Exquisite Justice

by Dennis Carstens

  “You think the judge will rule I can’t testify?” Maddy asked.

  Without hesitation, Marc answered. “No, I don’t for a couple of reasons. One, it’s too crucial to the state’s case. And what you saw and heard is not really a privileged communication from a client in the normal sense of that word. No one is asking you to divulge what a client told you only what you personally saw. Plus, you witnessed a very serious crime. I think she’ll risk being overturned on appeal rather than let a double homicide case slide.”

  Marc and Maddy entered the Ramsey County Courthouse through the Fourth Street entrance. The Art Deco twenty story building is a rare jewel in the era of glass and chrome office buildings. Built during the Great Depression, it came in under its $4,000,000 budget and ahead of schedule. Unheard of for a government project in more modern times.

  “Oh my god!” Maddy exclaimed. “That’s beautiful!”

  The two of them were walking through the first floor to get to the elevators. What had grabbed Maddy’s attention was a 60-ton, 38-foot tall white onyx statue of an American Indian. Originally named the Indian God of Peace, the PC police forced its renaming in 2012 to the Vision of Peace. Since it dominated the first-floor lobby, it was hard to miss.

  “Haven’t you ever been in this building before?” Marc asked.

  “Yeah,” Maddy replied while she read the plaque on the statue’s base. “But I always came in the Kellogg entrance.”

  “Impressive, isn’t it?” Marc asked.

  “I’ll say. It’s beautiful,” Maddy replied.

  “One of my favorite buildings,” Marc said as they continued toward the elevators. “Love the Art Deco style. Very classy.”

  “They should build more like it,” Maddy said.

  “Too expensive,” Marc said.

  They reached the elevators—the very last ones in Minnesota to give up the tradition of attendants on them—and waited for their ride.

  “Do you know this judge?” Maddy asked as the doors for their car were opening.

  “No,” Marc replied.

  The elevator doors opened and waiting in front of Room 1416 were Tony Carvelli, Vivian Donahue and Nicolette Osborne’s divorce lawyer, Harriet Kennedy.

  After greetings were completed, Kennedy said, “Nicolette and Adison are inside.”

  “Who’s the judge?” Marc asked.

  “Suzanne Kelley,” Harriet answered him. “You know her?”

  “No, uh uh,” Marc said. “Never heard of her.”

  “Adison likes her. Liberal feminist and relatively new to the bench. A couple of years. This is probably her first big homicide case,” Harriet said.

  “That could be good,” Marc agreed. “She’ll want to be careful and a little concerned about being overturned on appeal.”

  “You really think so?” Vivian asked.

  Marc looked at her and said, “I don’t know, Vivian,” he shrugged. “It’s a theory. To be honest, I don’t know any more than you do. This is an unusual motion. There doesn’t seem to be any cases directly on point. We’ll see.”

  “Why am I so nervous?” Maddy asked.

  “Good question,” Marc replied.

  “You’re the subject of this thing,” Carvelli said. “No one likes to have their name tossed around in court.”

  “Probably,” Maddy said.

  Marc opened the door and looked around. There were ten or twelve people, mostly elderly court watchers, seated on the benches. He saw three reporters that he knew for sure and two more who could be. The only one seated at the tables was Nicolette Osborne. The lawyers were in chambers with the judge.

  Vivian went in first and a very forlorn looking Nicolette turned to see her aunt striding toward her. Vivian, followed by Marc and Kennedy, marched right through the gate. Maddy and Carvelli took seats directly behind the bar.

  Vivian and Nicolette embraced then Nicolette said, “Thank you for coming. I feel better already.”

  Nicolette looked at Maddy and said hello and nodded at Carvelli.

  “You shouldn’t talk to each other,” Marc said referring to Nicolette and Maddy.

  “Sorry,” Nicolette said.

  “It’s okay,” Marc replied. “Just for the sake of appearances, ignore each other.”

  Nicolette looked at Maddy who shrugged her shoulders and said, “Sorry.”

