Nothing But the Truth (10 page)

“Why did you even agree to meet with us?”

Fair question.
Brett didn’t have an answer that didn’t sound lame. The mere mention of the Ross Edwards case had intrigued her, and she hadn’t realized the state was seeking the death penalty until she read the press release online. Just because a case was eligible, didn’t mean the district attorney would go for the full deal. Despite Texas’s reputation as a hang ‘em high state, efficiency called for many death penalty eligible cases to be prosecuted as a mini-caps, reducing the punishment exposure to life with no eligibility of parole. A capital case took considerable county resources including individualized jury selection as well as the years of appeals that would surely come after a guilty verdict.

Brett also had to admit she had become interested when she first heard the man’s voice on the phone saying his son wanted to confess to a murder. She knew if he turned himself in, he risked being eaten alive by law enforcement officials who wouldn’t look further than a young man’s simple story. Now that she had heard the story for herself, she realized the case against Kenneth Phillips was indeed a capital case. Both arson and burglary were felonies, and the resulting death of the woman in the house, probably Mary Dinelli, could make this case death penalty eligible. She was torn. She didn’t want to work on a death penalty case, but if she got involved early, maybe she could get the state to take the death penalty off the table. Intrigued by the case, not to mention Ryan Foster’s role as the lead prosecutor, Brett knew what she was going to do.

“Then we have to talk about an agreement. Between us. If you want me to represent Kenneth, I will. We’ll talk about whether he wants to turn himself in—“

“Oh, he definitely wants to do that.”

Brett didn’t try to hide her frustration at the interruption. She kept talking. “And we’ll also talk about his options. The prosecutor won’t negotiate with us in the abstract. In other words, he’ll want to know exactly what Kenneth has to say before he will offer anything.” Brett knew Ryan Foster herself would be the one to sign off on any plea offers on this case, but she still referred to the prosecutor as a “he” out of habit. She didn’t like to let clients know the prosecutor might be a woman unless it was necessary. Defendants had a tendency to assume a woman would either cut them a better deal out of sympathy or, if the offer was unreasonable, it was because the female prosecuting the case was a bitch. Either situation was possible, but she didn’t like to deal with preconceptions.

“Can’t you just talk to this prosecutor and work something out before Kenneth goes to jail?” Kenneth’s mother asked.

Brett decided to cut to the chase. “We’ll have a lot of details to work out if Kenneth wants to turn himself in. I will be happy to talk to you about all of them, but before we get to that, we need to enter into an agreement.” She paused to make sure she had their attention. “I have a contract prepared. I’ll need an initial deposit of ten thousand dollars to bill against.”

Mrs. Phillips looked like she was going to pass out. “I don’t understand. All we want you to do is turn Kenneth in and make sure he doesn’t get the death penalty.”

 “This is a very serious matter. You may think what you’re asking for is simple, but it’s not. It’s going to require a lot of time and effort on my part to negotiate a deal on Kenneth’s behalf, and ultimately the district attorney’s office doesn’t have to make any deals. The initial retainer I quoted is actually quite small, considering the possibilities.” Brett sat back in her chair thinking Tony would be very proud of her for addressing the formalities so directly.

“We don’t have that kind of money.”

“What can you afford to pay?”

“What would you accept?”

Brett may be a bleeding heart, but she didn’t play this game. The majority of her time as a lawyer was spent negotiating. First rule: don’t negotiate against yourself. She may cut a potential client a lot of slack when it came to their ability to afford her fees, but she never broke this rule. People needed to feel invested in the process and if she bid herself down to a fee she couldn’t live with, she risked resenting her client and her client wouldn’t respect either her or the process.

“Not much less, I’m afraid.” Brett asked again, “What can you afford?”

“We don’t have much. A few hundred dollars. Maybe a thousand.”

Brett shook her head. She wanted to help, she really did, but she couldn’t take on a capital murder case for a thousand dollars. She’d already expended almost that amount in time at her standard hourly rate. This case could move rapidly or not. She couldn’t predict. Either way, taking tiny payments would mean it could be years before the Phillips ever had even the initial retainer paid off. Taking payments usually meant Brett and Tony would spend more time working as bill collectors than as legal representatives. Brett didn’t like to run her business that way, so she encouraged potential clients to find other sources of funding their legal defense. She gestured around her office. “I understand you may not have more, but I can’t afford to take Kenneth’s case for that small a fee. I have bills to pay and an employee who relies on me to keep the business afloat. Kenneth would certainly qualify for court-appointed counsel.”

“Can he get that now?”

He couldn’t. Kenneth wasn’t charged with anything. For all Brett knew, no one even suspected him of a crime. If he was arrested and signed an affidavit of indigence, then an attorney would be appointed, but not before, no matter how serious the crime. Even as she pondered the dilemma, Brett was struck by the inherent unfairness, at least in Kenneth’s situation. To Brett, the problem was a challenge, and an idea was already forming that might solve both the problem of providing Kenneth with a lawyer and extricating herself from the situation.

“Kenneth, if I promise to do everything I can to get you help, can you promise me something in return?”

He cast a look at his mother before nodding assent.

“Don’t talk to anyone else about this. Don’t do anything about this. For twenty-four hours. Promise?”

Ryan reviewed her notes. There were a number of pretrial motions filed by the defense in the Edwards case, and Jeff had apparently put off responding. She would do them herself, but in the meantime, she had a list of things to take care of with regard to the other prosecutors under her command. Ryan picked up her notes and headed to the bank of elevators.

She glanced at her to-do list. At a staff meeting earlier in the week, Sheri Archer, a prosecutor under her supervision, had mentioned she was arguing a motion to suppress this morning. Sheri was assigned to Judge Langston’s court and Jeff, as her direct supervisor, would be the one writing her annual review, but Ryan decided to take the opportunity to try to catch Sheri in action since ultimately she would be the one to decide if and when Sheri were promoted.

