Accused

TWENTY-THREE

Scott held Rebecca's hand as they entered the Galveston County Jail for her formal booking at nine on Monday morning. Junior again manned the lobby window, and Sarge stood next to Junior, hands clasped behind him, as if awaiting a dignitary's arrival.

"I guess you didn't dress up for me," Sarge said.

Scott was wearing a $2,000 suit that day.

"I'm surrendering Rebecca Fenney for arrest and booking."

Sarge held up a document. "Rex brought over the arrest warrant himself this morning, said you'd be bringing her in, said I was to-what was it, Junior? — 'extend all courtesies to Mr. Fenney and his client,' whatever the hell that means."

"It means, be nice."

"Hey, I got no dog in this fight, Mr. Fenney. We'll book her, then take her over to the courthouse for the arraignment. Judge'll set bail, we'll bring her back over, you can bond her out right here. And Detective Wilson's a jackass."

"What?"

"Going on TV, saying she's guilty. Cops ain't supposed to do that."

Scott turned to Rebecca. Her face belonged to a frightened child. She hadn't slept the previous night.

"Scott, I can't go back in there. Those women, they'll hurt me."

"No, they won't. It'll be okay, I promise. I'll see you at the courthouse."

He squeezed her hand then tried to release her, but she clung to him.

"Scott, I can't!"

He wiped a tear from her face. "They have to book you."

She abruptly turned and bent over. She couldn't sleep, but she could throw up. Scott pulled out his handkerchief and wiped her mouth. She was crying.

"Junior!" Sarge yelled. "Get out there and clean that mess up!"

When Sarge opened the secure door, Scott led Rebecca over to him. The cop facade dropped from Sarge's face at the sight of her. He sighed.

"I'll book her myself."

Sarge put an arm under hers as if he were escorting Rebecca Fenney into the high school prom instead of the county jail. The secure door swung shut behind them.

The new Galveston County Courts Building's modern architecture seemed out of place on the quaint Victorian-style Island. The curved front facade faced south and featured four stories of glass, and the front entrance metal detectors manned by deputy sheriffs. After reloading his pockets and briefcase, Scott took the elevator to the fourth floor. On the north side of the corridor were the courtrooms; the south side was a floor-to-ceiling glass wall offering a panoramic view of the Island, from the buildings of downtown on the East End to the pyramids of Moody Gardens on the West End, with the Gulf of Mexico providing the dramatic backdrop. Scott found the courtroom at the end of the corridor. The nameplate above the double doors read "Judge Shelby Morgan, 147th District Court." He pushed open the doors and entered.

Walking into an out-of-town courtroom was like walking into an out-of-town football stadium: You knew you were behind in the score before the game even started. You knew you were not contesting the case on an even playing field. You knew your opponent had home-field advantage. A Dallas lawyer didn't contribute to the Galveston judge's campaign, didn't vote for her, and didn't rate her for the judicial rankings-thus a Dallas lawyer had no standing with a Galveston judge. Winning a high-profile criminal case in your own home town was improbable at best; winning that case in someone else's home town was almost impossible.

Almost.

Scott stood just inside the doors and glanced around. This courtroom was not like the vast old federal courtrooms in Dallas; this courtroom was small and new and modern with video monitors and a drop-down screen and overhead projectors. But new or old, small or vast, modern or antiquated, in this courtroom Rebecca Fenney's fate would be decided by twelve jurors sitting in that jury box… by the judge sitting at that bench under the Great Seal of Texas… by the district attorney sitting at that table… and by the defense lawyers sitting at the other table-where Bobby, Karen, and Carlos now sat.

Scott walked up the short center aisle past seven spectator pews occupied by exactly two people: Terri Rawlins, and her attorney, Melvyn Burke. He hadn't noticed them at first because they were sitting in the back pew tucked around the corner from the entrance doors. Under the ethics rules, a lawyer may not speak to another lawyer's client unless the lawyer is present. Melvyn was present, so Scott stopped.

"Melvyn."

"Scott." To his client: "Terri, this is Scott Fenney, Rebecca's lawyer."

"I'm sorry for your loss," Scott said.

Terri Rawlins gave him a hard look. "You should be. Your wife killed my brother."

"Terri, do you think I'd be representing my ex-wife who left me for Trey if I thought she killed him?"

"Lawyers will do anything for money."

"Not this lawyer. And she has nothing now. She's not paying me."

"Is that why you want her jewelry?"

"No, Terri. Keep the jewelry."

"I don't want it." She reached down and came up with a brown bag. She held it out to Scott. "Take it."

He took it.

"Trey asked Rebecca to marry him that night."

