The Jury

chapter seventeen

Tate’s inner sanctum is a monument to longevity in office. The walls are covered with plaques of platitude: brass tablets and framed scrolls celebrating his high ethics, all presented by groups seeking to curry his favor.

There are framed pictures showing a man who only vaguely resembles Tate, darker hair and more of it, without the jowls that are now his most prominent feature.

Harry and I wander around the room, checking these trophies as Tate finishes a meeting down the hall in the library.

There are photos of the man shaking hands with baseball players, movie stars, other politicians: confirmation of his orbit in the celebtocracy in case he should forget. Some of these shots date him badly, figures in them have held horizontal residence at Forest Lawn for the better part of two decades. Time moving on, catching up.

Harry’s looking over my shoulder with an appraising eye at a shot of Marilyn Monroe showing some thigh, seated on the edge of a desk with Tate’s name placard on it. Tate is seated behind the desk looking very much younger, an eager and rising deputy.

“When he retires, they’re gonna have to take an oral history or lose touch with the ancient world,” says Harry.

“Who says he’s going to retire?”

The clutter of memorabilia is a flea market dream. What purports to be the first Padre baseball thrown out in one of the league play-offs sits on the second-base bag from that same game. A three-hundred-pound block of granite, a tombstone, with the engraving

DEATH PENALTY REPEAL

RIP

stands in a corner of the office, proof of Tate’s credentials in the cop community and the brotherhood of prosecutors. I am told he drapes this with a black lace handkerchief when closeted with deputies deciding whether to seek the death penalty in capital cases, and has scratched notches in the edges of the stone whenever the penalty was exacted in one of their cases. He is no squeamish liberal when it comes to retribution, and plays his politics the same way.

Before I can move to check the edges of the tombstone closer, the door behind me opens.

“Sorry to keep you gentlemen waiting.” Tate sweeps into the office like an autumn wind. Being sucked along in the vacuum of his wake is Tannery.

“Did Charlotte offer you some coffee?”

I wave him off, but he ignores me, plops himself into the chair behind his desk and picks up the receiver on the phone hitting the com line.

“Charlotte, bring in some coffee, will ya? Four cups. You guys want cream and sugar?”

Before we can answer. “Sure, bring it all on a tray. And see if you got some of those little cookies. The ones with the mint.”

He sets the phone on its cradle and he’s back out of his chair before Harry and I can say a word, hanging his coat up on a hanger that dangles from the coat tree in the corner.

“You must be Madriani.” He reaches over on his way back to the desk, shakes my hand in an almost absent fashion as he passes by.

“Harry Hinds, my partner,” I tell him.

He has to backtrack to catch Harry’s hand. “Good to meet you. Have a seat. Sit down.” He directs us to the two client chairs. Tannery pulls up a ladder-back chair from the small conference table across the room and joins us.

“Heard good things about you both,” says Tate. This is very much his meeting, in control.

“Seems we have some mutual friends up in Capital City.” He mentions some names, fixtures in the local bar and on the bench.

“You represented Armando Acosta,” he says.

I nod.

“That was a big case. Got headlines all over. Not every day you get a state court judge charged with murder. Especially,” he says, “where there’s a little nookie involved.” He pulls on his right earlobe, smiles as if perhaps he can entice me to share some confidences from the past. Tate is referring to charges that the judge had been snared in an undercover vice sting by a pretty decoy sent out by the cops to nail him. She was later found dead, and Acosta was charged with her murder.

“Those charges were never proven,” I tell him.

“Of course not,” he says. “You won the case. Judge Acosta is eternally in your debt, from what I understand. Your biggest cheerleader. That was not always the case.”

“I haven’t been able to try a case before him since the trial. Judge Acosta is scrupulous in disqualifying himself in any matter in which I am involved.”

“Funny how that works. Do somebody a favor and it comes back to bite you in the ass.”

“The law is not politics,” I tell him. “That is, if it works right.”

He smiles. “Of course not. Which brings us to the reason for today’s meeting. Some pretty fortuitous events,” he says, “the death of a witness on the eve of testimony. I’ll bet that hasn’t happened in one of your cases before?”

“Not that I can recall,” I tell him.

“Obviously it’s thrown a glitch into the people’s case.”

“We noticed,” says Harry. Harry’s getting tired listening to the bullshit. He wants to cut to the chase. “Why did you call us in here?”

“We still think we have a solid case against your man. Don’t get me wrong,” says Tate.

“Is that why you called? To tell us you have a solid case?” I ask.

He looks at Tannery, smiles. “No. I called you here to discuss a possible resolution. As it stands, your client can’t be sure he’s gonna beat the wrap. Don’t misunderstand; the Epperson thing throws up some dust. It may not be quite as clear as it was before, but there’s still the question of the cable ties in his pocket, the tension tool in his garage, the fact that he and the victim were not on good terms. The medical evidence points to a skilled hand dismembering the body. There’s plenty there for a jury to chew on,” he says.

