Deadly Justice

by William Bernhardt

  “No, but I’ve got an office building full of suspects. Man, you wouldn’t believe this Apollo crew. What a collection of back-stabbing, butt-licking—”

  “Hey, don’t complain to me. You’re the one who thought this job would solve all your problems.”

  “I did not—oh, what’s the use? Has Koregai finished his autopsy report on Hamel?”

  Mike tossed himself into a chair and plopped his muddy boots on Ben’s desk. “He says Hamel was strangled to death. Hamel was wearing a high-collar shirt, you’ll recall—that’s why you didn’t see any marks on him. While the killer was relocating the body, Hamel cut his hand on something—that’s the source of the blood in your car. The cut must’ve occurred fairly soon after the murder—otherwise there wouldn’t have been so much bleeding.”

  “Did your men turn up any physical evidence?”

  “Nothing that appears useful. We not only searched the Apollo building, we searched the alley behind your boardinghouse and scoured the entire neighborhood. And Jesus, what a neighborhood you live in. I could’ve found more people willing to talk to cops at the penitentiary. We didn’t learn a damn thing.”

  “I saw Hamel’s office roped off with yellow crime scene tape. Find anything there?”

  “Nothing that held any significance to me. You’re welcome to take a look yourself.”

  “Thanks, I will. What about Hamel’s house?”

  “The widow’s been giving us some trouble there. Normally I’d be able to get a warrant in a heartbeat, but it turns out Judge Carter is a personal friend of the family and is making a lot of noise about us not intruding on her grief with an unnecessary search. He refused to sign the warrant and put out the word that he’d consider it a personal affront if any other judge did. And he is Chief Judge this term.”

  “And to think people blame lawyers for the slow wheels of justice.”

  “Yeah. And it’s only true about ninety percent of the time. Don’t worry, we’ll get the warrant eventually.”

  “Great. Call me as soon as you do. I’d like to help.”

  “I think I can arrange that. Especially since Chief Blackwell has practically deputized you.”

  “Yeah, with a threat of life imprisonment. You think he’s serious about hauling me in at the end of the week?”

  “I’m afraid so. Deadly serious.”

  “Swell. My time is running out. So call me as soon as you get the warrant.”

  “Will do, kemo sabe. I’ll be in touch. And Ben?”

  “Yeah?”

  “I picked up a brochure you might be interested in. Have a nice day.”

  Ben glanced at the brochure Mike had placed under a paperweight on his desk: SAM AND JERRY’S FLYING CIRCUS—SKYDIVING ON THE CHEAP.

  19

  BEN HAD HOPED TO spend the remaining hour until his hearing preparing. Unfortunately, only seconds after Mike left, Crichton sailed in.

  “Mr. Crichton!” Ben said, jumping out of his chair. “I didn’t expect to see you in the office today. How are you feeling?”

  Crichton waved the attention away. “Don’t make a fuss, Kincaid. I’m fine. The ER docs told me to take it easy for a few days. I was just shaken up, that’s all.”

  “If I had fallen fifty feet only to be jerked back a few seconds before impact, I’d be more than just shaken up.”

  “Well, I’ve had close shaves before. I’ve known all along I wasn’t going to live forever.” He glanced back at the doorway. “Who was that man in the trenchcoat I saw leaving your office?”

  “Oh, that was my brother-in-law, Mike,” Ben hedged. “Er, ex-brother-in-law. He’s a friend.”

  “He’s the cop.”

  “Well, yes.”

  “Came to talk to you about Howard’s murder.”

  “Right.”

  Crichton sat down in one of Ben’s chairs and pressed” a finger to his lips. “Ben…I think your interest in Howard’s unfortunate demise is admirable. I really do. But I’m concerned that it might distract you from your duties here at the office.”

  “I’ve been timely with all my assignments, Mr. Crichton.”

