Injustice (2 page)

The judge's clerk came in. “Good morning, Mr. Davis,” she said to me, then looked at Henry, paused, checked her docket, looked around the room distractedly for a moment, then said, “And this would be Mr. Tatlock?”

“Yes, one of our newer assistants,” I said. “Henry, this is Paula, Judge Baxter's clerk. Be nice to her. Rumor has it that Judge Baxter is really an animatronic device created by Spielberg or NASA or something, and that Paula runs the controls.”

Henry laughed. Paula laughed.

The defendant and his lawyer walked into the courtroom. The lawyer was my “frienemy” Kendall Vance.

Kendall is about my age. He's a very physical guy. As he walked to his seat, he seemed to ripple with masculine brawn. He has a weight lifter's chest and a shaved head and a “don't fuck with me” look in his eye. When he saw me, he smiled expansively. “Nick,” he said—or bellowed, really—as he steered the defendant into a chair, then came and stood in front of us, overflowing with happiness at the prospect of this legal sparring match.

“Two of you versus one of me,” Kendall said, looking at Henry. “Seems I ought to get some kind of dispensation to even things out: a few extra preemptives, maybe, or—I know!—I get to have Morgan Freeman come in and read my closing argument.”

“That sounds fair.”

“Plus, you've got another advantage,” Kendall said, “because I'm dead tired. Barely slept last night. You could knock me down with a feather. See, I've been rereading some of the classics from college days. High school, even. And I got so deep into
A Tale of Two Cities
last night that I couldn't put it down. You've read it, haven't you? Anyhow, just finished it a couple of hours ago, so I brought you my copy as a gift.”

This all came out in a breathless stream. He waved a tattered copy of the novel in front of us, smacked it down on the table, then went and sat with his client.

“Um. Thank you,” Henry said.

“Call me after you read it,” Kendall said. “We'll get together for a little book club. Just us three lawyer guys.”

I knew Kendall too well to believe his generosity was inspired by sudden enthusiasm for Dickens.

When the jury panel came in, we stood and faced them. It's a trial lawyer's number one job to be liked by the jury—so I'm always trying to find just the right facial expression for meeting them—somewhere between friendliness, seriousness, and integrity. It's tough. But on this occasion, as I stood there beside Henry, the prospective jurors didn't pay me any attention. One by one I saw them curiously scan the room until they noticed Henry; then they paused and looked away for a second but quickly had to look back. Though you could see them trying not to look, inevitably they did, studying him with sideways glances.

Henry is a burn victim. His face looks as if the whole thing simply melted off and the doctors who put him back together had to re-create it from whatever they could salvage. Some things are missing; some things are in the wrong place. Nothing looks as intended. It takes time after meeting him before you can see anything beyond his disfigurement.

The one thing Henry has said to me about his appearance is that while he has come to accept it and doesn't really even mind it anymore, he wishes more than anything that he could at least have a
glimpse of how he would have looked were it not for what happened to him.

Jury selection was quick. It was a small case. We had a full jury within an hour, and after a brief recess, Judge Baxter gaveled us to order. She read the date, time, and case number into the record, listed the attorneys present, stated that the defendant was charged with one count each of burglary and criminal trespass of a federal facility, and noted that the defendant was not detained but, rather, was free on bond. Then she looked at Henry and said, “Mr. Tatlock, you may begin.”

Henry walked over, stood directly in front of the jury box, and with one hand he motioned a circle in the air around his face. “Don't worry,” he said, “you'll get used to it within an hour or two. I was in a fire as an infant. I have no memory of looking any other way. Anyhow, consider yourselves lucky: You got to have your morning coffee at home before coming in here to look at me. Think how I feel. First thing every morning, there I am in the bathroom mirror. Yikes!” Henry laughed.

A few of the jurors laughed politely.

“But you know what?” he said. “This trial isn't about me, is it? It's about the law and the defendant. So to the extent possible, I'm asking you to disregard me. I'm just the messenger . . .”

It was a good way to open. We'd talked about it. I felt Henry needed to address his appearance outright. Let the jury gawk a moment, then let it go. He did okay with his delivery. Henry is neither a great orator nor a brilliant legal strategist, but he's likable.

I had worried about Henry's appearance when I hired him. Would the jury be put off by his disfigurement? Would it make him appear untrustworthy? I struggled over it, and while I wouldn't in a million years have discriminated against him for his appearance, it was my job to protect the public from bad people, and if Henry's disfigurement made it even an iota harder for him
to convict a criminal, then my hiring him was not in the public interest.

Ultimately I decided it was a wash: Some jurors might subconsciously resist him, while others would feel compassion and subconsciously side with him.

“What the evidence will show,” Henry said, gesturing at the man in the defendant's chair who sat cradling his head in his hands, “is that the defendant broke into the offices of the Environmental Protection Agency with the intention of committing a felony inside that building. The EPA is a federal agency. The defendant rifled through files of that office . . .”

Immediately I saw the jury lose interest. They wanted something juicy for their time on a federal jury. They wanted big crimes, not somebody snooping in a business office.

“What the evidence will show,” Henry continued, “is that the defendant was working for a company known as Subsurface Resources, Incorporated . . .”

