by Adam Mitzner
19.
Gwen loved everything about being in court. She found just breathing the air in the courtroom to be intoxicating, even when, like today, she was doing so from the back of the gallery. She’d actually had to take vacation time to be there. Even though the proceeding involved Jasper Toolan, only the lawyers needed for the hearing were allowed to charge the client for their time in court, and that didn’t include her. She had other assignments on which she could have been billing time, which meant that, as far as Taylor Beckett was concerned, Gwen’s decision to be a spectator in the courtroom, even on a matter she was working on in some way, was no different than if she had gone to the movies for two hours in the middle of a workday.
The lawyers who were required to be there included Kanner, the junior partner running the day-to-day, and Doug Eyland, the senior associate on the team, who served as Kanner’s right hand. Neither of them would be doing much more than Gwen, however. Benjamin Ethan was the only one who would be speaking for the defense, just like he was the only lawyer who was ever quoted in the press as counsel for Jasper Toolan. No one else on the fifteen-person team ever merited mention.
Toolan was also not present. He could have been, of course. But Ethan was adamant that they limit any news coverage of Toolan as a defendant, so as to keep the idea that he might be guilty out of the minds of potential jurors. As Ethan had told Kanner, who had told Eyland, who had told Gwen, on its own the hearing wouldn’t be newsworthy enough to garner TV coverage, and the newspapers would run the story on the inside pages, likely without a photo. If Toolan himself showed up, however, and they could take a photo or some video, it would become a front-page story and a segment on the cable news shows.
In her nearly three years at Taylor Beckett, this was only Gwen’s fourth time inside a courtroom. The first was when she was sworn in as a member of the bar. The second was when she went with a law school classmate to bear witness to her swearing in. The only time she’d actually been a participant, if you could call it that, was for a status conference in a case between one of the Taylor Beckett partners and his co-op board, which he was suing because he claimed that the Japanese teahouse built on his downstairs neighbor’s terrace obstructed his view of Central Park. Gwen hadn’t worked on the case at all, and she had realized quickly that her presence in court was solely to impress upon the other side’s lawyer that Taylor Beckett was providing full resources, and the co-op board would be wise to settle before they spent twice the damages in attorneys’ fees, which was exactly what the co-op board ultimately did.
At least today had something to do with her work product. The hearing was on the motion to preclude Jennifer Toolan’s prior comments about her husband’s alleged abuse.
As everyone waited for the judge, the Honorable Linda Pielmeier, to take the bench, Gwen watched the man beside her sketching Benjamin Ethan—or at least that’s what Gwen thought he was doing on account of the fact that the prosecutor was a woman and it looked nothing like Kanner or Eyland, although, truth be told, it was a poor likeness of Ethan. Even though Ethan had not yet moved from his chair, the drawing had him standing at the lectern, his hand outstretched in a theatrical flourish.
“Did someone hire you to do that?” she asked.
The man stopped his shading. “No. It’s spec work. I come to court when there’s a big case and do a drawing. Then I try to sell it to the lawyers, for their office. That’s why I always do the defense lawyer. Never the prosecutor. ADAs won’t spend a grand for wall art, but the defense lawyers? They do it every time.”
Gwen had never been in Benjamin Ethan’s office. As a result, she had no idea whether he had a courtroom sketch of himself on his wall. She wondered if some day she’d have one of herself.
As if he’d read her mind, the man handed Gwen his card. “I do commission work too,” he said.
She laughed, thinking that she might not ever get to stand up in court. “Thanks.”
There were three hard knocks from the front of the courtroom. “All rise,” someone in the front shouted, even though everyone was already standing. “The People of the State of New York versus Jasper Toolan, case number 586958, the Honorable Linda Pielmeier presiding.”
Gwen watched Judge Pielmeier stride into the room and walk the two steps up to the elevated bench from behind which she quite literally held court. When she was finally seated herself, she said, “Please be seated.”
