Blind Justice

by William Bernhardt

  It was the classic one question too many. “Cards-on-the-table time? Murder often doesn’t make sense, Mr. Kincaid. Especially a crime of passion like this. Only in the movies do you find cold-blooded killers who do everything right. Ms. McCall was angry with Lombardi, emotionally distraught. She wasn’t thinking clearly. She could easily have absentmindedly taken some action that seems illogical in retrospect.”

  Ben saw a slight nodding of several jurors’ heads. Made sense to them. Made sufficient sense to support their predisposition to convict, anyway.

  “Did you in fact find any gloves on Christina’s person?”

  “No. I found some in Lombardi’s clothes closet, though.”

  “So your testimony is that, after shooting him, this emotionally distraught woman removed the gloves, put them neatly back in the clothes closet, and pawed the gun?”

  “I don’t know that she used those gloves. I’m just saying it’s possible. She may have flushed the gloves she used down the toilet. It’s been done before.”

  More nodding in the jury box. Ben knew it was time to move on.

  “Mr. Abshire, you mentioned an alleged confessional statement made by Christina.”

  “That’s correct.”

  “Do you recall when we discussed this matter at the preliminary hearing?”

  “Yes.”

  “And at that time, you testified that you said something that provoked Christina’s statement.”

  “I said I might have said something,” Abshire replied. “I was confused. Frankly, you caught me by surprise with that one; I didn’t really remember. But since that time, I’ve had a chance to think about it, and to talk to my superior, Mr. Stanford, who was also present. I’m certain now. I didn’t say a word to her. Her statement was completely voluntary.”

  As it would have to be, Ben noted, to get around your enormous Miranda problem. “So you’re changing your testimony in the courtroom today.”

  Abshire gave the jury a gosh-shucks grin. “I’m not changing anything, sir. Before, I didn’t remember clearly. Now I do. Her statement was unprovoked.”

  And there’s nothing you can do to prove otherwise, Abshire said but did not say, unless you put the defendant on the stand, something no defense attorney ever wants to do. Having smoked out Ben’s Miranda argument during the preliminary hearing, Abshire and Moltke had put their heads together and figured out a clever way to salvage the evidence.

  “No more questions, your honor,” Ben said regretfully. He returned to defendant’s table.

  “Any redirect?”

  “I don’t see the need,” Moltke said. Derek smiled back, obviously in agreement.

  “Very well. Mr. Abshire, I thank you for your testimony.

  You may step down. Mr. Prosecutor, call your next witness.”

  35

  “THE UNITED STATES CALLS Officer John Tompkins.”

  Tompkins, the surprise witness from the preliminary hearing, took the stand in full uniform. If the jury had liked Abshire, Ben thought, they were going to love this guy. It would be difficult to imagine a straighter arrow.

  Moltke introduced Tompkins and ran through his background, before and after he joined the police force. Eventually, they discussed the day Tompkins went to Christina’s apartment to assist the follow-up investigation of the breaking and entering. He described his initial conversation with Christina, the search of her apartment, and the discovery of cocaine in the Betty Boop doll.

  “Was there any identification or marking on the drugs?”

  “Yes. The top plastic Baggie contained a strip of paper with the word Lombardi written on it.”

  “Officer Tompkins, based on your years of experience in matters of this sort, can you draw any conclusion from that strip of paper?”

  “Well, the obvious conclusion is that these drugs were part of a shipment received by or intended for a man named Lombardi.”

  “Do you have any idea how Ms. McCall might have obtained the drugs?”

  “Objection,” Ben said. “Calls for speculation.”

  “That’s all right,” Moltke said. “I’ll withdraw the question. I believe the jury is capable of putting two and two together.”

  Yeah, Ben thought. Especially if you do the math for them.

  “Now, how many days after Lombardi’s murder was this?”

  “Just three, sir.”

  “So three days after Lombardi was killed, Ms. McCall had the drugs that were probably delivered to him the night of the murder.” Good grief, Moltke, why don’t you just draw a diagram on the chalkboard for them. “Based upon your years of experience, Officer, would a person of average intelligence be able to dispose of these drugs?”

