Judgement Calls

by Alafair Burke

  interest in Chuck Forbes for more personal reasons: He had taken my

  virginity from me in high school (OK, I kind of gave it to him), and we

  had continued our bad behavior on and off throughout our youth. We

  bickered constantly back then, and we still argue today. However, I'd

  made a vow to stop mixing wild sex with the fighting almost a decade

  ago, the summer after my college graduation. Once I make a vow, I

  stick with it.

  We lost touch when I started law school in California, and my visits to

  Portland had dwindled and then stopped. But then the New Yorker I

  called my husband at the time took a job here, so I moved back. My

  friendship with Chuck and the accompanying spark had reignited when he

  showed up to testify as the arresting police officer in my first trial

  as a DDA. And now here I was, divorced and long past high school,

  trying to read his police reports without reminiscing.

  Deciding I needed to take a break, I put on my coat and walked over to

  the Pit for lunch. Tourists might assume that the Pioneer Place mall's

  food court owed its nickname to its basement location, but they'd be

  wrong.

  My usual Pit selection is Let's Talk Turkey, the only downtown deli

  that uses turkey from the bird instead of the pressed stuff. The good

  stuff you get on Thanksgiving beats slimy slabs of processed turkey

  food, hands down. However, healthy just wasn't going to cut it today.

  I decided a corn dog on a stick and a chocolate milkshake promised the

  perfect balance of sugar and fat. It had been awhile since I'd

  indulged my weakness for food on a stick, but I soon remembered why I

  always felt guilty when I did. The poor girl working at Food on a

  Stick wore the same uniform that the unfortunate employees had been

  subjected to when I was in high school: short shorts, a scoop-necked

  tank top, and a hat that can only be described as phallic. Like the

  generations of Food on a Stick girls that preceded her, she had long

  flowing hair, thin arms and hips, and breasts that didn't look like

  they wanted to stay in that little top. How does such a big company

  get away with never hiring a man?

  The floor of the food booth was elevated and surrounded on three sides

  by mirrors. She was bent over at the waist, bobbing up and down as she

  pumped the juice from a bucket full of lemons for the nation's most

  famous fresh-squeezed lemonade. She seemed grateful to have a break

  from the thrusting to get my corn dog.

  As I walked away, I saw a group of prepubescent boys sitting on a bench

  by the escalator, enjoying the view of the resumed lemon-pumping. I

  knew they weren't the first group of boys to cut class to hang out and

  watch a Food on a Stick girl at work. Hell, it was practically a rite

  of passage in America's suburbs. That said, I still couldn't help

  myself when I heard one of them speculate what the girl could do on his

  stick.

  Introducing myself as a deputy district attorney for Multnomah County,

  I flashed my badge to make sure they appreciated the enormity of my

  clout. "You all better get back to school or I'm going to have to page

  a police officer from the truancy unit to have you picked up." The

  kids hightailed it up the escalator faster than you can say

  there's-no-such-thing-as-a-truancy-officer-anymore.

  Feeling good about my lunch and my good deed, I headed back to the

  courthouse to draft the complaint about Derringer.

  A criminal complaint is the initial document used to charge a defendant

  with a felony in Oregon. It's simply a piece of paper, signed by the

  prosecuting district attorney,

  notifying the defendant of the charges that have been filed. Once the

  defendant is arraigned on the complaint, the State has a week to

  present evidence to a grand jury and return an indictment. Without an

  indictment, the complaint will be dismissed and the defendant will be

  released from the court's jurisdiction.

  I drafted a complaint charging Derringer with Attempted Aggravated

  Murder, Kidnapping in the First Degree, and Unlawful Sexual Penetration

  in the First Degree. I also included charges of Rape in the First

  Degree and Sodomy in the First Degree, since Derringer could be held

  responsible as an accomplice for the sex acts of the other suspect,

  even if the second suspect was never caught. Finally, just so

  O'Donnell wouldn't think I had completely disregarded his opinion, I

  added the Class C felony of Assault in the Third Degree.

  I walked the complaint over to the Justice Center so I could get a look

  at Derringer and argue bail myself. The Justice Center is a newer

  building two blocks down from the county courthouse. It houses PPB's

  central precinct, a booking facility, holding cells for prisoners with

  upcoming court appearances, and four non-trial courtrooms, used for

  routine preliminary matters like arraignments, pleas, and release

  hearings.

  I took the stairs to JC-2, the courtroom where Derringer's case would

  be called on the two o'clock arraignment docket, and handed the court

  clerk a copy of the complaint, a motion for continued detention of the

  defendant, and a supporting affidavit summarizing the facts. The JC-2

  DA looked relieved when I told her I'd handle the Derringer matter

  myself. She was a new lawyer I'd met a few weeks ago at a happy hour.

