JD05 - Conflict of Interest

by Scott Pratt

  “Really? Are you serious? You’ve done some criminal defense work. You know it takes money to do it right.”

  “Are you saying that you’ll be less than zealous if you’re unable to collect a big fee from him? I believe that would be unethical, wouldn’t it? That would be fodder for the lawyer police in Nashville. You could lose your license over something like that.”

  I’d screwed up by not insisting that Richard pay me immediately to represent him at trial. A first-degree murder case in federal court was worth at least a hundred thousand dollars to any experienced trial lawyer. Richard and Mary had given me a twenty-thousand dollar retainer when they first hired me, but at the time, I didn’t believe either of them would wind up being charged with murdering Lindsay. I’d already spent more than a hundred hours on the case and was looking at twice that getting ready for trial. If I couldn’t get Margaret to agree to allow Richard access to at least some of his money, not only would I be unable to hire any more experts, I’d also wind up trying a murder case in federal court essentially for free.

  “What do you want me to say, Margaret? I know you have him by the short hairs. I know he’s charged with one of the most terrible crimes imaginable, but there’s a strong possibility that he’s innocent. Before you tied up his money, I hired one of the most respected polygraph experts in the country and he passed. He passed a polygraph. Put yourself in his place for a second. You’re arrested for murdering your own daughter. You didn’t do it, but your wife has bought into the police version of what happened and has filed for divorce. She hires a lawyer who ties up all your money so you can’t adequately defend yourself against a federal government that has more money and resources than Bill freaking Gates. How would you feel?”

  She picked the box of tissue up and opened the desk drawer again. She placed the box in the drawer, fiddled around for a second, and when her hand reappeared it held a long, thick cigar and a cigar cutter. She spent a couple of minutes trimming the end off before picking up a large, silver lighter that was sitting on her desk.

  “Don’t mind if I smoke, do you?” she said.

  “It’s your office.”

  “These are Cuban,” she said as she sucked and puffed. “You can get them if you know the right people and don’t mind spending the money. I don’t mind spending the money because I have plenty. The reason I have plenty is because I step on the throats of men like your client and I don’t take my foot off until I’ve choked the life out of them.”

  “Good for you, Margaret.”

  “Ironic, isn’t it?”

  “What’s that?”

  “An old dyke like me sucking on something that looks like this.”

  I couldn’t help smiling as the room began to fill with thick smoke.

  “Let me just ask you to do the same thing you asked of me a minute ago, with one small variation,” she said. “I want you to put yourself in my position. You’re an experienced divorce lawyer who has built her practice advocating the interests of women who have been betrayed or psychologically or physically abused by men. You’re aware of a sensational kidnapping case that has happened in the same area where you practice. You follow it because it’s horrific, it’s sensational, it’s fascinating. It’s appealing in a prurient sort of way. And then, out of the blue, you get a phone call from a gentleman one morning who tells you that his son-in-law has been arrested for killing his granddaughter. He tells you that his daughter – the mother of the child and the wife of the accused – is terribly distraught and that she wants to divorce this monster who has killed her baby, stolen her father’s money, and destroyed her life. You meet with the grandfather and the mother. The mother is inconsolable, maybe a little high, but she’s determined. She wants to rain fire and brimstone down on this… this thing. She wants to see him burn in hell, but before he burns in hell, she wants to make him suffer as much as he’s made her suffer. There’s a ton of money involved, which means you’re going to be paid handsomely. It’s also a huge media case, which means you’re going to get a ton of free publicity. It’s a divorce lawyer’s dream.

  “So you do your thing. You zealously represent your client. You get the divorce court to agree that the monster shouldn’t be able to hide or spend or otherwise deplete his financial resources and the court puts down an order freezing the assets that haven’t already been frozen. And then Joe Dillard waltzes into your office asking for mercy because he needs money to help defend the monster. He needs money for himself, he needs money for experts that he plans to hire to come to court and confuse the jury, confuse the issues. He wants you to show some compassion for his client. You respect Joe Dillard because he’s been around awhile, he’s been in the trenches, but you have this incredibly strong urge to tell him to go screw himself. Now, having put yourself in my position, counselor, let me ask you: what would you do?”

  I shook my head slowly and rose from the chair.

  “I guess I’d tell me to go screw myself.”

  She blew a long stream of gray smoke in my direction.

  “Yeah,” she said. “I guess you would.”

  CHAPTER 38

  The paperwork had arrived via a courier from Assistant United States Attorney Rudy Zeller’s office three days earlier. It was a “Motion to Disqualify Counsel,” a request by Zeller to the federal court judge to kick me off of Richard Monroe’s case. It was one-thirty on a Thursday afternoon, and I was sitting on the witness stand in federal court in front of Judge Donnie Wilson, a man who had spent his entire adult life sucking up to his powerful friends, waiting for the previous judge to retire so he could get the coveted lifetime appointment to the federal bench. It had finally happened for Wilson five years earlier. I’d never appeared in front of Judge Wilson, had never had any dealings with him at all. I knew him by reputation only, and the things I’d heard weren’t flattering.

  “Raise your right hand,” Judge Wilson said to me. “Do you swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?”

