The Last Trial (McMurtrie and Drake Legal Thrillers Book 3)

by Robert Bailey

  “Yes. When y’all were still living in Nashville, me and Nana came up one weekend and watched Brother’s T-ball game.”

  “Was that the only time?”

  Tom felt an ache in his chest as he looked into the child’s eyes. He nodded. “Yeah, that was the only time.”

  “Did she go up to heaven after that?”

  Tom blinked his eyes, feeling the heat behind them, and he forced himself to look back at the ball field, seeing Jackson bend his knees as the pitcher threw the opening pitch of the inning. When he and Julie had made the trek to Nashville, she had been going through treatment for breast cancer. It was March of 2007. She would die a month later.

  “It wasn’t much longer,” he said.

  Tom felt the little girl’s tiny hand touch his own, and he squeezed her sticky fingers as he looked at her. “I’m sorry I made you sad, Papa.”

  He pinched her nose again, relishing the sound of her laughter. “You could never make me sad, honey,” he said, feeling the vibration of his cell phone again. As he watched her bounce back toward the bleachers, Tom threw the remains of his drink and popcorn in the trash and reluctantly pulled out the mobile. He started to enter his security code—1961—but as he clicked the last digit he heard the crack of the bat from home plate. His eyes shot up and he saw the ball traveling toward centerfield. Tom’s body tensed as he watched Jackson. The boy’s first instinct was to step back with his right foot. Then, after a half second’s hesitation, he sprinted in and caught the ball on the run, flipping it to the second baseman before returning to his position. He looked at his grandfather for approval, and Tom gave him a fist pump. “That a boy, Forty-Nine!” he yelled, feeling his chest swell with pride.

  By the time his eyes returned to the phone, the screen had turned dark and he had to reenter his code. When he did, he saw that the text was from Powell Conrad, his former student and the district attorney for Tuscaloosa County. Tom opened the message and read it.

  Professor, you may have already heard, but if not, I thought you should know. Jack Willistone was murdered last night. I’m sorry to bother you, but I need to talk with you about the suspect we have in custody. I’ll be working for several more hours, so feel free to call me any time tonight. Otherwise, let’s talk tomorrow.

  “Jack Willistone.” Tom whispered the name out loud, feeling his breath catch in his throat.

  “What did you say, Papa?”

  Tom glanced down and saw that Jenny had returned from the bleachers and was again standing right below him. Her lips curled into a strawberry-tinged smile. “Who is Jack Willy . . . stone?” She cocked her head up at him, and Tom realized that his entire body had tensed. The girl’s eyes widened and she looked scared. “Is he bad?” she whispered.

  Tom kneeled and looked his granddaughter in her crystal blues. “Yes, he was a bad man, but . . .” Tom paused, not wanting to upset the child with talk of death but still coming to grips with the news himself. “He can’t hurt anyone anymore.”

  “Why not?”

  Despite the goose flesh he felt on his forearms, Tom managed a smile. Five years old and she already took a better deposition than him. “He’s gone away,” Tom said, standing up and turning his attention back to the field. “Far away.”

  After the game, Tom took Jackson and Jenny to the Mellow Mushroom for a Mighty Meaty pizza. Then he brought them to their home in Jones Valley, a series of neighborhoods and streets bustling with young families and older couples that all buttressed the Jones Farm, a beautiful thousand-acre spread cut right in the middle of Huntsville. As he pulled into the driveway, he saw his daughter-in-law, Nancy, walking out of the garage. Once he cut the ignition, Jackson and Jenny ran to their mother, and Tom followed behind. As the kids huddled below her, each trying to get her attention, Tom leaned over them and gave Nancy a peck on the cheek. Then he glanced down at her growing abdomen. “You look great, girl. Remind me again when there’s gonna be another McMurtrie running around here.”

  “December 1 is the due date,” Nancy said, placing her hands over her stomach and looking down at Jackson and Jenny. “But since these two both came early, I bet we have a baby by Thanksgiving.”

  Tom smiled, but it was hard not to feel a twinge of sadness that Julie would never see this grandchild. But sadness, as Tom well knew, was a part of life. He had been reminded of this truth all too well during the first few months of the year.

  “When are you heading back to Tuscaloosa?” Nancy asked after she and the kids had walked with Tom back to his car.

  He glanced up at the moon through the ever-increasing clouds in the sky. “I have a hearing tomorrow morning, so . . .” He trailed off, and he could hear the reluctance in his voice. It was getting harder and harder to go back. “I’ll sleep at the farm tonight and get a fresh start at first light.”

  Nancy took a step closer and spoke in a low voice. “How is your partner doing? Is he back yet?”

