“What about the Clarence Foster file you got from Gifford?” O’Hara asked. “You have looked at it, right?”
Jamison gave him a sour smile. O’Hara seldom allowed rules to interfere with objectives. “No, I did not look at the file. I told you that it was privileged and only Foster’s lawyer could look at it.” He waited expectantly for O’Hara. It only took a few seconds.
“So now Foster has a lawyer and …”
“That’s right, Bill. Now I’m going to give that file to Paul Carter and if there’s anything in it, he will come to me and want to deal. I won’t do anything unless I know exactly what he’s got, and that’s assuming he’s got anything.”
O’Hara sat down heavily. “You know, for a lawyer, you’re a lot smarter than you look.”
“Same goes for you, Detective O’Hara.”
Everyone was seated when Wallace came back in. This time Foster was in the witness box with his newly appointed lawyer standing next to him. Wallace went on the record. “Mr. Carter, have you had a chance to confer with your client?”
“Yes, Your Honor. Mr. Foster asserts his Fifth Amendment right under the United States Constitution. He declines to testify without immunity from prosecution.”
Wallace tilted his head. “I thought Mr. Foster already had immunity in this case?”
Carter moved over by the jury box, so he was in the direct line of sight of Judge Wallace as well as Jamison and Gifford. “Your Honor, my client may have immunity as I understand it, but I haven’t seen the immunity order and my client is asserting his Fifth Amendment rights based on my advice. I am not allowing Mr. Foster to testify further without adequate assurances that he has immunity.”
Wallace’s voice showed his exasperation. “Why wasn’t this resolved before today, Mr. Jamison, Mr. Gifford?”
Jamison stood shrugging his shoulders and looking sideways at Gifford. “Your Honor, I’m happy to provide anything to Mr. Gifford that he wants. I’ve given a full copy of our file.”
“It doesn’t include any immunity order,” Gifford snapped.
“Your Honor,” Jamison responded, “as the court is well aware, an immunity agreement requires the court to sign off. It should be in the court’s file. It isn’t in our file but as the court is also well aware, that file is over twenty-five years old. I gave him what I had that was subject to disclosure. I will acknowledge that I haven’t seen an immunity order, but I wasn’t the one calling Mr. Foster.”
Gifford snapped at him again. “What does that mean, ‘subject to disclosure’? You’re supposed to give me everything.”
Jamison responded calmly and precisely. “I’m supposed to give you all our reports. I don’t have to give you our notes of strategic plans or attorney notes, and you know that. All our reports, including witness statements of which I am aware, have been turned over to you.”
Wallace stood up and started walking off the bench. “Straighten it out, gentlemen, and call my clerk when you have something to tell me.”
Chapter 26
Within an hour of the court recess, Jamison had received two phone calls, one from Samuel Gifford demanding that he produce the immunity agreement and one from Paul Carter asking that he produce the immunity agreement. Jamison told them both the same thing, although he didn’t use the same tone of voice with Carter as he had with Gifford. He didn’t have any written immunity agreement and if there was one it should have been in the court’s file. He added something to the conversation with Public Defender Carter, telling him that he had something for him. Then he sent Ernie down to go through the court file with a fine-tooth comb and bring back a copy of the immunity agreement if it was there.
Jamison wasn’t expecting Ernie to find anything because he suspected that there was no written agreement. It wasn’t uncommon. Prosecutors and defense lawyers made deals all the time in exchange for witness testimony. Chances were that the actual deal was that if Foster agreed to testify, truthfully of course, that he wouldn’t be prosecuted for any part he had in the Farrow murder. Usually such deals were put on the record at some intermediate proceeding and weren’t in the form of immunity agreements, but it would also be likely that it would be brought up during cross-examination of the witness to impeach their credibility. That meant that Alton Grady would have asked about it, should have asked about it, and it would be in the cross-examination by Grady of Foster. Prosecutors liked witnesses to say that they weren’t testifying under a grant of immunity from prosecution but had only been told that as long as they told the truth they wouldn’t be prosecuted. It wasn’t much of a difference, but it did make the witness sound a little more sincere.