“And given this. . mountain that we have to climb, what are you prepared to offer?”

“A solution that provides your client with a more certain result,” he says.

“What? You gonna pump the poison directly into his heart instead of his arm?” says Harry.

“What if the result avoids the death penalty?” says Tate. “Perhaps a life sentence without possibility of parole.”

“Not a chance,” I tell him.

Tate looks over at Tannery once more. The expressions that are exchanged between the two lead me to conclude that this was not Tannery’s idea. He knows he doesn’t have the leverage, but you can’t blame Tate for trying.

“Okay. Second degree,” he says. “We drop all the special circumstances, he gets fifteen to life; with good behavior he could be out in ten. That’s as good as it gets,” he says.

I look at him, say nothing, Mona Lisa smile on me.

“Fine, we’ll sweeten it a little.” Tate doesn’t know when to stop talking. “Your guy pleads out, we agree not to bring any charges regarding the Epperson thing as to him, if he cooperates with us.”

“Cooperate how?” I ask.

“Tells us what happened.”

“No problem. Mr. Epperson committed suicide,” I say.

“And you believe that?” he says.

“The last time I looked, there was nothing in the Evidence Code giving rise to presumptions based on what I believe. But I think if you look at the facts they might bear it out. Do you have evidence that Epperson didn’t commit suicide?”

Tate doesn’t have good lawyer’s eyes; perhaps that is why he left the courtroom and became a politician. His big brown ones say, No.

He swallows, clears his throat, looks over at Tannery. “Evan, maybe you should get involved here.”

Tannery edges over. “It’s a good deal,” he tells me. The devil in front of me, and the devil in my ear.

“I’ll take it to my client,” I say.

“Will you recommend it?” says Tannery.

“No.”

“Why not?”

“Because your case is in a ditch. I’d have to be incompetent to recommend a deal like that.

Tannery looks at me; his eyes get wide.

“All the testimony regarding my client’s alleged motive to kill Kalista Jordan, the supposed racial genetics studies intended to inflame the jury, that’s all out. Everything Tanya Jordan testified to is hearsay without Epperson, so all you have are some nylon cable ties and a tensioning tool found in the defendant’s garage, that and some bad blood between Crone and Jordan. At worst, this can be characterized as a severe case of professional differences. What’s more,” I tell them, “did you know that Epperson asked her to marry him? That she turned him down just a few days before she disappeared?”

I can tell by the look on their faces that this is news.

“Who told you that?”

“You want to find out, we’ll do it in court,” I tell them. “On the other side of the slate, you now have a suicide note and a confession typed on Epperson’s computer admitting that he killed her.”

“Unsigned,” says Tate.

“Did you find anybody else’s fingerprints on Epperson’s computer keyboard?”

Dead silence.

“I didn’t think so. You have the physical evidence at the scene, which is consistent with suicide. You have cable ties and a tensioning tool found at Epperson’s.”

“Very convenient circumstances,” says Tate.

“Convenient or not, the jury is more than likely to find reasonable doubt in those circumstances.”

I wait a beat to see if they want to contradict this. They don’t.

“I will assume silence as assent,” I tell them. “And we have an order by the trial judge compelling you to deliver whatever other evidence is in your possession regarding Epperson’s death to us by tomorrow morning. I’d say we’re in pretty good shape. I think we’ll wait.”

Tate’s eyes get beady, little slits of meanness. “We won’t give up on Epperson’s murder,” he says.

“That’s going to be a problem for you.”

“Why?”

“Because first you’re going to have to prove it was murder, and then you’re going to have to find a witness willing to commit to perjury.”

“What are you talking about?” he says.

“I’m talking about a witness willing to connect my client to Epperson’s murder. Dr. Crone was in jail.” I watch Tate’s eyes. If he has something, he isn’t showing it. My guess is, they had Aaron Tash stashed somewhere, in the library or another office, while Harry and I cooled our heels. They either didn’t pump enough fear into him, or he doesn’t know anything, though after seeing him on the street I have my doubts on the latter score.

They may still have him tucked away, hoping we will give them an opening, something they can carry back down the hall and use to sweat him, tell him that Crone has agreed to cut a deal, that he, Tash, may be left to swing on his own for Epperson.

“So you’re not willing to deal?” asks Tate.

“Not on those terms,” I tell him.

He settles back in his chair, sucks some air and lightly scratches his cheek with the back of the fingernails of one hand, à la The Godfather. All the moves are well practiced.

“You know, even if your man beats the wrap on Jordan, there’s no double jeopardy on Epperson and no statute of limitations.” Eye to eye, and he just blinked, admitting they can’t win on Jordan’s murder.

“He’ll have to discuss that with his next lawyer,” I tell him.

Tate smiles, shakes his head. “There’s been a lot of press interest on this one,” he says. I can almost hear the sparks jumping the synapses in the brain, sinuous threads of smoke as they overload.

