Blind Justice

19

JONES LEFT BEN A message on his answering machine: Alexander Moltke requested a meeting before the preliminary hearing, at 8:30 sharp, in the law library at the courthouse.

If Moltke wanted to talk, Ben reasoned, he must be planning to offer a deal. Thank goodness. Even if Ben didn’t like the offer, even if he turned Moltke down cold, the fact that it was proposed indicated the prosecution perceived some weakness in their case, some possibility of failure. That alone would make Ben breathe a lot easier.

At 8:35, Ben pushed open the library door. Before he had a chance to get his bearings, a stark white light blinded him. He could hear Moltke’s voice, reverberating through a microphone somewhere at the front of the room.

“Rest assured, ladies and gentlemen, that in this court of law, this ingenious device by which we mortals achieve some measure of earthly justice, the guilty will be punished.”

Ben blinked his eyes, wiped away the tearing caused by the stinging lights. His vision began to clear. He was surrounded by reporters, armed with microphones and minicams and plastic hairdos.

The realization dawned on Ben slowly but certainly. It was a sucker play. This was a press conference, goddamn it. A press conference!

“I see my worthy opponent has arrived,” Moltke said, in his bombastic oratorical voice. “I must say, I sometimes despair of the direction our youth are taking. So much energy is channeled into pursuits of such little moral value. My opponent formerly practiced with one of the most distinguished firms in this city, but after that relationship was terminated, Mr. Kincaid was forced by economic circumstances to take cases such as this one, assisting certain liberal judges in their quest to return the guilty to the streets.”

“I resent that,” Ben said. The reporters parted, letting him move to the front. “The Constitution guarantee every accused person the right to counsel.”

“I’m not challenging the right of your client to counsel, son. I’m just glad I don’t have to be the one to do it. I don’t know how I’d live with myself, much less sleep at night.”

Ben’s face flushed with anger. “How can the court of law be an effective device to achieve justice if cheap politicians like you try to pressure lawyers to not represent the accused?”

The reporters pressed forward, minicams whirring. Someone from Channel 2 shoved a microphone under Ben’s nose. They were loving it—great fodder for the six o’clock news.

Moltke looked calmly into the cameras. “Now don’t get all riled up, son. You do your job, and I’ll do mine.” He leaned forward, his eyes steely and determined. “But rest assured, ladies and gentlemen, that justice will be done in Tulsa. The pernicious taint of South American drugs, destroying our children and poisoning our society, will be eliminated. That’s my promise to you.”

He straightened and smiled. “That’s all for now. I’ll answer questions after the hearing.”

Ben wasn’t normally given to bouts of claustrophobia, but he could swear the walls of the magistrate’s hearing room were closing in on him. The room was small to begin with, and was even more so now, with bailiffs, clerks, court reporters, newspaper reporters, and members of the U.S. Attorney’s office all jockeying for position. Everyone was talking at once; the cacophony was giving Ben a headache. He was queasy, sweaty, and nervous. And Christina was late. Again.

The prosecution team, Moltke and two other men, no Myra, seemed supremely confident. They were whispering among themselves; periodically, one would glance at Ben, smirk, then look away. If that was supposed to be an intimidation tactic, it was working.

To Ben’s surprise, Moltke walked over to his table. “Good morning, Mr. Kincaid.”

“You set me up, you son of a bitch.”

“Whatever do you mean?”

“You invited me to a plea bargain. Instead, it turned out to be an ambush.”

“My press conference ran a little longer than I anticipated.”

“Bullshit. You planned the whole thing, so you could score a few points at my expense on the six o’clock news.”

“Well…I’m sorry if you were rattled, son. The people have a right to know.”

“The Rules of Professional Conduct restrict press statements on pending criminal matters.”

“Try explaining that to the press.”

“Where’s Myra?”

“Myra?” Moltke grinned. “Myra’s a fine girl. A bit green, but she has potential. She can be an invaluable assistant, at times, if you know what I mean.”

“I hope I don’t.”

“Under my tutelage she’ll expand her talents. She’s already displayed an exceptional flare for…oral argument.”

“You’re disgusting, Moltke. Nothing personal. I wish you had sent Myra.”

“Myra is perfectly adequate for an eight-thirty bail hearing, but this is the big time.”

“You mean, there’s press coverage galore, so you dismissed the acolytes so you could soak up the glory yourself.”

