Fool Me Twice

by Paul Levine

  She was shaking her head. I seem to have depressed her.

  Then she reached over and took a sip of my beer, leaving a faint impression of lipstick on the glass. It was the most intimate gesture she’d shared with me in years.

  “You know what Abe Socolow says about you?” she asked, sliding the beer in front of me.

  I wasn’t sure I wanted to know.

  “That you’re not as bad as most defense lawyers. Is that how you want to be known?”

  “Abe’s a good man. A bit rigid, haughty, and self-righteous, but what prosecutor isn’t?” I smiled and hoisted my diminishing beer in her direction.

  “You mean me, don’t you? You think I’m rigid and haughty.”

  “And self-righteous,” I added, in case she had forgotten.

  She seemed to think about it, little vertical lines creasing her forehead. If she didn’t dislike me so much, and if I wasn’t such an enlightened man of the nineties, I would have mentioned just how fetching she looked just now. Okay, if she didn’t dislike me so much, I would have mentioned it.

  “Maybe I am,” she admitted, “and maybe those aren’t such bad traits.”

  “I agree. They’re just what I’d look for in an executioner.”

  “And what about you? What are your character traits, Jake?”

  Her voice was growing softer. Was there a touch of wistfulness there or was I imagining it?

  “Me? I’m humble, honest, and congenial, not to mention sexy.

  She let the bait drift across the water. After a moment, she said, “We could have had something, Jake. We really could have.”

  “If only I’d been different, right?”

  “That’s your way of attacking me, isn’t it, Jake. You’re

  saying it was wrong of me to try and make something out of you.

  “No one can make anyone else anything,” I said. “I can’t make your brother into Albert Schweitzer, and you can’t make me…whatever it is you wanted me to be. I can’t live up to your schoolgirl image of me.”

  “Is that what you think it was?”

  “Yeah. I think if we’d met when you were older, maybe you would’ve been more realistic, a little less idealistic.”

  “You never knew how much I cared for you,” she said, her voice a whisper.

  “I thought I did. I thought I knew precisely how much.”

  “You’re being sarcastic, aren’t you? Well, you’re wrong. I loved you once.”

  Why did once sound so achingly long ago?

  There were a lot of things I wanted to say, and if I had twenty minutes or so, I could have come up with something meaningful and sensitive. Instead, I stood up, steady as a newborn calf on spindly legs. But I had nowhere to go, so I sat back down again, feeling foolish. I didn’t say a word, and in a moment, Mickey Cumello, the bartender, asked Ms. Josefina Jovita Baroso, prosecutor, judge, jury, and woman, if she’d care for a drink of her own.

  “Absolut Citron on the rocks, just a splash of soda,” she said.

  “Don’t have the Citron,” Mickey replied, politely, a clean white towel draped across a shoulder. He was a bartender of the old school, white shirt, black bow tie, hair combed straight back. “We have Absolut, and I could drop a twist into it.”

  Jo Jo wrinkled her mouth into a frown. “How about a San Pellegrino, no ice?”

  “Club soda okay?” Mickey asked, his eyes shifting to me. We both knew he had San Pellegrino, but he’s entitled to some fun, too.

  She shook her head. “Sodium. No can do.”

  Life can be so difficult.

  She started to ask about chardonnay by the glass, and I was still thinking about my possible reply to her belated professions of ardor, but just then the front door opened, letting in a blast of sunlight. Ernie Cartwright, the ninety-year-old bailiff, stood just inside the door, squinting in the darkness, calling my name.

  Chapter 3

  Honor Among Theives

  Waiting for a verdict, I try to think of anything but what is going on inside the jury room. I try to be philosophical. No use worrying. I’ve done everything I can do to win; now it’s up to six strangers to tell me whether I’m worth a damn.

  It works, too, until the knock on the door awakens the bailiff, who summons the judge, who sits forlornly in his chambers missing half the evening card at the jai alai fronton. The judge is either reading court files, or more likely, haggling on the phone with his bookie, mistress, or his cousin, the bail bondsman who kicks back a percentage of bond premiums.

