When the same bailiff announces that Judge Calvin Hurdle is presiding, it feels like I’ve already seen this movie. I can’t say I liked it the first time.
The very unusual situation concerning Denise Price and her allegations has taken an already high-profile case and increased it a few media notches. The gallery today is packed, and I recognize a number of television journalists. I even declined an invitation to appear on the
Today
show this morning.
“Mr. Bader, I understand you have an issue to bring before the court?” Judge Hurdle says.
Bader stands, buttoning his jacket as he does, as if speaking with an unbuttoned jacket would be a major faux pas. “Your Honor, I’m afraid there is a serious and unresolvable conflict here. Mr. Carpenter has already represented a client accused of this same crime. To take on a new client is a clear conflict. We believe that Mr. Willis must employ different counsel and should do so in a timely manner.”
Sam stiffens as he hears what Bader has to say. I should have warned him that it was coming, but I didn’t get to talk to him before we started.
“Your Honor, I am no longer counsel for Denise Price. She has made allegations against me, and they will be investigated and determined to be completely unfounded. That in no way should prevent Mr. Willis from representation by the lawyer of his choosing.”
Judge Hurdle looks a little dubious and asks, “What is your position regarding privileged communications between yourself and Mrs. Price?”
I nod. “It is my understanding from Your Honor that Mrs. Price has revealed what she purported to be privileged conversations that she and I had. By doing so, our position is that she waived any and all privileges. However, I have no intention of using any of those communications in this trial.”
“Mr. Bader?”
“Your Honor, this is a classic conflict, and it is exacerbated by the fact that Mrs. Price at this point remains a defendant. Her rights would not be adequately protected if Mr. Carpenter were to represent Mr. Willis against the same charge.”
I shake my head in disdain at Bader’s comment, trying to conceal my worry. “Mrs. Price’s jury will not be sitting here, and I have no doubt that Your Honor will be able to impanel a fair and unbiased jury in both cases. Mr. Willis’s rights must not be sacrificed by a purely hypothetical and unfounded concern for someone else’s.”
Bader doesn’t chime in, so I fill the silence. “The rights that we should be concerned with here belong to the person who stands accused, who sits at this table. If there was a conflict, it would be he who could be damaged by it. It is clearly a waivable situation, Your Honor.”
There are two kinds of conflicts, waivable and nonwaivable. My hope is that Judge Bader will recognize that this situation is the former.
He does.
He reads a small speech explaining the situation to Sam and asks if he fully understands what he has just heard.
“Yes, Your Honor,” says Sam.
“And is it your desire to fully and completely waive your claims in this matter and retain Mr. Carpenter as your counsel?”
“Yes, Your Honor,” says Sam.
“Very well. Mr. Carpenter, welcome back.”
I smile. “Thank you, Your Honor, always a pleasure. Now, if it please the court, I would like to make a request.”
“Proceed.”
“Thank you. At this point, the defense would ask that Your Honor grant us a preliminary hearing so that we can face these charges.”
Out of the corner of my eye, I can see Bader react in surprise. As requests go, he would have considered it more likely that I would ask for a change of venue to Pluto.
It’s accepted wisdom that the defense does not want a preliminary hearing, because it’s almost always a losing effort. The prosecution wins going away, and the resulting publicity is bad for the defendant. The standard of proof for the prosecution is so low that they rarely even present their whole case.
The judge asks Bader for comment, and he’s quick to do so. “Your Honor, a sitting grand jury is going to hear the evidence tomorrow.” Most often preliminary hearings are not held, and a grand jury issues the charges. I’m trying to change that here.
I nod. “Then it’s lucky we’re talking about this today. Sam Willis is an innocent man; until now he has never been convicted of a crime or even charged with one. Then suddenly, because of a single unsubstantiated allegation by a person who last week Mr. Bader was arguing was a lying murderer beyond a reasonable doubt, he finds himself sitting in a prison cell, facing incredibly serious charges.”
Bader shakes his head. “They are not unsubstantiated; there is ample evidence to hold the defendant for trial.”
