Naked Justice

Chapter 21

THE PRELIMINARY HEARING TOOK less than a day, and probably wouldn’t have lasted that long if the press hadn’t been there in force. Ben had known all along there was no question about whether Barrett would be bound over for trial; there was more than enough evidence to take him to trial, and even if there hadn’t been, a judge would have had to be suicidal to set him free in the midst of the constant barrage of media attention and scrutiny, almost all of which had at least implicitly assumed Barrett was guilty. Judge Hawkins bound Barrett over for trial and set a court date barely three weeks away.

“So this is it,” Barrett murmured to Ben under his breath. “Now it really begins.”

Ben nodded somberly. Barrett had not seemed his usual self today. Even when the TV cameras began rolling, he remained reserved, even cool.

Ben wondered what had happened. Was the inherent stress of being charged with murder getting to him? Had he moved beyond the denial stage and realized that his life was actually in danger? Or was there something more?

“What now?” Barrett asked.

“Now we get ready for trial. No holds barred.”

“The judge thinks I did it.”

“No, the judge simply ruled that there was sufficient evidence to make you stand trial. And frankly, there is. Don’t let that worry you. The standard for conviction is much higher. You can’t be convicted unless the jury finds you guilty beyond a reasonable doubt.”

“I can’t believe all these people think I could do such a horrible thing.” His eyes seemed tired, almost beaten. “That I could hold my own precious little girls’ lives in my hands and take them away. It’s just… inconceivable.”

Ben wished there was some way he could alleviate Barrett’s distress, but he knew there was none. He’d seen this before. Being a criminal defendant was like going through the stages of grieving. First there was denial, which Ben had seen plainly enough when he’d visited Barrett in his cell. But he was past that now; Barrett was beginning to realize that he was actually going to be on trial—for his life. He was coming to grips with the fact that his entire family was gone, and that most people thought he was to blame. If they didn’t correct that misapprehension, Barrett would end up sentenced to death.

“Is there anything else the court should take up before we adjourn?” Judge Hawkins asked.

“Your honor.” Bullock rose to his feet. “The state would move that the parties be permitted to submit juror questionnaires prior to voir dire to obtain more detailed information about the prospective veniremen.”

“I oppose that motion,” Ben said.

Hawkins turned his way. “Why?”

“That’s my question,” Ben answered. “Why? What does a questionnaire get us that voir dire can’t? I don’t think we have to blindly adopt every new judicial flavor of the month. Just because questionnaires are all the rage in California is no reason for us to follow suit.”

“I think there is a reason,” Bullock interjected. “Time. I don’t want to waste it. Time-wasting may be part of the defense strategy, but it’s not mine.”

“This won’t save time,” Ben argued. “It just adds one more very long step to the selection process.”

“It will save time,” Bullock insisted. “If we cover a lot of questions in advance on paper, we won’t have to waste time on voir dire covering the same territory.”

“It hasn’t saved time in California,” Ben said. “To the contrary, trials in California run twelve times as long as they do in Oklahoma.”

“Your honor.” Bullock stepped closer to the bench and used his quieter, lower “sincere” voice. “We all know perfectly well how hotly contested jury selection will be in this case. We know that neither party will leave any stone unturned”—he glanced over at Ben—“especially the defense. Given that we’re going to cover a huge amount of material, why not get through some of it in advance on paper?”

“I’m inclined to agree,” Judge Hawkins said. “I think it will save time and eliminate repetition, especially in a case of this nature. Of course, the final decision will be up to the trial judge, but I see no reason why you can’t begin drafting your questionnaires.” He peered down through his glasses. “I might also remind all the attorneys in the room that this is not California, and it would be best not to forget it. None of the judges in this district have forgotten why trials have judges. We will take control of the courtroom. If you think we’re going to protract this trial with an endless parade of witnesses or interminable examinations, guess again. It won’t be permitted.” He pushed back his glasses and looked toward Bullock. “That being said, your motion is granted.”

“Thank you, your honor,” Bullock said, bowing his head slightly. He turned to the cameras in the gallery and smiled, doing his best to provide a lovely Kodak moment.