The judge had undergone chemotherapy in the past year, though she was cancer-free now, at least according to what Gwen read. In the stock photos Gwen had seen of Pielmeier, she had black, relaxed, shoulder-length hair. Today, however, she had little more than a dusting of white on top of her head. When she spoke, her voice was forceful.
“Welcome all, including those in the gallery,” Judge Pielmeier said with a smile. “Whenever I handle a high-profile case, I always issue the following admonition. No matter how famous the participants, this is still a court of law. I expect everyone—lawyers, parties, and spectators—to comport themselves with that in mind. In other words, I don’t want to hear a peep out of anyone I have not specifically requested to address me.” She waited a beat. “Good. Now, we are here today on the defense motion to preclude certain evidence. I have read the papers thoroughly, and am familiar with the case law cited by both sides. As a result, I ask that when counsel address me they recognize my preparations and spare all of us from repeating what has already been stated in the briefs. With that word of caution, Mr. Ethan, you may proceed.”
In his patrician way, Ethan leisurely made his way to the podium. Gwen barely saw his face in profile before he was ready to make his argument.
“If it pleases the court . . .” he began. He waited for Judge Pielmeier to indicate that she was, indeed, pleased. When she gave a slight nod, he continued. “Mindful that Your Honor is well versed in the facts and the law, I will get right to the heart of the matter. There is no reliable evidence that Jasper Toolan ever laid a hand on his wife. Unless the Court grants defendant’s instant motion, however, the prosecution will fill the jurors’ heads with innuendo and conjecture claiming that Mr. Toolan had a propensity to violence against his wife, in the hope that this will bootstrap a charge of murder, for which there is also not a single shred of evidence. To be specific, they’re trying to prove that Mr. Toolan murdered his wife by relying on the evidence that Mr. Toolan once hit his wife. But he didn’t hit her, and therefore such a claim cannot be used to consider whether he might have killed her. It is patently unfair for such evidence to be considered because the defense has no ability to set the record straight on cross-examination. That’s the rub here, Judge. Because Mrs. Toolan is not here to testify, there’s absolutely no way to demonstrate to the jury the truth—that Mrs. Toolan’s police report was false, as she herself admitted not twenty-four hours after she filed it. This Court should not allow the prosecution to submit a police report claiming that Mr. Toolan had struck Mrs. Toolan, when the last word on this matter was Mrs. Toolan’s unequivocal statement that the police report was false, and her husband had, in fact, never been violent with her. Your Honor has rendered several opinions of significant importance to the jurisprudence of civil liberties—”
Judge Pielmeier interrupted. “Only several, Mr. Ethan?”
The gallery laughed. “Forgive me,” Ethan said, sounding actually contrite. “The better word would be . . . numerous.”
“Proceed,” Judge Pielmeier said.
“Thank you. Those numerous prior rulings, whether they concern due process or cruel and unusual punishment or First Amendment guarantees, have a common nucleus in that they protect against the enormous power of the government unfairly depriving the accused of his or her constitutional rights. A strong argument could be made that a single instance of assault nearly three years ago has little probative value as to whether Mr. Toolan killed his wife. Further, because it undoubtedly unfairly inflames the jury, it should be excluded on that basis alone. But that’s not my argument here today. I’m
relying on a much more important point: there is not a credible basis to assume that such an assault ever occurred. In the place of Jennifer Toolan’s testimony, the prosecution seeks to offer a police report Mrs. Toolan quickly recanted, as well as the testimony of women who claimed to be friends with Mrs. Toolan, and who further claim that Mrs. Toolan told them that her husband had struck her. Now, let’s be clear. They didn’t see any abuse. So they can’t testify to anything they know on their own. Instead, all they can say is what someone else said to them. That’s classic hearsay, and should be excluded from trial because, bottom line, we have no idea whether Mrs. Toolan actually said anything of the sort to these women. Even if she did, we have no idea whether it’s true.”
“Isn’t that a question for the jury?” Judge Pielmeier asked. “The jury can assess the credibility of these women and choose to believe them or not, just as they do with any witness.”
