by Mark Tiro
“How’s my favorite Highway Hypnosis expert?”
“Hi Maya.”
“It’s Thursday Joel. The prelim’s next Thursday, and I’m going to need you to testify.”
“You really want me to testify? At a prelim?”
Even though technically the defense has every right to present witnesses at a preliminary hearing, it’s rare that it happens. The standard is exceedingly low. Most defendants are held to answer, and the case just continues winding its way up to the next court where the trial will take place. It’s very rare that a defendant would have a case dismissed or even reduced as a result of anything that happens at the preliminary hearing. The downside for the defense in calling witnesses that early in the case, however, is that the prosecutor gets a chance to cross-examine and pin down these defense witnesses, word for word. That’s the kind of thing a DA can have a field day with, down the road when the whole thing plays out in front of a jury at trial.
“Joel, I think we can get it down to an invol at the prelim. May as well try. The facts are what they are. That part’s not going to change. Anyway, Judge Elanjian is having a little retirement luncheon. Pretty much the whole courthouse will be there. There’ll be tons of food at lunch. I’ll put you on the list so at least you won’t starve if we have to be there all day.”
“Wait. Didn’t you just hang up on me the last time we talked? Maybe we should talk about that? So…” He started to speak, but quickly let his voice trail off as he realized she had already hung up on him. Again.
Another hour later, Maya made it home. She went inside, put on pajamas, curled up in bed and fell asleep straight away.
The next couple days, Maya threw herself into coming up to speed on David’s case. By the time Thursday rolled around, Maya knew the case cold.
But Thursday didn’t roll around quickly enough. Maya could only keep her head down in the file so much. When she came up for air, she discovered that the usual stuff she would do to mindlessly distract herself, didn’t work.
Her last talk with David kept coming back into her mind. That damn forgiveness, she thought. I’m trying, but it’s not easy.
She had tried. A lot.
She had tried to remember the day—alone in the room, with Tom. That look in his eye—it kept coming up, in her mind, over and over. It haunted her even now. She sat, closed her eyes, and tried to look past what had happened. She tried to forgive. Instead, she became hopelessly preoccupied. She got distracted. Maya tried to sink within and wait, just like David had said. She waited for some feeling of peace, for some little sense of relief to come. It never came.
Instead of forgiveness and release, Maya found her mind wandering off, sidetracked, analyzing.
This is impossible, she thought. She realized, though, that the word ‘bastard’ hadn’t come to her mind once. She figured that, at least, was progress. No matter what I try to do to get past it, to that place underneath it, I just can’t. I just can’t crack it.
She had a flash of inspiration just then. That’s it—the wall. This is the wall! She made a note to talk to David about it during her weekly jail visit with him after the prelim. She didn’t feel any closer to getting past it, but at least she could see it. That’s a start, she thought. The thrill of discovery gave her a small sense of release. With a little relief from the memories she had been reliving, and now a modicum of peace, Maya, at last, fell fast asleep.
She slept, and as far as she could remember for the first time in what seemed like forever, Maya dreamed of absolutely nothing. The next morning, she woke up and decided that was just fine with her.
30
Every now and then, Maya would get to the courthouse in the morning, and she’d have to loop around the news reporters and photographers, or walk past this group or that group of protesters so she could get up to her office. Usually celebrity or high profile cases. The craziest, and the largest, gauntlet she ever had to run was a few years back. A person had been charged with injuring a puppy, and news of this had spread like wildfire from one animal rights group to the next. It seemed to Maya that they had all decided to show up one day at the courthouse. They were carrying signs, demanding justice, as Maya recalled. They had been loud, but basically harmless.
This morning Maya navigated a small handful of protesters organizing just outside. As she did, she remembered those long ago animal rights protesters. Poor puppy, she thought and walked inside.
A little after nine, she finally got down to court. The bailiff let her into the lockup next to the courtroom so she could talk with a couple other clients who also had cases that morning. David’s hearing was set for that morning as well, but she hadn’t seen Joel anywhere when she came in. He must be stuck in traffic, she thought. Probably won’t even start ‘til after lunch anyway.
After she had finished talking to her other clients in lockup, Maya knocked on the door. This was the signal for the bailiff in the courtroom to open the door for whatever attorney had been talking to their client in lockup, so that attorney could come back out and handle the case.
Maya knocked. And she waited. A few minutes, she waited. But the door didn’t open. This was normal of course. Sometimes Maya would be so focused on her conversation with a client that she wouldn’t hear the bailiff pass through behind her, taking one of the other custody clients back up the stairs to the main holding tank. There was nothing to do but wait for the bailiff to come back to unlock the door to let her out. It was for just these occasions then, that she would always be sure to bring whatever novel she was reading into the lockup with her.
Today, though, instead of hearing Deputy Castaneda, the usual bailiff coming back, Maya heard shouting in the courtroom. Shouting, and then scuffling. She did the only thing there was to do. She sat down in the lone chair in lockup, pulled out her book and flipped around for where she had left off. This of course didn’t work too well. Maya heard shouting from the courtroom just outside the lockup door. It was getting louder. She heard the sounds of sheriffs’ radios blaring, and after that, the footsteps and shouts of bailiffs running from other courtrooms to assist. She heard it all, but she didn’t see a thing from her quiet space behind the locked door.
