"Of course he would," Cohen said. "It's the same horse under a different rider."
"Exactly," Bissell said. "We have a right to compel Mister Merrion to commit himself to a story before we seek any indictments, to lock him into it before trial. We may never call him at trial, but we have a right to find out what he'll say if we do, and to prevent him from colluding with a clever lawyer to fabricate a different story to counter our case-in-chief. Reasonable doubts are counterfeited by such fabrications, to mislead credulous jurors. We want to find out what he'll say, before he finds out what we can prove.
"We know he wont do that voluntarily," Bissell said. "That's why we've given him immunity. As Mister Cohen demanded, it's Transactional, not Use. We've told him, through his lawyer, he is not a target. We've told him that nothing that he says will be used in evidence against him, unless he lies to us if he does, of course, we'll go after him for perjury. Hammer and tongs, to use a Hilliard phrase. We've filed the document declaring all of this with you."
The judge gazed at Bissell for a long minute. He gazed back without shifting his eyes. "My," she said, 'that's very ingenious, I must say.
You propose to bootstrap all of that stuff forward within the statute and nail Hilliard good, to punish guys who are dead1. Kill him because they got away? And make his best friend help with the execution? Is that all you have for us today?"
"It is, your Honor," Bissell said. "Frankly, I'm surprised we needed anything that this hearing, if that's what it is, was even held. In my experience the judge doesn't even get involved unless and until the immunized witness refuses to testify. Mister Merrion's not scheduled to come before the grand jury 'til next week. Who knows what he'll do then? He may not know, yet, himself."
"Yes," she said. "Well, I was also somewhat surprised Geoffd asked to_be heard. But then I said: "Geoff wants a hearing, and he's a good guy, so what the hey, give him a hearing." So Geoff, we're all listening."
"Your Honor," Cohen said, "I appreciate the court's kindness. I'll be brief. Congress enacted testimonial immunity to deal with frustrations encountered in prosecuting the Mob. It takes the Fifth Amendment out of play, to prevent underlings from shielding kingpins by claiming, correctly, that if they testify what the godfathers told them to do, they'll hang themselves at the same time, for doing it.
"Congress never meant to enable a prosecutor to do what this one wants to do: transform a man against his will into Judas Iscariot in order to conjure up charges against his friend. Mister Bissell by his own account has abundant evidence of what he calls tax evasion. More than enough to drag Dan Hilliard into court and see if he can persuade a jury to railroad the guy. He doesn't need to involve Ambrose Merrion, the man's very best friend, in this little manhunt of his. This's overkill, and plain meanness, nothing more."
"Geoff," the judge said, "I know how you feel. I know how your client feels, too: that he and Dan Hilliard did nothing wrong; all they did was become politicians and play what some believe is the headiest game in the world. They may be right. Never played the game, myself, but I've watched a lot of it; sure looked like fun to these eyes.
"But fun's irrelevant here. The law gives the US Attorney the power to grant immunity in any case he thinks appropriate. It gives the judge no discretion. If the US Attorney grants immunity, and the witness doesn't talk, I have to order the witness to talk, and if he wont, put him in jail.
"Them's the rules. If I thought that by letting you talk for another hour you'd come up with something to change that, I'd sit here and I'd let you do it. I'm sorry, but I don't.
"So: Mister Merrion, hear what I say to you. If, as and when you appear before the grand jury and are formally advised on the record of the grant of immunity; and asked questions; and you then refuse to answer, for any reason at all or no reason at all, the US Attorney will direct the US marshals to bring you before me. I will then inform you that you have valid privilege to remain silent, and order you to answer.
"You will be taken back before the grand jury, and if you do not answer then, we will meet for a third time. I will then find that by reason of your refusal to testify, you have placed yourself in contempt of this court. I will order the marshals to take you into custody and hold you to some convenient place of confinement until such time as you decide to obey my order to testify.
"Thus endeth the lesson; a hard saying to be sure, but as I told you, those're the rules we have here. Mister Cohen, do you or your client have any questions?"
Cohen sighed. "No, your Honor."
"Mister Merrion," the judge said, 'did your excellent counsel leave anything out that you would like to say now? Within the bounds of civility, of course don't want to take too many chances here."
Merrion had the thousand-yard stare of a man who'd stopped caring what he saw. He spoke off-handedly. "No," he said. "Just, I guess, that I'll see you next week. All of my life I've done what I can to protect people's dignity." Looking at Bissell: "I'm not going to give mine to him."
The judge pursed her lips. She looked at Bissell, already rising from his chair. "Nothing more from you, Mister Bissell, I take it?"
