Her Kind of Case

by Jeanne Winer

  “You may,” the judge said.

  Once they were huddled together, Lee whispered, “I’d like to make further argument concerning the admissibility of my client’s tattoos.”

  “I object, Your Honor,” Dan said. “We’ve argued this already and the court has made its ruling.”

  “We have a supplemental brief,” Lee told them, “and a number of new arguments. If nothing else, I need to make a record for appeal.” She handed a sheaf of papers to the judge and a copy to Dan, who was frowning and pretending to be surprised.

  “Judge,” he said. “I thought this was already settled.”

  The judge skimmed through Lee’s brief, which Phil had drafted the night before, and then nodded.

  “I doubt that I’ll change my ruling, but I’ll allow further argument. Mr. Andrews, if you’d like, you can have until Monday to write a response.”

  “Thank you, Judge.”

  “Can you wait until Monday before asking the detective about the defendant’s tattoos?”

  “I don’t want to, but I can.”

  The judge smiled and said, “I appreciate your flexibility, Mr. Andrews. So, this is what we’ll do. First thing Monday morning, before the jury comes in, Ms. Isaacs can make her record. Mr. Andrews can submit his response and then I’ll make my ruling. Are we clear?”

  “Yes, Your Honor,” they said.

  “Excellent. It’s such a pleasure when both sides act like grown-ups.”

  Dan spent the rest of the day questioning Detective Bruno about his role in the case. The detective’s answers were certain and matter-of-fact. No jokes, no mistakes. He wanted to win as much as Dan did.

  When court was adjourned for the weekend, Lee asked Leroy, who’d volunteered to be Jeremy’s guard for the rest of the trial, if she could speak privately with her client.

  “Sure. Take your time. I’m really enjoying this case.”

  “Glad to hear it,” Lee said. Good thing Phil had already left the courtroom.

  Leroy wandered to the side of the room and leaned against a wall. Lee turned to her client, who was sitting quietly, staring straight ahead. For the last few days, Jeremy hadn’t said a word. Except for his tears during the video, he’d shown no emotion. One way that many of her clients dealt with being on trial was to dissociate: I’m not here, this isn’t happening to me. Lee guessed Jeremy had chosen this way as well. For now it was fine, but when it was time to testify, he needed to be extremely, excruciatingly present.

  “Hey,” she said, sitting down beside him.

  He didn’t respond.

  “Jeremy, I know how difficult this is. No, actually, I don’t. But I can imagine.”

  His face looked so haggard, it was hard, even for Lee, not to just grab him and pull him close.

  “Do you believe in God?” he asked suddenly.

  Six months earlier, his father had asked her the same thing. She’d been flippant then, but she wouldn’t be now.

  “I don’t know. I don’t think so. Do you?”

  “For the first time in my life, I’m not sure. God and prayer were always part of our lives. We prayed every day: at services, before meals, on holidays, at bedtime. Every other word out of my father’s mouth was God. Whatever happened was God’s will. If there was, like, a hurricane in Florida, praise God. If there was a massacre in the Middle East, praise God. Even when God wouldn’t make me heterosexual, I-I never questioned whether he existed or not, although it was kind of hard to praise him.

  “When I lived in Denver, I still prayed every night, but of course I didn’t tell anyone. My brothers would have laughed their heads off. And then, you know, when I met Sam, I thanked God all the time. It-it wasn’t until the night Sam died that I wondered if there really was a God, or whether he was my father’s God after all. A God who punished gays and everyone else who displeased him, a mean and nasty God. So then, I just stopped praying. Every night in jail, I think I’m going to start, but then I don’t. Maybe I’m still too angry but maybe, I don’t know, maybe I just don’t believe in him anymore.”

  At first, Lee was speechless. What could she possibly say that wouldn’t sound like bullshit? Jeremy’s agony was real. I’m just your lawyer, she wanted to say. This isn’t within the realm of my expertise. But he was waiting. Finally, she thought of something.

