Jamison got up and walked toward the door of his office. “Well, there’s only so many people in this office besides us that would look at that file. I’ll check with Sheila.” Jamison walked the short distance to the outer office of Bill Gage, smiling at his gatekeeper, Sheila Barrow. “Sheila, I’m looking for an old file that has to do with the Harker case. I thought maybe Bill might know something about it. The name on it is—”
Sheila interrupted. “Clarence Foster? Is that what you’re looking for? Mr. Gage may still have it, I think. He asked for it the other day and I sent down for it.”
“Did he happen to say why he wanted it?”
“He said that Judge Cleary wanted to look at it, so that’s why I had it brought up. Should I tell him you’re looking for it?”
“No. I’ll talk to him later, thanks.” Jamison walked back to his office, seeing O’Hara with his feet up on his desk. O’Hara didn’t take them off until he saw Jamison raise his hand in a sweeping motion. He said, “Bill Gage has the file. Apparently Judge Cleary wanted to look at it. At least that’s what Sheila said.”
“So, what’re you going to do?” O’Hara started rubbing his mustache, which meant he was spinning through the options in his mind.
“I think I’m going to go see Harker’s lawyer. I suspect he has the Foster file put together by my father. Maybe not. But if he has it, whether he’ll give it to me—I don’t know.”
“But you gotta ask?” O’Hara got up, preparing to drive Jamison over to Gifford’s office.
Jamison grimaced. “No other way. The only claim I have to that file is my dad put it together. But it legally belongs to Clarence Foster.”
“What do you mean it belongs to Foster? Your dad was the lawyer, right? And you’re his son?”
“Technically, legal files belong to the client, not the lawyer. There are things in there that belong to the lawyer but I can’t go rummaging through it without Foster’s permission and neither can Gifford.”
“But you think Gifford’s already gone through it, right? I mean he’s not going to pass up that chance.” O’Hara’s cynicism about the ethics of lawyers always took him in the most suspicious direction.
“Well, he shouldn’t have, but that depends on Foster, and it depends on Gifford’s ethics, and it all depends on whether he has the file. Even if he does, we don’t know what’s in it.”
Gifford walked out into the entry area of his office when Jamison walked in with O’Hara trailing behind. “Your phone call said you wanted to know if I have your father’s old legal files?”
Jamison moved quickly to the point. “My understanding is that you used to work with my father in the office he shared with other lawyers.”
Gifford shook his head. “I wouldn’t say I worked with you father. It was more like I worked around him. I was young, and he was what I wanted to be.”
“Do you have his files?”
“I ended up with a collection of files that built up over time. As the law office changed and more lawyers came in, the files just got bigger, and when lawyers left or retired or died, the files just stayed. Same as your father’s files. Most of them went to storage and eventually there was just me. I pay the storage fees.”
“So, you have them?” Jamison was trying unsuccessfully to contain his impatience, realizing that Gifford was playing with him.
“I have the files that were left behind, but I’m assuming what you want to know is if they include Clarence Foster’s, right? I wondered how long it would take you.”
“It took me this long,” Jamison snapped back.
“And you want to know if I’ve looked at that file, don’t you?” Gifford waited, his eyes narrowing as he measured Jamison’s demeanor.
“Did you?”
“Well, I don’t suppose my answer would satisfy you one way or the other, but I do know the rules. Just because I defend people accused of crimes—unjustly of course—doesn’t mean I don’t try to do what’s right ethically. I’m sure you might question that, and I’m confident your attack dog”—he nodded at O’Hara—“doesn’t believe that, but it’s of no importance to me what you think. I thought about it and I decided that you can have the file.” Gifford walked over to a closet and pulled out an accordion folder. “Here you go. It’s been my problem, now it’s your problem. What’s the line? Choose wisely.” Gifford smiled like a parent watching a child get ready to do something that he would be sorry about, knowing the experience would be a lesson learned rather than a lecture disregarded. “See you in court tomorrow. I assume you’ll be there.” Judge Wallace had notified them that his calendar was open and they were on.
As Jamison walked out the door with O’Hara carrying the file, he heard Gifford say in a quiet voice, “Do what you think is right, Mr. Jamison.”
Chapter 25
O’Hara slid into the driver’s seat, putting the legal file on the console between him and Jamison. “So what do you think’s in there? You going to look now?” He stared at the file like a kid looking at a present under the tree two days before Christmas.
Jamison moved the file to the back, not answering. His father had made this file, touched it, written in it. And now that file was going to taunt him as he thought about what he wanted to do and what he knew he was supposed to do. It was almost like Roger Jamison was physically present in the car watching him. Jamison considered the irony of it. His father placing an ethical choice in front of him, a choice he doubted his father would have hesitated at.
O’Hara glanced over again at Jamison. “You going to open it or not?”
“I can’t open that file and Gifford knows it.”
“Whether he knows it or not, he figures you will.”
“Maybe so, but if there’s something in there one way or the other I can’t use it, and if I try I’ll be up before the state bar on charges for violating Foster’s attorney-client privilege. Let’s go back to the office.” Jamison didn’t say another word. Gifford hadn’t done him any favor.
