Capitol offence bk-17

by William Bernhardt

  Ben took a deep breath. "I think I have to ask for a mistrial. I think it would be malpractice not to ask for a mistrial."

  "I'm not going to sue you for malpractice."

  "Thanks. But what if we have to appeal, you know? If we… we…"

  "Lose?"

  "Yeah. That. If the appellate court finds my representation incompetent, it would destroy me as a lawyer. And it could interfere with our appeal."

  Dennis ran his hands through his precisely coiffed hair. "I don't know, Ben. I really just want to get this over with."

  "I know you do. But we have to be smart about this."

  "I suppose."

  This was where the conversation was going to get sticky. If Ben had his way, he wouldn't go here at all. But he had no choice.

  "Dennis… there's one more possibility I have to raise. If I ask for a mistrial, it's possible we could get even more than a delay of the game. We could conceivably win the whole shooting match."

  "What? How?"

  "A tainted jury pool is one thing. Definitely grounds for a mistrial. But if the judge finds deliberate misconduct on the part of the prosecution…"

  "Is that possible?"

  Ben shrugged. "Guillerman obviously knew something. He planted the seed with Officer Conway. He didn't have to appear on that news broadcast-but he did."

  "Okay, so he's guilty of misconduct. What does that get us?"

  "A mistrial, for sure. But in this scenario, there might be a little more. Here, the mistrial is the result of deliberate acts by the state. That being the case, the court could find that double jeopardy has attached."

  "And if double jeopardy has attached…?"

  "You can't be tried again for the same offense. Not even in a capital murder case. In other words, you go free."

  Dennis's lips parted. "No."

  "It's a long shot. A remote chance. Judge McPartland obviously will not be eager to dismiss a high-profile case involving the death of a police officer. But it is possible."

  "And I would be acquitted."

  "In effect."

  Dennis's eyes seemed to draw inward. "But without a finding of innocence. Without ever really being tried."

  "True."

  Dennis sat up, squared his shoulders. "I don't know if I like that idea."

  "I understand. But you can't expect to be exonerated by a court. Even if you were found not guilty, some people will never believe it. Especially not if you get off on a charge of temporary insanity."

  Dennis remained strangely quiet. "Ben," he said at last, "I don't know if I've even said this to you before, but… I didn't kill Detective Sentz."

  "I thought you didn't remember what happened."

  "I don't. But I still… I can't believe I would do that. Even under the circumstances."

  "I understand," Ben said. Though, he thought silently, your subsequent belief proves nothing about what happened.

  "You know… this trial has been very hard."

  "I'm sure."

  "Are you? Sometimes I think you believe-and I know Christina does-that my willingness to plan and scheme and orchestrate the trial means I'm a cold, rotten person who wants to kill and get away with it."

  "Oh, no-"

  "You don't have to bother denying it. I know the score."

  "Maybe you were a little more… present than most defendants."

  "But I needed that. You know?" He looked at Ben with pleading eyes, and it occurred to Ben that this might have been the most vulnerable he had seen this man since the whole drama began. "That gave me an edge. When I lost Joslyn, my world was shattered. Into pieces, tiny little shards of glass where a life had once been. I didn't know what to do. I had to distract myself. First with talk of revenge. Then with plans to escape punishment."

  He looked away. Ben could see his eyes were watering. "I'm starting to lose it, Ben. I really am. I can feel the heat, the fire, the… the anger, ebbing away. And if I lose that, I don't know what I'll have left. I can't get through another trial. And I can't live in a world filled with people who think I'm a murderer. I–I-" He shook his head. "I don't know if I can live at all."

  "Hey now." Ben placed his hand on the man's shoulder and squeezed. "Let's not talk like that."

  "I'm just telling you how I feel."

  "Let me make the motion, Dennis. Then we'll take it from there. Okay?"

  "I guess. I-" He looked up at Ben with sorrowful eyes. "I trust you."

  Ben nodded, took his briefcase, and headed for the judge's chambers.

  Why had Dennis said that? Ben would have rather heard "I hate you."

