Unreasonable Doubts

by Reyna Marder Gentin

  “So who dropped the ball?” Gerry asked.

  “Everyone! The prosecutor knew all along that Ms. Velez’s name was on the lab report, but the judge accepted her claim that it was an oversight and she hadn’t submitted it to the jury on purpose to prejudice Shea,” Liana said.

  “Fat chance,” Deb said, looking up momentarily from the crossword puzzle she had started doing while Gerry had his back to her.

  “But defense counsel bore the bulk of the responsibility. He didn’t notice Ms. Velez’s name on the DNA report, although he had the document long in advance of trial and was responsible for reviewing everything that would be submitted into evidence.”

  “And the judge?” Gerry asked.

  “His so-called cure was to tell the jurors the whole thing was just a big mistake and they should pretend they hadn’t seen Velez’s name at all.”

  There was plenty of blame to go around, and Liana intended to lay it on them all.

  “This is certainly a good start,” Gerry said. “Now it’s time to go do your legal research.”

  “Yes, Gerry—that’s what I was planning to do. That’s my job,” Liana said.

  When Gerry left the room, a wave of nausea washed over Liana. It was one of those rare moments when she could hear her late father’s voice whispering in her ear, “This is why I sent you to law school? To put all your God-given talents into helping rapists and murderers?”

  “Oh, hush up, Daddy,” she muttered.

  “Are you talking to yourself again?” Deb asked.

  “Hey, sometimes I am the only one who will listen to me,” Liana answered.

  Over the next week, Liana worked furiously, researching the law of ineffective assistance of counsel. It was a legal issue she had pursued infrequently in the past, as it sometimes entailed, as it did here, accusing trial counsel of one error in an otherwise well-prepared and presented case. This attorney, who had done such a masterful job of cross-examining Ms. Nash and suggesting that she was a willing participant in the sexual encounter, and who had skillfully questioned Danny Shea in a way that humanized him in the eyes of the jury and engendered sympathy, had completely screwed up on this single issue of critical importance. It was an argument that pitted appellate attorney against trial attorney, with the former having the great advantage of twenty-twenty hindsight.

  If I had been trial counsel, would I have insisted that Ms. Velez’s name be removed from that lab report? Jumped up and down and demanded a mistrial?

  There was no way of knowing how “effective” Liana would have been in the heat of the moment. Appellate attorneys didn’t like to think on their feet; that’s why they practiced a type of law that allowed deliberate, quiet consideration and extensive advance preparation.

  Liana considered every facet of the case and crafted her brief as if she were creating a work of art. She threw herself into her work with an enthusiasm she hadn’t felt in a long while, putting in long hours, acutely aware that she would be judged not just for her legal acumen but also for her zeal. She believed in the legal issue one-hundred-percent, and—although the shadowy presence of the mysterious Alba Velez did give Liana pause—Liana had committed herself to Danny Shea, no holds barred. She didn’t have a legal basis to argue he was innocent of raping Jennifer Nash, but she had found a damn good way to win him a second chance at beating the charges. When she was done writing, she marched into Gerry’s office, head held high, and handed him the draft.

  “Here you go,” she said. “This one’s going to knock your socks off!” Gerry looked at her a little warily, narrowing his eyes and sitting back in his chair.

  “Are you feeling okay, Liana?” he asked, feigning concern.

  “Better than ever!” Liana chirped. It was taxing—all this pretending to be the model public defender—but she felt good about this brief and, despite herself, about this client.

  When she returned to her desk, there was an email from Randy Napoli in her inbox:

  Slow news day. What’s cooking over there? Nothing concrete yet, but here’s a tip. Watch out for People vs. Daniel Shea. Should be a big win, down the line.

  Thanks, Liana, will do. I owe you one, Randy responded.

  I won’t forget, Liana typed. It was a totally rash and outrageous thing to do, but she didn’t regret it. She knew she had this one in the bag.

  Deb swept into their office, and Liana was taken aback.

  When did she get so thin?

  “Hey,” Liana exclaimed. “Have you lost weight? Your clothes are falling off you!”

  “I know,” Deb responded, clearly pleased that Liana had noticed. “Isn’t it great? I’ve gone down a dress size—and I haven’t even been trying!”

  “Well, whatever your secret is, that miniskirt looks fantastic,” Liana said.

  Now that she had handed in her draft of the brief, Liana had time to deal with the letter she had received from Danny Shea a few days ago but hadn’t opened. He hadn’t called her again, and, so far, the correspondence on both sides had been very straightforward. Shea was infallibly polite and respectful. He asked all the standard questions about the appeals process, and she had given all the standard answers: How long would it take for her to write the brief? (About five weeks because of quota pressure, but she told him a couple of months—clients didn’t like it if they thought you were rushing.) How long would the district attorney have to file a brief in opposition? (About eight weeks; she would send it to him as soon as it arrived.) When would the Appellate Division, Second Department, hear oral argument, and would he be able to attend? (Several months after all the briefs were in, and no, he had no right to be present in court for the argument. If he had relatives who wished to attend, she would meet with them afterward.) When would he get the court’s decision? (March or April at the earliest.)

