Scott cleared the security checkpoint at the courthouse at 8:30 a.m. and took the elevator up to Courtroom D on the second floor. Courtroom D was not as large as some of the other courtrooms in the building, but it was quite ample. The judge’s bench was raised several feet from the floor and located in the far right corner. The United States flag hung from a staff on one side, the Georgia state flag on the other, and an enlarged facsimile of the Great Seal of Georgia was displayed on the nearby wall. The judge’s bench exuded authority, even in the absence of the judge. The witness box and a table for the clerk were just below the judge’s bench. Extending lengthwise on the left side of the courtroom was the tiered jury box with fourteen plum-red arm chairs. In the center, the court arena, were two large tables for counsel, each accompanied by three ruby-red arm chairs.
Richard Evans, the DA investigator assigned to the case, was already in the courtroom when Scott arrived. Richard had worked on the case with Scott since the beginning. He had been with the office for over twenty years and had investigated almost every crime covered by Georgia law and a few that weren’t. Richard was a walking warehouse of knowledge about Chatham County’s criminal courts. He was friends with the bailiffs in each courtroom and had gathered information about the temperamental peculiarities and eccentric courtroom and trial management styles of every judge on the criminal bench.
He and Scott got along well. When Scott heard that Judge Karen Vesely would be presiding over the Vandera trial, he asked Richard for an assessment of what to expect from the bench.
“She’s my favorite—experienced and mature,” said Richard.
“Mature?” asked Scott. “How old is she?”
“It’s not her age,” said Richard. “By ‘mature,’ I mean she doesn’t suffer from ‘robe-itis.’”
“Robe-itis?”
“Yes, ‘robe-itis.’ It’s the disease that sometimes infects newly appointed judges. They get an overwhelming feeling of self-importance. They pontificate and interrupt rather than listen. Some seriously affected with robe-itis actually strut rather than walk. They enjoy displaying their knowledge in front of the jury and making the attorneys look stupid. But you will enjoy trying your case before Judge Vesely. If you are prepared and professional, she won’t interfere.”
If Richard’s appraisal of Judge Vesely was correct, Scott knew he would have no problem presenting his case. Yes, he was ready.
Scott had been in Courtroom D several weeks previously for a pretrial conference on the case and had been introduced to Judge Vesely by his supervising attorney. Under rules established by the Georgia Supreme Court, third-year law students may assist at criminal trials as prosecutors or defense counsel to the extent permitted by the presiding judge. The judge must administer an oath similar to the oath taken by members of the bar. Jeff Swenson also had been there with his supervising attorney, Charlie Roberts, an attorney from the public defender’s office. Judge Vesely administered the oath to both students and welcomed them to her courtroom. She reminded the two supervising attorneys that they must be physically present throughout the proceedings and asked them to outline the parts of the trial that the students would be undertaking. She appeared surprised when informed that Scott would serve as lead attorney throughout the trial, examining all witnesses and giving the opening statement and closing argument. To Scott’s great relief, she placed no restrictions on his participation. And in the ensuing weeks, Scott had worked hard preparing for this trial. Now, it was time to deliver.
Scott and Richard were going over the witness list when Grady Wilder walked in. He took the third seat at the table and listened as Scott and Richard discussed the logistics of the case. He didn’t interrupt; this was Scott’s case.
Just after Grady arrived, Jeff Swenson walked in with Charlie Roberts and the defendant, Charles Vandera. The three took their seats at the defense table. Jeff had a large briefcase and began to unload it. Papers, law books, and file folders were soon scattered across the table. A few minutes later, a young woman came into the courtroom and handed some papers to Jeff, and soon he and his supervisor became engaged in a lively but secretive conversation. Scott wondered if they were going to try to reopen the plea negotiations. The plea offer by the prosecution had been terminated when Vandera had not accepted it by its Monday noon deadline. Scott was not authorized to make any further offers, and he had no desire to make any. He was ready for trial today.
Promptly at 9 a.m., Judge Vesely entered the courtroom. The bailiff stepped smartly forward, holding a seven-foot oak staff decorated with thin streamers and a gold eagle at the top. With swift vertical movements, he rapped sharply on the floor three times and ordered all persons to their feet with formal language heard only in Chatham County courts. Counsel, as well as the few spectators seated in the courtroom, quickly rose and stood in place. This formal pageantry to call the court to order had been observed in the Chatham County courts since the middle of the eighteenth century when Georgia was a British colony. Although it was abandoned in other courts in Georgia, it remained an important and unvarying tradition in Chatham County. The only change was that the Crown’s seal, originally on the top of the staff, had been replaced by the American Eagle, and the thin streamers hanging loosely from the top of the staff no longer represented the colonies subject to the Crown. The decorated wooden staff served as the “mace” of the Chatham County courts. It symbolized the authority of the court, just as the mace of the English Parliament symbolized Parliament’s authority. This brief pageantry by the bailiff with the wooden staff never failed to impress—and startle—visitors caught unaware.
The judge took her seat at the bench, and the trial of Charles Vandera was underway. The jury panel was not yet in the courtroom. Judge Vesely called the court to order, folded her arms, and looked directly at the defense table.
