The Judge

CHAPTER 9

On our walk to the jail this morning I ask Lenore about the lock on Hall’s apartment door.

“I don’t know,” she says. “Maybe I locked it without thinking. An automatic reflex,” she tells me. “I can’t remember. Besides, what can we do about it now?”

Leriore’s conclusion is an obvious statement of fact. We can do nothing. Still, I’m concerned. We have affected the state of the evidence in a capital case, causing the police to believe that the victim knew her killer, someone she would have admitted to the apartment past a locked door. There is now a galaxy of other potential perpetrators, burglars, sex maniacs, strangers all, whom we have excluded from the mix of possibles. We have, by our own conduct, intensified the focus on the man with a motive, our own client, Armando Acosta.

They say you take your client as you find him. Today we find Acosta, a seeming shadow of his former self, as he stares at us from beyond the thick glass of the client interview booth in the county jail.

Acosta’s face is drawn, eyes that you could only call haunted, and yet still a hint of the former dominance that defined the man. Now instead of the twelve-hundred-dollar Armani, he wears an orange jail jumpsuit with its faded black lettering, the word PRISONER stenciled on the back. A guard stands outside the booth on his side.

“They have me on a twenty-four-hour suicide watch,” he tells us. This, the thought that others might think him capable of taking his own life, seems to depress him more than the fact that he is in this place.

Lenore tells him this is a usual precaution in such cases, where people of note have been arrested. It is one way to keep him from the general lockup with the other prisoners. There are probably a hundred inmates here who, if given the chance, would cut Acosta’s throat and never look back, people he has sentenced from the bench in his former life.

She mentions that reports from the county shrink indicate that he is depressed.

“I cannot sleep at night,” he says. “Not with someone watching me. I am tired. It is sleep deprivation,” he says, “that’s all.”

“Given what’s happened,” she tells him, “it would be normal to be depressed.”

“Don’t patronize me, Counselor. Yes. I give you depression. But suicidal I am not.” His voice through the tiny speaker embedded in the glass sounds as if it emanates from another planet.

She tells him she will look into the twenty-four-hour watch, but that in the meantime we have a lot to cover.

“What about bail?” he says. His own agenda.

A touchy point. Lenore is left to do the honors, as he will no doubt take this better from her than from me.

“Judge Bensen refused to hear the matter.”

With this, the look on his face is crestfallen.

“He insists that it be assigned through the usual process,” she says.

Jack Bensen is the presiding judge of the municipal court, where Acosta’s case now rests pending a preliminary hearing. According to our client, he is a good friend. Acosta was confident Bensen would entertain a motion for bail before assigning the prelim to one of the other judges.

“Did he say why?” says Acosta.

“He feels the appearance of impropriety would be too much,” she tells him.

“Impropriety! What is improper about bail?”

“It’s a death case,” I tell him.

“They have no evidence,” he says.

“That’s what we’re here to talk about,” I say.

“It’s more the process.” Lenore tries to soften it. “The judge felt that the public perception of going outside the usual process would be wrong. Besides,” she says, “they’re going to have to bring in a judge on assignment from another county to hear arguments on bail and do the prelim. They have all recused themselves.”

“The entire municipal court bench?” he says. “I don’t even know half of them.”

I can believe it. The judicial pecking order that prevails. There are judges of the superior court who deem it beneath them even to greet in an elevator a member of the lower order. The lack of power or prestige might be contagious: the court’s own caste system.

“All the judges, both municipal and superior,” she tells him, “have disqualified themselves from presiding over your case.”

If there was the slightest spark of fervor for the fight left, this seems to extinguish it. That the possibility of recusal could have evaded him is a measure of the confusion that must surely rage in his mind since his second arrest.

“Judge Bensen says he was told that recusal was appropriate by the Judicial Council.” This is the state court’s administrative arm.

The look in Acosta’s eyes says it before he utters the words: “The old boys’ club.” The clan to which he was never admitted, the judicial establishment.

“I am the wrong color,” he says. “Hispanic surname and an accent. An easy target.”

