Dead Certain: A Novel

by Adam Mitzner

  I flip through the pages. “What’s the second half going to be about?”

  “The older sister. She’s going to solve the crime.”

  “Of course she will. But aren’t you afraid the murderer will slip town while you’re writing the second half?” I say in my snarkiest tone.

  “Spoken like a true lawyer,” she says with a laugh.

  I’m sure she didn’t mean it as a rebuke. After all, I am a lawyer. Still, it stings. A bit of self-loathing on my part.

  “This moment requires memorialization.” I say, pulling out my phone. “Smile, Char-bar.”

  She wipes her eyes again and then flashes her smile. The frozen image on my phone captures my sister perfectly. A woman on the verge of greatness.

  I turn my phone to show it to her. “This is the shot you’ll use on the book jacket.”

  The server arrives to take our orders. A salad for me, and what I wished I’d ordered for Charlotte—grilled Swiss on rye and french fries. The moment he leaves us, my ringtone sounds.

  “Work,” I say, not wanting to tell her that it’s actually our father. “Yes. Yes. I can do that.” I pull the phone away from my ear to check the time. “It’ll take me forty minutes or so to get back, but I’m leaving now . . . Okay . . . Bye.”

  I tuck away the phone. “Sorry. Duty calls. I have to get back to the office.”

  “Your boss sounds like a real piece of work,” she says with a knowing grin.

  “You don’t know the half of it. I’m really sorry I can’t stay for lunch. Do you mind canceling my order?”

  “Sure. And I’m sorry too that you have to leave, but I get it. We can’t all live lives of leisure. I’m really glad you came up here, though. I wanted you to be the first person I told. Call me as soon as you’ve read it, okay?”

  “I will.”

  “Promise?”

  “Yes, I promise.”

  “Oh, and don’t tell Dad, okay? I want to tell him myself.”

  “I promise that too.”

  I’ve never broken a promise to Charlotte. Not once in my entire life.

  But this time I don’t keep my word.

  On either score.

  2.

  Although my father is not quite a household name, he’s plenty famous in households that have a lawyer in the family. It’s not an overstatement to say that he’s universally regarded as the guy you go to when money is no object and you’re up to your eyeballs in criminal sewage.

  He’s often asked to speak at law schools. When he does, he always starts with the same story. He usually says it happened when he was in kindergarten, although I’ve heard iterations where he’s in first grade, and sometimes as old as a fifth grader. It’s career day, and the teacher is going around the room asking the kids what they want to be when they grow up. By the time they get to my father, nearly every boy has laid claim to being a future athlete of some type, the girls actresses or singers.

  When it’s my father’s turn, he announces that he dreams of someday becoming a garbageman. The disclosure gives rise to snickers among his classmates, and the teacher is horrified that such an intelligent child aspires to a career in waste management.

  “Why do you want to be a garbageman, Francis?” the teacher asks.

  My father now goes by “Clint,” but as a child he went by Francis—the F in F. Clinton Broden.

  “Because it would be fun to get all dirty and hang off the back of the truck,” my father claims he replied to the teacher. In his retelling, this never fails to evoke laughter from his law-student audience.

  “Well, you can’t be a garbageman, Francis. Pick something else,” the teacher scolds.

  “Then I want to be a lawyer,” says my father. “Because you get paid to fight with people.”

  The law students tend to laugh even louder at this, but my father is not joking. He absolutely loves the fight.

  I suspect he’s summoned me back to the office to gird for a new battle. When I arrive, I’m greeted by Ashleigh, the firm’s receptionist.

  “He’s in his office,” she says.

  I like Ashleigh and she certainly seems competent, but she looks like a stripper. Teased-up blonde hair, a chest that makes you wonder how she doesn’t tip over, and spindly legs. I would have thought that my father would be sensitive to the impression she makes on clients. Then again, maybe that’s something his clients—who are virtually all male—like.

