Savannah Law

by William Eleazer

  • • •

  At Savannah Law, Professor Leyton was watching the Harrison trial on the big screen TV at the Student Center. He was seated next to Dean Adams and was surrounded by four or five dozen students, some in chairs but most sitting on the floor wherever they could get a view. Many of the regularly scheduled classes had been canceled for lack of attendance. Most of the students had either gone home to watch the trial or were there in the Student Center.

  When Judge Desano announced that he was removing Gordon as primary defense counsel, there was stunned silence then the deafening sound of students all talking at once and asking the same question of each other: Can he do that? As the cameras faded to the studio at WSAV-TV, the same question was waiting there for an answer. Could he do that? None of the studio’s expert commentators were prepared for an answer.

  Dean Adams turned to Professor Leyton. “It’s been thirty years since I was in a trial, Fred. And I never saw a situation like this. What do you think?”

  “This is déjà vu from my college days. Never in my wildest dreams would I have expected another law professor to get involved like this. My constitutional law professor at the University of Florida found himself in the same situation. He was assisting in a federal trial in Gainesville, a drug case with a law student as defendant. The prof was there to advise on some constitutional law issues, and, like Denis, he was not a trial lawyer. And, just as here, the trial attorney got thrown off the case for improper argument in the opening statement. Same scenario as this. Incredible.”

  “So a judge can do that?”

  “Well, he did it.”

  “I mean, was it legal? Did it stand on appeal?”

  “I’m racking my brain to recall. It happened before I was in law school, but I know it went all the way to the U.S. Supreme Court. And because one of our professors was involved, we all heard about it in our trial advocacy classes. It’s the only case in which the Supreme Court has discussed the limits of argument in an opening statement. I can even recall the name of the case—United States versus Dinitz—but I don’t recall the details of the decision. I do know the court made it clear that the trial judge can relieve a defense counsel for repeated violations. That’s what has happened here. Max Gordon was warned several times. I don’t think he can complain about Desano relieving him. But continuing the case with Denis as the only defense counsel? Now that may be a problem.”

  • • •

  After Judge Desano declared the court to be in recess, Scott and Daniel headed for Daniel’s office. It had been an exciting morning, but Scott was disappointed that Gordon was gone. He had looked forward to seeing him in action, even as opposing counsel.

  “Daniel, do you think we are going to have to try this case again, even if we get a conviction? I’m concerned about Desano’s ruling kicking Gordon off the case. Especially when Harrison now has to be defended by an incompetent law professor.”

  “I don’t know, Scott. What choice did he have? Gordon kept defying him.”

  “Well, maybe he could have leveled a stiff fine, or threatened him with contempt.”

  “Maximum fine is $500, and he had already threatened him with contempt. And I expect after the trial is over, he may lock him up for twenty days—that’s the max.”

  “Well, I’m still concerned,” said Scott. “This is all new to me. The last thing I could have imagined when the trial started has already happened. Relieving the defendant’s counsel is a pretty harsh sanction for mistakes in an opening statement.”

  “Those weren’t mistakes in the opening statement. They were obviously deliberate. It may be an issue on appeal, but I don’t believe it will be reversible. This issue was caused by the defendant’s own counsel. Harrison fired his appointed defense counsel and hired Max and Nolan. Now he has to live with that decision.”

  Shortly after noon, Nick Cox returned from his murder trial for a lunch break and stopped in Daniel’s office to see how the Harrison trial was going. Daniel told him about the morning events.

  “Desano never forgets and never forgives,” said Nick, slowly shaking his head from side to side. “Don’t ever get on his bad side. He still believes Gordon was behind Escobar’s escape. And he’s probably right. Be thankful you don’t have to deal with Gordon and his team now. But I do have some concern about what the Court of Appeals will have to say about booting him off.”

  Just as Nick left, Scott’s cell phone rang. “I thought I might catch you—Desano always takes a lunch break about this time.” It was Grady. “Saw you and Daniel on the news last night. Celebrities already. But what happened to Meg?”