  It was a long process, but the wheels of justice did indeed turn slowly. When she got the draft brief back from Gerry and made any revisions, Liana would send Shea the final version that she was filing with the court for his review, and she would remind him that he could request permission to file his own brief. Unlike almost all of her previous clients, Liana was quite confident in Shea’s ability to represent his own interests. He had demonstrated a more sophisticated understanding of the nuances of her legal arguments than several of her colleagues, and he had suggested amplification of certain angles to the argument at which she had only hinted. He was focused and meticulous in his legal research, spending any time he was allowed in the correctional facility’s law library and sending her case law that was on point. In another life, Danny Shea would have been the attorney here; as it was, Liana felt that she had done him proud, which was oddly meaningful to her.

  In fact, Liana was a little nervous that Shea might find something she had missed, which was why she had left the letter unopened. But she couldn’t avoid reading it any longer. This one was a different kettle of fish.

  Dear Ms. Cohen,

  I hope you are well. I received your last letter, where you carefully and patiently explained the legal issue that you are planning to present to the Appellate Court on my behalf. I agree with you that this is a very promising avenue on appeal.

  Ms. Cohen, I’m an intelligent man. Intellectually, I understand full well that this issue—the ineffectiveness of my attorney in failing to redact prejudicial evidence suggesting a prior sexual assault—is a “fair trial” point and one that does not require you to have an opinion as to my actual guilt or innocence. I also accept that your professionalism requires you to advocate on my behalf regardless of whether you think I raped Ms. Nash.

  But here’s the thing, Ms. Cohen. I feel in my heart that if I could sit with you, in person, and look into your eyes, I would be able to convince you that I am not the kind of man who could ever hurt a woman in that way. If you had a loved one who needed to plead for your understanding in a matter of dire importance involving his liberty and his life, I know you wouldn’t tell him to “do it in a letter.” Some things can only properly
be broached and the truth revealed when two people sit in a quiet place, face to face.

  I am sure you receive requests from most of your clients asking you to visit. Many of them likely are just aching to be near a woman, even separated by a glass divider and surrounded by prison guards. I’m not claiming to be above making such a request; I am, after all, still a man. But I’m asking to be able to see you out of a genuine need to have you 100% in my corner.

  I have been moved from Dannemora to Green Haven, which, if I’m keeping my bearings straight—and that’s hard to do in here—is much closer to New York City.

  Please, come.

  Sincerely,

  He had signed simply, “Danny.”

  Liana read it through three times. It was the most romantic letter she had received in a long time. Jakob used to write letters to her during the year they were dating long distance, each in their third year of law school in different cities. Liana would go to her mailbox, and every other day or so there would be a long letter waiting for her. His letters had been funny and poetic, full of emotional and carnal yearning. She loved that he wrote to her by hand, on whatever paper he found lying around his apartment—while her roommates, Charlotte and Katie, would get the occasional email or text from a boyfriend, she had something solid to hang on to, a written record of their early courtship.

  Now that they were both in Manhattan, she and Jakob would telephone when they couldn’t find time to see each other, but the calls were often rushed or overheard by Deb or by Jakob’s secretary. The urgency and simmering heat underlying Danny Shea’s words, although hitting their target, had the additional unintended consequence of filling Liana with a fierce longing for Jakob. She was glad to be close to filing the brief so she could reclaim the rest of her life, Jakob first and foremost. Liana wasn’t ready to share with Jakob the epiphany she’d had while looking at the photographs of her parents’ long-ago wedding—that she might not be ready to get married and embrace his vision of what a supportive spouse should be—but she loved him and yearned to be with him.

  But right at this moment, Danny Shea was the man who demanded her attention. Liana turned to her computer and dashed off her response to Shea’s letter.

  Dear Mr. Shea,

  I’m glad that you received my last letter and that you understand and support the legal issue that I’m planning to raise on your behalf. I hope to file the brief shortly, after it’s been through the supervisory process. I’ll send you a copy of the final version when I file it with the court.

  As I’ve explained before, on direct appeal I can only raise issues that appear in the minutes from your trial. Because of that limitation, I don’t make client visits to the correctional facilities—I wouldn’t be able to use any information that you could provide to me that is outside of the record. Also, although Green Haven is closer than where you were at Dannemora, we don’t have the budget or the time to make such trips. Moreover, I don’t have any opinion whatsoever regarding your guilt or innocence; I care only to ensure that you received a fair trial and due process of law.

  Liana printed out her letter and read it over a couple of times. Strictly professional, formal, with no hint of the “heart” Gerry insisted that the job as a public defender required. It was factual and clear-cut. Although Liana’s head told her this was the only way to go, whatever part of her was inexplicably drawn to Danny Shea told her otherwise.

  She tore up the letter and started over.

  Dear Mr. Shea,

  I’ve received your recent letter. I was going to write you to tell you that I’m planning to visit you shortly in Green Haven. It has come to my attention that if we pursue your appeal and are successful in obtaining a new trial, you face the risk that certain charges that were dropped by the prosecutor at your original trial could be revived in a retrial. Because this is a technical matter that is difficult to explain in a letter, I’ll come to the facility so that I can advise you of your legal rights and you can make an informed decision about how to proceed.