Now they were interested again. Subsurface is a mining services contractor. Our investigation of them was extensively reported in the newspaper. This burglary case was a tiny offshoot of a huge corruption case that could bring down some powerful people in the state. Subsurface was bribing (and maybe blackmailing) politicians to defeat new tax legislation aimed at natural gas extraction. A grand jury had been convened. Indictments were raining down.

Today's defendant, Jimmy Mailing, was known to us as a corporate security hack for Subsurface, Inc. So when he was found burglarizing the EPA offices, we tried leveraging him to get to his bosses. We offered him a walk on the burglary if he'd testify that his superiors at Subsurface had authorized the break-in.

But Jimmy Mailing wasn't playing. He lawyered up, denied having burgled the federal office, and claimed that somebody else, perhaps the FBI themselves, had planted those files in his car. So we were coming down on him as hard as we could.

While Henry gave his opening, the defendant stared down at the tabletop. This was strange. Kendall is scrupulous about getting his clients to sit up straight, pay attention, and appear engaged. But this guy seemed morose, and Kendall made no effort to jar him out of it. I figured he must be a difficult client who had already used up all of Kendall's patience.

And something else: Kendall's clients are always perfectly groomed—suit and tie, clean-shaven, conservative haircuts. But here this guy was in a dark turtleneck with black jeans and his hair falling down over his forehead. From what I could see of his face, which wasn't much because of the way he sat, he had strong cheekbones and a long chin. He looked sinister. I felt sorry for Kendall, trying to help this ne'er-do-well who apparently wasn't lifting a finger to help himself.

Henry's first witness was the security guard who had found the intruder in the building. The guard was earnest, overweight, and seemed credible. Henry led him through a direct examination:

HENRY:
What was your first indication that something was amiss?

WITNESS:
I heard him. I heard someone like, you know, like moving stuff around.

HENRY:
And you did what?

WITNESS:
I went to investigate.

HENRY:
Did you approach the intruder?

WITNESS:
Not at first. I watched him without him seeing me. I was behind him, and I stood behind a pillar, peeking around it to keep an eye on him.

HENRY:
For how long?

WITNESS:
Two or three minutes, I guess.

The security guard looked at his watch to give authority to his estimate of two or three minutes. He was a good witness. He wore his uniform, which was sharp and well fitted, even though it covered
a considerable expanse of belly. And he was well groomed and sat up straight and made eye contact with Henry. He even looked over toward the jury a few times.

HENRY:
And did you, at some point, get a good look at the intruder?

WITNESS:
Yes, sir. As he prepared to leave, I stepped from around the pillar. I had my weapon, but I didn't draw it. I shouted at him. I said, “Halt. Turn around and identify yourself.”

HENRY:
And then what?

WITNESS:
He jumped. You know, startled. And he turned to look at me a moment, or several seconds, really, then he just ran.

HENRY:
Did you follow?

WITNESS:
I tried to, but he'd already scoped out his escape route. He was fast, and he, you know, jumped over stuff and was out of there before I could, you know, um, catch him.

The witness looked down at his hands, embarrassed. He was clearly no match for the wiry and agile defendant. I wondered if he had really given chase. Maybe he'd just watched the defendant run away. The guy was just the night watchman in a federal office building. It's not the kind of place you'd expect to be called upon for heroics.

HENRY:
But you say you got a good look?

WITNESS:
Sure. I watched him those few minutes, then I, um, I mean, he turned right around and faced me when I yelled at him. I saw his face, like, full-on.

HENRY:
And how was the lighting in the room?

WITNESS:
Well, it was night, of course, but there was enough light from different places. It was dim but not dark. I saw him perfectly well.

HENRY:
And do you see that man in the courtroom today?

WITNESS:
Yes, sir.

HENRY:
And would you point him out?

WITNESS:
Right there.

The witness pointed directly at the man sitting beside Kendall Vance.

HENRY:
You're sure?

WITNESS:
Positive.

Henry turned toward the court reporter and said, “Let the record reflect that the witness has identified the defendant, Jimmy Mailing, as the intruder he saw that night.”

Kendall Vance cleared his throat and stood. “A technical point, Your Honor,” he said. Kendall wasn't smiling openly, but from his posture and tone of voice, it was clear something had made him very happy, and suddenly I understood why the “defendant” was not in a suit and tie or sitting up, bright-eyed and involved.

Judge Baxter looked over her glasses at Kendall. “Go ahead, Mr. Vance.”

“Yes,” Kendall said, “the record should reflect that the witness has failed to identify the defendant.”

Kendall laid a hand on the shoulder of the man beside him at the counsel table. “This is not Jimmy Mailing but, rather, Derek Sykes. Mr. Sykes is an actor who generously agreed to come along and help me with my case this morning.” Kendall turned and looked into the gallery. “Jimmy, would you please stand.”

Jimmy Mailing, the real defendant, stood up. He had been sitting in a small crowd in the gallery. He was in a suit and tie, impeccably groomed. He had prominent cheekbones, dark hair, and a long chin. Jimmy Mailing and Derek Sykes didn't really look alike, but they were the same type, with the same elongate faces and the same slender, athletic physique. The most striking difference was that at the
moment the imposter looked like a criminal, while the real Jimmy Mailing didn't.