Moltke made a harrumphing noise. “A man learns to take advantage of his opportunities. If he hopes to make anything of himself. I’m sure you’ll learn that in time. If you ever make anything of yourself.”

Touché. “We probably shouldn’t be conferring, Moltke. The reporters will assume you’re offering me a deal.”

“Actually, son, I am.” He whipped his arm around Ben’s neck and steered him away from the gallery. “I’m proposing an offer that will save us both considerable trouble.”

Ben looked at him suspiciously. “Are you proposing a plea bargain?”

“No, son, this isn’t a plea bargain. The press would hang my carcass out to dry if I did that. I’m just suggesting that we…simplify this proceeding.”

“Simplify?”

“Tell you what. You promise me you won’t move to dismiss after we put on our evidence, and I’ll spare your client the ordeal of hearing a litany of nasty testimony against her.”

Tiny wrinkles appeared around Ben’s eyes. “I’m not sure I understand.”

“It’s like this. If we think you’re going to try for a demurrer after we put on our evidence, we’re going to have to haul out everything we’ve got. No reason your client should be put through that. We’re here to search for the truth, not to put on a show. Just agree not to make the motion, and we’ll save your little lady a lot of unnecessary hell. It’s the humane approach. What do you think?”

“I think,” Ben said, removing Moltke’s arm, “I’m not nearly as green as you think.”

Moltke seemed taken aback. “What’s that?”

“That’s my way of saying, take your offer and get the hell out of my face. Nicely.”

“I thought it was a fair proposition—”

“You thought you could con me into being incredibly stupid. If I accepted your soft-soap appeal to my better nature, not only would I forfeit my chances of getting the charges dismissed today, I would also lose the opportunity to learn about your case—because you wouldn’t put forward your best evidence. Given the lack of cooperation from your office so far, this may be the only discovery I get. I’m not going to throw that away.”

“I was just trying to spare your client—”

“I know exactly what you were trying, Moltke, and it had nothing to do with the search for truth or any of your other sanctimonious twaddle.”

Moltke’s face became grave. “You’re making a mistake, son. Our case is stronger than you think.”

“We’ll see. If you’ll excuse me, I’d like to review my notes.”

Moltke walked away solemnly, shaking his head.

A few moments later, the bailiff cracked open the door. “All rise.”

Magistrate Gould stepped into the courtroom. He was a relatively young man, probably in his mid-thirties. Ben had never been before him; Gould had only been appointed about eight months earlier, to work in conjunction with Judge Derek. Word on the street was that he had a case of judgeitis—carrying himself ponderously, pushing people around at hearings, wielding sanctions like a whipping stick. If true, Ben knew Gould wouldn’t be the first person who had trouble adjusting to the immense power of his new position.

Gould hushed the bailiff before she could read the case file. “Where’s the defendant?”

“I’m sure she’ll be here soon,” Ben said, fingering his collar. “Any minute.”

“This hearing was scheduled to begin ten minutes ago. She’s late.”

Ben decided not to mention that His Eminence was also late. “I’m sure you’ve had parties arrive late before, sir.”

Gould drummed his fingers on the bench. “True. The defendant at a detention hearing I held yesterday was ten minutes late.”

“Well, there you go.”

“I revoked his bail and sanctioned his attorney.”

Ben craned his neck and adjusted his tie.

Suddenly, Gould leaned forward across the bench and boomed, “What is that you’re wearing?”

Ben looked back over his shoulder, then front and forward. “Who, me?”

“Yes, of course, you.”

What was it? His shirt, his shoes, his fly? Ben quickly checked himself out. Everything seemed to be in order.

“I’m referring to your tie, counselor,” Gould explained. “Is that…pink?”

Ben had to look. “Well, yes, sir. With little blue squiggles—”

“This is a courtroom, counselor. Not a discotheque.”

“Of course it is, sir.”

“I guess you think that because I’m just a magistrate rather than a full federal judge you can dress in this disrespectful manner?”

“Not at all, sir.”

“I don’t want to see that tie in my courtroom ever again, counsel. Do you understand me?”

“But my mother gave me this tie.…”

Gould pointed a finger at Ben. “You’re—” He seemed to be hauling a memory out of some faraway corner of his brain. “You’re the one who filed this pleading.” He held up several stapled sheets of paper.

“Yes, your honor. That’s our pretrial motion to—”

“It’s on legal-size paper.”

“Uh, yes, your honor. So it is.”