  Tom shook his head and gazed down at the cobblestone driveway. He had called Rick several times during the week, but there had been no answer. “Not yet.”

  “I can’t imagine what he’s going through,” Nancy said, frowning. “Is his girlfriend still working for the firm?”

  “No,” Tom said. “And Dawn’s not his girlfriend anymore. They broke things off about a week before the accident. It’s . . . a complicated situation.” Tom swept his foot over loose gravel, not knowing what else to say. That had been a common theme this year. Even for someone like him, who’d made his living with words as both a lawyer and teacher, there were times when nothing could be said that would help or explain a situation.

  Nancy touched his arm. “Tom, you can’t be running that firm by yourself. Didn’t Dr. Davis tell you that you needed to retire from trial work after Pulaski?”

  Tom smiled. Bill Davis was Tom’s urologist, his pseudo–family doctor, and most importantly, one of his oldest friends. Twenty-eight months ago, Bill had diagnosed Tom with bladder cancer after he had noticed blood in his urine. Two surgeries and six rounds of chemotherapy later, Tom was deemed to be in remission, but he would need to be scoped every six months to make sure no masses had come back. Tom’s last bladder cystoscopy was three weeks ago, and it was clean as a whistle. During the office visit afterwards, Bill had instructed Tom in no uncertain terms that he had to walk away from the courtroom. Bill himself had semiretired from private practice, telling Tom that he was only working on call at the hospital once a month and only treating patients in the office who had been with him since Lyndon Baines Johnson was president. Tom had laughed, since he knew that the only patient Bill had who was still alive and had been seeing him since LBJ roamed the White House was himself. “Tom, it’s time for us to dust off our golf clubs and leave the jury trials and gall bladder surgeries to the youngsters.” Tom had laughed again, but Bill’s face had turned grave. “Seriously, old man. That ruckus in Pulaski nearly killed you. I’m afraid that the next trial will.”

  “Tom.” Nancy’s voice broke through his reflections and he looked down into her concerned eyes. “Didn’t Dr.—?”

  “Yes,” Tom interrupted. “He did. Look, Rick will be back soon. He just needs some time, and I can handle things while he’s gone.”

  Nancy started to say something else, but Jackson’s excited voice mercifully interrupted her.

  “Hey, Papa. I have another game next Friday night. It’s against Bankowski. They have the best record in the league.”

  Tom ruffled the boy’s thick brown hair. “Unless I’m in court late that day, I’ll be there, Forty-Nine.”

  Jackson smiled, showing off a small gap in his front teeth. The boy would probably have braces soon.

  “Thanks for my slow cones, Papa.” Jenny had grabbed his hand with both of hers, which weren’t sticky anymore after she washed them at the restaurant. He picked the child up and kissed both cheeks. “Anytime, Jenny girl.” As he placed her down on the cobblestone driveway, he winced as another shot of pain ran down his back.


  Glancing at Nancy, he saw her smile change to admonishment. “Did you not get it x-rayed?”

  Tom didn’t immediately answer. He was growing frustrated at the motherly way in which his daughter-in-law was treating him but didn’t want to end the night in a bad way. Finally, he sighed and smiled down at her. “Tell Tommy I’m sorry I missed him and that I’ll come by for an X-ray next trip or I’ll get Bill to do it. With the funeral and all, I just couldn’t fit it in this time.”

  She started to protest but then leaned in and pecked his cheek. “Tommy hated that he was swamped with procedures this week. But with his partners both out—”

  “He’s an orthopedic surgeon,” Tom said, feeling his chest swell. “He was doing his job, and I’m proud of him for it.” Then he moved his eyes from Nancy down to Jackson and, finally, little Jenny. “Love y’all.”

  The harmonious “Love you, Papa” was drowned out by the door to the Explorer slamming shut as Tom climbed in and turned the ignition.

  As he backed out, he waved at the three and watched as Jackson ran down the driveway to check the mailbox, giving Tom one last gap-toothed smile before he opened the slot. Tom smiled back and waited until the boy had disappeared into the garage before he put the car in gear.

  By the time he reached the end of the street, the sadness had set back in.

  6

  At 9:55 a.m. the next morning, Tom rode the elevator to the second floor of the Tuscaloosa County Courthouse with a bustle of other attorneys all going to the same place: Judge Poe’s status docket. He had heard these hearings referred to as “cattle calls,” and the name fit. As he and the other suited-up warriors poured into the courtroom, it was hard for a farmer’s son like Tom not to think of cattle being herded into a pen.

