Capitol Offense

by William Bernhardt

  “Certainly.”

  “And do you recall the conclusion, when I mentioned to you both that I didn’t want any more discussion of the case with the press?”

  Guillerman pointed at Ben. “He was the one who kept calling the press conferences.”

  “Yes, and you intruded whenever you could, but it doesn’t matter. The point is, I issued a gag order. And you have violated it.”

  Guillerman pressed his hands against his starched white shirt. “I didn’t call a press conference. All I did was answer a few questions.”

  “From the press.”

  “And they didn’t even pertain to the murder trial. They were about the defense attorney.”

  McPartland was not impressed. “And you thought that would have no relevance to the trial?”

  “Not really.”

  “Amazing that a man with your naivete could survive so long in the world of politics.”

  “I just do my job.” Guillerman shook his head with dismay. “I’ll admit, I had no idea the media would sensationalize my remarks on the evening news. Very tabloid. Might as well be Entertainment Tonight.”

  “I guess you’ve never watched the evening news before.”

  “Well … I stay pretty busy at work.”

  McPartland drew in his chin. This was the most overt display of irritation Ben had seen since the trial began. “You know, I’m enjoying this inane repartee, but it’s essentially irrelevant. I issued a gag order and you violated it.”

  “I don’t recall you ever using the words gag order. You just said not to talk to reporters about the case.”

  “That’s what a gag order is, counsel. You’re making me wonder if you went to law school. Except I’m pretty sure that’s a requirement for becoming district attorney, and last I heard, you were teaching night classes.”

  “Your honor, I mean no disrespect. But I maintain that I did not violate your order because I did not discuss the substance of the case.”

  “You told a city full of couch potatoes that the defendant conspired with his attorney to get away with murder, which is basically your whole prosecution theory. That’s commenting on the case. And it’s exactly the same line your man was dishing from the witness stand last week.”

  Guillerman chose to remain silent. Ben was glad he was not in his shoes. The judge was displeased, and that never worked in a lawyer’s favor, as he knew all too well.

  Judge McPartland ran his hand back and forth over his chin. “You know what this means? I’m going to have to sequester the jury now. I’ve got no choice. The press won’t let go of this anytime soon. I heard about it on the radio driving to work this morning, and I was listening to a hip-hop station. The jurors will not be happy. And I don’t blame them. City hall won’t be too pleased, either. Sequestration costs a fortune.” He leaned back in his chair. “The jurors will go into a major tailspin.”

  “Are the accommodations provided that bad?”

  “No, they’ll stay at the Ambassador Hotel down the road. But these people have already given up days of their lives and expect to lose more before it’s over. Imagine their reaction when they find out they don’t get to go home anymore.”

  “Who knows?” Guillerman said optimistically. “Some may be happy about it.”

  “No, Mr. District Attorney, no one will be happy about it, not even the housewife with six kids who hasn’t had a vacation in eight years. And let me tell you why. Two words: no television.”

  Ben gulped. “No TVs at the hotel?”

  “We have them removed. Can’t take the risk, especially not when coverage is all over the airwaves. So now imagine the scenario: away from home, away from family—no glass teat. Horrifying, huh?”

  “Dreadful.”

  “It gets worse. We take out the minibars, too.”

  “No!”

  “Have to. State can’t buy liquor for anyone. Against the law.”

  “Do they at least get pay-per-view?”

  “No. I’m telling you, Uncle Sam can be a cruel master. But I’ll do this to those poor public-minded citizens to cure this mess you’ve created.”

  Ben raised a hand. “Shouldn’t we consider my motion first?”

  “Good point. Because you’re hoping there won’t be any need for the jury.” He thumbed through a stack of papers on his desk. “I assume you’re moving for a mistrial.”

  “Yes, your honor.” Ben cleared his throat. “Um, sort of.”

  McPartland peered at him over his bifocals. “Sort of?”