"No! He didn't! She's lying! He wasn't going to marry her."

"Did he tell you that?"

She didn't answer.

"Terri, let Melvyn tell me what he knows about Trey's life. Waive the attorney-client privilege. Please." Scott looked directly at Melvyn when he said, "So an innocent person doesn't go to prison."

"No-and she's guilty."

"What are you hiding, Terri?"

"That's enough, Scott," Melvyn said.

Scott gave Melvyn a long look then continued up the aisle and through the gate in the bar. He placed the bag on the table.

"What's in the bag?" Bobby asked.

"Her jewelry."

A side door opened, and a deputy sheriff escorted Rebecca into the courtroom and over to the defendant's table. She now wore a white jumpsuit that dwarfed her slender body. GALVESTON COUNTY INMATE was printed across the back.

"You okay?"

She nodded, but her eyes took in the courtroom where she would be tried and either acquitted and set free or convicted and sent to prison for the rest of her life. The air of confidence she had exhibited just the day before was gone. The American criminal justice system had finally gotten to Rebecca Fenney. She was scared to death.

The D.A. and his assistant entered through the back doors. Ted Newman walked over to the prosecution table and Rex Truitt to Scott. They shook hands, and Scott introduced Rebecca to the D.A.

"Sarge treat you okay during booking? I've been working on his manners."

Rebecca nodded at the D.A. but stared past him at the vacant jury box. The D.A. reached into his briefcase.

"Here's a copy of the indictment."

Scott handed the document to Karen then turned back to the D.A.

"Did you see Renee Ramirez's report Saturday night?"

The D.A. nodded. "I told you she was annoying as hell."

"You also told me you don't try your cases in the press."

A common prosecutorial tactic was to try a criminal case first in the press prior to trial-leaking evidence and having detectives offer personal views about the defendant's guilt-and then in a courtroom at trial. Evidence that is not admissible in court gets admitted in the press. By the time the jury is seated, every juror is convinced of the defendant's guilt. Which, of course, is the point: It's much easier to convict when you've stacked the jury.

"I don't."

"Then why was that detective on the network morning shows, calling her the Guilty Groupie?"

The D.A. sighed. " 'Cause Wilson's a prick, wants to be famous."

"That's unethical."

"Wanting to be famous?"

"Going on TV before trial, declaring the defendant guilty."

"He's a cop. That's what cops do."

"You think Wilson told Renee about the fingerprints? And the polygraph?"

"Renee's real friendly with the cops."

"I figured she'd be here."

The D.A. smiled. "I didn't release the arraignment date."

Just then the double doors behind them flew open, and reporters and cameramen surged forward, led by Renee Ramirez like a general leading her troops into battle. The D.A.'s smile faded.

"But I guess the judge did. Don't let her rattle you."

"I've been here before."

"And now you're here again."

"Find your leak, Rex. And plug it."

The D.A. went to the prosecution table but did not sit because a bailiff entered and called out, "All rise!" From a side door, Judge Shelby Morgan appeared. She stepped up to the bench, sat, and gazed upon her courtroom like a queen upon her subjects-or a model posing for the cameras. Rex hadn't exaggerated: she was the most attractive judge Scott had ever encountered. The recessed lights above the bench seemed specifically designed to cast her in the best light-and did. She had blonde hair and lean facial features that made Scott suspect the black robe concealed a fit body. The bailiff called the case: "State of Texas versus Rebecca Fenney. Arraignment."

"Please make your appearances," the judge said.

"Galveston County Criminal District Attorney Rex Truitt and Assistant Criminal District Attorney Theodore Newman for the state."

"A. Scott Fenney, Robert Herrin, and Karen Douglas of Fenney Herrin Douglas, Dallas, Texas, for the defendant."

"Mr. Truitt, would you please read the indictment?"

"Ted will."

The Assistant D.A. read: "In the name and by authority of the State of Texas…"

Ted Newman spoke in a monotone through the procedural parts of the indictment but put his drama club experience to use in the charging statement.

"… Rebecca Garrett Fenney, did then and there intentionally and knowingly cause the death of an individual, Trey Rawlins, by stabbing him with a knife, which act constitutes murder under section nineteen-point-zero-two of the Texas Penal Code. Against the peace and dignity of the State."

"Will the accused please rise?" the judge said.

The "accused." His ex-wife. The mother of his child. Accused of murder. Scott helped Rebecca to her feet. Her body trembled.

"You are the Rebecca Garrett Fenney named in the indictment?"

"Yes."

Her voice was almost a whisper.

"Ms. Fenney, how do you plead to the charge contained in the indictment?"