  Tom sidestepped and elbowed his way toward the front, nodding and exchanging pleasantries with numerous former students along the way. “Mornin’, Professor.” “How you doing, Professor?” “Whatcha got today, Professor?” Tom replied to every inquiry, proud to see faces that he’d once instructed in class now engaged in real-life litigation.

  He took a seat in the second row of the gallery next to one of the only lawyers in the courtroom older than he was. “Well, look what the cat dragged in,” the other man said, standing and extending his hand.

  Tom smiled and shook hands. “Rufus, what brings you to Tuscaloosa?”

  William Rufus Cole was the oldest board member of the University of Alabama School of Law and the founding partner of Cole & Cole, a family-run law firm in Choctaw County, a good two hours away. Rufus liked to brag that there had been a Cole practicing law in Alabama since the turn of the century. He and Tom had been friends and colleagues for over four decades, and when Tom was a professor at the law school, he considered Rufus his strongest ally on the board. Rufus grimaced and nodded toward the bench. “I sent my son to cover the last docket with this ornery son of a bitch, and little Rufus got dressed down and lost a motion we should have won. This is our only case in Tuscaloosa County, and it’s a big one. A father and son from Butler were coming back from the Arkansas game last year and got T-boned at the intersection of Skyland and McFarland. Dad dead and son paralyzed for life. So from here on out, Poe gets to see my ugly mug.” Rufus paused and smacked his lips. As the bailiff entered the courtroom with the judge right on his heels, Tom and Rufus remained standing as the familiar words rang out over the courtroom: “ALL RISE.”

  Tom took his seat and heard hot breath whispering in his ear. “You know, I used to think that son of a bitch just had it in for young lawyers,” Rufus said.

  “And now?” Tom raised his eyebrows at his old friend, and Rufus gazed up at the bench.

  “Now, I just think he hates everyone.”

  The Honorable Braxton Winfield Poe was a short, round man of sixty, who for as long as Tom had known him, which was over thirty years, had had a full head of silver hair cut in a military-style crew cut. Even when Poe was one of Tom’s first Evidence students in the early ’70s, his hair was already prematurely gray and always trimmed like a Marine’s. He wore bifocals that rested on the tip of his nose, and his raspy, cigarette-scarred voice was a consistent mixture of irritation and impatience that bordered on contempt. He had the habit of calling all attorneys under forty “young lawyer,” and it wasn’t a term of endearment. Being older than the man, Tom himself had never endured one of Poe’s “young lawyer” tantrums, but he’d heard former students tell war stories about being dressed down in much the same way Rufus’s son had been.

  The judge peered over the bench with cold, dead eyes. “I’m going to call your case, and if it is ready for trial, you say ‘Trial.’ If it’s not ready, say ‘Pass.’ If you have a motion you want me to rule on, then ask to approach and I’ll consider it, but let me warn you that I don’t like having the court’s time wasted with pissant discovery disputes that you should be able to work out on your own.” He paused and cleared his throat. “If you say the case is ready for trial, then I’m going to set a trial date, but I’m also going to enter an order for mediation. I don’t want to hear your whining about how your case has no chance to settle. All civil suits filed in this courtroom go to mediation. Now . . .” He snatched a stapled stack of paper, which Tom knew was the docket showing the list of cases, and peered down at it through his spectacles. “Atkins v. Brewer.”

  A female attorney in the row in front of Tom stood up. “P-pass, Judge.”

  “Speak up, young lawyer. I can’t hear you.”

  “Pass, Judge.”

  “Beech v. Reynolds.”

  A high-pitched male voice in the back rang out. “Pass, Judge.”

  Tom wondered how many clients from all over the state would be paying thousands of dollars in billable hours for their lawyer or, God forbid, lawyers to drive to Tuscaloosa and say two words. He forced back a smirk as he eyed Braxton Poe. This was the part of the practice of law that Tom could do without, and, unfortunately, he was seeing more and more of it with his partner out of the office.

  For the next forty-five minutes, over a hundred cases were called, with the majority response being “Pass” and only a handful of attorneys saying “Trial.”

  Tom didn’t want his matter to be the first one up for motion, but alas, as he heard Poe’s raspy voice call out “Simpson v. JPS Van Lines,” Tom winced and stood from his seat. When he did, a shot of pain ran down his back all the way to his leg, which he realized was half-asleep. “Judge, we’re ready for trial, but we also have a pending motion. May we approach?”

  Poe glared at Tom from his perch on the bench and sighed loud enough for everyone in the courtroom to hear. “Alright then,” he said, motioning with a quick flick of his right index finger for the attorneys to come forward.