  “I am moving for a mistrial, your honor, but specifically I’m asking for a finding of prosecutorial misconduct and a ruling that double jeopardy has attached.”

  Judge McPartland gaped. “You want me to set your man free?”

  “In effect.”

  “Do you know what those reporters you two are so fond of would do to me if I complied?”

  Ben shrugged. “It’s not your fault, your honor. If there’s been deliberate prosecutorial misconduct, you have no choice.”

  “The rank-and-file Joe Beer Can NASCAR pork-rind-eating voter won’t see it that way.”

  “I understand. But of course the court has to rule on the law, not the potential professional ramifications.”

  “Of course.”

  “And I know we can count on your honor to do just that.”

  McPartland pointed a finger Ben’s way. “My momma told me never to count on anything till I see it in writing. That was good advice.” He swiveled his chair around and stared out the expansive window at downtown Tulsa. “What if I declare a mistrial but simply order a new trial?”

  “We’re not asking for that relief, sir.”

  “You’re telling me you wouldn’t accept a new trial?”

  “No, your honor.”

  He looked incredulous. Guillerman appeared more than a bit surprised himself. “May I ask why?”

  “Because my client doesn’t want that. He’s willing to accept a double jeopardy ruling—though he isn’t happy about it. He wants a jury to declare his innocence.”

  “Every defendant does, counsel. Few get it.”

  “But he does not want a new trial at some point in the distant future. This trial has been hard on him, especially coming so close on the heels of the loss of his wife. He wants it over, one way or the other.”

  McPartland’s eyes narrowed. “Counsel, is this some kind of twisted trial tactic?”

  “No, sir. And I don’t think I’m violating any confidences to say that this is not what I recommended. But it is what he wants.”

  “All or nothing, huh?”

  “Exactly.”

  Judge McPartland swiveled back around to his desk. “You boys are not making my job easier, you know that?”

  Guillerman smiled his million-watt smile. Seemed he could be charming even when he was under fire. “Do we ever, Judge?”

  “No.” He took a deep breath. “Well, the first thing you should know is, I brought the jury in early this morning and quizzed them with a court reporter present. Only two say they saw any of the news coverage of this case over the weekend.”

  “They’re lying,” Ben said succinctly.

  “Very likely. I know I’d be watching if I were them. How could they not? They are human beings, after all. But what I did not get, as I questioned them, was a sense that anyone had changed their mind because of what they saw, or that anyone’s mind was made up, or that the jury pool was tainted. Even the two who admitted seeing the coverage said it didn’t affect them, and I believe them. One of them turned it off before it was over.”

  “Your honor—”

  “Let me finish. I’m going to remove the two jurors who admit to seeing the televised story. I will sequester the rest. I will give them strict instructions not to consider anything they didn’t get in the courtroom. And I’m also going to instruct them to disregard that last little salvo from your witness, Mr. Guillerman.” He gave the prosecutor a harsh look. “I’m hoping that will get the message across. Whether the
y know what the witness was implying or not, they will decide this case on the relevant evidence presented at trial.”

  “That works for me,” Guillerman said. And no doubt it did, Ben thought. He was getting away with prosecutorial misconduct with virtually no substantive penalty.

  “Your honor,” Ben said, “I respectfully object. This is not enough. We’re talking about deliberate misconduct.”

  “But for what purpose?”

  The question took Ben aback. “What do you mean?”

  “Well, see, Senator, I’ve read the law on this subject. Reviewed it just this morning, in fact. And prosecutorial misconduct doesn’t necessarily mandate a mistrial. That extreme sanction only kicks in if the misconduct was engaged in purposefully.”

  Ben frowned. “I hardly think he gave that interview by accident.”

  “Agreed. But it has to have been done for the purpose of causing a mistrial. Then it would offend public policy to give him what he wanted. A dismissal is the appropriate penalty. But I don’t think the district attorney gave that interview because he wanted a mistrial. Do you?”