Jamison had gone through the testimony of Foster in the Harker trial, but he didn’t remember seeing any reference to a deal. That didn’t mean it wasn’t there. It only meant that he wasn’t focusing on it and he needed to go back. He made a mental note to do that, also flashing on the expectation that there should have been something in the notes in the DA file, when the phone rang. It was Paul Carter wanting to talk.
Carter looked around Jamison’s office with barely concealed envy. “Your offices are a lot nicer than ours.” Both men had fought it out in court a number of times. Aside from mutual respect, Jamison genuinely liked Carter and after most of their trials they had gone out and shared a beer or two—or three—and told war stories. It wasn’t a real social relationship. Carter had a wife and three kids and Jamison was single, but it was a solid professional relationship.
Jamison laughed. “Well, what public defenders do doesn’t make them the most favored people by the county board of supervisors. Besides,” he said, remembering the fraying carpet in the DA’s hallways, “if our offices are that much better than yours, then you really have a problem.”
Carter laid the ubiquitous yellow legal pad on the table. It was covered with scribbled notes. “I’m not going to let him testify without immunity.”
Jamison had expected this. “What’s Foster got to say?”
Carter leaned in. “Matt, I can’t tell you now. All I can say is I’m not sure what I need to do. I have to think about it. And my client isn’t doing anything to help me. But he did tell me enough that I’m not going to let him testify without immunity. He also told me that your father was the one who defended him. Is that right?”
“That’s right.”
Jamison shoved over the Clarence Foster file that he had received from Gifford, explaining, “I got this from Sam Gifford. You can ask him how he got it. Before you ask, I haven’t looked at it. I’m not going to say I wasn’t tempted but I don’t know what’s in it. I also know that it was my father’s file. He defended Clarence Foster and any deals that were made he made them. You’re now Foster’s lawyer. You have a right to that file because it belongs to your client. I don’t know if Gifford looked in it. You’ll have to ask him.”
Carter ran his hand across the brown accordion file and the flap with a string tie. “So this is from the famous Roger Jamison?” Jamison nodded but didn’t say anything. Carter looked at Jamison with a quizzical expression. “You know there’s a possibility what’s in this might hurt your case, don’t you?”
“Whatever’s in that file, it is what it is.”
Carter measured his words. “So what are you willing to give in exchange for what’s in this file? Like I said, I’m not going to let Foster testify unless we have some kind of a deal for immunity.”
Jamison had expected the question. “I’m not going to give you anything. I haven’t seen it but it’s pretty obvious Foster’s deal was for him not to be prosecuted in exchange for his testimony against Harker. Foster got his end of the deal. It still stands. Assuming the deal is what I think it was, then the DA’s office will honor it. Foster won’t be prosecuted as long as he testifies truthfully. If he doesn’t, then the deal’s off.”
“But if my client lied during the Harker trial like Gifford says he did?” Carter’s eyes narrowed as he considered the implications of Jamison’s carefully framed comm
ent.
“Well, if Foster lied, then that wasn’t part of the deal, was it?” Jamison kept his eyes directly focused on Carter, wanting to make sure there was no misunderstanding of the implication. “Paul, you look at that file. Maybe it has answers for you that I don’t.”
Carter stood up, taking the file off of Jamison’s desk. “What if the file says that Harker’s innocent?”
“Twelve people said he isn’t beyond a reasonable doubt. Now the shoe’s on the other foot. It’s Sam Gifford’s job to prove otherwise and it’s my job to make sure he does. It isn’t my job to make it easy for him.”
Carter rocked his head back and stared at the ceiling. “You don’t really believe that do you? You have a job to make sure justice is done.”
Jamison stood and extended his hand across his desk. “Paul, my job is to make sure justice is done but it is also my job to make sure justice isn’t undone. Take the file. I’ll be here when and if you want to talk.”
Carter walked as far as the door. “You know I can’t let Foster talk without a deal.”
