Lourdes had tried to get an expert to testify that repetitive action called stimming was a symptom of autism, but although Roberto had numerous indicators of autism, he had never been diagnosed with it.
Her delivery becomes more and more passionate. She has the jury’s attention. It’s just her and the jurors. Did she really want to give this up to sit and listen? Be a referee? While she isn’t close with all her colleagues, she admires and respects them. They’re her family. She eats lunch with them, goes to parties at their homes. She doesn’t know any of the judges personally. She admires only a few.
Judges have a strict code of conduct. They must avoid the appearance of bias. Most judges don’t hang out or even eat lunch with lawyers who have cases on front of them. Molly is such a close friend that Lourdes will have no choice but to recuse herself from Molly’s cases. She hopes their relationship won’t change. She can’t recuse herself from the rest of her colleagues or she won’t have any cases to hear.
“Ladies and gentlemen, Roberto Borquez is not an armed robber. He had no intent to rob the Quik Trip. No intent to hurt anyone. At most this is a theft of beer. Arturo and Jorge Mendez are the only unbiased witnesses in this matter. They have no reason to lie. After you hear all the evidence in this case, the only possible verdict is not guilty.”
Almost before Lourdes can sit down, Quinn says, “The State may call their first witness.”
Lourdes sits down, adrenaline still flowing through her body. She has her trial legs.
“State calls Officer Romero.”
Romero is the arresting officer and Morgan’s investigator which means he can remain in the courtroom throughout the trial. The rest of the witnesses except the store clerk (because he’s a victim) must remain outside until they testify. He knows the drill. Walks up to the court clerk, “Raise your right hand please, Officer Romero. Do you promise the testimony you are about to give is the truth, the whole truth and nothing but the truth so help you God?”
“I do.”
Lourdes has cross-examined him several times. He doesn’t screw up nor does he embellish his testimony to help the state. A straight shooter. Lourdes hopes the prosecutor won’t call Officer Thompson, the other cop who responded. Thompson is Romero’s opposite. Thinks her job is to help the prosecutor. Sometimes her obvious bias backfires with the jury, but not always.
Jill Morgan didn’t spend much time questioning Romero. She got out the important points and sat down.
Lourdes did the same.
(Q) Isn’t it true, Officer Romero, you didn’t see what happened at the Quik Trip?
(A)That’s right.
(Q) Isn’t it true Roberto didn’t try to flee when you and Officer Thompson approached him?
(A)Yes.
(Q) In fact he offered you a beer?
(A)Yes.
(Q) Isn’t it true he didn’t brandish his knife at you?
(A) Yes.
(Q) Isn’t it true he told you he bought the beer on credit?
(A)Yes.
A good cross-examiner doesn’t ask the witness questions. She’s states facts and gets the witness to agree. Uses her voice. It goes down at the end of the question.
Morgan tries a little re-direct. Doesn’t know Romero.
(Q)You said Roberto didn’t try to flee, but isn’t it true he was surrounded by the police and couldn’t flee?
(A) I wouldn’t say two cops could surround anyone.
She realizes Romero won’t help her, she asks no other questions.
Romero steps down. It’s almost noon. Quinn calls the lunch recess.
Everyone but Lourdes quickly leaves the courtroom. Two deputies who have been sitting in the back of the court handcuff and shackle Roberto. He’s not a troublemaker so the atmosphere is calm. One of the deputies jokes about the terrific lunch Roberto will receive.
The jurors aren’t supposed to know Roberto is in custody. If they do they are more likely to convict. At least that’s the theory. Often the jurors figure it out. Especially if the defendant is shackled under the defense table which happens when the accused is violent or a troublemaker. The judge has the ultimate call on security. She has to balance the rights of the accused to get a fair trial against the chance the defendant will try to escape or hurt someone in the courtroom. From now on Lourdes will make this call.
Nor are the jurors allowed to know the sentence the defendant faces if convicted. She wants to tell them the range is 7 to 21 years. Why shouldn’t they know? They might feel 7 years is too much for what happened in this case.
Lourdes returns to her office. Most everyone’s at lunch. A few call out, “How’s the trial going?” or “You kicking butt?”
