Breach of Trust

by David Ellis

  SUITE 410 HAD SUDDENLY become a busy place. In the sole conference room, a transcriber was listening to the conversations captured today by my F-Bird and typing it up. I’d given a debriefing to Chris Moody and Lee Tucker. I could see Moody doing the calculations as I went on.

  “So the governor has to either sign or veto this abortion bill by when?” Moody asked me.

  “They said three days, I think.”

  “And he wants the money from those pro-choice groups before then?”

  “It wasn’t clear. I’m sure he would.”

  Chris Moody absently scratched his cheek. “You’ll follow up on this?” he asked. “This will involve you?”

  I really wasn’t sure. I’d done a lot of “fundraising” with Charlie but didn’t know if I would have anything to do with the shakedown of these abortion-rights’ groups.

  “Tell me again what he said about Cimino,” said Tucker.

  I didn’t remember precisely. “‘Charlie says you’re a great asset,’ something like that. It’s on the F-Bird.”

  Both Moody and Tucker would analyze that phrase over and over. I could see them playing it to Charlie Cimino one day soon. We know you talked to the governor about your “fundraising.” We have the governor on tape saying so. But other than using it on Charlie, would it be enough on its own to get the governor? I didn’t see how. It was flirting with the line but not crossing it.

  Tucker put his hand on my shoulder. “You’re all set for tomorrow?” My interviews with the supreme court candidates, he meant. My instructions from Madison Koehler had been to make this look like a legitimate evaluation and vetting process. So I’d chosen a handful of candidates—three men and two women; three white and two black—in addition to the prohibitive favorite, by which I mean the shoo-in, George Ippolito.

  Chris Moody joined us. “You’re careful in your choice of words,” he said, not for the first time. “You don’t directly confront the issue. But try to stick the branch out and see if Ippolito grabs for it.”

  “He probably won’t,” I said. “If he has any brains, he’ll play dumb.”

  Moody nodded. “Does he have any brains?”

  I laughed. George Ippolito didn’t have many. But on matters political, I suspected he had a little more going for him than he did on questions of law.

  Moody stretched his arms. It was coming up on one in the morning now. I knew he wouldn’t be leaving until he’d listened to the F-Bird from today. He’d listen and relisten, read and reread, the words of Governor Snow today. The case was kicking into final gear now, and he wasn’t going to lose another high-profile political corruption case.

  73

  THE NEXT MORNING, I MADE IT TO THE STATE OFFICE by seven. I had a packed day. In the morning, I was meeting with five of the six judges I was interviewing for the supreme court appointment. In the afternoon, I would finish with the guy who was going to win the beauty contest, George Ippolito. Then at two-thirty, the governor and I were going to sit down with a group of lawyers and clergymen seeking to spare Antwain Otis from execution a few days from now.

  The judge interviews started at eight sharp, a half-hour each with fifteen minutes in between each one for some cushion. I’d be done by eleven-thirty.

  I reviewed my list again. Four trial judges, two appellate. Had this been a real contest, I probably would have focused primarily on appellate court judges, as they are the closest in line to the supreme court, they have a set of published opinions to review, and they are accustomed to considering pure questions of law. Also, had this been a legitimate vetting process, I’d have talked to other lawyers—Paul Riley, for example—to get recommendations.

  But this wasn’t a contest. This was a sham. And if the governor were going to choose a judge from the trial-court level to sit on the state’s highest court, which would come as a surprise to many people, I needed to lay the groundwork for it. Thus, the four trial judges on the short list. I wanted the word to get out that the governor was thinking outside the box, so to speak—he was looking beyond the ivory tower of the appellate court to judges who had gotten their hands dirty, who were on the front lines. So when Snow ultimately chose Ippolito, it wouldn’t look so odd that he’d picked a judge from the trial level.