  My father’s office is, of course, in the corner. Because we are on the fifty-seventh floor, the view captures the entire city to the north and west. My father once told me that he chose to go into criminal defense rather than civil law because clients facing jail time are happy to pay through the nose in the hope that they can buy their freedom. His office shows that he was correct. It’s almost as large as my entire apartment and more opulently appointed than any five-star hotel.

  “So nice to see you, Ella,” he says when I enter.

  The undertone of sarcasm is hardly even an undertone. My father’s passive-aggressiveness, front and center.

  I could have told him that I’d gone to have lunch with Charlotte and still kept her news a secret, but I learned long ago to deal with my father the way he advises clients to act with prosecutors—by saying as little as possible. My father is probably the world’s foremost cross-examiner, and he does not restrict his talents to the courtroom. He has an almost preternatural ability to detect not only lies, but even half-truths and meaningful omissions. Yet like any state-of-the-art detection device, his powers only work when they’re turned on. For much of my life, my father’s interest in me has been stuck in the “Off” position. Still, I’ve always adopted a less-is-more approach when providing him with information about me or Charlotte.

  “Am I not allowed to take a lunch hour now?”

  “Not when I need you.”

  He says this with a smile, but that only reinforces that he’s deadly serious. My father is well aware that he calls the shots with everyone, especially his daughters. Correction—me. Charlotte is too strong-willed, which is why she’s a writer and not a lawyer.

  I take a seat in one of the many guest chairs opposite my father’s desk. “So, what’s the emergency?”

  “It’s about Garkov,” he says.

  Nicolai Garkov is my father’s marquee client of the moment. Garkov is . . . There’s no delicate way to put this. He’s a terrorist and a murderer. The Red Square Massacre is his crowning achievement, if you measure such things by body count. My father has been retained to defend him in connection with charges relating to money laundering, which, ironically enough, is the only unlawful act for which Garkov has been indicted. If you believe my father, it’s also the one crime of which he is innocent.

  The defense strategy for Garkov from day one has been to delay, delay, delay. My father boasted back then that it would be four years before Garkov saw the inside of a courtroom. I thought he was being hyperbolic, but he’s kept Garkov from his day of reckoning for nearly five.

  The string appears to be finally played out, however. At the last pretrial conference, Judge Koletsky told my father that he’d had enough. “Come hell or high water,” the judge said, “we’re going to start this trial next week.” And then, as if that weren’t clear enough, he added, “And if it’s high water then you all better bring wet suits, because we’re still picking a jury.”

  “Okay . . .” I say in a noncommittal tone.

  “I’m thinking of putting Garkov on the stand. He’s got a story he can tell to defend himself.” My father pauses and then clarifies, “On the money-laundering charges, at least.”

  Most criminal defense lawyers keep their clients off the stand. The conventional wisdom is that, once the defendant testifies, the jury’s verdict is a referendum on that testimony. If they believe him, they acquit; if not, they convict. And that means that reasonable doubt—the defendant’s ace in the hole—becomes irrelevant. My father is one of the few criminal defense attorneys of the first rank who disagrees,
and I stand with him on that issue. When I was prosecuting, I always knew I had a winner when the defense rested without the defendant telling his story.

  “The problem is,” my father continues, “I’m worried that they’ll get into Red Square on cross.”

  My father never calls it the Red Square Massacre, which is how it’s referred to in all other circles. For him it’s just Red Square. The place, not the murders.

  I’ve heard my father say on many occasions that there are only three circumstances in which a defense lawyer should not put his client on the stand. The first is if the client has admitted guilt. In that case, allowing the client to testify to his innocence violates ethical rules and crosses the line into suborning perjury. The second is when the testimony to be proffered is so preposterous that no juror will buy a word of it. Neither scenario applies very often. That’s because most clients swear their innocence—even to their lawyers—and are usually adept enough liars that their stories have at least a whiff of believability.

