When Chuck got to the part about my comment to Hanks, I watched Lesh carefully. To the casual eye, he kept right on with his notes. To an eye paranoid about its holder’s professional reputation, however, he paused, just momentarily. Uh-oh.
When the lawyers were done, Lesh announced that he needed some time in chambers. Thirty minutes later, he emerged, legal pad still in hand.
“I’m ready to rule. First, let me address Mr. Braun’s motion to suppress both the statement and the—well, let’s call it what it was—the spitting, by defendant Hanks upon his arrest. By that time, Hanks was clearly in police custody. He had been Mirandized and had unambiguously asserted his right to counsel. As a result, the state was prohibited from deliberately eliciting any further information from him. However, I find that the state did in fact respect the defendant’s rights. Although the defendant’s remark to DDA Kincaid was in response to a statement by her, it was actually the defendant who initiated the entire exchange. It was the defendant who first broke the silence by inquiring as to Ms. Kincaid’s identity, in his own colorful words. Although Ms. Kincaid’s response was undoubtedly provocative, it was in fact responsive to the defendant’s question. Accordingly, I find that the defendant’s statement, including the conduct that accompanied it, to be lawfully obtained and admissible evidence.
“Now, with that said, let me turn to the signed confession and the oral statements of defendant Corbett, which Ms. Lopez has moved to suppress. Here, in combination with the conduct of the detectives, I view Ms. Kincaid’s comments in a subtly different light, and I’ll explain what I mean momentarily.”
I was already on the edge of my seat, but now my heart was racing.
“Let me be very clear here: I see this as an extremely close case. The law in this area is difficult to apply, but the critical question is whether this confession was obtained voluntarily. There is a great deal about this interrogation that troubles me. I myself was a prosecutor and am well aware that police officers have tools they use to loosen up a suspect. Nothing about that is unconstitutional per se. In fact, some would say the Supreme Court encourages a little trickiness. My problem here is that Detective Calabrese appears to have used not just one or some of these tools but every one he could think of. It’s as if he had an agenda when he went in that room, regardless of process and regardless of whether the defendant was in fact guilty.
“Let me explain the factors that tip the balance for me. First, I take judicial notice of the fact that this is a high-profile case. The victim was well known, and the media had already begun to cover the story. I imagine that creates pressure to get a confession. My second observation has to do with Ms. Kincaid’s behavior on the night of the arrest. I have had the pleasure of knowing Ms. Kincaid and seeing her work as a prosecutor in this courthouse for some time now. She has always been, and continues to be, a consummate professional.
“So I cannot help but notice that her conduct on the night of the arrest—your conduct, Ms. Kincaid, as it has been described by your own witnesses—was somewhat atypical. I say that not to embarrass you, Ms. Kincaid, or to condemn your supervision of this case. I say it because I have the utmost respect for you, and ordinarily your presence during the interrogation would probably have tipped the balance in favor of ruling for the state. But what I have heard only reinforces my impression that the government was willing to be extremely aggressive to get the evidence it needed in this case. That aggressiveness translated into police conduct that renders defendant Corbett’s confession—both the signed statement and his oral statements preceding it—inadmissible.”
I heard Mike grumble behind me and turned to find him storming from the courtroom. I could see that Chuck was torn. I looked to the courtroom door, signaling him to go after his partner.
“In light of my rulings, are there other motions I need to entertain?” Judge Lesh asked.
Both defense attorneys rose, but Lisa shot Lucas Braun a look that sat him right back down. “Yes, your honor. The defendants make a joint motion to dismiss count one of their joint indictment, the charge of murder. Without Mr. Corbett’s confession, there is insufficient evidence to proceed against either defendant.”
It was a standard request once evidence was suppressed, but I nevertheless found my voice shaking as I recited the remaining evidence for the court. As nervous as I had been about Lisa’s motion to suppress, I had expected in the end to win it. I thought the court would dress me down, warning me to keep a closer watch on my cops, but I didn’t think a judge would actually have the guts to kick a murder confession. And yet here I was, clinging to a single eyewitness and a couple of carpet fibers to avoid an outright dismissal.