  “I do.”

  “For the record,” the judge said, “we are here on a motion to disqualify Mr. Dillard from representing Richard Monroe in case number six-five-three-three-one, United States of America versus Richard Monroe. The motion was filed by the United States Attorney’s office and alleges that Mr. Dillard has a conflict of interest that requires him to be removed from the case. The motion also states that Mr. Dillard will be subpoenaed as a witness for the prosecution in the upcoming trial. In response, Mr. Dillard has filed a motion to sever the counts and try the murder case and the theft case separately. Mr. Zeller is here representing the United States and Mr. Dillard is representing Mr. Monroe and, for the purposes of this hearing, himself. Proceed, Mr. Zeller.”

  Rudy Zeller got up from the prosecution table and moved to the lectern. Richard Monroe, cuffed and shackled and wearing the bright orange jumpsuit issued by the jail, was sitting at the defense table. There were about a dozen reporters in the gallery.

  “State your name for the record, please,” Zeller said.

  “Joe Dillard.”

  “Mr. Dillard, when were you hired to represent Richard Monroe?”

  “I was first hired to represent both he and his wife, Mary Monroe. They came to my office a few days after their daughter, Lindsay Monroe, was kidnapped. They were concerned that the police were targeting them in the investigation and asked me to represent them.”

  “Isn’t there an inherent conflict of interest in representing two people in a criminal proceeding?”

  “There was no criminal proceeding at that point, but yes, I realized there was at least a potential for a conflict of interest, and I discussed it with both Mr. and Mrs. Monroe during that first meeting. I explained that if one or both of them wound up being charged with a crime, there could be problems because they could wind up being witnesses against each other. Both of them were adamant about being innocent of any wrongdoing whatsoever and wanted me to represent them. I dra
fted a consent form that laid out the potential for a conflict of interest and both of them signed it.”

  “You just said they wanted you to represent them, but at that point, neither of them had been charged with anything. What exactly did they want you to do?”

  “The police were accusing them of being involved. They had both been interrogated. They’d both given blood and hair samples and had consented to searches of their property. When the police asked them to take polygraph examinations, they felt like they needed a lawyer. They wanted to continue to cooperate with the police, but they wanted a lawyer to act as an intermediary on their behalf, to protect their rights under the constitution.”

  “Why didn’t you suggest that they each hire separate counsel?”

  “I did. Like I said a minute ago, we discussed the conflict and we discussed all of the options. At that point in time, they didn’t feel as though they needed separate lawyers. They insisted that they hadn’t done anything wrong.”

  “Were they distraught?” Zeller said.

  “Distraught? Of course they were distraught. They were terribly upset. Their child had disappeared and the police were accusing them.”

  “Do you think they were capable of making sound decisions under those circumstances?”

  “As capable as anyone could be, I suppose. As I remember it, they were lucid and coherent, very articulate. They were emotional, which was certainly understandable, but they seemed to be reasonable, intelligent people who found themselves in a desperate situation. They wanted some help. They needed some help, so I agreed to represent them.”

  “For a fee, of course.”

  “I’m a lawyer, Mr. Zeller. It’s how I make my living.”

  “And did your fee include delivering ransom money to the purported kidnapper?”

  “I didn’t know it at the time, but yes, it eventually came to that.”

  “How much was it? Three million dollars?”

  “I believe so. That was the demand made by the kidnapper, but I didn’t count the money.”

  “It must have been quite an adventure. Tell the court about it, Mr. Dillard.”

  I turned and faced the judge, who was looking at me over a pair of black-rimmed reading glasses. His face betrayed nothing.

  “It happened very quickly,” I said. “The Monroes and I had been talking for over an hour, maybe two, when Mr. Monroe got a text message on his phone that said – and I’m paraphrasing here because I don’t remember the exact wording of the text – but it said something along the lines of if Richard wanted his child back it was time to pay the ransom. A note had been left on Lindsay’s pillow that demanded three million dollars in ransom. The note also said that if the police were involved in any way or if the kidnapper or anyone who worked with him was apprehended by the police, then Lindsay would be killed. Like I said before, I don’t remember the conversation word for word, but we had a brief discussion about the police. The Monroes insisted that the police be excluded from the negotiations and from the ransom drop. They wanted to follow the kidnapper’s instructions, deliver the money, and get their daughter back.”

  “Excuse me, Mr. Dillard,” Zeller said, “but Richard Monroe didn’t just happen to have three million dollars with him, did he?”