  “Well …”

  “Why would he? His case went well and you haven’t even started yours yet. No, he wasn’t after a mistrial. He did it to win. He did it to bury you before you’ve even started. Didn’t you, Mr. Guillerman?”

  “Um, well …”

  McPartland chuckled. “Yeah. Tough question. Assumes facts not in evidence. At least that’s your story.”

  “But your honor,” Ben said, scooting forward in his chair, “this was a serious and deliberate offense.”

  “Oh, I don’t think it did your case that much harm, Mr. Kincaid. And that’s the main thing. Because as those of us who went to law school know, not all error leads to a mistrial—not even violations of gag orders. The effect has to be prejudicial to a significant degree. There has to be a showing that the prejudice was great enough to affect the outcome of the trial. And I don’t think that’s the case here. The prosecution alleged something they can’t prove. So what? That’s what they do. You’ll probably do some of that yourself, huh, Mr. Kincaid?”

  “I would never—”

  “Unless you’re planning to put on evidence to support a possible finding of suicide. Which I very much doubt.”

  Ben fell silent.

  “Good. So we all know where we stand. The jury will be sequestered, and the motion is denied.”

  Both lawyers rose to their feet and started toward the door.

  “I’m not finished yet.” The judge looked Guillerman straight in the eye. “This will not happen again. Do you understand me? There is a gag order in place. A total and absolute gag order. Any further violation will result in a mistrial with double jeopardy attached. This defendant will go free and it will be your fault. Plus I will personally recommend disbarment, in writing.” He lowered his voice. “And I would imagine your shot at reelection would not be enhanced. Understand, Mr. District Attorney?”

  “Yes, sir. I do.”

  “Good. Anything else?”

  Ben leaned forward. “I want to call an Officer Torres to the stand. My investigator tells me he may have relevant information, and he’s been mentioned—”

  McPartland cut him off. “Is he on your witness list?”

  “No, I just found out—”

  “Then forget it.”

  “But the prosecution witnesses have mentioned him and—”

  “You’re the one who wants to be a stickler for the rules, Mr. Kincaid. He’s not on your list. So you’re not going to call him. Anything else?”

  Ben smoldered silently.

  “Fine.” McPartland waved his hands at them. “Now get out of my chambers. Go forth and sin no more.”

  Ben stopped Guillerman in the hallway before they got to the courtroom and the reporters. “Tough guy” wasn’t really his best mode, but he knew this situation called for a little grit. Or at the very least a furrowed brow.

  “I don’t appreciate you spreading that crap about me to the press,” Ben said, blocking his path.

  Guillerman smiled with such amiability as to be truly annoying. “Don’t take it personally, Ben. It’s just trial tactics.”

  “Don’t take it personally? You told people that I conspired to commit murder!”

  “No, all I did was say I was shocked by the news reporter’s story. That doesn’t make it true.”

  “You’re mincing words.”

  “But you’ve got to understand something, too.” The smile faded. “You’re representing a cop killer. Most people take that pretty seriously. Including me.”

  “So you’re saying you were justified in violating a judicial order?”

  “All I’m saying is, if you want to remain in office, you’d better snap on your political weather vane. Because the wind is blowing against you on this one and the elections are not far away. You’ll never be able to raise funds if you cling to this case. And it takes a lot of money—”

  “To run for reelection these days. Yes, I remember.” Ben wasn’t finished. “Thanks to you, I’ve got a call from the bar association.”

  “What did you expect? Sometimes I think they spend more time going after lawyers than they do promoting them these days, apparently never noticing how much damage they do to the profession in the process.” He took a breath. “Of course, that was off the record. Don’t want them to find an excuse to come after me.”

  “I want you to make a public apology.”

  “Ben, I can’t do that. For starters, it might violate the judge’s gag order. Furthermore—”

  “At least admit that you yourself have no evidence of any premeditation or conspiracy.”

