Eddie Flynn 02-The Plea

by Steve Cavanagh

CHAPTER SEVENTY-FOUR

  The tall, broad figure of Gerry Sinton framed the entrance. With my back to the still empty judge’s bench, I stood in the central aisle, my hands in my pockets, waiting for him.

  Flanked by the same squad of paralegals, Gerry strode toward me. A bright sheen of sweat covered his face. He looked like a gladiator in a thousand-dollar suit.

  Before he took his seat in the gallery, he said, ‘I hope to see Christine again soon. I’m sure we’ll have a lot to discuss.’

  He sat down and folded his arms. I turned and walked back to the defense table, blood roaring in my ears. I wanted to break Sinton’s neck.

  Instead I sat down and opened the case files.

  ‘David, Dell made me an offer. He says you were hired by Harland and Sinton to design the algorithm for a specific purpose: to launder their money under the guise of a security protocol. I know that’s not how it went down.’

  ‘I didn’t know the firm’s money was dirty. The entire design is based on the premise that they are legit. If the money they brought in was dirty, then, yeah, the algo protecting the money would also clean it. But I didn’t know. I swear to you. I won’t testify that I created a program to launder money – that’s not what I did.’

  ‘Dell’s offering ten years if you plead to this murder and testify that the firm asked you to design a digital laundry. I have to tell you, we’ve got some moves to make today, but the prosecution have a great case and we’ve pulled a really bad judge.’

  I left out the part about Christine. I didn’t want to cloud the kid’s judgment. All in all, it was a great offer.

  ‘I didn’t kill anybody. I’ve never designed anything with a criminal purpose. I won’t do it.’

  If there was any doubt left, it disappeared. The guilty don’t toss away the deal of a lifetime. They grab it with both hands. Sometimes, even though it’s wrong, the innocent take the deal, too; going to trial and risking fifteen years, or pleading guilty and walking out in three, the justice game is a cold house for the innocent. I found myself admiring David; no matter what way you cut it, the kid was brave.

  Dell wanted justice for Sophie’s killer. I had no doubt about that. People who go through that kind of trauma are never the same. Either they lash out at others, or like Dell, they don’t want anyone else to suffer their pain. He couldn’t let another victim lie in the dirt with their killer unpunished. Also, Dell knew that Child would never admit to a criminal intent in designing the algorithm – probably because it was the truth. Dell didn’t care – as far as he was concerned, Child was a killer and he’d given the firm the means to operate their laundry. He wanted to use David, and for that he needed to take control of his life. A guilty plea and a deal gave Dell all the control he needed to use David as a weapon against the firm. To get his weapon he was putting my wife’s life on the line.

  I had to play this straight, one case at a time. Get David clear and figure out a way to bury the firm and save Christine.

  ‘I believe you, David,’ I said.

  The rear doors of the courtroom opened, some hundred feet behind us. I heard another entourage entering.

  ‘I sense a disturbance in the force,’ said Cooch.

  Zader hovered at the rear of the pack of assistant district attorneys, who hauled evidence boxes and folders into court. Zader looked determined. He didn’t have a phone in his hand this time. He was through playing the media for now. He needed a decision that went his way. Then he’d paste that victory over every channel, paper, blog, and magazine.

  ‘I don’t think he’s got a sense of humor about the whole Star Wars thing,’ I said.

  ‘Good,’ said Cooch.

  Cooch stood and held out a hand to the DA.

  ‘I don’t believe we’ve met. I’m Max Coucheron; call me Cooch.’

  ‘Michael Zader,’ he said, shaking Cooch’s hand.

  ‘Oh, I know who you are. I just didn’t recognize you without the helmet.’

  CHAPTER SEVENTY-FIVE

  A hush descended on the courtroom as Judge Rollins came out of his chambers and adjusted his robes before taking his seat at the bench. There was no announcement that court was in session. Rollins had told the clerk that he didn’t want a call for silence as he came in because ‘the presence of my authority creates the silence.’ The story spread fast, and a lot of the more senior defense attorneys made a point of loudly continuing their conversations when Rollins entered court, just to piss him off.

