Blind Justice

30

BEN SURVEYED THE COURTROOM with disgust. You’d think they were trying Lizzie Borden again.

The courtroom was loud, crowded, and chaotic. Reporters flanked the aisle; spectators packed every available seat. Everyone was talking at once, pointing out the players, shouting questions at Ben or Moltke, demanding answers. And this was just a pretrial hearing.

A camera bulb flashed in Ben’s face, momentarily blinding him. Derek had issued a minute order permitting photography in the courtroom prior to and after the actual proceedings; the reporters were busily getting their money’s worth while they could. They were turning the courtroom into a carnival, and Moltke was playing it to the hilt—smiling, posing, pontificating about law and order and his personal crusade for justice. It was exactly what Moltke wanted: maximum exposure, minimum attention to detail.

Early that morning, Ben had received a phone message from Myra. Moltke was offering what he called his first and final offer to plea bargain: Christina pleads guilty and the government promises not to ask for the death penalty. Christina would most likely get a life sentence—long enough that no one could be critical of Moltke, but Moltke didn’t run whatever tiny risk he perceived that he might actually lose the case. And Christina? Well, of course, a huge chunk of her life would be wasted in prison. But she would live.

Ben turned it down. “No deals,” he had said.

He watched Moltke now, sitting at the other table with his flunkies. Moltke seemed supremely confident. He hadn’t mentioned the rejected plea bargain; he just kept babbling in his TV anchorman voice about “liberal criminal-coddling judges who care more about supposed civil rights than human beings.” Ben wondered if he had done the right thing. What did Moltke know that made him so damned self-assured?

After the bailiff intoned his oyez oyez routine, Derek strode into the courtroom. “Approach the bench,” he grumbled.

Ben and Moltke hurried to the judge’s platform.

Derek pulled out a white handkerchief and wiped his nose and eyes. His face seemed red and puffy. “Damned hay fever,” he said. “Pollen count in Tulsa must be over a hundred today. I’m miserable.” He looked down from the bench, directly into Ben’s eyes. “So let’s not make this too unpleasant, shall we?”

Ben tried to nod reassuringly, with little success.

“I assume you have some motions to present, Mr. Kincaid, although God knows I can’t imagine what motion you haven’t already made three or four times.”

“I have new ones, your honor.”

“Oh goody.” Derek rubbed his hands together in an exaggerated expression of delight. “Can you give me a hint as to the general nature?”

“Trying to thwart the government’s effort to cover their own butt by railroading my client.”

“God.” Derek pressed his fingers against his temples. “This isn’t going to be another of your grand conspiracy theories, is it?”

“I don’t know what you mean.”

“We both know exactly what I mean. I’m referring to your tendency to take a simple litigation matter and turn it into an episode of Perry Mason.”

“If I may proceed with my motions, your honor…”

Derek wheezed heavily. “Very well, counsel. You can make them at the bench.”

Ben hesitated. “I would prefer to make them in open court.”

“Aren’t you the one who urged privacy when last we met? These motions are apparently of a sensitive nature. I’m sure you don’t want to publicly defame government officials unnecessarily.”

“I want the motions heard formally,” Ben insisted. “I want the court reporter to make a record.”

Derek peered through his handkerchief. Ben’s meaning had not escaped him. Ben wanted the court reporter to make a record—for the appellate court to review.

“I don’t suppose I can deny your request, can I?”

“Not unless you want to give me grounds for an immediate interlocutory appeal, your honor.”

Derek’s teeth ground together. “Proceed with your first motion, counsel.”

Ben returned to counsel table. Moltke did the same, with exaggerated shoulder shrugging and head shaking. Part of his routine: the noble civil servant, exasperated by the devious machinations of defense counsel.

“First motion,” Ben said. He could sense the reporters leaning forward, scribbling away. “We move to exclude the alleged evidence found by law enforcement officers during their improper search of me defendant’s apartment.”

“I ‘m familiar with the circumstances,” Derek said. “What was wrong with the search?”

“No warrant.”

Derek opened the file before him and scanned it for a few moments. “Yes, that’s as I remembered it. Your client invited the police into her apartment.”

“She invited them to investigate a breaking and entering incident, your honor. She did not invite them to start searching for evidence to use against her in a pending murder case.”

“She invited them into her home. She waived her right to privacy. They saw what they saw.”

“They did not just see the alleged narcotics, your honor. They were not in plain sight; they were inside a stuffed doll. In order to find them, the police had to actively reach in and withdraw the evidence. In so doing, they went well beyond me scope of their invitation.”

Derek did not seem impressed. “Any response, Mr. Prosecutor?”

“Yes, your honor.” Moltke rose. “The alleged burglars caused the, er, injury to the stuffed dolls. It occurred before the police officers arrived. It was only natural for the officers, in the course of the investigation they were invited by the defendant to conduct, to try to discover what the burglars were looking for. In so doing, they discovered the incriminating evidence.”

“That’s how I see it also,” Derek said. “I rule—”

“Your honor,” Ben said. “May I rebut?”

“I think I’ve heard enough.”