  “Easily,” Tompkins replied. “I hate to admit it, but there are well-known drug drops all over Tulsa. We can’t possibly police them all. Anyone who wants to score some drugs could do so.”

  “And would this cocaine be valuable?”

  “Extremely so.”

  “Now, you were in Ms. McCall’s apartment, Officer. Would you say she is a wealthy person?”

  “Objection!” Ben said.

  “Overruled.” Derek motioned to the witness. “Proceed.”

  “No, I would not. All indications were of a relatively low income level.”

  “Do you think a quantity of cocaine such as you discovered could significantly improve such a person’s lifestyle?”

  “Again, your honor, I object!”

  “I think you’ve made your point, Mr. Prosecutor,” Derek said.

  “Very well, your honor. No more questions.”

  Ben positioned himself for cross-examination. He knew he had to be careful. The jury didn’t want to see Tompkins taken apart; after all, he was just doing his job. Ben would have to impeach him without casting any aspersions on his character or competence.

  “Officer Tompkins, you testified that the packet of drugs you allegedly found in Christina’s apartment bore a label with the word Lombardi written upon it, right?”

  “That is correct.”

  “Isn’t that rather unusual?”

  “I don’t know what you mean.”

  “Well, drug smuggling is a criminal activity, isn’t it?”

  “Yes.”

  “People don’t normally go around posting signs saying THIS IS MY STASH OF ILLEGAL DRUGS, do they?”

  “The label was probably affixed by the supplier.”

  “And why would the supplier want to create identifying labels? Isn’t he just as subject to criminal liability?”

  “Probably more so.”

  “And if Lombardi gets caught, the supplier is likely to go down next, isn’t he?”

  “It does often happen that way. But the fact that an activity might not be prudent doesn’t mean it didn’t happen. You have to realize we’re not discussing rocket scientists here. These are drug smugglers.”

  Score one for Officer Tompkins. “Nonetheless, Officer, before this incident, had you ever seen a similar label?”

  “No,” Tompkins admitted.

  Hallelujah. “Now let’s talk about this cocaine in the stuffed doll. The doll was not intact when you found it, was it?”

  “No. All of the dolls were damaged. A chunk of their midsections had been removed.”

  “That’s strange. Why would anyone tear up a bunch of stuffed animals?”

  “Possibly a rival member of Lombardi’s organization was searching for the stolen drugs.”

  “And somehow that rival member knew to look for the drugs in the stuffed animals?”

  “The entire apartment appeared to have been ransacked.”

  “Tell me, Officer, if this rival knew to look for the drugs in the dolls, and ripped open the dolls while looking, why didn’t he find and take the drugs?”

  There was a short pause. A line appeared between Tompkins’s brows. This question obviously had occurred to him before, and it troubled him.

  Suddenly, Derek broke the silence. “Counsel, I think that question calls for specul
ation. Let’s move on.”

  Ben turned slowly toward the bench. “Excuse me, your honor. Was there an objection?”

  “No,” Derek said, casting a quick look at Moltke, “although the need was obvious. I’m sure the prosecutor was just being polite. The court, of course, has the inherent discretion to limit speculative testimony. Move on.”

  Ben stared at him, speechless. Ben was finally making some headway, and Derek was shutting him down.

  “I said, move on, counsel.”

  Ben closed his trial notebook. “I have no more questions, your honor. Other than those the court has just forbidden.”

  Derek looked at him sharply, but let it pass. Since there was no redirect, the witness stepped down.

  “It’s been a long day,” Derek said, “and I don’t want to inundate the jury with too much information at once. We’ll resume tomorrow morning at nine o’clock with the prosecution’s next witness.”

  He banged his gavel against the bench. “Court is adjourned.”

  36

  BEN WAITED UNTIL EVERYONE but the security guards had left. He was overdue at the office. He needed to prepare for the next day’s trial, he needed to see how Christina was holding up, and he needed to contact Wolf’s parents. But he was determined to talk to Derek first.

