The Color of Law

THIRTEEN

Carlos Hernandez, Bobby’s favorite waiter at the Downtown Club, got busted on the Fourth of July. He went to a party in East Dallas, figuring on firing off a few fireworks. It’s illegal to even possess fireworks in the City of Dallas, but since Carlos was also in possession of cocaine and marijuana, he wasn’t thinking about the city’s fireworks ordinance-or much else, for that matter-as he stood drunk and stoned out of his mind in the middle of Grand Avenue blowing off bottle rockets at passing vehicles. When a Dallas police cruiser happened by, Carlos put a bottle rocket right in the cop’s lap. Carlos was busted for possessing two dozen bottle rockets, five strands of firecrackers, fifty Roman candles, ten grams of cocaine, and two Baggies of weed. Due to his prior experience in the federal system, he was turned over to the Feds. They charged him with possession with intent to distribute-the dope, not the fireworks. With his five priors, Carlos was looking at ten to life in a federal prison.

Which is what brought Bobby downtown four days later. Carlos’s mother had hired him to represent her son for the total sum of $500, $100 down and $100 a month until paid in full. Bobby parked six blocks down from the federal building to avoid a parking fee and to smoke another cigarette. By the time he arrived at the U.S. Attorney’s office on the third floor, he reeked of sweat and cigarette smoke. After stating his name and purpose to the receptionist, Bobby took a seat in the waiting room. He had come to negotiate a plea bargain with the Assistant U.S. Attorney handling Carlos’s prosecution. He tried not to look surprised when Ray Burns walked through the door.

“Bobby!” A big smile from Burns, as if he were happier to see Bobby Herrin this morning than any other person on the planet. “Good to see you, man.”

“Ray.”

Ray sniffed the air, then gave Bobby a funny look.

“You run over a skunk?”

“You’re the AUSA on Carlos’s case?”

“Yeah. Some coincidence, huh?” A slap on his newest best friend’s shoulder. “Come on back, Bobby, let’s talk about your main man Carlos.”

Ray’s genial disposition got Bobby’s mind to churning. It occurred to him that it was a pretty goddamn big coincidence that Ray Burns was the Assistant U.S. Attorney on this case, too. He followed Ray down a corridor and into his office. It was standard government issue, but compared to Bobby’s office, it was lavish: a leather chair, a wood desk, two guest chairs, and Sheetrock walls thick enough so you didn’t hear Jin-Jin cussing Joo-Chan for messing up a batch of Korean donuts. On the walls were Ray’s diplomas, licenses, and photos of important politicians. Ray gestured Bobby to a chair, then he sat behind his desk, leaned back, and said, “What would you think about two years for Carlos?”

“ Two years? You’re reducing the charge to simple possession? No intent to distribute?”

A shrug between friends. “Sure, why not?”

“Why?”

The two lawyers stared at each other across the wide wood desk; a thin smile crossed Ray’s face. And Bobby knew his instincts were on the mark.

“What do you want, Ray?”

No pretense now. “I want the bitch’s guilty plea. You get Shawanda to plead to second-degree murder, we’ll agree to forty years.”

“ Forty years? She’ll be eligible for Medicare by the time she gets out.”

“Thirty. And that’s as low as we’re going.”

Bobby studied Ray Burns. “Why the change of heart, Ray? You were gung-ho for the death penalty.”

“I still am-a death sentence would round out my resume nicely. But we’re political appointees, at least the U.S. Attorney is, and he doesn’t want to spend the rest of his career in this hellhole, a hundred and ten in the goddamn shade. He’s thinking maybe California. This case might be his ticket west.”

Bobby Herrin was not a lawyer whose clients were beneficiaries of political power. So it took a moment for the motive behind Ray’s generosity to dawn on him.

“You know about Clark’s past?” he said.

“Yep.”

“And Senator McCall wants to keep it quiet?”

“Yep again.”

“So he calls up the United States Attorney General and asks for a small favor. And the Attorney General calls up the U.S. Attorney in Dallas and asks for a small favor. Which the U.S. Attorney will grant, for a small favor in return. And, just like that, a person’s life is suddenly changed.”

