“Trusting that you will not permit any references in open court to our alternative NGI plea, we’re content to cross that bridge when we come to it, Judge. As you just said, Vince’s case is nothing more than circumstantial. We don’t think that the people can possibly meet their burden of proof that Norman is guilty beyond a reasonable doubt. We don’t think a jury will find Norman guilty.”
“So ordered, of course, that no references will be made to the alternative NGI plea in our phase one trial.
“Leah, I know you’ve filed a motion for me to dismiss the case on the grounds that the jury could not possibly find guilt beyond a reasonable doubt. I’m going to deny that motion. Nice try, I guess, but I’m not going to take this case away from the jury on such vague and general grounds.”
“Your Honor. Are you not going to let me be heard on my motion before you rule?”
Rolling his eyes in exasperation, Brooks responded, not wanting to set himself up for reversible error on appeal. “Go ahead, Leah, let’s hear your argument. I guess you do think I’m a potted plant after all.”
“Well, Your Honor, we have already been discussing the weak circumstantial nature of this case, and that’s before we consider the sexual aspects of two of these cases and the apparent sexual habits of Senator Wells. I—”
“Wait a minute, Leah. You know very well that circumstantial evidence is perfectly admissible evidence if not otherwise defective. Juries convict all the time on nothing more than circumstantial evidence. I’m also not going to permit you to turn this trial into an X-rated sideshow on Wells’s lifestyle.”
“But there is more to this, Your Honor. As we state in our papers—”
“Hold it right there. Are you about to start arguing your theory of justifiable or excusable homicide? If you are, let me tell you that I’m not going to stand for it. Not for one second. You know full well that no court in this country has ever bought into a defense of justifiable or excusable homicide on a theory of governmental misconduct. The mere suggestion of that is outrageous. You’re not going to make a mockery out of my courtroom trying to blaze such disingenuous new trails. I’m simply not going to permit you to do that.”
“Your Honor, courts decide cases of first impression all of the time. There is no reason for you to say we can’t raise this defense because it’s new. If courts weren’t willing to decide new points, courtrooms would have shut down by the time of Plessy v. Ferguson and Brown v. Board of Education.”
“My God, Leah, now you want to take this from first-year criminal law to first-year constitutional law? Let me make myself perfectly clear, Ms. Klein. This is Washington, D.C., and the real world, not Hollywood and the fantasy world of Boston Legal. This is real time, not television theatrics. I write the script for this court, Ms. Klein. Not David E. Kelley. I don’t have his imagination. This theory of justifiable or excusable homicide due to government misconduct is not going to be heard in my courtroom. Period. Do you understand me, Ms. Klein?”
“I understand you loud and clear, Your Honor, but I have two points I need to make in response. If I may?”
“And those are?”
“First, I respectfully submit that you have to allow me to make my record for appeal. I can’t control how you will rule, but it will be automatic reversible error if you don’t let me make my record.”
“And your second point?”
“My second point is this: you may choose to rule to keep out this defense. But there’s no way you can stop the defense from making the same point in the context of reasonable doubt.”
Thanks to Jones, his research clerk, Brooks was not blindsided by this last point, but this was still his court. “Whatever are you talking about, Ms. Klein?”
“Your Honor, unless you’ve been on some other planet for the past six months, you have to know that we have unprecedented mass resentment with our public representatives. In this climate, there are tens of thousands of people in this country, maybe more, who probably felt like killing these politicians. Kind of like, you know, ‘I’m mad as hell and I’m not going to take it anymore.’ We’re now hearing about actual threats every day. This stuff is all over the internet. I’m sure you’ve seen all the posters out there: ‘Shoot the damn politicians!’ and the like. We’ve been collecting this kind of data. Norman is entitled to argue reasonable doubt to the jury on the grounds that tens of thousands of people have sufficient motive—every bit as much as Norman—to strike out at these governmental representatives who are so egregiously failing to do their jobs. Even being outright bribed not to do their jobs. Furthermore, these potential perpetrators had just as much means and opportunity as Norman. Maybe more, because Norman was pretty much incapable of doing anything at the time in question.”