“All right, then,” Hawkins said, rapping his papers on the bench. “Anything else?”

“Yes, your honor.” Ben stepped forward. “The defense has two motions in limine pending.”

“Those are motions to suppress,” Bullock said, making sure the press understood what Ben was doing without having to translate the Latin. “More evidence that proves Mr. Kincaid’s client is guilty. So of course he doesn’t want the jury to see it.”

“Objection,” Ben said.

The judge nodded. “Sustained. Mr. Kincaid, why don’t you take your motion up with the trial court judge?”

“A provisional ruling would be very helpful, your honor. We only have three weeks. I’d like to know what we’re going to be up against.”

Hawkins sighed. Ben knew he hated to make any ruling that was remotely difficult or controversial, but it seemed there was no escaping it. “Very well, counsel. Proceed.”

“Thank you, your honor. My first motion concerns some blood traces taken at the scene of the crime that I would like kept out of the trial.”

“Wouldn’t he, though?” Bullock said softly, but not so softly that everyone in the courtroom couldn’t hear it.

“The blood traces in question were found inside Mr. Barrett’s home, near the front door. According to the prosecution’s exhibit list—and I phrase it this way because I still have not been permitted to examine the evidence myself—the blood traces outlined a footprint—shoe print, actually—pointing toward the door. The print corresponds roughly to the size of Mr. Barrett’s foot.”

“Meaning?” Judge Barrett asked.

“Meaning the man killed his family, tracked the blood on the floor, and fled,” Bullock said.

“Let me thank the prosecutor for demonstrating the great prejudice which this misleading bit of evidence could create if it were admitted into evidence,” Ben said, not missing a beat. “In fact, the print proves nothing of the sort, but if the court allows it into evidence, Mr. Bullock will undoubtedly twist and contort reality to reach some such unwarranted conclusion.”

Judge Hawkins frowned. “And can you please explain to me why this print doesn’t tell us exactly what it appears to tell us?”

“Certainly, your honor.” Ben opened the folder that contained the product of several days of Loving’s hard work, tracking people down and getting their words on paper. “I’ve filed a number of motions pertaining to the manner in which the crime scene was preserved, or rather, wasn’t preserved. I’ve submitted nine different affadavits”—he pulled them out and passed them to the bailiff—“which are certified and on file. These are from neighbors, journalists, and even members of the police force. What becomes immediately apparent is that the crime scene was contaminated and not preserved because the police believed—wrongfully—that they had already apprehended the culprit.”

Hawkins began drumming his fingers. “Get to the point, counsel.”

“Your honor, I have identified over twenty-five people who were permitted entry to the crime scene before it was sealed.”

Hawkins snatched the list from the bailiff. “Twenty-five?”

“That’s right, twenty-five. They are identified by name. Your honor, the crime scene was irremediably tainted. This fact demands the expulsion of all blood samples found on the premises, if not all evidence from the crime scene.”

Judge Hawkins said nothing but his conservative brow was decidedly furrowed.

“With so many people tromping through the house,” Ben continued, “we have no way of knowing who left that bloody footprint behind.”

“Well …”

“No one could have gained entrance to the home without walking through that entryway. It could have been anyone. Since the evidence is not probative, and since the flaws in its reliability were created by the state’s own incompetence, I move that the evidence be excluded.”

“Your honor, may I be heard?” Bullock scurried toward the bench. “If the evidence is subject to multiple interpretations, counsel may explore that on cross-examination.”

“If the evidence is more prejudicial than probative, it should be excluded,” Ben rejoined. “That’s what the evidence code says. I’m only asking that the court apply the law of the state.”

Bullock ignored him and spoke directly to the judge. “There may have been people in the home that morning. Frankly, your honor, I don’t know. That is startling new information—which, I might add, Mr. Kincaid did not bother to share with me in advance. I can assure you I will fully investigate these charges before trial. But the blood must have come from Barrett.”

“He’s assuming Barrett was guilty,” Ben said. “That’s a false assumption.”

“Wrong,” Bullock said. “Blood remains viscous enough to be smeared or tracked or dripped for only an hour, maybe two. After that, it coagulates and dries. It had to be Barrett.”

