“In other words, if this fingerprint did, in fact, belong to Xavier or his father, the print was of sufficient quality for you to make that determination. And you ruled them out. Correct?”
He paused, not because he didn’t know the answer, but because he seemed to appreciate the gravity of his admission. “That is true. The unidentified print does not belong to either Xavier or his father. As a forensic scientist, I’m certain of that much.”
“Thank you, Doctor,” said Jack, and he was happy to end it right there.
Chapter 25
On Thursday Jack paid another visit to the Miami-Dade Pretrial Detention Center. It was a standing appointment with his client. Sort of.
Jack was fed up with the silent treatment from Xavier. He wanted to talk about Maritza, but the emphasis was on talk. So Jack had written his client a letter about his meeting with Maritza and said, “Let’s have a real conversation.” He’d made it abundantly clear that it would not be another session of Jack talking and Xavier listening. “I will come to the lobby every day at 10 a.m. and wait five minutes. If you’re ready to talk to me, have the guard send me up.” A week had passed, and with each visit Jack had come and gone in five minutes with no word from Xavier or the guard. On a Thursday, fifteen days after the shooting, Jack’s conditions were met.
“Your client will see you, Swyteck,” the guard told him.
Jack felt optimistic as he rode up the elevator with the guard. Progress, it seemed, was being made. Xavier was waiting for him in the attorney-client meeting room, seated in a chair at the table with his arms folded across his chest. No shackles this time, and no bruises about the face, which Jack took as a sign of Xavier’s adjustment to life behind bars, the most important aspect of which was learning how to stay out of trouble. Jack waited for the guard to close the door on his way out. He then pulled up a chair, turned it around backwards, and sat rodeo-style, facing his client.
“Ready to have a conversation?” asked Jack.
Xavier said nothing.
“I know you can speak,” said Jack. “The guard told me he heard you praying in your cell this morning.”
Jack waited, but it was back to the old routine. Nothing from Xavier.
“You did read my letter, right?” said Jack.
Xavier lowered his gaze, breaking eye contact.
“We had a deal,” said Jack. “I offered to come up here if you agreed to talk. You accepted that offer. Now it’s time to honor your end of the bargain.”
Xavier drew a deep breath and let it out. But no words followed.
It was frustrating, but Jack had dealt with worse. A client who wouldn’t talk was probably better than a client who lied constantly or threatened to kill you. Jack had to change strategies.
“Here’s my dilemma,” said Jack. “The defense has a legal obligation to tell the prosecution if there will be an alibi witness. I also have a legal obligation not to put a witness on the stand who I know is lying. I’m not going to spin my wheels trying to track down Maritza if my own client tells me she’s lying.” Jack leaned a little closer. “Is she lying, Xavier?”
Again, no reply.
“I think she is,” said Jack. “And I think you’re the shooter. What do you have to say about that?”
Xavier lifted his gaze and looked at Jack, but that was the extent of his reaction.
“Let’s put my opinions aside,” said Jack. “This may sound a little far afield to you, but I want to tell you this story. It’s about an ol’ friend of mine from college. Ray married his college sweetheart and started a family long before I did. He has a grown daughter now who’s fantastic. Ray had a son, too. Jason was his name. He died when he was seventeen. Suicide.”
Xavier shifted in his chair, clearly listening.
“Jason was a lot like you. Good-looking boy. Excellent student. You were accepted to MIT; I think Jason was headed for Cal Poly or some other top engineering school. Jason never had a girlfriend, though, until his senior year of high school. He was nuts about her, his dad told me. Then she dumped him. Jason was devastated. As much as his dad tried to help him through it, Jason just couldn’t get over it. So one Saturday night when his parents went out on their weekly date night, Jason grabbed the keys to his car, closed the garage door, rolled down the car windows, and started the engine. Two hours later his father found him slumped over in the front seat. Jason was gone.