When the door finally did open, Maya was more than a little shocked to see a few of the protesters she had seen that morning being led back into the lockup—in handcuffs. Half expecting them to be shouting about puppies, Maya was a little mystified to hear them threatening her client with eternal damnation. Under other circumstances (maybe next week, she thought), she could be defending these same people as clients on their own cases. A parade of former court spectators (now new arrestees) followed, marching past her towards the small holding tank in the back of the lockup. After everyone had passed, one of the legion of bailiffs that had come in to restore order held the door open for Maya. “Thank you,” she said as she turned and walked out of the lockup and back into the courtroom.
Back in the courtroom, Maya caught Joel’s eye as he walked in the door.
“What was that?” she asked him.
“I don’t know,” Joel answered. “Sheriffs made us wait in the hallway. I just saw a whole bunch of bailiffs streaming in.”
“That happens. It’s overkill sometimes, they get one call about someone’s cellphone going off in court and five bailiffs practically break down the door to get in.”
“No, you don’t understand. I’ve never seen anything like this before—they seemed normal, but then I hear this…commotion…” he paused, considering the word carefully. “People shouting bible verses, I think. They start pushing down the door to get in, just when more sheriffs came running.”
“Well God does abhor a puppy-abuser,” she said.
“Huh? I don’t understand. I mean, what are you talking about?”
“Never mind,” she said gruffly, cutting him off to avoid having to give an explanation.
“I hope you’re ready to go. Or at least will be,” she told him. “I’m going to get back there and talk to my
client as soon as I finish these continuances. Then we’ll be ready to go. I’m hoping before lunch. But I wouldn’t count on it, not the way this morning’s been going.”
“Maya, do you think I have time to go down and get some coffee before it gets started?”
“Of course, go ahead. At least an hour. See you in a bit.”
And with that, Joel left. Maya finished her other cases, and then headed back into lockup to talk to David.
“We’ll probably start this afternoon. I’m trying to get your prelim going this morning, but these things never seem to go quickly,” Maya told David in the small attorney conference room inside the lockup.
“I understand. And I wanted to say thank you, Ms. Lee.”
“You’re welcome, Mr. Nagai,” she smiled, returning his formality. “Listen, I know last time I visited you, we didn’t really talk much about the prelim. I wanted to let you know what’s going to happen today.”
“What’s going to happen today?” he repeated, slowly. “Really, you know? What’s going to happen today, that is?” He asked with a glimmer in his eye, looking more amused than anything else.
“For starters, after today’s prelim, you’re going to be held to answer.”
“Is that so? Today?” he gently prodded her.
“Well if you’re asking if your case will be dismissed, then I’d have to say, no—it won’t. Everybody asks this, but no, most likely it’s not. I mean, technically, sure it could. But it won’t. That just happens so infrequently, even in run of the mill cases. And in a murder case like this, it’s an order of magnitude less likely to happen. Basically, our goal today is to try to lock their witnesses in to their story. But there can always be fireworks. You never know about that until it comes out. The rest of it, we’ll most likely have to argue to a jury down the road.”
“So you’ve already made plans for what you’re going to argue to the jury, but that’s not today?”
“Well, it’s a different court David, if that’s what you’re getting at. That’s when your speedy trial right begins. For what it’s worth. Probably doesn’t matter with these charges. I’m sure you’ll be in here a while longer anyway. Before setting anything for trial, we’ll have to make sure we’re completely ready to go. Oh, and also, we need to make sure we’ve done everything, exhausted every possibility—to see if we can’t get the DA to offer you something you might want.”
“What might I want?” he repeated. “What do you think I should want?” he asked.
Maya was back to her comfort zone. She could go back and forth with this legal analysis in her sleep. Comfortable, unemotional legal analysis. It was only much later that she realized that when she was in her analytical comfort zone, it completely blinded her to what was going on right in front of her face.
“Well, David, I know I haven’t spoken to you too much about this before. I didn’t want you to get sidetracked.” She went on detailing her legal analysis and strategy. Wrapping up at last, she said to him, “Listen, everyone in the courtroom has a job. Mine, for instance, is to defend you. That one’s simple. The DA’s job is to prosecute. And the judge’s job is simple too. It’s to hold you to answer. You’ll be back here in two weeks for arraignment. That’ll be upstairs in a different court.”
“I thought the judge’s job was to be fair and impartial, and to rule on the evidence?”
“I did too David, when I started out here,” she said. “Well, neither of us are as young as we used to be, right? Anyway, it’s best not to dwell on that too much. But maybe now would be a good time to start thinking about this. I really do think that at some point, the DA will offer you a number.”
“A number?”
“A fixed sentence, for a determinate number of years. So that you’d have a set release date. Something that ends with a number and not with the words ‘to life’. That’s what we’re going for. It’s probably not too soon to just begin mulling over what kind of number you could live with. Just let me know next time I see you, and at some point, I’ll be able to go to the DA and make them a counter-offer.”
