Savannah Law

by William Eleazer

  Over the noon hour, Grady and Scott discussed the witnesses to be called in the afternoon. They still had the two detectives, the forensic investigation team, and the assistant manager who first saw the cuts on the defendant’s forearm. And, of course, the defendant’s mother, Mary Vandera. It was obvious that the prosecution case would not be finished that day. So far, the cross-examination of the state’s witnesses had been limited. But Scott knew he would soon be facing an all-out attack on the quality of the investigation. The defense would surely put the detectives and their investigation on trial.

  “The claim of a sloppy, negligent, ineffective investigation is a common defense tactic,” Grady had warned. “Where are the fingerprints on the crowbar—on the ladder—on the chisel—on the cabinet doors—on the counter tops—on the front door—on the alarm system? Where are the print matches to the defendant? What did the detectives do to trace the origin of the crowbar—the chisel—the rope? If Charles Vandera cut himself entering through the skylight, why was no blood found anywhere in the store? Why did they let the glass get hauled away, and why didn’t they try to recover it? What about the painters and their ladder? Why didn’t they interview the painters’ friends and relatives?”

  And so on it would go. So far, the state’s evidence had not connected Charles Vandera to the burglary in any meaningful way. That would come when Mary Vandera identified the retinoscope. And he needed Mary Vandera to testify truthfully without realizing the significance of her testimony. If she realized that she was the witness who would assure her son’s conviction, would she lie? Only a fool, Scott thought, would expect a mother to knowingly incriminate her son in a felony.

  The retinoscope would have to be identified by the forensic team as having been found at the crime scene. And normally the forensic team and the detectives would testify before Mary Vandera; they would be necessary to establish the “chain of possession” before the retinoscope could be admitted into evidence. But this was not a normal case. A defense team totally in the dark about the prosecutor’s case is not normal, and certainly a mother offering critical testimony against her son is not normal. Scott decided to call Mary Vandera as his first witness of the afternoon. He did not want to give the defense a full evening to ponder the mystery evidence he had alluded to in his opening statement.

  • • •

  Judge Vesely gaveled the court to order promptly at 2 p.m.

  “Call your next witness.”

  “The state calls Mary Vandera.”

  Mary Vandera was seated in the rear of the courtroom, alone. Although she had been attentive to the proceedings, she did not get up when her name was called. Her eyes were opened wide, but otherwise she had an expressionless face and remained seated. Scott was certain she had not been informed by the defense counsel of why she was there. How could they? They had no clue why she was on the state’s witness list.

  Seeing that she made no movement to come forward, Scott told a bailiff that Mary Vandera was the lady in the blue dress in the back of the courtroom. The bailiff walked to where she was seated and escorted her to the front of the courtroom. She was sworn and took her seat in the witness chair.

  “Would you please state your name, and spell your last name for the court reporter,” said Scott.

  “Mary Vandera. V-A-N-D-E-R-A.”

  “Do you know the defendant in this case, Charles Vandera?”

  “Yes, he is my son.”

  Scott pointed in the direction of the defense table and said, “And that is your son seated on the far side of that table?”

  “Yes.”

  Scott picked up a large envelope from the clerk’s table, one of several that had been marked for identification at the beginning of the trial. Because the defense had “opted out” of reciprocal discovery, the defense would be seeing the evidence for the first time. Scott walked to the defense table and offered the envelope to the defense counsel for examination. Both Jeff and Roberts opened the flap of the envelope and peered in. Jeff held the flap open and placed it in front of Charles Vandera to view. He peered inside briefly and then turned his head to look directly at his mother.

  Scott retrieved the envelope, turned to the judge, and said, “Your Honor, may I approach the witness with an exhibit?”

  “No!”

  The shout came from the defendant. Before Judge Vesely could respond, Charles Vandera stood and again shouted, “No!”