“Terrible story, I know. What his dad can’t get over is that Jason didn’t want to die. He knows that because Jason recorded a video on his cell phone while he was fading away inside the car. Jason was professing his love to this girl who had dumped him. His dad says that every psychiatrist and health-care professional who watched that video and heard Jason’s last words reached the same conclusion. Not only did Jason not want to die. He didn’t even believe that he was going to die. Jason had cooked up this fantasy in his head that his parents would come home from dinner, find him, and rush him to the hospital. And when the doctors revived him and he came to, this girl who had dumped him would be standing at his bedside, and she’d throw her arms around him, kiss him, and say, Oh, Jason, you really do love me!”
Jack gave his client a minute to absorb the story, and then continued.
“Like I said, Xavier. I think you did it. But for one moment, let’s step into that alternative world of possibilities, the one percent chance you’re innocent. Is all of this some kind of romantic fantasy for you? You sit in this room in silence, not helping yourself, not letting me help you. Do you have a tortured vision in your head of this case going all the way to trial, all the way to the last day of trial, and it looks like you’re going to be convicted and sentenced to death? Then let me guess. Suddenly the doors in the back of the courtroom swing open, and in walks Maritza. She tells the jury that she loves you and that the two of you were making passionate love all morning while the real shooter was murdering innocent students across town at Riverside Day School. You and Maritza lock eyes from across the courtroom, the two of you unable to comprehend another minute apart from each other. Maritza saves you from the needle, and the two of you live happily ever after.
“Is that the game you’re playing, Xavier?”
All expression drained from Xavier’s face. He was a complete blank.
“I hope not,” said Jack, “because that is not going to happen. If you don’t open up and talk to me, this is not going to end well for you. I speak from experience. I’m not bragging, but I’m highly regarded in this unpleasant line of work in capital cases. Even so, I have more dead former clients than living ones.”
Jack waited, hoping that the weight of his story hanging in silence between them would impel a response. But the ticking seconds turned to minutes, and Xavier said nothing. Jack had one last card to play.
“I spoke with Imam Hassan from your mosque,” said Jack. “He told me that he met Maritza.”
Xavier didn’t deny it, but given the track record, it was impossible to infer an admission from silence. So Jack dropped the bomb.
“He said Maritza was a prostitute.”
Jack waited. A slow but steady transformation was underway, right before Jack’s eyes. Something at a very primal level was churning inside Xavier, not just in his mind but throughout his entire body, as if those little bubbles that form in a pot of water on the stove were rising ever faster. Xavier didn’t speak, but Jack thought he saw him mouth the word prostitute—and the pot boiled over. Xavier sprang from his chair, roiling mad, as fifteen days of self-imposed silence erupted from his molten core. He grabbed the chair and threw it across the room, smashing it against the wall.
“Xavier!” Jack shouted.
The door burst open, and two guards rushed in. Xavier was about to slam the table against the wall when the guards tackled him, pinned him facedown on the floor, and cuffed his wrists behind his back.
“Don’t resist!” the guard shouted, and Xavier’s body went limp.
The other guard checked on Jack. “Are you all right?�
��
“I’m fine,” said Jack.
The guards lifted Xavier from the floor and took him toward the door.
“Wait,” said Jack.
They stopped, but only the guards glanced back at Jack. Xavier kept his head down, facing the exit. His anger seemed to be under control.
“We’ll talk again, Xavier,” said Jack.
“Maybe when he gets out of disciplinary confinement,” said the guard.
Xavier was silent, but fully compliant, as the corrections officers took him away.
Chapter 26
On Friday Jack was again before Judge Martinez—without Xavier, who was in day two of ten days of disciplinary confinement for his violent outburst. Hannah was at the defense table with Jack. Abe Beckham, on behalf of the state of Florida, and Sylvia Gonzalez, for the Justice Department, shared the prosecutor’s table to Jack’s right. The proceeding was open to the public, and several rows of seating behind the lawyers were filled with friends and family of the victims. They were almost outnumbered by the media.
“Good morning,” said Judge Martinez. “We are here on Mr. Swyteck’s motion, is that correct?”
Jack rose. “That’s correct, Your Honor.”