O’Hara knew when to keep quiet.
Ernie was waiting for both of them when they walked back into the office. He had retrieved Foster’s DA file from Gage’s secretary. Jamison walked in and set the accordion file from Gifford down on the corner of his desk. He then opened another accordion file with Clarence Foster’s name on it and an old district attorney case number. Written in thick black flow pen on the front of the file were the words HARKER 187, the penal code for murder. Jamison turned to Ernie. “You gone through it yet?”
Garcia shook his head. “I waited for you.”
Jamison looked at the papers in the file and started pulling out stapled reports. It became quickly apparent that there was nothing in there that he hadn’t seen before in terms of reports, but there were notes in the precise handwriting he had seen in the main Harker file, the handwriting of then deputy district attorney Jonathon Cleary.
Slowly, Jamison read through the notes carefully scribed on a yellow lined legal pad. There wasn’t much. The notes had general trial strategy, a comment about the arrest of Foster, and comments about Farrow’s autopsy, at which Cleary had apparently been present. It was unusual that Cleary would be at the autopsy but not uncommon. He stopped when he came to a reference to Roger Jamison, his father. The notes roughly outlined a proposed agreement for Foster’s testimony. He read to the bottom of the page and flipped to the next page, but it was blank. If there was more it wasn’t in the legal tablet. The agreement for Foster’s testimony had to be memorialized somewhere because no defense attorney, particularly his father, would allow his client to testify without a very specific agreement in writing. He flipped through a few more pages in the legal tablet but that was it. The rest of the papers were evidence receipts and carbon paper copies of jail custody slips when Foster had been moved out of the jail for interrogation. Why he had suspected there might be something else he didn’t know. He handed the file over to O’Hara and Ernie. “Here, maybe you guys can find something.”
Judge Wallace
tapped his fingers impatiently, waiting for Gifford to finish shuffling papers while Harker squirmed around in his seat, his leg irons jangling indiscreetly. Jamison simply waited patiently. He didn’t know who was going to be Gifford’s next witness. Just because Gifford had indicated Foster the last time, that was then, and this was now. It wouldn’t surprise him if Gifford tried to catch him off guard. He was guessing it would still be Foster.
Jamison focused on where he was going to go with Foster. He had an objective and he had thought it through. He knew better than to go into cross-examination without having a focus and discipline. O’Hara had made another effort to talk to Foster in the jail but he had refused to cooperate, telling O’Hara to “fuck off.” Jamison considered that Foster had no idea how big a mistake that was to get on O’Hara’s bad side. In addition, Foster said he wanted a lawyer. Jamison had passed the word on to the public defender and left it at that.
He glanced at the back of the room and saw Paul Carter, a seasoned homicide lawyer from the public defender’s office. Carter shrugged when Jamison caught his eye. Carter had called and given him a heads-up that he had been assigned Foster, but he also hinted that Foster hadn’t been cooperative with him either.
Jamison felt sorry for public defense lawyers, who didn’t get to pick who to defend. Most of the time the defendants didn’t respect their public defenders. They didn’t consider them to be “real lawyers” because they didn’t charge five hundred dollars an hour. It never made any sense to Jamison. Most public defenders had far more experience than private lawyers. What they didn’t have was time. What they did have in abundance was too many cases and limited resources. All they really had was dedication and commitment, which, in Jamison’s experience, they gave to their ungrateful clients without reservation. Doing the right thing was a vastly different obligation for a public defender and a district attorney. A public defender made sure a usually guilty client got their constitutional right to a fair trial, even though he or she might want to take a bath after sitting next to an accused child molester or rapist as defense counsel. Jamison recognized that he didn’t have to rationalize what he did, at least most of the time. He had long come to realize that even what he did had its own shades of gray in it.
Jamison’s reverie was broken up by the rumble of Wallace’s voice. “Mr. Gifford, are you planning to put on any more evidence?”
Gifford seemed very tense, nodding to the court. “Yes, Your Honor. We call Clarence Foster.” Background noise disturbed the usually quiet courtroom as reporters and court watchers anticipated that this was going to be interesting.
Paul Carter walked forward, asking for the judge’s attention. “Your Honor, Paul Carter, public defender’s office. I’m here because it’s my understanding Mr. Foster has requested legal counsel in this matter.”
Wallace pursed his lips. “Has Mr. Foster made that request?”
“Well, Your Honor, it is a somewhat unusual situation. My office received a call from the district attorney’s office saying they wanted to talk to Mr. Foster, but he said he wanted a lawyer. So, they called us. Mr. Foster wasn’t very cooperative when I went to see him, but he did indicate—in his words, ‘I don’t care’—that he didn’t mind us being here. So I wanted the court to understand I will stand by in case the court needs me.”
“Thank you, Mr. Carter. I appreciate it. I suspect we’ll need your services today, but it remains to be seen.” Wallace turned his head toward a bailiff. “Get the witness from the holding cell, please.”
