Trial by Fury

by KG MacGregor

  Their case had been assigned to The Honorable Jeanette Henry. Petite and in her early seventies, Judge Henry spoke with the voice of a kindergarten teacher. An unfamiliar attorney could be excused for thinking she was gentle.

  Theo knew better. The woman had written scalding opinions against powerful institutions, including corporate giants Nations Oil and Surety Healthcare, and even her own employer, the State of Georgia. She wouldn’t be intimidated by Harwood University.

  Theo shuddered with a sudden chill as a familiar voice caught her attention. She turned toward the front row of the defense, where Sonya was speaking with a man who had his back to everyone else in the room. Tall and broad-shouldered, he’d shaved his head in surrender to male pattern baldness. He was James Somers, from Walcott Dupree, a powerhouse firm based in New York—and the last attorney to beat her in court.

  The case was litigated three years ago, a class action suit against Dowd Textiles claiming the company funneled all of its female job applicants onto the floor of the sewing room, from which there was virtually no avenue for promotion. Despite the overwhelming evidence and sympathy from the judge, Somers had won on a statute of limitations technicality.

  He turned and smiled, barely masking a sneer, as though he relished their rematch.

  “Is that who I think it is?” Jalinda whispered.

  “Lucifer himself, in the flesh.”

  Judge Henry arrived directly from the courtroom and paused to hang up her robe. Without greeting anyone, she scurried behind her desk to sit in a high-back leather office chair. “Are all parties present?”

  Proceedings in chambers were less formal than in a courtroom, allowing the attorneys to keep their seats when they spoke.

  “Theodora Constantine for the plaintiff, Your Honor.”

  “Sonya Walsh for the defense.”

  “And James Somers for the defense.”

  “Then let us proceed.” Peering through the lower half of her blue-rimmed glasses, she eyed the motion on her desk. “Looks like defense wants a suppression order. Convince me, counselors.”

  Somers, with his legs crossed and hands in his lap, spoke in what could only be described as a scolding tone. “Plaintiff’s counsel has been conducting a shameless media campaign clearly orchestrated to poison public opinion against the defendants, and it greatly impinges on our clients’ constitutional right to a fair trial…should this ridiculous claim ever actually proceed to court.”

  He shook his head in a way Theo found infuriatingly condescending.

  “She’s conducted fourteen television interviews in the past four days, and has been quoted in no fewer than one hundred twenty-two print outlets, many of which are Internet news sources accessible to hundreds of millions of potential readers. Her wrongful death claim presumes the guilt of these three young men, who haven’t been charged with any crime whatsoever, let alone convicted. A great deal of damage has been done to these young men’s lives and to the reputation of one of our nation’s premier universities, and it must stop.”

  Theo waited patiently until Judge Henry nodded in her direction. “Your Honor, the preponderance of media coverage merely indicates a high level of public interest in this case. More importantly, the publicity related to this case has produced additional witnesses who will testify to having encountered similar circumstances as those our victim, Hayley Burkhart, experienced following her assault.”

  “She just did it again!” Somers said indignantly. “She’s claiming effects from an assault that hasn’t been proven in a court of law.”

  “I’m not prosecuting a criminal rape case, Your Honor,” Theo said. “This is civil litigation. I’m fully prepared to go to court and present a preponderance of evidence to the effect that Hayley Burkhart was sexually assaulted and the university actively suppressed her claim. That includes a graphic video that shows these three young men having sex with a woman who was undeniably incapacitated and therefore unable to consent. Following that, I’ll demonstrate—”

  “I get the point, Ms. Constantine. We aren’t trying the case today. We’re here to decide the issue of a gag order. I’m not convinced at this point your fishing expedition for corroborating evidence outweighs the importance of these defendants receiving a fair trial.”

  Theo glanced at her talking points. “With all due respect, Hayley Burkhart deserves fairness too. As we made clear in our filing, the main reason this wrongful death case exists is because Harwood University cynically valued its reputation more than her right to due process, and Mr. Somers is asking the court today to allow the continued suppression of discussion of wrongdoing—not in pursuit of justice—but because it serves the university’s interest.”