Ryan skimmed the text of the motion Sheri was defending. As usual, the defense motion was sparse, alleging only that the police search of the defendant’s vehicle was done in violation of his constitutional rights. Since the search was done without a warrant, the burden was on the state to establish legal grounds for the search.

When Ryan entered the courtroom, Sheri was lobbing gentle questions to a Garland police officer. Ryan’s glance at the defense table delivered a jolt. Brett Logan was the defense attorney on the case. Ryan congratulated herself on her good fortune.

 Sheri handled her part deftly, laying the basic foundation to justify the warrantless search. The officer pulled the defendant’s vehicle over for a traffic violation. When he performed a check on the defendant’s identification, the officer discovered what he thought was an outstanding warrant. While his partner checked for more detail, the officer ordered the defendant out of the car, handcuffed him, and then placed him in the back of his squad car. Then he conducted a search of the defendant’s vehicle and located a small vial containing traces of cocaine.

Sheri’s part was done for now. She imagined Brett would press the point that the defendant hadn’t consented to the search, but it was well settled law that the police department was authorized to conduct a search of a vehicle following an arrest, for both safety reasons and to take inventory of the contents of the vehicle that was being towed away. Ryan anxiously awaited Brett’s strategy.

“Good morning, Officer Stanton. My name is Brett Logan and I represent Mr. Jones, the defendant in this case. I’m going to ask you some questions. If you don’t understand my questions, please let me know and I will rephrase them until you do.” Brett searched through some paperwork on the table until she found a bound notebook that she placed near the edge. She looked the officer directly in the eye for several seconds before she began.

“You asked my client for permission to search his vehicle?”

“Yes.”

 “During Ms. Archer’s direct exam, I didn’t hear you articulate any particular reason for that request. That’s because you didn’t have any reasonable suspicion to expect you might find contraband in Mr. Jones’s vehicle, correct?”

“We often find contraband in vehicles, ma’am.” The usually respectful title was marred by a smirk.

Brett wasn’t deterred. “I suppose you didn’t understand my question, officer. I’ll break it into smaller parts. You pulled Mr. Jones over for failing to signal a right turn, correct?”

“Yes.”

“He immediately responded to your lights and siren by safely pulling off the main road into a parking lot?”

“He did.”

“He complied with all your instructions regarding producing his driver’s license and proof of insurance?”

“Yes.”

“Nothing about his demeanor indicated suspicious activity?” Inflection was the only indication Brett’s bullet statements were actually questions. Ryan admired the technique. Essentially, Brett was testifying. The officer, apparently weary of the exchange, decided to vary his responses.

“I don’t understand what you mean.”

“He didn’t fidget?”

“No.”

“He didn’t have any difficulty understanding your instructions?”

“He didn’t appear to.”

“He did what you asked?”

“Yes.”

Brett wasn’t giving an inch. “So your answer to my original question is no?”

“Correct.”

Ryan knew Brett had just narrowed the issue. Sheri could no longer argue the officer had a reasonable suspicion about the presence of contraband in the vehicle since nothing about the defendant’s actions led to that conclusion.

“Let’s talk about the search you performed on Mr. Jones’s vehicle. He did not give you permission to search his car, correct?”

“No, but—“

Brett held up her hand. “You answered my question, thank you.” She paused and consulted a sheet of paper. “And I believe you testified that when you performed the search, Mr. Jones was handcuffed and seated in the back of your squad car.”

“That’s correct.”

“You handcuffed him because you believed an active warrant called for his arrest?”

“Yes.”

“Yet, while you were still at the scene of the traffic stop, you learned differently.”

“That’s correct. We learned an individual with the same name and date of birth had an active warrant. Further investigation into the individual’s description led us to conclude that individual was not this defendant.”

“So, officer, if you had not found illegal drugs in my client’s vehicle, he would have been free to go.”

“We would have written him a ticket for the traffic violation, but yes, he would have been free to go.”

Brett caught the judge’s eye. “Permission to approach the witness, Your Honor?” Judge Langston nodded. Brett stood and strode over to the officer. She placed a notebook on the railing of the witness stand. “Officer, do you know what this is?”

He took a moment to thumb through the contents. “Yes. These are the inventory procedures for evidence and other belongings seized in conjunction with an arrest.”

“And this manual represents the current procedures that are in effect for the Garland Police Department?”

“Yes.”

“Your Honor, I’d like to offer this notebook into evidence as defendant’s exhibit number one.”

Judge Langston inclined her head to the prosecution table. “Any objection from the State?”

Sheri looked puzzled. Ryan didn’t know all the facts of the case, but she could see the possible path Brett was following. Sheri struggled and finally came up with an objection of sorts. “I’m not sure why these procedures are relevant, Judge.”

Brett was quick to respond. “I would be happy to ask a couple more questions which I think will establish relevance.” At the judge’s nod, she faced Officer Stanton.

“You called a towing service to remove my client’s vehicle?”

“My partner did, yes.”

“The truck wasn’t on scene when you conducted your initial search, correct?”

“No.”

“Therefore, the tow truck driver didn’t witness the search of the vehicle. Correct?”

Officer Stanton didn’t try to hide his impatience. “Obviously, if the truck wasn’t there, the driver wasn’t either.”

Brett held up the notebook. “Would you turn to page forty in the manual and read the first paragraph out loud?” She waited while he read the listed procedure that specified inventory searches were required to take place in the presence of the personnel who would take possession of the vehicle. “So we can conclude that because you didn’t follow the procedures listed in this manual regarding an inventory search following arrest, your search was based on some other exception to the defendant’s constitutional right to be free from unlawful searches and seizures?”