Bear is Broken

by Lachlan Smith

  “Or I could do it,” I heard myself say. “I could get up there tomorrow and give that closing argument, if you don’t mind taking your chances.”

  “You?” Ellis was startled. “Don’t you have to be a lawyer?”

  “I am a lawyer. I just passed the bar exam.”

  Now he looked embarrassed. I meant a real lawyer, is what he wanted to say. Instead he asked, “How you going to give a closing argument?”

  “I know what Teddy was planning to say. So I’ll just get up there and say it. Simple as that.”

  I didn’t blame him for the skepticism that showed on his face. He kept pressing together his lips in an attempt to hide it, but the look kept returning.

  “We’ll have to persuade the judge that the jury hasn’t been tainted by what’s happened. No judge likes to burn a jury, not if she can help it. And you have the right to an attorney of your choice, whether it’s me or someone else. I’ve been there all along. You just say yes when the judge asks if you want me as your lawyer, and you let me say whatever else needs to be said.”

  He sat very still, staring distantly. Finally he licked his lips and parted his hands. He looked like a man who’d just been goaded into a stupid bet, his life on the table between us. “Monkey Boy to the rescue.”

  I nodded, my hand going reflexively to my shoulder with the tattoo. “Go Monkey Boy,” I said. I reached across the table and shook his hand.

  ~ ~ ~

  When I got back to the office Tanya was still there, working on her computer. “They didn’t take us off the calendar tomorrow for Ellis Bradley, did they?” I asked.

  “No. You’re still on at nine am. Why?”

  “I’ll need that list of open cases by the weekend. I’ll be in Teddy’s office.”

  She didn’t speak. She didn’t look up. Probably as far as she was concerned, hell was freezing over.

  Outside the window the orange streetlights were diffused by the fog. On the sidewalk whores and drunks were filtering southward. I took off my jacket and tie and sat down at Teddy’s desk with the trial binders. I had Teddy’s notes, along with ones I’d made during the trial and during last night’s marathon practice session. I didn’t intend to sleep until I figured out how to impersonate a trial lawyer.

  For a while it seemed that Tanya would try to outwait me. She worked at her computer in the outer office. On what I don’t know. Her resume, maybe. At ten she ordered a pizza, but I couldn’t eat, even though I hadn’t had lunch. It was as if my stomach had been disconnected. Finally at eleven Tanya shut down her computer and left without saying good-bye.

  Alone, I paced from wall to wall, trying but failing to make Teddy’s words sound natural on my tongue. Stepping into his place was not going to be as easy as I’d thought when I made my offer to Ellis. Words that sounded tough and forceful and utterly convincing when Teddy spoke them became carping and petulant. Even his opening line fell flat: “After forty hours of testimony and ten days of trial, we know only one thing for certain. One of these two women is a liar, guilty of perjury and seeking to convict an innocent man.”

  To the jury, spoken by Teddy, this accusation would come as no surprise. But while Teddy mercilessly attacked Lorlee in his cross-examination, I had sat meekly, silently at the defense table making notes and occasionally leaning over to whisper calming words to Ellis. The jurors had never heard a word from me. I’d gained no authority in their eyes; I’d banked no trust. When I stood up in Teddy’s place, even the jurors who were with us were going to wonder who I was and why I was there rather than simply listen to what I said. Trying to parrot Teddy’s personality and tone was the surest way to close their ears.

  It was 2 am before I finally accepted that I would have to go through my notes and Teddy’s notes and the evidence and come up with a new closing. I felt I wouldn’t have the latitude to argue the case as forcefully as Teddy would have. I had to trust the jurors to have his voice ringing in their ears.

  All the while my eyes kept going to the phone, expecting it to ring with news from the hospital. I found myself forgetting that Teddy wasn’t there with me, guiding me through that wilderness of facts and law. I had only to imagine his reaction to some point I was trying to make to feel an instant, powerful surge of approval or disapproval, like a compass needle spinning to North. A miniscule portion of Teddy’s legal knowledge and wisdom must have lodged like a seed in my brain, and that seed was now beginning to germinate.