The judge flipped through the file before him, reading. “The defendant seeks an order of the court compelling the production of all evidence, including forensic reports, concerning an unidentified fingerprint found on the firearm allegedly used in the shooting at Riverside Day School.”
“The defense also subpoenaed the federal government to produce any similar records,” said Jack.
“Which the National Security Division of the Department of Justice opposes,” said Gonzalez, rising.
Beckham rose. “I can simplify matters, Judge. The state of Florida has no objection to turning over whatever records it has in its possession. But the National Security Division has asked us not to.”
“On what basis?” the judge asked.
“I’ll defer to Ms. Gonzalez on that point,” said Beckham.
“National security, Your Honor,” said Gonzalez.
The judge threw up his hands, looking at Jack. “Mr. Swyteck, you need to enforce your subpoena against the federal government in federal court in Washington, DC. Not here.”
“And I will,” said Jack. He stepped to the podium, taking charge. “Your Honor, I’m before you today because the existence of an unidentified fingerprint on the murder weapon clearly raises questions as to the guilt or innocence of my client. The prosecution has an obligation to turn over to the defense all exculpatory evidence. If Mr. Beckham has that information, this court has the power to, and should, order the state of Florida to give it to me. Whether the federal government must give me that information is an argument for another day in another courthouse. But my client has a right to have whatever Mr. Beckham has in his possession.”
“I think I understand the issue Mr. Swyteck is raising,” the judge said, “and it’s an interesting one.”
Gonzalez spoke up. “Yes, Judge, it’s an interesting issue for a law professor to research for two years before publishing some bleeding-heart article in a highbrow academic journal.”
“It goes to the heart of my client’s constitutional right to a fair trial,” Jack fired back. “Can the prosecutor withhold vital evidence simply because the NSD tells him that handing it over to the defense would be contrary to the interests of national security? The answer has to be no.”
“I agree with Mr. Swyteck to a point,” the judge said. “Evidence of an unidentified print on the murder weapon is vital evidence. But there has to be a balance of interests. Ms. Gonzalez, exactly what is the national security interest here?”
Gonzalez glanced over her shoulder at the crowded gallery. Members of the media were literally on the edge of their seats. “Judge, I would ask the courtroom be closed for my response to that question.”
A chorus of groans coursed through the gallery.
“Everyone keep your seats,” the judge said. “Counsel, let’s do this in my chambers.”
The judge stepped down, and the lawyers followed. There were no assigned seats, but everyone took exactly the same seats as the last hearing in chambers. Ivan the life-sized Ibis hadn’t moved.
“Ms. Gonzalez, let’s hear it,” said the judge.
“The short answer is that al-Qaeda claimed responsibility for this shooting,” said Gonzalez. “That claim is being taken very seriously, and there is an active investigation underway involving multiple agencies. The information sought by Mr. Swyteck goes to the heart of that investigation.”
“That’s it?” asked the judge. “That’s your explanation?”
“That’s all I’m at liberty to reveal.”
“Ms. Gonzalez, I closed this hearing to the public at your request so that you would be free to convince me that a vital national security interest is at stake. This is your opportunity.”
“Your Honor, I’m limited as to what I can say by NSD policies, as well as specific orders entered in this investigation by the FISA Court.”
“FISA” was her shorthand reference to the Foreign Intelligence Surveillance Court, which entertains government requests for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.
Jack needed to jump in—with both feet. “Your Honor, the government is talking out of both sides of its mouth. Two weeks ago, Ms. Gonzalez opposed my request to withdraw as counsel because I could be trusted to handle sensitive information. Now it’s her position that she can’t even tell you what national security interest is at stake.”
“I do recall your saying that, Ms. Gonzalez,” the judge said.
Gonzalez hesitated, then replied. “I can tell the court this much. There is a vital national security interest. It is to prevent more terrorist attacks, possibly more school shootings. On behalf of the United States Department of Justice, I’m asking you not to be the state court judge who derailed a federal investigation that could have stopped another school shooting.”
Gonzalez had the judge thinking, and Jack had to hand it to her: Gonzalez didn’t practice regularly in Miami, but she knew exactly the right argument to make in a state where trial judges are elected and can’t survive bad press.
