Injustice (3 page)

“There's the defendant,” Kendall said, pointing at Jimmy, “right here with us in court as required. Apparently, the witness didn't recognize him.”

T
here was lots of shouting.

I demanded that Kendall and the imposter and the defendant all be held in contempt.

Kendall demanded an immediate dismissal of the charges against his client because the government's witness had failed to identify him as the intruder.

I tried to place the imposter under arrest for obstructing justice.

The judge demanded we all just shut up. Then she glowered at Kendall over her glasses and ordered the jury be removed. “We're in recess for fifteen minutes,” she said.

Judge Baxter is a small and ferocious woman. I don't always agree with her decisions, but I like her style of judging. She stays out of things as much as possible, and when she can't stay out, you feel her anger at being dragged in. Unnecessary objections displease her. Foolish advocacy that requires objections displeases her. Lack of punctuality and lack of preparedness displease her. She believes much more strongly in the orderliness of trial law than in the games and antics of trial law. This means she is a prosecutor's judge, not a defense counsel's judge.

When Judge Baxter's predecessor had announced his retirement a few years ago, I was approached about putting my name in for the seat. But I had no interest in being a trial judge (do boys with baseball mitts dream of being the umpire?). No, the U.S. Attorney's Office was much more appealing to me than the trial court bench. I did, however, want to be an appellate judge. I wanted to write lofty decisions that would stand for years or decades. In fact, I'd been nominated to the Circuit Court of Appeals several years earlier, but gridlock between the
administration and Congress had left my nomination stalled. Technically, I'm still a nominee, though I don't expect much to come of it. Anyhow, I declined to be considered for the District Court judgeship, and Arial Baxter, a respected partner at a local firm, got the nod.

The judge returned and gaveled us back to order. “Here's what's going to happen,” she announced. “I want briefs on my desk first thing Friday morning. The issues I want briefed are these: First, whether any action by either of the parties violates either the law or the procedural rules of this court. Second, whether the defendant's motion for dismissal is warranted. And third, whether this jury is now tainted. Then we'll convene at, let's say, four-thirty on Friday afternoon.”

That was July 3. The murder was on July 4.

I spent the morning of the fourth at my office, writing the assigned brief. Henry had planned to write it, since it was technically his case, but I was so angry about the whole thing that I wanted to do it myself. Besides, I didn't quite trust him to get it right. I wanted to pepper it with plenty of outrage, expressed in my best legalese, against Kendall Vance. With any luck, I could get Kendall's scheming ass suspended from practice in the Federal District Court.

I didn't mind being at the office that morning. I like it when I'm the only one there. I worked with my office window cranked open as far as it would go, which was only about two inches. It was a beautiful summer day. Already you could see and hear the city getting into its holiday mood. Hundreds of baskets planted with flowers of red and white and blue hung from lampposts in the downtown section.

As I worked, the sounds of the day slipped into the office through the narrow opening. Traffic sounds seemed happier than usual. Car horns blared not with anger but with jubilation. Kids were busy with firecrackers, and I kept thinking of war correspondents on the evening news, giving their reports via satellite from conflict regions:
pop, pop, pop
. You hear gunfire in the background as the reporter recounts the action: “. . . spokesman for the rebel leaders” . . .
pop pop 
. . . “says
there can be no negotiations until these conditions are met” . . . 
pop pop . . .

When I got home around two in the afternoon, Barnaby exploded out the door and into my arms. Tina was rummaging in the fridge. “I thought you were going to be back at noon,” she said.

“Sorry, babe, I was in the zone.”

She handed me a list. “Here's what I need you to pick up.”

“At the store? On the Fourth?”

“Hmm. I guess you're right,” she said. “I'll serve saltines instead. And I think I have some mayonnaise I can spread on them. Won't that be nice?”

I took Barnaby to the store with me for a quick shop (brats, chicken, watermelon, ice cream). Then home.

In the kitchen I started slathering barbecue sauce on the chicken. Tina came in. “Did you finish your memo?” she asked.

“I've got a draft. It needs polish.”

She chuckled. “You've got to admire Kendall. Risky tactic, but creative.”

