Authors: James Grippando
G
ame face. Jack put on his as he crossed the street and approached the crowd outside the Criminal Justice Building.
News reports of a bought-off juror had reignited the army of Shot Mom haters. A busload of them had come from somewhere, and Jack didn’t think it too cynical to wonder if BNN had actually rounded them up from some retirement home, promised them a free lunch, and brought them in for the sake of good television. One thing was clear: None of their anger was for the juror who had taken the bribe. Sydney Bennett, whereabouts unknown, left Jack as the only visible target. Game face was the only way to deal with reporters who pushed one another out of the way and thrust microphones in Jack’s face, prodding him for a comment as they climbed the courthouse steps. Game face was his only response to the barrage of insults hurled from the crowd.
“Tramposo!”
“Cheater!”
Much uglier things were shouted, but that one in Spanish stung the most—because it was from an old Cuban woman who looked like his grandmother. Jack wasn’t trying to torture himself, but he nonetheless allowed himself to consider the remote possibility that this little old woman with the big voice could be someone who knew
Abuela
, someone his grandmother would have to avoid in shame the next time she showed her face at church. For some lawyers, the out-of-court fallout was “collateral damage.” For Jack, there was nothing collateral about it.
“Welcome back, counselor,” said the security officer. She was anything but sincere, and even though it wasn’t overly sarcastic, her snide tone of voice was one that Jack had never heard from courthouse staff. It was a heavy reminder that for anyone who worked in the system, buying a jury was about as low as you can go.
It was déjà vu as Jack cleared security, rode the elevator to the ninth floor, and started down the crowded hallway to Judge Matthews’ courtroom. Jack passed the same reporters and many of the same spectators who had followed the murder trial. He knew his way through the obstacle course, and the heavy doors closed with a thud as he entered the courtroom. The gallery was packed, though most would soon be disappointed to hear that Shot Mom would not be making an appearance in this encore performance of the Sydney Bennett show.
“This is for you,” said the prosecutor as she handed him a legal memorandum.
It was the first Jack had seen of Melinda Crawford since her postverdict press conference. Jack gave her memo a quick look. It was on double jeopardy—the prosecution’s legal argument as to why the U.S. Constitution didn’t preclude the retrial of Sydney Bennett.
“Read it and weep,” she said.
Crawford walked to her table with the same confidence she’d displayed before the verdict—maybe more. The prosecution always sat near the jury box, and Jack wondered if it was any coincidence that Crawford had positioned her chair so that it was directly in front of seat five—the seat Brian Hewitt had occupied for nearly a month before he was chosen foreman.
Jack was still getting ready when he heard the knock on the side door to the judge’s chambers. The bailiff’s announcement—“All rise!”—brought an abrupt end to the buzz of conversation from the gallery. Judge Matthews entered the courtroom and climbed to the bench. It felt like a dream—a nightmare—as the bailiff called the case.
“State of Florida versus Sydney Bennett . . .”
It’s freakin’ Groundhog Day
, thought Jack.
“Good morning,” said the judge. “The court has before it the prosecution’s motion to set aside the verdict of not guilty entered in this case on grounds of jury tampering. Ms. Crawford, let me hear from you first.”
“Thank you,” she said as she stepped to the podium. “Your Honor, I have mixed feelings this morning. Of course I felt that the verdict of not guilty in this case was a miscarriage of justice. Even though I accepted that verdict, in my heart I wished that there was some way to undo it. I’m here to tell the court that it should indeed be undone—that the law requires this court to set aside this verdict and order Sydney Bennett retried on the charges set forth in the original indictment. But I wish to state from the get-go that the grounds for this motion—the affront to the entire judicial system that is jury tampering—is nothing for anyone to celebrate.”
“Let me stop your speech there,” said the judge. “I agree that it’s nothing to celebrate. But it’s not something that this court can rush to judgment about, either. As I understand it, a juror in this case has been accused of accepting a bribe. Last time I checked, he is presumed innocent until proven guilty.”
“Mr. Hewitt will be in federal court this afternoon to enter a plea of guilty,” said Crawford.
The judge glanced at Jack, as if curious to know if the defense was as surprised as everyone else in the courtroom. “Is that so?” said the judge.