“That’s eight-by-fourteen-inch paper.”

“I believe that’s correct.”

“This is federal court, counselor. We file our pleadings on eight-by-eleven-inch paper.”

“I’m sorry, your honor, my secretary must’ve—”

“That’s no excuse, counsel.”

“No, of course not. I hope your honor will permit the pleading to be considered despite this grievous error.…”

“Of course I will.” Gould reached into a drawer and withdrew a pair of scissors. In two quick snips, he cut off the bottom three inches of Ben’s motion. “There. Now it can be considered by the court. I hope we didn’t lose anything important.”

“Me too, sir.” Why did he have the feeling he was losing this hearing before it had begun?

Gould reached for his gavel. “Under the circumstances, with no defendant present—”

Ben heard a shuffling of feet behind him. It was Christina. Thank God. “Magistrate, may I have a minute to talk with my client before we begin?”

Gould glanced at his watch. “One minute.”

Ben met Christina in the gallery.

“Did I miss anything?” Christina whispered.

“Nothing worth mentioning. Where have you been?”

“The police showed up this morning for a follow-up investigation of the break-in.”

“Did they find any indication of who tore the place up?”

“Not as of half an hour ago. I had to leave them to get here. Is that all right? Mike was with them.”

“If Mike was there, I’m sure it will be fine. Take a seat at defendant’s table.”

Christina walked briskly to the table, giving Ben a chance to inspect her more closely. She was wearing a thin V-necked dress with purple flowers. Her high-heeled sandals were laced up to her knees.

“Christina,” he whispered, “I specifically told you to dress normal!”

“What’s wrong with this?” she asked, astonished. “It has padded shoulders.”

“I know. You look like Herman Munster.”

“You told me to wear what I would wear to church. This is it.”

Ben sighed. If this case went to trial, he would have to choose her clothes himself.

“Can you still get the charges dismissed?” Christina asked.

“There’s a chance. As far as we know, all they’ve got is your presence in Lombardi’s penthouse when the FBI found the body. That might look good in the papers, but Magistrate Gould is going to require something more concrete.”

Ben heard a pronounced throat clearing from the bench. “Are we ready to proceed yet, counsel?”

“Yes, sir.”

“Very well. Let’s begin.” Gould rushed efficiently through the preliminary rigamarole. “Call your first witness.”

Moltke rose to his feet. “The United States calls James Abshire.”

Abshire was sworn in. He gave a bit of personal background information, then described his activities the night of the murder. He’d rushed into Lombardi’s suite expecting to find a drug deal in progress, but instead, he found Christina hovering over Lombardi’s body. He’d searched her, then cuffed her.

“Harmless,” Ben whispered to Christina. “Nothing in his testimony establishes sufficient cause to hold you over for trial.”

Moltke continued his direct examination. “Did Ms. McCall say anything as you arrested her?”

“Yes.” Abshire looked up at the magistrate. “She said, ‘I killed him.’ ”

There was an unmistakable reaction from the gallery, audible for all its silence.

Ben pressed close to Christina’s ear. “Is that true?”

“I’m not sure. I remember saying something, but it didn’t happen like that.”

“No more questions,” Moltke said, stepping down.

“Very well.” Gould turned toward Ben. “Any cross?”

Ben was trying to understand what Christina was whispering in his ear. “Just a moment, sir.”

“It’s now or never, counselor.”

“Then I guess it’s now.” Ben went to the podium. “Agent Abshire, did you see Ms. McCall fire the gun?”

“No.”

“Did you even see her holding the gun?”

“I’m not sure.”

“Agent Abshire, can you swear under oath that you saw Ms. McCall holding the gun?”

He frowned. “No.”

“You did not come into the apartment until after the crime was committed.”

“True.”

“When you searched Ms. McCall, did you find a gun on her person?”

“No.”

“Or any other weapon?”

“No.”

“Did you find any drugs or other illegal substances?”

“No.” He glanced at Moltke. “I didn’t.”

What was that supposed to mean? “And that self-serving hearsay statement you repeated, what was the context of the statement?”

“I’m…not sure I understand you.”

“Well, didn’t you first accuse Ms. McCall of killing Lombardi?”

He shifted his weight slightly. “I may have said something to that effect.”

“Did she seem to comprehend your question?”

“She sure as hell didn’t deny it.”

“Please answer my question.”

“She confessed right there in my face.”