Bissell shook his head, smiling a parsimonious smile. "Not today, your Honor," he said. "Next week, I guess, unless Mister Merrion changes his mind, I'll have something more to bring before you. But no further business today."
The judge nodded. "Very well, then, we're adjourned. Liz, you are through for the day."
Bissell followed Robey to and through the doorway leading into the judge's office, Elizabeth Gibson with her machine three steps behind;
Merrion and Cohen were halfway there when the judge, still in her chair, halted all of them by saying: "Oh, Geoff, before you go, just one other thing I thought of here." Then as they all froze in mid-stride, she said: "No, no, all the rest of you can go. This's another matter that I need to talk about with Geoff. Nothing to do with the rest of you. This's about the real headiest game: I want to talk to him about basketball."
Cohen started back toward the table; the others resumed their departures. She gestured toward the door and nodded at him. He stepped over silently and shut it, returning to the table. He sat down again, looking quizzical.
"If this's about the Sanderson drug case," he said. She shook her head inquiringly. "Julian Sanderson? Cocaine? You drew it this week, I think."
She shrugged. "I think Sandy might've mentioned something about you diversifying into drugs," she said.
"Yeah," he said, 'well, I am, a little, but not with that case. I tried to make it clear to that new clerk in the magistrate session who doesn't seem awesomely bright, by the way — I was just there for arraignment. Coincidentally, he's the golf pro Bissell mentioned, has to moonlight tending bar but makes thousand-dollar campaign donations?
Haskell Sanderson's son. I cut the deal for the two smart-ass kids from Cannonball's who make the case against him. I think I might have a conflict of Ill interest representing the Sanderson kid. Too bad; nice fee in that case."
"Well, that wasn't what I had on my mind," the judge said. "Isn't that Bissell a stinker, though? Gracious, what a son of a bitch. I hated to do what I did."
"Yeah, Barrie, I know," Cohen said. "But I couldn't blame you. You had no choice in the matter." He chuckled. "When you asked me what I had to say, I had the feeling there was one person in the room who was hoping even more'n my client and I were that I'd be struck with some blinding flash of genius that'd vaporize Brother Bissell, and that was you."
She laughed. "Not far wrong," she said. "But look, I don't want to have to do next week what it looks like I'm going to have to, if things remain as they are. Put your man in jail."
"Ahhh," Cohen said, "I doubt it'll come to that. I'm going to call Bob Pooler, I get back to my office, tell him what a box that prick Bissell's put us in. See if he'll try to persuade Danny Hilliard to get ahold of Amby and convince him to talk. Pound it into his loyal old head there's no use both of them going to jail, and no way Amby can keep him out. And then do everyt
hing I can to make sure Bissell puts Amby on the stand at trial, so the best old friend an embattled politician ever had can lead that jury straight down the road to a sympathy-Not-Guilty, stick Bissell's case up his ass."
"I think he could pull it off," the judge said. "Let a jury watch Bissell strut around the courtroom for a week, they may acquit on the stairs. But I need more than your doubt that what I'm afraid of next week wont happen. I'm going to let Sandy know I'd better not draw Dan Hilliard's case. I'm not going to tell him the actual reason, but he'll know I'm depending on him to make sure it doesn't happen."
"Well," Cohen said, 'you could always recuse yourself."
"If I did," the judge said, "I'd have to give a reason; we aren't supposed to duck cases. And it couldn't be that once you were my lawyer. You've already heard what Bissell said: the government doesn't mind that. That leaves me with only one reason, which I do not care to state publicly."
"Oh yeah," Cohen said. "I forgot."
"I don't want to be on "Oprah"," the judge said. "I never told Eric about my fling with Danny. Don't know why, I just never did. I've never known whether you didn't know about Danny and me when you were representing Danny's wife, long before I hired you, or did but kept it quiet because you and Sam Evans're gentlemen. Did Sam protect me on that?"
"I thought you said what you wanted to talk to me about wasn't the matter you just heard," Cohen said, amused.
"I said I wanted to talk to you about basketball," she said, 'and that was the truth. This is a story about basketball, and I want you to listen carefully, so you'll be able to repeat it to your client before he meets the grand jury.
"This was some years ago now, when Eric and I'd decided we were going to get married, and I took him home to Fairmont, to meet my mom and dad. That's the fancy colony where they lived then, mostly top Ford honchos, outside of Detroit. This was before he retired and they moved to Santa Fe. Then he was still working for the Pistons. It was Christmas-time, and my dad and Eric and I were sitting around in the TV room after dinner and there was a game on, Lakers and Celtics. Bird and Magic; Magic and Bird: world was much younger then.