  I suspected she was just getting used to the monotony of calling the

  misdemeanors and petty felonies that comprise most of the JC-2 docket.

  God help her if she had picked up the Derringer file to find an

  Attempted Agg Murder complaint.

  Judge Arnie Weidemann was presiding over the docket today. It could

  have been worse. Weidemann was a judge who truly stood for nothing. He

  was neither a state's judge nor a liberal. He didn't write law review

  articles expounding on either judicial activism or conservative

  restraint. He was interested in neither outcome nor analytical

  process.

  If he felt strongly about anything, it was keeping his courtroom

  moving. Quick from-the-hip decisions during the juggling of a crowded

  docket were his forte. Weidemann, therefore, was a terrible judge to

  draw if you had a complex legal issue that required sophisticated

  analysis. He wasn't bad, though, for what I needed today. A

  superficial take on Derringer's case would weigh in my favor on

  pretrial issues like release and bail.

  When it was time for Derringer's matter, I took a moment to look over

  at him while the MCSO deputy accompanied him to the defense table. His

  hair was shaved down to a shadow not much darker than the one left on

  his face from the night in jail. A tattoo of a vine of thorns hugged

  the base of his skull. Everything about him looked chiseled except for

  the acne scars cratering his cheekbones. His strong jaw was clenched,

  his lips a cold slit. His eyes appeared to register nothing as he

  stared straight ahead, seemingly unfazed by his current

  circumstances.

  Then his head turned slightly as I approached, and I realized he was

  watching me out of the corner of his eye. It was unnerving
, but I went

  ahead and called the case. "The next matter is State of Oregon v.

  Franklin R. Derringer, case number 9902-37654. Samantha Kincaid

  appearing for the State. The defendant is in custody on a parole

  detainer for having unsupervised contact with a minor. Based on the

  same incident underlying the parole violation, the State now charges

  him with Attempted Aggravated Murder and other substantive crimes in a

  six-count complaint that I have forwarded to the court. The State

  requests that the defendant be held without bail."

  An audible snort from Derringer revealed his disdain. He had already

  filled out an affidavit of indigency, requesting the court to appoint a

  state-paid attorney on his behalf. The court now made a finding that

  Derringer qualified for court-appointed counsel. Then a hard case got

  even tougher. The judge appointed Lisa Lopez to represent him.

  Public defenders generally fall into one of three different camps.

  There's no diplomatic way to describe the first bunch. They're bad

  attorneys who wind up in the public defenders' office by default.

  Whether they're devoted to a specific client or to the larger cause of

  criminal defendants' rights is, in practical terms, irrelevant. Even

  at the top of their game, the performance of these lawyers is dismal so

  pathetic, in fact, that most prosecutors will admit it takes the fun

  out of winning.

  A second crop of public defenders consists of what I call the straight

  shooters. These attorneys have been around long enough to understand

  the realities of the system, and axiom number one is that the

  overwhelming majority of criminal defendants are guilty. The straight

  shooters review discovery materials early on and decide whether the

  client even stands a chance. If he doesn't (and most don't) the

  defendant will soon get a heart-to-heart from his attorney. The

  straight shooter will explain the way things work to his client and

  then negotiate the most favorable plea deal possible.

  If the client has a serious defense, or if there is a real possibility

  of having material evidence suppressed, the straight shooter will take

  the issue to court and do a good job trying it. He or she will always

  deal honestly with the prosecuting attorney.

  The second camp of defense attorneys is my favorite. Lisa Lopez was

  not, however, among them. She belonged to the third group, the true

  believers. Card-carrying members of this crowd represent the most

  naive demographic still in existence. It doesn't matter how long

  they've been around trying cases, these attorneys are fundamentally

  incapable of distrusting their clients. Don't misunderstand me:

  There's plenty of distrust to go around for police, victims, witnesses,

  and prosecutors. But they always believe their clients.

  Lisa Lopez was the truest of the true believers. Everyone knows that

  police sometimes make mistakes, overstep their bounds, and even engage

  in grossly unethical and illegal acts of malice. Yet somehow these

  relatively rare instances of misconduct happened to transpire in 95

  percent of Lisa Lopez's cases. And, of course, all her mistreated

  clients were also innocent.

  Lopez stepped forward and obtained the court's permission to meet with

  Derringer and review the complaint and affidavit before she argued the

  release motion.