When she’s in trial, Lourdes doesn’t eat with her colleagues. There’s always something to do: Rewrite cross or direct, work on closing. She brings a banana muffin and some yogurt and eats in her office. Trial lawyers can be superstitious. They have lucky outfits, even socks. Eat the same thing at lunch. Follow a certain routine.
She notices a note from Lois Katzenbaum, the investigator in the case, taped to her chair.
FIVE
Can’t find your witnesses. They’ve moved out. The landlord claims they didn’t leave a forwarding address. I’m looking for them. LOIS
Lourdes’ heart sinks. Jorge and Arturo Mendez are the key to her defense. They’re missing. The prosecution will likely rest late this afternoon. Roberto is facing 7 to 21 years. The store clerk testified Roberto threatened him with his knife. The cops caught him with a knife in his pocket drinking the stolen beer. She has little to nothing to dispute this without the brothers.
Roberto’s mother will testify that they’ve talked about buying items on credit. A teacher will testify about his lack of academic skills. It’s not enough. Not near enough. He’s toast.
If Lourdes was the prosecutor she’d rest now, but as usual the state will over-try it. Morgan’s calling fingerprint witnesses to prove Roberto’s fingerprints are on the beer cans and the knife handle. Lourdes thinks it’s a stupid waste of time. Roberto never denied owning the knife or touching the cans.
Lourdes even agreed to stipulate the fingerprints were his. Usually the CA agrees. Saves them a hassle. But Jill’s new and Lourdes understands she has to prove herself. She wants to win. Prosecutors who lose get a tongue lashing, if they’re lucky. Losing means the lawyer screwed up or picked a worthless jury. That the defendant might be innocent or the state overcharged the case never crosses prosecutor’s minds. If they have minds. Lourdes realizes she has to change her attitude if she’s going to be a good judge.
The afternoon drags on. Fingerprint evidence requires multiple witnesses’ testimony to be admitted. The technician who lifted the print. The criminalist who compares it to the defendant. Lourdes had planned not to cross-examine any of them. Now she wants to keep them on the stand as long as she can. Give Lois more time to find the brothers. Lourdes hopes she isn’t boring the jury to death with her technical questions, but it’s a risk she has to take. Since shows like CSI became so popular, jurors sometimes demand expensive technology they’ve seen on TV which either doesn’t exist or is too expensive for less serious cases. After her cross-examination, some techy juror might decide the fingerprints are unreliable and vote for an acquittal. Lucky for her she recently attended a seminar on fingerprints.
Maybe Jill went to a seminar where the prosecutor told a war story about a case he lost. “Where is the fingerprint evidence?” A juror asked.
At 3:45 p.m. she finishes her cross. Can’t think of any more questions.
Morgan stands and recites the magic words. “The State rests.”
Lourdes calls Mrs. Borquez, Roberto’s mom, as her first witness. She wants to testify in Spanish so an interpreter is brought in. She hates presenting testimony this way. It dilutes the effectiveness of the witness. The jurors miss the witness’s emotion. The
upside in having an interpreter is that it takes extra time. Every question and answer has to be repeated. Time is her friend today. The mom is confused, but likable. Morgan is smart enough not to alienate the jury by attacking her. In closing, Morgan can argue that a mother is naturally biased without asking anything.
Roberto’s high school teacher, Mrs. Cardenas, testifies that Roberto is slow, gets easily frustrated, but is a peaceful, non-violent young man. On cross, Morgan gets her to admit she hasn’t seen Roberto much the last couple years.
By the time Mrs. Cardenas finishes it’s 5:00 p.m. Lourdes will have tonight to think again about whether Roberto will testify. She and a colleague, Jack Clark, had practiced questioning Roberto several times. Even when Jack dumbed down the questions, Roberto appeared confused.
“Miss Velasquez, how many more witnesses do you have?”
“One,” she answers. She assumes Quinn understands. Defendants can choose to testify or remain silent. Prosecutors can’t force defendants to answer questions. It’s a violation of their Fifth Amendment right to remain silent. Lourdes doesn’t have to decide whether to put him on till the end of the trial. The choice to testify belongs to the clients, but if they have a brain in their head they listen to their lawyer.