"Eric, being your normal artist, didn't know much about sports. Isn't really interested in any sport he isn't good at. He'll play basketball with me any old time I want, shoot a few hoops in the driveway which I find I do about every four or five years now, but used to three times a week. He was humoring me; I knew that and I was grateful. Anyway, he's not keen on watching things he doesn't do, reads or leaves the room, but that night he was on his best behavior, and the game was on.
It was a good one, and I forget what it was but someone did something that made Dad say: "Look at that." I don't remember which player did it or what color he was, but it was impressive we'll say it was Kevin McHale. And my father said you know my father's white, don't you? I know I told you that, you were getting me divorced."
"Maybe," Cohen said. "That was also a long time ago. But if you did I wouldn't've seen it had any bearing on the case, so it wouldn't've stuck."
"Well, I thought it did," she said, 'and that was because Ray thought it did. He never believed I was leaving him because he was kissing Whitey's ass all the time and I couldn't stand it any longer. He said I was the one who groveled for white folks, and that was why I was leaving him for Eric: "because Eric is white." If he'd known about Danny he would've said "Danny." Raymond said I was attracted to white men because my father's white, and subconsciously I've been trying to get in bed with him all along. Raymond took his college psych courses much too seriously."
"Oh yeah," Cohen said, 'now I remember. That was the time you socked him."
"Well, it was more like a slap," she said.
"Made his nose bleed," Cohen said. "Cost you, I figure, five or ten thousand dollars, off the top of the property settlement. Have that little item come out in court, that a Butler, Corey partner whacked her poor defenseless husband on the snoot? Warren Corey would've been simply ecstatic."
"It was worth it," she said. "Anyway, Ray really needed the dough more'n I did. He lost his shirt on that silly racetrack. The others got fleeced too, but they could afford it. Ray was in over his head."
"The basketball game," Cohen said, prompting. "Come on, I've got a hot desk to slave over up in South Hadley today."
"Right," she said. "Whoever it was and whatever he did, I know it was one of the forwards, made some move and Daddy said: "Now, look at that.
That's something I never could do. I just didn't have it in me." And then he started in on how people were always feeling sorry for him, he played before the big money, and he said: "Hell no, I was lucky I played when I did. If I were the right age now to be playing ball, I wouldn't be playing at all. I wouldn't be good enough.
'"When I came into the league, black men weren't allowed to: segregation. It wasn't right that I could play, but that was the way it was, and I wasn't the one who'd made it that way. Bird can play today, and so can McHale, and both of those guys're white, but like all of the white guys playing today, they are truly exceptional players.
"Exceptional' 's not what I ever was. "Pretty good' is what I was.
'"When I retired, I wasn't all washed up. I still had a year or so left. But I saw those kids coming along, wonderfully smooth, fluid players, and I knew what I wanted to do. I didn't want to play ball against those guys; I wanted to watch them play ball, help the team adapt to the times. I'd played in the time that I had to play in, and when it was over, I stopped."
Judge Foote smiled at Cohen, gnawing on her lower lip, making her eyes twinkle, too. "Think you can remember that, long enough to tell it to your client?"
"I think so," Cohen said, smiling back.
"Because I really don't want to have to put your man in jail, Geoff," she said. "I don't want to give Mister Bissell the satisfaction, but mostly I just don't want to put Ambrose Merrion in jail for Thanksgiving. It isn't the right thing to do. He's in the same position that my father was, and he has to see it. The game that he and Danny played has changed. It's time for him to stop playing.
"He wont like it. He'll resist. But he looks to me as though he's smart enough to see that, if you push him. They've changed the rules on him; the old code's been repealed. Let the new nasty boys carve their moral arrogance into someone else's tough old hide. I like your idea a lot. Pump him up to testify and help Bissell get himself way out on the limb of his indictment. Then at trial ram it right up his ass. Make him see he can go out with a bang."
"And that isn't fighting?" Cohen said, standing up.
Judge Foote stood up. She extended her hand. "Well, maybe a little," she said, 'fighting in a different way."
Cohen shook her hand. "Very good," he said, 'and I'll tell you something too. Sam Evans did not know about your frolics with Danny.
He said he'd forbidden Danny to come clean with him, give him a list of his girlfriends. He said to me: "He understands that's information I don't want to have, and you're not getting it either, no matter what we have to do."
For a moment the judge said nothing. Then she said: "So there're at least four of you left; that's good to hear. Sam is a real gentleman."
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A change of gravity Page 58