The accent he has honed with diligence for over a decade. I have spoken with people who attended college with him who do not remember his having even the slightest hint of one, who never heard him speak a word of Spanish in four years. During his review for appointment, a period of ascendancy in affirmative action, he wore these symbols of cultural diversity, some would say with feigned pride. There were those who referred to Acosta as a “professional Mexican” behind his back. It should come as no surprise that he would retreat to this, ethnicity as a lifeboat in his current sea of troubles.

“Don’t you think,” he says, “that they are out to get me because of my race?”

This is not just paranoia, but Acosta’s hard view of a possible defense. The brown ticket to freedom.

If there is an edict that should be carved in the criminal law, it is that truth does not always sell to a jury. Acosta may very well have felt the bumps of bigotry in life, but people holding positions of privilege have a hard time playing the ethnic card when things turn soar. I tell him this.

“It could be something else that caught up with you,” says Lenore.

“It’s no mystery that you were not the poster boy for the cops,” I tell him.

He runs a hand through thinning hair, then begins to agree with us.

“Absolutely,” he says. “You are right. I have spent many years protecting the rights of defendants. I have sought justice in my court.”

Break out the red tights and blue cape.

“I have upheld the Constitution,” he says. “They would have every reason to hate me.”

“For a defense, it is a little broad,” I tell him.

He looks at me with a studied expression. “You think that perhaps civil liberties is a bit like race,” he tells me.

I nod. “As a possible defense it may provide some garnish, but it cannot be the centerpiece. You are not the only practitioner of libertarian views on the bench,” I tell him. “A jury may have difficulty understanding why you were singled out for prosecution.”

“But I was the only judge overseeing a grand jury probe of the Police Association.”

Bingo. Finally he goes where I have wanted to take him.

“Everything else is decoration,” I say.

He is a picture of considered opinion.

It is the funny thing about being in trouble. You are the last to see connections.

Acosta has already filled us in as to his claim that Hall set him up in the prostitution sting. According to him, she called to say she had information in the police corruption probe, evidence that she would share only with him. Whether we believe this or, more important, whether a jury will, only time will tell. But it has the threads of a possible defense. If someone in the association were willing to frame Acosta on a misdemeanor in order to dampen his enthusiasm in the search for corruption, how much more likely would they be to shower him with incrimination when Hall turned up dead?

“We have some papers,” says Lenore. “Items we need to review.” She holds them up for the guard to see. He nods, an indication that someone will be there to retrieve them momentarily, to deliver them to Acosta’s side of the partition.

“I will look at them,” he says, “but it won’t do much good. They’ve taken my reading glasses.”

Lenore shoots me a look.

“They probably thought I would cut my wrists with them.” A bitter laugh.

“When did they take them?” she asks.

“Hmm.” He thinks. “Two days ago. I can watch television. That is all.”

“You haven’t by chance lost another pair recently?” This comes from Lenore.

“No. Not that I recall.”

“How many pairs do you have?” I ask.

“What is this?” he says. “What’s the problem?”

“How many pairs of glasses do you have?”

“I don’t know. Why? Is it important?”

“Could be,” I tell him.

“It’s hard to say,” he tells me. “You know how it is. You misplace some. You tend to collect others over the years, with new prescriptions.” He gives us a shrug as if to dismiss the issue. “Maybe four or five. I don’t know. Why?”

If the cops have Acosta’s glasses, they will already know his prescription. There is little sense in hiding the ball.

“The police found a pair of reading glasses in Hall’s apartment,” says Lenore. “We think they’re operating on the assumption these belong to the killer.”

He says nothing, but his eyes no longer engage us. Instead they are looking down, at the counter on his side of the glass, as if searching aimlessly for something that is not there.

Finally he collects himself, realizes we are looking at him.

“I see,” he says. “I don’t think I am missing any glasses.”

“Where do you keep them?” I ask.

He gives me an inventory, his best recollection. Two pair in the desk of his study at home. These are older but he still uses them. Another in his chambers in the courthouse, though the location of these is somewhat in doubt. He had moved some items from the courthouse following his suspension from the bench and is not sure whether the glasses made it in the move.