  Immediately his defense counsel stood and forcefully pushed him back into his seat. A bailiff moved swiftly toward the defense table and stood between the jury and the defendant. From the small courtroom crowd, there was a hushed silence. The eyes of the jury shifted rapidly between the defense table and the judge’s bench.

  With the defendant once again seated and quiet, Charlie Roberts looked at Judge Vesely and said, “May we have a moment, Your Honor?”

  An emotional and lively whispered conversation took place at the defense table. Charles Vandera continued to shake his head negatively. Scott returned to his seat and conferred with Grady.

  Judge Vesely looked at the ongoing conference between defense counsel and their client for several minutes and then stated, “Mr. Swenson, the court is ready to proceed. Are you and your client now ready?”

  “Your Honor, may we approach the bench?”

  The judge gave her approval, and the two defense counsel, along with Scott and Grady, walked to the bench for a whispered conversation.

  Jeff was the first to speak. “Your Honor, we would request a brief recess. We would like to discuss a possible plea with the prosecution.”

  Without hearing from Scott or Grady, Judge Vesely announced the court would be in recess, and the bailiff escorted the jury from the courtroom.

  “Mrs. Vandera, you may step down from the witness stand. Please remain in the courtroom,” said the judge. “Counsel, I’ll give you ten minutes to discuss a possible plea. If you can’t reach an agreement in that time, we’ll reconvene and continue. I have a full schedule of cases next week, and we need to complete this case by Friday evening.”

  The four counsel huddled at the prosecution table to begin their discussion. “The defendant will take the pretrial agreement as previously offered,” said Jeff.

  “That pretrial offer expired Monday,” said Scott. “We’ve subpoenaed our witnesses, and we have a sworn jury. That pretrial offer was made to save money and the time of the court, as well as witness time, jury time, and counsel time. He pleads straight up if he’s going to enter a plea. There is no plea agreement for him to accept.”

  “You may think there is no advantage to the state to accept the old pretrial, but, in fact, there is. Your evidence is not as strong as you may think. Not to be trite, but take a clue from Yogi Berra: ‘It ain’t over ‘til it’s over.’ You have a long way to go. There is a chance—a good chance—of acquittal,” said Jeff.

  “We’ll take that chance,” said Scott. “He pleads straight up and no pretrial, or we call his mother back to the stand and continue. His call.”

  Jeff did not respond but walked back to the defense table for a conversation with the defendant. This time there was no animated or emotional conversation. Jeff was explaining the situation, and the defendant was merely nodding. Whatever the decision, it was finally settled.

  Jeff did not return to give Scott the defendant’s response. He looked at Judge Vesely, who was still at the bench examining some papers, and said, “Your Honor, the defendant wishes to enter a plea to the charge.”

  Scott was disappointed to hear that. He had prepared hard and wanted the experience this trial would give him. At the same time, he knew it was the best outcome; a jury conviction still has to survive an appeal while a guilty plea is rarely overturned.

  The defendant entered his plea of guilty, and Judge Vesely remanded him to the sheriff for custody until a sentencing hearing could be held.

  After Vandera was led from the courtroom by the bailiff, Jeff walked over to shake Scott’s hand. “Congratulations, Sco
tt—you win. I’m just sorry it ended this way.”

  “You mean by a plea? Even without the pretrial, it’s best for your defendant. The judge may cut him some slack. A conviction was coming sooner or later, so what’s the difference?”

  “No difference now, but there could have been a big difference, Scott. You were going to be in for a surprise or two,” replied Jeff.

  “I was going to be in for a surprise? Bigger than the one you got when I brought out that little flashlight for his mother to identify?”

  “That was no surprise, Scott. How about meeting me at the Library so we can discuss it and hoist one to our first felony case?”

  “I’ll see you there.”

  After a short conversation with Grady, Scott gathered his papers and briefcase and left for the Library.

  CHAPTER 29

  Scott arrived at the Library a little after four and took a seat at the bar, alone. A few customers, mostly students with books propped in front of them, were seated at tables in the Study Hall. Jeff arrived in a few minutes and joined Scott at the bar.

