Supreme Justice

Chapter Forty-one

Great generals shone on the battlefield, Olympic athletes excelled on their playing fields, and Mary Garrett knew she had few equals in a court of law. She was smarter and better prepared than almost every lawyer she’d gone up against, and she truly believed that her work ethic and mental agility were second to none. When she strode through the doors of the Honorable Herbert Brandenburg’s court, Mary appeared to be a force of nature, but this time, unlike almost every other time she had gone into battle, she was radiating a confidence she did not feel.

Monte Pike had filed motions in limine to keep out all evidence concerning the China Sea. Two days ago, her investigator had come into her office shortly after eleven in the morning and told her that Tom Oswald and Jerry Swanson, the eyewitnesses to the events on the ship, were dead. Without Oswald and Swanson, she had little chance of defeating Pike’s motions.

Mary hadn’t told her client, but Judge Brandenburg ’s decision on Pike’s motions in limine would have a huge impact on Mary’s ability to win the case. In the motions, Pike was asking the judge for a pretrial decision limiting the evidence the defense would be allowed to introduce at trial concerning the murders on board the China Sea, the substance found in the hold, and John Finley’s connection to the ship. With that evidence, Mary could present the jurors with an alternative explanation for Finley’s murder. Without it, Sarah’s chances of an acquittal were slim.

From the outset, Mary had had grave misgivings when she had learned that Sarah’s case had been assigned to the elderly jurist. Brandenburg had a full head of snow white hair, a Roman nose, and piercing blue eyes that gave him the appearance of high intelligence, but everyone in the legal community knew that there was a dim bulb beneath the elegant hairdo. Brandenburg had a massive inferiority complex and was loath to admit his inability to understand legal issues. He frequently took the easy way out by ruling for the State in criminal cases, banking on the low reversal rates in appellate courts. He also disliked complicated trials, which Sarah’s would become if Mary was allowed to introduce evidence of clandestine government operations or drug smuggling by international drug cartels.

Monte Pike sounded almost apologetic as he outlined to Judge Brandenburg the arguments that would destroy Sarah Woodruff’s chance for an acquittal. The young DA’s logic was impeccable and left no doubt that his positions were correct. Even Mary was momentarily hypnotized by Pike.

As soon as Pike finished his opening statement, Judge Brandenburg asked Mary for her rebuttal.

“I’d prefer to put on my evidence, Your Honor. The evidence will establish a clear connection between what happened on the China Sea and the murder of Mr. Finley,” Mary said with more conviction than she really felt.

“Very well. I’ve read the memos concerning the DVD that led to the dismissal of Ms. Woodruff’s first case, and I see Judge Nesbit is in court. Let’s hear evidence relevant to Mr. Pike’s motion to keep evidence of the DVD from the jury so Judge Nesbit can go about his business,” Brandenburg said.

As soon as Nesbit took the oath, Mary asked him a series of questions that established his profession and his connection to Sa-rah’s case.

“Judge Nesbit, please tell Judge Brandenburg what happened in your office prior to court beginning on the last day of Sarah Woodruff’s trial,” Garrett said.

“I arrived at work an hour or so before court was to begin in order to read over some materials that had been submitted by the parties and found a DVD that had been left for me with a note stating that the DVD contained conclusive proof that John Finley was alive.”

Mary turned to the bailiff. “Can you give the judge defendant’s Exhibit 1, please?”

The bailiff handed a clear plastic envelope containing the note to the witness.

“Can you identify this object for the record, Judge?”

“That’s the note that accompanied the DVD.”

“Does it appear to have been typed on a computer?”

“Yes.”

“Please give the judge Exhibit 2,” Mary told the bailiff.

“Can you identify Exhibit 2?” she asked Nesbit.

“It’s the DVD I found in my office.”

“Your Honor, I’d like to play the DVD for you,” Garrett said.

“No objection,” Pike said.

Judge Brandenburg watched intently as John Finley said, “My name is John Finley, and I’m sorry for the confusion my disappearance has caused. Sarah, if you’re in the room when they play this, I can’t tell you how awful I feel about everything that’s happened to you. Unfortunately, I could not reveal the fact that I am alive and well until today. I hope this proof that I am alive will end your ordeal.”

“Was the case dismissed with prejudice as a result of this evidence that Mr. Finley had not been murdered?” Mary asked.

“Yes,” Judge Nesbit answered.

“I have no further questions of the judge,” Mary said.

“Good morning, Judge Nesbit,” Monte Pike said with a calm smile. “Is there any place on the DVD where Mr. Finley says that he works for any agency of the United States government?”

“No, he doesn’t.”

“And there’s nothing on the DVD that explains why Mr. Finley didn’t come forward sooner, is there?”

“No.”

“He could have been on vacation or doing consulting work in some faraway place where communication was difficult?”

“I have no way of answering that question,” Nesbit said.

Pike smiled at the witness. “Thank you. I have nothing further to ask of the witness,” he said.