  “She has a point, Mr. Somers.”

  “Ms. Constantine speaks of justice as if Hayley Burkhart is the only one deserving such a result. My clients are entitled to the presumption of innocence—”

  “In a criminal court,” Judge Henry interjected. “I’m sure you’re well aware there is no implied presumption of innocence in a civil case.”

  “Of course, but my clients enter the courtroom disadvantaged by a media that has already convicted them of uncharged acts in the court of public opinion. It’s fundamentally unfair.”

  Theo couldn’t let that one go unchallenged. “But media coverage of Harwood’s recent basketball championship elevated the defendants to a vaunted status the plaintiff in this case has not enjoyed. By publicly expressing viewpoints that counter that positive spin, we only level the playing field in a venue where potential jurors are quite likely to be fans of Harwood basketball, and therefore deferential to the players and the university.”

  “You don’t get to tip the scales, counselor.” The judge contorted her face as she readied her pronouncement. “You’re entitled to continue seeking additional witnesses through referrals, but not through the news media. I’m granting defense’s request for a suppression order with regard to public statements, effective immediately.”

  “Your Honor, if I may,” Somers said. “I fear this horse is already out of the barn. Ms. Constantine just admitted her intention all along was to bias public opinion through media appearances designed to undermine my clients. Even if she ceases these self-aggrandizing interviews, the subject is likely to remain salient in the news. Commentators will continue their unfounded speculation, and consumers of this pseudo-news will be swayed by uninformed discussion. In light of the damage already done, I urge you to dismiss this case in its entirety.”

  “Am I to consider this your motion for dismissal as well, Mr. Somers?”

  The question seemed to catch him off guard for an instant, but then he flashed a boyish smile. “Only if you’re willing to grant it, Your Honor.”

  “Then let’s pretend you didn’t ask.” She pushed herself out of her chair to stand barely taller than she’d been while seated. “Now if you’ll excuse me, I need to get back to court.”

  The last thing Theo wanted was a personal confrontation with Somers, something he appeared to relish. “Good to see you again, Theo.”

  “Sorry, James…not really feeling it.” She grudgingly respected the job he’d done on the Dowd Mills case. It had truly pained the judge to decide in the company’s favor, but the law was on Dowd’s side. “You can’t find enough work in New York?”

  He laid a hand on his chest. “What can I say? Harwood’s my alma mater. It’ll always hold a special place in my heart. This is my chance to give something back.”

  “Couldn’t you just write them a check? Dowd Mills must have paid you handsomely.”

  “Feisty…I like that about you, Theo.” Obviously he was feeling cocky at coming out with a win.

  Whereas she’d expected all along to lose today. Jeanette Henry had a reputation for being restless during jury selection. While she was required to suffer the process, too many dismissals for cause strained her patience, and no attorney wanted to enter a trial before a ticked-off judge. Shutting down pre-trial media coverage was her way of heading
off potential problems with tainted jurors.

  All in all, this was a minor defeat. Somers was right about the damage being done now that the lid had been blown off Harwood’s efforts to keep the story under wraps. While it was a shame she couldn’t continue to beat the drum until the NBA draft, she was pretty sure the sports commentators would do it for her. If that somehow kept Frazier and Caldwell from a big payday, it would be a victory.

  Chapter Fourteen

  With the thrum of her climax fading, Celia lifted the sheet to see Theo resting a cheek against her thigh. Until now, she’d never considered herself a morning person.

  “You taste even better than coffee,” Theo said, crawling up to share her essence with a kiss.

  “Mmm…you’re forgiven for not whisking me away to Newport.”

  “What can I say? That’s the downside of teleconferencing—fewer chances to mix business travel with pleasure.” She rolled out of bed, dragging the sheet with her. “I have an appointment this morning with my treadmill. Something tells me it’s feeling neglected.”

