Open and Shut
This book is a work of fiction. Names, characters, places, and incidents are the product of the author's imagination or are used fictitiously. Any resemblance to actual events, locales, or persons, living or dead, is coincidental.
Copyright © 2002 by David Rosenfelt
All rights reserved.
Warner Books, Inc.,
Hachette Book Group, 237 Park Avenue, New York, NY 10017
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www.HachetteBookGroup.com
.
The Warner Books name and logo are trademarks of Hachette Book Group, Inc.
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First eBook Edition: May 2002
ISBN: 978-0-446-55107-6
Contents
To Debbie, who makes everything possible, and worthwhile, and fun
And to Heidi, Ross, and Brandy, who have given me the gift of pride
The “I couldn't have done it without my teammates” speech, which I ordinarily find insufferable, is unfortunately so accurate here that I'm compelled to give it. So, in no particular order, I would like to sincerely thank:
My agents, Robin Rue of Writers' House in New York on the book end and Sandy Weinberg of the Summit Talent and Literary Agency in LA on the film side. They are two of the most talented, honest, dedicated people I've had the good fortune to work with.
The many terrific people at Warner, including but certainly not limited to Jamie Raab, Susan Richman, Bob Castillo, Colin Fox, Julie Lu, and most especially Sara Ann Freed, an outstanding editor who is responsible for any coherence the book might possess. All of them could not be more supportive of a first-time author who doesn't have a clue what he is doing.
Jerry Esbin, David Matalon, and Steve Randall, three friends who were there for me when I needed them, and who taught me that big business can be intelligent and human and a lot of fun.
My legal advisers for the book: George Kentris of Findlay, Ohio, and Eric Weiss of Clifton, New Jersey. They generously lent me their remarkable expertise, and if the book doesn't sell and I find myself forced to commit a serious felony, it'll be in Findlay or Clifton.
Al and Nancy Sarnoff, who provided help in any way they could, and in their case that is considerable.
Those who read the book in its early drafts and offered gentle criticism, which is the only kind I can really tolerate. They include Debbie Myers, Heidi, Ross, Lynn, Rick, Mike, Sandi and Adam Rosenfelt, Stephanie Allen, Betsy Frank, Emily Kim, Jerry Esbin, Steve Randall, Robert Greenwald, Joe Cugini, George Kentris, Amanda Baron, Holly Sillau, Edna, Abbey and Sandy Silver, Nancy Carter, Roz Wagner, Suzanne Jarmusz, Nancy and Al Sarnoff, and the entire, wonderful Heller family.
Robert Greenwald, an extraordinarily talented director and producer, and an even better friend, who has gone out of his way to help me in every way possible. It was Robert's encouragement and counsel that is the only reason I am writing today. I leave it up to the reader to decide whether or not that is a good thing.
I would welcome feedback on the book from all readers at [email protected]
T
HE
L
INCOLN
T
UNNEL
IS A SCARY
place. Especially now, at the end of the workday. I'm one link in an endless chain of drivers, all moving our cars through an atmosphere of one hundred percent pure carbon monoxide. Tunnel workers patrol walkways along the walls; I assume they are there to make sure no car achieves a speed above three miles an hour. Their lungs must have a life expectancy of an hour and a half. Surrounding us all are thousands of tons of dirt and water, just waiting for a crack to come crashing through.
I usually avoid this tunnel. It is one of three main passageways between New York City and Northern Jersey, where I live. I prefer the George Washington Bridge, where oxygen is plentiful and it doesn't feel like I'm driving through an enormous MRI machine.
The fact is, I don't come into New York that often, and when I do it's rarely during the absurdly misnamed “rush” hour. But I needed to go to the NYU law library to do some research for an appellate case I'm handling, and I was stuck in court all day, so here I am.
I have two choices. I can ponder my impending death by suffocation under all this mud and water, knowing my loved ones will forever wonder whether my final resting place was in New York or New Jersey. Or I can think about the case, and what my strategy will be if the Court of Appeals turns us down. I go with the case, but it's a close call.
My client is death row inmate Willie Miller, a twenty-eight-year-old African-American convicted of murdering a young woman named Denise McGregor in the alley behind the Tea-neck, New Jersey, bar where he worked. It's a case my father, Nelson Carpenter, prosecuted seven years ago, when he was the State District Attorney. Ironically, it's also my father's fault that I'm on the case now.