“Your honor, the legal question is whether Ms. McCall had a reasonable expectation of privacy regarding the inner contents of the dolls. She clearly did, and she did nothing to waive that constitutionally protected—”

“Counsel!” Derek’s voice boomed through the courtroom. “I would have thought you’d learned in your first year of law school that when the judge says he’s ready to rule it’s time to shut up.”

“But, your honor, I haven’t—”

“Mr. Kincaid! You are not doing your client any favors.”

“I’m sorry, your honor.”

“The motion is denied. Anything else?”

Ben tried to calm himself. “Yes, your honor. A motion to suppress.”

Derek sneezed, then wiped his nose. “And what is it you want to keep out this time, counsel?”

“Testimony by prosecution witness James Abshire regarding an alleged confessional statement made by the defendant at the time of her arrest.”

“Ah, yes,” Derek said. “I’m familiar with that, also. I’ve read the magistrate’s report.”

“Your honor, this statement is grossly prejudicial and not probative in any meaningful way of any issue to be tried.” Ben noticed an odd expression on Derek’s face. “Is something wrong, your honor?”

“No, no,” he said, chuckling, “I was just trying to imagine the appeal brief in which you try to explain why the statement ‘I killed him’ is not probative in any meaningful way of any issues in this case.”

“Your honor, the evidence at trial will show that the defendant was dazed, confused, and unaware of what she was saying. There’s a strong possibility she was drugged.”

“Then you may present that evidence at trial, Mr. Kincaid, and the jury will decide whether it is trustworthy. Your problem is you don’t have enough faith in the jury.” He looked out toward the gallery. “You keep wanting to protect the jurors of this district from any evidence that goes against your client.”

Playing for the morning edition, Derek? Ben began to realize why Derek had been so liberal about allowing press coverage. “There’s a Miranda problem, your honor.”

Moltke evidently decided it was time to make some of his arguments for himself. “The defendant was properly Mirandized. She signed an acknowledgment.”

“After she made the statement in question,” Ben added.

Derek leaned back in his chair and stroked his chin. Ben took this as a sign of encouragement. At least he was going to ponder this motion before he denied it. “She was in custody at the time she made the statement, wasn’t she, Mr. Moltke?”

“Yes,” he admitted. “They had slipped the cuffs on her and finished the frisk.”

“Still, there was no actual custodial interrogation, was there?”

Moltke brightened. At least when you led this dog to water he was smart enough to drink. “No, your honor, not at all. No questions were asked.”

“You don’t need a question to start an interrogation,” Ben said, “as we all know. The Christian burial case, in this very state, proved that point.”

“As far as I can see, there was no provocation or inducement of any kind,” Derek said. “Mr. Abshire made a simple declarative statement, and your client was unwise enough to start babbling.”

“That’s what Abshire says,” Ben replied. “He’s hopelessly biased, your honor. He’s the instigator of the investigation from which this case arises. He considers the whole affair a career move. He has a personal stake in seeing that the government obtains a conviction.”

“All of which I’m sure you will draw out on cross-examination ad nauseum,” Derek said. His eyelids fluttered; he was beginning to look bored. “We’ll let the jury decide.”

“That would be fine if the jury could hear the actual conversation, your honor. But all they’ll hear is Abshire’s slanted retelling—”

“I’ve ruled, Mr. Kincaid.”

“Not very well,” Ben muttered.

Derek’s eyes flared. “What did you say?”

“I said, I can tell.” He flipped a page on his legal pad. “I move the court to permit an interlocutory appeal to the Tenth Circuit on this issue.”

“Waste of time. Denied.”

“Your honor, after this evidence is presented, the jury will be hopelessly tainted—”

“By unfavorable evidence!” Derek shouted. He half rose from his chair, leaning across the bench. “That’s the way it works, counsel. If all the evidence is against you, as it seems to be in this case, you lose. You don’t try to hide the evidence from the jury. You take your lumps and move on.”

Ben couldn’t tell if Derek was truly angry or simply playing for the indignant Republicans in the audience. “But your honor—”

“Mr. Kincaid! I’ve spoken to you in a prior context about your tendency toward whining. I expect more professional behavior from an officer of the court. Even if you do not possess the requisite maturity, for your client’s sake—and this court’s—I will expect you to feign maturity during this trial. If you do not, you may find yourself the subject of a legal competence proceeding.”

Ben braced himself and pushed ahead. “Your honor, I renew our motion for a continuance.”

Steam seemed to rise from Derek’s brow. “Denied.”

“May I know the grounds?”

“No.”

“Not even a hint? Just to make life easier for the appellate court?”

Derek drew himself up in his chair. “Mr. Kincaid, the only reason you are not currently in jail on contempt charges is that your client would be forced to obtain new counsel. While that undoubtedly would inure to her benefit, it would also delay the start of this trial, and I am determined to see that speedy justice, as dictated by the United States Constitution, is done in this case.” He raised his gavel. “I may reconsider contempt charges, however, when the trial is over. This hearing is adjourned.”

With the bang of the gavel, the reporters leaped to their feet. Flashbulbs flared and a thousand voices filled the courtroom. Ben heard only one. As he passed the defendant’s table Alexander Moltke smiled a sickening smile and said in a singsong voice, “You should have taken the deee-al.”

Ben wondered if he was right.