  “I need more than just timely compliance from you, Ben. I need your total concentration. An absolute, twenty-four-hour devotion to your client.” His eyebrows knitted. “You know, I have a family, and I love them dearly, but my job comes first and they know it. They understand. I mean no disrespect to Howard’s memory. But the Apollo Consortium is at a critical juncture now—the proposed acquisition of ConSteel, the Ameritech venture, and a dozen other equally important deals. We can’t afford the distraction—or the negative publicity—of a damaging piece of litigation. I’m counting on you to nip the Nelson case in the bud.”

  “I’m doing everything I can, Mr. Crichton. As I told you, the Nelsons’ testimony was convincing and consistent. The average Oklahoma jury will be sympathetic to them. If we’re going to beat them, we’re going to have to do it on a legal issue. Before trial.”

  “Then find me a legal issue, Kincaid.”

  “I’m working on it, sir, but discovery is still ongoing. Tomorrow, Abernathy, the Nelsons’ attorney, is deposing one of our design team vice presidents. After that, if all goes well, I may know enough to put together a convincing summary judgment brief.”

  “See that you do.”

  “Even if I write the best brief in the world, though, there’s no guarantee Judge Roemer will grant it.”

  Crichton gazed over his strategically placed hands.

  All Ben could see were his eyes burning across the room. “Ben, is it my imagination, or are you making excuses for your failure before the motion has even been filed?”

  “Not at all, sir. But as you know, there are no guarantees in the world of litigation. Sometimes people assume that if their cause is just, that automatically means they will be successful in the courtroom. Of course, that isn’t always the case.”

  Ben could feel Crichton’s eyes burrowing into his forehead. “See that it is the case in this lawsuit, Kincaid. Understand?”

  Ben shifted uncomfortably. “I understand.”

  “Good.” Crichton removed his hands. “So tell me about this hearing this afternoon.”

  “Well, as you know, we produced an enormous quantity of documents to Abernathy last week.”

  Crichton grinned. “I know. We threw in stuff from twenty years back that didn’t even relate to the XKL-1. I expected that small-time practitioner to be buried for months.”

  Without commenting on Crichton’s tactics, Ben continued. “He hired emergency support staff from a temporary agency and completed the job in a few days. He’s figured out our internal numbering system, and by tracking the numbers, he’s deduced that ten pages are missing. He filed a motion to compel production of the missing pages, and asked the court for an emergency hearing before the documents are lost or destroyed.”

  “This entire hearing is about a lousy ten pages? Good grief, we must’ve given him a hundred thousand pages!”

  “True. And now he wants the other ten.”

  “What makes him think those ten are so important?”

  Ben ran his fingers across his desk. “Principally, the fact that they are missing, I would imagine. I’ve talked to Imogine, the supervisor in Document Retention, but she says she doesn’t know where the documents are or what information they contained.” He chose his words carefully. “I…don’t suppose you do, by any chance?”

  To Ben’s surprise, Crichton leaned across his desk and smiled. “As a matter of fact, I do. I remember removing ten pages myself. They didn’t have anything to do with the XKL-1. They contained a design for a new suspension system—frankly, one that would remedy some unrelated problems we’d experienced. It would have no bearing on the alleged leaf spring defect the Nelsons are complaining about. I didn’t mean to create any problems—we just considered the new design top secret. Do we have to produce that?”

  Ben thought for a moment. “Well, there is a legal doctrine protecting proprietary info
rmation. Companies are not required to disclose trade secrets, especially where, as here, they have no relevance to the lawsuit.”

  “Makes sense to me.”

  “There’s also a rule excluding evidence of subsequent repairs. The theory is that, if evidence of repairs made after an incident were admissible at trial, no one would ever make repairs, for fear that the fact of the repair would make it appear at trial that they acknowledged the fault. As a result, more people would be harmed. So the courts have made a policy decision to exclude evidence of subsequent repairs.”

  “That’s great!” He walked around the desk and slapped Ben on the back. “That sounds like exactly what we need. By God, I knew you were going to be a winner, Kincaid. What a proactive player. I wish I had ten more just like you.”

  “Thank you, sir. Oh, I’ll have to see the missing documents, of course.”

