by Adam Mitzner
“Was that just with you because you were the boss, or did she have that reputation with everyone?”
“As far as I know, everyone.”
“How did you feel about her relationship with L.D.?” I asked.
“They were consenting adults.”
I didn’t say anything. Sometimes silence is a better inquisitor.
“Look,” he said, “no boss wants fraternization, but what can you do? That kind of thing happens when you’re on the road. You just hope everyone can stay professional after it ends, because, you know, it always does.”
Nina looked back at me, as if to say, what now? There was really only one other thing I wanted to know and so I asked it straightaway.
“Mr. Brooks, were you having an affair with Roxanne?”
Newman spoke quickly and loudly. “He doesn’t have to answer that.”
“I think he may just have done so,” I said with intended snark.
Newman started to argue with me, but this time Brooks spoke over her. “It’s fine, Kimberly. I don’t mind telling Mr. Sorensen what he wants to know.”
He shifted his gaze from her to me, and with the change of position came a change in expression, from happy-go-lucky to controlled vengeance. “No” was all he said.
“So you’re denying that you and Roxanne were lovers?” I said, although that was clearly what he’d just said.
Newman had had enough. “Matt, as your legal adviser, I must insist that we end this now.”
“Only a fool disregards his lawyer’s advice,” Brooks said with a broad smile. “And whatever else you may think about me, I hope that at least you have come to the conclusion that I am not a fool.”
Nina knew this meant we weren’t going to get anything else, and so she reached into her briefcase and handed Newman a subpoena. Newman looked at it quickly, grimacing as if she were reading an off-color joke.
“We’ve provided all our records concerning your client to the DA’s office,” Newman said. “You’ll need to take it up with them.”
Kimberly Newman was clearly not very well versed in criminal practice. In civil litigation, subpoenas are always about documents. Emails, letters, drafts of agreements, and the like. There’s no end of paper that a civil litigator can produce.
“We’re not looking for documents,” I told her. “As you’ll see, the subpoena calls for Mr. Brooks to provide us with samples of his fingerprints and a few strands of his pubic hair.”
Brooks chortled. “You’ve got some balls, Dan.”
I stared at him, not sure whether to acknowledge his statement as a compliment, and then I stood to signal that, to my mind, the meeting was now over. Nina rose with me, and that caused Brooks’s flunkies to follow suit. Finally, Brooks, too, got to his feet.
Still wearing that big smile, Brooks reached out and literally grabbed my hand to shake it. He squeezed so tightly that I could actually feel his fingernails cut into my flesh. His eyes darted, looking wildly about. I pulled back, but that only caused him to force me toward him, so that we were standing only inches apart.
So close, in fact, that when he leaned in, his whisper was not heard by anyone but me. What he said was: “Let me give you a piece of advice, Counselor. If I ever hear another word out of you about me and Roxanne, nobody, but nobody, is ever going to hear from you again.”
Nina didn’t say anything until we were out of the building. The moment we were back on the street, however, she said, “What did Brooks say to you when we were leaving?”
“Nothing,” I said. “Just . . . school-yard stuff.”
“C’mon, Dan. Now’s not the time for bravery. Tell me.”
From the look on her face I realized that if I tried to downplay it so she wouldn’t be worried, I’d likely just make her more concerned. “He said that if I made a thing about his affair with Roxanne, he’d kill me. Not that blatantly, but that was the gist of it. Like I said, just school-yard threats. I’m not worried.” With a chuckle that might have been confused with whistling by a graveyard, I added, “Nobody kills defense attorneys.”
She didn’t laugh.
31
At seven thirty the next morning, the phone woke me. I didn’t want to answer, but Nina kept nudging me.
“It might be someone important,” she said.
“I don’t want to give you an excuse to get dressed,” I said as the phone rang for the second time.
“At least check the caller ID,” she said in the middle of the third ring.
She was right. It was important.
“Hello, Daniel,” said the distinctive baritone of Benjamin Ethan.
My first thought was Damn. My second was about how I could have been so stupid as to not see this coming.