  “Do you know the story of Job?” she asked.

  “Of course.”

  “Well, I studied it in college. Back then, I was concerned with the question it was supposed to answer: Why do bad things happen to good people? But when Job demands to know, God yells at him and says that humans can’t possibly understand what he is doing. And somehow this satisfies Job and he stops questioning his fate. To me, it made no sense.”

  “Yes, that’s how my father explained it. God is beyond our understanding, so humans have no right to question him.”

  “Well, that’s not very satisfying. I remember thinking that if God existed, he was a jerk, especially because he’d made Job suffer on purpose.”

  Jeremy was beginning to smile.

  “But we’re not supposed to judge God because God is …”

  “Incomprehensible,” Lee finished. “To me, what’s weird is how Job doesn’t abandon his faith in God. He just accepts that he can’t possibly understand what God is doing and stops complaining. Although, at the end, God makes his life better again.” She made a face. “I don’t get it.”

  “Yeah,” he said, crossing his arms, “neither do I.”

  “So the question is: Would you rather have an incomprehensible God or no God at all?”

  Suddenly, Jeremy looked confused.

  He uncrossed his arms and asked, “Is-is that my only choice?”

  Was it? Almost nothing in Lee’s world was ever simply black or white. If it were, she’d have been out of a job a long time ago. She’d just have to dig deeper.

  “Well, maybe not,” she said. “Maybe the author of the story wanted us to stop blaming God when things go badly and to stop thinking that whatever happens is God’s will.” She was kind of making things up now, but what the hell. “Maybe the author wanted us to change our conception of God altogether.”

  Jeremy was listening hard.

  “And so,” she continued, “it’s only when we want a personal God that we can pray to or to blame that God seems incomprehensible. But if we imagine God more like the intelligence behind creation, which has nothing to do with whether people suffer or not, then that kind of God can be appreciated by anyone who stands in awe of the universe.” Wow, she thought, that’s pretty good. “In which case, God isn’t someone you know. It’s something you’re part of.” She looked to Jeremy to see if he agreed. He didn’t.

  “But God talks to Job.”

  Whoops. She’d gone too far. Maybe asking your agnostic lawyer about God wasn’t such a great idea after all.

  “That’s absolutely true,” she said, nodding. “So I guess it’s back to whether you want a God you can’t understand or no God at all.”

  Jeremy was silent for almost a minute.

  “You know what, Lee?”

  “What?”

  “I think I’m too young to decide.”

  “Well, of course you are.” And for the first time in her long career, she willingly hugged a client.

  CHAPTER SIXTEEN

  In the law, nothing stays put. Anything that seems final isn’t. Appellate courts issue rulings that are contrary to settled precedent; new facts pop up requiring further argument; a party to a lawsuit thinks of yet another reason why the judge should reverse an order. Motions for reconsideration are filed, argued, decided, appealed, reargued, decided again, and appealed once more. Like the ultimate scene in Fatal Attraction, when Michael Douglas drowns Glenn Close in the bathtub and we think she’s finally dead. Forty seconds later, she rears up again, gasping, and the fight begins again.

  On Monday morning, Judge Samuels heard further argument concerning the admissibility of Jeremy’s tattoos. As promised, Lee offered new re
asons why her client’s tattoos shouldn’t be revealed to the jury, including an assertion that because the evidence was being offered for its expressive content, its admission would violate the defendant’s Fifth Amendment right against self-incrimination. Dan had done his homework, however, arguing that even if the evidence was testimonial, it wasn’t the product of government compulsion.

  After an hour, the judge put up his hand.

  “Enough,” he told them. “I’m ready to make my ruling.”

  Both sides sat down. Lee expected to lose, but she’d made her record for appeal. Although Phil’s brief was well written and persuasive, Dan’s was better, and the law was on his side.