“That would make four pair, counting the ones they seized from you here. Did they give you a receipt for the pair they took?”

He looks at me and shakes his head.

Lenore makes a note to get a receipt.

“We also ought to get a picture of the pair they took,” she says. “Just to be safe.”

The thought is not lost, that if the cops are making out a case, some sleight of hand or sloppy chain of custody, and these, the seized pair of glasses, could end up being identified as the pair found at the scene.

“We’ll check with your wife and have her collect all the spare glasses. To account for them,” I tell him.

“That would be good,” he says. “I think she can get into my chambers at the courthouse.”

“We may also need the address of your eye doctor. To check his records, just to be sure that we have all the glasses and to get the prescription.”

He gives us the name of an eye clinic on the mall.

“Lili will have the phone number in my Rolodex. The doctor’s name as well.”

If he is lying about the glasses he shows no sign of it.

We go through some of the other evidence. I am dying to pop the question-how his name came to appear on the victim’s calendar for the date she was murdered-but I cannot. The cops have yet to disclose this fact as part of discovery, though I am sure it is coming. To ask Acosta would be to raise the question of how we came by this information, Lenore’s little intrigue into the victim’s apartment that night. The things you do and don’t want to know in a trial.

We talk instead about hair and fibers, the stuff found at the girl’s apartment. Acosta cannot remember the color of the carpet in the trunk of his county car. “Something dark,” he says.

“What kind of a car is it?”

“Buick Skylark. Metallic blue,” he tells us. What the county would buy, a fleet of mostly GM cars, where they would get a bargain on volume from some dealer in the area.

“Do you know the year?”

A slow shake of the head. “It was assigned to me two years ago, but I don’t know if I was the first to have it.”

According to Acosta the car could have been a hand-me-down from someone higher on the political food chain, a member of the county board of supervisors or other elected official.

“It’s still in the police impound,” says Lenore. “We can have it checked by our investigator. Some fiber samples taken.” She makes a note to do it.

“What about the hair?” I ask him. “Coarse, short, and reddish brown.” This, according to notations from a preliminary lab report the cops have now released, is not human, but animal hair.

“Do you own any pets?” I ask him.

“No. I am allergic to dander. No cats or dogs,” he says.

“Grandkids don’t bring anything over?” I ask.

“It is not allowed.”

It may be a meager point, but it is one for our side.

The guard arrives with the papers on his side of the glass.

“Mostly crime scene reports, notes by the police, preliminary discovery,” Lenore tells him. “We’ve read them. We want you to review them. Tell us whether anything you see is significant. Something we should know about.”

He tells us he will do his best. Maybe we could find him a magnifying glass.

Lenore tells him she will have his wife deliver another pair of glasses as soon as possible.

“We have to plan for the preliminary hearing,” I tell him. “We want to file a motion before the end of the week.”

“You should not worry about that,” he says.

“Why?”

“There won’t be one.”

“What are you talking about?”

“I intend to waive the hearing,” he says.

There is an instant of stunned silence, as we sit slack-jawed on our side of the glass, then a flurry of argument-Lenore trying to reason, telling him a waiver of the preliminary hearing would be a major mistake.

I concur that this would be foolish.

A preliminary hearing to test the state’s evidence to force them to produce some of their key witnesses at an early stage before all the evidence may be developed is a major advantage for the defense.

“It would force them to buy into a single theory of prosecution, perhaps before they are ready,” I tell him. “The testimony of any witnesses who appeared would be fixed in concrete.”

“Yes,” he says. “I know. Unrefuted testimony on the alleged prostitution charge, and whatever evidence they claim to have linking me to her murder. Correct me if I am wrong, Counselor.” Acosta is looking at me. “We would not be offering any evidence in opposition. Am I right?”

My expression is one of concession. “That’s true,” I tell him. “It would be stupid for the defense to tip its hand if it doesn’t have to. It’s a chance for us to take a peek at their case without revealing our own. To attack it if we can.”