“Earlier this morning, I received a notice from the defense requesting a hearing before calling the jury. I believe the defense has a motion to make.”
A hearing? A motion? All of this was news to Scott. He felt a mild sense of panic. No lawyer welcomes a surprise—at least not from the other side.
“Has the defense served this motion on the prosecution?” she asked.
Charlie Roberts spoke. “No, we have not, Your Honor. We just had it typed this morning and delivered to this courtroom a few minutes ago. We apologize for the apparent untimeliness of this motion, but we just discovered the error in the indictment late last night. Had we been aware of the error earlier, we would have filed a special demurrer. We believe the error is of such significance that we should be heard on this motion before we continue with the trial.”
As Roberts spoke, Jeff walked over to the prosecutor’s table and handed a copy of the motion to Scott.
Roberts continued, “May I approach, Your Honor, with your copy?”
“Yes, let me see it.”
Roberts delivered a copy to the judge, who then looked at the prosecution table. “So this is the first you have heard of this?”
Scott spoke up. “We had heard nothing, Your Honor, until you spoke of it a minute ago. And, of course, we haven’t had time to read the motion.”
“Neither have I. Mr. Roberts, why don’t you tell us what is contained in your motion.”
“Yes, Your Honor. The state has charged the defendant with the crime of burglary, but as we argue in our motion, the indictment is defective. The indictment reads that the defendant, ‘on or about April 24, 2006, did unlawfully break and enter, with the intent to commit larceny therein, a CVS Pharmacy Store where business is conducted, said store being owned by CVS Pharmacy, Inc., and located in Savannah, County of Chatham, and State of Georgia, such act being contrary to the laws of the State of Georgia, and the good order, peace and dignity thereof.’”
“And in what way do you maintain that it is defective, Mr. Roberts?” asked Judge Vesely.
“It does not inform the defendant of which Savannah CVS store was entered. There are at least ten CVS stores in Savannah.
While the state may have one in mind, the indictment does not. The state could have any one of the ten in mind. We cannot defend against such a vague indictment. The indictment is too general to place the defendant on notice as to the location of the crime. We move to dismiss it.”
“And Mr. Marino, your response?” asked Judge Vesely.
Scott’s heart was now pounding, and his mind was racing. Did he just hear the words “move to dismiss it”? Those were frightening words. He had prepared for, and been ready for, almost anything but this. He had focused on preparation for the trial of the case, not on the technical integrity of the indictment. He had not drafted the indictment nor presented the case to the grand jury. He was assigned the case after all of that was completed. Perhaps Grady would step in and respond. But this was his case, his only case, and Grady had dozens of his own to handle. If a mistake had been made—and Scott now was pretty sure there was a mistake—it was his responsibility.
“Yes, Your Honor,” Scott began. “Not only is this motion untimely, the defense has known since May that the store involved is the one at 1128 East Grissom Avenue. I have personal knowledge that both defense counsel have visited that store for the purpose of examining the location of the break-in. The defense has not been misled. And by waiting until today, just minutes before jury selection, they have waived any error in the indictment. However, to ensure that the defense is put on notice as to the exact location of the pharmacy, the state moves to amend the indictment by inserting the words, ‘at 1128 East Grissom Avenue, Savannah’ in place of the words ‘in Savannah.’”
Judge Vesely looked at the defense table. “What does the defense say to the motion to amend?”
“We certainly oppose any such motion, Your Honor. We would dispute that the prosecution has authority to amend a faulty indictment in a case such as this. Only the grand jury can breathe life into a faulty indictment. The prosecution cannot replace the grand jury, as they are attempting to do in this case,” replied Roberts.
“Does either side have any case law in support of your argument?”
Both the defense and prosecution replied that they did not have any case law available at that time. Scott argued that because the prosecution had just received the motion to dismiss, he needed time to research the issue.
Judge Vesely agreed to give him until 10:30 that morning at which time she would reconvene the court and hear anything additional that either counsel might have, including case law.
Both the defense and prosecution teams rushed out of the courtroom. Scott had his laptop with him. He went to Grady’s office, hooked up to the Internet and was soon on Westlaw, a legal research service. As Scott began his research in Grady’s office, Grady went to inform Nick Cox, felony section chief, of the situation. Nick was in his office when Grady walked in with the news. Nick knew Scott from his internship during the summer. “What the hell,” roared Nick. “Why the fuck didn’t Scott note that deficiency weeks ago? Savannah detectives busted their balls on that case. The paper did a special article on it—‘Rope for Dope.’ Now it goes down the tube because some damn third-year clinic student can’t read.”
“You’re sure it’s lost, Nick?” asked Grady.
“Damn right, it’s lost. Vesely’s not going to spend time on a case that’s going to be bounced on appeal. I can’t believe Scott could be so damn careless. I thought, of all the clinic students we’ve had, he was one of the sharpest.”
“He is,” said Grady. “He’s put this case together as well as anyone could. He was ready for everything in this trial but the one thing that several experienced prosecutors also missed. I had it for a month before I gave it to him. I didn’t catch the problem, and our intake division, which drafted it, didn’t catch it either. I don’t recall who took it before the grand jury, but he or she didn’t see it either. And the defense says they didn’t note it until last night—but I’m skeptical of that. The bottom line is that the case was assigned to me for trial, and I missed it. So let the blame fall where it belongs.”