  “With a capital trial pending? I’m sorry, Ben, but you’re dreaming. I can’t do it. And honestly, it wouldn’t do you a bit of good if I did. Those evening news shows love it when you’re being accused. But me calling a press conference to say something good about you?” He made a dismissive snort. “They probably wouldn’t even show up.”

  “It’s a matter of principle.”

  “No, Ben, it’s not. It’s about winning and losing. Why do prosecutors brag about their win/loss records? Why do athletes take steroids? Why do politicians claim we won wars when we won nothing? Americans love winners.” He paused. “Until they get too successful. Then we love to watch them fall. It’s the American way.”

  Ben stepped out of his path. “You’re a cynical so-and-so, you know it?”

  Guillerman passed on down the hallway. “Maybe. But I got elected to my office, unlike you, and I plan to retain mine, probably also unlike you. And I’m going to win this case.” He stopped and gave Ben a parting look. “If you thought what’s happened so far was bad, stay tuned.”

  24

  Ben sat at the defendant’s table waiting for the judge to enter the courtroom. No one was talking. Dennis was absorbed in his own thoughts. Ben wasn’t sure if he was pleased or displeased that the judge turned down the mistrial motion. Probably a little of both. But it left him exactly where he had been before—hanging on to this case with only the most tenuous of tethers.

  Christina was keeping herself busy, as usual. With the defense case about to begin, there were a million things to manage. Making sure the witnesses were on tap and prepared. Making sure all the exhibits were copied and ready to be admitted. Making sure the legal research was available when Guillerman made his inevitable objections. Making sure the extra-large bottle of Maalox was close at hand.

  “Where do you think the jurors’ heads are right now?” he whispered to Christina.

  She didn’t stop organizing whatever it was she was organizing. “They’re confused. They’re wondering if Dennis really is the type to make a death threat, much less to act on it. They’re wondering what Conway was getting at when he dragged you into his testimony. Except for the ones who watched the news report on television and lied about it. They know what the accusation was about and are wondering if it’s true. In any case, they will be watching ve
ry closely. Both Dennis and you.”

  “How do we convince them we’re not a scum-sucking murder squad?”

  She smiled a little. “Just stick to the plan. Put on your case. Be the straight arrow you usually are.” She winked. “At least in public.”

  “And you think that will be enough?”

  She plopped his first witness outline on the table in front of him. “I never said that.”

  The first defense witness was a professor, Gordon Taylor, who worked at TU in the English department with Dennis. He had known Dennis—and Joslyn—for many years. His testimony had two important aspects. First, he established that Dennis and Joslyn had been a loving couple, deeply devoted to each other. Despite the busyness of their schedules and the disparity in their incomes, he testified, the two were deeply in love and appeared to have a healthy relationship.

  Taylor was also able to testify about the change that had come over Dennis after his wife disappeared. Although Dennis had stopped coming to work, Taylor saw him twice and on one occasion accompanied him when he searched for his wife. He described Dennis as worried, obsessed, and deeply distressed. He said that physically, Dennis had been tired, haggard. He’d begun to stutter when he talked and often drifted off in the middle of his sentences, never completing his thoughts. Since he wasn’t a medical expert, Ben couldn’t quite have him say that Dennis’s mental stability was affected, but the implication was obvious.

  Taylor was a useful witness, but Ben didn’t kid himself that he was a case winner. Guillerman didn’t even bother to cross-examine.

  The next witness was another personal friend, a woman who lived next door to Dennis and Joslyn. Not the woman sitting behind him masquerading as his mother, but another woman named Joanne Sultan. She was also able to confirm that Dennis and Joslyn had been a loving couple. She had heard some arguing from time to time while she was out working in her garden, especially when Joslyn came home in the wee hours of the morning, but she never thought anything of it. She had been watching people all her life and she could tell Dennis was still as in love with her as he had been on the day they married. She also personally admired Dennis—his sunny personality, his eager willingness to help a neighbor.