Ethan didn’t seem to be at all flustered by the judicial interruption. Without missing a beat, he said, “Your Honor would be correct if it was beyond dispute that Mrs. Toolan was telling the truth to her friends when she claimed she’d been struck. But we can’t know that. And that’s the problem. Because even in the unlikely event that Mrs. Toolan did, in fact, tell her friends that her husband had hit her, she might have been . . . let’s say, less than candid with them. Maybe she and her husband had a screaming fight and she said he raised his hands, just to impress upon her friends that this was truly serious. That’s what she herself claimed was the reason she filed a false police report, after all. Or maybe Mrs. Toolan knew that she was heading for divorce and she wanted to strengthen her negotiating position, so she started lying to her friends about spousal abuse in case there was a later trial. The undeniable truth is that there are many reasons that might have caused Mrs. Toolan to lie to her friends about spousal abuse. And that’s in addition to all the reasons that her friends might lie. Maybe they think they can parlay riveting testimony into a book deal, or a role on one of those Real Housewives shows. Or maybe they’re motivated by some misguided view that they’re helping Jennifer Toolan’s memory by lying.”
“Mr. Ethan,” Judge Pielmeier interrupted, “you’re describing the dilemma we face with every witness in every trial. That’s why God created cross-examination. You are entitled to question witnesses so the jury can determine whether they are to be believed.”
Even though Gwen couldn’t see Ethan’s face, she imagined he was smiling. Maybe not at the judge, for fear she would take it the wrong way, but certainly to himself. Judge Pielmeier had fallen into Ethan’s trap.
“The Court is making my point exactly,” Ethan said. “I can’t cross-examine Mrs. Toolan, and therefore there can never be a counterpoint to what her friends might claim she said. Put another way, there could be one of three truths here.” Ethan raised an index finger, indicating he was going to count them off. “The friends are lying, and Mrs. Toolan would confirm that if she was able to testify.” He raised a second finger. “Or Mrs. Toolan did, in fact, tell her friends that she had been hit, but she would have confirmed that she was lying when she said that.”
“And number three is that maybe everybody is telling the truth?” Judge Pielmeier chimed in, receiving laughs from the gallery.
Gwen was sure Ethan hadn’t cracked a smile, though. “But the fact that we don’t know which one of the three it is makes this a serious due process issue, Your Honor. And as you said, God created cross-examination to show the jury that someone might be lying. But I can’t show the jury that Jennifer Toolan was lying to her friends, or that her friends are lying now, because Mrs. Toolan cannot be subject to cross-examination. That’s why God also created the due process clause—because defendants have a right to confront their accusers.”
“Sounds a bit to me like the boy convicted of killing his parents who asks for leniency at sentencing because he’s an orphan.”
Ethan began to explain how other judges had ruled on the question, even though it meant disregarding the judge’s admonition not to repeat the arguments in the briefs. Judge Pielmeier was having none of it. She cut him off ten seconds in, telling Ethan that she now wanted to hear from the prosecution.
The ADA handling the case was Carolyn Vittorio. She was a woman in her fifties who had made a career out of prosecuting powerful men for crimes against powerless women. As far as the Toolan defense team knew, she’d never lost a case.
“The defense is essentially arguing that you can murder your accuser, and then preclude your accuser’s claims of abuse from being introduced at trial on the grounds that you’ve been denied the ability to confront your accuser,” Vittorio said. “I don’t think anyone doubts for a second that Jennifer Toolan would have loved to take the witness stand and swear under oath that her husband beat and killed her. The only reason she can’t is because her husband beat and killed her.”
When it was his turn for rebuttal, Ethan recited the section on forfeiture that Gwen had written, almost verbatim. Gwen imagined that it was like a playwright watching an actor recite her words.
After an hour of attorney back-and-forth, Judge Pielmeier thanked the lawyers. Gwen expected that the judge would take the matter “under advisement,” which meant that she would issue a written decision at a later time, after reviewing the briefs more carefully.