  It was with no shortage of dark humor that I observed my dual role here, the layers of deception I was mired in. I was assigned by the governor’s office to throw up a curtain of legitimacy around an illegal appointment-for-endorsement deal while, at the same time, I was assigned by the federal government to leave a little hole in said curtain so they could peek through. Talk about the fox guarding the henhouse.

  I’d written up a list of ten mostly softball questions, covering judicial philosophy and ethics and attorney discipline, for the interviews this morning. If you were a fly on the wall, you would have found the morning’s interviews to be little different from the exchanges you see in the Senate Judiciary Committee when questioning nominees to the U.S. Supreme Court. Just for the fun of it, I wanted to ask them if they thought Roe v. Wade should be overruled.

  But it wasn’t fun. It was, at best, a waste of time for the “candidates” and me. At worst, I was raising the hopes of people who had absolutely no chance of getting the appointment and who might be tarnished by association once the feds closed in.

  I scheduled George Ippolito as the only afternoon interview, figuring I should save the worst for last. Plus it made the most sense from a practical standpoint. I needed to be wearing FeeBee for Ippolito, but I wouldn’t wear it for the other interviews. It had been one condition I had laid down that the feds had accepted. It was bad enough I was stringing along these other judges, bad enough that they might be tainted by this whole affair later. I wasn’t going to record their conversations with me when there was no reason to believe they were corrupt.

  So I placed a little separation in time between Ippolito and the others and I went down to the food court in the basement of the state building after the other five interviews, ostensibly for a quick lunch. I dropped my tray of pasta on a table in the foyer just as another customer—one Lee Tucker—was vacating said table, leaving behind the F-Bird.

  Back at my office, FeeBee in tow, I felt a knot form in my stomach as the receptionist informed me that Judge George Ippolito was here to see me.

  George Ippolito was somewhere in his mid- to late fifties, I gathered, from his weathered features. His wispy hair was the color of sandpaper, which I assumed came from a bottle. He had liquid eyes, a tight mouth, and a thick nose that owed to a few too many nights at Rusty’s or Sidebar, one of the lawyer hangouts for the criminal bar. He was a reliable drinker, though no one was ever sure if that included daytime sauce. Judging from his temperament on the bench, it wouldn’t be a stretch to think he added a little flavor to his morning coffee, but I can’t say I ever heard him slur his words in the times I was before him. He was an asshole, but a sober one.

  I could see from his expression when he walked in that he recognized my face, and he obviously knew my name, but he hadn’t previously put the two together. I’m sure he’d had hundreds of prosecutors pass before him in his day and they blurred together.

  “Jason Ko-LAR-ich!” he said to me, breaking into a broad smile when he saw me. So, I guess he was going to play like he remembered me. It would have helped if he’d checked on the pronunciation of my name before embarking on that plan. Kola, like the drink. Rich, like you have money. How hard is that?

  “Great to see you again, Counsel,” he said with a firm grip on my hand.

  Somebody must have told him that I’d tried a case before him previously. I wondered if they also told him what I thought of him. Either way, no one bothered to give him the correct pronunciation of my name.

  “Thanks for coming, Judge. This won’t take long.”

  “Whatever you need, Jason. Whatever you need.”

  Great. Terrific. I started with my boilerplate. The governor was considering a wide range of candidates from diverse backgrounds; you�
��ve impressed a lot of people, you made the first cut, we’re interested in speaking with you, blah blah blah.

  “What kind of name is Ko-LAR-ich?” he asked, when I was finished.

  “I’m three-quarters Irish,” I said. “But my father’s father was Hungarian.”

  “It sounds Polish.”

  It wasn’t a question, so I didn’t answer.

  “You grew up on the south side?”

  “Leland Park,” I said. This guy was interviewing me.

  “What was your parish?”

  Ah, south-side geography. Identification by the Catholic church you attended.

  “St. Pete’s,” I said.

  “St. Agnes.” He pointed at himself. “You went to, what, Bonaventure?”