  “All right,” the judge said, removing his glasses and pinching the bridge of his nose. “The issue, once again, is whether the prosecution can show pictures of the defendant’s tattoos to the jury without violating the rules of evidence or the Constitution. First of all, the tattoos are highly relevant to prove the defendant’s allegiance to the skinheads and to show that he and his co-defendants all shared the same values. The evidence is also relevant because it makes it more probable that the defendant possessed the requisite intent. Although the tattoos are certainly prejudicial, their probative value is not, in my opinion, substantially outweighed by the danger of unfair prejudice. Secondly, contrary to Ms. Isaac’s contention, the tattoos are not being offered to prove the defendant’s bad character; instead, they’re part and parcel of the criminal episode and are admissible as res gestae.”

  The judge paused to eat a couple of blueberries, his newest healthy snack.

  “All right, concerning the defendant’s Fifth Amendment argument, the tattoos do seem testimonial in nature, but as Mr. Andrews pointed out, they were not compelled; nobody forced the defendant to cover his arms with incriminating words and pictures. In the absence of government compulsion, the defendant’s Fifth Amendment claim fails.

  “Finally, revealing the defendant’s tattoos to the jury does not undermine his constitutional presumption of innocence.” He paused. “Okay, I think that covers it.” He nodded toward Dan and Detective Bruno. “As soon as the jury is seated, you may resume your case.”

  After Detective Bruno finished testifying about finding Jeremy in the attic and arresting him, Dan pulled out a number of 8 x 12 inch photographs from one of his trial notebooks and asked if he could approach the witness. When he was standing in front of the detective, Dan handed him the pictures.

  “Detective Bruno, can you identify these photographs and describe them for the jury?”

  “Certainly. They’re photographs of the defendant on the night I arrested him. I took them myself, mostly to document the various tattoos on his arms and to memorialize the way he looked in case he later changed his appearance for trial.”

  Sweat dripped silently down the sides of Lee’s blouse but, to judge by the expression on her face, she remained unconcerned. Dissemble or find another profession. Although Jeremy’s body sat beside her, his mind had clearly slipped its bonds and fled. In an alternate universe, he was walking hand in hand with Sam through the streets of San Francisco.

  “Judge,” Dan said, “may I show the photographs to the jury?”

  “You may.”

  As each of the jurors looked at the pictures, their expressions tightened. Some glanced at Jeremy and then back to the photographs, making sure there was no mistake; there wasn’t. The gaunt kid with the shaved head and the odious tattoos was in fact the defendant.

  When Lee finished her cross, Dan called Detective Armstrong to testify concerning Jeremy’s demeanor on his way to the juvenile detention facility and his demand to be incarcerated with his “brothers.” Lee’s questions focused on how naïve and childish he’d seemed, and the detective tended to agree. A tiny bone, for sure, but she’d take it.

  At noon when he stood up to leave, Dan looked positively merry. He was on a roll now. He’d saved the jailhouse snitch and the three co-defendants for last. On their way out of the courtroom, the jurors no longer glanced at Lee and Jeremy, which was always a bad sign.

  In his direct examination of the snitch, Dan took a long time reviewing the witness’ prior criminal history. It was a typical preemptive move meant to take a little of the sting out; Lee would go over it again in detail but, by then, the jury would already have heard it.

  Like Jeremy, the snitch had let his hair grow out in jail, but unlike Jeremy, he didn’t necessarily look better. His reddish-brown hair was combed straight back from his forehead. With his small nose and sharp features, he reminded Lee of the ferret her father had brought home to surprise her and her mother. Both of them thought the animal smelled funny. A few days later, her father agreed and they gave the ferret away.

  According to the snitch, the three co-defendants were definitely at the party where Sam’s “secret” was discovered. The defendant could very well have been there too, but the snitch wasn’t sure.

  “It’s real possible, but I’m not positive.”

  Toward the end of his examination, Dan focused on Jeremy’s connection to the skinheads.

  “When you saw Casey, Rab, and Johnny, was the defendant almost always with them?”

