by Tom Swyers
Phillip stood transfixed, in awe of the static on the two huge television screens. He thought if they were back in his motel room, they could put him to sleep for sure. At the same time he was dazzled by all the technology. In a flash he grew angry at the Bureau of Prisons—still stuck in the age of ancient, error-prone cassette tapes and outdated cameras. Kranston had 65 cameras that never worked when an inmate needed them. He knew it was a rigged game back at Kranston. He just didn’t realize how heavily rigged it was until now.
During his six disciplinary appeal hearings, Judge Leon Wolack was fond of saying, “Well, Dawkins, if New York could afford such advanced technology, don’t you think we’d use it?” Now Phillip saw with his own eyes that the state could afford the advanced technology, but the Bureau of Prisons chose not to purchase it because their real goal was to crush inmates by making testimony disappear in reels of magnetic tape that even the Salvation Army couldn’t resell.
Phillip got a glimpse of the life-cycle the system had planned for him. After a destroyed inmate had served his bid, the state was only too happy to dump his remains onto the streets. The messed up ex-con then became everyone’s problem, at least until life pointed him back to prison again. Ka-ching! Mother Kranston always welcomed repeat customers with open arms.
A slim, middle-aged woman dressed in a floppy white blouse, a charcoal gray pantsuit and sensible pumps approached David. She extended a hand, palm out saying, “If you have any documents you’d like the judge to consider, give them to me now. I will scan them and email them to him.”
“I’m sorry,” David said, “but are you the attorney for the state?”
“No,” she said, pushing back her brunette mane. “The state will not have a representative here today. I’m an assistant to Judge Fairbanks.” She waggled her fingers in encouragement. Time seemed to be of the essence in this proceeding.
“Oh, okay,” David said. As he shuffled through his papers to assemble his exhibits, he wondered how the state could prosecute their case without an attorney. He handed the exhibits to the woman then asked her, “Where is Judge Fairbanks located?”
“New York City,” she replied, turning on her heels and hurrying out of the courtroom.
It was almost time for the hearing to begin. David looked around the courtroom. They were still the only people there. Suddenly, a red light on one of the cameras started to blink. The camera hummed as it scanned the courtroom, stopping when it locked on David and Phillip. There was still static on the televisions. With the red light still blinking, David had the uneasy feeling they were being watched from the other end of the camera. Green lights on the microphones switched on remotely. David leaned over to Phillip. With his hand cupped over his mouth, he whispered, “Don’t say anything out loud from now on. The microphones are on.” Phillip nodded.
David scribbled a few notes to himself while Phillip stared down the camera. Judge Fairbanks’ assistant returned, handing the exhibits back to David before she promptly left the room again. As she made her exit, a man passed her in the doorway coming in.
The new arrival walked up to the table, reaching for a remote-control device. He was tall, older than both Phillip and David, with unkempt, wavy white hair, glasses, and a beard that looked like someone had put a package of steel wool through a blender. It carried a few crumbs and a smear of yellow near his mouth, likely the remains of his breakfast sandwich. The maroon V-neck sweater he wore revealed a once-white T-shirt underneath at the collar and around his midriff where it stuck out over his belly. His sweater was way too short. When he moved, an employee badge hanging from a tattered yellow lanyard bounced on his gut. In a burst of irony, it announced “Excelsior”—the New York State motto.
He pressed a few buttons, which made the static on one monitor off to the side disappear. Now the screen showed Phillip and David on TV. Then the man picked up another remote, pressed a few buttons that turned on the other TV in the middle of the judge’s bench. It revealed a brief head-and-shoulders view of the judge staring into the camera. The man then made an about-face. Without uttering a single word or looking at David and Phillip once, he left the room.
Now Phillip was sure that the Grateful Dead was playing somewhere in the building. He whispered to David, “That guy looks like the lead guitarist from the Grateful Dead—Jerry Garcia.”
David whispered back, “He’s dead, you know. Died in the mid-1990s.”
“Really?”
The judge now had his head down, as he shuffled through the papers before him. All David and Phillip could see was what the camera framed—his short, neatly cropped, fuzzy red hair. On the television screen, his hair looked unreal, like the thick, fuzzy mop of a GI Joe action figure. He peered up into the camera, put on a pair of black horn-rimmed glasses, and intoned, “Good morning.”
“Good morning, your honor,” David said.
“Good morning,” Phillip said.
“I can see you and hear you,” the judge said. “I take it you can both see and hear me?”
“Yes, your honor,” David said.
“Mr. Dawkins, I see you have counsel with you this morning. Is that correct?”
“Yes, sir.”
“I have the notice of appearance on record. Mr. Thompson, you are respondent’s counsel. Is that correct?”
“Yes, sir. But if it please the court, I may also testify as a witness as I was present on the date of inspection.”
“It is so noted. I have just activated the digital recording line. We are on the record.”
Phillip took note. No rickety, old cassette player here.