  Juri was not immediately behind the bar, but as soon as he saw Scott and Jeff, he came over. He knew about the scheduled trial and that Scott and Jeff were on opposing sides. Several of their friends, other clinic students, had been in at lunch time and were discussing it. It was always big news among clinic students when a fellow student actually got to try a felony case.

  “Ah, the two of you, together again! Did you kiss and make up?” asked Juri.

  “My mouth is much too dry to kiss. I need something wet and cold. Set us up with your coldest draft,” replied Jeff.

  Juri turned to fill the order, at the same time proclaiming, “It’s half-price trivia time!” This was an offer he frequently made— answer the trivia question and the beer was half price. He placed two cold mugs of beer on the bar in front of them.

  “And for you, Jeff,” he said, “who was the only president to be married in the White House?”

  Scott quickly said, “Juri, that’s way too tough for Jeff; he couldn’t tell you who occupies the White House today.”

  “Of course, I can,” said Jeff. “That’s Ralph Nader. And to answer your question, Juri, that has to be Theodore Roosevelt. I know his first wife died.”

  “Wrong. And for you, Scott, whose picture is on the $100,000 bill?”

  “There’s a $100,000 bill?” asked Scott.

  “Was at one time, but no longer. I’ll even give you a clue. He was a president of the United States—and not Ralph Nader.”

  “Thanks—that was going to be my first guess. So, how about John Adams. I’m doubling my chances. There were two of them, so with either one, I win.”

  “Wrong, and since you doubled up, I’m doubling your tab.”

  “So give us the answers. You can’t just say we’re wrong,” said Jeff.

  “I can, and I did. Like your professors would tell you, look it up; that way you won’t forget.”

  “But I want to forget. My mind can only retain so much,” said Jeff.

  “You sure leave yourself open,” Juri said with a laugh as he moved over to wait on a customer.

  “Let’s get a table,” said Scott.

  They left enough cash on the bar to pay their tab and brought their beers with them.

  “I’m curious about your defense strategy,” said Scott. “And your comment about a ‘surprise or two’ for the prosecution. Weren’t you caught totally by surprise when the defendant decided to change his plea? We certainly were. I guess he didn’t want to sit there while his mother identified the retinoscope as one she owned.”

  “Wrong,” said Jeff.

  “Wrong? He knew he was about to be put away by his own mother, didn’t he?”

  “No; Charles didn’t plead guilty because he was afraid his mother was going to tell the truth. He was afraid she would lie. He was concerned that his action had caused his mother to be placed in a position to commit perjury. And she was about to do that.”

  “How? Wasn’t she going to identify the retinoscope as hers?”

  “No way, Scott. She was going to collapse your case. She knew from the beginning that she was the link to putting her son in prison, and she sure wasn’t going to let that happen with her testimony.”

  “You’re telling me she knew all along why she was on the prosecution list? I can’t believe her son would tell her he committed that crime. I actually felt sorry for her, poor soul.”

  “Yeah, ‘poor soul.’ She was way ahead of you guys from the get-go. Do you think she would forget about that visit from the detectives and her ID of that retinoscope?”

  “But the defense opted out of discovery. What did you know about our case? We thought it really strange... why would you do that?”

  “Didn’t need your discovery. Just think, Scott, if a defendant tells you everything—when, where, and how, what he left behind and what he didn’t leave behind—what do we learn from discovery?”

  “You could have learned if we had forensic evidence— fingerprints, blood.”

  “Yes, the blood part bothered us initially. If the forensic team found blood, you had him cold. But they never tried to get a DNA or blood sample, so eventually we were pretty sure you didn’t find any blood. And as far as fingerprints were concerned, we weren’t worried. I can’t tell you what Charles told us—privileged, you know. But just suppose he was wearing thin latex gloves throughout as you said in your opening statement. We don’t worry about fingerprints, do we?”

