“But he said he would have one motion. What is it?”
“He wants to present expert testimony concerning the unreliability of eyewitness identification. Gave me the name—Dr. Rebecca Morgan, out of UC Berkeley.”
“That’s his only motion? I’ll prepare our objection to that, Nick. I’ve never had that motion—I’ll work on it.” Scott viewed it as an opportunity to get a piece of the action.
“Won’t be necessary. I promised we wouldn’t oppose it.”
Scott was surprised. “Not going to oppose it? That’s our whole case—eyewitness identification.”
“And that’s why we aren’t going to oppose it. I’ve had a couple of those motions. There’s a Georgia Supreme Court case that says that if there is no substantial corroboration of the eyewitnesses, then the expert testimony must be allowed. Well, the case does give the judge some limited discretion, and I’m afraid that Desano will exclude the expert if we oppose, and then we would most certainly have to try this case a third time. Not only do we have no substantial corroboration, we don’t have any corroboration. The forensic team came up empty, remember?”
“Unfortunately, yes.”
“No, I’ll let him put on his witness. I’ve crossed two so-called witness-reliability experts. They don’t do much damage. Got guilty verdicts in both cases. We have two dependable eyewitnesses. I’ve never read better eyewitness testimony than what’s in that transcript by the store owner. Haven’t talked to the witness who didn’t testify at the first trial, but you tell me he’s solid, right?”
“Right. Josh Johnson. Very credible. Honorable military service, married, working, and no record. He had a good view of Harrison through the store window on the night of robbery. As you know, he got to the trial too late to testify. The jury was already out. But he saw Harrison again as he sat at the defense table and said he had no doubt, that was the guy. We can rely on him.”
Scott paused, then added, “Nick, it seems strange to me that he would be telling you he doesn’t expect to have any motions before trial. In my experience, limited I admit, defense attorneys load you down with motions before trial just to keep you focused on the motions and not on your witnesses and the evidence. They’ll give you a page full of possible defense witnesses so you’ll spend your days hunting down and interviewing people they have no intention of calling. Why do you suppose Max is not doing that?”
“Probably because he knows we don’t believe anything he says and that we’ll be spending time preparing for his motions anyway. But you have a point. He didn’t furnish a list of alibi witnesses, so he won’t be able to produce any at trial. He probably believes all his own hype. ‘Max Gordon, the Nation’s Best Trial Lawyer.’ What B.S.—but I can’t deny his success. It will be interesting to see how he works with his new assistant, Clarence … Clarence … forgot his name. Didn’t I ask you to check his background?”
“You did—Clarence Wilborn. He’s from Macon. I checked with a couple of attorneys at the DA’s office there. He’s been in practice quite a while, mostly DUIs and such. Had trouble with the bar a couple years ago for commingling funds, was suspended for a year, almost disbarred. One attorney described him as a smart wonk, but he wouldn’t trust him in or out of court. He heard rumors of him being involved in drug sales, but apparently that was it—rumor. Nothing came of it. He said he hadn’t seen Wilborn recently and didn’t know he had joined Gordon’s gang.”
“‘Gang’ is correct,” Nick said. “I still recall that line in one of the articles last year after that first trial—about his legal team. ‘An entourage of pernicious and disbarred associates.’ And Wilborn’s another sterling member, but at least he’s not disbarred—yet. We’ll have to keep a close watch on him.”
“What about a pretrial? Did you discuss a pretrial with Gordon?”
“No, and I don’t plan to. His client got ten years at the first trial, and he deserves every day of it. Nothing in a pretrial for us. Our case is even stronger now with both eyewitnesses testifying. If there’s an offer, it will have to come from Gordon.”
“About those motions—the ones Gordon says he’s not going to file. I’ll have my clinic student prepare a rough response to a motion for a change of venue—and recusal of the judge—so we can respond quickly if necessary. Any others?”