  The judge orders the bailiff to retrieve the lawyers from the Gaslight Lounge where they are getting shitfaced, something the judge is precluded from doing either by the Canons of Judicial Ethics or his duodenal ulcer.

  When the bailiff comes calling, I tighten up. Helpless. In the game I used to play, you chased the butterflies by hitting someone. I did double duty on kickoff and receiving teams, so I was assured of physical contact and a grass stain within the first seven seconds or so.

  Now, there was no one to hit. I once let a witness slug me in court, just to prove his dangerous propensity and help my client, a doctor accused of killing his patient with a deadly drug. The best I could do now was to whack Blinky across the back and tell him to look innocent when the jury filed in.

  Riding up to the fourth floor, Blinky Baroso was silent and seemed a shade paler than an hour earlier. We were joined in the elevator by Blinky’s one-woman fan club. Nobody invited her along; she was just there.

  H. T. Patterson was already in the courtroom, pacing in front of the bench, hands clasped behind his back. He stood all of five six, and that’s including three-inch heels on his ostrich skin cowboy boots. I admired Patterson’s style, white linen suit and all, but I’ve always thought the dress code for lawyers should require sharkskin suits and rattlesnake boots.

  “Good luck, Jacob, and may Providence smile on you and all who are dear to you,” Patterson intoned. Before attending law school, Patterson had been a preacher at the Liberty City Baptist Church, and the singsong of his holy-rolling sermons stayed with him.

  “I’m not sure about Providence,” I replied, “but I’ll take a smile from number five.”

  “Ah, the lady bus driver. You seated her because she’s African American, and you still adhere to the old saw about minorities distrusting authority.”

  “Right.”

  “You left her on, despite the fact that she seemed to have an attitude.”

  “Right again. What are you trying to tell me?”

  “Only this, Jake. Throw out the book. Go with your instincts. She’s a woman who’s driven a million miles for Metro, and her hemorrhoids are flaring up.”

  “Hemorrhoids?”

  “Did you not notice the pillow she carries with her each day?”

  I hadn’t.

  “She works overtime to support her children. She has to deal on a daily basis with rude, tired, angry people who have lost their cars and maybe their homes. So we come into court with a pretty white boy who’s never done an honest day’s work and a fat con man who’d steal cookies from the Girl Scouts, and you expect her to be sympathetic. Black jurors will cut you a break if they think the cops did wrong, which is always the presumption in the ‘hood, but you got to remember this. Your black juror isn’t from the streets. She’s a registered voter or she wouldn’t have been called, and when you bring in some slippery white boys, you got trouble.”

  “So why’d you leave her on?” I asked.

  “‘Cause, Jake, my boy, in case you haven’t noticed, while I may be as bald as a cue ball, I’m as black as the eight ball. I was hoping for some home cookin’ from number five.”

  “And . . .”

  “And she scowled at me worse than at you. We both botched it with Mrs. Cherelle Washington. We bobbled, blundered, and bungled. We fumbled, faltered, and floundered. We looked deep inside ourselves and failed to see the light.”

  “Maybe we’ll get lucky. You do believe in luck, don’t you Henry Thackery?”
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  “Of course. How else can one explain his enemy’s successes?”

  I thought I’d heard that somewhere before and probably had. Lawyers are noted plagiarists.

  ***

  Our respective clients sat at opposite ends of the defense table, and I joined H. T. Patterson pacing in front of the bench. The clients watched us, probably wondering why H.T. and I acted as if we were on trial. I’m not sure why, but that’s the way it is.

  “Good luck, Kyle,” Blinky said, caught up in the spirit of the moment. Foxhole buddies, at least for now.

  Josefina Baroso sat in the front row of the otherwise deserted gallery. Her legs were crossed, her fine chin tilted upward, an enigmatic smile playing at her lips. I resented her regal presence. If this were ancient Rome, and we were gladiators, she would be casting thumbs down as a spear pressed against her brother’s throat.

  Abe Socolow walked calmly down the aisle, whispered something to Queen Josefina, and took his place at the prosecution table. He was one of these guys who never sweated. His shirt always stayed tucked into his pants, and his shoes never lost their shine. I was dying to get him in a headlock and give him a noogie.