  “No, but you and I both know clients don’t tell you everything. You were taking a chance.”

  “No, we weren’t taking a chance; Charles was. We warned him that it was his ass that would sit in jail, not ours. He’s smart enough to know he had to level with us. And when we discovered he had leveled with his mother, we knew we could rely on him.”

  “So his mother was going to commit perjury—and you were going to let her lie through her teeth to the jury?”

  “Not our witness who would be lying; it was your witness,” said Jeff.

  Scott held his beer in both hands and studied Jeff’s response. After a moment’s pause, he said, “True, our witness. Our witness would be lying, but you and Charlie Roberts would be the only ones aware of it. Don’t you think that the Rules of Professional Conduct require that you inform the court that perjury is taking place?”

  “Scott, the Rules of Professional Conduct require us to represent the accused zealously, not foolishly. Do you really think the defense has the responsibility to tell the court that the prosecution witness is lying?”

  “Yes. The rules require that a lawyer make disclosure to avoid a criminal or fraudulent act being perpetrated on the court by his or her client. Charles’s mother was acting in concert with your client. He obviously solicited her false testimony.”

  “Wrong, Scott; on the contrary, he obviously had no desire for her to testify falsely. Once he saw his mother was going to perjure herself, he made his decision to plead guilty. Have you already forgotten that?”

  “That’s a bunch of BS, and you know it. You’ve already said you didn’t opt in to discovery because you didn’t need it. You knew we had no fingerprints, and you knew the mother was going to deny ever seeing or possessing the retinoscope. So you and Roberts both were content for the false testimony to come from that woman. You were a two-man welcoming committee for the testimony. As you said, she was going to ‘collapse’ our case. What happened was as unexpected by you as by us—none of us expected that little night-creeping criminal to have a conscience, if that’s what you want to call it. He got cold feet just as his mother was going to commit perjury.”

  “Scott, you’re a good prosecutor. Have I complimented you on your opening statement? Should have, damn good. I was envious. And now you make another good argument. But face it, the situation you are complaining about is not covered by the Rules of Professional Conduct. Our client wasn’t going to commit perjury. Your witness was. The rules don’t require us to do a
nything in that event. OK, we could request that Charles speak with his mother and tell her to please tell the truth. Yes, Mrs. Vandera, make sure you tell the truth so Scott Marino can send your son to the Georgia Penitentiary for the next five years. But how real is that? We’ll just have to agree to disagree on this.”

  Jeff stood. “I’ve got to go—got to find a couple witnesses to bribe for a trial scheduled for next week. By the way, how are you and Jen getting on? That’s a cute gal. I sure don’t understand what she sees in you. Give her my love when you see her, and tell her I miss her terribly.”

  CHAPTER 30

  As soon as Jeff left, Scott walked over to the shelves holding the donated law books and found a copy of the Georgia Bar Handbook. He sat at his table, leafing through the Rules of Professional Conduct, determined to find the provision covering the situation. He found a rule that seemed to be on point, but it was qualified by a “however.” The “however” emphasized that the “ethical” duty may be qualified by the constitutional provisions of “due process” and “right to counsel” in criminal cases. How ethics and the Constitution could conflict made no sense to Scott. He was thumbing through the rules again when he felt a pair of soft, warm hands reach around his head and cover his eyes.

  “Let me guess,” said Scott.

  “OK, but if you guess wrong, you are in big trouble,” replied Jennifer.

  She took a seat next to Scott. “How’s the trial going?”

  “It’s over,” said Scott. “He pleaded guilty. How’s your dad doing?”

  “I spoke with my mom at noon. He was discharged from the hospital this morning. He’s doing OK. Still some pain, but overall, good. He’ll have to take it easy for a while. They’re supposed to leave for a cruise in two weeks, and he’s determined to make it. I’m going home after my last class tomorrow. But your trial—he pleaded? That was unexpected, wasn’t it?”