“Isn’t it true she merely repeated your words?”

“Look, if she wasn’t guilty, all she had to do was say so.”

“Please answer the question.”

“But instead, she says ‘I killed him.’ Now if that isn’t a confession, I don’t know what is.”

“Magistrate, please instruct the witness to answer my question.”

“It’s your job to control the witness on cross-examination, counselor. But I will instruct the witness to listen carefully to the question and try to be more responsive.”

“I’m sorry, sir,” Abshire said contritely.

“I’m sure you are. Proceed.”

“Agent Abshire, would it be fair to say that your comment, whatever it was, provoked Ms. McCall’s statement?”

“Cards-on-the-table time? No, I didn’t make her say anything. Maybe her own guilt did—”

“Move to strike the last remark. Agent Abshire, she didn’t just start babbling out of the blue, did she?”

“I don’t exactly remember.”

“She was responding to what you said.”

“I suppose.”

“In other words”—Ben paused—“you had begun questioning her.”

Abshire drew back. He was beginning to see where they were headed. “I wouldn’t say that.”

“Had you read Ms. McCall her rights yet?”

“Well…” He licked his lips. “Not yet. We hadn’t had time.”

“You had time to initiate a conversation. One designed to elicit…what were your own words?…a confession. Sounds like a Miranda problem to me.”

Moltke rose to his feet. “Magistrate, I object. If we’re going to have legal argument, it should be addressed to the court, not a witness.”

“That will be overruled, Mr. Prosecutor. He’s entitled to explore the legalities surrounding this alleged confession, to determine the full extent of the taint created by this apparent Miranda violation. Unless,” he added significantly, “you wish to withdraw that testimony.”

Ben watched the magistrate stare down Moltke. The choice he was offering was clear. Withdraw the testimony, or risk a ruling that a custodial interrogation took place prior to reading Christina her rights, a violation that could conceivably make all their evidence to date inadmissible. No choice at all, really. Moltke would have to confer with Abshire later to determine the gravity of the problem and plan a course of action for the trial. But he couldn’t run the risk now.

“We’ll withdraw the testimony, sir. For the purpose of this hearing only, of course.”

Why not? Having heard the testimony, the magistrate would remember it, withdrawn or not. He might not decide the case based upon it, but he couldn’t possibly put it out of his mind.

Round one was a draw.

There was nothing duller than forensic testimony. Autopsies, fabrics, fibers, blood types. All sure-fire yawn inducers. Gould had been tapping his pen for ten minutes, a certain sign that this testimony had gone too long.

The investigating officer droned on. “We then proceeded to examine the room for dactylograms.”

“I beg your pardon?” Moltke said.

“Fingerprints.”

“Ah. And you didn’t find the defendant’s fingerprints on Lombardi’s body, did you?”

“No, I did not.”

“And you didn’t find her fingerprints in the bloodstains?”

“No, I did not.”

“Well, I guess that looks pretty good for the defendant.”

Ben’s head jerked up. Cheap theatrics were almost certainly a prelude to something Moltke thought was important.

“It seems like I’m forgetting something,” Moltke said. He snapped his fingers. “Oh, yes. I know what it was. I wanted to ask you, Officer—did you find any fingerprints on the gun?”

“Yes, sir, I did.”

“And whose fingerprints were they?”

“They were the defendant’s.”

“Are you sure?”

“Absolutely positive. We discovered two crystal clear latents. Thumb and forefinger.”

Ben cupped his hand over Christina’s ear. “Did you pick up the gun?”

“ ’Fraid so, pal.”

This was bad news. Although still circumstantial, eventually even circumstantial evidence could suggest only one reasonable conclusion.

Ben suddenly realized the magistrate was trying to get his attention. “I asked, will there be any cross-examination?”

“No, sir,” Ben said. He glanced at Christina and shrugged. There was no point.

Round two went to the prosecution.

Ben hoped that was the end of it. The gun evidence wasn’t helpful, but it was far from conclusive. There was still a chance he could get the charges dismissed.

“Any further witnesses?” Gould asked.

“No, sir. The prosecution—”

Moltke stopped mid-sentence. One of his junior assistants jabbed his arm, then pointed to the rear of the room, where a man in uniform stood.

“Magistrate,” Moltke said, “may I have a brief recess to confer with a possible witness?”

“I’ll give you two minutes,” Gould said.

