Finally, even Nick tired of the biographical summation and directed Patel’s testimony to the night of the robbery. It tracked the testimony given at the first trial. Patel described the man entering, going to the cooler, and finally pulling the handgun from his pocket and ordering him to fill the bag with money. Then he described placing the phone into the bag and watching the robber leave his store by the back door.
“Now, Mr. Patel, please look around this courtroom. I want you to tell the jury if you see the man who pointed that pistol at your face that night.”
Unlike the first trial, there were no “look-a-likes” spaced around the room. Nick’s heart was not beating as heavily as Scott’s was on the previous occasion. Still, it’s always a tense moment when a prosecutor asks an eyewitness for an identification—especially a key eyewitness, and in this case, the only eyewitness remaining.
Patel rose up slightly from his chair and surveyed the room. He looked at the jury only momentarily, then gazed with eyes slightly squinted into the multiple faces staring back at him from the courtroom gallery. He held that pose for several seconds before carefully eyeing the three men seated at the defense table. He then turned and looked directly at Nick.
“No, I don’t see him here today.”
Nick was stunned and speechless. The spectators section burst into a mass of cacophonous voices as Nick tried to gather his thoughts.
Judge Desano gave two sharp raps with his gavel, then with a loud voice, “Order. Quiet please.”
Did he say, No, I don’t see him? Nick pondered his options. Maybe he had misunderstood. Maybe he should repeat the question.
“Do you see in this courtroom the man who held the pistol in your face?”
Patel made a cursory scan of the courtroom and then repeated, “No, I don’t see him here today.”
Nick turned toward Scott, who had a pained look on an ashen face. Nick walked to the lectern and shuffled his notes. There would be no help from them, and Nick knew it. But he needed time. This case was collapsing around him; he could not let that happen. Though the judge’s gavel had quieted the courtroom somewhat, there was a steady, low buzz of voices mingling with his thoughts. He turned to face Judge Desano.
“Your Honor, may we have a short recess?”
“How short, Mr. Cox?”
“Twenty minutes, Your Honor.”
“Mr. Patel, you may step down, or if you wish, remain in the witness chair during the recess. Mr. Cox, there will be no prompting of this witness during the recess. Understand?”
“Of course, Your Honor.”
“Bailiff, please take the jury out. We will take a fifteen minute recess.” True to form, Judge Desano would never give counsel the time requested.
After the jury was led out of the courtroom, Nick and Scott took their seats. Nick picked up a yellow pencil from the table and began to twist it, staring off in the direction of the large clock on the far wall. Scott gazed in another direction.
The sudden disastrous change of testimony had shocked Scott, but it also sent an adrenalin rush as he considered the situation. Patel’s testimony at the first trial was compelling, but it now remained mute, resting silently in the trial transcript still in his briefcase.
Nick broke the silence at the prosecution table saying just loud enough for Scott to hear, “Other than that, Mrs. Lincoln, how did you like the play?”
Scott turned to see a smile on Nick’s face. It was obviously forced, but a smile nevertheless. Nick relaxed in his chair, as if enjoying his attempt at humor. But he said nothing else.
“Nick, the answer to this is in that transcript. The prior testimony—we’ve got to find a way to get this to the jury.” Scott opened his brief case and pulled out the transcript.
“And how do you propose to do that, Dr. Marino?”
“It’s prior testimony given under oath and was subject to cross-exam. Same parties, same case, and the witness is unavailable. That’s all that’s required to have it admitted.”
“Unavailable? I could have sworn I saw him sitting right up there just a few minutes ago.”
“But he was unavailable because he could not recall enough to make the identification. I read of a similar case where the witness was declared unavailable when he took the Fifth and refused to testify—he was also on the witness stand.” The smile remained on Nick’s face; Scott could see that he was unconvinced.
“And,” Scott added, “the ID would also be admissible under Georgia’s res gestae rule.” As he spoke, Scott was trying without success to recall the details of this old and elusive Georgia hearsay rule. About all he remembered was that his Evidence professor was critical of the rule, saying in one lecture that getting your mind around res gestae is like trying to pick up quicksilver with tweezers; it should be used only as a last resort. But to Scott, this was the last resort for getting the transcript into evidence. “Why wouldn’t it work here?” he asked.
“One reason—and the most important reason—is that I’m not going to offer it under that rule.”
“What rule are you going to use?”
“The rule of common sense, Scott. First, if I offer it, Desano will reject it. And should he allow it in, the jury will acquit. And should the jury convict, this case will be reversed. This case is over—no rule can save it. You want me to interpret what happened today?”
Scott was puzzled by the question and did not immediately answer.
“There’s a three-letter-word for what just happened.”
“A three-letter-word?”
“Yes. H-A-D—pronounced had. We’ve been had, Scott. Put unlimited funds in the hands of cunning and unscrupulous lawyers like those two rogues seated over there, and Lady Justice will take a beating every time.”
“You think the witnesses were bought? I can’t believe those two witnesses could be bought.”