  For the next fifteen minutes, I pretended to review the file while I

  looked at Lopez and Derringer huddled together like teammates on a high

  school debate team. I determined he was articulate, because Lisa was

  scribbling frantically on her legal pad. In a crunch, most attorneys

  will cut the client off when it's obvious the time would be better

  spent reviewing documents.

  Lisa was impressive. When the judge took us back on the record, you

  would've thought she'd had the case for a week.

  "Your honor, this case is grossly overcharged. Ms. Kincaid's

  affidavit lacks any direct evidence that anyone attempted to kill the

  alleged victim in this case. Moreover, Mr. Derringer shouldn't even

  be here. They've got the wrong guy. My client cooperated with police.

  He told them he was at his brother's house at the time of the incident.

  His brother has corroborated that information. Finally, Mr. Derringer

  is not a flight risk. He was born and raised in southeast Portland,

  and his family still lives here. There simply is no basis to hold him

  without bail. We ask that he be released on his own recognizance."

  "Ms. Kincaid?"

  The key is to establish a good reason to hold on to the defendant

  without showing more cards than you need to. "The defendant poses a

  risk to the public that cannot be overstated. He is a paroled sex

  offender who is only four months out of prison. His prior offense was

  an attempt to sodomize a fifteen-year-old girl. In this case, he is

  charged with kidnapping a thirteen-year-old girl, violating her with a

  foreign object, and then directing his unidentified accomplice to rape

  and sodomize her. According to his parole officer, the defendant's

  only employment since his release from prison has been through

  temporary agencies. If released, he is not only a flight risk, he also

  poses an enhanced safety risk to the community."

  "Alright, I've heard enough. How 'bout I split the baby on this one.

  I'll make him eligible for release on enhanced bail of four hundred

  thousand dollars. If he posts bail, he will be released to Close

  Street Supervision."

  "Your honor, the State also requests that you grant our motion to

  withhold the victim's name, telephone number, and address from the

  defense." Oregon's discovery laws require the State to notify the

  defense of every potential witness's name and location information,

  unless the court finds good cause to withhold discovery. "She is a

  child witness, and the nature of this offense makes her vulnerable to

  intimidation. The risk of contact with the victim is aggravated in

  this case, where an unknown and unindicted co-conspirator remains at

  large."

  Nothing was ever easy with Lisa. "I object to the State's motion,

  Judge. The prosecution's entire case rests on this girl's

  identification of my client. Obviously, I need to know who she is and

  what her history is. I also have a right and an obligation to contact

  her to see if she'll talk to my investigator."

  The docket was crowded today, and Weidemann was taking a typically

  Solomonic approach to keep it moving. The problem with this was that

  it prompted sneaky lawyers like me and Lisa Lopez to argue for more

  than what we actually wanted so we'd get a bigger chunk of the pie.

  All I really wanted was to keep Kendra Martin's address from Derringer.

  I've never seen a case where the court protected the victim's identity.

  And Lisa had been around long enough to know that no judge was going

  to hand over the victim's home address once a DA had argued that she

  might be at risk. Yet here we were, arguing.

  The result was predictable. "The State will disclose the victim's

  identity to the defense. As for the victim's location info
rmation,

  reasonable information will be provided to Ms. Lopez so she can

  prepare for trial. She will not, however, be permitted to divulge the

  location information to Mr. Derringer."

  Once the contested issues were addressed, Lopez recited the usual

  waivers and invocations of rights for the record. Derringer invoked

  his Sixth Amendment right to counsel, meaning we couldn't question him

  without Lopez's presence. And he waived his speedy trial rights.

  Technically, there's a statute that gives defendants the right to be

  tried within thirty days unless they're released on their own

  recognizance. No one wants to go to trial that quickly, so defendants

  routinely waive their speedy trial rights at arraignment once the

  pretrial release decision has been made.

  I made the appropriate notes in my file, picked up the paperwork from

  the court clerk, and left, satisfied. With that high a bail, Derringer

  would need to post $40,000 cash to get out. Even if his family was

  willing to put up their own money for him, I doubted they had it. Worst

  case was that he'd be out on Close Street Supervision. If I called in

  a favor, they'd use electronic monitoring to put him on house arrest

  pending trial. It would also be some consolation that we could watch

  the house and get a phone tap to try to find the second guy.

  Lisa caught up with me on the stairs outside the courtroom and gave me

  a thumbs up. "Thanks for the case, Samantha. My alibi versus your

  heroin-shooting prostitute? Looks like a winner."

  "I'm sure your client will be happy to have served as trial practice

  for you when he's serving twenty years with a reputation as a child

  molester who can't even get it up. Just a tip, but you might want to

  check out Derringer's brother before you hang your hat on him."

  I was going to have to tell her about the problems with Derringer's