“No, and time for the recusal motion has already passed. Of course, he can always claim he has good cause for being late. Desano won’t buy into that, but have your clinic student prepare a response anyway. It will be a good experience for her. We’ll just have to wait and see what Gordon does.” Nick placed his hand on his chin and paused for a moment. “All the witnesses still ready to go?”
“Yes,” said Scott. “Johnson’s flying in on Monday from Colorado. I want to make sure he’s available Tuesday morning. You’re putting him on first, right?”
“Right. I want to start strong and end strong. I’ll just sandwich in the forensic team and detectives. The store owner, Patel, will be my last witness.”
“Since Gordon apparently has only one witness, the defendant, he should be finished by Wednesday morning. Of course, he may not testify—didn’t at the first trial. We should have the case to the jury by Wednesday afternoon. Do you think Desano will sequester the jury for this trial?”
“I doubt it,” Nick said. “Last time the county wasn’t happy with the expense, and the jurors weren’t happy with the inconvenience. The clerk told me several wrote letters to Desano to complain. It’s really unusual to sequester a jury in an armed robbery trial. It was the high-profile nature of the case and Gordon’s habit of trying his case in the media. With Desano’s gag order already in place, I don’t think Gordon will go to the media again.”
“The publicity of the first trial may make jury selection tough—or at least longer. Do you suppose we can finish Monday?” asked Scott.
“No problem,” replied Nick. “Half the members of any jury pool don’t read newspapers or watch the evening news. The rest may have heard something but won’t be able to recall anything, and those who do will assure the judge they can set it all aside. Yes, we’ll get a jury Monday. And by the way, I’ll be in trial tomorrow and probably for the rest of the week. I may not see you until then.”
The phone rang. As Nick picked up, Scott gave him a thumbs up and walked out of the office.
CHAPTER EIGHT
September 13, 2007
Scott awoke Thursday with a headache and a very sore back. After work Wednesday, he played basketball in a pickup game with some friends. As usual, the game was intense. During a scramble for the ball under the basket, Scott slammed into a metal post, severely bruising his back but escaping without any broken bones.
He rolled out of bed slowly. After a long, hot shower and breakfast, he took a couple of Tylenol and drove to work. The Braves’ loss Wednesday night to the Mets only added to his misery. He was glad not to have a trial scheduled that day. He would work on a new felony case he’d received Wednesday and hope the Tylenol would soon ease the pain.
Jessica stopped by mid-morning, and he critiqued her performance in Tuesday’s trial. It was short and mostly positive; after all, it was her first trial.
Jessica noted his rigidity as he sat in his swivel chair. “Is there something wrong, Scott?”
“Nothing that some rest and Tylenol can’t cure. Ran into a metal post yesterday, and the post won.”
“Anything I can do?”
“Not for the back. However, I do have a new project for you. We expect the defense in the Harrison trial to make a couple of last minute motions, and we want to be ready with responses. Nick doesn’t want the trial delayed, even for a couple of hours.” Scott explained what he wanted her to prepare.
“I’ll start work on it this morning. But I have a favor to ask: may I catch a ride home with you today? I had to put my car in the shop and beg a ride to the courthouse. Minor fender-bender.”
“Sorry to hear that. What kind of car do you drive?”
“Me
rcedes SL550.”
“Convertible?”
“Yes.”
Scott whistled softly. He knew that was in the hundred thousand dollar range. She really is “daddy’s girl,” he thought. Absolutely gorgeous car for a drop-dead gorgeous daughter with a “wild streak.”
“Your fault or the other driver?”
“Mine I guess. I backed into him.”
“Good insurance?”
“I suppose so—I don’t know. I just called my dad, and he told me to take it to the nearest dealer.”