“No further witnesses, Your Honor,” Mary said.

Pike started to speak, but Brandenburg held up his hand. “Ms. Garrett, why do you think this DVD has any bearing on this new case against your client?”

“It’s evidence that John Finley was engaged in some activity important enough to keep him from coming to the aid of an innocent woman who was facing the death penalty.”

“Yes, I can accept that, but do you have any evidence that the reason for his lack of action had anything to do with this new charge?”

With Oswald and Swanson as witnesses, Mary would have had a fighting chance to show a connection, but the fingerprint evidence was meaningless without evidence that proved that Finley had been on a ship smuggling hashish.

“I’ve attempted to gather that evidence, but the CIA and other government intelligence agencies have refused to honor our requests for information about the China Sea and Mr. Finley’s involvement with the ship.”

“I can’t do anything about that, Ms. Garrett. I have no jurisdiction over the federal government.”

“I’ve issued subpoenas to Homeland Security for information about Agent Belson and the China Sea. They’ve refused to comply. You can hold a hearing and compel them to produce this evidence.

“I’ve also requested the payroll records of Homeland Security and the CIA and the personnel records of the agencies, and they’ve asserted national security as a reason for refusing the request.”

“Your Honor, if I may,” Pike interrupted, “Assistant United States Attorney Avery Bishop is in court to address these issues.”

An African American in a severe gray business suit, carrying a black attaché case, stood up in the back of the room. He was bald and sported a thin salt-and-pepper mustache. Wire-rimmed glasses perched on a small, broad nose magnified his brown eyes.

“May I approach, Your Honor?”

“Yes, yes. Come through the bar of the court, Mr. Bishop.”

“Thank you, Your Honor.” Bishop handed a thick stack of papers to the clerk and an identical stack to Mary Garrett. “I’ve just handed the clerk and Ms. Garrett a motion to quash the subpoenas Ms. Garrett prepared, along with a memorandum of law. The United States government is asserting the state-secrets privilege as a bar to any inquiries Ms. Garrett might make on behalf of her client concerning a ship allegedly named the China Sea, Mr. John Finley, Mr. Arn Belson, and any persons or objects allegedly connected to this ship in any way. Supporting our motion is a declaration from the director of National Intelligence.”

“We don’t deal with many state secrets in the Multnomah County Circuit Court,” Judge Brandenburg said with a chuckle. “I’m afraid I’m not familiar with that privilege.”

Bishop smiled back. “Not to worry, Your Honor. I’m here to enlighten you. The state-secrets privilege is a common-law evidentiary privilege that permits the government to bar the disclosure of information if there is a reasonable danger that disclosure will expose matters which, in the interests of national security, should not be exposed. I’m here to make a formal claim of privilege on behalf of Homeland Security, the National Security Agency, the Defense Intelligence Agency, and the Central Intelligence Agency-the organizations on which Ms. Garrett served subpoenas.”

Mary Garrett stood. “Your Honor, it appears that Mr. Bishop is conceding the existence of an intelligence operation involving hashish and the China Sea.”

“If I may?” Bishop asked the judge.

“Go ahead, Mr. Bishop.”

“The privilege was first asserted in 1953 in United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that crashed in 1948 sought accident reports on the crash but were told that the release of these details would threaten national security by revealing the bomber’s top-secret mission. The United States Supreme Court held that the executive branch could bar evidence from the court if it deemed that its release would impair national security.”

“If I recall correctly, Your Honor,” Mary said, “in 1996, the accident reports were declassified and released and were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft that would have compromised the Air Force’s case. It seems to me that the privilege is being invoked here to cover up the involvement of the United States government in drug smuggling, and that is not a legitimate use of the privilege.”

“Your Honor,” Pike said, “the defendant has not established that any drugs were on the ship.”

“We would be able to prove that there was hashish on board if I were able to subpoena the records concerning this matter,” Mary said.

“Your Honor,” Bishop answered, “the assertion of the privilege bars any discussion of this matter in this court. It is privileged and simply may not be discussed.”

“And rightly so,” Judge Brandenburg said as he skimmed the memo. “You can’t let foreign powers and terrorists get the records you seek, Ms. Garrett. I’m not letting you go on a fishing expedition when it might compromise national security.”

“Judge Brandenburg,” Mary said, “I don’t believe that the state-secrets privilege applies to criminal cases. It’s a rule of civil procedure.”

“The type of case makes no difference, Your Honor,” Bishop argued. “The purpose of the rule is to keep our nation’s enemies from learning secrets that could undermine the security of the United States of America.”

“This is a death-penalty case, Your Honor,” Mary said. “My client may die without the evidence we seek.”

“Death-penalty cases are governed by the same rules of evidence that are used in shoplifting cases, Ms. Garrett. Mr. Pike’s motions will be allowed, and I will not permit you to introduce any evidence or testimony about the China Sea.”