  “Hospitalized. Daniel was appointed about fifteen minutes before the trial was to start, and Desano wouldn’t give a continuance. So Daniel and I have it now. Daniel had the voir dire, but I have the rest of the trial.”

  “Man, that’s great. Clinic student prosecuting the son of the next governor. You and the Max Gordon, head to head, on TV— that’s gonna be a TV classic. Every station in Atlanta picked up on it last night. I’ve set my TiVo for today.”

  “Not head to head with Max Gordon but with Savannah Law Professor Denis Nolan.”

  “Nolan? I don’t know the guy. What happened?”

  Scott briefed Grady on the morning’s event, voicing his concern about Desano relieving Gordon.

  “Got to admit that’s quite unusual,” said Grady. “I’ve never seen it done, but in the back of my mind somewhere, I do recall hearing about a case where the Supreme Court weighed in on it. The trial judge relieved the defense counsel from the case after he ignored a couple of warnings to quit arguing in his opening statement. You can find it if you are interested. I’m due in trial now—sorry, I’ve got to run. But I’ll be keeping up with you on Atlanta TV.”

  Scott was indeed interested in searching for the case, but he had no time now, and, besides, what was done was done. Even if Desano had erred, he couldn’t do anything to change it now. He would look for that case later; right now all he had on his mind was presenting his evidence.

  • • •

  Scott and Daniel entered the courtroom at 1:45 p.m. and found it packed. He noticed his old roommate, Jeff Swenson, in a center row. Jeff grinned and gave him a thumbs up. There were several other clinic students nearby. The front row seats were occupied by news media. The TV camera operator was busy walking around the courtroom taking readings with a light meter. Scott walked to the prosecution table, sat down, and opened his trial notebook. He would soon be calling his first witness, the first officer to respond to the robbery. He still had not heard from Richard Evans, who was to pick up Josh Johnson at the airport. This caused him some concern, but he knew planes from Atlanta were often delayed, and, fortunately, Josh would not be needed for two or three hours.

  The defendant was seated alone and unshackled, under the watch of an armed deputy seated nearby. Scott wondered if his new defense counsel, Professor Nolan, was in a conference room practicing his opening statement or in the men’s room throwing up. The latter thought brought a smile to his face.

  As if he were reading Scott’s mind, Daniel tapped Scott on the arm and signaled him with his thumb to look over his shoulder. “Nolan and Gordon are on the back row. Wonder what they are plotting?”

  Scott turned. The two men were in a serious conference in the farthest corner of the courtroom. Gordon was doing the talking and Nolan, the listening. “Sneak,” the former player, was now the coach. During his noon hour visit, Nick Cox had said he expected Gordon would stick around and do just that. There was obviously a big retainer involved, and he was not likely to forfeit it by leaving town. He would stay and put in the time. Nick also told Scott to expect Nolan to make a request for a continuance. If it was for an extended period, Scott might as well oppose it since Judge Desano was not in any mood to grant it and the jury had already been selected and sworn. However, if for a short period—a day or two—he shouldn’t oppose it. In fact, he should support it. Upon appeal, the appellate court would likely fi
nd a denial of a short continuance to be an abuse of discretion. Scott agreed.

  Nick was wrong. There was no request for continuance. And Nolan made no request to continue the defense opening statement. Judge Desano told Scott to call his first witness.

  “The State calls Officer C. W. Furlow,” said Scott. Furlow was the first officer on the scene after the robbery. He was followed by a detective and two members of the forensic team who took fingerprints. Nolan did not cross-examine any of the witnesses, and the trial was moving swiftly, throwing Scott’s timetable off. Although he had subpoenaed Mr. Patel for the trial, he had informed him that he would not be called until Wednesday. With the jury being sequestered for the trial, he knew Desano would keep them in the courtroom until at least five, and probably later. Scott would have to find a way to fill in the time for the rest of the afternoon in case Josh did not get there soon.