“Hi, Benjamin . . . to what do I owe the pleasure?”
“I’m calling on behalf of Matthew Brooks, whom I’ve been retained to represent. I understand you met with my client and Kimberly Newman yesterday and served a subpoena. Unfortunately, I’ve been on the run, but I wanted to reach out to you right away so that we could set up a time to meet.”
That’s why Taylor Beckett was a no-go when I asked for office space. Even as early as then, Ethan must have already been retained by Brooks.
And that meant Brooks, unlike me, saw this coming weeks ago.
I wasn’t taken in by Ethan’s “aw shucks, I’m not sure what’s going on” presentation. He was famous for being one of the hardest-working lawyers in the city. There was no way he would ever have made this call without full command of the facts.
“There’s really no reason we need to meet,” I said, “unless you want to hand over Mr. Brooks’s pubic hairs and fingerprints in person.”
He chuckled. “Now, now, Daniel, let us not get ahead of ourselves. And yes, I understand what you are seeking in the subpoena. I have to tell you, though . . . off the record and as a friend, you are making a major mistake, and I hate to see you look foolish.”
His tone actually conveyed that he thought he was doing me a favor. Of course, that made it all the more condescending.
“All I’m asking, Daniel, is to allow me the opportunity to talk to you for about twenty minutes. At worst, I’ll be giving you free discovery. No reason to turn that down, right?”
I couldn’t argue with that logic. If I refused to meet for the sake of scoring points in my passive-aggressive struggle with Ethan, I’d be shortchanging my client.
“Okay, Benjamin,” I said. “What time?”
“Thank you, Daniel. I do appreciate it. I’m not available until four today. Can we meet then, at my office?”
Not available. Right.
“No problem. I’ll see you then.”
Nina must have known it was bad news from the look on my face. Tentatively she asked, “Who was that?”
“Benjamin Ethan.” I shook my head. “You’re not going to believe this, but Matt Brooks has been lawyered up since day one.”
“Nothing but the best,” she said. “So now what?”
“We’re seeing him at four. He said he was busy until then. What he really meant was that he needed the time to get a protective order.”
• • •
Taylor Beckett moved into its current space two years before I joined the firm. It was actually one of the reasons I had picked it over its equally prestigious competitors. Unlike, for example, Nina’s old shop, Martin Quinn, Taylor Beckett had enough space so that first-year associates immediately got their own offices. Funny how things like that can shape your life. I’m sure that if I’d gone to another law firm, things would have progressed pretty much the same way—long hours, same accident—but you never know.
Everyone refers to Taylor Beckett’s building as the Pyramid Building because the top of the tower resembles something of a pyramid, albeit one made out of black glass and sitting atop a fifty-floor office tower. As I walked into the Pyramid’s lobby, I thought about how much I’d changed since the last time I’d entered this place.
I was a sadder man
now, that much was undeniably true. At the same time, I was a more hopeful one, too. The day before the accident, I had no reason to believe that my life would look any different ten years from then, or twenty, or ever. Now I was definitely a work in progress, and although I had no expectation that my grief would ever fully subside, for the first time since the accident I could envision a future in which I was happy.
“Good to see you again, Mr. Sorensen,” the guard in the lobby said the moment Nina and I approached the front desk. I was embarrassed that I had absolutely no clue as to his name. Then again, I never stopped at the front desk when I worked in the building.
“We’re here to see Benjamin Ethan,” I said.
“Yes, we were told to send you right up. Forty-seven,” he said with a smile.
“Yeah, I remember,” I said, smiling back.
“Is this really strange for you?” Nina asked as we made our way to the elevators.
“Not as strange as I think it’s going to get,” I said.
When the doors opened on the forty-seventh floor, Janeene was there to greet us. If I thought she had come out to say a friendly hello, she made it a point to disabuse me of that notion immediately.
“Please follow me,” she said coolly. “You will all be in conference room A.”