  Theo had warned the night before that sleeping in wasn’t an option on Monday morning, since she started each week with an early staff meeting. Nor was it feasible for Celia, who had to finish her textbook proofs and update the syllabus for her fall performance class.

  Celia showered and dressed in cotton pants with a sleeveless knit top, suitable for working alone in her office since she had no appointments on her schedule. By the time Theo finished her shower, she’d set out breakfast on the bar—soft-boiled eggs, toast and coffee.

  “And you said you couldn’t cook.”

  “This hardly qualifies as cooking,” she answered, straightening the collar on Theo’s terry robe. “But never let it be said that I can’t boil water.”

  Theo nodded toward her suitcase by the door. “I take it you’re leaving me. Was it something I said?”

  “I figured we both ought to focus on work during the week. I need to rest up for Friday.” She pulled Theo into a hug. “I have a feeling we’re going to do this every weekend.”

  “Damn straight. I’ve already gotten used to you being around. Next time you come over, how about bringing a few extras in case you feel like giving in to your lust on a weeknight? Be spontaneous. Campus isn’t that far from here. Just call me and I’ll come pick you up.”

  “I’ll take that under advisement, counselor. Have you told anyone in your office about us yet?”

  “Nnnn-not exactly. But I’m sure Hank—he’s my investigator—he’s probably figured it out. Which is good, since he is a detective, after all. And since he walked in on me talking to you on the phone a couple of times. Those kissing sounds are a dead giveaway.”

  It was curious Theo would keep their relationship a secret from her co-workers. She’d told the magazines she thought it best to keep her personal life private, but surely that didn’t extend to people she claimed were as close as family. “So what’s up with that? Are you still worried they’ll think it’s a conflict of interest?”

  “Yes and no. I suppose I need to let them know the details eventually, that I put you in touch with another attorney before we started dating. The problem”—her voice faded briefly as she went to the door to retrieve the newspaper from the hall—“is that I’m the boss, so I have to set an example for everyone who works there. I don’t want anyone thinking they can socialize with one of our witnesses without running it by me. At the same time, I hate being one of those ‘do as I say, not as I do’ bosses.”

  “Just wait till I bring you along to something on campus. Won’t that ruffle a few feathers!”

  “By all means, save me the seat next to your chancellor. I promise to be just as nice as I was to their asshole attorney.”

  “How about a front-row seat for our production next spring? I haven’t gotten my theater budget yet, but it looks like we’ll be doing Music Box Review. Irving Berlin. It’s out of copyright and they never give us enough money for anything else.”

  “It’ll be even worse once we shake them down for treble damages. You’ll be lucky to stage a sock-puppet show in a cardboard box.”

  “That’s nothing. I directed a play once where the only prop was a wooden door. Nine characters played by three actors, where they put on different coats or hats depending on who they were supposed to be. We picked up everything at a thrift store, so the entire production budget was less than—”

  “Son of a bitch!” Theo had found something in the paper.

  “What?”

  “This story on the sports page by Ivan Wallace. He covers the local colleges. Obviously a fanboy. Says he interviewed some of the basketball players—not one of which he’s calling out by name—and they said Hayley was a groupie. That she hung around the team all the time, showed up at their parties and came on to all the players.”

  “That’s a lie. Every word of it.”

  Theo’s jaw twitched with anger as she ground her teeth. “Of course it is. It’s a classic smear campaign, and whoever’s behind it knows we can’t push back because of the gag order.”

  “Then somebody should write a letter to the editor. I bet I can get Michael to do it.”

  “Michael’s one of my witnesses. I’d be in jail for contempt two seconds after it showed up.” She abruptly scraped the rest of her breakfast down the garbage disposal, apparently having lost her appetite. “I can’t believe an editor let that story through without any sourcing. That tells me whoever planted this has some powerful friends.”

  “Is there anything we can do?”

  Theo shook her head. “No, the damage is done. I won’t get anything out of Wallace about who said this, but you can bet I’m going to put the whole team on my deposition list. No one’s going to own this, so Ivan’s going to come off looking like a hack.”