  Not that he needed to be any more pissed off than usual.

  ‘Now, the matter of State v. Child,’ he said, surveying the courtroom and drinking in the massive media attention.

  He looked at the prosecution table and nodded. ‘District Attorney Zader, a pleasure to have you in my courtroom.’

  ‘Always delighted to appear on the side of justice,’ said Zader.

  I heard fake retching noises from some of the reporters, and a nervous, muffled round of laughter made its way around the room. Rollins ignored it completely and turned his attention to me.

  He was a man close to fifty, but on the losing side. He looked to me like he was also losing the battle with his waistline. For all that extra weight, it hadn’t softened his face – he wore an angry expression below his light brown hair. He had skin the color of weak tea and dry, fat lips. Rollins had been a tax attorney before he’d applied for a judicial post. Before he became a judge, the closest he’d gotten to a criminal court was driving past the building on the way to his office.

  ‘Mr … er …’ he said, holding out the listing notice in front of him like it was toxic.

  ‘Flynn,’ I said, making sure to stand before I addressed him.

  ‘Flynn? I thought that Harland and Sinton were attorneys of record.’

  ‘I am the attorney of record, and there’s been a change in second chair. Mr Coucheron now appears,’ I said.

  Cooch stood and bowed with a smile.

  From the distasteful look on Rollins’s face, I could tell he’d come across Cooch in his court before.

  ‘Well, before we begin, I wanted to ask if the defendant would be willing to waive the hearing. Surely this is all just a formality, Mr Flynn. Your client must appreciate that he wouldn’t have been arrested and charged by the police if they didn’t have enough evidence to do so.’

  ‘We disagree. That’s why we’re here, Your Honor. That’s why we have preliminary hearings, so that the defendant can challenge weak and insubstantial evidence …’

  ‘I know the basis of criminal procedure, Mr Flynn. I don’t need a lecture from you,’ he said. Already his palette had changed to a sun-ripened red.

  ‘The prosecution will call their first witness.’

  With a thin bundle of papers in his hand, Zader got up from the prosecution table and handed the papers to the clerk.

  ‘Your Honor, might I be permitted to make a short opening statement, to frame the evidence and assist the court?’

  ‘By all means, Mr Zader.’

  ‘Thank you, Your Honor. This will be a short but thorough presentation of the evidence preserved to date in respect to this murder. The state firmly believes that the evidence establishes a strong, circumstantial and forensically sound case against the defendant, Mr David Child.’

  Zader spoke slowly, never taking his eyes from the judge’s pen as it scattered across the pages of his notebook. Rollins wrote down every word as best he could. Zader knew this and moderated the speed of his delivery to make sure the judge got it all down in his notes. It also meant the reporters, and whichever paralegal from his department, could get a word-for-word note of his speech. He stood with his feet wide apart, his hands lightly pressed together so that he could gesture naturally as he spoke. Zader was a seasoned litigator, and he knew exactly how to portray his own confidence and authority in court.

  ‘Your Honor, we shall call witnesses to prove that probable cause exists here in abundance. This case will show that David Child was alone with the victim when she was murdered. No one e
lse was present, and it is impossible for anyone other than the defendant to have perpetrated this crime. Two witnesses will establish this evidence. Mr Gershbaum, who heard the shots, and the building’s security officer, Mr Richard Forest, who discovered the body of the victim.

  ‘The crime scene investigator, Rudy Noble, will speak to the cause of death and reveal the violence inflicted upon the victim as one that can only be described as a crime of passion. A lover’s murder.

  ‘Then, in relation to the defendant’s capture, Mr Woodrow will testify that he had a car accident, which was his fault, where his vehicle hit the defendant’s million-dollar Bugatti Veyron. Mr Woodrow saw a weapon in that supercar. He called the police, and Officer Phil Jones retrieved that same weapon, a small pistol, from the footwell of the defendant’s car.

  ‘Your Honor, we have recently received ballistics evidence that proves the weapon found in the defendant’s car is indeed the murder weapon. Mr Peebles, our ballistics expert, will testify that the markings on the rounds that were retrieved from the victim match the weapon found in the defendant’s possession minutes after the crime was committed. We are reserving our right to submit this expert report without calling Mr Peebles.’