“You’re still assuming his guilt.”

“I’m pointing out that the blood traces were left before your purported swarm of people descended. Given that we know Barrett was at the crime scene at the time of the murders, I think it’s a probative indicator of guilt.”

The judge nodded. “I tend to agree, Mr. Prosecutor. The motion will be overruled. Counsel is of course free to use cross-examination to try to impeach the evidence as best he can.” He turned to Ben. “Was there something else?”

“Yes.” Ben returned to the podium for his other folder. “I also have objections to the use of purported DNA evidence by the prosecution.”

Hawkins rubbed his hands against his face. “Great. Here we go.”

“Your honor, as you know, there is still some question whether the Supreme Court of this state has found that DNA fingerprinting meets the Frey standard of reliability sufficient to allow it to be used in our courts.”

“This is a nonexistent issue,” Bullock insisted. “Everyone uses DNA nowadays. The only reason we haven’t used it here more often is that we didn’t have the proper laboratory facilities.”

“They still don’t,” Ben said. “They’ve hired it out to a third party.”

Bullock shifted uncomfortably. “It’s a reliable firm, your honor. Cellmark Laboratories. They’re experts in the field. They’re preparing our exhibits.”

“For a fee,” Ben interjected.

“The use of paid experts is hardly a novel development,” Bullock said. “Defense lawyers do it all the time.”

“Paid experts, yes,” Ben said. “Paid evidence, no. This is entirely different. This is a firm that basically goes around to prosecutors saying, ‘Pay us money and we’ll create some pseudoscientific evidence no one else understands and get you a conviction.’ ”

“Balderdash,” Bullock grunted. “Much ado about nothing. So long as the evidence is probative, who cares where it comes from?”

“I do.” Ben leaned closer to the bench. “Your honor, the U.S. Court of Appeals was disturbed when the Von Bulow family in effect hired a private homicide investigator. It suggests that someone is being prosecuted only because his enemies are wealthy.”

“So?” Bullock said. “We’re not asking anyone to foot the DNA bill. This is entirely different.”

“This is exactly the same. Only the motivation is different. Here, extra money is being spent and extraordinary efforts are being made because the eyes of the world are upon us. The law should be the same for everyone. It shouldn’t get worse because you’re rich and famous and the prosecutor is afraid of screwing up on national television.”

“Your honor, this is offensive in the extreme.” Bullock was wearing what Ben recognized as his disgusted-with-opposing-counsel expression. “Mr. Kincaid is clearly desperate to find some footing in a case where the evidence is overwhelmingly against him. But to resort to this slanderous hyperbole is truly outrageous. I will not hear anyone casting aspersions on my department. We work solely in the interests of the community.”

“I know,” Ben said. “You just work a lot harder when the minicams are running.”

Hawkins sat up straight. “I find this philosophical debate very stimulating, but we’re getting rather far afield from Mr. Kincaid’s motion. Grounds for keeping the DNA evidence out of the trial would only arise if the evidence was unreliable or did not conform to current scientific standards of trustworthiness. Neither can be proven until the evidence has actually been produced.”

He pointed his gavel at Bullock. “You will make the evidence available to opposing counsel as soon as possible, understand? No foot-dragging, no messing around.”

“Yes, sir.”

The gavel shifted to Ben. “After you’ve reviewed the evidence, we’ll hear your motion. I’ll set a hearing the day before trial, to be heard by the trial judge.”

Ben tried to protest. “But that won’t leave me any time—”

With a firm look, Hawkins dared Ben to say another word. “I’ve ruled.” He banged his gavel and rose to his feet. “Court is in recess.”

The reporters filed out of the courtroom and made their way to the outer hallway where they would receive Bullock’s usual press conference and Ben’s usual “no comment.” Before he left the room, however, Bullock stopped by Ben’s table.

“I’d like copies of those purported affadavits you were waving around.”

“I put your copies in the mail,” Ben said.

“I’d like them now.”

“Fine. I’ll trade you copies of the affadavits for all the evidence on your list that you haven’t shown me yet.”

“Well… I’m not prepared to hold an evidentiary summit.”