I think back almost two years to the day I was at home watching the Giants play the Redskins on television. It was a frigid, windy, December Sunday, the kind of day that passing would be difficult, so each team would try to run the ball down each other's throats. My father had come over to watch the game with me. He was never a big football fan, and my fanaticism about the Giants was clearly learned elsewhere. But he had been joining me to watch the games with increasing regularity since my mother died a year before. I don't think it's that he was liking football any more; I just think he was liking loneliness even less.
It must have been halftime that he brought it up, since if it were during the game I never would have heard him. “Do you remember the Willie Miller case?” he asked.
Of course I did. My father had sought and received the death penalty; this was not something I was likely to forget.
“Sure. What about it?”
He told me that some information had recently come to his attention. He wouldn't tell me how, or even what the specific information was, but he said that he had learned that a juror lied in voir dire, a significant lie that could result in a new trial if revealed to the court.
He was grappling with what to do with the information, since revealing the specifics would amount to breaking a privilege. Yet as an officer of the court he felt uncomfortable with concealing it, since Willie Miller was entitled to have the truth come out.
“How would you feel about representing him on an appeal?”
“Me?” I'm sure my mouth was stuffed with potato chips, so it probably came out “Mnnpphh?”
“Yes. You could have an investigator look into it, find out the facts without me having to tell you, and then go to the appeals court.”
The case, as I remembered it, was open-and-shut. Willie Miller, even when seen through my skeptical defense attorney's eyes, was a murderer. I was not about to get involved in an appeal based on a technicality. What if it succeeded? I'd have to go through a trial I was bound to lose.
“No thanks.”
“It would be important to me.”
There it was, the sentence from which there was no defense. In my family, when you asked a favor of someone, it was acceptable to refuse. But once the person said that it was important to them, it crossed a line and became an absolute imperative. We did not use those words frivolously, and they carried an awesome weight.
“Then I'll do it.”
“You've got no chance, you know.”
I laughed. “Then why the hell is it so important to you that I enter the swamp?” That is how we referred to legal cases that dragged on forever with little or no chance of ultimate victory.
“Because the man is on death row.”
The Giants kicked off to start the second half, the Redskins drove the length of the field for a touchdown, and I was on a case that might well leave me forever stuck in the Lincoln Tunnel.
But, no! Suddenly, without warning, a burst of speed by the cars ahead lets me gun the accelerator to almost five miles an hour. At this rate, there's a chance I might make it home in time to leave for court tomorrow morning.
T
HERE IS NOTHING
LIKE A GOLDEN RE
triever. I know, I know, it's a big planet with a lot of wonderful things, but golden retrievers are the absolute best. Mine is named Tara. She is seven years old and the most perfect companion anyone could ever have. She is also funny and playful and smart. The only problem she has ever caused is that I spend so much time with her in the mornings that I am almost invariably late for work.
This morning is a case in point. I take Tara for an hour walk, throw a ball with her in the park, then come home and feed her. I've got to be in court by nine-thirty, so I wind up taking an eight-second shower and mostly get dressed in the car on the way. I'd love to take her with me, and she often comes to my office, but the bailiffs take a dim view of canines in court. What they don't realize is that she's smarter than half the lawyers that practice there.
Having said my goodbyes and given her a biscuit, I stop at a newsstand on the way to court, even though I'm in grave danger of being late. The decision to stop is essentially an involuntary one; I have long ago certified stopping at this particular newsstand as a permanent superstition. I would rather face the wrath of a judge by being late than irritate the newsstand god.
The name of this particular superstition is Eastside News, so named I'm sure because it's just a few blocks from Paterson Eastside High School. Not only does it have every conceivable magazine in the entire world, but there is a sign proclaiming it to be “Paterson's Only Out-of-Town Newspaper Stand.” I can easily understand why there is no competition for this honor; in all the years I have been stopping here, I've yet to see anyone buy a
Des Moines Register.
The proprietor of Eastside News is Cal Morris, a forty-five-year-old African-American. After all this time I consider Cal a friend, though my knowledge of him consists of his occupation and the fact that he hates the Knicks and Rangers. I also once overheard him talking about his football exploits at Eastside High, though that would have been about ten years before I was there. In any event, we never talk about these things. Cal seems like a nice enough guy, but his role in my life is strictly to satisfy my superstitions.
As I said, I'm late, so I quickly initiate the rest of the ritual.
Cal is ringing up another customer, but he sees me out of the corner of his eye.
“How they hangin' today, Cal?”
“Low, Andy, mighty low.”
“Gotta hoist 'em up,” is my practiced response.
“I try, but they keep gettin’ lower.”