The state has her witness list. She doesn’t want to alert Morgan that her client isn’t taking the stand. Lourdes wants to keep her busy tonight working out a brilliant cross she’ll never use.
Non-lawyers believe defendants have to testify to win. They want to hear them say, ‘I didn’t do it.’ Many defense attorneys have an ironclad rule that their clients never testify. ‘If you can’t tell the story better than your client, you should find another profession.’ There are other reasons. If defendants have prior felony convictions the state can ask about them, but only if the defendant testifies. Once jurors hear someone has previously committed a crime the presumption of innocence is over. Defendants are often unreliable no matter how many times you go over their testimony.
Lourdes recalls a second degree murder case she tried early in her career. Her client was accused of stabbing his cousin to death in an argument over a borrowed TV. He was vehement it was self defense. She went over his testimony numerous times. He described how he feared his larger, older cousin who had a reputation of being a hothead; how he was afraid his cousin would kill him. She believed him. At trial, Lourdes asked, “Were you afraid of your cousin?” His answer, “No, I could kick his ass anytime.”
Lourdes doesn’t believe one rule fits all. She decides case by case.
“Counsel approach.” Lourdes and Jill walk up to the bench. “Due to the late hour, I think we ought to spend our time doing jury instructions. That way tomorrow when the defense rests we can go right into closing,” says Judge Quinn. Judges are anxious to finish. They have other cases besides the one on trial.
“Your Honor, the state may have rebuttal witnesses,” Morgan whines.
“Of course, Ms. Morgan,” Quinn answers.
Lourdes smiles to herself. Morgan isn’t going to win points with judges if she acts like that. Lourdes realizes she’s thinking like a defense attorney. She’s got to stop that. And soon.
A reprieve. Lourdes tries to listen as the judge rules on the instructions, but her mind isn’t in it. This case won’t depend on jury instructions. Some do. More cases get reversed on jury instructions than anything else. Quinn has denied her request for a self-defense instruction--an easy call. She’s also denied her request to allow jurors to deliberate on the lesser-included crime of robbery. A less easy call. A guilty verdict on robbery would allow the judge to give Roberto probation. An issue for appeal.
Soon Lourdes will have to make those calls.
By 5:30 p.m., jury instructions are completed. Lourdes hurries back to the office. Maybe Lois has found the Mendez brothers. But she isn’t there nor has she left a note.
Lourdes decides to go home even though she has work to do. She’s tired, hungry and fried. Relieved Carlos isn’t there. Maybe he’s going to counseling, has a job interview. Right, maybe the prosecution will dismiss Roberto’s case or the Mendez brothers will show up.
She changes into jeans and a t-shirt, puts on some music and relaxes on her bed. She likes country-western to the consternation of her friends. Most like rock or hip-hop. Identify country with rednecks, white trash. In her case brown trash. Maybe a quick nap. The sounds of music. Disoriented, the remnant of a dream just beyond her reach.
“Lourdes, where are you?” slurs Carlos.
“Bedroom.”
She hears the sound of his feet as he walks in. Smells alcohol.
“Where were you?” asks Lourdes.
“Out.”
“Out where?”
“With the guys. It’s 8 o’clock. What are you doing in bed?”
“I meant to nap for a few. Must have fallen asleep.”
“I suppose that means I have to get my own dinner?”
I’m in the middle of trial, my client faces decades in prison, it’s all falling apart, and I’m supposed to worry about your dinner. You were in the army. Make it yourself or go out.
“I’m sorry.” Lourdes says as sincerely as she can. “I’m in trial, my witnesses are missing, I have to re-write my closing.”
“I’m going to get some food.” A few minutes later the front door slams.
Tears. Hurt, angry, sad. He didn’t offer to bring her anything. She goes into the kitchen and throws together a salad. Carlos comes in with a bag from Chipotle. Doesn’t say a word. He gets a plate for his burrito and sits down. He eats quickly. Even though she’s hungry, she can’t get her food down. Leaves most of it.