Ben slapped his briefcase closed. “And I forgot to make extra copies of the affadavits. Darn.” He tried to make his way past to his client, but Bullock blocked his way.

“Thought you were going to pull a fast one, didn’t you, Kincaid? Thought you were going to pull the rabbit out of your hat again. Well, the judge didn’t buy it.”

“Not yet, anyway,” Ben said. “The trial judge may feel differently.”

“Don’t count on it. She may find you cute when you’re defending teen prostitutes and petty thieves, but she’ll feel differently when it’s murder and the whole wide world is watching.”

So Bullock thought Judge Hart was going to get the case also. Guess that made it official.

“I can’t believe you would try to sweep away the evidence by pretrial ruling,” Bullock added. “Even as far as you’ve fallen, you’ve never tried anything that low before.”

Ben pushed away. “Jack, this is different.”

“Yes, you always wanted to make exceptions. Put a bleeding heart before a sick society. Won’t you ever learn?”

Ben would have liked to imagine he didn’t know what Bullock was talking about, but of course he did. It was always the same with Bullock; like some twisted rogue elephant, he never forgot.

During the time Ben worked with Bullock at the DA’s office, their work habits had almost instantly become routine, like two old bachelors who had lived together for years. When Ben didn’t have classes, which was most of the time, they both arrived at the office before seven. Ben made the coffee; Bullock opened the mail. They reviewed the cases in progress, pending court dates, imminent deadlines. They strategized and calculated how to bring their charges and make them stick. Ben was principally responsible for any briefing or paperwork that needed to be done, while Bullock handled the courtroom end. At the end of the day, they retired to Bullock’s office, Bullock with his beer, Ben with his chocolate milk, to review the day’s work and plan for tomorrow. Neither of them was ever home before nine.

Until March. After the first of the month, Bullock informed Ben that he had a new case breaking, a major prosecution with multi-state ramifications. The DA had asked him to handle it personally, but had insisted that Bullock tell no one, not even his intern. So Ben was shut out.

Ben still had plenty to do, but he couldn’t help but wonder what Bullock was working on. He was holed up in his office almost all day with the DA and police officers and OSBI agents. They even called a grand jury. None of the interns knew why, although the word in the hallway was that something big was in the offing.

Curiosity was killing Ben. But even when he managed to get Bullock’s ear for a moment or two, he couldn’t persuade Bullock to give him the inside scoop.

It was his friend Mike Morelli who finally told him. By that time, Mike’s marriage with Ben’s sister, Julia, had already broken up. Ben rarely saw either of them; Julia had run off to Montana with an English professor and Mike was playing cops and robbers in Tulsa. Ben was quite surprised, therefore, when Mike showed up one night at his apartment.

Mike got straight to the point. “It’s your dad.”

“I don’t believe it. You must be mistaken.”

“No mistake. Some of the boys at the station have been working directly with the DA. I know these guys, and they know what they’re talking about. Your dad is the target.”

“But why?”

“I don’t know. But, Ben, how is he going to take it?”

Ben knew exactly what was troubling Mike. Throughout his life, Ben’s father had been plagued by a violent temper. It was more than personality—it was pathological, or to be more specific, neurological. Sometimes a sudden rage would overcome him to such a degree that he simply could not control himself. His whole body would tremble and shake, sometimes he would even pass out.

The deleterious effects of this rage on his health were profound. According to the specialists, these enormous bouts of anger triggered internal chain reactions releasing adrenaline and other stress-related compounds, as well as decreasing the number of immune cells and inducing abnormal electrical activity and aberrant heartbeats. Blood saturated with these damaging hormones destroyed his arterial walls, interfering with the flow of blood to his heart. He had already suffered three minor heart attacks, and was at considerable risk for a fourth.

“And you’re sure it was the DA’s office? Here?”

Mike nodded grimly. “Absolutely positive.”

Ben jumped into his Honda and drove downtown. Night had already fallen, but he knew that Bullock would still be at the office. He had to get some answers.

Ben stomped into Bullock’s office at full tilt. There were two OSBI agents there, but he didn’t let that stop him from asking what he wanted to know.

To his credit, Bullock didn’t even attempt to deny it.

