, I shot a parting glance at my client. She had a look of total disbelief. I knew she had to be wondering who in the hell was the nut-case she had for a lawyer.

Kellogg slumped in his maroon wing back chair and took a deep breath. Like his courtroom, Kellogg’s chamber was old and musty. The smell of wood, damp and on the verge of rotting, filled the air. Rows and rows of dusty law books lined the mahogany shelves behind his prodigious desk, which served as a natural barrier between the two of us. I was sitting, with Lip ton to my left, on the edge of my chair.

“I hope you are not inferring, Mr. Dobbs, that I don’t know what I am doing.”

The judge wasn’t slurring his words anymore. Amazing what a little adrenaline will do.

“Your Honor, I’m sorry if I may have said anything out of order. But not only is my client’s freedom at stake, but the D.A. is asking you to take away her livelihood. And I don’t think that should be taken lightly.”

“Correct me if I’m wrong, counselor,” Kellogg said and I grimaced. Judges only call you “counselor” if you’re losing an argument. “You basically said I was unfit—in front of a filled courtroom.”

Does the truth hurt your feelings? I wanted to say. But I knew the old soft-shoe might be the better approach. “I apologize, but I just want to make sure you understood what the charges are.”

Before I had even finished, I knew I was dead. Bad choice of words. I watched as Kellogg’s face turned an unnatural shade of red.

“What I mean is—”

“Mr. Dobbs!” Kellogg bellowed. “This isn’t the first time you’ve practiced in my court. Have you ever known me not to pay attention to each and every matter brought before me?”

I didn’t know what to say.

“Well?” Kellogg leaned forward. His face was within a foot of mine. I could smell the gin on his awful breath.

Out of the corner of my eye, I noticed a smile playing at the corner of Lipton’s mouth. And that, I think, is what finally did it. The blood rushed to my face, and my heart began pounding so hard I thought it was going to explode right through my shirt.

“If you’re not going to answer me,” Kellogg said, “I’m prepared to rule exactly as I have already stated.”

“I don’t think so.” The calmness in my voice surprised me.

“What?”

“Are you feeling all right?” I asked, too sweetly.

“What the hell does how I feel have to do with anything?”

“Well, it’s just that I thought I smelled something like cough medicine on your breath. And I noticed during the preliminary hearing that you were having a difficult time staying awake. Maybe you’re taking some kind of cold medication, and it’s making you a little sleepy?”

Kellogg looked at his bailiff, who was standing in front of the closed door. Both were speechless.

“I totally understand how that could affect your ability to pay attention,” I continued.

Lipton sneered. “That’s chicken shit.” he mouthed, out of the judge’s view. But Kellogg wouldn’t have noticed, anyway. You could almost see the wheels turning in that pickled brain of his. I felt bad, but I was tired of letting him get away with his drunken rulings day after day.

“I wouldn’t go any further,” the judge finally said.

“You’re right,” I said confidently. I saw an opening and I wasn’t going to back down. “I believe we should all go back, and I will state my position in open court.”

“About what?”

“Just that I feel you’re in no position to rule. I believe, considering your current condition, it would be best if you disqualified yourself and sent us next door.” I wasn’t really very good at bluffing, but I knew that if he disqualified himself, he would have to do it in front of the several members of the press, who were hopefully still seated in the front row.

Kellogg took a deep breath and leaned back in his chair. He then slowly turned and stared blankly out the window. He was either too upset or too embarrassed to look either of us in the eye. “Let me ask you, Mr. Lipton,” he finally said as he massaged his forehead with his hand. “Do you have any indication that this Cappell woman has ever done anything out of line to one of her pupils?”

“Well, n-no,” Lipton stuttered.

Kellogg nodded, considering it.

“I believe what Dobbs is doing here amounts to blackmail,” Lipton interjected.

“I resent that,” I said. “If I feel a judge is suffering from some physical malady, such as the ingestion of too much medication and it interferes with his ability to make a sound judgment, then I have a duty to bring that to his attention.”

For a moment everyone was silent. I stared at Lipton, who was shaking his head in disbelief. He knew I wouldn’t have a problem establishing Kellogg’s sobriety, or the lack thereof, at a formal hearing.

“Come on, Richard,” I continued. “We’re talking about a young woman who may have had consensual sex with a seventeen-year-old boy, who is probably bragging to his friends about it this very second.”

Kellogg was still staring out the window.

“How about ten thousand bail and no restraining orders?” I asked Lipton.

Suddenly, Kellogg was completely out of the loop. The D.A. Lipton and I would work this out between the two of us. Thinking about it, $10,000 was a good deal. I didn’t want to press for the OR. Reduced bail would be a victory. My client’s mother was already at the bondsman prepared to bail her out at $50,000.

“I guess that will work,” Lipton said grudgingly. “But I won’t forget this, Dobbs.”

“Your Honor,” I said, “we have both agreed that ten thousand would be fair.”

Kellogg had the look of someone who had just been defeated.

“Fine,” he said, buttoning his robe, “let’s go take care of it.”

I stood to leave when it occurred to me.

“Before we do,” I said, “there is one other matter I would like to bring to the court’s attention.”

I was pushing it now.

“What is it?” Kellogg sighed.

“There is a young man in custody. He is seated next to my client at the end of the jury box.”

“What about him?” Kellogg asked.

“His name is Bobby Miles.”

“He’s Shelby’s client,” Lipton said, referring to another public defender.

“He probably is,” I said. “And I expect Mr. Shelby to be out there any minute, but in the meantime I would like for the court to consider an OR for him.”

“What are you talking about?” Lipton said. “He’s charged with possession for sale. In addition, if you look at his rap sheet, he has three outstanding traffic warrants. No way. He’s a bad risk for OR.”

“Three traffic warrants?” I knew that any outstanding warrant was the kiss of death when you were trying to get someone out on their own recognizance. Especially in Kellogg’s court.

“Mr. Dobbs,” Kellogg said, “I wouldn’t go any further than you already have.”

“But, Your Honor—”

“You know better than that,” Kellogg barked. “I will not let you argue bail for someone else’s client.”

He was right. I was treading on thin ice. But even though there was nothing I could do for Miles in court, I planned to talk to Martinez later and make sure he understood that he and his buddies better leave the kid alone.

“Do you want to pursue this matter any further?” Kellogg said. His expression convinced me that I better not.

“No, Your Honor,” I said and walked out the door.