  Before Nicolette could say anything else, the door behind the bench opened. Leading the way was Nicolette’s lawyer, Adison Greer. She was followed by the two prosecutors, Kevin Cheng and his second chair, Polly Connors.

  “We kicked it around and the judge decided to do this in chambers,” Adison quietly said when she reached the table. “She wants Madeline back there, too.” Adison looked at Marc and said, “I told her you were Madeline’s lawyer, so you get to sit in. And you, Harriet, in case she has any questions about Madeline’s employment. Sorry,” she said looking from Vivian to Tony.

  Marc whispered to Vivian, “I think this is best. Let’s keep this out of the papers.”

  “I agree,” Vivian said. “We’ll be fine waiting here.”

  They trooped single file into the judge’s chambers. Judge Kelley, in her robes, was seated at her desk. To her right, her court reporter was setting up his equipment. The judge amiably greeted everyone and told them to find seats.

  The prosecution took the two chairs to the judge’s left. Adison Greer moved her chair a couple of feet away from Kevin Cheng before sitting down. Nicolette was seated to Adison’s left.

  Marc, Maddy and Harriet Kennedy sat down on the judge’s sofa.

  “All set?” Judge Kelley asked her court reporter.

  He nodded his assent then Kelley turned to the small crowd in her chambers. She read the case title and court file number into the record then paused.

  “Starting with the prosecutors, I want each of you to give your name and who you represent for the record,” the judge told them.

  Cheng went first and then everyone else around the room identified themselves, including Maddy. When they finished, the judge started again.

  “We are here on a motion by the defense for an order of suppression to exclude the testimony of a witness for the state. That witness is Madeline Rivers and, as noted, she is present,” Kelley said.

  She looked at Adison Greer and continued, “The basis for that motion is Ms. Rivers, at the time of the event at the center of this case, was working as a licensed private investigator. Ms. Rivers, please read your investigator license number into the record.”

  Maddy found her billfold in her purse, opened it and read the number off of the license.

  “Ms. Rivers was in the employment of the defendant’s lawyer, Harriet Kennedy. Is that correct, Ms. Kennedy?”

  “Yes, your Honor, it is,” she replied.

  “Okay,” Kelley continued turning back to Adison Greer, “let’s hear it, Ms. Greer.”

  “Your honor,” Greer said beginning her argument, “the state wants to use Ms. Rivers as a witness for their case against my client for the death of Charles Osborne and Morgan Ellison. The defense is requesting that the court disallow Ms. Rivers’ testimony on the grounds of attorney-client privilege.

  “First of all, your Honor, Madeline Rivers did not actually witness the shooting deaths of the two victims.”

  “She saw-” Kevin Cheng started to say but was stopped when Judge Kelley held up her hand to him.

  “You’ll get your chance,” Kelley said.

  “As I said, your Honor, she didn’t see anything. She may have heard some gunshots, but that has not been determined.

  “Further, this was not a casual occurrence. Madeline Rivers was performing her duties as a private investigator on behalf of Harriet Kennedy, the defendant’s lawyer, and by extension, of course, the defendant herself. As you likely know, anything Ms. Rivers did in the course of her duties is obviously covered by attorney-client privilege. Or anything she may have seen or heard during the performance of her duties is privileged. She cannot testify. To allow
her to testify would be an obvious reversible error.”

  “Objection,” Cheng said. “She has no idea if this would be reversible error and it is inappropriate for her to even bring it up.”

  “Overruled. She’s a lawyer, Mr. Cheng. In a motion such as this, she is entitled to state her opinion. Are you worried that I might not have thought of that myself? Trust me. It occurred to me.

  “You may now continue,” Kelley told Greer.

  “Since Ms. Rivers cannot be allowed to testify, then the indictment must be dismissed.”

  Judge Kelley held up her hand to Cheng to stop him from interrupting again, which he was about to do.

  “The gun found in the living room must be excluded. They have no way of tying the gun to my client.

  “The gunshot residue test they performed is out because they had no probable cause to perform it and…”

  “She was sitting in the living room five feet from the murder weapon!” Cheng almost yelled.

