Open and Shut ac-1

by David Rosenfelt

  “That's a tough call,” she says. “I'll think about it over lunch.”

  BEFORE I DRIVEOUT TO THE PRISON, I CALL Richard Wallace to arrange a meeting. He tells me he's got a few minutes and that I should come right over, that he had been planning to call me as well. It's nice to be wanted.

  When I arrive I get right to the point. I tell him about Hinton not being a lawyer, and watch his reaction. He seems genuinely surprised, and can't imagine how that could have happened. He promises to check into it, and I tell him that this is evidence of what I see as a conspiracy to convict a totally innocent Willie Miller.

  He smiles. “What this is, if it's true, is a clear ground for getting a new trial. But you've already got the new trial, Andy. And Miller already has a new lawyer.”

  “The system has failed Willie Miller. It railroaded him by approving a fraud and letting Hinton represent him. For all I know the court may have appointed him; Willie didn't exactly have a legal defense fund.”

  “So?”

  “So I'm going to move for a dismissal and then I'm going to sue the state for ten million dollars.”

  He laughs. “You want cash or a check?” He is unfazed, and though it annoys me, I can't say as I blame him. We both know I'm not going to get the dismissal.

  Wallace then reveals why he had been calling me. He's being pressured from above to reach a plea bargain, though he seems confused as to why. My hunch is that Markham and/or Brownfield are using their clout to lean on Wallace's boss, but I'll never be able to prove that.

  Wallace's new offer is forty to life, with the possibility of parole in twenty-five years. Willie would be fifty-three before he'd have a chance of getting out. It's still terrible, but it's a lot better than life without parole or a needle in the arm.

  I don't think Willie will take it, but it's his decision, and that's what I tell Wallace. He tells me that even though he had to offer it, he hopes Willie won't take it. Wallace believes that anyone who could slaughter Denise McGregor like that doesn't deserve to ever again taste freedom. On that we agree.

  I promise to talk to Willie, and I leave to make the drive out to the prison to see him. I ask him where he found Hinton.

  “Where did I get my lawyer? Where do you think I got him? From the fucking lawyer fairy?”

  “If I knew where you got him, I wouldn't ask. So don't bust my chops, okay?”

  He can tell that I'm annoyed, and he doesn't want to piss me off further. I'm the only lawyer he has; in fact I now know that I'm the only lawyer he's ever had.

  “The court assigned the asshole to me.”

  “Are you sure?”

  “That's what he told me. You think I had the cash to go out and interview lawyers?”

  “He told you?”

  Willie nods. “He did. He bullshitting me?”

  I confirm that Hinton was indeed bullshitting him. Willie asks the obvious question. “Why would he want to be my lawyer if he wasn't getting paid?”

  I evade the question, but the answer is pretty well set in my mind. Somebody else was paying Hinton. Somebody who wanted Willie Miller to lose. Very possibly the same somebody who paid off Cal Morris and the guys who attacked Willie.

  Before I leave, I bring up Wallace's new offer. His answer is short and to the point.

  “No.”

  “It's the best offer they are going to make,” I say.

  “Then go back and tell them to take their best offer and shove it up their ass.”

  “I'm not saying you should take it; but I am saying you should seriously consider it. If we lose at trial, it will turn out a hell of a lot worse.”

  “I already told you, we ain't gonna lose at trial,” he says.

  I'm not going to be able to convince him of our dire circumstances, so I leave and head back to the office. Laurie is back from lunch with Mr. Wonderful. I hope he tore a rotator cuff passing the potatoes. She has checked and learned that the court had in fact not appointed Hinton, and Wallace has also left a message confirming that fact.

  My plan is to bring this up before Hatchet at tomorrow's pretrial hearing, but I'm going to need to get my facts in order. What this means is another late night tonight, and I grab all my papers and head home.

  AN ENORMOUS LIMOUSINEWITH a chauffeur waiting in the driver's seat is in front of the house when I pull up. I go inside and find Nicole sitting in the kitchen, drinking coffee. She does not look happy, which gives us something in common.