“Well, the safety of our schoolchildren is certainly a vital interest,” Judge Martinez said.
Jack repackaged his argument on the fly, knowing that he would never get this judge to side with the defense on the issue as reframed by the government. “Judge, I don’t want to be the lawyer who derailed this investigation, either. But I’m also fighting for my client’s life, and apart from the fact that he has not yet been adjudicated guilty, there’s something important that’s being overlooked.”
“Tell me,” the judge said.
“The very existence of the unidentified print only came to my attention because I elicited the information while deposing the government’s fingerprint expert. That’s not the way the process is supposed to work. The existence of that print should have been disclosed to the defense immediately. I’m not sure Mr. Beckham would have ever told me about it if his own witness had not let the cat out of the bag. That’s a clear violation of the government’s disclosure obligations.”
Beckham was in the hot seat, and Jack’s read of the situation was that he could pull one of two pages from the time-honored, unwritten prosecutor’s manual: the Aw-shucks-Judge-I’m-sorry page, or the When-dead-wrong-become-indignant page.
Beckham chose the latter. “For a second there, Judge, I thought Mr. Swyteck was serious when he said he was interested in saving innocent lives. I certainly am. The NSD told me to treat the unidentified print as a matter of national security, so I did.”
Jack caught Gonzalez’s eye from across the table, and apparently it was enough to get her to do the right thing. “Your Honor, if I may clarify the communication?”
“Please do.”
“I asked Mr. Beckham to treat as confidential all matte
rs relating to the identity or possible identity of the person whose fingerprint was found on the gun. The mere existence of an unidentified print is, by itself, not a matter of national security and will not compromise the investigation.”
Beckham shrank in his chair, and Jack could almost see him shift gears and reach for the “aw shucks” page in the unwritten prosecutor’s manual. “Oh, well, my mistake, Your Honor. I’m terribly sorry. It won’t happen again. Just an honest miscommunication.”
Judge Martinez, too, had apparently “read” the manual and was completely on to him. “It had better not happen again, Mr. Beckham. Because if this had happened closer to trial, I could very well be entering an order dismissing the indictment. Understood?”
“Yes, Your Honor.”
“Has this court addressed everything?” the judge asked.
“For now,” said Jack.
“Then we’re adjourned. Thank you, Counsel.”
The lawyers rose, and Beckham was the first one out the door. Jack caught up with Gonzalez in the hallway outside the judge’s chambers.
“Thank you for that, Sylvia.”
“You’re welcome,” she said.
“I hope you won’t take this as ingratitude, but I do plan to file a motion in federal court. I need to know whose fingerprint is on that gun.”
“I would expect no less from you, Jack.”
“See you soon,” he said.
She just smiled and was on her way.
Chapter 27
Xavier waited on the bench for the corrections officer to come.
The incident on Friday had cost him two nights in solitary confinement. Unlike the guy in the cell next to him, who’d kept howling like a wounded wolf, Xavier had behaved himself. So he was being moved from solitary to a shared cell, though still in disciplinary confinement. Apparently, it was taking longer than planned to find an open bunk. No shortage of badasses at the Miami-Dade Pretrial Detention Center.
Xavier was on week three as a Level One detainee, and things weren’t getting any better. He’d felt untethered from reality the minute he’d set foot in the building. No wristwatch. No cell phone. No talking allowed. Those first few hours had been a blur, but in slow motion. Up and down several flights of stairs. In and out of different holding pens. He’d been shackled, unshackled, and shackled again. The body search had been especially memorable, not so much for what actually had happened, but for fear of what might. Fingerprinting took another hour. Not even the prisoner’s obligatory “one phone call” had gone smoothly. Xavier had waited in line for an hour and was reaching for the phone when another inmate came up from behind him and whispered a threat into his ear. “Tanks for holdin’ my spot in line, mon—now get the fuck away from me.” It had been just as well. Even local calls were collect only, and probably no one would have accepted Xavier’s charges anyway.
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