  “…and, even if it’s allowed, the GSR found on her hands and clothing came from a shooting range earlier that day. Mrs. Osborne has been a competition shooter for twenty-five years. We have proof she was at the range that day.

  “In short, your Honor, without the testimony of Madeline Rivers their case falls apart. My client should not have to go through the ordeal of a trial to clear her good name. This must end now. Thank you.”

  “Mr. Cheng,” Judge Kelley said, indicating he could proceed.

  “This is preposterous,” Cheng jumped right in and said. “She, Madeline Rivers, was sneaking around peeping through keyholes…”

  “Objection!” Maddy jumped up and yelled.

  While suppressing a smile, Judge Kelley quietly said, “Ms. Rivers, please sit down.”

  By this time, Marc had a hold of Maddy’s arm and was gently trying to pull her back onto the couch.

  “Watch it, buster!” Maddy said to Cheng. “That’s not what I do.”

  Kelley looked at the court reporter and told him to strike everything Maddy said from the record. Her last remark clearly embarrassed Cheng and drew laughter, even from the normally stoic court reporter.

  Before continuing, the judge pointed a finger at Marc and then a still steaming Maddy. She then held that finger to her lips to make sure Marc got the message. Marc silently nodded his assent.

  “My point, your honor,” a flustered Kevin Cheng said, “was she was working on behalf of a divorce lawyer on an entirely separate matter. She was not involved with this criminal case. Plus, there was no communication in the common meaning of that word. The only thing the defendant said to her was,” Cheng looked at his notes and said, “‘I was about to call the police.’ The defendant told Ms. Rivers that after Ms. Rivers entered the house and found her calmly sitting in the living room. If the court wishes, we will stipulate that this statement was privileged and not allow it to be heard by the jury…”

  “Of course, they will,” Greer said. “Because it’s actually exculpatory.”

  Judge Kelley held up a hand to Greer to silence her.

  “There was no communication covered by privilege. Madeline Rivers is a material witness to a double homicide. The state’s case must have this crucial testimony.”

  “Ms. Greer?” Kelley asked.

  “Your Honor, hypothetically, let’s say I am representing a man accused of bank robbery. Then assume, after I have been retained, while driving in my car, I see this same man running out of a bank carrying a bag. Does the prosecution suggest I have an obligation to come forward and testify? That what I have seen my client do is not privileged? Of course, it is.”

  “No, it isn’t,” Cheng said.

  “Why? What’s in the bag? For all I know it could be his lunch. If I tell the police about this, they could try to use it against my client for the crime he is accused of for which I am representing him,” Greer said. “There are no fingerprints or DNA on the gun. It is not registered to my client, her ex-husband or the deceased woman he was having an adulterous affair with. In fact, the gun was stolen. It could have belonged to anyone. An ex-boyfriend or even ex-husband of the deceased.”

  “Your Honor, it comes down to Madeline Rivers must be made to testify as to what she saw and heard while outside the crime scene. There is no communication that privilege would apply to. This would make for an interesting law school or bar exam question,” Cheng continued. “but we have a double homicide. A premeditated, first-degree double homicide. Her testimony is crucial to the state’s case.”

  Kelley held up both hands, palms out and said, “Enough. I’ll take it under advisement and make my ruling.”

  Greer commandeered the jury room and brought everyone in after leaving Kelley’s chambers. Everyone found a seat around the table before Greer began.

  “Well?” she said looking at Marc, the criminal defense lawyer.

  “I have no idea,” Marc said. “If I had to guess, I think she’ll rule Maddy has to testify. I think it’s the ‘no communication’ argument. Plus, this was a serious crime. Sorry,” Marc said looking at Nicolette.

  Nicolette grimaced a bit then said, “That’s what Adison thinks, too.”

  “What do you think?” Marc asked Maddy trying to break the tension. “She thought she’d try her hand at being a lawyer,” Marc said looking across the table at Vivian and Carvelli.

  “Shut up,” Maddy said trying not to smile. “He made me mad.”

  Marc then told Vivian and Carvelli about Maddy’s objection.