  “Right.”

  “You spend time at Louie’s?”

  “Best kraut dog in the city,” I said. It was just down the way from Bonaventure, my high school.

  “Got that right. I went to a ball game last summer, they put ketchup on my hot dog. Ketchup.”

  Sacrilege for a city dog. A lot of people don’t have a sense of humor about such things. Mustard is the only appropriate condiment for a sausage. Budweiser is the only beer at a ball game. On the other hand, I was supposed to be interviewing this guy for a seat on the supreme fucking court, so maybe we should talk about that for at least thirty seconds.

  “How would you describe your judicial philosophy?” I asked him.

  He watched me for a moment, then broke into a humorless smile. “My judicial philosophy? My judicial philosophy.” He sat back in his chair, chin up, eyeing me. “You’re interviewing me for this position?”

  “Yes, I am.”

  “You’re questioning whether I can handle this job?”

  “I’m just questioning, period.”

  “And you’re going to give a recommendation to the governor?”

  “Correct.”

  “Mmm-hmm.” He nodded at me. “How long have you been a lawyer?”

  “Nine years.”

  His expression said it all: What was a kid like me doing evaluating judges? This guy was actually insulted that he’d have to answer questions from me. “I’ve been a judge for seventeen years. I’ve got a record and it speaks for itself.”

  Now we’d found common ground. His record definitely spoke for itself. And, if I was reading this idiot correctly, he wasn’t going to be doing any other speaking on the subject.

  “Please pass on to the governor how honored I would be to serve on the court.”

  “I’ll do that, Judge.”

  “And when you write up that recommendation for me—that’s something that will be disclosed publicly?”

  “Not sure,” I said.

  “Well, if it’s going to be—I’d like to take a look at it first. Make sure it works.”

  “I’ll see what I can do.”

  “Good.” The judge clapped his hands together. “And now we can say we met?”

  “Now we can say that.”

  He got up and extended a hand. I took it and gave him my strongest grip, just a quick but hard squeeze. And then my vaunted interview with the honorable George Henry Ippolito was over.

  74

  HAVING JUST CONDUCTED A SERIES OF SHAM INTERVIEWS to name the next justice of the state supreme court, I now moved on to a sham meeting to hear the pleas of a number of people looking to spare the life of Antwain Otis. Madison Koehler had already told me that my assignment was to support the governor’s decision to deny clemency and let the state execute this inmate.

  I’d read the considerable file on Antwain Otis twice now and drafted a one-page summary of its contents. His wasn’t a particularly original story. Eleven years ago, while a high-school dropout and member of the Tenth Street Crew street gang, Otis held up a pawnshop on Mayfair Avenue in Marion Park, a south-side community not very far from where I grew up. The owner, after Otis had left the store, ran outside with a firearm that was stowed under his counter and shot at him. Otis sprayed return fire and missed, but his shots killed a woman and her son crossing the street. Clearly, the mother and child were not his intended targets, but the law didn’t care about that. If you intended to fire the gun—which Otis clearly did—you were presumed to have intended to shoot whomever had the misfortune of being in the line of fire. In this case, the victims were Elisa Newberry, age thirty-two, and her five-year-old son Austin.

  Otis was convicted of murder and sentenced to death. On direct appeal, the state supreme court upheld the conviction but vacated the death sentence because of improper argument by the prosecution. The high court sent the sentencing issue back to the trial court, where a new jury once again recommended death for Antwain Otis.

  Otis couldn’t claim that he lacked adequate representation, as his lawyers had actually beaten the death sentence on the first go-round. Plus, for several years now, Otis had openly admitted to the murders, so legalese aside, no one was claiming a miscarriage of justice. This was no innocent man.