  Just before dawn I visited the restroom. Catching a glimpse of myself in the mirror above the sink, I saw how badly I needed a shower and a shave. My brown hair was mussed, my eyes were bloodshot, my jaw gritty with stubble. Over the summer I’d lost weight, my slight frame dwindling. Too much work, not enough biking. Washing my hands, I noticed a black gummy residue under my cuticles. I stood rubbing my hands under the water for a full minute before I realized it was Teddy’s blood.

  I gazed at my reflection, waiting to see if I was going to break down. If I did, I’d be no use to anyone for a long time afterward, least of all to Ellis.

  It didn’t come. After a minute the hot prickling feeling in my nostrils and eyes went away, and I stopped feeling like I was going to throw up. I finished washing, paying careful attention to my cuticles and fingernails, then dried my hands.

  I borrowed one of Teddy’s jumbo briefcases and filled it with the trial binders, my notes for closing, a CEB practice book, and a copy of the evidence code. It was a cool, clear morning. The night’s fog had disappeared, and the sky was salmon colored. It was still early enough that the lighted windows of the buildings showed brighter than the sky, and the few cars on the street all had their headlights on, their hoods and windshields beaded with dew.

  I went home, took a shower, drank two cups of coffee, and put on the second shirt Tanya had bought. My roommates were stirring, but I avoided them. In my room, I called the hospital. Teddy’s condition was unchanged. I was in the middle of calling a cab when I realized I couldn’t possibly ride all the way out to Potrero and back. Even if I had time, I didn’t know what it would do to me to see Teddy on his hospital bed with his head wrapped in bandages, breathing through a respirator. With so much on the line for Ellis, I couldn’t risk the chance that it would be more than I could handle.

  For Teddy’s sake I had to put Ellis first, I told myself. I was back at the office in time to organize my notes and also do some last-minute research into mistrials due to attorney withdrawal, illness, and death.

  Chapter 7

  I expected Tanya to be in the office when I returned. She usually showed up every morning around seven, no matter how late she’d worked the night before. But the office was empty, the vinyl cover still draped over her computer monitor, the air as stale and worried as it had been when I’d left an hour before. The files I’d asked for were rubber-banded together on a corner of her desk, with two lists on top of them: one of active clients with contact information and/or jail numbers, the other, longer, a spreadsheet of more than thirty pages, listing chronologically all the clients Teddy’d ever represented. There was no explanatory note, nothing to indicate that I was the one who had asked her to produce these records. But there they were, waiting for me since she’d left without saying anything.

  I faxed the list of current clients to Detective Anderson.

  I rode the elevator down at eight o’clock and set out on foot for the Civic Center courthouse. The air was still cold enough to chill my hands, but I’d sweated through my shirt by the time I turned up McAllister.

  I’d walked the way Teddy and I usually did, forgetting that our normal route would bring me past Coruna. I was in front of the restaurant when my legs stopped, seemingly of their own accord.

  I couldn’t see inside. A heavy velvet curtain blocked the front window. Something made me try the door. It was unlocked. I pushed it open, shouldered through the velvet curtain,
and walked in.

  In the long, narrow restaurant all the lights were on, and I heard water running near the back. There was an empty place where my brother and I had been sitting. The floor had been sanded, and someone had hung a painting on the wall behind Teddy’s seat. The smell of bleach was very strong. I guessed that by lunchtime they would be ready to open for business.

  The sound of water running stopped, and a tall, bearded guy wearing a rubber apron and gloves came out from the back carrying a bucket of foamy water in one hand and a scrub brush in the other. “We’re closed,” he said. He gingerly knelt and began scrubbing at the place where the floor met the wall. He rinsed out the brush and went at it again, like Lady Macbeth at her housework. “We don’t do breakfast,” he added when I didn’t move or say anything.

  “What’s for lunch?” I asked. “Suicide bombers?”