  What Dennis had said instead was the worst curse a client could possibly lay on his lawyer's shoulders. Especially in a capital murder case.

  23

  Ben had not been inside Judge McPartland's chambers before, so he was surprised at what he found. Judges were free to decorate in any way they wanted, but most kept it on the conservative side. Members of the judiciary must be distinguished, it seemed, even away from prying eyes. Decorating tended toward Western art, macho Remingtons and such, with the occasional cowboy or OU football paraphernalia.

  McPartland liked dogs. Ben hadn't known it before, but the evidence was all around him. He had at least four, judging from the photographs, and apparently took them to shows on a regular basis. There was Judge McPartland, motioning to his Pomeranian to sit up on cue. There was the mighty Doberman strutting down the walkway. Even a fluffy white poodle, and if Ben wasn't mistaken, it had painted toenails. They all appeared groomed and brushed, and in one case even clothed. Their pedigrees hung on the walls, as did their graduation certificates from obedience school.

  Ben found himself liking the judge a lot more than he had before, even though, technically, Ben was a cat person. Still, it was good to see the judge had outside interests. After a week of criminal trials, a dog show must seem very relaxing.

  They only had to wait a few minutes before the judge arrived. McPartland did not appear surprised to see Ben and District Attorney Guillerman waiting in his chambers. Not surprised, but not pleased, either.

  "Let me guess," he said, leaning back expansively in his padded recliner. "Senator Kincaid has a motion."

  "Darn tootin'," Ben said curtly.

  "And the state opposes?"

  The DA shrugged. "I don't know what we're talking about yet."

  "Mr. Guillerman, I've been a judge a long time. Don't play games with me."

  "Honest, Judge, I don't-"

  "Well then, let me inform you." The judge leaned forward, his brow sharply creased. Ben got the impression that Guillerman might have made a major tactical blunder. "Do you recall a while back when we were selecting a jury?"

  "Certainly."

  "And do you recall the conclusion, when I mentioned to you both that I didn't want any more discussion of the case with the press?"

  Guillerman pointed at Ben. "He was the one who kept calling the press conferences."

  "Yes, and you intruded whenever you could, but it doesn't matter. The point is, I issued a gag order. And you have violated it."

  Guillerman pressed his hands against his starched white shirt. "I didn't call a press conference. All I did was answer a few questions."

  "From the press."

  "And they didn't even pertain to the murder trial. They were about the defense attorney."

  McPartland was not impressed. "And you thought that would have no relevance to the trial?"

  "Not really."

  "Amazing that a man with your naivete could survive so long in the world of politics."

  "I just do my job." Guillerman shook his head with dismay. "I'll admit, I had no idea the media would sensationalize my remarks on the evening news. Very tabloid. Might as well be Entertainment Tonight."

  "I guess you've never watched the evening news before."

  "Well… I stay pretty busy at work."

  McPartland drew in his chin. This was the most overt display of irritation Ben had seen since the trial bega
n. "You know, I'm enjoying this inane repartee, but it's essentially irrelevant. I issued a gag order and you violated it."

  "I don't recall you ever using the words gag order. You just said not to talk to reporters about the case."

  "That's what a gag order is, counsel. You're making me wonder if you went to law school. Except I'm pretty sure that's a requirement for becoming district attorney, and last I heard, you were teaching night classes."

  "Your honor, I mean no disrespect. But I maintain that I did not violate your order because I did not discuss the substance of the case."

  "You told a city full of couch potatoes that the defendant conspired with his attorney to get away with murder, which is basically your whole prosecution theory. That's commenting on the case. And it's exactly the same line your man was dishing from the witness stand last week."

  Guillerman chose to remain silent. Ben was glad he was not in his shoes. The judge was displeased, and that never worked in a lawyer's favor, as he knew all too well.