  “Richard didn’t have the money,” I said. “He was involved in some type of litigation that had resulted in a court freezing most of his corporation’s assets. But Mary’s father, Charles Russell, is a wealthy man and he had raised the three million dollars. I was told that Mr. Russell had the money at the Carnegie Hotel in Johnson City, that we could get our hands on it quickly. The kidnapper was pressing us for time. He wanted the money delivered in one hour. I remember telling Richard to ask the kidnapper to prove that he had Lindsay and that she was alive. Richard sent him a text, and a few seconds later he received a media message that was a photograph of Lindsay. She was lying on her side in what appeared to be a wooden box and it appeared that she’d been bound and gagged. It was incredibly intense situation. We discussed what we should do for a little while longer and then we made a decision to go to the Carnegie Hotel and pick up the money. A few minutes after we arrived at the Carnegie, the kidnapper called Richard’s phone. His voice was altered somehow, like it was being run through some kind of electronic device. He sounded like an alien. I remember he threatened to cut Lindsay’s head off and at that point, Mrs. Monroe fainted and fell to the floor. During the confusion, I wound up with Richard’s phone and a suitcase full of money and the next thing I knew I was driving my vehicle north on I-26. I kept getting periodic text messages from the kidnapper that directed me where to go. Eventually, I ended up at Steele Creek Park in Bristol.”

  “How did the money come into your possession?”

  “Mr. Russell gave it to me while I was at the hotel. It was in a suitcase.”

  “What did you do with it?”

  “When I got to Steele Creek, I was told to follow a trail that ran through the woods near the lake. After I’d walked a half-mile, maybe three-quarters of a mile, the kidnapper called me and told me to dump the money from the suitcase into a metal trash can that was about fifty yards in front of me and then turn around, walk back to my vehicle and leave. That’s exactly what I did.”

  “And you did all of this without notifying the police?” Zeller said.

  “That’s correct. My clients didn’t want them notified, and I honored their wishes.”

  “And to make this long, fascinating story just a bit shorter, the upshot of all this is that the alleged kidnapper somehow managed to take the money and didn’t return the child, isn’t that correct?”

  “There was apparently a false bottom in the trash can and beneath that a tunnel leading to a drain culvert. I didn’t see it myself, but I was told by Mr. Russell that the kidnapper used the drain culvert to conceal himself and took the money from the can. Mr. Russell had employees in the woods watching, but—”

  “That’s enough,” Judge Wilson said. “I’m ready to rule on your motion, Mr. Zeller.”

  I started to say something else, but I’d practiced law long enough to know that once a judge made up his mind – and judging from the tone of his voice and the look on his face, this one obviously had – there was absolutely no point in arguing.

  “After hearing Mr. Dillard’s testimony and after having reviewed the indictment in this case,” Judge Wilson said, “I find that Mr. Dillard has a clear conflict of interest that precludes him from further representing the defendant, Richard Monroe. By his own admission and by his own actions, he has become a witness. And while I don’t condone Mr. Dillard’s conduct, I can understand it to some degree. He found himself in a terribly difficult position and was under intense pressure. Having the luxury of hindsight, I suppose we can all second guess the things he did, especially his decision to exclude the authorities, but I believe him when he says he was following his clients’ wishes. What he did may have been ill-advised, but it wasn’t illegal. However, there is no getting around the fact that he delivered money that was eventually stolen and is the basis for the theft charge against Mr. Monroe. The prosecution’s theory, if I am not mistaken, is that Mr. Monroe killed his daughter and then staged a kidnapping in order to extort money from his father-in-law. In response to Mr. Zeller’s motion, Mr. Dillard has filed a motion to sever the theft case from the murder case in which he argues that even if the court finds he has a conflict in the theft case, he could still represent Mr. Monroe in the murder. The court finds that the offenses charged in the indictment are based on a series of acts connected together or constituting parts of a single scheme or plan, and therefore severance is not warranted.”

  The judge turned is head toward me and removed his glasses.

  “You have a glaring conflict of interest, Mr. Dillard,” he said, “and there is no legal basis for severing the offenses. Bottom line? You’re sitting this one out, counselor. Court’s adjourned.”

  PART III

  CHAPTER 39

  The l
eaves on the mountains were starting to turn, the green quilt slowly transforming to gold, orange and red. I was driving Caroline home from her radiation treatment the day after Judge Wilson booted me from the Richard Monroe case. We’d learned from the doctor at Vanderbilt that the cancer inside of her was aggressive and farther along than the doctors first thought. A scan had revealed that her spine had already been invaded so thoroughly that three vertebrae were fractured. The radiation treatments, which were being administered in Johnson City, were intended to kill the cancer cells, but they were doing far more than that. The radiation burned her throat and made it painful to swallow. It also made her nauseous. The combination of nausea and the pain in her throat made her spurn food, and because she wasn’t taking in any calories, she was losing weight quickly and had very little energy. She spent long hours in bed, reserving the little strength she had so she could continue teaching at her beloved dance school, and when she walked through the door at home after teaching, all she wanted to do was sleep. She ate pain medication like candy and was taking weekly intravenous drips to strengthen her bones and shut down her ovaries. She was halfway through the radiation, and as soon as that was finished, she would have to begin chemotherapy.

  I’d been spending a lot of time at night listening to her breathe, terrified by the thought that she might suddenly stop. It was the loneliest I’d ever been. The thought that she might not be there in a year or two years or, at best from everything I’d read on the internet, five years made me sick with sorrow and anger and frustration. I found myself talking about it less and less but thinking about it more and more. What would I do without her? How would I possibly go on?

  “I’m worried about you,” she said from the passenger seat.

  I smiled and looked over. Other than the weight loss, you couldn’t tell by looking at her that there was anything wrong. She was as beautiful as ever.