When I was done, Lisa and Lucas each argued separately that the case I laid out amounted to coincidence, smoke and mirrors, and, in Lucas’s words, “a few circumstantial evidences.” Lesh, however, recognized how little it takes to proceed with charges, even as a case is falling apart.
“Based on the evidence proffered by the state, a reasonable jury could find the defendants guilty. Accordingly, I deny the motion to dismiss count one. The defendants are bound over for trial. Anything further?”
“No, your honor,” the lawyers said as one.
“Very good. Counsel, please remain during recess.” Once the court reporter started packing up her gear, and the sheriffs’ deputies had removed Corbett and Hanks from the courtroom, Lesh explained the request. “First, although I ruled for Corbett on the motion to suppress, nothing I heard today changes my very high opinion of Ms. Kincaid. I know the realities of investigative work. Second, although I ruled for the State on the motion to dismiss the charges, that’s only because the standard for getting in front of a jury is low. I think the prosecutor knows this isn’t a slam dunk. I encourage the three of you to sit down and work something out. Now you guys get out of here and have a good weekend. I need a beer.”
Lisa Lopez and Lucas Braun packed up their briefcases and walked out of Judge Lesh’s courtroom separately. Apparently there was no love lost between them.
I caught up to Lisa in the hall, prepared to suck it up and grovel for a plea. “OK, so you won the motion. My offer still stands.”
“You’re kidding, right? Your offer, if you can call it that, was made before Duncan took the death penalty off the table. And, more important, that was before I won the motion, when you still had a confession. You’ll have to do a hell of a lot better than a life sentence.”
“Calm down. I meant my offer to give your guy the deal. If Corbett will testify, I’ll agree to the possibility of parole after thirty. What more can you ask for? That’s the minimum sentence.”
“Yeah, the minimum for aggravated murder, which you can’t prove. You’re off your rocker, Kincaid. I’m looking for something more like Man Two with probation.”
Lisa was skipping quickly over a few levels of homicide, like Man One and garden-variety unaggravated Murder. “You know that’s unreasonable.”
“You know what’s unreasonable? I’ve got an innocent client, and you don’t seem to care about that for a second.”
She was truly unbelievable. “Lisa, you say everyone is innocent. In fact, the last time you said that, your so-called ‘innocent’ client tried to kill me.” Talk about a trump card.
“You know I’ve admitted I was wrong about that.” The aftermath of that case was, in fact, the closest Lisa and I had ever come to getting along. “But I mean it this time. Corbett and Hanks did not kill Percy Crenshaw.”
I shook my head. Some defense lawyers could pique my attention by insisting the police got the wrong guy, but Lisa wasn’t one of them. “Then why did your guy confess, Lisa? And why are you even talking about pleading someone out if he’s innocent?”
“He confessed because your thumper cop didn’t give him any choices. And the only reason he’s even willing to consider a plea is to avoid the risk—the very real risk—that innocent people can still get convicted.”
“This conversation isn’t getting us an
ywhere, Lisa.”
“Well, the only thing I’m willing to talk about is Man Two and probation.”
“We both know there’s always something to talk about.” I may have started at a thirty-year sentence for Agg Murder, but negotiations were part of the game.
“You can throw out all the numbers you want. You’re wasting your time.” She turned and started walking away.
“You don’t have a monopoly on the market, Lisa. I can always go to Braun.”
“And he’ll tell you the same thing,” she said, turning to face me. “We met this morning. It’s a united front. With no confession and no cooperation from either of us, we’re willing to take our chances in court.”
When I returned to my office, I found a handwritten note on my chair. Russ wants you to call him. Sorry.—Alice.
