She makes a face like perhaps she is weighing her answer—maybe given them to others, but never for money. Then she finally says: “No.”
The relief on Radovich’s face up on the bench says, “Thank you.”
It seems that the cozy rigors of therapy, acknowledgment, and acceptance do not include admissions that might involve a stretch in the joint. Maybe there is hope for this woman yet.
The older woman, gray haired and Caucasian, sitting next to Ramirez moves perceptibly away, her eyes cast down at Ramirez’s purse. I suspect she is wondering what is in it at this moment, thoughts of little twisted white cigarettes, the horrified visions of needles and vials of pills.
I steal a glance at Acosta. He is smiling at Ramirez, his head I am sure dancing with images of joints being passed around the table during deliberations, followed of course by a mellow verdict.
I take her through the topics of concern, the burden of proof in a criminal case, proof beyond a reasonable doubt. She understands this. That the state must carry this burden and that the defendant has no obligation to prove anything in this case. She understands. Whether she has any difficulty presuming my client innocent in the absence of any evidence to the contrary. She says she does not.
“I see you have a position,” I tell Ramirez, “of some responsibility with this county commission?”
“We sit twice a month,” she says, “to act as a local clearinghouse for federal grants, and to review programs for funding.”
“And I take it you have considerable authority in these regards?” I ask her.
“Vice chairperson,” she says. “Next year, unless someone runs against me, I will be the chair.”
I give her congratulations, and then the question: “Are you expecting opposition?”
“Oh, no. But two years ago there was a contest. But that was different,” says Ramirez. “Some personality differences. I get along with everyone,” she says.
“So this is an elective post?”
“Yes.”
“This is considered quite a prize, to be chair?”
“It would go on my résumé,” she says.
“Then you know something about the responsibilities of public office?”
She gives me an expression, as if to say, “This goes with the turf.” I press her to answer the question for the record, and she says, “Yes.”
“What do you think of a man who is alleged to have committed the acts charged against Mr. Acosta? A former judge.”
“These are serious matters,” she says, “if they are true. Of course I have seen no evidence,” she adds.
“Of course.” I am getting a bad feeling, a woman anxious to leave behind a troubled background, who wants desperately to get along.
“How would you judge the testimony of a police officer, Mrs. Ramirez?”
“What do you mean?”
“Well, would you be inclined to believe it? Or would you tend to distrust it?”
“Neither,” she says. “I would listen to it. I would have to evaluate it with all of the other testimony I hear.”
Very good, I think.
“Have you ever had any involvement with the police department?” I ask here.
“I’ve never been arrested.” She wants to take my merit badge.
“That’s not what I mean. Have you ever worked with the police?”
“Oh.” She puts it back.
“Not the department,” she says.
“With any police officers?” I say.
“On the commission,” she says.
“And what is your involvement with police officers on the commission?”
“They come before us from time to time, with recommendations on funding for various programs.”
“That’s all?”
She thinks for a moment. “Oh, and two members of the commission, by law, must be a member of law enforcement,” she says, “one from the city, one from the county.”
This was what I was searching for.
“How many members are on this commission?”
“Five.”
“So it would take three to elect you to the chair?”
By the look in her eyes, suddenly I sense that she can see where I am going.
Radovich is leaning over the railing on the bench to get a better look. His country nose sniffing for the scent of bias.
She does not answer my question. I prod her, and she says, “Yes.”
“Mrs. Ramirez, what if one of the other non–law enforcement members of the commission decided to run against you for the chair of the commission? If that person were to approach the two law enforcement members for their support, it would be necessary for you to be on good terms with those law enforcement members, wouldn’t it?”
She makes a face, some concession. “It’s not likely to happen,” she says.
“But if it did?” I no longer want to burn one of our limited preemptory challenges. Ramirez must go.
“I would do what is right,” she says.
“Even if it meant losing your position as chairperson of the commission? Not being able to put this on your résumé? That is a heavy price to pay for sitting on a jury in a criminal matter.”
“It’s an important case,” she says. As the words leave her mouth she knows she has said the wrong thing.
“Important to whom?” I ask.
“I mean, just that it’s important,” she says. “A big case.”
The “event of the season” is what she is saying.
“Could it be important to the police officers who sit with you on the commission?”
“I don’t know,” she says.
“Is it fair to assume that they would not be happy with you if you were to vote for acquittal in this case?”
“They are fair men,” she says.
“But they would rather you voted for conviction?”
“I don’t know. I haven’t discussed it with them.”
“You understand that either way, if there is a verdict, they will know how you voted, because in order to arrive at a verdict the vote must be unanimous?”
If she didn’t have a problem before, she does now. The powers of suggestion, and the burdens of higher office.
“Very nice, Mr. Madriani. You don’t need to go any further,” says Radovich.