We both laugh, though neither of us have thought this is funny for a few years. I buy a
Bergen Record
, which is what serves for the local paper now. I remember when there was a
Paterson Evening News
and a
Paterson Morning Call
, but both have long ago ceased to exist. The
Record
doesn't have the feel of a local paper, but it covers the national news pretty well. Besides, I'll be in court all day and won't have time to read it. I just feel silly stopping at the newsstand and not buying a paper.
The Passaic County Courthouse is a venerable old building, and to say it is the most impressive in downtown Paterson is to shower it with faint praise. My father once told me that the stature of the building and the courtrooms it contains can work against defendants, particularly those charged with relatively minor offenses. A juror looks at the majesty of the place and says, “This must be an important crime if it's tried here. Let's throw the book at the bastard.” These days the person usually representing the bastard is me, Andy Carpenter, attorney at law.
Today my client is Carmen Herndez, a twenty-three-year-old Puerto Rican immigrant accused of breaking into a jewelry store. There wasn't exactly a pitched battle in the legal community to land Carmen as a client. I got the assignment because his mother is Sofý, who owns a fruit stand next door to my office. What I know about Sofý she works sixteen hours a day, has a smile on her face every morning, and gets summer fruit before anyone else. I also know she asked for my help, and money wasn't an issue because she doesn't have any. What I don't know is whether her son is a crook. But that's what we're here to determine.
This is the third and last day of the trial. The Assistant DA, Norman Trell, has done his usual competent job of presenting his competent case to this competent jury, and soon they will be sent in to competently deliberate and find Carmen guilty. The only thing standing in the way of all this competence is my summation.
I take a quick glance at the large door in the back of the room, though I know it won't be opening for three minutes. I then take another look at Carmen, wearing a suit as if it is the first time in his life he has ever worn one. It probably is; that suit was hanging in my closet until the trial started. Carmen is six foot four and I'm five foot eleven; he looks like he spent the last six hours in a dryer.
I stand and begin my summation, walking toward the jury, though I know I'm about to be interrupted. Their faces are bored, their eyes glazed, twelve poor slobs who couldn't get a doctor's excuse or a valid note from their boss to get them off jury duty. To these concerned citizens, the only positive aspect to this upcoming speech is that it is the last one they will have to hear.
“Ladies and gentlemen, you've had to listen to a lot of talking these past few days, and I'm smart enough to know not to chew your ears off much longer.”
Two of the jurors smile, which shows how little humor they've been exposed to lately. The other ten think I'm bullshitting them.
“There are only two things for me to talk about, and then I'll shut up. The first is circumstantial evidence. Carmen Herndez stands accused on this kind of evidence. No one saw him break into that store. No one saw him take any jewels. No one saw him leave the store. Instead we have guesswork, and seem-to-be's, and probably's. The prosecutor, Mr. Trell, says, ‘Gee, with these circumstances, it sure seems to me that Mr. Herndez did it.’ ”
I look over at Trell, but he does not return the stare. He neither likes nor trusts defense lawyers, and as far as he's concerned, I'm the worst of the lot. I extend the stare, mainly because it will be fifteen seconds until the door opens.
“Well, ladies and gentlemen, that's not good enough.” Another pause for dramatic effect, as I wait impatiently. Open, door.
And open it does. Laurie Collins enters from the back. I turn, but then again so does everyone else. When Laurie Collins enters a room, you turn to see her. It's as simple as that. She is a beautiful, sexy woman, and I would say this even if I weren't sleeping with her. I would say it even if she weren't able to kick the shit out of me.
Laurie, as instructed, is dressed in a conservative pants suit. She is five foot ten, with blond hair and a perfectly proportioned body. That figure comes across despite the otherwise nonrevealing attire, but then again Laurie's body would look great if she were wearing a Winnebago.
Laurie seems excited about something, and she makes a motion to get my attention, a singularly unnecessary act. I nod and turn to Judge Kasten.
“Your Honor, if I could have a moment.”
Moments aren't something Judge Kasten is inclined to dispense, and he stares at me with an intensity designed to make me withdraw the request. When I don't do so, he finally says, “What is the problem, Mr. Carpenter?”
“I'm not really sure, Your Honor, but Ms. Collins certainly would not be interrupting were this not important.”
If there is such a thing as a stern sigh, Kasten pulls it off. “Make it brief.”
I walk over to Laurie, whose facial expression still shows excitement. Her words do not, though she speaks softly enough that I'm the only one able to hear them.
“Hi, Andy,” she says. “What's new in the legal world?”
Now, you may not think this is big news, but I look stunned, as if she had dropped a bombshell.
“Not a hell of a lot,” I say. “Still hot out there?”