Thirteen years before, when this woman had stood next to him in a white wedding dress in a church and said, "I do," Scott would never have imagined that one day she would stand next to him in a white jail jumpsuit in a courtroom and say, "Not guilty."

"A plea of not guilty has been entered in the docket. Mr. Fenney, does your client demand a jury trial?"

"Yes, Your Honor. And the earliest available trial setting."

The judge flipped through her docket. "I have a setting available on July twentieth. Thirty-five days, Mr. Fenney-you sure you want that speedy of a trial?"

Thirty-five days. The clock was ticking on Rebecca Fenney's freedom.

"We'll take it."

Like booking a hotel at a popular resort.

"Will that work for the state, Mr. Truitt?"

"That'll work, Judge."

"Pretrial conference on July thirteenth, jury selection on July seventeenth, bail is denied. The defendant will be remanded to the custody of the Galveston County Sheriff pending trial."

" What? "

Rebecca clutched Scott. "No! I can't go back!"

The judge had fixed a glare on Scott. "Is that an objection, Mr. Fenney?"

"Yes, Your Honor, defense objects. The defendant presents no flight risk and no risk to herself or to the community. Judge, you can't deny bail."

"That federal judge in Houston did."

"What federal judge?"

"It was in the paper this morning, he denied bail to Sir Allen pending his trial."

"Who the hell's Sir Allen?"

"Allen Stanford, he's charged with running a seven-billion-dollar Ponzi scheme."

Scott remembered now. Nick Madden had mentioned him.

"What's that got to do with this case?"

"You said I can't deny bail. If he can, I can."

"Your Honor," the D.A. said, "I read the paper, too. Stanford had private jets at his disposal, he had homes and cash offshore, he had resided outside the U.S. most of the last decade, and he had dual U.S. and Antiguan citizenship. He was a true flight risk. I must agree with Mr. Fenney-there is no flight risk here."

Judge Morgan was not pleased. Her face flushed red and her jaws clenched tight, and Scott thought she might have a Serena moment, but the cameras prevented an injudicious outburst. She glared at the D.A., but he seemed unfazed.

"Fine," the judge said. "Bail is set at one million dollars."

"Your Honor," Scott said, "Ms. Fenney has no assets and cannot satisfy such an onerous bail. We ask that the defendant be released on her personal recognizance."

"PR on a murder charge? I don't think so, Mr. Fenney."

Without breaking eye contact with the judge, Scott reached out to Karen. She slapped a stack of documents in his hand. Scott gave a copy to the D.A. then walked over and handed a copy to the judge. Karen addressed the court from a sitting position.

"Your Honor, this is our brief on bail. The U.S. Supreme Court ruled in Stack v. Boyle in 1951 that bail is excessive in violation of the Bail Clause of the Eighth Amendment if set in an amount exceeding that necessary to ensure the defendant will show up for trial. The Court also ruled that-"

"Your Honor," the Assistant D.A. said, "the defendant is charged with a bloody brutal murder that shocked our community-"

The D.A. was reading the brief. Without looking up, he held up an open hand to his assistant. "Easy, Ted. This is about the law, not those cameras."

"Your Honor," Karen said, "the defendant has resided in Galveston County for almost two years and will continue to reside in the county."

"Not in that house, she won't. So where will she reside?"

"In a vacation house here on the Island. We'll give Mr. Truitt the address."

"If she has no assets, how is she affording that?"

"Your Honor," Scott said, "Ms. Fenney is residing with us. I am also her ex-husband. I rented a house for the summer to try this case. We're all living there, including Ms. Fenney's daughter. She's not going anywhere."

"And she agrees to wear a GPS-tracking ankle bracelet at all times and not to leave the Island," Karen said. "She will surrender her passport to the district attorney."

"Your Honor," the D.A. said, "Mr. Fenney has personally assured me that the defendant will present herself for trial. With the GPS monitor and the passport surrender, the state does not object to release on PR."

"I do. Two hundred fifty thousand. If you object to that bail, Mr. Fenney, you can file your brief with the federal court in Houston. My clerk will give you directions. I think we're done here. I want to see counsel in chambers."

She bolted off the bench and through the side door. She wasn't happy, but neither was Scott. The D.A. stepped over to him.

"You like her already, don't you?" To Karen: "Great brief. You should be a law professor… or better yet, move down here to the Island. I'll fire Ted and hire you."

The deputy sheriff stepped over and took Rebecca by her arm. Her eyes were wide with fear. She grabbed Scott's arm. The deputy tugged gently, but she did not release her grip.

"Scott, please don't let them take me! I can't stay in that jail!"