“You want me to start thinking about this today?” he asked.
“Of course not. You’ll have all the time in the world later to think about this. No, David, today, just try and relax. Try and focus on the prelim. Listen, as soon as it starts, the first thing the prosecutor’s going to do is float their theory that you killed your daughter as some sort of murder/suicide thing. Once they’re done, we get to put on our defense case. Technically, it’s called an ‘affirmative defense.’ Normally—and by ‘normally’ I mean almost never. I would never even consider putting up an affirmative defense this early. We don’t have to, and the standard for the judge to hold you to answer is so low that all that happens is we end up giving away our case strategy two months before we have to. But in your case, I think I’m going to put on Dr. Lehner. You remember him, right? I had him come talk to you. Anyway, unless something changes, I’m going to put him on the stand at the prelim today to try to get the charges knocked down to an involuntary manslaughter. Max on that one is four years,” she finished. Before he could respond, almost as an after, she added, “I have a feeling today.”
“Good for you,” he told her. “But four years?”
“Well, it’s better than life David. I’m not sure if that’s what you’re asking? There’s a chance that the judge will only hold you to answer on an invol. That’s the four year max I was telling you about. Or maybe on a vehicular manslaughter. Max on that is six. It’s worth the shot. Anyway, Judge Elanjian is retiring soon, and I’ve noticed over the years, if there’s any time a judge is going to do a good thing for you, it’s times like that, when they’re leaving and in a good mood. Sort of like a going away present.”
“So I’m going away?” David asked. “You can see that Maya?”
“Well, not if I have anything to do about it,” she answered, drifting back into her fighting mode as she prepared for the impending prelim battle.
With that, Maya got up, knocked on the door and waited for the bailiff to open up the lockup door and let her out. Walking back in to the courtroom, she searched the audience, wondering if Joel had gotten back yet.
She didn’t need to wonder long. He came straight up to her when she walked back in.
“Ahem.” Joel cleared his throat. He got her attention, and she slowed and turned towards him.
“I think these people are here for you Maya,” he said. “For your case, I mean. They were downstairs too, everywhere when I went to get coffee. I think the DA leaked, or publicized your guy’s interview with police. You know, the part about how he said that he’d had a revelation, that he’d seen—”
“—Jesus Christ!” she exclaimed.
“Well, actually, it was God if I recall. But close enough. Listen, they’re all… Maya, did you know they’ve been planning this for the past month? Apparently, word’s gotten out that your client killed her on purpose, that he is some sort of anti-Christ.”
“Is there anything ready? I am not in a good mood today,” Judge Elanjian boomed at the attorneys from across the courtroom. Her question interrupted Maya’s conversation with Joel. It also quieted the cacophony that had been at crescendo pitch as attorneys talked, working out cases and dates.
The clerk’s voice answered the question from the other side of the courtroom. “I believe Ms. Lee is ready on her case Your Honor.”
So much for waiting until the afternoon for everything to settle down, she thought.
“Please bring Ms. Lee’s client out,” the judge turned to the bailiff, leaving Maya with nothing to do but pull out her files and begin setting up at counsel table for the prelim.
As the bailiff brought David out, Maya noticed that his wife had come in and sat down in the front row. As he walked in, David saw her and looked briefly in her direction as the bailiff took off his handcuffs. Maya glanced back at his wife just in time to catch a look of disgust on her face, followed by unmistakable hatred—daggers from her
eyes aimed straight at David. With David sitting beside her now, Maya looked up at the bailiff and whispered, “thanks Castaneda.”
“You’re welcome,” the deputy answered, as she walked back to her desk a short distance away.
Maya leaned over to David. “It looks like it’ll finish up earlier than I was expecting. Most likely today.”
“I think you’re right. It’s sooner than I’d expected too,” David answered. “But don’t worry, everything’s going to be okay.”
But Maya didn’t look over at him. She hadn’t heard him because she was focusing intently now. Her head was down, and she was looking at the reports she had spread out across the table in front of her.
Judge Elanjian called the case on the record.
Maya stood up and turned towards the judge. “Maya Lee on behalf of Mr. Nagai Your Honor. The defense is ready.”
31
“People—call your first witness,” the judge instructed. After that, the hearing, and the morning, finally began moving forward.
Three times the judge had to ask the bailiff to remove people from the audience. Maya had seen this happen before, but not at a preliminary hearing. Ironically, it seemed to be having the main effect of throwing the DA off balance. The detective had been designated as the ‘Investigating Officer’ and as such, sat in the prized seat at counsel table next to the prosecutor. As Gevorkian quickly went through the testimony of the first two witnesses, the detective would lean over periodically, whispering in his ear.
More than a couple times, muffled rumblings came from the audience, and Deputy Castaneda had to repeatedly call for quiet.
He got them here in the first place, Maya thought during one of the times the judge had to interrupt because of the protesters. Serves him right for pulling a stunt like that. When the prelim picked up, Gevorkian inexplicably moved on to a different subject area, losing track of where he had been. He’s rattled and making mistakes now, Maya concluded. And then she sat back, objecting periodically, but mainly just watching as the DA made one unforced error after another.