“Like I said, Paul. Foster had a deal. It hasn’t changed.”
“Your dad was a legendary lawyer. I used to watch him, you know, when I was in law school. You’re a lot like him.”
“You probably saw him more than I did. Look at the file, Paul, and talk to your client.” Jamison sat back down as Carter walked out the door. He could feel his stomach knot. For some lawyers, the comment comparing him to his father would be a compliment. Jamison didn’t think it was and he knew Carter hadn’t meant it as one.
Chapter 27
Jamison was scanning Foster’s testimony in the Harker trial when Ernie walked in. He didn’t have any papers in his hand. Ernie sat down. “Nothing there, Matt. I looked through the court file. There’s stuff about Foster but it’s just records saying he appeared in court. Nothing about what he said or any deal.”
“I didn’t think there would be. I’ve been going over the testimony of Foster and the cross-examination of Foster by Alton Grady. Actually, even though some people said Grady was past his prime, he did a very thorough job of going after Foster. He just didn’t hit an artery.”
Ernie furrowed the eyebrows on his usually placid face. “Nothing? Grady must have asked about whether Foster had a deal. That’s kind of law school 101 isn’t it?”
“I didn’t say he didn’t ask. I said he didn’t hit an artery. What the transcript says is that Grady asked if Foster had a deal to testify and Foster said that as long as he told the truth he wouldn’t be prosecuted. According to Foster that was the total deal. There was no immunity in exchange for cooperation.”
Ernie persisted. “That doesn’t seem quite right. All you lawyers want assurances and tie deals up in bullshit written agreements. You’re telling me there’s nothing there except a promise not to prosecute as long as he told the truth? I can’t believe your dad would agree to that. He was supposed to be some kind of big deal criminal defense attorney, right?”
“He was a big deal defense attorney and you’re right. He wouldn’t have let Foster testify unless he had a deal that guaranteed his client wouldn’t be prosecuted. Even if Foster did tell the truth that still put him at the scene of a murder and it still exposed him to possible prosecution. And criminal defense lawyers don’t depend on their clients to be entirely truthful. What the DA wants to hear and what actually happened can be two very different things and you can’t afford to take any chances. So, any third-rate criminal defense attorney would have demanded an agreement for immunity from prosecution, and my dad wasn’t a third-rate defense attorney.”
“So, where’s the agreement?”
“That’s a good question. All I know is I don’t have it. If it exists, it should be in Foster’s DA file, or Harker’s, but it isn’t. I went to see District Attorney Gage but he’s in Sacramento gearing up for his political future. The other person is Judge Cleary, and before I go to him I’d rather have more information. The only other place is Foster’s file that I gave his new lawyer. But if there was a written agreement, then Alton Grady should have had it and that means that Gifford would have it because it should have been in Grady’s file. And I do know from Grady’s daughter that Gifford went through that file, and in court he claimed he didn’t have it.”
“You want to go see Alton Grady?”
Within a half hour, Jamison and Ernie were back at the convalescent facility where Grady now finished his days. Grady was in the same spot he’d been before, warm sunlight highlighting motes of dust hanging in the air around him. Grady was dozing when Jamison touched his shoulder. If the elderly man was startled, he didn’t move abruptly, but Jamison suspected he never moved abruptly anymore. Grady looked up with rheumy eyes. Jamison hadn’t noticed before that one eye was clouded by what appeared to be a long-present cataract.
He crouched down to directly face the elderly man. “Mr. Grady, you remember me? I’m Matt Jamison with the district attorney’s office. I’m handling the Richard Harker case. Remember me? We talked before?” Grady didn’t seem to show any spark of recognition. “I’m Roger Jamison’s son, remember?”
Grady reacted to Jamison’s mention of Roger Jamison. “Roger, yes, good lawyer. Is he still alive? Thought he was dead.”
“No, my father was Roger Jamison. He passed away a number of years ago.”