  The DA had learned his lesson from the Porter fiasco. This evidence would go before the judge without giving me a shot at cross-examining Peebles. Rollins would accept this evidence verbatim; the gun in David’s car was the murder weapon, and I couldn’t challenge a word of that. There was one thing that nagged at me about Peebles’s report – he couldn’t find a serial number on the murder weapon, even using their metallurgic retrieval technology. Basically, every gun in America has a manufacturer’s serial number – if that number is filed away, experts can still bathe the weapon in a form of acid that allows them to trace, on a microscopic level, the imprints made when the gun was stamped with the number. Peebles said that even after attempting this method, no serial number had been retrieved.

  ‘Finally,’ continued Zader, ‘Detective Morgan will testify regarding the CCTV images from the defendant’s apartment, which confirm beyond any doubt that he is the killer.

  ‘Unless there is anything else, the people call their first—’

  Rollins turned his attention to me with a puzzled expression on his face.

  ‘Mr Flynn, I would ask you to consider, once again, in light of the prosecution’s opening statement, whether your client wishes to waive this hearing. This court’s time is precious. My time is precious.’

  David’s leg bounced up and down under the table, the anxiety pumping through his system like caffeine. I looked at Cooch. He was reading the morning paper; he hadn’t listened to a word the DA had said. Zader looked like a winner. I became conscious that I was wearing the same suit, shirt, and tie I’d worn yesterday, I still hadn’t shaved, my nerves were shot all to hell, my wife was about to be charged with federal offenses, and I’d slept in my suit.

  All of these things ran through my mind as I said, ‘Your Honor, we are proceeding with this hearing.’

  Judge Rollins sighed, shook his head. A sea of mumbling erupted from the gallery, and Rollins let the noise pass without comment. He appeared to be too pissed at me to notice.

  ‘I’m not impressed, Mr Flynn. Surely this case has to go before a jury,’ said Rollins.

  I had two choices: ignore the asshole and press on with the hearing, or send Rollins a message and risk alienating David further. The safe option was to ignore the remark and get the first witness on the stand.

  But I was all about risk. If it paid off, it gave me a way to handle Rollins.

  ‘Your Honor, may I approach the bench?’

  ‘No, you may not. I don’t see any need for a sidebar. This is a public hearing. If you have something to say, then say it.’

  I’d known he wouldn’t grant me a sidebar. He wasn’t interested in anything I had to say. Fair enough, I thought.

  ‘Very well, Your Honor. The defense would like to submit a motion for your recusal.’

  It was Zader’s turn to chuckle with surprise.

  Rollins placed his pen on his desk, folded his arms, and seemed to rise up a little in his seat.

  ‘On what grounds do you seek my recusal, Counsel?’

  ‘For bias, Your Honor. My client can’t get a fair hearing from you. You’ve listened to Mr Zader, and it’s clear from your remarks that you’ve already made up your mind in this case. You’re biased in favor of the prosecution.’

  ‘In my office, right now,’ said Rollins.

  As I got up, I felt my phone vibrate. I let Rollins turn his back before I checked my phone. It was a text message from Kennedy.

  I’ve got some interesting reading. I’ll be there soon.

  CHAPTER SEVENTY-SIX

  ‘I have never been so insulted in my life,’ said Rollins as he paced up and down behind his desk. ‘I should hold you for contempt,’ he said.

  Zader shook his head. ‘I can understand how upset you must be, Your Honor, but wouldn’t that be a little extreme? It might also throw fuel on Mr Flynn’s argument.’

  I took my hands from my pockets and studied Zader. He was on to me. I had to be a lot more careful. This was a dangerous opponent.

  Tapping his index finger on the desk, Rollins fought to hold on to his temper, his collar straining at the bloated veins in his neck.

  ‘How dare you make such an accusation in my courtroom. This is about respect, Flynn …’ said Rollins. He’d dropped the formal address.

