Absolute Certainty

by Rose Connors

  Rob and Geraldine are both in Rob’s office with the door closed. A note on my chair in Rob’s oversized scrawl tells me to buzz him when I arrive, but I am in no hurry to comply. Instead, I head to the lunchroom and pour a cup of coffee. I am not the only one in this office who has some explaining to do. I will meet with them when I am ready. And they will answer my questions first.

  The door to Rob’s office opens and, simultaneously it seems, Geraldine is behind me. She looks worse than I would have thought possible. Her eyes are bloodshot. The blond hair on top of her head is matted and flat, as if she wore a ski cap to bed last night.

  But when I take in Geraldine’s clothes, I realize she didn’t go to bed last night. She’s wearing the same suit and blouse she had on in the courtroom yesterday. Her makeup is dried out and cracked. She reeks of stale cigarette smoke. And she is livid. “I ought to fire you, Martha.”

  “If that’s what you should do, Geraldine, go ahead and do it.” The indifference in my own voice surprises me. The truth is that I can’t get fired. I need access to my file cabinet when the police nab someone for Jake Junior’s murder. That fact alone made me hesitate before heaving the file at Geraldine yesterday.

  I am relieved, though I try hard not to show it, when Rob’s words fill the lunchroom. “No one is getting fired over this, Geraldine.”

  Rob fills his own coffee mug, and directs me to his office with a wave of his hand. Geraldine is so close behind me I can actually hear her drag on her cigarette. Rob’s office is literally filled with smoke, clouds of it drifting in the morning sunlight near the closed windows. Cigarette butts are everywhere. The general chaos in Rob’s normally tidy office makes me realize that he and Geraldine have been here all night.

  Rob points toward one of the chairs facing his desk, but I elect to stand. I open a window near his chair as high as it will go and lean against the sill. Rob sits down heavily, throws his glasses on top of the clutter on his desk, and leans on his elbows. “Marty, what’s going on?”

  For a fleeting moment I panic, imagining Rob and Geraldine have discovered the contents of the top drawer of my file cabinet. But that’s impossible. The drawer is locked. The key is in my pocket, next to my Lady Smith. I decide to stick to the plan and take the offensive. “Why don’t you tell me, Rob?”

  An unexpected surge of anger rushes through me and I wheel around abruptly to face Geraldine. She actually jumps. “Better yet, why don’t you tell me, Geraldine? Why don’t you tell me why I walked into that courtroom yesterday—fully prepared to argue the motion—and got sent crawling back to my seat? That was quite an entrance you made, Geraldine. You were a female version of Clarence Darrow for a minute or two. So why don’t you tell me what the hell is going on?”

  Geraldine doesn’t even blink. She walks to Rob’s desk, picks up a copy of the Bridgewater report on Eddie Malone, and tosses it at me. “Page eight,” she says.

  I flip to page eight of the report, a log sheet of sorts. It details every departure Eddie Malone made from his hospital room during his twenty-day stay. The date and time of departure are in one narrow column. Eddie’s destination is listed in the wide middle column. The time of return to his room is in the final narrow column.

  Almost all of the entries reflect Eddie’s trips to diagnostic therapy of one sort or another. But one is different. Halfway down the page is an entry that Geraldine has highlighted in yellow: Fri. 6/11 @ 1025 hrs. / Conf. Rm. B—conf. w/ Attys Madigan and Nickerson / 1105 hrs.

  So that’s it. Geraldine smells a rat. When she saw that I went to Bridgewater with Harry, and never mentioned that trip to her or to Rob, she concluded that Harry and I had forged some sort of an inappropriate alliance. She thought I would throw the competency hearing.

  She is right, of course, about my alliance with Harry. But she couldn’t be more wrong about the hearing. I still believe in the integrity of our criminal justice system. I still believe the system can— and does, in the long run, at least—work. I am well aware of the role I play in the system. So long as I continue to play that part, I will honor my oath of office.