“Mrs. Ramirez?”
She looks up at him.
“I want to thank you for coming here today and for giving us so much of your time.”
She doesn’t get it.
“You’re excused,” says the judge.
“I could be fair,” she says.
“I understand,” he says. “You’re still excused.”
Radovich leans over the bench a little, a broad smile on his country face, and whispers to me, out of earshot of the jurors, those in the panel, and those beyond the railing, “Remind me never to let you near my well with any of that poison.” It is a good-natured but wary smile that he unleashes as I take my seat.
Looks to kill from Ramirez as she vacates the seat on the panel.
It is nearing noon and Radovich calls it quits for the morning. He takes an assessment from the lawyers, the consensus being that we should finish jury selection by tomorrow.
“I will see the attorneys in my chambers now,” he says. “Mr. Kline, you have something you want to discuss?”
As we enter the judge’s chambers, Kline is bumping me in the ass with a handful of papers.
“Very good,” he says. “We had rated Mrs. Ramirez as high on our list.”
“I’ll bet you had,” I say. “Let me guess. She was your ace against acquittal?”
He won’t say, but it is my guess that they were banking on Ramirez to hang the jury if suddenly the fat
es favored us in deliberations.
“You did your job well,” he says. Kline is the picture of your average good sport. He would have me believe that holding a grudge is against his religion, a creed to which Lenore does not adhere.
“We would like to have kept her on the jury, or at least forced you to waste a preemptory challenge,” he says.
“The fortunes of war,” I tell him.
“Oh, not war,” he says. He searches for a moment for the right term. “Maybe friendly forensic combat,” he says. Then a glint in his eye as another thought enters his mind. “Though I suspect your colleague will be taking no prisoners.” He is talking about Lenore.
I could tell him that mutilation on the field of combat is more likely, but I think Kline has already figured this out.
“The indomitable Ms. Goya,” he says. “Well, we shall see what the future holds,” he tells me. He gives me a look that would indicate there is something prophetic in this, then turns and takes a seat directly across from Radovich.
The judge has his robe off and boots up on the desk. There are a few cardboard boxes with books still in them on the floor, near his chair, Radovich’s traveling library. For all the use these are to the man, we could set them on fire.
I can see that the single volume of the Penal Code Radovich carries is two years out of date. The judge no doubt operates on the theory that like fine wine, new pronouncements of the legislature should mellow awhile before their fruits are tasted.
Lenore, Harry, and I sit like set pieces on the sofa. Kline and one of his deputies occupy the two client chairs.
“I hope this is something we can deal with quickly,” says Radovich. “I have a luncheon with the presiding judge.”
Kline tells him he will move with dispatch, but that it is a serious matter he is bringing before the court.
“It troubles me to have to raise the issue,” he says. An ominous tone.
“What is it?” says the judge.
“Conflict of interest,” says Kline. “Involving Ms. Goya.”
“Aw, shit. I don’t believe this.” Lenore is up from the sofa, and for a moment I think perhaps she is going to sink her fingernails into the back of Kline’s head.
Radovich looks at her like he’s never heard a woman say the S-word before.
“What are you talking about?” says Lenore.
“I’m talking about your representation of our office in the initial prostitution matter. Your interview of Ms. Hall in the office. Your access to confidential working papers and files in the solicitation charges against the defendant in this case. I’m talking about serious conflict,” he says.
“Give me a break,” she says. Lenore rolling her eyes, treating this with all the deference one might give to a squalling schoolchild.
She calls it a trumped-up issue, and complains about Kline’s delay in bringing the matter before the court, waiting until the eve of trial.
“There’s nothing trumped up about it,” says Kline.
“I think both of you should calm down,” says Radovich. “First things first,” he says. “I think we should have the court reporter in here before we go any further.” He issues a directive to the bailiff.
“I would suggest that the defendant should hear this as well,” says Kline. “It affects his representation.”
Radovich concurs and calls for Acosta to be brought in.
Through all of this Harry and I are sitting, nearly stage struck by what we are hearing. It is not that we did not see the problem. We had all discussed the potential of conflict in our earlier meeting at the office. But we thought that when Kline didn’t raise it in preliminary motions, the matter was deemed waived.
The court reporter is ushered in. She sets up her stenograph machine, and they roll in a secretarial chair.
Acosta is brought in by two of the jail guards. He is half-undressed, a T-shirt above suit pants, suspenders dangling behind him. He is clearly ill at ease to be seen in public this way, and Radovich apologizes and instructs one of the guards to get him a coat. The other guard brings in a chair for their prisoner, and then the two stand sentry inside the door.
While he’s putting on the coat he shoots a glance our way. “What is going on?” he whispers.
Lenore is too agitated to answer, and is at this moment edging toward Radovich’s desk for position.