  “Hello, Nicole.”

  “Hello, Andy.”

  “Based on the size of the limo outside, either the President of the United States, the Sultan of Brunei, or your father is here.”

  “Right the third time,” Philip says as he comes into the kitchen, smiling but not exactly bubbling over with warmth.

  “Daddy's heard about what happened.” She takes Philip's arm, which I suppose is her way of showing me who she means by “Daddy.” “He's concerned.”

  “Join the club,” I say.

  “What are you doing about it?” Philip asks.

  “I called the police, made sure the windows and doors were locked, got the alarm system fixed … but most importantly, I'm trying to find out what's going on and who might have done it.”

  “Have you made any progress?”

  “Not much.” Nicole moans in frustration, but I keep talking to Philip, who puts his hand on Nicole's head to comfort her. “Did you check out Brownfield?”

  He nods. “Yes. He was attending business school in London the entire year that picture was taken.”

  “Maybe he was back for one of the school breaks.”

  Philip smiles his condescending smile, as if I'm a backwoodsman trying to understand the big city. “I pulled a few strings and checked with Immigration. Their records show he was in London for fourteen straight weeks surrounding that date. If the date is right, then it certainly is not Brownfield.”

  This is another piece of distressing news placed on top of the pile I already have. Laurie and I were both sure it was Brownfield, and that his adamant denial came from his involvement in some criminal plot. If he was out of the country, then he loses his connection to the picture and to the date my father got the money. My face must show my disappointment and frustration, because Philip pounces on it.

  “Can I make a suggestion?” he inquires. He doesn't do humble real well.

  “Of course.”

  “Since we don't know what or who is behind this, I suggest that you eliminate the potential dangers.”

  “And how should I do that?”

  “By giving up the murder case. It can't pay too well anyhow and in any event you no longer have any need for money. And it might be a good idea to stop looking into this photograph. Just in case.”

  I'm really annoyed, especially by the suggestion that I drop the Miller case. Does he think this is a video game? Can he not realize and respect that a real life is at stake?

  “Philip, if you don't mind my saying so, that is ridiculous. I'm going to see this through to the end. My client is on trial for his life.”

  “He's already lost one trial. And you know as well as I do how little chance you have to turn that around. Hell, when I was in the prosecutor's office, I would have begged to handle a case like this.”

  I'm sure that's true, since publicity was the only reason Philip was there. I'm about to answer him, but he's still going. “Besides,” he says, “it's Nicole's life that has been threatened, Andrew.”

  “Actually, it hasn't. Mine has. But I get your point, and I have already suggested that Nicole go someplace safe until this is over. Maybe you can convince her that I'm right.” We're talking about Nicole as if she's not there, and when Philip is around, she effectively isn't. It makes me sad that the disappearance of the Nicole I knew happened on my watch.

  Then Philip delivers his roundhouse right. He tells me that I'm not thinking clearly, that if I were I'd realize that whatever I discover could have a negative impact on my father's memory.

 
“My father never broke a law in his life,” I say.

  He walks over and wraps his arms around my shoulder. I probably dislike shoulder wrapping even more than hugging. “Now look, we're all family here. I'm on your side. But Andrew, your father didn't earn the two million dollars delivering newspapers. If he had he wouldn't have kept it a secret and left it untouched all these years. You've got to face that fact.”

  Philip is right about that much, of course, and after he leaves I try to bury that truth in a mountain of paperwork. I don't succeed. So I try and get some sleep, since tomorrow is my first session with Hatchet in his ballpark, and I had better be ready, because he and Wallace certainly will be. But I don't succeed at that either; I can't stop thinking about my father never touching that money.

  I can clearly remember back to a time when I was eleven. My bedroom was right off the kitchen, but it was past midnight and my parents believed I was asleep. I wasn't, and the strange tones in their voices, particularly my father's, kept me awake with my ear to the wall.