Poor Alice. Russ had been calling her every couple of hours for updates on the entire unit’s work. Not surprisingly, he wanted information on Crenshaw.
“I’m fine here. Get back down on the couch and tend to your bull’s-eye rash and flulike symptoms.”
“What happened on the motion?”
When I filled him in on Lesh’s ruling and my conversation with Lisa afterward, he provided his expert legal analysis. “You are totally fucked.”
“I’ve still got a lot of evidence.”
“We’ve talked about this. It’s not enough. You will broker a deal, and I don’t care which one of those assholes gets it.”
Not so long ago, my response to a direct order at work was to think about, and most often threaten, quitting. But at some point during my time in MCU, I had come to see my relationship with the DA’s office as a marriage. Or, more aptly put in my case, a marriage where one of the partners wasn’t misusing his penis. The point is, I had come to accept that I wasn’t leaving, even in rough times.
On the other hand, even the best couples argue. “I can’t. She made it clear I’d be bargaining with myself until I got down to Man Two, which I’m not about to offer.”
“And I’m not telling you to give her Man Two. I’m telling you to make a deal. Man One with six to ten is fairly standard when you need a guy to flip. Offer it. That united front she built? Your job is to break it. If Lopez is being a stickler, I know you can out-scare a pussy like Braun.”
“No way. Hanks is the one who brought the bat.” He was also the one with prior convictions, the one who reduced a man like Percy Crenshaw to a racist epithet, the one who’d spit at me when he was arrested, and the one who was most likely a date rapist to boot. I did not want to give him a deal.
“Then convince Lopez.”
“Trust me. I know her. I just talked to her. It’s not going to happen.”
“Jesus, Kincaid. You’re worse than this rash. Pick one of them. I don’t care who it is. Or call them both and tell them your rock bottom offer goes to the first one who takes it. Just get one of them to turn.”
Alice Gerstein walked into my office and handed me a note. An attorney is waiting to see you—Lucas Braun.
“Russ, I’ve got to go. I’ll call you right back.” I could still hear him in the handset when I disconnected.
I didn’t even know Lucas Braun, and I could tell he was nervous. It’s basic body language. Through the glass window of the room where he waited, I watched him fiddle with the pad on which he’d written his notes, his lips moving subtly as he rehearsed the lines he’d composed for himself. When I walked in, he couldn’t even rise to shake my hand without adjusting his out-of-character striped tie and stroking the tips of his shoulder-length hair like a security blanket.
“What can I do for you, Mr. Braun?”
“Well, first let me thank you for taking the time to see me without an appointment. I know how busy the DDAs get in MCU.”
Inwardly, I winced at his attempt to impress me with law-enforcement acronyms. “Not a problem. What’s up?”
“I couldn’t help but notice you speaking with Ms. Lopez after the hearing in Judge Lesh’s courtroom.”
“Uh-huh.”
“I know the two of you handle more cases than I do, so you’re probably quite comfortable with each other by now. I just wanted to stop by to talk—you know, to make sure my client wasn’t at a disadvantage when it came to communications among the lawyers.”
He apparently didn’t know the personality dynamics well enough to realize that Lisa and I weren’t exactly girlfriends, but he had picked up on the possibility that Lisa was a snake who’d sell out her united front in a heartbeat to benefit her client. So here he was, selling her out first. I knew what he wanted—a deal for his racist, spitting, date-raping, murderer client.
There were plenty of reasons why I’d hate to be a defense attorney, but this struck me as one of them. My ethical obligations aren’t particularly complicated: Get bad guys, don’t get good ones. But in the shoes of Lopez or Braun, I’m not sure where my loyalties would lie. If both defendants kept quiet, both stood a good shot at an acquittal. But if one stepped to the plate, he could buy his way out of the gamble at the other’s expense. Which one should go home feeling guilty? Lucas—ready to take the one and only deal I was willing to put on the table—or Lisa, who had turned it down moments ago?
“If there’s something you want to say, Lucas, you should probably get to the point.”