“I have not seen that evidence. Sam Willis has not seen that evidence. So rather than Mr. Bader present it in secret, let him do it in the light of day, where we can challenge it and demonstrate the injustice that is being done.”
I’m giving speeches, playing to the media people, who must be eating it up. Bader is in a very difficult position. He has the legal right to adamantly refuse our request, but he is smart enough to know if he does so, the media reaction will be decidedly negative.
Additionally, he has little to fear. He clearly feels that his evidentiary case is strong, so what’s wrong with letting the world, including future jury members, hear about it?
I continue. “Your Honor, Sam Willis’s accuser sits in jail as we speak, accused of the same homicide. Is it the prosecution’s intention to just keep arresting people for the murder of Barry Price until they happen to hit on the right one?”
Bader is getting angry, which happens to be the emotional state I prefer for my legal adversaries. “Your Honor, that is a gross mischaracterization of the situation.”
“Maybe it is,” I say. “Let’s find out. Let’s let everyone find out. If the prosecution has nothing to hide, let them demonstrate it by coming out in the open. What have they to lose?”
I’m not even sure Bader heard what I said; he’s in rather animated consultation with two of his colleagues.
“Mr. Bader?” Judge Hurdle prompts.
Bader doesn’t respond. He’s still huddling, so the judge once again tries to get his attention, a little more sternly this time. “Mr. Bader?”
He finally stops talking to his staff and faces the judge. “Sorry, Your Honor. The prosecution would be willing to proceed with a preliminary hearing at the time of your choosing.”
The judge accepts that and we’ve officially won the argument. It will be a while until we find out if that’s a good thing.
As soon as the hearing is adjourned, Bader comes over to me. “They told me you were unpredictable,” he says.
“Most people find it charming.”
“Really? It must be an acquired taste. See you in court.”
With that, he turns and walks away. It’s a precision turn, like someone with a rifle on his shoulder would do during close-order drills.
I’ve got a feeling that Mr. Bader is no longer one of the great Andy Carpenter’s legion of fans.
I request some time to meet with Sam before he is taken back to the jail. He’s a little shaken by the close call in court and bewildered by my preliminary hearing request. Add that to the fact that he is suddenly spending his time in a seven-by-ten-foot cell, and he’s had a bit of upheaval in his life.
“Sam, it wasn’t a spur-of-the-moment decision, but it was close.”
“What was your reasoning?”
“Basically I wanted to shake things up. And I wanted to let the world know that we’re here and not going to put up with months of this crap.”
He smiles. “Music to my ears.”
I caution him that there’s little chance we will win and thereby get the charges dropped, but that I think we will benefit from the process.
“I’m in your hands,” he says, which gives me an even bigger pit in my stomach than I usually get from knowing a client’s life is in my hands. I’m told that some defense attorneys like that feeling of power; if they do, they should be institutionalized.
“I’ll do my best.”
“Andy, there’s something I don’t understand. How can there be evidence against me?”
“We’ll find out when I go through the discovery, but whatever it is, we’ll prove that it’s bullshit.”
“Thanks. How’s Crash doing?”
“Fine. He and Tara get along great.” The truth is that Crash and a potted plant would get along great, because basically all Crash does is sleep and eat. That, and he lowers his head when Laurie or I walk by so we can pet him. He’s lazy but adorable.
“He eating okay?”
“Like a small horse. But we’re teaching him some discipline, store-bought biscuits only.”
He smiles. “Laurie won’t bake?”
“Not in this lifetime.”
“Pet him for me for luck, okay?”
“I will, Sam,” I say, not mentioning that since adopting lucky Crash, he’s been wrongly imprisoned for murder.
“Hilda and Eli Mandlebaum visited me,” Sam says. “They’re really upset about what happened.”
“Just tell them not to move your computer out of that room.”
“I already did,” he says.
We chat for a few more minutes. I can tell he doesn’t want me to leave, but the guard is waiting for him. I once again give him the speech about not talking to anyone in the prison, but he knows the drill, so I’m not worried about it.
