Dog Tags

CHAPTER 28

IF WE EVER LOSE OUR DEMOCRATIC, PERSONAL FREEDOMS, DISCOVERY WILL BE AMONG THE FIRST THINGS TO GO. For someone accused of a crime, I consider it among the most important rights. To tell you the truth, it makes Miranda look like an aging flamenco dancer.

Discovery is the process by which the prosecutor is forced to share the evidence he has, and that he will rely upon at trial, with the defense. It takes away the element of surprise and allows often underfunded defense attorneys to properly prepare their cases.

The discovery documents Eli sends us in the Zimmerman case are limited in scope. That’s not to say they’re not substantial, because they are. They include all the direct evidence against Billy, including very damaging forensics and eyewitness accounts. It is no wonder that Eli has no desire to offer a deal; he must correctly assume that his case is overwhelming.

But what the documents don’t include is background information on Erskine, or any information about the envelope or its possible contents. That is for the defense to probe; the prosecution does not need to dig out those facts to prove its case.

While there is no necessity for the prosecution to prove motive, I’m sure Eli will tell the jury that Billy was seeking revenge against Erskine, blaming him for his devastating injury. Eli will not go near any possibility that Erskine was corrupt, or that other people might have had reason to kill him. That is our job.

I ask Hike to prepare a request for information related to the bombing in Iraq. We could present it to the Defense Department, which would likely take forever to give it to us. Rather than go that route, I’ll ask the court to issue an order that it be provided.

I call Eli and ask that he stipulate no objection to our getting the information. He agrees to do so, not because he wants to be helpful, but because he knows we’ll eventually get it anyway. This way he avoids the possibility that it could lead to a delay in the court proceedings. Except for acquittals and hung juries, delays are the things prosecutors hate most in the world.

Hike and I spend three hours going over the discovery material, exchanging documents after we’ve read them so that we’ll each be sure to see all of it. This is just the beginning; we’ll be reviewing these same documents many times, in addition to others that are sure to follow. There is absolutely no excuse for a lawyer not to be totally knowledgeable about every aspect of the case. If there were I would have found it long ago.

Spending three hours with Hike reminds me of a scene from Take the Money and Run, one of Woody Allen’s earliest and funniest movies. Woody plays Virgil Tibbs, a small-time criminal who unsuccessfully attempts to escape from prison. As punishment, he is locked in a small, underground room with an insurance salesman, who shakes his hand and starts trying to sell him various policies before they are even locked away.

Hike has no interest in selling me insurance, but he has the unerring ability to focus on all that is wrong with the world, combining it with the certain knowledge that nothing can be done to fix it.

“This is not good,” Hike says when we are about to wrap it up for the night.

I nod. “Not so far.”

“You going to recommend he plead it out?”

“Eli already turned me down when I brought it up. I don’t think our client would go for it anyway.”

Hike frowns. “He’s an ex-cop; he must know what he’s up against.”

“He does.”

“You think he did it?”

“No. If he hated Erskine enough to kill him, he wouldn’t have done it this way.”

“Why not?” Hike asks.

“Because it put Milo in danger, and there would have been no reason to. He could have left Milo home, followed Erskine to the club, or anywhere else, and shot him. And if he wanted the envelope, he could have just taken it.”

“No jury is going to buy the he-wouldn’t-put-his-dog-in-danger argument. Unless you get twelve dog nuts like you.”

I nod. “The good news is, there are a lot of dog nuts out there.”

He smiles. “I’ll research if we can challenge a juror for cause based on the fact that he’s sane as it relates to dogs.”

“We’ll break new ground.” I’m stunned to realize that for the first time, I’m enjoying my conversation with Hike. He’s being pessimistic about our chances at trial, but that’s okay, because it’s logical. With what we know right now, we have very little chance.

“You ever have a murder one case?” I ask. “As lead counsel?”

He nods. “Once. I lost. It was the worst experience of my life.”

“Because you lost?”

“No. Because I don’t think he did it. The prosecution had a strong case, but I don’t think he did it. I still work the case; I don’t think a week goes by that I don’t look through the file.”

“And your client… he’s in prison now?”

Hike shakes his head slowly. “He was… for four years. Then he hung himself in his cell.”

“I’m sorry,” I say, because I am. There is no worse feeling imaginable to me than losing a murder case that could have been won.

He nods. “Thanks. Me too. I wouldn’t trade places with you on this case for anything.”

“Why?”

“I believe my client was innocent, and he depended on me to prove it, and now he’s dead. And you could be headed toward a similar result.”

I nod.

“I’ll help you however I can,” he says. “You just tell me what to do, and it’s done.”