  They were discussing my request, made earlier that day, to go to overnight camp in the upcoming summer. It did not seem an unreasonable request, my two best friends had gone there the year before, and they were returning. But camp cost over two thousand dollars, plus all the equipment and clothing, and it was this financial commitment that my parents were discussing.

  “You've got to tell him, Nelson,” my mother said. “He's a mature young man, he'll understand.”

  “I know he will,” my father replied. “But I'm just not ready to give up on managing this.”

  My mother pointed out that they simply did not have the money now, and that in any event summer camp was an extravagance, not a necessity. Better to save the money for college, which she said was just around the corner.

  My father was adamant. His voice cracking, he talked about wanting me to have this experience, wanting me to have every experience he was never able to have. He would somehow figure out a way to make it work.

  The next morning, to my undying shame, I did not withdraw my request. I had the time of my life at camp that summer, and I know now that my father, so desperate for me to go that he was in terrible pain, had millions of dollars that he refused to touch.

  Money that he did not make delivering newspapers.

  HATCHET'S GAVELPOUNDS THE CASE OF NEWJersey v. William Miller to order. Present for the prosecution are Richard Wallace and an assortment of Assistant DAs. At the defense table are myself, Kevin Randall, and Willie Miller.

  This is the first time I have ever seen Willie outside of prison. He's wearing prison clothing and has his hands cuffed behind him, but I can still tell that he's enjoying this tiny taste of almost real life. I will get him normal clothing to wear when there is a jury present; prison clothing makes him look like he belongs there.

  For some reason they have chosen to put us in courtroom three, which is the most modern and by far the least impressive of the six courtrooms in the building. It is as if the designer was taken to a typical Holiday Inn room and was told, “Give me this.”

  There is not much room for the public and press, which may be the intent behind choosing it. Hatchet likes a calm and controlled courtroom; if he could I think he would conduct the trial in a plastic bubble. Personally, I like commotion and disorganization. In this case especially, I want the jurors on their toes and willing to think outside their box.

  What I do like about the room is that since it is fairly small, the lawyers are close to both the judge and jury. There is a good chance for interaction, for the little asides that can have a disproportionately large effect. Playing to the jury is going to be difficult with the vigilant Hatchet in charge, but I'm still going to try.

  Hatchet gets the names of the attorneys on the record, and then says, “Before we go through these motions, is there anything we need to discuss?”

  “Your Honor,” I say, “I would request that my client's handcuffs be removed whenever he is in the courtroom. It is unnecessary, uncomfortable, and prejudicial to the jury.”

  Hatchet looks around. “Do you see a jury here, Mr. Carpenter?”

  “No, Your Honor. But I expect there will be.”

  “Motion denied.” Not a great start.

  I persist. “Your Honor, could we at least have his hands cuffed in front of him? I am advised that it would greatly lessen the discomfort, while not providing too serious a physical danger to the members of the court.”

  “Mr. Wallace?” Hatchet inquires.

  “No objection, Your Honor.”

  “Very well. Guard, please adjust the handcuffs so that they are in the front.”

  The guard comes over and does just that. When he is finished, Willie leans over and whispers to me. “Thanks, man. You're better than the last lawyer already.”

  I just nod as Hatchet shuffles through some papers. “We'll start with the change of venue motion. Mr. Carpenter, I've read your brief. Do you have anything to add to it?”

  I stand up. “Yes, Your Honor. We believe that the prosecution, in speaking out to the press about their view of the new trial as the result of an inconsequential technicality, has prejudiced the jury pool, and-”

  Hatchet interrupts me. “That's all in your brief. I asked if you had anything more to add.”

  “I'm sorry, Your Honor. The brief adequately represents our position, though perhaps understates the passion with which we hold it.”

  “I'm suitably impressed,” says Hatchet. “Mr. Wallace?”

  “Our response papers are complete, Your Honor.” Wallace is the type who would go up to high school teachers and thank them for a fair and well-thought-out final exam. “We believe that cases with far greater public awareness have managed to empanel impartial juries without much difficulty.”