Reilly began to speak. Brooks waved him off. “Leah, I will let you make your record for purposes of appeal, outside of the presence of the jury, but I will not let you utter one word about justifiable or excusable homicide in front of the jury. If you do, I will hold you in contempt, and you will spend time on a jail cot. Do you understand me?”
“I do. But what about beyond a reasonable doubt? Are you saying that you won’t permit me to argue reasonable doubt on the grounds of public resentment and threats toward our representatives?”
“I don’t know, Leah. I haven’t decided that point yet.” Implying that he had read her papers when he had not, Brooks added, “I’m going to have to consider your papers more carefully. I don’t know right now how I’m going to rule on that. I will let you know at the time of trial. If I decide that you cannot argue that to the jury, I will let you make your record concerning that point as well, again, outside the presence of the jury.”
“Judge,” Leah interjected, “what about our motion to bifurcate the three murder counts?”
Brooks had completely missed that motion. He didn’t skip a beat. “What’s the defense’s reasoning on this, Ms. Klein?”
“It’s quite simple, Your Honor. The defense is worried about prejudice. This is a situation where the whole may be greater than the sum of the parts. We are concerned about the ‘S’ word—serial—and unfounded, prejudicial fear of a serial killer where there’s no basis for that whatsoever. We have only three murders. Two of them include sexual overtones. One of them does not. Fairness to Mr. Norman requires that each of these counts be tried before separate juries.”
Brooks blanched. At three times the public cost. “Only three murders, Ms. Klein? How many do you need? And you’re prepared to put on three separate cases? And run the risk of inconsistent rulings along the way?”
“We are, Your Honor.”
“What’s your position on this, Vince?”
“We oppose bifurcation, Judge. For all the reasons you indicated. Plus more. In evaluating Norman’s mental acuity, we think a jury’s entitled to see that he did what he did not once but three times.”
Brooks paused. Thought about it. Then: “So be it, Leah. I think you may be making a bad judgment call on this. However, I think the defendant is entitled to every latitude on this and we’ll play it your way. I rule that there will be three separate, bifurcated murder trials. No mention of the DiMarco or Johnson murders will be made in the Wells trial. You’re clear on this, Vince?”
“I don’t like it, Judge, but I’m clear.”
“Okay, I think we’ve covered the main substantive points that we needed to cover today. I want to quickly cover a few procedural points as well.
“Trial will commence one week from today, Monday, July twenty-seventh, at nine thirty a.m. We will go each day from nine thirty a.m. to noon and from one thirty p.m. to four p.m., with a fifteen-minute break in the mornings and afternoons for the court reporter and the jury. I expect each side to announce their contemplated witnesses for each day twenty-four hours in advance.
“I know you’ve each submitted some other pretrial motions, motions in limine to exclude certain evidence, and proposed jury instructions. I’ve already made clear where I am on the limines in o
ur conference today. I don’t have any more time to address your other motions or proposed jury instructions today. We’ll deal with the motions as the circumstances arrive at trial.
“We’ll work on the jury instructions during the course of trial. One more admonition: no speaking objections in front of the jury. If at any time you have an objection on any point being offered by the other side, just state that you object. If I feel the need for any elaboration, I’ll call you up to the bench for a sidebar or we’ll take it up during the next recess if need be.
“We will pick the jury at the outset in accordance with our local voir dire rules. We already have our jury questionnaires. They were prepared in advance of my rulings today in the broadest possible manner and to avoid potential prejudice by oral voir dire. For this reason, I expect each of you not to orally raise any questions covered in the jury questionnaire. For example, there should be no oral references to Wells’s rumored sexual activities.
“Thank you all very much. See you next Monday.”
The final status conference was over. Brooks had managed to conduct it without having studied any of the lawyers’ papers and after barely glancing through his clerk’s memo before his morning calendar call this morning. He was troubled by some of the points Klein had argued. He chose not to show how much.