  “Way to go, kid,” Carvelli said. “I’m proud of you.”

  “Actually,” Greer interjected, “she was pretty good. Emphatic and passionate.”

  When the laughter stopped, Greer said, “Seriously, Maddy. It was good. You slapped him pretty good and he noticeably dialed it back.”

  “See,” Maddy said looking at Marc. “I’m a natural.”

  “So, now you’re bragging that you’re a natural lawyer?”

  “Ah, I’m not sure I meant that,” Maddy replied.

  Carvelli, driving one of Vivian’s cars, a new Bentley, drove Nicolette home. Vivian was in the back seat with her niece and neither said a word.

  Carvelli pulled the car into the driveway of Nicolette’s Lake of the Isles home and parked. He jumped out and opened the driver’s side back door.

  “The thought of going back to jail…” Nicolette quietly said letting her words hang in the air.

  “You’re a long way from that,” Vivian replied. “One step at a time.”

  The women exited the car and embraced in the driveway.

  “Thanks, Tony,” Nicolette said.

  “If you need anything, call,” Carvelli said. “Anytime, day or night.”

  “Thanks, I will.”

  As they watched Nicolette walk up the sidewalk to the front door, Vivian said, “I’m really worried about her mental and emotional state. She doesn’t seem as strong as she used to be.”

  “Maybe some counseling,” Tony said.

  “I’ll see what I can do.”

  Sixteen

  “I think that’s Connie and Albert, three or four cars ahead of us,” Marc said to Maddy.

  They were in line at the Corwin Mansion on Lake Minnetonka. Vivian was hosting her annual summertime, invitation-only, charity event. Every year, on the Saturday evening of the last weekend in June, Vivian held an informal bash to collect for some cause or other. A ‘soak the rich’ party. If Vivian Donahue invited you to her party, a no-show RSVP was not acceptable.

  “What kind of car does he drive?” Maddy asked referring to Connie’s date, Appellate Court Judge Albert Spears.

  “That is a 1957 Chevy Bel Air,” Marc admiringly said of the classic car the judge was driving. “And it’s a beauty,” Marc said.

  “Guys and cars,” Maddy said.

  “That car, in the shape it’s in, can sell for up to a hundred thousand dollars,” Marc said as he inched forward toward the valet parking.

  “Seriously? Guys and cars,” she said
again.

  They saw Judge Spears stop and the parking attendants open the doors for them. One of them replaced the judge at the wheel to park it.

  “Watch,” Marc said. “Spears will watch the kid drive away.”

  That is exactly what the judge did, with an anxious look on his face.

  “Worried about his baby,” Maddy said watching Spears.

  “My favorite couple,” Marc and Maddy heard a familiar voice coming from behind them. They were in Vivian’s backyard ten feet from her pool taking in the scene. As usual, those in the scene were taking in Maddy. Her hair was done up and she was wearing a new fashion pantsuit. It was white, loose in the legs and bare shoulders. Very fetching and it covered the knife and bullet scars.

  “Hi,” Maddy said as she and Vivian hugged. Marc and Vivian exchanged cheek kisses then Vivian got in between them. She took both by an arm and started leading them toward a reserved table.

  “Have I told you how happy it makes me to see you two together?” Vivian asked.

  “Let me think,” Marc said. “Not for at least forty-eight hours.”

  “Shut up, smartass,” Vivian lightly said.

  “Feel free to slap him,” Maddy replied.

  “He’d like it too much,” Vivian said. “We have a table for you.”

  Connie’s office had a table reserved for all of its members. Everyone else was already there with spouses or dates. Introductions were made to the few new faces. While this was taking place, Marc nodded at Tony Carvelli.

  “Always the ones to be fashionably late,” Carvelli said.

  Without moving his head, Marc moved his eyes to look first at Maddy then back at Carvelli. Marc raised his eyebrows and was holding an arm against his chest pointing a finger at Maddy.

  “Of course,” Carvelli said. “Waiting for the Princess.”

  “I didn’t say that!” Marc quickly said while holding up his hands, palms out and taking a step back.