Moltke walked to the back and talked with the officer. Ben tried to read lips or pick up some hint of what they were discussing, but it was impossible.

Just before his time elapsed, Moltke returned to the podium. He seemed energized. Even worse, he was smiling.

“Magistrate Gould, the government wishes to call one more witness.”

“Very well. Get on with it.”

“The United States calls Officer John Tompkins.”

Officer Tompkins, a ruddy, well-scrubbed officer in middle age and middle paunch, took the stand. Moltke made a cursory run through his credentials, principally his years on the Tulsa police force. Moltke appeared eager to move on.

“What was your first assignment when you reported to work this morning, Officer?”

“I was dispatched to an apartment on Southwest Boulevard to assist a follow-up investigation of a reported B and E.” He looked up at the magistrate. “That’s a breaking and entering, sir.”

“Ah,” Gould said. “Thank you for removing the scales from my eyes.”

“And who is the tenant of the apartment in question?”

“That would be the defendant.” He nodded in Christina’s direction.

Ben leaped to his feet. “Objection. Magistrate, I fail to see the relevance of this line of questioning.”

Gould squinted at Moltke. “I’m afraid I share defense counsel’s mystification, Mr. Prosecutor. Care to elucidate?”

“I’ll cut straight to the point, sir.” Moltke addressed his witness. “Did you discover anything during your investigation of the breaking and entering that pertains to this case?”

“Yes, I did.”

“And what would that be?”

“Well…” He leaned forward, as if preparing to tell a ripsnorting story. “The defendant has a number of stuffed animals.”

The magistrate blinked. “Stuffed animals?”

“Yes, sir. Well, animals, dolls, teddy bears—that sort of thing. Most of them had been torn apart and had their stuffings ripped out.”

“The court is undoubtedly grieved to learn of their disembowelment,” Moltke said. “Did you search the dolls?”

“Well, I picked up this one, a Betty Boop doll—”

The magistrate peered down at the witness. “Excuse me? A what?”

“A Betty Boop doll. You know, the cartoon character.”

Gould took up his pen. “Is that B-e-t-t-y B-o-o-p?”

Oh, give me a break, Ben thought. You can be dignified without acting as if you came from another planet.

“Yes, sir,” Tompkins said. “I believe that’s correct.”

Gould made a few more squiggles on his notepad. “I see. You may proceed.”

“And inside the Betty Boop doll, I found several clear glassy packets containing a white powdery substance. A tongue test confirmed my initial suspicion. It was about six hundred grams of cocaine.”

The buzz from the gallery was instantaneous. The reporters’ pencils flew into action.

“And were there any identifying markings on these glassy packages?”

“Yes.” Tompkins allowed a pregnant pause, then said, “Stapled to the first package was a small scrap of paper bearing the word Monster. That is what drug dealers refer to as a brand name, a mark identifying a particular dealer’s product and distinguishing it from those of competitors. And beneath the brand name, someone had written the word Lombardi. We believe this is part of the drug shipment that was delivered to Tony Lombardi the night he was killed. She must have taken it after she killed him.”

Ben screamed out an objection, but it was no use. The dull buzz in the courtroom became a full-fledged roar. Reporters began running toward the back door. They didn’t heed to hear any more. They could confidently predict the outcome now.

The magistrate pounded his gavel to little effect. The world seemed to be swirling around Ben, everything happening at once, everything happening much too quickly. He was conscious of mumbling that he had no questions, and then of a continuous, indistinct chatter, till he picked up the phrase held to answer in the district court before a jury of her peers.

“Held to answer,” Ben echoed.

Gould pounded his gavel again. “Trial is set for May fifteenth.”

“May fifteenth! That’s too soon!”

“Too soon?” Gould tossed down his gavel in disgust. “Given what we’ve heard today, I wonder if it’s soon enough.”

“Your honor, I move for a continuance.”

“Premature. Make your motion to the district court judge.”

“We’ll waive the Speedy Trial Act.”

“I won’t.”

“Sir, I have potential witnesses to interview.”

“Then you had better get started, counsel.” Gould rose to his feet. “This hearing is adjourned.”

Gould slipped away into chambers; those few still remaining in the gallery raced toward the door. Moltke waltzed past Ben, a smug expression plastered on his face.

Ben felt as if his veins were filled with poison. His vision blurred until he could see nothing at all, nothing but Christina, sitting at defendant’s table by herself.

Christina, all alone. And soon to be on trial for her life.