“Whether we want to believe it or not, honesty has it limits, and all of us adjust that limit for each situation. We don’t know the limit until faced with specifics. One year ago, you had two honest witnesses who both identified John Harrison as the robber. One, a successful shop owner, in court under oath. The other, an honorably discharged soldier living quietly in Colorado, also identified him. Had you asked them then, ‘What amount of money could tempt you to lie to a jury?’ the answer would have been easy for both: no amount. And they would have meant it. But later they faced a real offer with specifics. They compared the state’s witness fee with Max Gordon’s ‘Daddy Warbucks’ witness fee. So, money talks, and Harrison walks.”
Scott was silent. He had not given thought to such possibility when he heard Johnson’s testimony, but it had briefly crossed his mind when he heard Patel’s. Still he wasn’t convinced. “But we can’t prove it, can we?”
“Not today. Not tomorrow. But I’m an unforgiving soul with an unforgetting memory. John Harrison will go free today, but not Max Gordon. It’s a race between me and the devil to see who gets him first.”
“But today, what’s next? What do you do now?”
“I’m going to dismiss—nol pros—the charge. As soon as the judge calls the court to order, I’ll just announce that we nol pros the charge.”
“Can you do that—after the jury is sworn?”
“We can try. If the defense agrees with the nol pros, we can go to the grand jury for another indictment and try the case again—and maybe next time with some evidence.”
“You’re serious?”
“Well, that’s the law, but only if Gordon agrees to the nol pros. But there’s no chance in hell that he’ll agree, unless he’s asleep—or maybe mentally counting his monstrous fee. Either he or Wilborn will see through it. I don’t have any hope that it will work, but that’s all I have. No need to drag this out further.”
Moments later, Judge Desano entered, and the bailiff commanded, “All rise” with the customary sharp raps of the tall staff. Desano called the court to order, and Nick stood to face the bench. The jury was not yet in the courtroom.
Very casually he said, “Your Honor, the state wishes to nolle prosequi the armed robbery indictment against the defendant.”
Before Desano could respond, Gordon was on his feet. “Your Honor, we oppose any nolle prosequi by Mr. Cox.” Then, looking sternly at Nick, he very slowly added, “And I must say, I am both surprised and disappointed that the prosecutor, whose duty it is to seek justice, has not made a motion for a verdict of acquittal rather than that very deceptive nol pros. That would be the appropriate motion under the facts of this case. And since he has not made the motion, the defense will. We move for a directed verdict of acquittal.”
“Do you wish to respond, Mr. Cox?”
Nick was livid, and his eyes showed it. It was enough to lose a case to a scheming, evil bastard like Gordon, but to have to listen to an ethics lecture from him was beyond torture. Nick could hear the drone of hushed conversations coming from the gallery of reporters and spectators. When did a prosecutor ever make a motion for a verdict of acquittal? Get this over with and get out of here—now, he said to himself.
“No, Your Honor.”
“The motion is granted. Mr. Harrison, you are a free man.”
CHAPTER TWELVE
Just moments after the acquittal, Senator Harrison appeared on TV, posing with his arm around his son in front of the “Flame of Freedom” monument near the courthouse entrance. Max Gordon was on one side, making a speech about how appropriate it was to celebrate his client’s new freedom with the “Eternal Flame” burning so “brightly and meaningfully” nearby. Gordon thanked the “good people of Savannah, the wonderful Chatham County justice system, the jury, the judge, co-counsel, and especially the two eyewitnesses who would not bend to the pressure of the prosecutors to identify an innocent young man.”
Just as Gordon finished, a beautiful young woman ran over to John Harrison, threw her arms around him and gave him a kiss on the cheek. Scott had seen her in the courtroom each day of the trial, but he did not know who she was. She could be a relative, or perhaps an old girlfriend, but she was obviously close to the newly acquitted defendant and there to celebrate.
Shortly after Nick returned to his office, he turned on a small television set and immediately saw a replay of the celebration in front of the courthouse. It was painful to watch, and Nick found it as repugnant and obscene as the performance by the two witnesses inside the courthouse.
After lunch, when Scott went to Nick’s office to discuss the morning’s disastrous events, Nick was still seething. And if the spectacle in front of the “Flame of Freedom” was not enough, he had also watched Patel’s testimony replayed and listened to newscasters commenting on the sudden acquittal. If any suspected that the witnesses had been bought, none mentioned it. The consensus was that the prosecutors had a weak case all along, and it was sad that the young man had spent a year in prison for a crime that he did not commit.
“We should have known, Scott. There were many signs. I just missed them.”
“Signs? What signs?”
“For one, he didn’t put up a fight—didn’t ask for time to prepare, just agreed on the date that I suggested. That should have alerted me to be wary of this beast.”
“We were wary, Nick. We prepared for motions, even though he said he wouldn’t be making any. We had a solid case with two totally credible eyewitnesses. Without any forensics, we knew it wasn’t a slam dunk, but we had every reason to expect a conviction. Who would have expected both of these witnesses capable of being bought? And how can you be so certain they were?”