  Tom walked toward the front of the courtroom and placed his briefcase on one of the counsel tables. By this point in the docket, the tables were vacant, as the previously packed courtroom was now less than a quarter full. Before addressing the court, he waited for opposing counsel.

  Jameson Tyler, attorney for JPS Van Lines, strode toward the front with two young associates flanking him. At almost fifty years old, Jameson was the managing partner of Jones & Butler, the largest law firm in the state of Alabama. He wore a charcoal-gray suit, white shirt, and red power tie and broke into a toothy grin as he extended his hand. “Professor, how are you doing?”

  “Jameson,” Tom said, nodding at the man and grasping his hand in a firm grip. “Did you bring some reinforcements today?” Tom smiled at the two lawyers behind Jameson. Annie Gipson had been on one of Tom’s last trial teams at Alabama, and Coulter Bowman had been in two of his Evidence classes. They both offered their hands and gave him a nervous smile.

  “I always like to have some muscle with me when I’m dealing with you,” Jameson said, slapping Tom on the back as he brushed past him toward the bench.

  Tom gasped as a shot of pain radiated down his shoulder.

  “Are you OK, Professor?” Annie asked, touching his arm. Her
ebony face softened and her brown eyes registered concern.

  “I’m fine, Annie,” he managed, gritting his teeth. “Just old.” Tom forced a smile and then took a position to the left of Tyler in front of the pulpit. He gazed up at the judge as Jameson asked, “Your Honor, how are you?”

  Poe grunted. “I’d be better if your opponent would save evidentiary issues for the pretrial hearing.” He squinted down at Tom. “McMurtrie, why are you filing a motion to exclude at this point? If we weren’t already having a status conference today, I would have denied your motion without oral argument.” Of all the judges and lawyers in the state of Alabama, Poe was the only one who routinely addressed Tom as “McMurtrie.” His old friends like Rufus called him “Tom,” and the others typically deferred to Tom’s years of service to the university by calling him either “Professor” or “Professor McMurtrie.”

  But not Braxton Poe. The slight bothered Tom more than it probably should have. Despite his admonition to his trial team members over the years to “never let them see you sweat,” he had difficulty following this rule with Poe, who, as Rufus had so eloquently stated, was an “ornery son of a bitch.” But Tom knew that Poe’s feelings toward him went deeper than simple ill temper. Poe was carrying around a thirty-year grudge.

  “Well . . .” Tom said, forcing himself to keep his cool, though he could feel his adrenaline charging up. “Timing is everything, right?”

  “So let me see if I understand,” Poe said, ignoring the rhetorical question and smiling without humor. “This is a car wreck case. Your client, McMurtrie, was driving to soccer practice and hit the driver working for Mr. Tyler’s client at the intersection of Hackberry and Paul Bryant Drive. She was high on marijuana at the time of the collision, and you want me to exclude the evidence of the pot. That about cover it?”

  “Not exactly, Judge,” Tom said, keeping his tone measured. “My client is Grace Simpson, a seventeen-year-old senior at Tuscaloosa High, who had a lacrosse scholarship to the university. She was traveling on Hackberry and entered the intersection on a green light. The driver for JPS was going fifty-five in a forty and plowed through the red light, hitting Grace’s Honda Civic on the driver’s side. Grace was rushed by ambulance to Druid City Hospital, where doctors fought to save her. They succeeded, but she will be paralyzed for the rest of her life. During the first night of her hospitalization, a urine sample was taken, which indicated a minuscule amount of cannabis in her system. During her deposition, Grace testified that she had tried a synthetic marijuana cigarette for the first time in her life a week prior to the accident while pulling an all-nighter to study for two final exams. My expert toxicologist, Dr. Patricia Walsh, was deposed last month, and she testified that the amount of cannabis found in Grace’s system was nominal and would in no way have impaired her ability to drive her vehicle on the day of the accident. Dr. Walsh also testified that a blood sample is the preferred test to determined cannabis toxicity and that a urine test was untrustworthy. Mr. Tyler’s retained expert, Dr. Wendell Brooks, is a pharmacist, who is not qualified to give an opinion on toxicity, and, even if he was qualified, Dr. Brooks only testified it was possible, not probable, that the marijuana present in Grace’s urine could have impaired her driving. As set out in our brief, pursuant to Rule 702 of the Alabama Rules of Evidence and the Daubert standard, Dr. Brooks’s expert testimony should be excluded, as it would not aid the jury in any way. Also, any relevance attached to these urine results would be greatly outweighed by the prejudice to Grace.” Tom paused. “The motion is due to be granted, Judge, and there is no rule of civil procedure that precludes an exclusionary motion at this juncture.”