  The back door banged open, and Judge Gold trundled in, his black robes flapping behind him. The clerk was in her place, and the stenographer sat hunched over her keyboard, stretching her neck. “Bring in the jury,” the judge ordered the bailiff.

  You try to read their faces. If they won’t look you in the eye, they’ve gone against you. That’s what old lawyers will tell you over a dry martini at the Gaslight. As with most courtroom wisdom about verdicts, they’re right fifty percent of the time.

  These jurors were all over the place. A couple studied their shoes. A couple were clutching their thin sweaters, protection against the spastic air-conditioning that could drip warm water one moment and freeze sides of beef the next. Mrs. Cherelle Washington shot a look at Socolow, then me, then stopped her gaze on H. T. Patterson. She seemed angry with all of us.

  “Who do you think’s the foreman?” Blinky asked.

  “The shark hunter,” I guessed, straining unsuccessfully to see who was holding the two sheets of paper on which was written the fate of Messrs. Baroso and Hornback.

  “Has the jury reached its verdicts?” Judge Gold asked, in properly senatorial tones.

  Mrs. Washington stood up.

  Oh shit.

  “We have, Your Honor,” she said, holding out the verdict forms to the wheezing bailiff, who carried them to Rosa Suarez, the clerk.

  “Thank you, Madam Foreperson,” the judge said. He studied the forms and seemed to grimace, but it could have been stomach gas. “The clerk will publish the verdicts,” he announced, handing the forms to Rosa Suarez, who stood with an air of self-importance.

  Rosa Suarez’s uncle was a county commissioner, and her entire family—mother, father, three brothers, and a sister— held county jobs. If you needed a gator removed from a backyard canal or a new water meter on your house, chances are a Suarez would sign the paperwork. Rosa Suarez touched a hand to a silver barrette pinning back her dark hair and began reading in a bored voice: “In the Eleventh Judicial Circuit, in and for Dade County, Florida, Criminal Division, Case Number Ninety-four, Thirteen, Twenty-one, State of Florida versus Louis Xavier Baroso, we, the jury, find the defendant, Louis Xavier Baroso, not guilty on all counts. So say we all.”

  All right! That jolt of exhilaration, the momentary joy of victory. It always fades so quickly, I wanted to savor it.

  Next to me, Blinky sighed and grabbed my hand with a sweaty, hearty shake. Rosa Suarez cleared her throat: “In the Eleventh Judicial Circuit, in and for Dade County, Florida, Criminal Division, Case Number Ninety-four, Thirteen, Twenty-two, State of Florida versus Kyle Lynn Hornback, we, the jury, find the defendant Kyle Lynn Hornback not guilty on counts one, three, and four ...”

  Uh-oh.

  “...and guilty on count two, fraud, in violation of Section 817.29 of the Florida statutes. So say we all.”

  Hornback’s hand slammed the defense table. “What the fuck!”

  Socolow shook his head. He wanted Baroso; Hornback was just along for the ride.

  I thumbed through the indictment, trying to figure it out. Not guilty of grand larceny, not guilty of racketeering, not guilty of a scheme to defraud, but guilty of common law gross fraud. It’s an 1868 law that prohibits “cheating” and sits in the musty tomes next to the statute that forbids cutting off the head of sheep before they’re dressed. Just goes to show why prosecutors charge everything in the book. Throw enough mud on the wall, some will stick.

  H. T. Patterson didn’t flinch. “Your Honor, we ask that the jury be polled.”

  “Very well,” Judge Gold said, nodding judiciously, and turning toward the jury box. “The clerk has just read your verdict in which you have found Mr. Hornback guilty of gross fraud as alleged in count two of the indictment. Is that your verdict, so say you all?”

  “You all,” chimed the tattoo artist and the body piercer in perfect harmony.

  The judge rolled his eyes to the heavens. “Maybe we better do this individually.”