“They’re all gone, you know. Not many left. You look like him.” Grady squinted with his good eye, although Jamison doubted he could see anything through his thick, smudged glasses.
“Mr. Grady, you defended Richard Harker, remember? We talked before.”
Grady nodded slowly. “Yes. He was innocent, you know. Did my best.”
Jamison nodded. “I’m sure you did your best, sir. But there was a witness, Clarence Foster—do you remember him? He was a black man who testified he was at the scene with Richard Harker. Remember?”
“He lied.” Grady’s words came out emphatically. “That man lied. I tried. Couldn’t shake him. Didn’t have anything to use. Ask your father. He knows.”
Jamison put his hand on Grady’s shoulder, feeling the bone and not much else through Grady’s thin robe. “Was there an immunity agreement for Foster? Do you remember?”
For a moment Grady’s eyes seemed to focus and clear. “No—no agreement that I saw. Gage, he was the prosecutor, you know. Him and that other one, they said there wasn’t anything. All I had was Foster’s testimony. Did my best. Gage—son of a bitch. Didn’t trust him or that other one.” The strain of talking seemed to sap whatever strength Grady had. His head dropped down and Jamison thought about calling the orderly before he heard Grady begin to breathe heavily. The old man was asleep.
Ernie and Jamison got back in Ernie’s county car. Ernie looked over before starting the car. “Well, that went well. My plan is to die in my sleep after getting laid.”
“Yeah, that’s the problem with plans. They don’t always work out.”
Chapter 28
Jamison and Gifford waited outside Judge Wallace’s chambers. His clerk had called and told both of them that Judge Wallace wanted to see them at three o’clock. Neither man spoke to the other.
Judge Wallace opened his door and asked them to come inside. The walls of the dark wood-paneled office were covered with awards, plaques, and photographs. Even though there was hardly any room on the walls for more, there was even less on the edges of the office. Piles of files covered the floor and Wallace’s desk.
“Did you two find any immunity agreement?” Wallace’s tone registered his impatience with the delay in proceedings.
Gifford spoke first. “I don’t have one and the DA hasn’t given me one.”
Wallace looked over at Jamison who stared straight back. “There’s nothing in our file. What I have, I turned over.”
Wallace’s eyes narrowed as he took in Jamison’s statement. “There must have been something—you’re telling me that there’s no record of any immunity agreement?”
“Judge, all
I can say is that it isn’t in our files, if there ever was one, and it isn’t in the court’s file. This case is over twenty-five years old.”
“Have you talked to Bill Gage or Justice Cleary? They would know.” Jamison felt Wallace’s eyes boring in on him.
“Your Honor, Bill Gage is in Sacramento and, no, I haven’t talked to Justice Cleary.” Jamison hesitated. “But then again, it is Mr. Gifford’s burden of proof, not mine. I’m not going to do his investigation for him.”
Gifford interrupted the two-way conversation between Wallace and Jamison. “Your Honor, the DA is obligated to turn everything over.”
Wallace leaned back in his chair, reaching for the single mug of coffee that his doctor permitted him and that he nursed all day, warm or cold. “He isn’t obligated to help you prove your case. If he says he doesn’t have it, then maybe it doesn’t exist. But nothing is stopping you from calling Gage or Judge Cleary, either.”
Wallace shuffled papers around on his desk as he reflected on the appropriate course of action. “I suggest you go talk to Foster’s lawyer and then talk to Mr. Jamison. You and I both know I can’t do much about it if Foster refuses to answer. First of all, without some indication of the immunity agreement, I can’t make him answer because he has a Fifth Amendment right to refuse. And, more obviously, even if I order him to answer and he refuses I can only put him in jail, which is where he already is. So, I’m not much of a threat to Foster, am I?” Jamison kept silent. The judge had thrown the ball back to Gifford. “For right now, I suggest you move forward and call your next witness, so we can get through this. I will see you in court tomorrow. Thank you, gentlemen.” Wallace began pulling papers off the pile in the corner of his desk. The meeting was over.
Shades of Truth Page 18