“You bet, I’ll do that. And when Vesely grants the motion— and she will—you rework the language, take it to the grand jury, and get another indictment. And don’t let Scott screw it up. Where is Scott now?”
“In my office, checking law and cases. We are due back in court at ten-thirty.”
Grady left Nick’s office and went to his own office where Scott was seated behind the computer. “Find anything helpful?” asked Grady.
“Yes, helpful to the defense.”
“Like what?” said Grady.
“State versus Tommy Green,” Scott replied. “A 1975 case from the Georgia Court of Appeals. Defendant was charged with burglary of a building. The indictment alleged it belonged to Darvin Byrd, located in Columbia County, Georgia, but failed to specify the location of the building. The court’s reasoning is not a model for clarity, but the holding is. The location of the building must be specific. No question, this indictment requires a street address. I’m prepared to concede it’s defective, but I would like to argue that we should be allowed to amend the indictment because the defense has not been misled and has been dilatory in bringing this matter to the court’s attention. They knew all along where the pharmacy was located. That never was in doubt. What do you think?”
“Scott, I know you are anxious to get this trial underway today, but I think we have a loser. Nick Cox thinks we have a loser. And I’m convinced Judge Vesely will tell you that you have a loser. Now, here’s my advice. Let’s go back in that courtroom and concede our error. No motion to amend, no waiver argument, no excuses. We take our lumps and then get this case back on track. Nick says if the judge grants the motion to dismiss, we are to redraft the indictment, take the case to the grand jury again, and then take it to trial. Let’s go.”
That was not what Scott wanted to hear. In his view, this motion was a sham—a typical low-ball defense trick. So far the morning had been a stressful eighty minutes. He now wondered if he would ever get another shot at trying a felony case after screwing up this one.
“The judge is not going to be happy,” said Grady. “Wasted day. She has felony cases backed up, and it will take a lot of her time to get back on track. I’ll tell her we concede the defense motion, and she can take it out on me.”
“No, this was my case. I’m the one who fucked it up, so let me handle it,” said Scott. “I’ll just tell the judge that we found nothing to support our argument. And I’ll also advise her of the Green decision.”
They walked out of Grady’s office on the sixth floor, took the elevator down to the second, and walked toward the courtroom. Scott was surprised to see Jennifer standing in the corridor.
“Security told me the Vandera trial was in Courtroom D, but I found it empty,” said Jennifer. “Have you started?”
“Started, and about to end,” replied Scott. He was trying to manage a smile, but what appeared was a smile occasioned by pain rather than pleasure. He was still reeling from the unexpected setback in the case and was embarrassed. “I’m about to tell Judge Vesely to dismiss the indictment.”
Jennifer observed the stress in his voice and decided not to ask why. “OK, in that case, I’ll just take a seat in the back row.”
Scott and Grady sat down next to Richard. At the same time, Jeff, Roberts, and the defendant entered and took seats at the defense table. The bailiff, clerk, and court reporter were already in the courtroom, and within a few minutes, Judge Vesely entered from the door near her bench.
“All rise!” ordered the bailiff.
Judge Vesely took her seat and motioned for all to be seated. She then asked if either had anything further to present on the motion. Scott was the first to rise.
“Your Honor, I have researched the issue involved in the motion to dismiss the indictment. I found a case on point: State of Georgia versus Tommy Green, at 218 S. E. 2d 456, a 1975 case. It supports the argument made by the defense that this indictment is fatally defective. I’m unable to distinguish the defe
ct in this case from the defect in the Green case, so we do not oppose the motion by the defense to dismiss the indictment. I would add, however, that the state does intend to seek a superseding indictment of this crime, with an amendment that will include the specific location.”
“Anything from the defense?” inquired Judge Vesely.
Roberts rose to speak. “In view of the state’s concession, Your Honor, we have nothing further. However, we believe the state should be prevented from bringing a second indictment. The dismissal should be with prejudice.”
“No, Mr. Roberts. I am dismissing the indictment without prejudice. I cannot predict how the state will proceed from here, but nothing in my ruling prohibits the state from proceeding before the grand jury with a properly worded indictment. Court is adjourned.”
“All rise!” commanded the bailiff, and Judge Vesely departed the courtroom.
Scott turned to Grady and asked, “How soon before the next grand jury convenes?”
“There is a session scheduled sometime this week. I’m not sure of the day. How soon can you have the witnesses ready?”
“I have all the necessary witnesses on standby right now,” said Scott. “I can have them here on a couple hours notice.”
“I think we can do it. Go to my office; I’ll meet you there as soon as I can clear it with Nick.” Grady and Scott gathered their notes and briefcases and began to walk out. When Scott reached the back of the courtroom, Jennifer was standing by the door.
“Scott, think we could meet at the Library later today? I’d like to hear all about this when you have a chance. I have a meeting with my study group at four but should be through by six. See you there at six or so?”
Savannah Law Page 10