  I was prepared to argue against Harry’s motion, to tell Judge Gould that the issues Harry raised are within the jury’s province, not the judge’s. I would have won, and the competency hearing would have gone forward. Harry knew that as well as I did. But Geraldine took over. She wasn’t prepared to address the motion, and the competency hearing went nowhere. If Eddie Malone walks, it’s on her shoulders, not mine.

  I toss the report back on Rob’s desk and direct my only comment to him. “So what?”

  Rob puts his hands behind his head, his elbows pointed outward, and leans back in his chair. He is staring at me, assessing my candor. “Marty, you have to admit, it’s highly unusual.”

  My fuse is uncharacteristically short this morning. I bark at him. “Highly unusual? Trying to get to the truth? Is that highly unusual? If it is, then we should all reread the oath we took when we were sworn in as prosecutors.”

  Reference to the oath sends Geraldine over the edge. She slams one open hand—the one not busy with the cigarette—down on Rob’s desk. “Forget it, Martha. Your more-ethical-than-thou routine won’t work this time. You’re off homicide.”

  “I’m what?”

  I turn to Rob. One look at him tells me he has already agreed to this. It took Geraldine all night to convince him, but in the end, she did.

  Rob puts his face in his hands and Geraldine keeps talking. “You heard me. You’re off homicide. An attorney who’s running all over the Commonwealth with the goddamned Public Defender doesn’t handle homicides in my office.”

  I keep my eyes on Rob. “This is still your office, Rob. Not Geraldine’s. You have the final word here. What do you have to say?”

  Rob lowers his hands, and I am sickened by the apology that is written on his face.

  “Marty, you’ve been under a tremendous amount of stress in recent months. The Scott trial alone was a big burden, and you handled it beautifully. The subsequent murders in Chatham are weighing on all of us. But Jake Junior’s death, that’s been especially hard on you. Good God, an event like that would knock anyone down.”

  I don’t move. I won’t let him off that easily. He needs to say the words. After minutes of silence—Geraldine doesn’t even inhale—Rob realizes why I’m waiting. At least he has the common decency to look me in the eyes.

  “You’re off homicide,” he says.

  CHAPTER 44

  Thursday, June 24

  Harry is waiting when I pull into my parking space, but he’s not sitting on the curb. Instead, he is pacing the small patch of grass like a man whose wife is about to give birth in the parking lot. He hasn’t shaved. His jacket and pants are both gray, but they don’t match. I wonder if he knows.

  He hands me a letter-sized envelope as soon as I join him on the grass. “Have you seen this yet?” he asks.

  I haven’t. The return address says it’s from the Court of Appeals. I know without looking that it is the single justice’s response to Harry’s Rodriguez appeal.

  The date stamp from the Public Defender’s office indicates that Harry received the decision yesterday. My office probably did too. It must have gone to Geraldine. I feel slightly sick to my stomach as I digest the fact that the mail on homicides is no longer directed to my attention.

  The envelope contains only two sheets of paper, so I know at once that Harry has lost on both counts. When a high court disagrees with a trial judge, it almost always feels compelled to explain its decision in detail. When a high court disagrees with a criminal defendant, it is less likely to do so. As a result, decisions reversing trial judges’ rulings are usually lengthy and complete with citation to pertinent case law. Decisions affirming those rulings are more likely to be brief and conclusory.

  Harry continues to pace while I stand still on the grass and read the opinion. Justice Russell Henderson disposes of the issues in little more than a page and a half. Most of his opinion is devo
ted to a recitation of the basic facts and a concise statement of the issues Harry raised in the two motions Judge Carroll denied. In the end, Justice Henderson rules:

  sThe trial judge’s failure to send the sequestered jurors back to their hotel rooms on the night of May 30 does not render the verdict unreliable. Although the jurors deliberated from eight o’clock on Sunday morning until approximately four o’clock on Monday morning—admittedly an unusually long day of deliberations—there is no evidence to suggest that any juror did so under duress. To the contrary, the record indicates that the judge’s bailiff checked on the jurors repeatedly and, on each occasion, was informed by them that they wished to continue deliberations. The trial judge did not abuse his discretion in allowing them to do so.