“So you wouldn’t get a dismissal of the charges at the preliminary hearing?”

“I won’t know until I see all the evidence,” I tell him. But I concede that a dismissal at that stage is always a long shot. As he well knows, the state has a lesser burden, not proof beyond a reasonable doubt.

“Then I would be condemned in the press without an opportunity to defend myself. My public image destroyed,” he says.

“But we would make out a case at the trial,” says Lenore, “a convincing defense.”

“Yes, maybe five or six months from now. By that time my reputation in the community would be gone. A relentless bombardment of speculation and innuendo,” he says, “all fed by a one-sided hearing. My career would be over. No, I won’t do it. There will be no preliminary hearing.”

I start to argue, and he cuts me off.

“And I will not waive time,” he says. “We will demand to go to trial in sixty days.”

“We need time to prepare,” says Lenore.

“Again, correct me if I am wrong, Counsel.” He looks at us both sternly in the eyes. “Waiver of a preliminary hearing, and a speedy trial, are these not matters within the ultimate control of the client? Items upon which you may advise me, but upon which I have the final word as a matter of law?”

We both sit mute. Acosta already knows the answer. He has clearly thought about this for some time.

“Then I have spoken. Sixty days to trial,” he says.

He rises from the stool on the other side.

“Oh. And one more thing,” he says. “You should apply for a gag order. I will not have Kline or anyone else trying me in the press. Is that clear?”

As if by some strange form of metamorphosis, he has suddenly recovered the imperious tone of his former self, the old Acosta, eyes that I have often conceived as demonic staring at us through inch-thick glass.

He is implacable. His final word on the matter as he turns and gestures to the guard that our meeting is over.

Lenore and I remain, shell-shocked, sitting in the ashes, considering our dilemma, the problem that lawyers have with a judge for a client.

From his look I can only imagine that it’s his day out of the office. There must be no labor business to conduct, though I find it difficult to imagine Gus Lano being involved in anything that could legitimately be called business.

I see him across the lobby of the county jail as Lenore and I are leaving, followed by one of his hulking shadows, a guy whose hairdo looks like the skin on a kiwi fruit.

Lano is wearing a loud Hawaiian print shirt and white beachcombers. This is capped by a pair of canvas boat shoes sans the socks. He is shaking hands and doing some backslapping with a couple of the guards, probably members of the union.

Though Lano tries, the image he cuts is not so much dapper as what one would expect of some debauched pirate after pillaging the Love Boat. He has the definitive paunch and love handles like budding flippers on a porpoise.

When he finally sees me, Lano’s gaze is not so much at me as through me. I edge the other way, nudging Lenore to follow, but Lano is not one to miss an opportunity for an awkward meeting. He ambles over and cuts us off.

“Counselor,” he says, “fancy meeting you here.”

“Business,” I tell him.

“Lemme guess,” he says. “The judge.”

There is nothing that goes on in this place that he would not know about with lackey guards carrying messages like scribes to the pharaoh.

In the silent void that follows, he is busy ogling Lenore. When I don’t offer an introduction, he does his own.

“Gus Lano.” He holds out his hand, under an evil grin that strives for lascivious but ends up as creepy.

She hesitates as long as possible, and when the hand doesn’t disappear, she finally takes it. “Lenore Goya,” she says.

“Ah. The infamous Ms. Goya. I was wondering how long it would be before we met. I’ve heard a lot about you,” he says.

“All of it good, I hope.”

“Not as good as what I see,” he tells her.

“Is that a compliment, or are you just leering?” she asks.

“Oh, a compliment, a compliment,” he says. “Don’t misunderstand,” he says. “Though I see you are sleeping with the enemy these days.” Now Lano’s looking at me.

Lenore is not certain of his meaning. I think he senses the psychic growl, the hair spiking on her neck.

“Leaving the side of truth and justice,” he tells her. “Turning over a defense leaf.”

“A living,” she says.

