The Judge

by Steve Martini

  “Not when she read her statement in my office that afternoon,” says Lenore. “I suppose she could have been wearing contacts. Kept the glasses in her purse.”

  “Does the police report say whether they were men’s or women’s?” I ask.

  “Lemme see.” Harry roots through one of the piles of paper, like a guinea pig eating yesterday’s Tribune on the bottom of his cage.

  “Not it. No.” Another page goes flying. “Here it is.”

  He reads silently for a moment.

  “No. Just says, ‘Identified for photographs and directed Forensics to gather one pair of broken spectacles found on the living room floor of the victim’s apartment. Appear to be reading glasses. Spectacles evidenced bent metal frame and one broken lens. Possibly damaged during struggle with assailant.’” Harry shrugs. “That’s it.”

  This becomes a showstopper as we consider the possibilities, and avoid conjecture on the one that could be most damaging.

  “Could be nothing,” says Lenore.

  Harry and I are both looking at her, but it is Harry who says it.

  “Acosta wears cheaters.”

  There is a moment of sober silence as we consider the ramifications.

  “We can’t assume that our client is telling us the truth,” he says. “One thing is certain. The cops will be checking Acosta’s prescription to see if it’s a match.”

  The glasses are one of those pieces of evidence that as a prosecutor you love. If they’re a match to Acosta the cops will play it to the hilt. If they are not they will try to bury them, some incidental left in her apartment by anyone, swept onto the floor in the melee with the killer, while we argue to a deaf jury that they are exculpatory evidence, left there by the real killer.

  “Just to be safe,” I say, “let’s get Acosta’s prescription.”

  “Maybe his wife has it,” says Harry, “or can steer us to his optometrist.”

  “We can ask him if he is missing any glasses tomorrow,” says Lenore. “We’ll see him at the jail.”

  “Like I say. His wife should know who his optometrist is.” On such matters Harry does not trust clients. It is the nature of his practice, and perhaps in this case Harry’s take on the character of our client.

  For the moment we pass this.

  “Anything else from the girl’s apartment?” I ask.

  “Forensics found some trace evidence, microscopic shavings of heavy metals. . . .” Harry’s thumbing through the notes trying to find it.

  “Here it is. Little bit of gold on the edge of the metal coffee table,” he says. “Trace amounts.”

  “Where do they think it came from?” says Lenore.

  “According to the report, speculation is that it might have scraped off of some jewelry worn by the perp. A watch, a bracelet, something like that,” says Harry. He gives us a big shrug with his shoulders.

  As he does this, Lenore is looking at me, both of us with the same thought. There is no mention of the little gold item we glimpsed that night, the shiny object buried in the potting soil on the floor of Hall’s apartment. What it was and how it got there we are now left to wonder, along with an even bigger question: What happened to it?

  “Not much beyond that,” says Harry. “Preliminary notes. Blood found, no typing as yet. Murder weapon is believed to be a blunt object, based on the massive head wound. Not found at the scene.”

  Lenore and I exchange a knowing glance. We had both assumed that the girl struck her head on the metal corner of the tabletop during a fall. Now we are confronted with suspicions that it may have been more than this.

  “Anything on the condition of the body?” says Lenore.

  This sends Harry scurrying for other notes. He finds what he’s looking for.

  “Her attire didn’t leave much to the imagination. A pair of white nylon panties, and a cotton top. That and the blanket the killer wrapped her in,” he says. “Oh. And there was a large bath towel wrapped around her head.”

  I look at Lenore.

  “Probably to keep blood off the interior of the killer’s car,” she says.

  “You’d think the blanket would have done that,” I say.

  She gives me a shrug.

  “The report notes some bruising on the victim’s throat. Probably the result of the violent confrontation leading to death, according to the cops,” says Harry.

  “Did they do a rape kit exam?” says Lenore.

  Harry looks for the report, finds it, and pages down with one finger. Flips the page.

  “Yeah. Here it is. According to the report, pathologist did it, but no findings.”

  “What does that mean, negative result?” I ask.

  “Not necessarily. Standard instructions from our office,” says Lenore, “was not to disclose anything except the essentials in the early reports. They’ll tell you they did the report, but not what they found.”

  “I thought it was supposed to be a search for justice,” says Harry.

  “That’s what we want the information for,” she says. “Just us.”

  There is a long history of mandatory discovery in this state, something that used to be a one-way street with the prosecution disgorging all of its information to the defense. But the worm has now turned, and recent laws demand reciprocal discovery. The cops are experts at hide-the-ball, something we are still learning.

  “Semen in the victim would be critical evidence,” I say. “Especially if the perpetrator was a secretor.” This could lead to a blood typing, or more to the point, a DNA match.

  But Harry is troubled by some other obvious point, something that Lenore and I discussed that night after leaving Hall’s apartment.

  “Why would the killer move the body? Seems an inordinate risk,” he says.

  There is no rational answer to this. But then homicide is not a rational act. That those who perpetrate it might act illogically is the rule rather than the exception. It is why so many are caught.