"You won't have to. I'll bond you out."

"How? Two hundred fifty thousand dollars? You're broke."

"I'll figure something out."

"Scott, please… those women."

The D.A. stepped over to the deputy. "Tell Sarge to put her in a separate cell."

The deputy nodded then pulled Rebecca through the side door. Scott felt the anger rising inside him. An ambitious judge was a dangerous animal.

"Stay calm, Scott," the D.A. said. "So I'm not bailing you out of jail."

The judge was removing her robe when her secretary escorted the prosecution and defense teams into her chambers. Shelby Morgan was lean and wore tight black slacks, black high-heels, and a fitted white blouse. She appeared younger than forty. She hung the robe on a coat rack then sat behind her desk in front of a wide window offering a nice view of Galveston Bay on the north side of the Island. But the judge wasn't in the mood for nice.

"Rex, did you see Renee's report?"

"Yep."

They took seats in front of the desk. The judge stared at the D.A. but pointed at Scott. "Did you let her out on PR because of him?"

"No, Shelby. Because that's the law."

"Maybe so, but you made us look like fools."

"The law has a way of doing that."

"Are we off the record, Judge?" Scott asked.

"Yes."

"Then what the hell's going on?"

"Careful, Mr. Fenney."

"Denying bail, then a million dollars, now two-fifty. The D.A. doesn't object to her release on PR-why are you insisting on bail?"

"She's charged with murder."

"She's not a flight risk or a danger to the community. She's agreed to remain on the Island pending trial-"

"Where? Where on the Island?"

"On the West End, at an undisclosed location. For her safety."

"She'd be safer in jail. Hell, you'd be safer with her in jail."

"You can't set bail to punish the defendant, force her to stay incarcerated through the trial."

"I can't go any lower than that-Renee would have a field day."

"That's grounds for recusal, Judge. Karen, prepare a motion."

The judge's face flashed red again, and this time she did have a Serena moment.

"Don't you fucking dare!"

"Judge, I don't live here. It won't affect my law career, having a judge pissed off at me. My only concern is that the defendant get a fair trial. If you can't give her that because of your concern about the press coverage… or for other personal reasons… then I'll file that motion. And I will take that to the federal court."

"Mr. Fenney, I can hold you in contempt!" She pointed a manicured finger at Scott. "You're not a legend in my courtroom! You're just another goddamned lawyer!"

"Judge, my client-"

"Your wife."

"My client is entitled to a fair trial and I'm gonna make damn sure she gets one. If you can't give her a fair trial, then recuse yourself and let another judge do it."

Judge Shelby Morgan glared at Scott.

"She'll get a fair trial, Mr. Fenney."

When they exited the judge's chambers and walked back into the courtroom, the D.A. whistled and said, "Damn, Scott, you really know how to make a good first impression."

"I try. I figured we might as well clear the air now, before we go to trial."

"Oh, I think you cleared the air all right. But what's the personal reason?"

"The judge and I are both up for a federal judgeship in Dallas."

"Buford's bench?"

Scott nodded. "He's dying."

"Heard he was sick."

"Senator Armstrong said he owes Judge Morgan."

"I expect he does." He didn't elaborate. "So Shelby might be leaving the Island, huh?" The D.A. smiled. "Hell, not all bad news then."

They grabbed their briefcases and the bag of jewelry then opened the courtroom doors and came face to face with a dozen cameras shining bright lights and reporters shoving microphones and shouting questions. Renee Ramirez was the leader of this pack.

"Mr. Fenney, why are you defending your ex-wife when she's charged with murdering the man she left you for?"

Scott maintained his lawyerly expression. "Because she's innocent."

They pushed forward down the corridor toward the elevators.

"Why won't she take a polygraph?"

"Because polygraphs are not reliable indicators of guilt or innocence, which is why they're not admissible in any court of law in America."

"Why were her fingerprints on the murder weapon?"

"Are your fingerprints on your kitchen knives?"

Scott saw Renee's obvious frustration with his answers and figured she'd give up. She didn't. She had one more question.

"Mr. Fenney-do you still love your wife?"

Scott knew his expression had let him down, and so did Renee. She had a "gotcha" grin on her face.

"Ex-wife."

Carlos had jogged ahead and gotten an elevator; he held it open for the others. Once they were aboard, he let the doors close, shutting out the cameras. The D.A. turned to Scott.

"You okay? That last one was a cheap shot. But that's Renee."

"I'm a big boy."

Bobby held up the official Houston Classic tournament tote bag.

"Rex, we've got some evidence for you."

"And I've got some evidence for you."