  Derek was still puttering around in chambers—making phone calls and attending to administrative matters. Ben decided to give him time to unwind, take care of his business, and have a quick snort from the bottle of Scotch he’d removed from his bottom desk drawer.

  Ben stood just outside the doorway and listened while Derek dialed the phone. “Hello, Louise?…Yeah, I’m still here.…I don’t know, I’ll probably be home in an hour or so.…Of course I’m working, I started a trial today, for God’s sake. Where else would I be?…Look, Louise, I don’t give a good goddamn what you suspect. I’ve been in court all day, and you can take it or leave it.…Yeah, well, the hell with you, too.”

  Derek slammed the receiver back into its cradle. Ben heard an undercurrent of indistinct muttering. He decided to give Derek a few more moments to cool off.

  After he’d clocked a full minute on his watch, Ben stepped inside. Derek’s chambers seemed sparsely decorated, but to be fair, he’d only been in them about eight months. Ben did see Derek’s Harvard law diploma, squarely placed where it couldn’t be missed, just beneath Derek’s pride and joy, a large stuffed bobcat, poised forever in mid-spring.

  He knocked on the open door. “Excuse me, Judge.”

  He caught Derek in the middle of chewing another tablet. “Kincaid? What the hell are you doing here?”

  “If I may have a minute of your time…”

  “Is Moltke outside?”

  “No, he left. Press conference, probably.”

  Derek drew himself erect. “You want to have an ex parte conversation? Without the presence of opposing counsel? Do you know how improper that is?”

  Ben stared at a safe point in the middle of Derek’s desk. “This isn’t about the case. Well, it is, but not about the substance of the evidence or legal issues.”

  Derek took another swig from the scotch bottle and washed down the remains of the tablet. “Then what is it you want?”

  “I want to ask you…to plead with you, really…to stop taking your hatred of me out on my client. In the courtroom. If it were just me on the firing line, I wouldn’t complain. But someone else’s head is in the noose, and it isn’t fair that she get a bad shake just because you’re holding a grudge against me.”

  Derek stared back at Ben, his mouth slightly agape. “I cannot believe…Are you actually suggesting I am biased in my deliberations?”

  “Let’s not play games. You’ve ruled against me at every important juncture. Even when you occasionally toss me a bone, you make it clear to the jury that you do so grudgingly. Juries are very good at picking up messages from the judge, and yours are going to be translated into a conviction if you don’t ease off.”

  “I do not believe my ears. Bad enough that you barge in here demanding an unethical ex parte conversation. But then you use that time to accuse me of judicial impropriety of the worst order.”

  “The pattern of your rulings is clear—”

  “Did it ever occur to you that my rulings might be against you because you have a lousy case!” Derek shouted. “Correction. A combination of the fact that you have a lousy case and that you are a lousy attorney.”

  “That’s uncalled for.”

  “That’s the goddamned truth, you miserable wimp.” He reached into his desk and brought out what Ben now could see was a box of Tums. “I’ve had the worst heartburn all week long. I shouldn’t be surprised. In the world of indigestion, you’re a frigging carrier.”

  “Derek, listen—”

  “No, you listen to me, Kincaid.” He crunched another tablet. “I tried to work with you back at Raven. With God as my witness, I did. But I could see then you’d never cut it as a litigator, and I was right. You just haven’t got the cajones for it. I said you had to learn to work, not whine. And what is this whole conversation but proof of my point?”

  “That’s not fair—”

  “Just shut up and listen. You were a whiner then, and you’re a whiner now. Okay, you took some knocks in the courtroom today. Tough, it happens. You should be back at the office working, trying to figure out a way to make the next day go better. Instead, you’re in the judge’s chambers, trying to get an edge on the competition by complaining to the judge when they’re not around.”

  “That’s not justified—”

  “This whole conversation is not justified, Kincaid! You’ve violated every rule of ethics I know.”

  “Which one would that be?”

  Derek’s teeth clenched tightly together. “They never should have let you pass the bar. I was right about you back at Raven, and I’m still right.”

  “That’s what this is all about, isn’t it?”

  “What do you mean?”