The lawyers thanked Brooks and filed out of his chambers.
* * *
AS THEY WALKED OUT of the courtroom together, Reilly turned to Klein and asked her if she knew how to gauge Brooks.
Klein looked at Reilly, unsure how to answer him.
“It’s easy,” Reilly answered his own question. “Brooks resorts to informal first names when he’s confident of his position and in command. He reverts to formal last names when he’s less sure of himself, or angry, or losing his patience. Read the transcripts of some of his hearings. He’s always the same.”
CHAPTER 59
Monday, July 20, 9:00 p.m.
HI, BETH. THE KIDS are down for the night. They seem to be doing pretty well right now. At least I hope so. They miss you. So do I. I don’t know what more I can do for them by myself. I hope they’re hanging in there. Adjusting as well as possible to not having you here.
On another subject, I’m really wrestling with a problem. As you know, I’ve had my doubts about Cliff Norman all along. Maybe he was crazy enough to do what he suggests he did and what he’s accused of doing. I can’t say for sure. But I have a feeling that this is all just a little too pat. That somehow there’s more to this story.
Until recently, this was just a loose suspicion on my part. I had nothing to back it up other than my own instincts. Now, I have more.
A few days ago, I got a tip to look into a man who might have some involvement in all of this. His name’s Blaine Hollister. He’s a wealthy, retired oilman who dabbles in national politics. Mostly behind the scenes. He’s a control freak. With a capital C and a capital F. Hollister may have become unhappy enough with our seemingly large number of crooked governmental representatives to have taken matters into his own hands. I know it’s hard to believe, but he may have arranged for Wells, DiMarco, and Johnson to be killed in order to bring major attention to the deterioration of our government. Norman may be guilty of nothing more than saying the wrong things at the wrong time. And possibly walking into the middle of Hollister’s plans.
I went to see Hollister. I don’t have any proof yet, but it sure seems like he’s hiding something. Why else did he stiff me the way he did? Maybe it’s just an ego or control thing. But it feels like more. My nose is itching. You know what that usually means.
Norman is about to go to trial. A possibly innocent man may be convicted. My problem is that what I have are references to Hollister in a calendar belonging to Senator Wells that someone gave me that I am not supposed to have. I don’t even know who gave it to me because that person’s concealing his identity from me. Kind of like Deep Throat from Watergate days.
When I read through the calendar and came upon Hollister, I was hooked. Now it’s too late. In for a nickel, in for a quarter, I’m in too deep. If I turn the calendar over to the authorities at this point, I’ll be in trouble for not having done so sooner. Possibly big trouble. Possibly lose-my-job trouble. Also, there is a real chance that this copy of the calendar would be suppressed on some legal technicality. If my suspicions are correct, Hollister would get off and Norman could be wrongfully convicted. You know I couldn’t live with anything like that.
If I want to press this, I need a legitimate basis for outing Hollister. So far I have nothing independent of the calendar to explain my suspicions.
I’ve been wrestling with this for days now. There’s no one else for me to talk to without coming clean about what I’ve done. I am reluctantly prepared to do whatever is necessary to achieve the right result. But I don’t want to take a hit if it won’t achieve the right result because of some legal technicalities. Especially if it might also compromise my ability to take care of Maddie and Charlie.
I think somehow I have to find the anonymous tipster who gave me the calendar. Try to get him or her to come forward. Even that might not do any good if that person doesn’t actually have any personal knowledge about Hollister independent of the illegal calendar. If not, there’s probably no point in trying to bring this person forward. Making trouble for him or her as well.
I’m sorry to bother you with all this, Beth. I just don’t have anyone else to talk to. Hmm, you know, talking this through with you may just have given me an idea. Like the ideas I used to get all the time when you and I talked things over like this. I knew I could count on you. Night, Beth. I miss you. Rest well.
CHAPTER 60
Tuesday, July 21, 9:00 a.m.