Ray smiled and turned his palms up.

“What, you complaining? Two of your clients are getting good deals because of McCall’s power.”

“Ten years, Ray. Ten years for Shawanda, or you can tell the good senator to forget the White House and your boss to forget California. And I want Carlos’s charges dismissed.”

Ray grinned. He was such an asshole that he actually liked the game, two lawyers negotiating over other people’s lives. Liking the game is an annoying character trait in a lawyer; liking the power is a dangerous one.

“Twenty, and that’s a great deal, Bobby, and you know it. But if she rejects this deal, I won’t back off the death penalty, understand? And if that information about Clark becomes public, the offer is withdrawn. So get the bitch to agree, fast.”

Bobby stood and walked to the door, but he turned back.

“Ray, one more thing: if you call my client a bitch again, I swear to God I’m gonna punch you in your fucking mouth.”

Scott, I need an answer for McCall. Soon.

“You called, Scott?”

Karen Douglas was standing in front of his desk.

“What? Oh, yeah, sit down, Karen.”

Scott pushed Dan’s voice out of his mind. Karen sat in one of the chairs on the other side of his desk and tucked her legs under so as not to reveal any thigh. She was twenty-six, pretty enough to be noticed on the street, and the youngest of the four associates working under Scott. She had graduated first in her class at Rice with a degree in literature and first in her law class at Texas. Book smart, but she was having a difficult time adjusting to the practice of law. As a supervising partner, Scott felt a responsibility to teach his new associates the necessary practice skills they weren’t taught in law school. If Dan Ford hadn’t taught Scott those same practice skills, he wouldn’t be the lawyer he was today.

“Karen, I know you’ve been with us only a few months, but it seems like you’re having some problems. Am I right?”

She nodded and Scott worried she might cry.

“Okay, let’s see if I can get you back on track. First thing, your billable hours. You haven’t met your monthly quota once. Karen, my associates exceed their quotas.”

“But, Scott, two hundred hours a month? Ten billable hours a day? That’s impossible, if I’m honest.”

“Karen, this is a law firm, not a seminary.”

He smiled; she didn’t.

“Look, here’s how billable hours work. First, you always round up. Twenty minutes becomes half an hour, forty minutes becomes an hour, an hour and a half becomes two. Second, every phone call you make and every letter you read is a minimum quarter-hour. You read ten letters, a quarter hour each, that’s two and a half billable hours. Heck, I usually bill four or five hours just reading my mail each morning. And travel-didn’t you fly to San Francisco with Sid last month?”

She nodded.

“Did you bill your flight time?”

“Two hours. I worked on another matter.”

“How long was the flight?”

“Four hours.”

“Then you should bill eight, four hours to the client you’re flying to San Francisco for, and another four to the client whose work you’re doing during the flight. See? That’s six hours you didn’t bill last month. If every lawyer here dropped six hours each month, Karen, that’s twelve hundred hours that wouldn’t get billed. That’s three hundred grand we wouldn’t collect. Each month. Twelve months, that’s three-point-six million. See how it adds up? See why every hour counts? Billable hours are a law firm’s inventory, Karen, so when you don’t bill your quota, it’s like you’re working at McDonald’s and giving away hamburgers.”

Karen was looking at Scott like a freshman coed watching her first porn flick at a frat party.

“Scott, you’re telling me to pad my hours. Isn’t that cheating?”

“Every place except a law firm.”

Bobby entered the Ford Stevens lobby and was waved through by the smiling receptionist. Each time he walked into the Ford Stevens offices, he smelled something in the air. Like a funeral home, a downtown law office has its own unique smell; but instead of formaldehyde, this place smelled of money.

Bobby walked down the carpeted corridor to Scotty’s corner office. Scotty was sitting behind his desk and addressing a young woman. He noticed Bobby and waved him in.

Bobby stepped into the office. The young woman stood and when she turned to face Bobby, he was struck by her appearance: she was very attractive and from her sharp suit, a lawyer.