Nick smiled. “You don’t have to share my cynicism, Scott, but in a case defended by Max Gordon and funded by one of the richest men in Georgia, the fact that two totally credible witnesses, as you call them, so completely recant, ought to persuade you somewhat. But look how Gordon defended the case. Even after Desano burned him a new asshole, he made no recusal motion. The jury selection was quick—he even left that former army ranger, and the wife of a retired detective, on the jury—and he had three challenges left. Then he reserves his opening. Sometimes that’s appropriate, but not in this case. You need more?”
“You have more?”
“Sure. After Johnson says twice that he can’t ID the defendant, Gordon gets up on cross, has Harrison stand and face Johnson, and asks for another ID. That’s not going to happen in any criminal trial except one with paid witnesses. That would be a sure sign of an incompetent trial lawyer, and Gordon’s not incompetent—just an evil scumbag. And did you notice how he sat back and let me make a damn virtuous, almost heroic, witness out of Patel? He let me unload a complete resume of not only Patel, but his whole family. I was expecting an objection to all that bullshit, but I rattled on, making the soon-to-be lying bastard a model family man and citizen. I wanted the jury to completely accept his testimony. And so did Gordon, who I’m sure was sitting there with an obscene grin on his smug-ass face the whole time.”
Scott realized that Nick was undoubtedly correct. The testimony of their totally credible witnesses was all purchased. Patel’s pivotal testimony from the first trial came rushing into Scott’s memory: I also hoped that someday, I would have the opportunity to identify him in court, like this court, this day. I was determined to remember every feature about him—I have seen that image in my mind every day since I saw him that night. It has remained unchanged. There is no question in my mind—there is the man who robbed me.
Somehow today, that had all changed. No, I don’t see him here today.
“OK, Nick, I’m convinced—you’re right—the testimony was bought. So now what?”
“Lying witnesses are rather common, Scott. Our juries usually separate the truth from the lies. Generally, we do nothing unless it’s critical testimony and readily provable. Suspecting that a witness is lying, and proving it, are totally different. And remember, Harrison is free regardless of the lies. The question we have to ask first is, who gives a damn?”
“I give a damn,” said Scott. “And so do you and every honest citizen of Savannah. Those two committed perjury, and I believe we can prove it. At least, we should try.”
“Well said—glad you agree. But you have the wrong target, Scott. Patel and Johnson are not our targets. Max Gordon is the serpent who corrupted them. Until Max came along, they were decent folk with clean records, going to work, raising families, paying their taxes. Sure, they’ve committed serious crimes and should pay, but Gordon was the mastermind.”
“Which means … ?”
“We’ll be going after Gordon primarily. He and his team spread corruption wherever they go. They are a mother lode of evil, with a new perversion for every trial. I gave the DA a quick briefing at noon today, and we’ll be meeting again tomorrow. I’m not sure which agency will take the lead—probably the Georgia Bureau of Investigation. I’m hoping the feds will also help. Desano was able to get them involved in the witness tampering investigation last year, because it was committed using a wireless phone network. Maybe we can tie this one to some federal statute, but right now I don’t see it.”
“Anything you want me to do?”
“Yes. I want you to make sure this office doesn’t forget this trial and this gang of hoodlums. The DA will be fully supportive, but he’s got a lot on his plate nowadays. He needs eyes and ears on this case from one of his assistants, and I volunteered you. Any objection?”
“Of course not. This is my second case with this guy. I guess I sort of forgot about his crimes in the first one, because we got the conviction. But this one I’ll remember for a long time.”
“Good. The meeting tomorrow afternoon with the DA is at three. Be there. A detective from the Metro Police Department will be there. Also Richard. Start preparing a memo of all key names and events—it’ll come in handy, because you’ll be the office’s main contact during the investigation.”
“Sure. When are you leaving?”
“This is my last week. The chief judge says I’m needed more there than here and has convinced the DA. Not sure that’s cor
rect, but I’m looking forward to it.”
“Who’s taking over for you here?”
“There will be an announcement tomorrow. I just found out at noon. It’s not exactly a secret, but keep it to yourself until it’s announced. It’ll be Moose Mosley.”
Scott was surprised as well as disappointed to hear that Mosley would be his new boss. He knew Mosley was a standout football player at the University of Georgia, but he knew little else about him. Mosley appeared to be a totally unsociable guy who kept to himself, rarely leaving his office. He wore a walrus-style moustache and was usually seen in a rumpled suit and stained necktie. Scott had been in his office only twice and found it creepy both times.
“Moose Mosley? Why Moose Mosley?”
“He’s been here over fifteen years, and he’s the smartest lawyer we have or will ever have.”
“You gotta be kidding. Smart? Who could tell? He works out of a converted storage room with a half-functioning air conditioner stuck in its only window. What’s his job here anyway?”
“Officially? He’s our appellate guy and oversees the grand jury. Unofficially, he’s the go-to guy for the answer to any legal question in any division. He can quote you chapter and verse from any Georgia Statute and every important case decided by any Georgia appellate court. Correction—important or unimportant. He’s got it all in his head. Apparently he has a photographic memory. I’ve known him since law school. Yes, smart.”
“Then why did they stick him in that sweaty torture chamber down the hall away from everybody?”
“His choice. After a couple years here, no room was big enough for his personal library. So he persuaded the boss to let him convert that storage room. Fixed it up himself.”
The Indictments Page 9