She nods enthusiastically. “Yeah, close to eighty, although they're predicting a thunderstorm. By the way, you do realize your father is going to be upset by this, don't you?”
My father is not only the retired State District Attorney, he is also a legend in the legal profession. As the next few minutes are about to demonstrate, the legend gene obviously skipped a generation.
“You think I'm afraid of my father?” I ask her, incredulous at the possibility.
“Petrified,” she says.
“Then I'll tell him this was your idea.”
I make a triumphant fist and look skyward, as if thanking God for this good fortune. I may be laying it on a little thick, but these aren't the brightest jurors in the world.
Barely able to contain my excitement, I turn and walk to Carmen at the defense table. Since he can only speak about four words of English, I don't bother making sense when I whisper in his ear.
“All the while I'd be thinkin', I could be another Lincoln, if I only had a brain.”
I break out in a big grin and hug him. He figures something good must have happened, so he breaks out in just as big a grin and hugs me back. We are one happy lawyer-client team. Among the people who aren't quite as happy is Judge Kasten.
“Perhaps you would like to enlighten us as to what is going on, Mr. Carpenter?”
Smile painted on my face, I turn and walk toward the bench. “Sorry, Your Honor, but I thought my client should be the first to hear the good news.”
“And just what good news is that?” he asks.
“Well, I'm not sure why we had to learn about it this way …” I take the smile off long enough to stare a silent reprimand at Prosecutor Trell. “… but I've just heard a report that another man has confessed to the crime my client is being tried for. The media has the story. He is under arrest and is being held at this very moment.”
There is an uproar in the courtroom, or at least as much uproar as this scraggly group can manage. My eyes are on the jury, now fully awake and talking excitedly among themselves. “Can this be true?” they're thinking. “Does this mean we can go home?”
Carmen shakes hands and hugs everyone in sight; for a moment I think he's going to accidentally strangle the bailiff. My eyes are on the prosecution table, where one of Trell's assistants gets up and rushes out of the room, already drawing his cell phone out of his pocket as he goes. I watch him until I turn to the sound of an increasingly annoying noise. It's Kasten's gavel, and he's pounding it as hard as he can.
Eventually, order is restored, if for no other reason than to quiet that stupid gavel. Kasten turns to Trell, who is still looking befuddled.
“Mr. Trell, what is your information on this?”
Trell doesn't know what attitude to take, since he doesn't know if it's true. He plays it down the middle. “I'm having it checked right now, Your Honor.” He turns toward the doors in the back of the court as if to show Kasten where the answer will come from.
On cue, the assistant opens those doors and comes back in the room, holstering his cell phone as he does. He quickly goes to Trell and whispers in his ear. The jig, I am aware, is about to be up.
Trell nods vigorously, then turns back to Kasten. I think he so relishes what he's about to say that he's actually salivating. He uses his deepest voice. “Your Honor, I am told there is no truth whatsoever to this report.” Roosevelt spoke with less drama when he announced the attack on Pearl Harbor.
No sooner does Trell finish speaking than Kasten's head, as well as every other head in the courtroom, swivels toward me.
I shrug, as if I'm an innocent bystander. “I'm as surprised as you, Judge. The media in this town is getting out of hand.”
He, of course, is not buying it. “This is bizarre behavior even by your standards.”
Obviously he doesn't know my standards, but now is not the time to educate him. I shrug so hard my shoulders hurt. “Your Honor, surely you don't think—”
He interrupts me, which is just as well, since I wasn't quite sure how to finish the sentence. “Finish your summation, and then I'll want to see both counsel in chambers. The jury will disregard this entire incident.”
I walk toward the jury, shaking my head in amazement at this turn of events. Let's see if they disregard this …
“The second thing I wanted to talk to you about is reasonable doubt. If any of you believed, even for a few moments, that someone else had confessed to the crime my client stands charged with, then you must have a reasonable doubt as to his guilt.”
A cannon goes off in Trell's chair, sending him soaring to his feet. “Objection! Objection!”
He yells so loud that I have to yell over him to the jury, while I'm pointing to Carmen. “You cannot be absolutely positive about this man's guilt and at the same time be ready to believe that someone else did it!”
“Objection! Objection!” That Trell is quite a conversationalist. Meanwhile, Jean Valjean never pounded rocks as hard as Kasten is pounding the gavel.
“Bailiff, remove the jury.”
As I watch the jury file out, I know that Kasten is going to come down on me, even contempt is a possibility. I also know that I'm my father's son, and Kasten has too much respect and friendship for Nelson Carpenter to destroy his first and only born.
Besides, Carmen Herndez is going to be a free man within the hour, which makes this a very good day.