“My name is Judge Robert Fairbanks. I am the administrative law judge presiding over this matter at the New York City office of the Bureau of Licenses. This is a hearing regarding the Bureau of Licenses and Phillip Dawkins. Mr. Dawkins and his attorney, Mr. Thompson, are appearing via video conference from the Bureau of Licenses office in Albany, New York. Before we begin, will you both raise your right hands?”
David and Phillip raised their hands.
“Do you both solemnly swear or affirm that your testimony shall be the truth, the whole truth, and nothing but the truth subject to the penalty of perjury?”
“Yes,” they responded in unison.
“I am going through the state’s documents first, one by one, and will ask you if you have any objections to those documents being entered into evidence, or if there is any reason you believe I should not consider the documents in making my decision. After I review the documents from the Bureau of Licenses, you will have an opportunity to introduce any documents you brought with you, call any witnesses, and make any statement you would like to make. At the end of the hearing, I will write a decision and an order; you will get a copy before you leave. Do you have any questions about the process?”
“No, your honor,” David said. He couldn’t believe the judge was going to issue a decision from the bench. No need to deliberate on his part. David feared then that the entire process was a charade. Sure, the judge would hear them—right before he found Phillip in violation on all counts.
Phillip had heard a similar spiel at the disciplinary hearings at Kranston. If Leon Wolack had a cousin in the system, his name would be Judge Robert Fairbanks.
The judge said, “I have a notice of hearing in front of me dated yesterday. It is signed by a licensed investigator, badge number 576015, signature illegible, at your shop located at 1877 Central Avenue, Karner, New York.” The judge then itemized the violations, one by one, and read them into the record. “Do you have any objections to receiving this document into evidence?”
“Yes,” David said. “The investigator did not sign the ticket—the notice of hearing.”
The judge said, “I see that he tried to sign it. Don’t you see those lines above the signature line?”
David squinted hard at the lines on his copy. But they didn’t look like a signature—just three slashes with a pen. “I’m sorry. I still have to object to this document because I don’t t
hink that’s a signature. I think the respondent has a right to know the name of the inspector who is accusing him of the violations.”
“Okay, Mr. Thompson. Your objection is noted. I am going to overrule it because it looks like a name to me. It looks like a valid badge number too. I’m going to take judicial notice that the document is produced in the normal course of business at the Bureau of Licenses and admit it into evidence as state’s exhibit one. Anything else?”
“I don’t understand why the state is allowed to prosecute its case without representation. I think Mr. Dawkins has the right to cross-examine the state and, specifically, the investigator.”
“The state has made that decision. The evidence will be weighed with that thought in mind. But if you are making an objection based on their failure to appear, it is noted and overruled. Anything else?”
“Yes, your honor. I have a jurisdictional objection.”
“Okay, I’m listening.”
David had figured out why the inspector didn’t cite Phillip for lack of a business license and a barber license; he planned to work it to Phillip’s benefit. “Your honor, under the regulations and prior administrative case law, the Bureau of Licenses does not have authority to issue violations and assess fines against unlicensed businesses and operators. I submitted a brief memorandum of law as an exhibit.”
Judge Fairbanks began thumbing through the memorandum. Then he turned his attention to a manila folder, presumably containing the state’s paperwork. “Let the record show that the state’s file does not contain any evidence that the respondent is licensed either as the owner of a shop or as an operator. Mr. Dawkins, have you ever operated a barbershop before in New York or ever held a license as a barber in New York?”
“No, sir.”
“May I continue, your honor, on the same point?” David asked.
“Yes, go ahead.”
“The sole remedy under the regulations and case law is for the Bureau of Licenses to refer this matter to the attorney general.”
The judge sighed. “I’m going to accept this memorandum into evidence as respondent’s Exhibit A. I am going to rule from the bench on this one. I agree with respondent’s argument, especially in the absence of anything from the state. Given the circumstances, I rule that this case be dismissed, with prejudice, for lack of jurisdiction. Mr. Thompson, because the case has been dismissed, I will write my decision and put it in the mail to you. There being nothing further, this case is now closed.”
“Your honor, I have one more item—”
But before David could finish his sentence, the television showing the judge went to static. The judge had signed off and disappeared into thin air—poof! Court adjourned. Phillip and David stared at one another in total disbelief.
David had wanted to ask about the procedure he needed to follow to get the investigator’s name. He still thought it was fishy that the state investigated the shop on the first day it was open. They didn’t know there was anything to investigate then because neither the business nor the barber license had been received and processed.
“What just happened?” Phillip asked.
“Not here,” David whispered to him while pointing to the microphones. Their green lights were still on.
Together they hurried out into the hallway, heading to the elevator. “You caught a break, Phillip. Because you screwed up in getting your licenses in order, you screwed the state in its case against you. How’s that for justice?”
“So there are no fines, right?”
David pressed the elevator button. “That’s right. Thank goodness you screwed up. When they didn’t write you up for failing to have licenses, it made no sense to me. But I figured out they didn’t do that because if they pled that, it would be an admission on their part that they didn’t have jurisdiction.”