“The prosecutor has raised an issue of conflict regarding Ms. Goya,” I tell him.
“Oh.” It is all he says, but the sober look on Acosta’s face tells me that he is weighing the consequences of this as it might affect his own fate.
The court reporter feeds a little piece of fan-folded paper into her machine, and we are ready.
“Now,” says Radovich. The signal for Kline to start.
“The people make formal motion,” says Kline, “that Lenore Goya be disqualified from participating in the defense of this matter based upon a conflict of interest. It is very simple,” he says. “It is our position that she has represented adverse interests in this case, and as such has compromised herself. The law,” he says, “is clear.”
He hands the judge documents, points, and authorities, citing the facts of alleged conflict and cases in point, the stuff he poked me in the ass with three minutes earlier.
Lenore can no longer restrain herself. “What is this? We are given no notice or opportunity to be heard?” she says.
I’m on my feet and join her at the edge of Radovich’s desk. A show of unity.
“If we could, Your Honor. We have not seen these documents.”
“Right,” says Radovich. “You got copies for opposing counsel?” Radovich clearly does not like the tactic; trial by ambush, and Kline is filled with remorse for the oversight. He chastises his subordinate for the error, and blames the man for the infraction of legal etiquette.
Kline’s fall guy rifles through his briefcase and comes up with two more copies. Stapled there are a dozen pages, cases underlined, a double-spaced argument.
The issue is clear-cut. Rules of professional ethics in this state bar a lawyer from representing two parties with adverse interests in the same legal action, civil or criminal. While there are fine points and nuances in the way the rules are applied, the penalty for a conflict is removal from the case, disqualification of counsel.
“There may be little question about what the rule says,” I tell Radovich, “but there is a serious question of waiver. Why did the prosecutor wait until the eve of trial to raise this issue?”
“A good point,” says the judge. “You are now threatening a delay, Mr. Kline.”
“I see no reason for any delay,” says Kline. “The defendant is ably represented. More than one lawyer,” he says. He is alluding to Harry and me.
“Not me,” says Hinds. “I never agreed to participate that fully.”
“Well, you’re here,” says Kline. “You’re being paid, aren’t you?”
“Not nearly enough,” says Harry.
Acosta gives him a dirty look, an imperious sneer.
“I wish to make something clear,” says Acosta. “I am not waiving time.” What he means is that he is still demanding a speedy trial.
Kline tries to draw our client into a dialogue and I intervene to cut this off. Failing this, Kline tells us that a speedy trial is not an issue, since the trial has already commenced with the selection of jurors.
He launches off on further argument.
“We believe that Ms. Goya is possessed of certain privileged information,” says Kline, “that she would not have except for her prior employment with my office. This places the people in a disadvantaged position.”
“The only disadvantage the people are suffering from is the incompetence of their lawyer,” says Lenore.
“Yes. Well, you’re the one charged with conflict,” say
s Kline. “Perhaps you should bone up on legal ethics.”
“Stop it now.” Radovich reaches for the first thing at hand, and slams a heavy metal paperweight on the top of the desk, putting a dent in the wood. He looks at this, and now utters the S-word himself.
“Charlie’s gonna kill me,” he says. He has borrowed Charlie Johnson’s courtroom for this trial and has now put an indelible mark in the top of his desk.
“Why don’t we do this in open court?” says Lenore.
“Why don’t you both shut up,” says Radovich. “And somebody find me some furniture polish,” he says, “and a rag.” He issues a frantic wave at the bailiff, who disappears into the other room.
I shudder to think what a court of appeal will conclude from this record.
It is clear why Kline has chosen to air this linen, here in the privacy of the judge’s chambers. A public argument would raise questions as to the running of his own office, the circumstances of Lenore’s departure, and perhaps questions about disgruntled prosecutors that Kline would like to avoid.
“Why did you wait so long to bring this up?” says Radovich. He’s rubbing at the wound in the desk with his thumb, drops a little spit on it, and tries again.
“Until the other day,” says Kline, “when Ms. Goya questioned Sergeant Frost on the stand, the extent of how deeply we were compromised was not clear.” He says this straight up, soberly, so that even I could not question the statement’s sincerity. I suspect it is also true.
“You put up perjured testimony,” says Lenore, “and I exposed it for what it was.”
“Your opinion about perjured testimony,” says Kline.
“Mine, and that of any other honest person in the room that day,” she tells him.
“On that we could argue endlessly,” he says, “and I am sure we would never agree. But one thing is clear. In cross-examining that witness you were privy to confidential information from Ms. Hall, information gleaned from your employment with my office.”
What he is saying is that Lenore may have won the battle with Frost, only to lose the war here.
The bailiff returns with a bottle and a piece of cloth and hands these to the judge.
The Judge Page 19