  ‘You will withdraw this scurrilous accusation right now, in open court, and you will apologize to me personally. If you do that, I will consider whether I need to send a letter of complaint to the Bar Association. Do you understand me?’

  ‘I understand, perfectly. Which judge do you propose to replace you?’

  ‘Excuse me?’

  ‘Well, obviously, if you’re going to complain about me to the Bar Association, you can’t continue to hear my client’s case until that complaint is adjudicated. You’ll have to recuse yourself. So who is your replacement?’

  He caught his tongue just in time. I could tell Rollins was thinking he’d underestimated me. He wasn’t the first to do that, not by a long shot.

  ‘I cannot believe you have the audacity to stand there—’

  ‘Your Honor, with all due respect, you asked me twice, in open court, to lean on my client to waive the prelim. You even said that this case should go to a jury, and you haven’t heard a word of evidence yet. All you’ve got is the DA’s opening statement. In my mind, you’ve already decided this case in the prosecution’s favor.’

  ‘Of course I haven’t decided yet.’

  ‘But you can see where I got that impression.’

  He moved to his chair and sat down, cautiously, behind his desk. His extra chin flopped over his collar, his fingers folded across his stomach, and he considered his position. The anger faded – replaced by doubt.

  ‘My comments were strictly obiter, Mr Flynn. Nothing more. I was merely considering the possibility of moving this trial forward. Your client has the right to a speedy trial.’

  I didn’t reply. Instead I inclined my head and kept my eyes on the judge, who couldn’t match my gaze for more than a second.

  ‘You have no cause for bias, really,’ said Rollins, opening his hands, splaying his fingers. He was asking me, not telling me. Since he’d cooled, he was replaying his request to waive the prelim over and over in his mind – wondering if he really had overstepped the mark.

  I said nothing and let him worry.

  Rollins looked at Zader, inviting his cooperation. Zader didn’t want to get involved in case it looked like he was backing up his pal, the judge. He avoided the judge’s look by leafing through the evidence file.

  ‘I’m not biased against your client, Mr Flynn. Can you accept that?’

  Hands on my hips, I nodded and said, ‘Your Honor, your word is good enough for me, but I’m mindful of my duty to my client. I will not pursue a recusal at this time,
Your Honor, but I will reserve the right to raise it again, should the need arise. I’m sure it won’t.’

  The judge rose from his seat, nodded, and waved us back into court. With his back to the judge, Zader gritted his teeth and shook his head as we left the chambers. He knew he’d lost the edge with Rollins.

  Now I had leverage. As a new judge, Rollins didn’t want to make a ruling on recusal, because he was afraid I’d appeal his decision not to recuse himself. The last thing a baby judge needs is a senior member of the judiciary examining his conduct when he’d been in the job only five minutes. Instead Rollins would now make sure that I didn’t have the opportunity to raise bias again – by giving me some leeway, being a little friendlier to the defense. And Zader had guessed the exact same thing. I couldn’t resist the urge to antagonize Zader.

  ‘Two can play at the bias game,’ I said.

  A fake smile was all he managed in reply.

  Sounds from the crowd dissipated as Zader and I returned to the courtroom, Rollins following. I took up my position at the defense table. Zader returned to the lectern.

  ‘Your Honor, we call the prosecution’s first witness to the stand, Mr Gershbaum.’

  Cooch gave me the thumbs-up.

  We were on.

  CHAPTER SEVENTY-SEVEN

  9 hours until the shot

  After he took the oath, Mr Leopold Maximillian Gershbaum stated his full name for the record in an accent that was pure Borough Park. His voice rattled in his chest, like too much grease on an old, wheezing engine. He unbuttoned his tweed jacket and sat down. I guessed he was pushing sixty. His salt-and-pepper-colored hairpiece looked to be in its early twenties. The reddish brown mustache made the ill-fitting wig look even more ridiculous. It didn’t look like he cared. With thirty million in the bank, four divorces behind him, and the future ex-Mrs Gershbaum, a platinum-blond former Playmate of the Month, sitting in the audience for moral support, Leo Gershbaum could afford to slacken on appearances.