  None of the early afternoon witnesses had much testimony that would help the prosecution, but Scott knew that before he called them. These witnesses were for numbers only. The jury heard a lot about the work of the forensic team—especially fingerprint evidence—but nothing that connected the defendant to the crime.

  At 3:30 p.m., Judge Desano announced that the court would take a twenty-minute recess. Without giving a reason, Scott asked if he could make it a thirty-minute recess. Any extra time would be helpful. The judge agreed. Court would resume at four. Surely Josh would be there by then.

  He wasn’t. Richard returned from the Savannah Airport with news that Josh did not arrive as scheduled. Richard had waited for the next incoming flight from Atlanta, and he was not on that flight either. Additionally, Delta advised Richard that Josh Johnson was not on any flight manifest for that day.

  “I followed up with several calls to Josh’s cell phone, but there was never an answer,” said Richard.

  “Damn,” Scott muttered under his breath. He had counted on Josh concluding that day’s testimony with a description of John Harrison holding a shiny revolver in the face of Vijay Patel. Instead, he would have to finish the day with a photographer, another detective, and a couple of neighbors who saw a strange car parked two blocks away, which was gone shortly after the robbery. Neither of the neighbors could identify the make, model, or color of the car. Useless evidence, except it added to witness numbers as well as further proof of a thorough investigation by hardworking detectives. That morning, Scott wasn’t sure he would call these witnesses; now he would have to. He wasn’t sure what Desano would do or say if he announced he had no further witnesses available for the afternoon, but he was sure he would be very unhappy.

  The trial proceeded for the rest of the afternoon as expected, somewhere between uneventful and boring. The TV camera continued to roll, but there could be no question that the absence of fireworks to match the morning session was disappointing to the media.

  After the second car-in-the-neighborhood witness, Scott announced he had no further witnesses available at that time, and Judge Desano recessed for the day. It was shortly after five. Scott wondered what the six o’clock news would report. Sure, there was the sensational surprise of one of the nation’s most successful trial attorneys being dismissed by the trial judge. But as far as the evidence was concerned, it had been an unproductive day. However, with the defendant being the long-lost son of the leading Georgia gubernatorial candidate, the media would be there when the court opened Wednesday.

  Richard promised to pursue the missing witness and, if at all possible, have him in the courtroom at nine in the morning.

  Scott worried about the caveat, “if at all possible.” He tried to be optimistic. If Josh testified and was followed by Patel, it would be a strong finish for the prosecution. For the defense, he expected Harrison to testify and deny even being in Savannah, but that was about all he expected from the defense, and he was confident that his two eyewitnesses would carry the day. Scott waited until the crowded courtroom was cleared, conferred briefly with Daniel, and went home.

  Despite his youth and excellent physical condition, he was exhausted. He would go over his notes, practice his closing argument, and get a good night’s rest. He was curious about what the local TV news programs were saying about the trial. And he wanted to check in with Jennifer. In fact, that was first on his agenda.

  Jennifer was at her apartment. She was expecting her study group over at seven. She told Scott she had gone to the courthouse after her nine o’clock class.

  “I got there and the bailiff said the courtroom was closed. No seats left. So I hurried back to the Student Center to watch it on TV. By that time, Max Gordon had already been relieved, and some talking heads were discussing what had happened. They kept running the video clip of his opening statement and your objections. They had several criminal defense attorneys commenting on the judge’s action and speculating on what the appellate court will do if he’s convicted.”

  “So what did they predict the appellate court would do?”

  “They were all over the page. One seemed to think it depended on what took place when the judge called you and the defense counsel into his chambers. They were wondering if a record had been made of that session. Was the court reporter in there?”

  “She was, and she made a record. But tell me, what’s your opinion of the judge’s action?”

  “You expect a 1L to have an opinion on that? I was going to ask you that question.”

  “I think it will be OK, but it won’t make any difference if we don’t get a conviction. We only have two witnesses left to testify, and one is lost somewhere between here and Colorado.”