Once we arrived at our designated location, she said, “Please make yourselves comfortable. I’ll tell Mr. Ethan you’re here, and he’ll be down in just a moment.”
Taylor Beckett, like most large New York City firms, had two types of conference rooms. There were a host of interior rooms designated as “war rooms” that were usually filled floor to ceiling with boxes containing “hot docs,” the 10 percent of documents that were the most important in the case. I had been practicing long enough to recall the days when the other 90 percent, which might be more than a million pages, were kept off-site somewhere in a warehouse, but nowadays they would more often be kept on a thumb drive in the lead partner’s desk.
In contrast to the war rooms, the conference rooms that visitors were allowed to see were the most opulent spaces in the firm. Usually twice the size of a partner’s office, they had museum-quality artwork with plaques beside them indicating the artist and the year they were created. Conference room A was a case in point, with an Adam Fuss photograph of a baby suspended in blue liquid on one wall and an equally striking Miró print facing it. I was on the art committee when we purchased both, a hundred thousand dollars hanging on two hooks.
A long, white marble table surrounded by twelve high-back leather chairs sat in the center of the room, and a matching credenza held a collection of sodas and bottled waters. The coffee station, as it was called, was on the other side of the room.
Ethan arrived wearing a gray glen-plaid flannel suit with a vest, and his customary bow tie. No matter what his daily wear, however, you couldn’t mistake Benjamin Ethan for anything other than an old-line WASP. He was tall and thin, creased around the eyes and nowhere else, and he hadn’t lost a single white hair.
A step behind him was a beautiful woman, probably no more than a year or two out of law school. Ethan was known at the firm for always working with someone who fit that bill. Looking at Nina, however, reminded me that I lived in a glass house on this issue.
“Daniel,” he said, shaking my hand.
Ethan had one of those voices that were made for a defense lawyer. Not only deep but serious, and he manipulated his inflection so that each word could have a different meaning depending on his emphasis. The way he said my name told me immediately that we were not friends.
“Good to see you again, Benjamin. This is my partner, Nina Harrington.”
Ethan introduced the woman as his “associate,” as if all non-partners were fungible commodities that could easily be replaced by another, which, truth be told, they were.
Not that it mattered. The associate wouldn’t say a word at this meeting. Her entire job function was to take notes. And, of course, look good while doing it.
“To be absolutely frank, I am disappointed in you, Daniel,” Ethan said just seconds after we’d been seated. “What on earth makes you think that you have the right to compel Mr. Brooks to provide you with a sample of his pubic hair?”
“Not just his pubic hair, Benjamin. The subpoena also requests a copy of his fingerprints for our expert to analyze. Both are relevant because we believe they’re going to put your client at the scene of Roxanne Wells’s murder.”
Ethan didn’t respond at first. Rather, he sat there impassively, as if my request had dumbfounded him. If it weren’t for the scratching sound of his associate trying to take down what I’d just said, the silence would have been deafening.
After an exaggerated sigh, Ethan finally said, “Please, Daniel, we are both experienced enough lawyers to know that unless you have some evidence of a romantic relationship between Mr. Brooks and Ms. Wells, there’s no basis for the subpoena.”
Among his many other skills as a lawyer, this was one of the best. Ethan never gave any information, but he was able to get the other side to give him plenty of it. In this case, he wasn’t confirming or denying that Brooks was sleeping with Roxanne but was trying to figure out whether we had any evidence that proved it.
“Then you have nothing to worry about,” I replied. “But it seems to me that you’re turning what should be a nonevent into something quite significant.”
“Enlighten me as to how I am doing that, Daniel.”
“Well, I take it that Mr. Brooks is denying he had a sexual relationship with Roxanne.” I stopped, trying to gauge Ethan’s reaction, but he didn’t betray any response. His associate didn’t even look up. “If that’s true,” I continued, “then there’s no way his pubic hair could have ended up in her bed. And if that were the case, well, then there’d be no reason not to give us a sample. We’d do the test, the hairs wouldn’t match, and then we’d leave Mr. Brooks alone. Done, end of story. But you’re not going that way . . . and that tells us an awful lot.”