“Yes. Mr. Hewitt’s attorney is here this morning to answer any questions the court may have.” Her gaze drifted toward the gallery, where a man rose—and Jack’s jaw nearly dropped.
“May it please the court, I’m Ted Gaines, counsel for Brian Hewitt.”
The judge invited him forward. Gaines walked to the end of the row of bench seating, stepped through the swinging gate, and joined the prosecutor at the podium. He shot a quick glance in Jack’s direction, which Jack could only interpret to mean,
You’re fucked.
“Is this true, Mr. Gaines?”
“It is, Your Honor. We have a signed plea agreement with the U.S. attorney, under which my client will enter a plea of guilty this afternoon.”
“This seems like an unorthodox way to present it,” said the judge.
“Unusual circumstances, yes,” said Gaines. “But an important part of the plea arrangement is Mr. Hewitt’s agreement to testify in connection with the state of Florida’s motion to set aside the verdict entered in this case.”
“Interesting,” said the judge. “I must say, that’s an impressive display of expedited coordination between state and federal prosecutors.”
Crawford said, “It was a late night, Your Honor.”
Jack rose. “And I guess I must have left the phone off the hook, because this is the first I’ve heard any of this.”
The judge raised a hand, stopping him. “The defense will have its opportunity to respond. Ms. Crawford, I presume you would like to present this testimony.”
“Yes, I would.”
“Objection,” said Jack.
“On what grounds?” asked the judge.
“No notice was given that this would be an evidentiary hearing with testimony from witnesses. My client isn’t even here. The Sixth Amendment guarantees her the right to be present and confront witnesses against her.”
It was lame, but it was the best Jack could do. The judge seized on it, offering up his BNN sound bite for the day. “Consider this your notice: Men in black robes sometimes hear evidence. Ms. Crawford, proceed with your witness.”
“The state calls Mr. Brian Hewitt.”
The double doors in the back of the courtroom opened, and the deputy brought Hewitt down the center aisle. Jack watched him all the way, but Hewitt never made eye contact. The witness cast his gaze at the floor as he swore the oath, and when he finally took a seat and looked at the prosecutor, whereupon everyone could see his face, it was obvious to Jack—as it must have been to all—that Hewitt hadn’t slept a wink last night.
“Please state your name,” said the prosecutor.
The preliminaries were familiar to Jack. It was his practice to commit to memory the basic personal information for every juror, and the recent flood of news coverage about Hewitt had more than refreshed his recollection. Jack was less interested in the litany of background information and more interested in Hewitt’s demeanor. The guy had the fidgets—as Jack’s late friend and mentor at the Freedom Institute would have said, “nervous as a long-tailed cat in a room full of rocking chairs.” The deeper the prosecutor led him into the proverbial room, the longer his tail grew.
“Mr. Hewitt,” said the prosecutor, “please describe for the court the first communication you had about the payment of money to you in exchange for a not-guilty verdict.”
Jack listened and took notes as the prosecutor walked Hewitt through two different phone calls and finally a face-to-face meeting. Five minutes, ten minutes, almost twenty minutes of testimony. Jack expected at each turn for the prosecutor to pause for dramatic effect and ask the witness if the man who had offered to pay him six figures for a verdict of not guilty was in the courtroom, at which time all eyes would follow the accusatory finger that was pointing straight at Jack. But that moment didn’t come.
And the judge seemed bothered by it.
“Ms. Crawford, as powerful and disturbing as this testimony is,” the judge said, “I’m concerned by what I’m not hearing. The prosecution is asking the court to set aside a verdict of not guilty and order Sydney Bennett to stand trial again on the same charges. I’m willing to hear your evidence, but let me say this unequivocally. There is
no way
I’m going to order another trial if you can’t show me that it was the defendant or her counsel, or someone acting under their direction, who bribed this juror. In other words, if you can’t show me that the
defendant
tainted this verdict, it’s my view that a retrial would constitute double jeopardy.”
Jack rose. “That’s our view as well, Your Honor.”
Crawford glanced across the courtroom at Ted Gaines, then back at the judge. “No worries, Your Honor. We can link the bribe to the defendant.”