  “I mean Raven, Tucker & Tubb. A year ago. The Sanguine Enterprises fiasco.”

  Derek didn’t say anything.

  “You lost a big client so, in your infinite pettiness, you got me fired.”

  Derek made a pfui sound.

  “Haven’t you hurt me enough already? I lost the job with the big firm. I’ve been scrabbling along on my own, one day at a time, barely getting by, for over a year now. Haven’t you exacted your revenge? Isn’t that enough punishment for one lousy client?”

  Derek was silent for a long, dreadful time. He placed his palms against his desk, fingers spread wide. “There’s more to it than that,” he said finally.

  “In what way?”

  “In the first place, I lost more than a client. I lost a hell of a lot of money.” He patted himself down, searching for cigarettes, but didn’t find any. “That Sanguine business was just the first event in a miserable chain reaction. I imagine you know, even from your brief tenure at Raven, that I was not exactly the most popular shareholder in the firm.” He laughed. “Hell, when you’re good, when you’re the best there is, you’re not going to be popular.”

  Ben could think of other possible explanations for his lack of popularity.

  “But they couldn’t touch me, because I had a great client base. Until you came blundering along. I’d lost a few clients in recent years, nothing major, but they stung a bit. When Sanguine pulled out and took his business to Conner & Winters—well, it was the beginning of the end. Other clients heard about what happened; they pulled out, too. It’s a bad scenario for a lawyer—more clients going out than coming in. Before long, my client base was so low the controlling shareholders at Raven could justify giving me the heave ho. Bastards.”

  “I’m…sorry,” Ben said haltingly. “I never suspected—”

  “I wanted to go back to Philadelphia, but of course, Louise said no. Can’t uproot our children and all that crap. What the fuck does she care about my problems? As long as someone pays the Visa bill every month, she’
s happy.” He slammed his top desk drawer shut. “I need a cigarette. I don’t suppose you’d lend me one?”

  “I don’t smoke.”

  “No, of course not. Still campaigning for sainthood.” He inhaled sharply, then continued. “The firm gave me four months to find a position somewhere else. Shit, when you’ve already worked for the best firm in town, where are you supposed to go?”

  “I know exactly what you mean,” Ben said quietly.

  “A judicial position opened up in the Northern District, so, what the hell, I took it.”

  Ben could not conceal his amazement. “You mean you’re disappointed about an appointment to the federal judiciary? Most people would kill to be where you are!”

  Derek made a snorting noise. “Do you know what I make here?”

  Ben shook his head.

  “Less than half what I used to pull down at Raven. Less than half!” He leaned across his desk. “And the worst part is, I have to sit around and listen to a bunch of inferior, incompetent pseudo-litigators argue day in, day out, none of them one-tenth as good as I was. But I’ve been taken out of the game, Kincaid. I’ve been put on the sidelines, and in my personal opinion, it’s all because of you, you miserable little turd!” Spittle flew into Ben’s face. “It’s all your fucking fault!”

  Ben was dumbfounded. It was worse than he had imagined. Incredibly, devastatingly worse. “I-I still hope you’ll be fair to my client—”

  Derek threw a pencil across the room. “Stop whining and get the hell out of my chambers!”

  “I think she’s innocent, I really do—”

  “I said get out!”

  “But—”

  “Shall I call my bailiff? Would you enjoy spending the night in jail?”

  Ben hated to leave on that note, but he had no choice. He departed, knowing full well he had not accomplished any of his goals. On the contrary, he’d only managed to bring all Derek’s hatred bubbling to the surface. Christina’s case already looked grim, and now he’d made it worse.

  And the prospect for tomorrow was no better.

  37

  THE NEXT MORNING PASSED tediously. The forensics testimony was no more interesting at trial than it had been at the preliminary hearing. The dactylogram expert confirmed that Christina’s prints were found on the gun and elsewhere throughout Lombardi’s apartment. Ben reminded the jury during cross that the paraffin test had been absolutely negative. All hair and fiber analysis apparently had proved inconclusive; the prosecution didn’t call their designated witness.