Her cell rings. Lois.“Hi Lourdes, I’ve spent the day looking. Tried their apartment. Talked to other residents and the landlord. They’re nowhere to be found. One of the tenants followed me out of the apartment, signaled me to follow. He walked to a nearby park. After he satisfied himself that I wasn’t a prosecutor, a Border Patrol Agent, or with ICE, he told me the Mendez brothers were here illegally. “You know what that means.”
“Yeah, they’re gone.”
“He said they left suddenly one night a few weeks ago. Didn’t say goodbye. They’d been friends. I know how bad this is for your case, but I don’t know what else I can do.”
“If they’re gone there’s nothing.” She sighs. “I’m rewriting my closing. Can you meet me at my office, before court, say 7:30 a.m., so I can run it by you?”
“Sure.” Lois is at least 60, looks like she belongs in a retirement home, playing cards. She’s nothing like the stereotype of a defense investigator: male, leather jacket, stubble, faint smell of alcohol. Lois wears brightly colored polo shirts and long skirts or knit pants. Lots of blue eye make-up. In spite of or maybe because of her grandma persona, she’s the most sought-after investigator in the office. She doesn’t intimidate people. They talk to her. Plus she has good judgment and a built-in bullshit detector.
Lourdes hangs up. Carlos stands in front of her, arms crossed.
“You didn’t feed me, how about we go to bed?” He moves closer, tries to put his arms around her.
“Stop it, don’t you understand I have a closing argument to finish.”
“I thought this trial shit was over.”
“This is the last one.”
Lourdes’ cell rings again. Lourdes looks at Carlos and looks at the phone. She takes the call.
“Fuck you, Lourdes.” He walks out and drives away.
SIX
Lourdes sits in her office, lights out, door closed. She can’t cry. Crying is for bad hair days, sappy movies and when she and Carlos used to have minor tiffs. Tears aren’t enough. She wants to throw something. At least her colleagues, ex-colleagues, aren’t here to see her fall apart.
She should go home. She’d left Carlos messages and texts: Jury out, I’ll be late. It’s unusual to keep juror
s after 5 p.m., but because of the holiday weekend, many jurors had trips planned. The judge had asked whether they want to work late or come back the following week. Unanimous for tonight.
Carlos will be angry. He’d come in late last night and was asleep when she left this morning. More and more they go to bed angry. In the old days, Carlos would’ve tried to make everything right. He’d go get her favorite Indian take-out, butter pecan ice cream or at least try to make her laugh. When she was sad he’d hold her, and if she wanted to talk about it, he’d listen.
Everything had gone wrong. Her last trial as a public defender, her last trial ever, had been a disaster. Roberto trusted her to save him. He was going to prison, for seven years maybe twenty-one. More years than he’d been alive.
She’d lost trials before. Public defenders lose more than they win. Sometimes she lost because her client was guilty as hell and deserved everything he got. Sometimes she lost because the evidence was stacked against her and despite her best efforts, a guilty verdict. What she couldn’t abide was a loss due to bad lawyering. Her bad lawyering.
Roberto is going to prison because she screwed up. She should have realized the brothers were scared to come to court. Why hadn’t she sent Lois to visit them and gain their confidence? She could’ve explained that they have rights. They wouldn’t be arrested in the courthouse. She could have gotten the county attorney to agree the brothers wouldn’t be turned over to ICE. That used to be routine, but not any more. But she could have tried.
Trial over she could still hear that bitch Jill’s closing.
“The defense attorney got up in her opening statement and promised you she had two witnesses who would testify that the de…fen. . .dant didn’t threaten the clerk with his knife. What happened to those witnesses? They didn’t testify in this courtroom. The best she could do was present Mr. Borquez’s mother, and a teacher he had a long time ago. Neither was in the store the day the defendant robbed it and threatened the clerk with a knife. The defense attorney presented no evidence to dispute what the clerk said. The only testimony for you to consider is what Mr. Reyes, the store clerk told you—the de. . .fen. . .dant threatened him with a knife.” Prosecutors never call the accused by their name. They’re always defendants pronounced with the accent on the last syllable.
Behind the Robe Page 3