“Bobby, this is Karen Douglas. Karen, Bobby Herrin.”

Her eyes widened. “You’re working the Shawanda Jones case with Scott. That must be very exciting. When I was in school, I always thought I’d work in the public defender’s office.”

“But we pay better,” Scotty said. He pointed at the sofa. “Sit, Bobby, I’ll be right with you.” He picked up a thick document and turned back to Karen. “Now, Karen, you’re clear on billable hours?”

Karen sighed heavily and nodded. “I guess so.”

“Okay, the other thing I wanted to talk to you about is your memo. I’ve read it and it’s great. You researched the law perfectly, you applied the facts, you did everything exactly right…except-”

“Except what, Scott?”

“Except you didn’t answer my question.”

“But you asked whether Dibrell could sue that little town over its denial of his rezoning request. The answer is no.”

Scotty was shaking his head. “Karen, I didn’t ask you whether Dibrell could sue the town, I asked you how Dibrell could sue. We’re going to sue; we’ve already decided that. It’s part of our strategy to get the town to give us the rezoning we want. And believe me, after their lawyer tells them how much the litigation will cost in fees and expenses even if they win, the town will crater. What I wanted from you is a legal position we can take to justify our lawsuit. You answered whether. I asked how.”

Karen’s face expressed that dismay unique to a new lawyer learning the ways of lawyers.

“I…I didn’t understand, Scott. I’ll try again.”

“Good girl.”

Karen departed and Scotty said, “Nice body, but she’ll never make it as a lawyer. What’s up?”

Ten minutes later, they were driving to the federal building.

“Scotty,” Bobby said, “twenty years is a good deal. I’ve had two-bit dealers go down for life.”

But Scott wasn’t thinking about what was good for his client; he was thinking about what was good for himself. Which was Shawanda’s pleading out, for twenty or thirty or forty years, he didn’t give a damn. Because if she pleaded out, he wouldn’t have to make a big decision. Scott, I need an answer for McCall. Soon.

“ Twenty years? Mr. Fenney, Pajamae, she be twenty-nine by then, I won’t even know her. She all I got.”

Shawanda was pacing the small room, around and around, circling Scott and Bobby in their chairs.

“I understand, Shawanda, but if you’re convicted of first-degree murder, you might get the death penalty.”

“Twenty years in prison, I die anyway. Mr. Fenney, why don’t you believe me? I didn’t do it! I didn’t kill nobody!”

In civil litigation, judges routinely order the parties to mediate their disputes before going to trial. Mediation allows the lawyers to hammer their clients into settlements they don’t like, force them to pay amounts they don’t want to pay, and make them end lawsuits they don’t want to end. But there is no court-ordered mediation in criminal cases. So all Scott could do to try to convince his client to take the plea deal was stand and shout: “Shawanda, please think about this!”

She stopped short.

“I don’t gotta think no more about it, Mr. Fenney. I told you before, I ain’t coppin’ no plea!”

Ray Burns was not happy when Scott and Bobby informed him of their client’s decision to reject the plea offer.

“That bi-” Ray’s eyes met Bobby’s. “That woman is making a big mistake. And her lawyers are making an even bigger mistake if they go public with Clark’s past.”

“What about ten years?” Scott asked.

“No way. We don’t give ten-year deals to people who stick a gun to a guy’s head and blow his fucking brains out!”

Scott was back in his office, sitting behind his desk, his elbows on the top, his head in his hands, his eyes closed, and his mind a jumble of thoughts and images: Scotty Fenney, number 22, racing down the field, scoring the winning touchdown, the campus hero…two little girls, one white, one black, sleeping side by side in the big bed, their faces smooth, their hair in cornrows…Rebecca, beautiful and naked and angry…Shawanda, alone in her cell, crying for her daughter and heroin…and Dan Ford, who had replaced the father who had died when Scott was just a boy. What son wouldn’t do what his father asked? Scott, I need an answer for McCall. Soon. But the boy had a mother, too, and just as the image of a mother reading to her son flashed across his mind’s eye, Scott opened his eyes to find Dan Ford standing over him. And he knew what his senior partner had come for.