  “Um, yeah. He was a definite part of their gang.”

  “Did you spend a lot of time with the defendant?”

  “Well, not a lot of time, but enough to know that he, um, shared the same feelings as the others.” He’d been well coached.

  Dan nodded approvingly.

  “What do you mean by ‘the same feelings’?”

  “Um yeah, so like he was prejudiced against Blacks, Jews, and faggots. Homosexuals.” He paused to think. “And, um, he made cracks about them, just like we all did.”

  Dan flipped to the next page of his notes.

  “Mr. Heller, did you ever see the defendant and Sam hanging out together?”

  “Now and then. Not often.”

  “Did they seem to be especially close?”

  “Um, no. Not really.”

  “Did you ever get the feeling they were romantically involved?”

  “No way. Uh-uh. They hardly talked to each other. Sam was a lot older. The kid was, you know, just a kid. None of us paid much attention to him.”

  “The defense says they were lovers.”

  “Uh-uh. No way. Sam was my roommate. I would have known. No way.”

  “Thank you,” Dan said. “The defendant’s attorney will now be asking you many of the same questions. Pay attention and answer them as truthfully as you can.”

  Time to make a fuss.

  “Objection,” Lee said. “The prosecutor has no business reminding the witness that if he isn’t careful, the jury will realize how much coaching he’s had.”

  “Objection, Your Honor!” Dan sounded genuinely angry. “I’d ask the Court to admonish Ms. Isaacs for her gratuitous remarks and instruct the jury to ignore them.”

  Judge Samuels nodded in agreement.

  “Ms. Isaacs, please refrain from expressing your personal feelings concerning the witness’ veracity, which are, of course, irrelevant. I am hereby instructing the jury to ignore your comments.”

  “Thank you, Your Honor,” Dan said.

  “And Mr. Andrews, please refrain from reminding your witnesses to pay attention and to answer the questions truthfully. All witnesses take an oath to tell the truth. It isn’t necessary for you to remind them.”

  Lee smiled at the judge and thanked him. As soon as Dan sat down, she headed for the podium.

  “Mr. Heller,” she said, “which events are easier to remember—those that just happened, or those that happened a long time ago?”

  “Um, those that just happened?”

  “Very good. Now, when you first approached the DA for a deal, you were in the Boulder County jail facing charges of second-degree burglary?”

  “Um, yeah.”

  “And that was back in December?”

  “I think so, yeah.”

  “And the party where Sam’s secret was di
scovered happened at the beginning of October?”

  “I think so, yeah.”

  “So when you first talked to the DA, the party had happened about two months earlier?”

  “Um, right.”

  “And in that first interview with the DA, which was taped, the DA asked if Jeremy was present at the party.”

  The witness glanced at Dan, who refused to make eye contact.

  “I’m not sure.”

  Lee pointed to a portable CD player Phil had set up on the defense table.

  “Do you need me to play the interview to refresh your memory?”

  “Um no, I think you’re right.”

  “So during that first interview in December, when the DA asked if Jeremy was present at the party, you said, ‘I don’t think so. I’m just not sure.’ ”

  “Right, I wasn’t sure.”

  A less experienced lawyer might have continued to belabor the difference, but Lee knew better. She spent the next hour discussing the witness’ lengthy criminal history and the deal he’d made with the DA: eight years community corrections instead of prison. After that, she jumped around, asking about the witness’ connections to the skinheads, his own hatred of homosexuals, how he survived by stealing, and what he knew about Sam, which wasn’t much.

  Finally, she closed her notebook. The rest would be easy.

  “So the truth is, you and Sam weren’t close?”

  “Um, not really, no.”

  “Not like Casey, Rab, and Johnny, who were your real friends?”

  “Yeah, I guess so.”

  “And yet you made a deal with the DA to rat them out?”

  The witness began rocking back and forth.

  “They’d already been arrested. They were going down anyway.”