“I’m sorry we had to keep you out of the loop on this one, Ben, but I’m sure you understand—”

“I do not understand!” Ben surprised himself with his anger, and his ability to express it. A month, even a week earlier, he could never have imagined himself talking to his boss—hell, his hero—in this manner. “We’re talking about my father!”

“Ben, I’m afraid we’re going to be asking the grand jury to consider some very serious charges against your father and some of his business associates. The evidence against him is overwhelming.”

“How long has this investigation been going on?”

Bullock glanced at his two companions. “Months. The OSBI contacted me in December—”

Ben found himself so enraged he could barely talk. “I can’t believe you would investigate my own father behind my back.”

“Ben, be realistic. We couldn’t tell you. The potential conflict of interest is obvious. Still, now that you know, there’s no reason why you can’t help.”

“Help? Help you prosecute my own father?”

“Well, you are a member of my staff.”

“You must be joking.”

“Ben, I don’t think you understand the gravity of the charges.”

That quieted Ben, however briefly. “What charges do you expect the grand jury to return?”

“At the very least, criminal fraud. Maybe murder.”

“Murder! There’s no way—”

“Yes, Ben, there is. Let me tell you about the case.”

“You’re going to have the grand jury indict my father for murder?”

“Well,” Bullock hedged, “we don’t know that we’ll get it.”

Ben knew better than to believe that line. He’d been around long enough to know that the grand jury room was the prosecutor’s playground. The defendant wasn’t even entitled to have a lawyer present.

And Bullock was very skillful.

“I can’t believe this,” Ben said, pressing the side of his head. “I can’t believe it.”

“Really, Ben, I didn’t expect you to react in this emotional manner. Frankly, I didn’t think you even liked him.”

“Like him or not, he’s still my father.” Something about the way Bullock had said it, though, triggered a memory in Ben’s brain. “You felt me out about my father the very first night we met.” A growing realization dawned with disturbing clarity. “You knew even then. You knew you were going after him even then!”

“Now, Ben—”

“Admit it! You’ve known all along!”

Bullock stared back at Ben, then sighed. “All right. I knew he was under investigation. Even then. Of course, I didn’t know whether charges would be brought.”

“And you never once mentioned it to me?”

“I couldn’t. It might have imperiled the investigation.”

“But I know my father. He couldn’t possibly—”

Bullock looked away. “If that’s true, then he won’t be indicted. But I can’t stop the investigation.”

“But he’s my father!” Ben turned away. He was getting too emotional; any minute now he would be crying, and that was the last thing he wanted Bullock to see. “I thought I could trust you.”

“Ben, the public trust is what matters. We have an obligation to the people we serve.”

“That doesn’t justify—”

“That justifies everything. What we’re doing is for the common good. People have been hurt. People have died.”

His words hung heavily in the air between them.

“I’m out of here,” Ben murmured. He headed for the door.

“Wait.” As always Bullock expected his one-word imperatives to be instantly obeyed. “I need a commitment from you.”

“A commitment?”

“You’re a member of my staff. I need to know where you stand. Are you with us or against us?”

“If you’re asking if I’m going to help you lock up my father, no.”

Bullock was silent for a moment. “I’m disappointed to hear that, Ben. I thought we understood each other. I thought we believed in the same things.”

“We’re talking about my father!”

“We can’t make exceptions. Once you start that, you tumble down a slippery slope that doesn’t end until the foundations of our society have been totally eroded. Either you’re the defender of the law or you’re not.” He lifted his head slightly. “I guess you’re not.”

Ben stared back at his mentor, his lips slightly parted, frozen.

Bullock turned away. “As of this moment, Kincaid, consider yourself on the other side of a Chinese wall. You are to have no contact with this case or with anyone who is working on this case.”

“But—”

“That’s all there is to say. Now if you don’t mind, we have a lot of work to do before the grand jury hearing tomorrow.”

And that was how it ended. Like a translucent soap bubble, beautiful but fragile, the Bullock-Kincaid crusade for justice disappeared. That was the last time Bullock had ever spoken a civil word to Ben. Their friendship, their partnership, was over.

But, as Ben learned the very next day, the nightmare was just beginning.