“I’ve spoken to Trevor. He’s willing to testify against Corbett. In exchange, you accept a plea to Robbery One with a sentencing recommendation of three years.”
“You need to quintuple that number and start talking about a homicide charge.”
“My guy says it was Corbett who took all the swings.”
“And you know that doesn’t matter. Robbery plus dead body equals felony murder.”
“Man Two, three years.”
“No, Lucas.”
“Man One, four years.”
“Didn’t you hear me before? You’re still way off.”
“Man One, five years. That’s my final offer.”
He’d finally stopped bidding against himself. It was time for me to get specific. “Man One, ten years.”
“I won’t recommend that to him. We’ve already talked about the options. Any more than seven years, and he wants a trial.”
“He’ll do the seven? Waive all rights to appeal? Contingent on truthful testimony?”
“Yeah.”
I thought about Russ’s directive. I had to make a deal, and seven years was in the suggested range. I thought about the possibility of getting something better from Lisa. No, I’d seen how determined she was; given time, she might even be able to pull Braun back into the united front. This was my only choice.
“Have your guy ready to talk to me tomorrow at two. If I don’t like what he has to say, no deal.”
As soon as I left the conference room, Alice informed me that Russ had called twice since I hung up on him.
“Sam?” he answered.
“Yeah.”
“Don’t hang up on me when I’m trying to supervise you.”
“Sorry about that. Alice—”
“Alice doesn’t run the unit. You know, I’ve put up with a lot of shit from you this year. And I haven’t gone running to Duncan with it like Rocco used to.”
Russ didn’t need to remind me that he was the only supervisor I’d managed to get along with—for the most part. “I know, but—”
“And I know you don’t want to cut a deal, but when I’m giving you a direct order—”
“Russ. I hung up because Lucas Braun was here to see me. I did what you told me. Hanks is testifying. Man One, seven years.”
“Really?”
“Yes.”
“Just like that? You listened to me?”
“Yes.”
“OK! Very good. All right, just make sure you tell your cops before they find out somewhere else. Warning: They’ll be pissed.”
As it turned out, they already were, but for an entirely different reason.
When I called MCU to check if the guys were aroun
d, I could tell from Mike Calabrese’s tone that something was up, but I assumed he was still mad about Lesh’s ruling. If I’d known there was more to the story, perhaps I would have been less breezy when I walked into the MCU office.
“Hey, guys,” I said casually. “I had a chance to talk to both of the defense attorneys on Crenshaw, and I wanted to tell you in person where things stand.”
It was when Mike Calabrese grunted under his breath that I realized he was staring coldly at me, arms crossed in front of his chest. Ray Johnson was still typing at a computer terminal, apparently ignoring my entrance. Jack Walker was fiddling with his pants pockets, avoiding my eyes. And Chuck—well, Chuck did his best to save me from my own mistake.
“Sam, I think there’s been some kind of misunderstanding. A court reminder came into the property room today for a grand jury appearance on Geoff Hamilton. It had your name on it, so everyone’s sort of wondering—but I know your guys’ names wind up on each other’s files all the time.”
This was bad. Very bad. In a perfect world, I would have mitigated the conflict with MCT by telling them all up front I had inherited the Hamilton situation. As it stood, I hadn’t even told Chuck.
“Um, yeah, they do, but actually I am covering that hearing. I’m sorry. I should have mentioned it earlier,” I said, looking directly at Chuck. “It just happened yesterday. Russ is out sick for a while.”
This morning, Chuck had been paged away before I woke, staying just long enough to kiss me goodbye and wish me luck on the Crenshaw motion.
My apology was met with silence from everyone but Chuck. “Well, all the better for Hamilton. Better you than Russ, right?”
This time, I was the one who was silent. And now the guys were staring at Chuck, not just me.
“All I’m saying is that Hamilton stands a better chance with Sam. At least she knows what it’s like for a cop out there.”
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