But instead, Judge Pielmeier sat up straighter and nodded to the court reporter that she was about to speak on the record. That meant the judge was going to rule immediately.
“I find it a very great stretch to say that the reason Jennifer Toolan was killed was to keep her from testifying about her husband’s alleged abuse. The alleged abuse took place nearly three years ago, and I do not think that Mr. Toolan had any fear whatsoever of being prosecuted for it. And, unless you tell me otherwise, Ms. Vittorio, I do not hear the People’s theory of motive to be that Mr. Toolan killed Mrs. Toolan to avoid her testifying at a trial concerning spousal abuse.”
Judge Pielmeier stopped, apparently so that Vittorio could confirm this on the record. With no other choice, the prosecutor stood and said, “No, Your Honor. That is not our theory of the motive for Mrs. Toolan’s murder.”
“Yeah, I didn’t think so. This means that, on the forfeiture issue, the defense has persuaded me that Mr. Toolan has not forfeited his confrontation rights. And the constitutional right to confront his accuser would be infringed if I allowed any hearsay testimony that Mr. Toolan ever struck his wife.”
Vittorio stood to respond, but Judge Pielmeier waved her off. “I know this one hurts, Ms. Vittorio, but the law gives me little choice. The police report is out. And I’m not going to allow anyone to testify about anything Jennifer Toolan told them. What I will allow, however, is for the prosecution to put on as many friends of Mrs. Toolan as they can find to testify that they saw evidence of abuse. If anyone witnessed any bruising or cuts or any other sign of abuse, that’s fair game for testimony. I’ll even entertain testimony about Mrs. Toolan’s demeanor. But the law requires I draw the line to prohibit testimony about what Mrs. Toolan said—either to the police or to her friends—unless she is the one saying it and she’s doing it under oath and subject to cross-examination, which, of course, she sadly cannot do.”
It was a total victory. The jury would never hear that Jennifer Toolan claimed her husband had struck her. At most, they’d hear her friends claim that they thought that might have happened.
As the lawyers left the courtroom, Gwen caught Benjamin Ethan’s eye. She hadn’t thought he’d even recognize her as one of his underlings, but he smiled and mouthed, “Good job.”
20.
There was no greater signifier of wealth than a New York City apartment in which the elevator doors opened directly into the foyer. It immediately told every visitor that the entire floor was yours and yours alone. Will thought about just how often he’d be correcting deliverymen. “What apartment number?” he imagined them asking, to which he’d reply, “No apartment number. Just come to the penthouse.”
The real estate agent, Risa Waters, was walking a step ahead. She was eating-disorder skinny, with black, shiny hair and the hint of an accent that seemed to fluctuate between British and merely affected, like Madonna’s.
“I don’t know if Sam told you, but you’ll be spared having to go through any board approval. I know that doesn’t seem like much of a perk, but believe me, it truly is. Board review is the ninth circle of hell. To be honest with you, at this price point, there’s no way someone your age would make it through. There’s always something more the board wants. First it’s an all-cash deal. After you agree to that, they want verification that you have another one hundred percent of the purchase price in liquid assets. And if you jump through that hoop, they demand that you have five times the purchase price in illiquid assets. The end result is that to buy this place, you’d need to have . . . I don’t even know how much, but at least seventy-five or a hundred million to your name. That’s why this is such a steal.”
The asking price for the “steal” was $9.2 million.
“It has all the five-star amenities,” Risa prattled on. “There’s no way that a prewar is going to have a state-of-the-art gym or an Olympic-size pool like this building does. There’s even a fifty-person movie theater, available for private use for a small fee.”
Will had already begun tuning out her sales pitch. He walked over to the French doors that separated the inside from the terrace.
“Amazing view, right?” Risa said. “One of the benefits of being so far west is that nothing obstructs your view of the river. To the east, you get the skyline. If you’re any farther east, though, the only view is into the apartment building across the street, and that diminishes your light significantly. We’ll go out to the terrace in a second, but I want you to see the actual apartment first. I’m afraid that once you go out there, you won’t care if there even is an inside.”