  “Oh, I’m sorry to hear that. We had a big crowd at the Student Center today. This trial—professor versus clinic student—is the only talk of the campus.”

  “Who are they pulling for?”

  “Well, when it was between you and Max Gordon, they were cheering when you were objecting, and a big cheer went up when the judge ordered him out. But now, with you prosecuting and a Savannah Law professor defending, I don’t know. How do you think Professor Nolan is performing?”

  “Performing? He’s hardly opened his mouth. He just sits there like his bottom is glued to his chair. I had expected some objections— had wanted some objections—but he’s a spent balloon.”

  He could hear Jennifer’s muffled laugh. They talked for a few more minutes about the trial and confirmed their date for Friday night. Jennifer said she planned to be at the trial in the morning. Scott told her if she arrived by eight-thirty, she should be able to get a seat.

  After they hung up, Scott turned on his TV. The trial continued to be the prime local news of the day, and now that the famous Max Gordon was gone, the media was trying to stir up interest by focusing on the professor-versus-student story line. There was a clip of a reporter interviewing Senator Harrison, who was campaigning in Augusta. The senator was asked about the trial and the ejection of Max Gordon—and why he and Mrs. Harrison were not attending the trial of their son. He responded with a short statement that he did not want to contribute to the media frenzy and would have no comment at this time. He promised to fully answer all questions once the trial was over.

  The final clip that Scott saw before turning off the TV was a short interview of Max Gordon by a reporter on the courthouse steps after Tuesday’s afternoon session.

  “Will you be at the courthouse Wednesday morning when the trial resumes?” the reporter asked.

  “Professor Denis Nolan has the case for trial now,” said Gordon, “but, yes, I’ll be there, in the back of the courtroom where I was this afternoon. John Harrison is still my client for all purposes except for advocating his case before this jury. I intend to be as close to the trial as I can. If Nolan needs my advice, he knows where to find me.”

  “How do you feel about today’s events?”

  “In the words of Woody Hayes, ‘There’s nothing that cleanses your soul like getting the hell kicked out of you.’ But despite this setback, we expect the jury to acquit John Harrison. A
t the end of this trial, he will be a free man.”

  About eight o’clock, Scott’s cell phone rang. It was Jeffrey Swenson.

  “Let me guess,” said Jeff. “You’re working on tomorrow’s trial.”

  “There’s a trial tomorrow?” asked Scott.

  “There is. And my ex-roomy, Scott Marino, and his co-prosecutor, Judge Lawrence Desano, kicked some butt big time today. That was a thing of beauty to watch.”

  “Hush, Jeff, this line may be tapped. Besides, that kick in the butt was self-inflicted.”

  “Anyway, I didn’t call to stroke your already-inflated ego. I called to give you a heads up. Did you get a good look at the spectators in the courtroom today?”

  “Well, I saw you and some other clinic students. And some reporters. And I recognized a few local attorneys in the back.”

  “Did you notice anything unusual about the other spectators scattered around the room?”

  “Can’t say that I did. What are you suggesting?”

  “I don’t really know. There were three or four of them, young men, all dressed in suits and ties. And they all bore an uncanny resemblance to the defendant. Not exact, but same hair color, body shape, height. Really strange. I was curious, so I followed one out after the trial was over. Asked him where he was from. He said right here in Savannah. I asked, ‘Law student?’ He said, ‘No, not a law student.’ I asked, ‘Relative of someone connected to the trial?’ He said ‘No.’ I asked, ‘What brings you to the trial?’ He says, ‘Just curious.’ I said, ‘My name is Jeff Swenson. And yours?’ He says, ‘I don’t think it’s any of your business,’ and walks away. Of course, he was right, but I’ve decided to make it my business by calling you. That’s all I know, but I don’t believe that guy was there out of curiosity.”

  “Thanks, Jeff. I’ll take a better look tomorrow. Will you be there again?”

  “No, but I’ll be watching on TV. By the way, how did Professor Nolan get involved in this? I didn’t know he was a criminal trial lawyer.”