  Judge McPartland ran his hand back and forth over his chin. "You know what this means? I'm going to have to sequester the jury now. I've got no choice. The press won't let go of this anytime soon. I heard about it on the radio driving to work this morning, and I was listening to a hip-hop station. The jurors will not be happy. And I don't blame them. City hall won't be too pleased, either. Sequestration costs a fortune." He leaned back in his chair. "The jurors will go into a major tailspin."

  "Are the accommodations provided that bad?"

  "No, they'll stay at the Ambassador Hotel down the road. But these people have already given up days of their lives and expect to lose more before it's over. Imagine their reaction when they find out they don't get to go home anymore."

  "Who knows?" Guillerman said optimistically. "Some may be happy about it."

  "No, Mr. District Attorney, no one will be happy about it, not even the housewife with six kids who hasn't had a vacation in eight years. And let me tell you why. Two words: no television."

  Ben gulped. "No TVs at the hotel?"

  "We have them removed. Can't take the risk, especially not when coverage is all over the airwaves. So now imagine the scenario: away from home, away from family-no glass teat. Horrifying, huh?"

  "Dreadful."

  "It gets worse. We take out the minibars, too."

  "No!"

  "Have to. State can't buy liquor for anyone. Against the law."

  "Do they at least get pay-per-view?"

  "No. I'm telling you, Uncle Sam can be a cruel master. But I'll do this to those poor public-minded citizens to cure this mess you've created."

  Ben raised a hand. "Shouldn't we consider my motion first?"

  "Good point. Because you're hoping there won't be any need for the jury." He thumbed through a stack of papers on his desk. "I assume you're moving for a mistrial."

  "Yes, your honor." Ben cleared his throat. "Um, sort of."

  McPartland peered at him over his bifocals. "Sort of?"

  "I am moving for a mistrial, your honor, but specifically I'm asking for a finding of prosecutorial misconduct and a ruling that double jeopardy has attached."

  Judge McPartland gaped. "You want me to set your man free?"

  "In effect."

  "Do you know what those reporters you two are so fond of would do to me if I complied?"

  Ben shrugged. "It's not your fault, your honor. If there's been deliberate prosecutorial misconduct, you have no choice."

  "The rank-and-file Joe Beer Can NASCAR pork-rind-eating voter won't see it that way."

  "I understand. But of course the court has to rule on the law, not the potential professional ramifications."

  "Of course."

  "And I know we can count on your honor to do just that."

  McPartland pointed a finger Ben's way. "My momma told me never to count on anything till I see it in writing. That was good advice." He swiveled his chair around and stared out the expansive window at downtown Tulsa. "What if I declare a mistrial but simply order a new trial?"

  "We're not asking for that relief, sir."

  "You're telling me you wouldn't accept a new trial?"

  "No, your honor."

  He looked incredulous. Guillerman appeared more than a bit surprised himself. "May I ask why?"

  "Because my client doesn't want that. He's willing to accept a double jeopardy ruling-though he isn't happy about it. He wants a jury to declare his innocence."

  "Every defendant does, counsel. Few get it."

  "But he does not want a new trial at some point in the distant future. This trial has been hard on him, especially coming so close on the heels of the loss of his wife. He wants it over, one way or the other."

  McPartland's eyes narrowed. "Counsel, is this some kind of twisted trial tactic?"

  "No, sir. And I don't think I'm violating any confidences to say that this is not what I recommended. But it is what he wants."

  "All or nothing, huh?"

  "Exactly."

  Judge McPartland swiveled back around to his desk. "You boys are not making my job easier, you know that?"

  Guillerman smiled his million-watt smile. Seemed he could be charming even when he was under fire. "Do we ever, Judge?"

  "No." He took a deep breath. "Well, the first thing you should know is, I brought the jury in early this morning and quizzed them with a court reporter present. Only two say they saw any of the news coverage of this case over the weekend."

  "They're lying," Ben said succinctly.

  "Very likely. I know I'd be watching if I were them. How could they not? They are human beings, after all. But what I did not get, as I questioned them, was a sense that anyone had changed their mind because of what they saw, or that anyone's mind was made up, or that the jury pool was tainted. Even the two who admitted seeing the coverage said it didn't affect them, and I believe them. One of them turned it off before it was over."