  Harry doesn’t buy this.

  “The glasses I can understand,” he says. “People panic, drop things. Their business card at the scene,” says Harry. “But take a dead body and move it. I could understand if the place belonged to the killer. Move the body. Mop up the blood. But it’s her apartment There’s no evidence that she lived there with anyone except her child. At least the reports don’t disclose any roommates.”

  It is one of those imponderables. Lenore shakes her head.

  “What if somebody else moved the body?” I say.

  “That’s crazy,” she tells me. “Makes no sense. Why would anybody do it?”

  I scrunch up my face, a concession that I do not have a better answer. I make a mental note to see if somehow we can work this crazy act, the movement of the body, into our defense.

  “Let’s talk about the child,” I say.

  “Little girl,” says Harry. “Five or six.” He can’t remember so he paws through the pile of paper. “Here it is. Five years old,” he says. “Name is Kimberly.”

  “Where was she that night?” I ask.

  “She was there,” says Harry.

  Lenore’s gaze meets mine like metal drawn to a magnet. This is the first time we have heard this. The little girl has not been mentioned in the news accounts; apparently she’s being shielded by the cops.

  By this point I’m stammering. “Did she see anything?”

  “The notes aren’t clear,” says Harry.

  “Where was she in the apartment?” She wasn’t in her bed when I looked, but I can’t tell Harry this.

  “Cops found her in a closet. In the hallway,” he says. “Huddled up in the shadows.”

  The door that was open a crack, that I peered through.

  Lenore has the look of cold sweat as her eyes lock on mine.

 
“We have to find out what she saw. Get a specific order for discovery,” I tell him. “We need to nail it down early.”

  “What about the witnesses?” says Lenore. “Any of the neighbors see or hear anything?”

  “A statement from one upstairs neighbor,” he says. “She heard something that could have been a scream about seven-thirty.”

  “It could fix the time of death,” I say. “See how this fits in our case.”

  “Anything else?” Lenore means witnesses.

  “Not that night,” says Harry.

  “What’s that supposed to mean?” I ask.

  “One of the neighbors said she heard a lot of arguing from Hall’s apartment a couple of weeks before. Lotta noise. Angry words. A male voice,” says Harry. “Next day, Hall comes out of her place with a shiner.”

  “Any clue as to the male voice?”

  Harry shakes his head. “If the cops know, it ain’t in their report.”

  “Check with the neighbor,” I tell him. “What about the guys who found the body? In the alley?”

  “Transients, all three. Names we have. Addresses?” He gives a shrug. “Sixteen hundred Dumpster Manor,” he tells me.

  “How do we find them if we want to take a statement?”

  “Good point,” says Harry. “Knock on the lid?”

  “Any driver’s license numbers?”

  “You gotta be kidding.”

  “Fine. What do they say in the report?”

  Harry makes a big goose egg with his fingers.

  “No statements?”

  “Nada. Just their names and a note by the first officer on the scene that they found the body in the Dumpster.”

  Harry looks at me. We are thinking the same thing, that this leaves a lot of room for creative investigation. Without a clear statement by these witnesses, they are open to suggestion, the subtle, and not so subtle, shading of recollections. If the witnesses have criminal records they may be subject to pressure by the cops to embellish their testimony, to suggestions of things they did not actually see, such as the car that dropped the body or the person who was driving it.

  “We need a specific motion, filed tomorrow morning,” I tell Harry, “demanding all written statements from their witnesses and specifically the three named individuals. You know they would have taken statements,” I tell him.

  “They probably have the witnesses on tap.” Harry means in jail.

  “You guys are cynical,” says Lenore.

  “What? This from lady ‘just us’?” says Harry. “You wanna bet they don’t have ’em on ice? Some trumped-up charge? Vagrancy. Or maybe some interstate federal rap, like defecating in a trash bin. The cops know if they let ’em go, they’ll take the next coal car to Poughkeepsie.”

  “Find out,” I say, “if they have them. If so, I want an interview so we can take our own statement.”

  Harry makes a note.

  “While we’re at it, get the transcripts of all computer transmissions from the patrol cars that night and any copies of radio transmissions. Also subpoena the victim’s telephone records for the last ninety days. Let’s see who she was talking to.”

  The kids are getting restless, noisy footfalls on the stairs and a lot of giggling. We are about to lose all semblance of calm.

  “Anything else in their notes or reports?” I ask.

  “Just one item,” he says. “The police are assuming that she knew her killer.”

  “How so?”

  “No signs of forced entry,” says Harry. “According to their reports she must have unlocked the door for him. The cops had to find the landlord to get in.”

  I give him a dense look, just as Sarah reaches me, hugs around the neck and wet kisses. My dining table is suddenly transformed into the center of merriment, like a Maypole in spring, three little dancing girls circling and singing.

  Lenore grabs the hand of one of her daughters and joins in a chorus:

  Here we go round the mulberry hush,

  the mulberry bush,

  the mulberry bush . . .