“No, I goddamn don't have to admire him. It corrupts the process and—”

“Oh, lighten up,” she said. “Personally, I can't think of a better way to show the jury how flaky eyewitness identifications can be.”

I started to answer but thought better of it. Tina had worked in my office as an assistant U.S. attorney for several years before resigning and going into appellate criminal defense. I hadn't thought it would be a problem, having a prosecutor and defense counsel in the same marriage. But as her heart and soul got increasingly wrapped up in her role as an advocate for the “wrongly” accused, the rift in our philosophies widened.

My cell rang. It was Lizzy, my daughter.

“Dad,” Lizzy said, “Ethan and I aren't coming to the barbecue.”

“You sure?” I said, making no effort to keep the hurt out of my voice. “I bought some vegetarian sausage.”

“You're sweet,” she said, “but we've got other stuff going on. We'll meet you at the park tonight. Okay?”

“Barnaby will be disappointed,” I said, but too late. She was gone.

Ethan was Lizzy's new boyfriend. They met when they were arrested together for criminal trespass at one of the Occupy sites.

A minute later, Flora called. “Hello, Nickie,” she said. “I'm afraid Chip and I won't make it this afternoon.”

Flora is my ex-wife and Lizzy's mom. Chip is her FBI-agent husband. He and I are buddies, our friendship predating his relationship with Flora. “Kind of last-minute, Flora,” I said.

“And I'm so awfully sorry. But we'll see you at the park tonight. We're coming with Lizzy and her friend. Oh, and I think he's such a great guy—Ethan—don't you?”

“Haven't met him yet, Flo.”

“Oh, well, tonight, then, Nickie. See you soon.”

Tina's sister, Lydia, arrived at about two-thirty. Barnaby rushed into her arms as exuberantly as he had into mine a half hour earlier. She carried Barnaby out into the yard, and the two of them settled into the sandbox, where she buried coins and had him hunt for them. After ten minutes of this, she came back into the kitchen, gave me a kiss on the lips, then held my hand, swinging it in hers while we talked.

“I brought a salad,” she said, “  except the store was out of organic spinach, so I just used Boston lettuce, which is almost as good, don't you think? And daikon, and endive, all organic, and some dill . . . oh, God, I can't stand that music . . .”

Lydia walked into the living room to turn off the stereo. I'd had an old George Winston CD playing. Lydia is the only person I've ever met who hates having music on in the house. She says it gums up her thinking. She was five years younger than Tina and had always been the black sheep of the family. She had some kind of learning disability, barely made it through high school, dropped out of college, joined a charismatic church of some ill-defined pantheistic
belief, and supported herself first as a baker and then as a bookkeeper. Politically, she swung from the ditsy left to the dour right, apparently bringing unbridled verve to whichever camp she was in. She worked for the state legislature briefly in the legislative clerk's office. Now she was working for the state tourism office, producing ebullient pamphlets about the state's natural and historic attractions. Tina and Lydia were very close as children but became alienated during Lydia's tumultuous years. Now they were together again.

After Barnaby was born, Lydia started spending more and more time at our house. She was one of the family. I liked having her around. I liked her energy. It was a nice counterbalance to Tina's sober-minded reserve.

Lydia had a steady boyfriend now, and they'd just become officially engaged. I liked the guy, though I thought he was kind of plain vanilla, while Lydia was surprising and exotic.

As Lydia and I stood in the kitchen talking, we heard the front door open, and a moment later, Henry Tatlock, assistant U.S. attorney, walked into the kitchen. Lydia squealed, put her arms around him, and they had a long soulful kiss.

Yes, Henry and Lydia. He was the love of her life, she said: her hero, her savior, her husband-to-be.

We grilled the chicken and brats and corn and ate outside on the picnic table. There was too much food, so I dropped a big chicken breast onto the ground for our dog, ZZ, who snatched it up like a frog zapping a dragonfly. Barnaby named the dog himself. We'd gotten him, a bouncy Australian cattle dog pup, when Barn was two years old. He wanted to name the dog after his big sister, but in his toddler's pronunciation, “Lizzy” always came out “ZZ,” and it stuck.