  Crichton stiffened. “Why? I already told you what they say.”

  “I know. But if I’m going to make representations to the court about their contents—”

  “Ben, I don’t have them anymore.”

  “Who does?”

  “I’m not sure. I think I gave them to Imogene.”

  “Imogene says she doesn’t have them.”

  “Okay, I’ll instigate a search.”

  “Sir, I don’t have time for a search. The hearing starts in less than an hour.”

  “Just tell the judge you can’t show them around because they contain trade secrets. I’m sure he’ll understand.”

  Ben frowned. “Either that or he’ll cite me for contempt.”

  “You’ll handle it. You’ll be great.” Crichton started for the door, but stopped just before he passed through the threshold. “By the way, Kincaid…” He cleared his throat, then stared at the floor.

  Ben watched this curious spectacle. Crichton, the boss of every room he entered, suddenly seemed…uncomfortable.

  “What I’m trying to say is…well, I probably got out of line…calling you a pussy and all that. What you did on the giant’s ladder, when you saved my butt from splatting on the dirt…that was amazing. Most men would’ve been too scared by half to try something like that. Hell, I’m not even sure I could have brought it off.”

  “Really, Mr. Crichton, it was no big deal.”

  “The hell it wasn’t. And to think you did that just minutes after I was riding your ass.” He shuffled his feet some more. “What I’m trying to say is I think I owe you an apology.”

  “That’s not necessary.”

  “No. But I wanted to do it anyway. Now get in that courtroom and give ’em hell, tiger.” And with that, Crichton faded down the hallway.

  20

  BEN AND ROB SAT at one of two counsel tables in Judge Roemer’s courtroom and waited. Roemer’s courtroom was one of the smaller ones tucked away on the seventh floor of the state courthouse at Fifth and Denver.

  Ben checked the clock on the wall. “The judge is already fifteen minutes late. I hate waiting around like this, but it seems to happen every time.”

  “Is this sort of like being fashionably late to a party?” Rob asked.

  “Well, this is more a power-of-the-judge pose. You know: you have to be on time; I don’t.”

  “That must be irritating.”

  “True. On the other hand, state judges don’t have clerks, much less magistrates. They have to do everything themselves. Roemer’s probably back in chambers reading our brief.”

  Ben apparently was not the only person in the courtroom getting restless. Abernathy lumbered over and plopped another business card in front of Ben. “Wanted to make sure you gentlemen had my new card. It’s got my 1-800 number.”

  “You have a 1-800 number? For your law practice?”

  “Sure. Doesn’t everyone?” He laughed. “It’s the wave of the future, Ben. Mass marketing. Media referrals.”

  “So if I want to call you up and talk about the pending motions or something, I can just use this number?”

  “Well…er, no…This is really for prospective clients…”

  “Ah.”

  “Have you seen my new commercial? It’s running during reruns of Laverne and Shirley on Channel Six.”

  Ben glanced at Rob. “You know, I don’t keep up with Laverne and Shirley like I used to.…”

  “It’s a great spot.” Abernathy shifted his considerable weight into action, reenacting the commercial. “It starts with the camera tightly focused on me.”

  “What a surprise.”

  “Then the camera pulls back, and you see I’m wearing a black leather jacket and straddling a great big Harley. I lean into the camera lens and say, ‘If a doctor makes a mistake, I believe he should be held accountable. If you’re hurt On the job, I believe your boss should be accountable.’ Then I rev up the Harley and say, ‘And if you’re injured by some pig on the highway, I believe he should be held accountable.’ By this time, the music is swelling. Really exciting stuff—we looped it from Top Gun. It’s very moving.”

  “No doubt.”

  “And I finish off with, ‘Don’t give up your claim prematurely. Don’t accept a nuisance settlement from someone who owes you more. You need a hot rod in your corner. Call George Abernathy.’ And then the 1-800 number flashes. It’s beautiful. The first time I saw it, I got choked up.”

  “Better than Casablanca,” Rob said.

  “Oh, a hundred times over,” Abernathy replied. “If you ever go back into private practice, you should try TV, Ben.”