IN ALL HIS YEARS with the public defender’s office, Abrams had hardly ever missed a day of work. Things were going from bad to worse. His health was in decline. He felt like he didn’t have a lot of time left. He had thought that he would retire and take pleasure in watching his granddaughter Julie’s career blossom. That was gone now. Taken from him by some madman. Perhaps by Julie herself. Absent what Julie had done, there would have been nothing for the madman to threaten him with.
He was in an impossible position. He was being extorted to compromise Cliff Norman’s defense. To back off asserting a defense of justifiable homicide. Or to use the same concept to push the reasonable doubt argument. Even if Leah would listen to him, and he couldn’t imagine that she would, he would not, could not, go there. Not once had he ever compromised a client’s interests. To give in to something like that now, or ever, was unacceptable to him. Not an option.
But Abrams couldn’t bring himself to face the alternative, either. It would mean that Julie would be exposed and ruined. Another Monica Lewinsky. He simply could not bear to see that happen. Not on my watch. Not on my conscience.
Slowly at first, Abrams had started thinking about another possibility. Given his health, the time he had left was limited. He didn’t want any more time if it meant watching Julie be destroyed. No matter how complicit she was, he would be the one who caused her downfall. If instead he passed on before all of this could play out, Thomas—and whoever was behind him—would lose their leverage. They could no longer use or expect to use Abrams to accomplish their evil objective. Hopefully, there would then be no reason for them to take Julie down. Perhaps they still would out of spite, but at least Abrams would have done all he possibly could to prevent that.
He had lived a good life. He could go out in peace. He didn’t want to be remembered as someone who was a quitter, but his medical circumstances were such that the truth might not be suspected.
Abrams decided he had a few days to sleep on it. But with the trial less than a week away, Thomas and his cronies would be insisting on his answer very soon.
CHAPTER 61
Tuesday, July 21, 4:00 p.m.
LOTELLO WAS ON HIS way to Ayres’s office. He had decided that he couldn’t just come out and tell Ayres that he had somehow m
anaged to get his hands on a copy of the calendar. Or that he suspected Ayres might even have been the anonymous source that made it available to him. If he did that and Ayres wasn’t the source, Lotello could end up in trouble. His next job might be as a private security guard on the night shift at some office building. He wasn’t ready for that. Easy, Frank. Play it cool. Just like you mapped it out. If Ayres isn’t the one who gave up the calendar to you, he won’t know what’s going on or what to do. If he was the one, he’ll know. But then it won’t matter.
* * *
“HEY, DETECTIVE, LONG TIME no see. What brings you around?”
“You know me. Always chasing down some loose ends.”
Ayres didn’t like the sound of that. Is this about the calendar? Lotello can suspect all he wants, but there’s no way he could know I was the one who gave it to him.
Casually, Lotello added, “Ever run across a guy by the name of Blaine Hollister?”
Oh, shit! Maybe he does think it was me. “Name’s familiar. Is he that wealthy oilman who also occasionally dabbles in politics?” Ayres could see the wheels turning in Lotello’s head. He is wondering if I’m the source.
“Right, that’s the guy. Do you know if the senator ever had any dealings with him?”
Stay calm. “Now that you mention it, I think they did have a couple of meetings a while back. Why do you ask?”
Ayres sensed that Lotello wasn’t done turning the screws. “I received an anonymous call to look into Hollister,” Lotello said. “That he might somehow be involved in all of this. I did a little digging. I think he could be involved.”
Shit, shit, shit! An anonymous call my ass! “I do seem to recall that the senator grew uncomfortable with Hollister. Cut her ties with him.”
Looking straight at Ayres, Lotello paused, almost causing Ayres to lose it. Lotello continued: “Only my instincts, but I think Hollister could be involved in Wells’s death. Maybe DiMarco’s and Johnson’s, too. He may have decided that an increasing number of our public servants are putting their own interests ahead of their public trust. That someone needed to do something about it.
Brooks-Lotello Collection Page 47