I swear that there is dribble running in a crease down the chin of Lano’s subordinate. The man seems utterly removed from our conversation, as if perhaps human discourse is something beyond his comprehension. At the moment I am envious.

“So how goes the battle?” asks Lano. “Your case for the judge?” As if I am going to tell him.

“Mistaken identity,” I say. “Highly circumstantial.”

He laughs at this, as if he knows more about our case than we do.

“Yeah. Hard to believe that a judge, of all people, would do that. Murder some broad about to testify in a case,” he says.

Lenore, whose attention had started to drift, suddenly zeros in, like one of those Gatling guns on an incoming missile.

“That’s true,” she says. “It’s always easier to understand murder when the victim is some supercilious male prick.”

He studies her, wondering if there is some special meaning in this for him.

“You’ll have to excuse me,” he says. “I’m from the old school. I meant a female witness,” says Lano, as if “broad” were a legal term of art.

“I meant some supercilious male prick,” says Lenore. She would spell it for him if he asked.

“Hey, gimme a break.” He socks Igor in the arm. “Tough lady,” says Lano.

He tries to laugh if off. “Remind me not to get in front of that one in a courtroom.” He directs this toward me. Lano’s had enough chatting with the girls.

“As long as you’re in front of me I won’t worry,” says Lenore.

Hopping around on one foot like he’s been burned again. “You got a real tiger in that one,” he tells me.

“Perhaps you should count the scratches on your ass,” I say. The art of tiger training by Claude Balls.

He puts the best face on it, more self-deprecating laughter. “Seems like the only person in more trouble than me at the moment is your client,” he says. “But then I suppose when you swim in the sewer you’re bound to get dirty.”

“Meaning?” I say.

“Meaning that it’s no secret Acosta spent a lotta time fraternizing with the lower orders,” he says.

“I’m sure you would know about such things,” says Lenore.

By now he’s decided the best defense is to ignore her.

“If he didn’t have the inclination he would never have been out on the street that night,” he says. Lano’s talking about the night they netted the Coconut in the prostitution sting.

“You speak as if you have knowledge,” I say.

“No. No. No, Counsel. I don’t need no subpoenas slipped under the door of my office,” he says. “I don’t know anything about the specifics of the arrest. But I hear things. A lot of reports cross my desk. Nothing official, of course. But from the history, your man nurtured a very seamy side.”

Tell me something I don’t know.

“If they do the thing in the courtroom, with the TV,” he says, “all that swill’s gonna come spillin’ out, all over people’s living room floors.”

“Well, I guess we can just hope the prosecutors check with the station censors before they put on their case,” I tell him.

“Yeah, right,” he says. “But at least they’re investigating a bad guy this time, as opposed to-”

“That’s a matter of opinion,” says Lenore.

“As opposed to what?” I ask.

Lano gives her a dirty look, then finishes the thought. “As opposed to the good guys,” he says. “The boys in blue.”

“I think the D.A.’s office has enough time for both,” I tell him.

All of a sudden I’m getting arched eyebrows, the kind of smile from Lano that tells me this is an opportunity for him to deliver bad news.

“You haven’t heard?” he says.

I shake my head.

“The D.A. dismissed the grand jury. Case closed.”

“What are you saying?”

“The association has a clean bill of health. Acosta’s witch-hunt died with the man,” he says.

What he’s saying is that with Acosta’s demise, and the way he went down, the legal power structure has now regrouped, its collective tail between its legs.

“Your day in the sun,” I tell him. “Enjoy it while it lasts.”

He looks at me, a grin that could only be called vicious.

The conversation is over and he starts to move away. Igor nearly trips over him when Lano stops short and turns back to look at us one more time.

“Oh, by the way,” he says. “I almost forgot to tell you.”

“What?”

“The carpet fibers,” says Lano. “The ones found on the girl’s body. Seems they’re a perfect match to the stuff in the trunk of Acosta’s car.” Lano’s pipeline has no limits, even unto the sanctity of the county’s crime lab.

“Thought you’d want to know,” he says. He gives a little finger wave. This I think is aimed more at Lenore than at me.

“Bye.”