I told Denise the same thing a bunch of times; maybe I should have told her not to talk to the judge either. Then it hits me that maybe I should have worried as much about Denise listening as talking.
Sam is heading for the door and the waiting guard when I say, “Sam, wait a second.” He stops, and I continue, “Those times that you visited Denise, did you tell her anything about our investigation?”
“Not really, just mentioned how we were making progress, that kind of thing. I was trying to keep her spirits up.”
“When was the last time you saw her?”
“Three days ago.”
“Do you remember the conversation?” I ask.
“I guess so … not word for word.”
“Did you mention anything about Kyle Austin?”
He thinks for a moment. “I definitely didn’t mention his name. I might have said something like we had a good lead, we were checking out a guy in Columbus who received money from the bad guys. That kind of thing.”
“Okay,” I say, my worst fears confirmed.
“Did I do something wrong?”
“No, you did fine,” I tell him.
I think I’ll leave out the part about his signing Kyle Austin’s death warrant.
“I was giving Denise Price too much credit,” I say.
Laurie and I are sitting on the couch listening to music. Tara’s on the couch with us, and Crash is out cold on a recliner across the room. I’m not sure how he did it, but he actually got it to recline. I think for his birthday I’ll get him a hammock.
I’m frustrated, because without the discovery material, there’s nothing to do except sit and think. I don’t think very well when I’m trying to think. Most of my best thoughts enter uninvited.
“How so?” Laurie asks.
“At first I thought she was lying about Sam and me as some kind of desperate move to help herself. I figured she thought the trial was going badly, which it was, and she’d somehow get off by implicating Sam.”
“That’s giving her too much credit?” Laurie asks.
“It is if I’m right about her being involved in Kyle Austin’s death. I think she has access to a means of communication in the jail, probably a cell phone. According to Pete, there are more cell phones in the average prison than at a Best Buy.”
“No question about that,” Laurie says.
“So Sam mentions a lead in Columbus. He doesn’t have to mention the guy’s name, because she knows all about him. Austin immediately became dangerous to them; if we found him, he might talk. They’ve been eliminating a lot of people for just that reason.”
“There’re other places the leak could have come from.”
“I’m sure that’s true, but I don’t think it did. I think it was Denise.”
The phone rings, not my favorite thing to happen at eleven o’clock at night. The caller ID says
US GOV
, and I’m hoping that means it’s Muñoz, whom I’ve been trying to reach.
It is. “You’ve had a rough couple of days,” he says.
“I’ve had worse.”
“When?”
“You should have seen me the year the Giants didn’t make the playoffs, and don’t get me started on when they stopped making red M&M’s.” Then, “It’s my fault Austin got killed.”
“How’s that?” The tone of his voice moves from light to deadly serious in a nanosecond.
“Denise Austin found out that you were looking for him and got the word to her people on the outside.”
“And exactly how did that happen?”
“One of my people,” I say.
“Maybe you need new people.”
“On the other hand, if not for my people, you’d be sitting around not knowing anything, with your thumb up your ass.”
“So is that what you called me for? To tell me that you were responsible for getting a potentially key witness iced?”
“No, I wanted to tell you that nothing has changed in our arrangement. I’ve still got a client to defend, and you’ve still got bad guys to catch.”
He pauses for a minute, then “Okay.”
“So where are you?” I ask.
“Nowhere,” he says, either lying or displaying more candor than most FBI agents this side of Cindy Spodek. “We’re playing defense.”
“Do the dead guys have anything in common?” I ask, referring to the murder victims in Augusta, Concord, and Columbus. “Other than the fact that they all happened to live in state capitals?”
He hesitates for a few moments before answering. “What do you mean?”
“Well, I’m not talking about whether they were in the same fraternity or all rooted for the Celtics. I mean, is there anything about them that made them particularly dangerous? Maybe a violent history?”
Another hesitation. “Yes. At least one guy in each city was a veteran.”
“Is that unusual?”
“They were all artillery experts.”
There is no doubt that Sam’s arrest was warranted. The discovery documents confirm the depressing fact that the evidence against him, even in this early stage of the investigation, is substantial and incriminating.