“She turned down the deal?”

Scott leaned back in his chair. “Word travels fast.”

“The U.S. Attorney called Mack, Mack called me.”

“And now you’re calling on me? What’s that saying, shit rolls downhill?”

“Something like that.”

Dan strolled around the office and stopped at the huge framed photograph of Scott Fenney, number 22 for the SMU Mustangs, running the ball against Texas. “One hundred ninety-three yards…unbelievable,” he said. After a moment, he broke away and sat on the sofa. Finally, he turned to Scott.

“Scott, I need an answer for McCall. Now.”

“I don’t know, Dan.”

“What’s there to know? We know what Mack wants.”

“And I know what my client wants.”

Dan chuckled. “Your client? Clients pay us fees, Scott. Ms. Jones isn’t paying us anything. She’s costing us. She’s an expense to this firm. And she’s expendable.”

“Dan, I’m her lawyer!”

Dan stood. “Scott, do you really believe she’s innocent? Do you really believe she didn’t kill Clark?”

Scott shook his head. “No.”

“Then what’s the problem?”

“The problem is, Dan, if I don’t introduce that evidence about Clark’s past, she’s gonna die!”

A look of absolute puzzlement came over Dan’s face. He said, “And how does that affect your life?”

And that had been the guiding principle of A. Scott Fenney’s professional life since the day he joined Ford Stevens: How would it affect his life? Or, more to the point, his income. Any event-a lawyer fired, a client dumped, a case won or lost, a law enacted or repealed, a natural disaster, a stock market crash, a war, a presidential election-that affected his life and income was, by definition, important. Any event that did not affect his life or income was unimportant, irrelevant, as inconsequential to him as another gang murder in South Dallas. Now, driving home to his $3.5 million mansion in a $200,000 automobile, Scott found himself wondering: How would Shawanda Jones being sentenced to death affect his life and income?

The answer was obvious: not at all. The day after her conviction, he would be back at his desk, working to make rich clients richer and bringing home $750,000 a year. As he would the day after her execution. She would quickly become part of his past. A year from now he wouldn’t even remember her name.

Scott had always followed Dan Ford’s advice, and he knew he should follow Dan’s advice now. He should chalk up Shawanda’s pathetic heroin-addicted life as unimportant and irrelevant and inconsequential to his life. He should lose her case and move on, as he had with other clients whose cases he had lost. Even Scott Fenney couldn’t win every case. Those few times he had lost, he had moped around, cursing the judge and jury for a few days, but once the client paid his final bill and the check cleared, he had gotten over it and moved on.

But there was a difference.

Scott Fenney had never thrown a case. Or a contest. Or a game. He had always played to win. Every game he had ever played-football, golf, lawyering-had been a test of his manhood, so he had played every game to win. All-out, no-holds-barred, win at all costs-that’s what made him a winner. Every cell in his body was infused with the desire to win, a desire that had taken him from being the poor kid on the block to owning a mansion on Beverly Drive in the heart of Highland Park. But Dan Ford was now telling him to play to lose. Could Scott Fenney play to lose and still be a winner?

That thought bothered him all the way home. But as he pulled into the motor court behind his mansion, a new more bothersome thought had invaded his mind: How would Shawanda’s death affect Pajamae’s life?

Scott had said bedtime prayers with the girls, tucked them in snugly, and was standing to leave, but he needed to ask Pajamae a question.

“Pajamae, do you think your mother could hurt anyone?”

“No, sir, Mr. Fenney. Mama, she’s got a good heart. She cares about people. Her problem is, she doesn’t care enough about herself. She’s always telling me to love myself, but she doesn’t love herself. My daddy made her like that, hitting her, making her sick. So don’t blame her, Mr. Fenney, it’s not her fault.”

Then she turned her big brown eyes up at Scott and asked him a question.

“Mr. Fenney, are the po-lice gonna kill my mama, too?”