  It was a cheap shot. Did I imagine he was going to close his restaurant and preserve it as a shrine to my brother? It wasn’t his fault Teddy had been shot there. He straightened, then got to his feet so slowly that he might have spent the last twenty hours down there. From the look on his face I guessed he was going to come over and push me out the door, but when he’d walked halfway across the room he stopped, and the irritation froze in his eyes. “Jesus, you’re the dude who was with him.” He sighed. “I’m sorry, it’s just that we’re closed. But if there’s anything we can do . . .”

  I got out of there before he could offer me a complimentary gift certificate for my inconvenience.

  ~ ~ ~

  A couple of camera trucks were double-parked outside the courthouse, but I didn’t immediately connect their presence with my situation. I went through security and rode the elevator up from the rotunda. As I rounded the corner I saw that the fourth-floor hallway, which was normally deserted, was occupied by half a dozen reporters and a pair of camera crews. The jurors were waiting on the benches at the far end of the hallway. They were hands-off, but I received no such deference.

  The outer doors of Judge Iris’s courtroom were locked, and I banged on them, hoping to rouse the deputy. The reporters gathered around me and I turned, not liking to have my back to them. A TV anchor stood next to me, a woman in a pantsuit over a low-cut blouse. She stuck her microphone under my jaw and spoke in the intent auctioneer’s style her kind have adopted. “Mr. Maxwell, do you have any idea who might have wanted to kill your brother?” As she asked the question her eyes focused somewhere behind my face, behind the door. Standing so close, I saw that she was bored with the question, bored with me, bored with murder.

  I just stood there like a poorly animated corpse until the sheriff’s deputy assigned to Judge Iris’s courtroom unlocked the door. He stared at me for a moment, as if the courtroom were the last place he’d expected to see me this morning. Then his face sagged, and he gave a little nod and let me by him. The reporters and jurors had to wait in the hall. While he relocked the doors I went on through the low swinging gate that divided the spectator gallery from the counsel tables. I had to remind myself to sit in Teddy’s chair, on the side closest to the jury. I arranged the contents of my borrowed briefcase in front of me. There was a dry rasp in my throat, and a muscle in my leg kept twitching. I couldn’t seem to follow any thought to its conclusion.

  The court clerk came through the door at the back of the courtroom, the one that led to the judges’ chambers and to the secured hallway through which prisoners were brought. “Oh,” she mouthed, stopping short as she saw me. Without a word she turned and disappeared back through the door she’d just entered. I heard the wooden heels of her shoes clopping as she went toward the judge’s chambers.

  Someone else hammered at the doors at the back of the gallery. The deputy slowly rose from his chair, keeping his eyes glued on his spread-out Contra Costa Times even as his body stepped around the desk. Finally he tore himself away and went to let in the assistant district attorney, Melanie McRae, your archetypical DV prosecutor, impassioned and ambitious—and very, very good. Melanie wanted Ellis in prison for the next dozen years, and the only thing standing in the way of her getting what she wanted was me—and of course the jury. Yesterday during her closing statement, she had seemed to hold the jury in the palm of her hand.

  She came right up to the defense table with her briefcase and her giant tablet, which she’d used to great effect during that statement. With a fat Sharpie of the kind preferred by juvenile graffiti artists, she had written on the tablet in foot-high letters words like Liar, Adulterer, Wife Abuser, Rapist, underlining each several times.

  “Mr. Maxwell—Leo—I’m sorry about your brother.”

  I didn’t like her standing so close. “Thank you.”

  “It really isn’t necessary for you even to be here, you know,” she said in what Teddy had labeled her sweet mother voice. “All that’s going to happen is that the judge will declare a mistrial. Obviously the case can’t proceed. This jury is irrevocably tainted.”

  “Mr. Bradley has retained me as his attorney. And we’re going to proceed.”

  Her face changed. All the sympathy drained away. “We’ll see about that,” she said.

  The clerk returned and sat at her desk. “Judge wants to see you both in chambers,” she said to Melanie without looking at me.

  If that clerk showed up in my jury pool I’d have struck her in a second. Thank you for your service, ma’am, don’t forget to validate your parking.