Scott couldn’t help but smile. Nice dad and just a phone call away. He recalled his first fender-bender with his old Camaro. Minor, not much bigger and no deeper than a Frisbee. He was a sophomore in college—with no collision insurance and no dad. He took it to four body shops, and every estimate was over $500.00. It had to wait for almost three years. He and his 1984 Camaro could take such humiliation. But not a Mercedes SL550. He liked the thought of seeing this beautiful girl driving her black Mercedes convertible with her raven hair flowing in the breeze—but not with a smashed fender. It was a great mental image, and for a moment he saw himself in the passenger seat along for the ride. Scott tried to dismiss the imagery as quickly as it appeared.
“I bet it’s black. Right?”
“Right. But why would you guess ‘black’? I had my choice of nine colors.”
“Don’t know. Just can’t imagine you in any Mercedes convertible except a black one. How long will it be in the shop?”
“Several days. They promised to get me a loaner tomorrow. But I need a ride home today.”
“Of course, no problem. I may leave early; the Tylenol doesn’t appear to be working.”
****
By three that afternoon, Scott’s headache was no better, and his back was a bit worse. He had additional preparation for a non-jury trial scheduled for the next morning, but he decided to head home. After a hot shower and a couple hours’ rest, he would finish his work. He packed his briefcase and was about to depart when he recalled that Jessica needed a ride home. He found her in the clinic student office.
“I’m leaving, Jessica. Do you still need that ride?”
“Yes, thanks. I’ll get my stuff.” Jessica noted the somber look on Scott’s face. “The headache—no better?”
“No. Feels like a bass drummer practicing between my ears. I just took another Tylenol. A little rest and I’ll be OK.”
“Don’t you think you should get some medical attention? You could have a concussion.”
“No, I didn’t hit my head. I hit mostly around the left side rib cage. The body’s just asking for some extra attention. I’ll be alright. Besides, pain builds character, and I need some character building.” He tried to smile at his little joke, but his lips would not move.
Jessica handed Scott some papers and a disk. “Here’s what I have on those Harrison trial motions. Let me know what you think.”
Scott put the papers and disk into his briefcase. They walked to Scott’s car with very little conversation, and the conversation in the car was mostly limited to Jessica giving directions to her apartment. She was speaking in whispers. Scott had removed both his coat and tie and was driving with a mild frown on his face—the headache was in plain view. As they neared Jessica’s apartment, she reached over with her left palm and pressed it gently into Scott’s right temple.
“I’ve found that pressure on both temples helps.”
“Really?”
“Yes. And pull in here.” Jessica pointed to a small lot next to an apartment complex. “That’s my building.” Scott pulled into one of the empty spaces.
“Get out,” said Jessica. “I’ll fix that headache.” Jessica opened her door, grabbed her briefcase, and stood by the side of the car waiting for Scott.
Scott wasn’t sure if it was a command or an invitation, but it caught him by surprise, and he complied.
“Come on,” said Jessica, as she started walking. Scott followed close behind until they were inside her first floor apartment.
“Sit on the couch, and I’ll be back in a minute.” Jessica disappeared into another room.
Scott took a seat and looked around. It was spectacular. All white. Ceilings, walls, carpet, bookcase, tables, lamps, vases, telephone—all white. The only exception was a large wall mounted plasma TV. Every piece of furniture and accessory was top quality and beautiful. Near the doorway, Scott saw something he had walked past but not noticed—a dozen white roses in a white vase. He walked over to get a better look. There was a card attached.
“Be Good,” was all it read.
Scott bent down to smell the roses. They had a fresh, fragrant aroma—obviously newly cut.
He had just returned to the couch when Jessica entered carrying a pan filled with ice cubes, water, and two small towels.
She had changed into white spandex pants and a purple V-neck silk tank top. And she had added a hint of her wonderful perfume. She saw Scott smile and knew he approved.
“Let’s get to work on that headache.”
She sat down on the leather couch next to Scott. She placed the pan and towels on a nearby table. “We won’t need this for a while. First, let’s put some pressure on those temples.” Jessica put both knees on the couch and from Scott’s back, reached over his shoulders and placed a palm on each of Scott’s temples. She gently squeezed inward and then released, repeating several times. She had inched closer, and her breasts were now firmly against Scott’s back.