  “I am inclined to agree with that,” Hatchet says.

  “Your Honor,” I jump in, trying to stem the tide. “Our papers demonstrate media coverage both inside and outside this community in great detail. We feel-”

  He interrupts me. “ ‘Great detail’ is an understatement. I would appreciate it if you would be more concise in the future. But look at the bright side, Mr. Carpenter. Every motion I deny gives you a future grounds for appeal.”

  “We would rather get a not guilty verdict in the first place, Your Honor.”

  “Then present your best case. What's next?”

  “The matter of Robert Hinton, Mr. Miller's so-called counsel in the first trial,” I say.

  Hatchet nods and takes off his glasses. He's heard all about this, so he looks at Wallace.

  “This can't be true, can it?”

  Wallace replies, “I'm afraid our information shows that it is, Your Honor. We cannot find Mr. Hinton, but there is no record that he was ever a member of the bar.”

  “How could that happen?”

  “We're still looking into it. But it appears that Mr. Miller hired Mr. Hinton independent of the court, and that his credentials were not examined.”

  Hatchet turns to me. “Is this consistent with your understanding of the facts?”

  I take a quick look at Willie before I answer. “Yes, Your Honor, but our major concern is not with my client's representation, or lack of it, in the first trial, as terrible as it was. That verdict has already been set aside.”

  Hatchet seems surprised to hear this. “Then exactly what is your concern?”

  Here goes. “Your Honor, we believe this is evidence that a conspiracy existed at the time of the murder, and continues to this day, so as to protect certain powerful interests. We would request substantial leeway to deal with this matter at trial.”

  “Do you have any other evidence of this conspiracy?” Hatchet is obviously skeptical, as I knew he would be.

  “We are developing it, Your Honor.”

  Wallace chimes in. “Your Honor, granting the defense's request would be providing them a license to conduct a time-consuming fishing expedition. The state would suggest that when and if the information is devel
oped that it be presented to the court for admissibility.”

  I expect Hatchet to agree with Wallace, but instead he turns to me. “Mr. Carpenter, was Mr. Hinton paid for his services?”

  “Not by my client, Your Honor. Hinton represented himself as a public defender, assigned by the court. My client, having never before been charged with a crime, did not have the sophistication to realize that he was the victim of a conspiracy.”

  Hatchet seems very troubled by this. “Mr. Wallace, we have here an extraordinary circumstance in which a fraud was perpetrated on the court in a capital case. Since we can safely assume that most lawyers, even fake ones, have at least some financial self-interest, then it seems quite credible to surmise that Mr. Hinton was put up to this by a person or persons, other than the defendant, prepared to pay for his services.”

  “It is a long jump from that to evidence of the defendant's innocence,” Wallace says.

  Hatchet nods. “That's true, and Mr. Carpenter, I am not going to allow wild Colombian death squad testimony.” This is a reference to the defense mounted in the Simpson case. “But I will be inclined to grant some leeway. We'll take it on an issue-by-issue basis.”

  “Thank you, Your Honor.” It's not a victory, but it's a hell of a lot better than I expected, and Wallace looks a little surprised.

  Hatchet continues moving things right along, turning to Wallace. “I believe there are DNA issues we need to address?”

  “The state has submitted its intentions in this regard. Additional tests are being conducted right now.”

  Hatchet nods. “Mr. Carpenter, if you are requesting a Kelly-Frye, I suggest you do so as soon as possible.”

  “Your Honor,” I reply, “we respectfully point out that we cannot begin to decide whether to challenge evidence until we see that evidence.”

  I've already decided not to ask for the Kelly-Frye, but by delaying announcement of that decision I might give us more time to prepare for trial.

  Wallace will have none of this. “Your Honor, the Kelly-Frye, as the defense knows, is designed to challenge the technology itself, independent of the specific case. The results will not be in until almost the date of trial, and if the defense waits until then to decide whether to seek the hearing, the trial date you've set will almost certainly be delayed.”