Ethan didn’t answer. Instead, he looked at the beautiful, anonymous associate, the cue for her to reach into her bag and pull out a stack of papers at least a foot high. Then she pushed them across the conference table to me.
On the first page, in all capital letters and bold type, it stated: “MOTION TO QUASH FILED UNDER SEAL.” Just as I’d expected.
“Judge Pielmeier set the hearing for tomorrow at two,” he said.
“I guess we’ll be seeing you in court, then,” I said.
• • •
“That went well,” Nina said to me on our way out of the building.
“What do you think was my best moment?” I deadpanned back. “When Ethan told me I was an idiot or when he dropped the motion to quash on us?”
“I was being serious, Dan. You were right about what you said in there. There’s got to be something there about Brooks or they wouldn’t be taking such a scorched-earth approach.”
I chuckled. “I’m glad you’re on my team, Nina.”
32
To ensure secrecy, Benjamin Ethan’s motion wasn’t on the court calendar. As a result, the one camera crew on the sidewalk was there for another case, and we walked by them without being recognized.
It also meant that the courtroom was empty, other than the six of us: Kaplan and her number two, a bald guy named John Something-or-Other who looked older than her; Nina and me; and Benjamin Ethan and the same very attractive female associate Ethan introduced as “my associate” during the meeting in his office.
Judge Pielmeier never actually took the bench. Rather, her law clerk invited us all to come back to the judge’s private office. Without an audience, she must have figured there was no reason to put on a show.
When we entered, the judge was sitting behind an antique desk. A court reporter was seated next to the judge, at the ready.
Even off the bench, Judge Pielmeier wore her judicial robes. It made me wonder if she wore them at home, too.
“Come in and sit down,” she s
aid. “Pull some chairs in from the conference room so there’s seating for everyone.”
No one asked why we didn’t meet in the conference room, which had more than enough chairs. Instead, the men got chairs from the next room—thick wood and covered in a red vinyl with exposed nail heads that were as heavy as they looked—while Kaplan, Nina, and Ethan’s associate took their places in the chairs already in the judge’s office.
When everyone was seated, Judge Pielmeier said, “On the record,” which prompted the court reporter to begin typing. “We’re here on the motion made ex parte by a nonparty witness requesting that I quash a subpoena duces tecum seeking a sample of pubic hair and fingerprints. Before we begin, because we’re in chambers, there’s no need for any of you to stand when addressing me. Also, Mr. Sorensen, as I’m sure you will understand, given the emergency nature of the motion, the court did not have the opportunity to arrange for your client to attend this conference. Although I’m sure you will consent to our proceeding without him, just this one time, I still need to have that stated on the record.”
There was little point in delaying the proceedings, and Judge Pielmeier was now making abundantly clear to me that there would be blowback from her if I tried. “No objection, Your Honor,” I said, hoping that it might buy me some goodwill.
“Okay, then, now that that’s out of the way, we can begin. Mr. Ethan, the floor is yours.”
Despite Judge Pielmeier’s instruction, Ethan stood and then buttoned his jacket, just as he would have done in court if he were twenty feet away from her, instead of the three feet that actually separated them. “Thank you, Your Honor. We ask the court not to permit the defendant to destroy the reputation of a highly public man in what is, plain and simple, nothing more than a fishing expedition. New York State law is very clear that a criminal defendant is not permitted to require innocent people to have to produce their pubic hair. I know Your Honor is well versed regarding the scope of discovery to which a criminal defendant is entitled, but because Mr. Sorensen has made this request, it is possible that he’s not as familiar with the criminal procedure rules. So if the court will indulge me for just a moment, section 240.20 only permits a defendant to obtain statements made by him and/or his coconspirators, photographs of the crime scene, scientific reports and the like, and exculpatory evidence under Brady and its progeny. And, Your Honor, that’s it. There is nothing in the law that permits the defendant to obtain any other evidence, such as pubic hairs from nonparties.”