  It took another couple of minutes, but each juror affirmed the verdict. The judge finished by thanking the jurors for their patience and wisdom, then handed out certificates attesting to the splendid performance of their civic duties. He told Blinky he was a free man and postponed sentencing for Hornback, pending a presentence investigation of his background. Over Socolow’s objections, he allowed Hornback to remain free on bond until the sentencing date. The jurors filed out of the courtroom, and the judge ducked out the back door. The stenographer folded up her machine, cracked her knuckles, and left. The clerk gathered up loose papers, stuffed them in a file, and followed.

  Abe Socolow packed his briefcase, stopped by the defense table, gave me a friendly pop on the shoulder, and said, “Go figure, huh, Jake?” That was as close to a compliment as I would get.

  “I figure it was a compromise,” I told him. “Some wanted to acquit them both, some wanted to convict them both. You made Hornback look bad on cross, and they remembered that. Blinky never testified, so the lingering image was Hornback fidgeting on the stand. Just reinforces my long-standing rule against letting defendants testify.”

  Socolow smiled grimly. “You mean letting guilty defendants testify.”

  “Let’s just say I don’t want a client to testify if he’s subject to impeachment on cross.”

  “You got a way with words,” Socolow said, hoisting his briefcase toward the door.

  The rest of us sat there, the four horsemen of the defense, H. T. Patterson and his unhappy client, Blinky Baroso and little old me.

  “I don’t believe this shit.” It was Hornback, his handsome face flushed. He got to his feet and was leaning over Blinky. “You owe me, man. You coulda gotten me off if you’d pleaded out.

  “Kyle, Kyle baby,” Blinky said, in the same soothing voice I imagined he used when selling swampland to rubes from the Midwest. “You know I couldn’t do that. I’m on probation. I woulda done time.”

  It was true. Two years ago, Blinky was convicted in the Dumpster Diver scam. Police found him up to his elbows in trash behind a rental car agency near the airport. One good dive, and he could come up with a dozen discarded rental contracts complete with credit card numbers. Then he’d order stereos, televisions, and battery-powered dildos from home shopping networks.

  Hornback raised his voice. “Yeah, well maybe you’ll still do time if I cut a deal.” He swung to face his lawyer. “How ‘bout it, Mr. Patterson? You think the prosecutor still wants to talk?”

  H.T. placed a calming hand on his client’s arm. “I, too, am confounded and confused. However, now is not the time to discuss such weighty matters. After a good night’s sleep, we’ll pursue every avenue, explore every venue ...”

  “Climb every mountain,” I added, helpfully.

  “It’ll be okay, Kyle,” Blinky said. “I’ll take responsibility.”
r />   Hornback snorted a mirthless laugh. “Yeah, will you do my time?”

  “Kyle, we stand together. That was the plan.”

  “Me getting convicted was not the plan. You said we’d both be acquitted or only you would be convicted. You never said nothing about this.”

  Blinky shrugged. “I didn’t think it would turn out this way. Did you, Counselor?”

  I shook my head. “You can never tell with a jury.”

  “Well, I can tell you one thing,” Kyle Hornback said, his face hardening. “I get time, I’ve got some things to say to the state attorney. I got stories to tell. I got—”

  “Kyle, that’s enough!” Blinky tried to look tough. It didn’t work.

  “I’ll tell them about the tunnels in the mountains and what’s in them, and what’s not,” Hornback said, his voice rising. “You sold stock across state lines, so it’s federal. They’ll send you to Marion where some hard cases will pass you around like a volleyball.”

  “It’s a perfectly legitimate venture, and you don’t know anything about it,” Blinky announced with such conviction and a flapping of eyelashes I was sure he told two lies in one sentence.

  “I see there’s no honor among thieves,” Josefina Jovita Baroso said, sneaking up behind us, the same way she did in the Gaslight. She turned to me. “I suppose I should congratulate you, Jake. You hoodwinked the jury, so they convicted the lesser of two evils. That is the hallmark of the defense lawyer, is it not, to obfuscate the facts until the jury can only guess?”

  “Funny, I thought my job was to force the state to prove its case. Abe didn’t do it, so your brother goes free. That’s the way the game is played.”

  “That’s what it is to you, isn’t it, a game?”

  “Sure, it’s got rules, like any other game. You can’t bang into the receiver when the ball’s in the air. You can’t admit hearsay, even if it’s the truth.”