“How does that feel?” she asked.
Scott wasn’t sure exactly what she meant by “that,” but everything felt very good. Her breasts were obviously bare except for the silk top, and even through his shirt he could feel their softness and warmth. The soothing palm pressure on his temples was working as a sedative, and he barely noticed the headache.
“Wonderful.” It was the first word he had spoken since entering the apartment. Jessica continued the gentle rhythm, and with each application of pressure to his temples, there was the equal pressure of her breasts on his back.
Jessica continued the massage for several minutes, then reached for the pan. She took a cold towel and twisted it to remove most of the water. “Pull your shirt off, Scott, so I can put this cold compress on your bruised back.”
Scott did as he was told, laying his shirt and undershirt on an end table. Jessica touched a spot on Scott’s lower back. “How did you get this old scar?”
“Baseball. Cleats can rip away skin when they land on your back.”
Jessica placed the pan back on the table and pressed the cold towel to his back for a minute or so. “We’ll put another compress on it in a few minutes.”
She moved both knees close to Scott’s back and again placed her palms on his temples. Then again with a gentle pressure, she squeezed. And again, with each squeeze, her breasts pressed firmly against his back. Now, only the very thin silk top separated their bodies. This slow, steady, rhythm continued, and soon Jessica’s finger tips were moving into Scott’s hair, teasing and kneading along the way.
The sedulous and soothing massage had removed all aches from Scott’s head and body. He found the stark whiteness of the apartment surreal and the constant attention from Jessica mesmerizing. There was no conversation; his head and shoulders relaxed, as she continued the hypnotic rhythm.
Jessica moved her face close to the back of Scott’s neck and kissed it. With the tip of her tongue, she sketched a line from the left side of his neck to the right and back again. Then another kiss on each side of Scott’s neck. The headache seemed so long ago.
He was in a dreamlike state when his cell phone rang. Instinctively, he removed it from his pants pocket and answered without looking at the number.
“Hello.”
“Hi, Scott.”
“Hi … hi, Jennifer.”
“Hate to bother you at work, but I need a favor.”
Scott separated himself from Jessica by rising quickly from the couch. “Of course, no bother.”
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“Have you seen Jessica today? Isn’t she working down at your office?”
“Eh … yes. Thursday is one of Jessica’s days.”
“Could you find her, and see if she has the next reading assignment for the Federal Courts seminar? I can’t find it, and she should have it.”
“Sure.”
“How’s that back today? If you think you need a good massage, stop by on your way home. You know that I’m good at that.”
“It was hurting this morning, but I’m feeling fine now.”
“What did you do for it?”
“Tylenol as soon as I woke up and every four hours since.”
“That’s it? You’re lucky—I haven’t found anything that works for my headaches.”
“Yes, I’m lucky. I’ll check with Jessica and call you back.”
“Thanks. One more thing: I’m planning to drive to Hilton Head Saturday. Can you come with me?”
“Sure—absolutely, if there’s no last minute problem with the Harrison trial, which starts Monday. We’re ready, unless Gordon sneaks something in on us.”
“Well, I hope not. Call me when you find Jessica. I’ll be home.” Jennifer hung up.
Scott turned to Jessica. “That was Jennifer.”
“I gathered that. And I heard you mention my name.”
“She’s hoping you have the seminar reading assignment. She can’t find it.”
“Sure. I’ll get it. Sit down, I’ll be right back.” Jessica got off the couch and disappeared for a few minutes. When she returned, she handed Scott a slip of paper with the assignment.
“Thanks.”
They sat on the couch looking at each other for a moment. Scott was the first to speak.
“My head is so much better. I guess I should be going.” He stood and reached for his shirt. “Jessica, you do have a magic touch,” he said as he fastened the buttons on his shirt. “Thanks.”
The Indictments Page 5