  Nor do I find any error in the trial judge’s refusal to set aside the verdict after a similar murder was committed a year later in the same town. While such an occurrence may be unusual in the normally peaceful village of Chatham, I daresay it is routine in less privileged communities of the Commonwealth. The commission of a subsequent crime—even one with marked similarities—provides no basis upon which a trial judge should set aside a jury’s verdict.

  The decisions of the trial judge are affirmed. There is no need for a new trial, as there has been no miscarriage of justice.

  Harry stops pacing when I stop reading.

  “The problem is,” I tell him, “that the subsequent murder did occur in the normally peaceful village of Chatham, not in one of the less privileged communities of the Commonwealth. To say that such an occurrence may be unusual in Chatham is the height of under-statement.”

  “Bingo,” he says. Harry has been shot down so many times in the appellate process that losing doesn’t faze him anymore. “You’re starting to sound like a defense lawyer,” he tells me with a wink. “I like that.”

  It occurs to me that Justice Henderson’s words are also the height of judicial indifference, but I don’t say so. Enough sounding like a defense lawyer for one day.

  Harry hands me yet another document, a new motion to dismiss the charges against Eddie Malone. It’s the same motion he filed on behalf of Rodriguez, the same argument he just lost on appeal. This time, though, there is a third photograph added to the lineup, one of the shots I took of Jake Junior in the morgue. And once again, the whole motion, complete with photos, is copied to Woody Timmons at the Cape Cod Times.

  If I am ever in trouble with the law, I want Harry on my side. He never gives up.

  I hand the motion back to him. “You’ll have to give that to Geraldine.”

  “Geraldine? Why Geraldine?”

  “I’m off homicide, Harry.”

  He looks genuinely stricken. “Tell me you’re joking, Marty.”

  “It’s no joke. It’s my punishment for running all over the Commonwealth with the Public Defender. And—though no one is saying so—for hanging Geraldine out to dry during Tuesday’s motion.”

  Harry’s stricken look disappears instantly. He raises his arms and his face to the cloudless sky. “Oh, sweet Jesus, that was golden. I’d sell my soul for a still shot of Geraldine’s face when you walked out the courtroom door.”

  I can’t help laughing, and when Harry laughs too, I laugh harder. Just like that, neither of us can stop. We stand in the county parking lot, Harry with his arms in the air, laughing until we both have tears in our eyes. Passersby either stare openly at us or keep their eyes glued to the ground, pretending we’re not here. They might assume we’re both scheduled for commitment proceedings.

  I turn away from Harry to wipe my eyes, and my laughter comes to an abrupt halt. Geraldine’s Buick is in her reserved spot. She is leaning against its driver’s door, cigarette in hand. Her eyes are narrowed to slits.

  CHAPTER 45

  Friday, June 25

  At five minutes before two I push my way through the back doors of the District Courtroom and slip down the left-hand aisle. I hope Geraldine won’t notice me. She came to my office this morning to tell me I had already done enough damage in the Malone case. I was to stay away from the courtroom when Judge Gould rules on Harry’s motion to dismiss, she said. Her prohibition only solidified my decision to attend. I probably would have been here anyway, but Geraldine’s edict settled the matter.

  I stop at the third bench from the front. It’s already crowded, but Woody Timmons is on the end. He looks surprised to see me here, searching for a seat with the general public. He pushes his colleagues to the right, making room for me and my briefcase on the far left corner.

  “Welcome to the wild side,” he says.

  The Kydd is at the counsel table with Geraldine, fidgeting with folders and documents. Geraldine, on the surface, looks more confi dent than she should. Rob is seated at the bar, and only those of us who know him well can see that he is worried. Eddie Malone is at the defense table with Harry, and Eddie just looks defeated.

  Harry is the only person in the room who is genuinely enjoying himself. I can’t help but feel just a little bit glad for him. By filing a motion he never expected to win, he somehow brought the District Attorney’s office to its knees. A wonderful turn of events in the life of a public defender.

  Judge Gould takes the bench promptly at two o’clock. Geraldine and Harry remain standing when the rest of us sit. Judge Gould ignores Geraldine. He delivers his decision to Harry and Eddie, as if they are the only two people in the room.