  "Your honor-"

  "Let me finish. I'm going to remove the two jurors who admit to seeing the televised story. I will sequester the rest. I will give them strict instructions not to consider anything they didn't get in the courtroom. And I'm also going to instruct them to disregard that last little salvo from your witness, Mr. Guillerman." He gave the prosecutor a harsh look. "I'm hoping that will get the message across. Whether they know what the witness was implying or not, they will decide this case on the relevant evidence presented at trial."

  "That works for me," Guillerman said. And no doubt it did, Ben thought. He was getting away with prosecutorial misconduct with virtually no substantive penalty.

  "Your honor," Ben said, "I respectfully object. This is not enough. We're talking about deliberate misconduct."

  "But for what purpose?"

  The question took Ben aback. "What do you mean?"

  "Well, see, Senator, I've read the law on this subject. Reviewed it just this morning, in fact. And prosecutorial misconduct doesn't necessarily mandate a mistrial. That extreme sanction only kicks in if the misconduct was engaged in purposefully."

  Ben frowned. "I hardly think he gave that interview by accident."

  "Agreed. But it has to have been done for the purpose of causing a mistrial. Then it would offend public policy to give him what he wanted. A dismissal is the appropriate penalty. But I don't think the district attorney gave that interview because he wanted a mistrial. Do you?"

  "Well…"

  "Why would he? His case went well and you haven't even started yours yet. No, he wasn't after a mistrial. He did it to win. He did it to bury you before you've even started. Didn't you, Mr. Guillerman?"

  "Um, well…"

  McPartland chuckled. "Yeah. Tough question. Assumes facts not in evidence. At least that's your story."

  "But your honor," Ben said, scooting forward in his chair, "this was a serious and deliberate offense."

  "Oh, I don't think it did your case that much harm, Mr. Kincaid. And that's the main thing. Because as those of us who went to la
w school know, not all error leads to a mistrial-not even violations of gag orders. The effect has to be prejudicial to a significant degree. There has to be a showing that the prejudice was great enough to affect the outcome of the trial. And I don't think that's the case here. The prosecution alleged something they can't prove. So what? That's what they do. You'll probably do some of that yourself, huh, Mr. Kincaid?"

  "I would never-"

  "Unless you're planning to put on evidence to support a possible finding of suicide. Which I very much doubt."

  Ben fell silent.

  "Good. So we all know where we stand. The jury will be sequestered, and the motion is denied."

  Both lawyers rose to their feet and started toward the door.

  "I'm not finished yet." The judge looked Guillerman straight in the eye. "This will not happen again. Do you understand me? There is a gag order in place. A total and absolute gag order. Any further violation will result in a mistrial with double jeopardy attached. This defendant will go free and it will be your fault. Plus I will personally recommend disbarment, in writing." He lowered his voice. "And I would imagine your shot at reelection would not be enhanced. Understand, Mr. District Attorney?"

  "Yes, sir. I do."

  "Good. Anything else?"

  Ben leaned forward. "I want to call an Officer Torres to the stand. My investigator tells me he may have relevant information, and he's been mentioned-"

  McPartland cut him off. "Is he on your witness list?"

  "No, I just found out-"

  "Then forget it."

  "But the prosecution witnesses have mentioned him and-"

  "You're the one who wants to be a stickler for the rules, Mr. Kincaid. He's not on your list. So you're not going to call him. Anything else?"

  Ben smoldered silently.

  "Fine." McPartland waved his hands at them. "Now get out of my chambers. Go forth and sin no more."

  Ben stopped Guillerman in the hallway before they got to the courtroom and the reporters. "Tough guy" wasn't really his best mode, but he knew this situation called for a little grit. Or at the very least a furrowed brow.

  "I don't appreciate you spreading that crap about me to the press," Ben said, blocking his path.

  Guillerman smiled with such amiability as to be truly annoying. "Don't take it personally, Ben. It's just trial tactics."