  That, of course, was significant. The horror stories involving death-row inmates, the examples most often cited by death penalty abolitionists—a shoddy lawyer who fell asleep at trial or failed to call any witnesses; a prosecutor who withheld exculpatory evidence; a cop who beat a wrongful confession out of an accused—were not present here. Antwain Otis was not denied due process of law. He had good lawyers and a fair trial. And he even now freely admitted he was guilty of the murders. He was not wrongly convicted; in fact, it was entirely fair to say that Antwain Otis was properly convicted and sentenced to death.

  The clemency petition filed by Otis’s lawyers did not claim that an innocent man was going to be executed. Their point was that Otis had been rehabilitated and had become a positive force within the prison system. Simply put, Antwain Otis had found God.

  I heard that all the time when I was a prosecutor. People found God when their back was to the wall, after they’d lied through their teeth about horrific crimes they’d committed but now were facing a judge for sentencing. But I had to admit that Antwain Otis had a decent story.

  With the assistance of local clergy, he started a new prison ministry called You Came to Me in June 2001. The file contained affidavits of twenty-four current and former inmates who’d served with Otis at Marymount Penitentiary, some on death row and others in general population, almost all of them violent offenders. The affidavits, predictably, attested to the impact that Otis and his ministry had made in their lives. Antwain Otis had brought them to God, had taught them the power of faith and forgiveness, had shown them a different path. Eleven of those twenty-four had since been released from prison, and none of them had been reincarcerated for subsequent offenses—a notable statistic, I had to say, given the high rate of recidivism, especially among violent offenders.

  But none of that changed the fact that this was an election year, in which a Democratic governor would be sensitive to charges in the general election that he was soft on crime. None of that changed the fact that this man was undoubtedly guilty of the crimes of which he was convicted. None of that changed the fact that Antwain Otis was a black gangbanger who killed an attractive, young white woman and her young son.

  The governor, while up in the city—which was most of the time, as far as I could tell; I wondered if he ever spent time at the mansion down in the state capital—had a number of offices at his disposal. I was directed to one of them, a long room with cheap furniture and mustard-yellow walls and uncomfortable chairs. Governor Carlton Snow and Bill Peshke were conferring quietly when I walked in. “Hi, Jason, sit by us,” said the governor, before continuing his deliberations with his press guy, Peshke.

  “Okay,” he said, pounding the table and turning toward me. We formed a triangle, the governor at the head of the table and Peshke and I flanking him. “Antwain Otis. Did he do it?”

  The question threw me for a moment. I thought it was a conversation starter but came to believe he was really asking me the question. He didn’t know anything about t
his case?

  “Yes, he’s admitted to the crimes. He killed two people, a woman and her son, during a robbery.”

  Peshke, with the plastic hair and polished expression, took a note of that and asked for details, names and ages. He was the guy they put out front with the press. He’d need this stuff.

  “So what’s his deal?” said the governor. “Does he have a deal?”

  “He’s preaching the Christian faith to inmates. The argument is that he’s making a difference, and we should let him stay in prison to keep doing it. A number of people have come forward who claim that this guy has changed their lives and given them hope for the first time.”

  The governor seemed to be waiting for more from me. Then he looked over at Peshke. The two of them made eye contact. I wasn’t a mind reader but I didn’t think either of them found this impressive.

  I still couldn’t believe these guys had no idea what was contained in the file.

  “So, a double murder,” said Peshke. “Young woman and her son?”

  “Yes.”

  “No question of guilt?”

  “None.”

  “Mmm-hmm.” Peshke deliberated, jotted a few notes on a pad of paper. He held it up and cleared his throat before reading from it. “The governor’s obviously sensitive to these issues on a case-by-case basis. He takes no joy in this task, but he recognizes his constitutional responsibility and he’s given this case careful consideration. He’s reviewed the file and the clemency petition, and he’s listened at length to the people advocating clemency. There’s no question about the defendant’s guilt or about the fairness of the trial. Two innocent people were murdered, and the governor sees no reason to disturb the sentence imposed by the court.”

  The governor nodded along. “Good, I like that.”