  “Mr. Madigan, I have given your motion to dismiss the charges against Mr. Malone a great deal of thought. Technically, I should not have done so. You realize, I am sure, that the argument you make here depends entirely upon the resolution of factual questions. As such, it is an argument that should rightfully be presented to the jurors. I will not substitute my judgment for theirs.”

  I hold my breath as Geraldine turns forty-five degrees to her left. She doesn’t look back far enough to notice me, though. Instead, she sets her lips in an almost imperceptible smile and telegraphs “I told you so” to Rob. My stomach tells me that’s premature.

  Judge Gould faces Geraldine while she is still turned away from him. He removes his glasses and folds them in his hands. He glares at her when she faces front again.

  “I will, however, order that the District Attorney’s office produce forthwith a complete and detailed report on the chain of custody of the evidence in this case. Furthermore, I order that the District Attorney’s office do so for each and every piece of physical evidence it intends to offer against Edmund Malone.”

  The reporters stir, but they shouldn’t. The defense is always enti tled to chain-of-custody documentation for the Commonwealth’s evidence. The rules of evidence require that any party who offers tangible items for admission at trial, such as the narcotics in a drug case or Eddie Malone’s bloody clothes and sneakers in this case, must account for the whereabouts of those items from the moment they are seized from the defendant until the moment they are offered into evidence in the courtroom. It’s unusual to be ordered to produce such documentation for every piece of evidence at this stage, but that is nothing more than an administrative burden. And it will fall on the Kydd’s shoulders, not Geraldine’s.

  She gives the judge her most ingratiating smile. “The District Attorney’s office will be happy to comply with the court’s order, Your Honor.”

  She turns her frozen smile on Harry and takes her seat. But Judge Gould isn’t through.

  “That’s not all you will comply with, Attorney Schilling.”

  There is an unmistakable edge in Judge Gould’s voice. Geraldine undoubtedly hears it. She jumps back to her feet. The judge folds his arms on the bench and leans toward her.

  “The court neither knows nor cares what your motivation was for the show you staged in this courtroom on Tuesday, Ms. Schilling.”

  Rob puts his face in his hands. The Kydd leans down toward the floor, fussing with papers in his briefcase. Geraldine grows pale and stares at the counsel table. Even I wince, involuntarily. Only Harry keeps his head hel
d high as Judge Gould continues.

  “But you won’t get away with it again. This is a court of law, Ms. Schilling, no matter how many reporters are seated in the gallery. We don’t pander to the press here. I will not stand by and watch you use the judicial system for political gain.”

  Rarely, if ever, has this courtroom been so quiet. But Judge Gould raises his voice anyway. “Any more grandstanding in this courtroom, Ms. Schilling, and I will hold you in contempt. I mean that. I suggest you take this warning seriously.”

  If I were in Geraldine’s shoes, I would assure the court that I take the warning seriously and sit down. It’s pretty clear to me that Judge Gould is not in the mood to entertain explanations. Apparently, though, Geraldine reads the situation differently. She smiles at Judge Gould as if she understands the source of his confusion and is about to set him straight.

  “Your Honor, perhaps I can explain.” Geraldine moves away from the counsel table and takes a few steps toward the bench. Judge Gould sits back in his chair, expressionless. It occurs to me that he might allow her to take just enough rope to hang herself.

  “I am sure Your Honor is familiar with Attorney Martha Nicker-son of our office.”

  I bolt upright at the mention of my name. So does the Kydd. Woody Timmons turns sideways to stare at me. I keep my eyes focused forward, but I am certain he can just about read my thoughts. Judge Gould leans forward in his chair again and nods at Geraldine, but says nothing.

  “Your Honor is aware, then, that Ms. Nickerson has served our office well for many years.”

  Woody is gaping at me, unabashed. He knows as well as I do that Geraldine is not standing before the court to praise my career as an Assistant District Attorney. She is setting the stage to pass the buck. Somehow, she is going to blame Tuesday’s fiasco on me.