  It’s the third reason that comes up most often: the client has a criminal record. Once the jury learns that the defendant is a convicted felon, it votes to convict nine times out of ten.

  It’s a quirk in the law of evidence that prior bad acts—including prior criminal convictions—are normally inadmissible at trial. The theory is, if you’ve been previously convicted of a crime, with limited exceptions, that conviction is irrelevant to your guilt or innocence in relation to the pending charges. However, if a defendant testifies, the prosecutor can tell the jury about the defendant’s prior convictions—not to show the defendant’s proclivity to commit crime, but because the law views a felony conviction as probative that the perpetrator’s testimony might be untruthful. In other words, the jury can’t assume that because the defendant committed a prior crime he’s guilty as charged, but they are allowed to make the logical deduction that because he’s a convicted felon, he might be lying when he says he’s innocent.

  Like I said, it’s a quirky thing and makes no logical sense. But the bottom line is, if your client has a prior criminal conviction, you keep him off the stand.

  Garkov has not been indicted for the Red Square Massacre, however. The official law-enforcement position is that he remains a person of interest and that the crime is still under investigation. Nevertheless, I’m quite certain the prosecution will argue that Garkov’s role as a terrorist is an integral part of the motive behind the money-laundering charges for which he stands accused—the reason why he had to move money surreptitiously. And if Judge Koletsky buys it, evidence about the Red Square Massacre comes in whether Garkov testifies or not.

  “Why don’t you make a motion in limine?” I suggest.

  A motion in limine is a pretrial request to preclude certain evidence. You ask the judge ahead of time to rule that certain evidence cannot be presented to the jury, so you know how to prepare your case.

  “Already did,” my father says. “More than a month ago. Judge Koletsky hasn’t ruled on it yet. Knowing him, he may not rule until well after the trial begins. If I’m going to have Garkov testify, I want to tell the jury about it during my opening—it keeps them from coming to any conclusions when the prosecution makes its case because they know they’re going to hear the other side. But if I promise Garkov’s testimony and then Koletsky rules that Red Square is fair game, I can’t put Garkov on the stand. The jury will hold it against him that I didn’t deliver on my promise.”

  Garkov is not one of my cases. By the time I joined my father’s firm three months ago, too much had happened for me to get up to speed in time for trial. I was tasked instead with minding my father’s other clients for the two months or so that he would be trying to persuade a jury to let Garkov go free.

  It’s not uncommon for my father to share his legal strategies about Garkov, or use me as a sounding board. But I get the distinct impression that something different is in play. The fact that he’s now silent is the biggest tip-off. He most definitely has an agenda.

  “Are you asking me what I’d do?” I finally say.

  “Not exactly . . . you told me a while back you have a law-school friend who works in Judge Koletsky’s chambers, right?”

  For the umpteenth time, I regret having shared that bit of information. My friend Abby Doft does not merely work in Judge Koletsky’s chambers, she’s his head law clerk. She had been a paralegal in the DA’s office back when I started there, and we kept in touch when she went to law school. She graduated two years ago, and I actually wrote one of the letters of recommendation that got her the clerkship, even though I told her at the time that my father had a particularly notorious case pending before Judge Koletsky and warned her that a Broden singing her praises might be seen as a negative.

  “Right,” I say. “But I told you from the start that I’m not going to talk to Abby about the case.”

  “Not about the case, Ella. About getting Koletsky off his octogenarian ass so he rules on the goddamn motion. I frankly don’t care which way he decides, just so long as he does it before opening statements.”

  The oldest lie in the book. Like when you’re waiting to hear your medical test results and you tell people that the uncertainty is the worst part. Same thing here. The substance of Koletsky’s ruling matters much more than the timing.

  “Why don’t you tell him that yourself, then?”

  “Ella . . . Believe me, I respect your ethics. I would never ask you to do anything to compromise them. But I’m not asking for help in the case. I’m asking you to see if that motion can be pushed to the top of Koletsky’s to-do list. That’s all.”