With the court’s permission, a projection screen lowered from the ceiling, Crawford’s assistant went to the computer and brought an image onto it. Jack couldn’t tell what it was, but his finger was on the
OBJECT
button, figuratively speaking. Crawford walked over to Jack, gave him a copy of an affidavit, and then handed up the original to the judge.
“Your Honor, this is an affidavit from Petty Officer Charles Cook, United States Coast Guard,” said Crawford. “Officer Cook is stationed at Opa-locka Executive Airport in Hialeah, Florida.”
The image on the screen suddenly became clearer to Jack.
Crawford continued, “Officer Cook was on duty the night of July eleven. As set forth in the affidavit, Officer Cook shot two minutes of video on his iPhone from two forty
A.M.
until two forty-two
A.M.
For the record—and this is not a matter of dispute—Sydney Bennett was released from the Miami-Dade Women’s Detention Center at two twelve
A.M.
”
Jack was on his feet. “Your Honor, if the prosecution intends to offer this video into evidence, I object on numerous grounds, not the least of which is that this affidavit is no assurance of the authenticity of this recording.”
“Fine,” said Crawford, “if that’s the way Mr. Swyteck wants it. Judge, as I mentioned, Officer Cook is on active duty in the Coast Guard. We’d be happy to bring him in live when he’s not in a helicopter flying over the Gulf Stream.”
“That seems fair to me,” the judge said. “This isn’t a jury trial. We’re all here. Let’s see the video, and if the defense still has authenticity concerns, we can bring in Officer Cook for cross-examination. Roll it.”
The lights dimmed, and on Crawford’s cue, the grainy, still image on the screen came to life. It was a man and a woman standing by a chain-link fence.
“Stop it right there,” said Crawford. “Judge, I should add that since it was dark, our tech expert has enhanced this video to make the people in it more visible.”
“Your Honor, that’s yet another reason to exclude this video,” said Jack.
“I understand the defense’s position. In addition to the Coast Guard officer who shot this video, the prosecution will make their tech expert available for cross-examination. But right now we are going to see this video. Ms. Crawford, proceed.”
“Thank you,” said the prosecutor, and then she turned to the witness. “Mr. Hewitt, do you recognize the two people in this frame?”
“Yeah, the man looks like—”
“Objection,” said Jack. “The witness is clearly speculating.”
“Really?” said the judge. “It looks like
you
, Mr. Swyteck, which is what I believe the witness was going to say. Are you telling me that it’s
not
you?”
“With all due respect, I’m not on the witness stand.”
“We can put you there,” the judge snapped.
A chorus of chuckles washed over the courtroom.
“That objection is withdrawn,” said Jack.
“Good decision,” said the judge. “The witness may answer the question.”
Hewitt leaned forward, speaking into the microphone. “That appears to be Mr. Swyteck.”
“And the woman who he is with,” said Crawford, “do you recognize her?”
Hewitt nodded once, firmly. “I spent a month in this courtroom looking at Sydney Bennett. I’d swear that’s her.”
“Thank you,” said Crawford. She cued her assistant, and the video resumed.
Jack watched, riveted. It was an actual recording of the image that had replayed in his mind many times since that night. Sydney turning away from him. Sydney walking across the runway, slowly at first, gaining speed. Finally, Sydney running into the arms of a man who was waiting for her outside the small aircraft. After three years in prison, Sydney Bennett was in the full embrace of an unidentified man.
“Stop,” said Crawford.
The image froze on the screen—Sydney locked in the man’s arms.
Crawford faced her witness. “Mr. Hewitt, do you recognize the man in this frame?”
Jack froze. It was the question he’d been asking since the night of Sydney’s release.
“Yes, I do,” said Hewitt.
“Who is it?” asked Crawford.
Hewitt said, “That’s the man who I met at the Metromover station at Government Center.”
“The man who offered you the bribe?”
“Yes,” said Hewitt. “That man.”
Crawford paused, allowing the answer to linger. Her assistant turned off the video, and the lights came up. “I have no further questions.”
Jack did a double take. He was expecting to hear a name, but obviously the government didn’t know it. Or they didn’t want Jack to know it.