Foster was led into the courtroom by a bailiff who guided him into the well of the courtroom in front of the judge’s bench. He wasn’t wearing leg irons or handcuffs. Jamison surmised that Wallace hadn’t deemed him much of a threat, but that didn’t mean a bailiff wouldn’t be standing next to him. In the prisoner jumpsuit from the county jail, Foster looked like what he was, an aging man whose clothing had begun to bag on him as the years took their toll. The clerk swore him in as a witness and asked him to state his name. He took a seat on the witness stand without further direction.
Foster scanned the courtroom, his eyes momentarily locking on Harker. Nobody had to stand between them to feel the chill. Foster’s eyes moved slightly to his left as Gifford approached him. “Mr. Foster, you are currently an inmate at Corcoran State Prison, correct?”
“You’re the one what brought me here so you already know that. I want to go back. I told you, I got nothin’ to say.” The words were spoken quickly and without emotion. Gifford ignored the answer and persisted. “You know my client, Richard Harker, correct?”
Foster nodded before answering yes. He again gazed around the courtroom, avoiding Harker and looking at Jamison and O’Hara.
“In fact, you testified against Mr. Harker when he was accused of the murder of Lisa Farrow, correct?”
“I already testified. I got nothin’ more to say.”
“You served time at San Quentin State Prison at the same time as Mr. Harker, isn’t that true?”
“You already know or you wouldn’t have asked.” Foster’s tone remained flat even though his words themselves had an edge.
Gifford moved closer to Foster. “While you were at San Quentin did you have a conversation with my client, Richard Harker, in which you admitted that you lied when you testified he was the one who killed Lisa Farrow?” The question hung in the space between Gifford and Foster.
Jamison had anticipated this line of questioning and how he was going to handle it. Before Foster answered, Jamison was on his feet. “Your Honor, I object on the grounds of hearsay.” Jamison had thought about the legal problem that Gifford had. Hearsay was simply statements made outside of the proceeding that were offered to prove the truth of the content of the statement. Gifford had phrased his question carefully to avoid the objection, but he was still trying to get in the statement indirectly when he couldn’t do it directly. Jamison had speculated that Foster would be uncooperative. So far, he was right. If Foster didn’t testify the statement shouldn’t come in.
Wallace looked at Gifford. “The objection is sustained, Mr. Gifford. You can ask the witness whether he lied when he testified before, and if he says no, then you can impeach him or you can ask him what happened before. And if he says something different, then you can impeach him. But I want to caution you that before you do that I think we have to figure out whether Mr. Foster wants a lawyer or not since you are essentially contending he perjured himself.”
Jamison sat back down. Gifford was in a legal box, exactly where Jamison had hoped he could put him. The next move was appointment of the public defender, and no lawyer was going to let Foster testify without protecting his client’s Fifth Amendment right not to incriminate himself. Jamison had anticipated that also.
Gifford stepped back to the counsel table and then spoke with barely controlled anger. “Mr. Foster, you lied when you testified that my client killed Lisa Farrow. Isn’t that true?”
This time, before Foster could answer and before Jamison said anything, Judge Wallace held up his hand, stopping the proceedings. “Mr. Foster, do you want a lawyer before answering any more questions?”
The expression on Foster’s face looked almost reptilian as he answered. “I’ll take a lawyer if you’ll give me one. Don’t got no money. They don’t pay me much at Corcoran Prison.”
Wallace ignored the sarcasm and motioned toward the public defender. “The court will appoint Mr. Paul Carter of the public defender’s office to represent the witness. Mr. Carter do you accept?”
Carter walked past the counsel table and stood in front of the judge’s bench. “Yes, Your Honor, the public defender accepts and as the court might expect, I need some time to talk to my client before there are any more questions.”
Wallace inhaled with a rasping sound. “We will recess while Mr. Carter talks to Mr. Foster.” He looked over at Gifford. “Mr. Gifford, is there some reason you didn’t anticipate this is what was going to happen, so we wouldn’t have to stop everything?”
Wallace leaned forward across the bench. “The objection was sustained because it was a proper objection. The motives of the district attorney are not the issue and you know it. We are in recess for an hour.”
After Wallace left the bench, Gifford walked over to Jamison and leaned in close to his face. “I would have thought you would want to know the truth.” The vehemence with which he spoke caused O’Hara to tense up and stand.
Jamison remained controlled. “Mr. Gifford, you bring me something solid and credible and I’ll listen to it. But I’m not going to let you bring in a bunch of hearsay and innuendo. You’re going to have to do a whole lot more to get where you think you are going, and I have no intention of making it easy. Now please step away from me.”
O’Hara followed Jamison into an attorney conference room, waiting until the door was closed before speaking. “You knew this was going to happen? Why didn’t you say anything? You know Foster isn’t going to talk, especially now that he has a lawyer.” O’Hara made the observation while smiling. He looked like a proud father whose son just scored a touchdown.
“I expected this might happen. Unless Foster wants to cooperate, which I doubt, there’s no way he’s going to give up what Gifford claims. Besides, I want Gifford to put Harker on the stand. If Gifford wants to get all that crap in, then he’s going to have to expose his client. There’s a lot of risk in that and Gifford knows it. Since I don’t know what he has, I’m going to make him pull teeth to get it out. And he’s not going to be able to get in what Harker says that Foster told him unless Foster testifies.”
Shades of Truth Page 17