  “I’ll pass. Thanks.”

  “Hmmph. You guys who act like you’re too classy to advertise are going to be left behind in the dust.”

  “Maybe so,” Ben said, “but at least I won’t be straddling a great big Harley, begging people to sue their friends and neighbors.”

  “Since you apparently loathe, litigation so much, we could avoid this whole unpleasant hearing if you’d sit down and talk some settlement.”

  “Thanks, but no thanks, Abernathy. I’m not convinced you even have a case.”

  Judge Roemer chose that moment to enter the courtroom. Roemer was one of the more laid-back state judges; in fact, Ben reflected, some might call him comatose. He never took an active role, he let the lawyers do whatever they wanted, and he hated to make a decision. “Please be seated,” he mumbled into the microphone.

  He glanced at the papers on the bench, frowned, and then said, “I understand we have a discovery dispute today.” His voice was thin and reedy. “I hate discovery disputes. Can’t you boys work this out on your own?”

  Abernathy waddled toward the podium and went into his gosh, shucks routine. “Darn it all, Judge, I’ve talked to Mr. Kincaid about this, but he refuses to produce those ten pieces of paper.”

  Roemer addressed Ben. “Is this true?”

  “Yes, your honor. We’re claiming privilege as to those documents because they contain proprietary information. Furthermore, they would not be admissible at trial as they contain evidence of subsequent remedial repairs.”

  “Any reply, Mr. Abernathy?”

  Ben watched as Abernathy struggled for words. Ben expected that he would request the judge to examine the documents in camera, or would offer a confidentiality order restricting the dissemination of the trade secrets, or would argue that ultimate inadmissibility should not preclude production during discovery. But Abernathy did none of that. He just stood there, fumbling and foomferalling, obviously unprepared.

  Beads of sweat poured down from Abernathy’s hairline. “Well, gosh, your honor. I haven’t even seen these documents. How can I know what’s in them?”

  Roemer’s bored impatience was evident. “You’ve just heard an officer of the court make a representation as to their contents. Do you have any reason to dispute it?”

  “Well, no, I’m sure Mr. Kincaid is an honest young man—”

  “And you do agree that evidence of subsequent remedial repairs is inadmissible, don’t you?”

  Abernathy blinked, then wiped the sweat from his
forehead. “Now, I don’t see why that should be. If a company repairs something, that’s a darn clear indication that there was something wrong with it in the first place.”

  “Mr. Abernathy has, of course, just pinpointed the entire reason for this evidentiary doctrine,” Ben interjected. “If such evidence was admissible, companies would be disinclined to make repairs, even where lives are at stake.”

  “Anything further?” Roemer asked Abernathy, tapping a pencil.

  Abernathy was steadying himself against the podium. “Gosh, your honor, I’m not sure what to say. This is a new one to me.”

  Ben’s eyes crinkled. This was first year law school stuff. Abernathy apparently was so used to settling cases quickly—taking the money and running—that he never had to do any real legal work.

  “Can you cite any cases in support of your position,” Roemer asked, “assuming you have one?”

  “Uh…Judge, I’m not really prepared to do that at the moment.”

  “Then I have no choice but to deny your motion.” Typical Roemer—he didn’t want to take any longer than necessary. And he didn’t want to order anyone to do anything if he could avoid it. “In the future, Mr. Abernathy, don’t waste this court’s time if you can’t defend your motions any better than this.” He reached for the gavel. “This hearing is concluded.”

  Everyone rose as Roemer drifted out of the courtroom.

  “All right!” Rob said, punching Ben on the shoulder. “You killed him! Crichton’s going to be pumped.”

  “I suppose.” Ben watched Abernathy lumber out of the courtroom. “I didn’t win on the merits, though. I won because the Nelsons hired a walking TV Guide ad instead of a lawyer.”

  “What’s the difference? Man, you’ve been on this case less than a week, and you’ve already turned it completely around. Crichton was right—you’re the greatest!”

  Ben smiled pleasantly, but said nothing.