  It wasn’t exactly a lie, but it wasn’t the truth either. The prosecutor had not bothered to pursue a couple of counts that charged Shea with marijuana possession and drinking out of an open container in public. The narcotics count was a misdemeanor, and the beer was just a violation. There was no way in the world that Shea would be prosecuted for those more minor charges if Liana won a reversal and the case went to trial a second time. And even if the prosecutor brought the counts again out of spite, they carried sentences of a year or less—nothing compared to the time Shea faced for the rape. But it would be a plausible enough reason to go visit if Gerry questioned her. He wouldn’t delve deeper—Gerry was one of the few attorneys in the office who met with clients all the time, even though it was totally unnecessary, because he thought it showed how committed he was to the cause.

  Liana had managed to avoid virtually all client contact for three years. Now, she was determined to meet Danny Shea to try figure out who he really was. And Shea was right—she had to do it in person.

  Besides, it’s safe enough to indulge a harmless fantasy with a man securely behind bars.

  CHAPTER 9

  “You stink, Mejia! You stink!” The Mets closer had blown the save, yet again, and Liana, a second glass of chardonnay in one hand, threw a handful of popcorn at the TV screen with the other as she yelled at the pitcher from her living room couch. Sometimes when the Mets had a particularly abysmal loss, she had the fleeting thought that she was glad that her father, from whom she had inherited this often painful allegiance, was no longer alive to see it.

  Not really, Daddy.

  She was still in a funk a few minutes later when her cell rang.

  “Hi, Jay,” Liana said, all doom and gloom.

  “What’s wrong?” Jakob didn’t follow sports and was always perplexed that Liana’s mood could rise and fall on the outcome of a baseball game.

  “Nothing. Everything’s fine,” she sighed. “Should we make a plan for Friday night? Can you pick me up at seven to walk to services?” The Mets’ lousy season notwithstanding, Liana was still on a high from unearthing a great issue in Danny Shea’s case. Although she wouldn’t swear he was that innocent guy that Rabbi Nacht had said might be around the corner, she planned to tell him that she was in a better place.

  “That’s why I’m calling. We have a conflict—Frank invited us to go out to dinner with him and his new girlfriend, Marissa. It’s a big deal for me, Li. Partners don’t ordinarily fraternize with associates on the weekends.”

  In response to Liana’s silence, Jakob explained for the hundredth time why it was important that she come to Wilcox & Finney events.

  “I have to socialize, Liana. When the firm considers me for partnership, it isn’t just the work I do that they look at, or even whose son I am. It’s also do I fit in, do they like me?”

  Jakob’s father was a major player in the New York legal scene. An expert on the First Amendment and past president of the New York Bar Association, all the partners at W&F, including Frank, fawned over Jakob on his father’s account. The fact that Jakob was saddled with paying off law school student loans was a peculiar derivative of his father’s wealth and prominence. “The boy should learn the value of money,” Jakob’s father would say, Liana thought somewhat pompously. And yet, Jakob idolized his father and wanted nothing more than to follow in his footsteps.

  “But what does your popularity have to do with me?” Liana asked. She could feel Jakob valiantly trying not to lose his cool.

  “Liana, we’re a team. If you’re part of me, you’re part of this too. If I’m going to succeed, you have to help.”

  Liana was pretty sure that Jakob would succeed in the law firm world with or without her. He wasn’t a run-of-the-mill associate. He was extremely intelligent and articulate and enjoyed his work. Even the long hours, although burdensome, didn’t disturb him. He was considered an asset to have on whatever case came into the office, because he made such a good impression on the clients.<
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  Frank, on the other hand, was simply an arrogant bore, and Marissa, if she fit Frank’s usual playmate mold, would be very young, blond, buxom, and a total ditz. Still, Liana knew that Jakob felt she’d been remiss in her “girlfriend” duties.

  Lord only knows how I would do as “wife.”

  “Okay, Jakob. You’re on. Now let me go wallow in the misery of my pathetic Mets in peace before I hit the hay.”

  “Sure. But, Li? It scares me when you drink alone, babe.”

  “What the—? How did you—?” she stammered.

  “Get some sleep, sweetheart. I’ll see you tomorrow night”

  The next evening, Liana put on a pair of dressy black pants, a not overly chaste silk tee, and a pair of Deb-approved sling-back heels. She focused a bit more on her makeup and gelled the hell out of her hair. The results were good.

  “You look awesome,” Jakob said when she came into the vestibule of the restaurant, where he was waiting for her. “You can be my date anytime.” He surreptitiously ran his hand up the back of her leg and pinched her on the rear.

  “I’ll give you twenty dollars to skip this dinner and go back to my place now,” Liana offered. “Fifty?” But she was happy; she had missed Jakob. And he clearly appreciated that she was making the effort.

  They spotted Frank and Marissa at a table in the back. The restaurant, high-end but otherwise authentic Ethiopian, was dimly lit and fairly crowded, the tables set close together. After the obligatory kiss-on-the-cheek greeting all around—including Marissa, whom they had never laid eyes on before—they sat down at the small round table.