  Celia followed her into the bedroom and watched as she continued getting ready for work, the sensual start of their day forgotten. With the gag order and now this, it was undeniable the momentum had swung to the side of the defense.

  When Theo emerged from the bathroom, her hair dry and makeup in place, she tugged Celia back onto the unmade bed. “You know what? Screw it. I’m not going to let a pack of lies ruin a day that started with me making love with the sexiest woman on the planet.”

  A series of increasingly heated kisses threatened to derail their plans for getting to work, especially when Theo’s hand wandered up her shirt to squeeze a breast.

  Though Celia had no schedule to keep, she couldn’t let Theo miss her meeting. “You’re going to be late…and it will be my fault.”

  Theo murmured, “Everything is your fault. Like the fact that I can’t go three minutes without thinking about you. Like I won’t be able to sleep tonight because you aren’t here…unless I touch myself.”

  “Just promise me you’ll pick up the phone when you do.”

  * * *

  Alone in her office, Theo polished the legal argument she expected to make in response to the motion for dismissal. Though she hadn’t yet received the defense’s reply to her suit, she had a reasonable idea what it would contain.

  The point of the defense’s motion wasn’t to argue the facts of the case, but its legal merits even if all the facts were assumed to be true. Without admitting anything, they would claim as a matter of law that they weren’t legally culpable for Hayley’s suicide even if the players had committed the sexual assault, even if the campus police had ignored the evidence and denied her due process, and even if the chancellor and board of trustees had taken no action to help her.

  Four out of five judges would probably agree. That’s how difficult it was in Georgia to hold anyone responsible for someone else’s suicide. Would Judge Henry be the one who opened the door to the suit? Only if Theo could convince her Hayley’s suicide was both foreseeable and a direct result of the defendant’s actions.

  After a soft knock, her door opened to Penny. “Theo, your ten o’clock is here early. Can you see him?”

  She’d
been so busy, she hadn’t even glanced at her schedule. “Shane Satterfield? Are you kidding me?” He was a Senior District Attorney from the Felony Division. “Any idea what he wants?”

  “A criminal matter. That’s all he said.”

  Theo knew Shane from a pro bono case she’d argued several years ago, a domestic abuse victim who’d poured scalding water down her husband’s back while he was trying to choke her. The DA’s office had conceded the abuse, but pressed forward with charges due to the extreme nature of the man’s injuries. After a jury acquitted the woman, Shane urged the husband into a domestic offenders program and advised him against further contact with his wife. Theo counted Shane as one of the good guys.

  “Shane, how in the world are you?”

  In his late forties, he was six-four at least, thin and wearing a suit that looked two sizes too large on his round shoulders. His offered hand was free of calluses but strong just the same. “Doing just fine, Theo. Great to see you again.”

  “I read about your promotion—Senior District Attorney. Congratulations.”

  “You stick around long enough, the other guys die off. They have to kick you upstairs eventually.” He followed her gesture to one of the wingback chairs and, gentleman that he was, waited for her to sit. “Our office has been following your case with considerable interest. I suspect you know that…and that you’ve been expecting me.”

  “Let’s just say I was hoping someone would come around wanting to know more. That video was pretty compelling, wasn’t it?”

  “I’ll say. And I’m betting you have a copy that isn’t blurred.” He crossed an ankle over his knee and continued in a Southern drawl that was obviously born and bred. “Don’t suppose you’d be interested in telling us how you acquired it.”

  “Does it matter?”

  “Mmm…not really, I guess. We’d still have to corroborate its origin and authenticity to know whether it’s been edited to show something that never actually occurred…as some have suggested.”

  Theo had heard that theory bandied about on sports talk radio but gave it no credence. The man who posted the video never meant for it to be seen by millions of people. “I’m willing to share the evidence that led us to believe Ruben Vargas was the person behind the camera. With your ability to subpoena the contents of a private social media group accessible only by members of Harwood’s basketball team, I’m betting you’d be able to confirm that. It’s also likely Vargas was the one who supplied Hayley Burkhart with a drugged drink.”