“That press can only get worse if he’s acquitted,” I tell him. “You take it to a jury, given the evidence, and the press is going to wonder why, and so is my client who is likely to lose his job at the university. A lifetime of tenure.”

“We’re talking about a woman who lost her life,” says Tate.

“No, we’re talking about evidence you don’t have.”

Tate has survived this long by knowing when to cut his losses. If he presses, in light of the new evidence, and he loses, the county could be facing an eight-figure lawsuit for malicious prosecution or abuse of process.

At this moment, Tate is the picture of a prosecutor in a box, and he knows it. It’s why he called us in. If he agrees to a motion for dismissal, he may be haunted by that decision if evidence later develops that Crone was in fact involved in Epperson’s death. Any good defense attorney would look Tate’s deputy prosecutor in the eye in a courtroom and, on closing argument, ask the jury why the prosecutor’s office agreed to dismiss murder charges against the defendant in an earlier case. Their answer might be That was a different case. Still, if Crone was such a bad actor, why did they let him go? Conviction or not, it won’t make the office look good, and Tate is the office.

“I have to think about it,” he says.

“I wouldn’t think too long. Tomorrow morning we get the evidence, whatever you have in Epperson’s death. After that, my client is not going to be willing to deal. Unless you’ve got some solid evidence, you’re going to have to dismiss or face the wall if he’s acquitted. The county board of supervisors is not going to be happy raising taxes to pay for a zillion-dollar lawsuit.”

He tries to argue prosecutorial discretion, sovereign immunity. Harry and I take up seats at the other side of the room on the couch pretending not to listen as Tate huddles with Tannery, who brings him current: that these protections have been eroded by recent court decisions. Prosecutors who abuse their discretion, based on the evidence, can get nailed big-time. The look on Tate’s face says it all. He settles back in his chair, wags a finger for us to join him again. Harry and I cross the room and sit down again.

“So what are you gonna do for us if we agree to some kind of a deal?”

“You’ll join in a motion for dismissal?”

“We won’t join in the motion,” says Tate. “But we won’t oppose it, based on evidence as we know it at this time, and in the interests of justice.”

“Of course.” I consider my options. We have to throw them some kind of a bone. “Subject of course to my client’s consent, he will waive his right to bring any civil action against the county for his arrest or trial to this point.”

I study Tate’s eyes. He doesn’t even blink. “Good.” He’s up out of the chair, shakes my hand, all smiles.

I realize what has gone down is a show, something for our benefit. This was all Tate was looking for from the moment he walked through the door, civil immunity. What in the hell is going on?

The following morning, we craft the details of settlement. Harry and I camp with Crone at the jail. He is elated with his good fortune, but wants me to talk to the university about reinstatement. I caution him not to get the cart before the horse. He is more than willing to waive any rights to sue, but we counsel him anyway. Clients in this situation are always jumping to give up everything, assuming their lives will click right back into place. That is almost never the case.

“What if they don’t take you back?” I ask.

“What do you mean?”

“The university.”

“Why wouldn’t they?”

“There’s the question of the sexual harassment complaint filed by Jordan.”

“But you said that died with her.”

“Yes, but now they’re on notice.”

“I don’t understand?”

“Think of it like a dog-bite case,” says Harry. “It’s a question of dangerous propensities. You have a pet, a little dog. The dog has never attacked or bitten anybody. Then one day a neighbor’s kid comes in your yard. The dog attacks and bites him. Who knows why; maybe the kid tormented him. The parents go to court. That one bite may not cost you much. But now you have a problem. You know your dog has bitten once. That puts you on notice that he has dangerous propensities. The next time he bites and someone sues, you may lose your house.”

“You’re saying I’m like the dog?”

“We’re saying the university may see it that way. They may decide they’re better off not to take the chance. If they take you back and some other employee later files on you, sexual harassment or discrimination, the damages for the employer can be excessive. They’re the deep pocket.”

“Can they do that? I mean, I have tenure.”

“They can do whatever they want; the question is whether the courts will grant relief to you after they do, and whether you can afford that relief if it drags out.”

He thinks about this. “How long would it take?”

“It could take years,” I tell him. “Between administrative hearings, writs in court and appeals. And it could cost a considerable fortune.”

“The money’s no problem,” he says. “But the time. Is it possible I could work, at the center, at my old job, while this was going on?”

“Doubtful,” I tell him. “It would depend on the university’s position, what the courts might order.”

“We don’t know whether they’ll take me back,” he says.

“No, we don’t, but the prosecutors want an answer this afternoon as to their offer.”

“What should I do?”

“There’s only one thing to do,” says Harry, “and that’s to take it. We’re telling you because if you lose your job, you wouldn’t be able to go back and sue the county for bringing the criminal charges.”

“Damn it,” he says. “I don’t care about the money.”

“That’s fine. Then you have nothing to lose,” says Harry.

Crone slumps noticeably in his chair. “I have my position to lose, my reputation.”

Neither Harry nor I have an answer for this.