“Can the state appeal?”
“Yes, but there is only a single administrative judge assigned to appeals in the state on Bureau of Licenses issues. And he has already decided the exact same issue by dismissing the case.”
“Wow, that’s great news. But what about the attorney general? Won’t they refer the case to him?”
The elevator dinged, the door opened, and they boarded an almost-full car. “Let them go ahead and try. The attorney general probably has a case backlog one hundred miles long. I doubt an unlicensed barbershop and barber will be at the top of the attorney general’s list of cases to pursue, especially when we get all of our license paperwork in order years before he even looks at the case file.”
As the doors shut, Phillip didn’t have to close his eyes to travel to the butterfly field. The hearing outcome had restored his hope. He asked David, “Now what about those fish? Is the aquarium too small? What do you think?”
David rolled his eyes.
Chapter 11
David took Phillip out to lunch to celebrate their victory. They ate at the Golden Corral—all the chicken nuggets and salad you can handle with free refills on soda—before returning to David’s office.
Phillip folded his long legs under the table David had set up next to his desk. The knotty pine paneled space in the basement was turning from cozy to crowded with the addition of Phillip.
David handed him the barbershop mail. Phillip quietly and methodically read every piece of mail with intense concentration, his large hands dwarfing the “occupant” envelopes and brightly colored flyers. Meanwhile David rifled through the huge accordion file that Johnny had left for him at the side-door entrance.
Phillip asked, “What are all those papers you have there?”
“Never mind.” He knew Phillip was just a question away from asking about the source of papers. The last thing David wanted to do was to turn a good day into a bad day by mentioning Johnny McFadden’s name to him.
“You just pay attention to your mail for now. Look to see if there’s anything there about your licenses.”
“Okay.”
“Don’t waste your time reading and rereading every piece of junk mail like you usually do.”
“You’ve told me that before—”
“But you still read and reread it.”
“Sometimes I don’t know what’s junk and what’s not.”
“Here’s a little clue. If some outfit sent you junk a few weeks ago, and then sends you something a few weeks later, they’re probably sending you junk again.”
“I guess I like mail—any type of mail. It’s a holdover from prison.”
“And my response to that would be?”
“You’re not in prison anymore.”
“Correct,” David said. “I’m going to make a few phone calls, so keep it down for a minute.”
Phillip nodded and returned to reading his mail, gripping it with both hands, like he was reading the Gideon Bible in his motel room.
David picked up his landline handset and dialed his long-time attorney friend, Jim Fletcher.
“Hello? My caller ID says that David Thompson is calling. Could it really be him?”
“How’s it going, Jim?”
“I’m doing as well as a drunk might expect,” he said, laughing.
“You’re a funny guy. Hey, I need a favor from you.”
“Sure, anything. I owe you one. What’s up?”
“I need you to FOIL the Bureau of Licenses. You know what I mean, right?”
“Sure, you want me to serve them a with Freedom of Information Law request. What are you looking for?”
“A name—the name of the inspector who hit Phillip’s barbershop the other day.”
“Really? That’s news to me.”
“Yeah, it happened the day before yesterday.”
“Okay.”
“I need the inspector’s name and any other information in their file.”
“Why can’t you FOIL them yourself?”
“Because I’m sure they’re hiding something. If I FOIL them, they’ll see my name and know I’m looking for something in that file. They’ll deep-six it before I get my ha
nds on it. I need you to be my straw man, Jimbo.”
“Gotcha. How do you want me to proceed?”
“FOIL all of the Bureau of Licenses investigative files going back one year in the Albany area. That request won’t alert them that you’re after only one file. Have them put all the files in order chronologically and look for the file for Phillip’s Barbershop. The hearing was this morning. We won, by the way.”
“Nice.”
“Copy everything in Phillip’s file and call me when you’re done.”
“Got it.”
“Thanks, Jim. Appreciate it.”
“My pleasure.”
“I’ll talk to you later then.”
“You bet,” Jim said, hanging up.
As soon as he heard the dial tone, David was back to punching numbers into his phone. It started ringing on the other end. “Come on, Julius, pick up already. I know you’re sitting at your desk with a coffee in one hand.”
On the sixth ring, he picked up. “Special Agent Moore here.”
“Yes you are special, Julius.”
“Always the joker, Thompson.”
“Took you long enough to pick up there, Julius.”
“I saw it was you, and I debated with myself over whether I should answer or not.”
“So, are you saying I won the debate?”
“Given the choice between the staggering amount of paperwork on my desk and talking to you, yeah you won. Congratulations. So what’s on your mind? You’re not blowing up oil trains again, are you?” Moore had pursued David as a terrorist suspect before realizing he was innocent. Together, they worked to find the real oil train bombers. The two men had grown to be friends after David’s efforts saved the life of Julius’s granddaughter—among other children—when an oil train exploded near her Albany elementary school.
“No, sorry, nothing as exciting as that.”
“You sound like you have something for me, then.”