  Melanie had rounded the prosecution table. I made a show of letting her go ahead, following half a step behind down the secured hallway to Judge Iris’s chambers.

  I’d been back here once with Teddy for a pretrial conference. Catherine Iris was in her late fifties, a former big-firm partner regarded by the defense bar as generally fair. Unlike many judges, she seemed to care what the lawyers who practiced in her courtroom thought of her. This made Teddy uneasy. He always felt most comfortable when a judge was out to screw him. “Because then you don’t let your guard down for a second, which you might do if you start thinking of the judge as your friend,” he said. “Never put your head in the tiger’s mouth.”

  Melanie knocked, and we went in. Judge Iris sat behind a desk the size of a Suburban. Her robe hung from a coat stand by the door. She wore a V-necked cream-colored sweater and gray slacks. “Sit down,” she said, watching me with troubled eyes.

  I perched on the couch in front of her desk. Melanie hesitated, then sat next to me. I moved over but I was still closer to her than either of us wanted.

  “Your brother was—is—a very—skilled lawyer.” Judge Iris chose her words carefully. “There are going to be a lot of sad faces over at the jail today. And around here, too,” she hastened to add. “It’s been an education to see him at work. All these years I’ve heard about the magic, but I’ve never had Teddy Maxwell in my courtroom until these last few weeks.”

  “Thank you, Your Honor.”

  “I take it you’re here today to stand in for him.”

  “That’s right. Mr. Bradley has retained me to represent him. I’ve had my bar results for”—I made a show of checking the date on my watch—“six days now.”

  “Your Honor, the state intends to move for a mistrial,” Melanie interjected. “Without prejudice, of course. We’ll plan on retrying Mr. Bradley as soon as possible.”

  “All that’s left is the closing argument,” I said reasonably. “My client wants to proceed.”

  Melanie sat back and was suddenly much closer to me. “There isn’t a person with a pulse in the city who hasn’t heard about this shooting.”

  “We can poll the jury,” Judge Iris said.

  I had no doubt that Judge Iris and Melanie were capable of this same dialogue without my participation. Still, I had my arguments prepared, and thought I might as well use them. “The way I see it, Your Honor, there’s no clear prejudice either way. The DA may not like how the eviden
ce came in, but that’s neither here nor there. This horrible event shouldn’t be an opportunity for the state to take another crack at Mr. Bradley. Whatever happened to my brother, it wasn’t Mr. Bradley’s fault, and as long as he doesn’t consent to a mistrial, the state shouldn’t be able to try him again. He has a constitutional right to a speedy trial and not to be put in jeopardy twice for the same offense, and he wishes to assert those rights and move forward.”

  Judge Iris looked at Melanie with raised eyebrows. “Counselor?”

  I felt my first ruddy flush of success, like good Scotch spreading warmth from the pit of my stomach.

  Melanie shrugged. “If Mr. Bradley wants to roll the dice, I’m happy to let him. I feel pretty good about the way the evidence came in. I thought we were doing Mr. Bradley a favor by offering a mistrial. If your client wants to turn down that offer, the state is content to proceed.”

  Judge Iris was waiting for her to finish. “We’ll poll the jury. You can make your mistrial motion, Ms. McRae, and I’ll consider it based on what the jurors say, if the shooting will prejudice them either for or against Mr. Bradley. I assume your advice to your client about proceeding would change, Mr. Maxwell, if my polling indicates that this event has turned a significant number of jurors against your client.”

  “Yes, Your Honor, I suppose it would have to change.”

  “All right, then. Let’s go out there, and we’ll call in the jury, and I’ll ask them what they’ve heard about the shooting and whether that news will affect their deliberations in any way.”

  Melanie hastened to add, “And the state intends to request a jury instruction to the effect that the news of the shooting should not affect the jury’s deliberations in any way, in the event that Your Honor allows the trial to proceed.”

  I saw what she was doing. If we were going to go forward, she was going to throw it in their faces, insist so stridently that the shooting mustn’t affect their deliberations that the jurors would begin to wonder if it should, whether we were hiding something important.