  I’ve always found it difficult to say no to my father. That’s probably the biggest difference between Charlotte and me—and in some ways, it’s made all the difference.

  3.

  Before joining my father at the Law Offices of F. Clinton Broden, I was an Assistant District Attorney in Manhattan for six years, rising to become the deputy chief of the Special Victims Bureau. Three months in, I’m still not completely comfortable at my father’s firm. Putting away the bad guys was far more satisfying than defending them.

  My office in the private sector is actually smaller than the one I worked out of at the DA’s office. This one is nicer, though. Views that go for miles and expensive built-ins. My high-back, ergonomic leather desk chair cost more than three grand. The computer is also a step up. My desktop at the DA’s office was forever buffering, but my new PC fires up as fast as lightning.

  I still haven’t put anything on the walls. I wanted to hang a plaque the District Attorney gave me for outstanding service, but my father suggested that I not seem too beholden to my former employer. “It’s one thing,” he said, “to tout to clients that you know the enemy’s secrets; it’s quite another to indicate that you actually enjoyed the time you spent behind enemy lines.”

  My father offered to move the Miró that hangs in the hallway to my office, but I declined. I told him that I wanted the space to reflect my personality, and I’d figure something out soon enough. For the last three months, however, my personality has been a blank slate.

  Home is a one-bedroom, third-floor walk-up in a Greenwich Village brownstone. I realize that sounds depressing to non–New Yorkers, but it’s actually considered to be desirable housing. Up until four months ago, I shared the apartment with my boyfriend, Jeffrey. He lived here before we met and after dating for a year we decided that paying two rents made no sense, so I moved in. That was two years ago.

  Jeffrey is a lawyer at Lowell and Pike, one of those megafirms with more than eight hundred lawyers in New York and offices in every major city in the world. He’s a tenth-year associate, which means he’s been passed over for partner once and this year is his last shot at that Holy Grail. If he doesn’t make it, he’ll end up in the lawyer-purgatory known as “of counsel” and watch more junior lawyers—lawyers he now commands to give up their weekend plans or work all-nighters—become partners, and thereby gain the authority to boss him a
round.

  Four months ago, Jeffrey came home and matter-of-factly told me that he owed it to himself to give his full-time attention to making partner. I tried not to laugh. Ever since we’d started dating, he’d made it quite clear in word and deed that I took a backseat to that quest. Apparently he’d decided that more drastic measures were required than merely working ninety-hour weeks, because the next day he moved to a furnished studio apartment a block from his office. He left behind virtually all his worldly possessions aside from his clothing.

  Jeffrey was the latest in a long line of decisions I’d made about my life because they seemed right on paper. I never met a single person who didn’t think Jeffrey and I were perfect for each other. He’s handsome, but not so much that I worried about his fidelity, and the kind of person the phrase “smartest guy in the room” was coined to describe.

  But even in the early days, I knew that I didn’t feel the head-over-heels passion for him that I’d always craved. What I had instead was a talent for convincing myself that lacking a little spark didn’t matter because Jeffrey possessed so many other important attributes. Deep down, of course, I knew it was a lie. When he told me it was over, I felt relieved more than anything.

  Even before Jeffrey left, I’d already begun thinking about my next professional act. Most Assistant District Attorneys cash out after three or four years, as soon as they’ve tried enough cases that headhunters representing Wall Street law firms and investment banks start calling with offers to triple their salaries. The true believers—like me—stay longer, eventually moving to a supervisory role because the grind of trying a case every few months is brutal. But life as a supervisor is like being a shark—you either constantly move ahead or you die. And I had stopped moving. My ex-boss at the Special Victims Bureau was a lifer like me, which meant that becoming bureau chief of Special Vics wasn’t going to happen for me for another ten years, minimum. I saw no other division that I would be a natural fit to lead, and even if I did want to go to General Crimes or Forfeiture, deputy chiefs in those groups were already waiting in the wings.