  I sit there with a dumb look on my face. Though I cannot see it, my expression at this moment must be one of a kid sucker-punched somewhere in the lower regions. I watch Lenore skipping around the table and wonder why, when we had gained such fortuitous entry, she would bother to lock Brittany Hall’s apartment door on the night of our visit?

  CHAPTER 9

  ON OUR WALK TO THE JAIL THIS MORNING I ASK LENORE about the lock on Hall’s apartment door.

  “I don’t know,” she says. “Maybe I locked it without thinking. An automatic reflex,” she tells me. “I can’t remember. Besides, what can we do about it now?”

  Leriore’s conclusion is an obvious statement of fact. We can do nothing. Still, I’m concerned. We have affected the state of the evidence in a capital case, causing the police to believe that the victim knew her killer, someone she would have admitted to the apartment past a locked door. There is now a galaxy of other potential perpetrators, burglars, sex maniacs, strangers all, whom we have excluded from the mix of possibles. We have, by our own conduct, intensified the focus on the man with a motive, our own client, Armando Acosta.

  They say you take your client as you find him. Today we find Acosta, a seeming shadow of his former self, as he stares at us from beyond the thick glass of the client interview booth in the county jail.

  Acosta’s face is drawn, eyes that you could only call haunted, and yet still a hint of the former dominance that defined the man. Now instead of the twelve-hundred-dollar Armani, he wears an orange jail jumpsuit with its faded black lettering, the word PRISONER stenciled on the back. A guard stands outside the booth on his side.

  “They have me on a twenty-four-hour suicide watch,” he tells us. This, the thought that others might think him capable of taking his own life, seems to depress him more than the fact that he is in this place.

  Lenore tells him this is a usual precaution in such cases, where people of note have been arrested. It is one way to keep him from the general lockup with the other prisoners. There are probably a hundred inmates here who, if given the chance, would cut Acosta’s throat and never look back, people he has sentenced from the bench in his former life.

  She mentions that reports from the county shrink indicate that he is depressed.

  “I cannot sleep at night,” he says. “Not with someone watching me. I am tired. It is sleep deprivation,” he says, “that’s all.”

  “Given what’s happened,” she tells him, “it would be normal to be depressed.”

  “Don’t patronize me, Counselor. Yes. I give you depression. But suicidal I am not.” His voice through the tiny speaker embedded in the glass sounds as if it emanates from another planet.

  She tells him she will look into the twenty-four-hour watch, but that in the meantime we have a lot to cover.

  “What about bail?” he says. His own agenda.

  A touchy point. Lenore is left to do the honors, as he will no doubt take this better from her than from me.

  “Judge Bensen refused to hear the matter.”

  With this, the look on his face is crestfallen.

  “He insists that it be assigned through the usual process,” she says.

  Jack Bensen is the presiding judge of the municipal court, where Acosta’s case now rests pending a preliminary hearing. According to our client, he is a good friend. Acosta was confident Bensen would entertain a motion for bail before assigning the prelim to one of the other judges.

  “Did he say why?” says Acosta.

  “He feels the appearance of impropriety would be too much,” she tells him.

  “Impropriety! What is improper about bail?”

  “It’s a death case,” I tell him.

  “They have no evidence,” he
says.

  “That’s what we’re here to talk about,” I say.

  “It’s more the process.” Lenore tries to soften it. “The judge felt that the public perception of going outside the usual process would be wrong. Besides,” she says, “they’re going to have to bring in a judge on assignment from another county to hear arguments on bail and do the prelim. They have all recused themselves.”

  “The entire municipal court bench?” he says. “I don’t even know half of them.”

  I can believe it. The judicial pecking order that prevails. There are judges of the superior court who deem it beneath them even to greet in an elevator a member of the lower order. The lack of power or prestige might be contagious: the court’s own caste system.

  “All the judges, both municipal and superior,” she tells him, “have disqualified themselves from presiding over your case.”

  If there was the slightest spark of fervor for the fight left, this seems to extinguish it. That the possibility of recusal could have evaded him is a measure of the confusion that must surely rage in his mind since his second arrest.

  “Judge Bensen says he was told that recusal was appropriate by the Judicial Council.” This is the state court’s administrative arm.

  The look in Acosta’s eyes says it before he utters the words: “The old boys’ club.” The clan to which he was never admitted, the judicial establishment.

  “I am the wrong color,” he says. “Hispanic surname and an accent. An easy target.”

  The accent he has honed with diligence for over a decade. I have spoken with people who attended college with him who do not remember his having even the slightest hint of one, who never heard him speak a word of Spanish in four years. During his review for appointment, a period of ascendancy in affirmative action, he wore these symbols of cultural diversity, some would say with feigned pride. There were those who referred to Acosta as a “professional Mexican” behind his back. It should come as no surprise that he would retreat to this, ethnicity as a lifeboat in his current sea of troubles.

  “Don’t you think,” he says, “that they are out to get me because of my race?”

  This is not just paranoia, but Acosta’s hard view of a possible defense. The brown ticket to freedom.