The Color of Law

SEVEN

Bobby Herrin felt like a lawyer in an out-of-town courtroom.

He was standing in the lobby of the Downtown Club, located on the top floor of Dibrell Tower and hands-down the swankiest eating place in downtown, and watching the richest men in Dallas arrive for lunch, trailed by their lawyers like a rapper’s entourage. These were lawyers who owned the biggest law firms in town, who billed three, four, maybe five hundred dollars an hour-Bobby made $500 on a good week — and who wore wool suits, starched shirts, silk ties, and shoes shined by the black shoe guy downstairs. Everything Bobby was wearing had been purchased years ago off the sale racks and was made of polyester, except his shoes, which hadn’t been shined in months. He rubbed his right shoe against the back of his left trouser leg and repeated the attempt to bring something resembling a shine with the other shoe.

“Bobby!”

He turned and was greeted by the brightest smile on the most handsome face imaginable, the face of the friend he had once cheered and admired and envied and followed like a rock star’s groupie-and loved like a brother. Scotty Fenney. Bobby hadn’t seen Scotty in eleven years, and now he had to resist the urge to embrace his former best friend. They shook hands.

“Glad you could make it,” Scotty said. “You haven’t been waiting long, have you, buddy?”

Bobby shook his head. But, in fact, he had. He’d arrived fifteen minutes ago, parked in the underground garage, and rode the express elevator right to the top. Which reminded him. He pulled his parking ticket from his shirt pocket.

“They validate?”

If not, the ten-dollar parking fee would damn near bankrupt Bobby that day. But Scotty didn’t answer; he was looking Bobby up and down as if trying to come up with a compliment for his wardrobe. He finally gave up and slapped Bobby on the shoulder.

“C’mon, let’s eat.”

Scotty led the way to the maitre d’s station, down a short corridor. One wall was a gallery of framed portraits of the club’s founders and board of directors, past and present, a regular Who’s Who of Dallas.

“Ah, Mr. Fenney, a pleasure to see you today,” a middle-aged Hispanic man said with a practiced smile, as if seeing Scotty was the highlight of his day. He was trim, his hair was parted neatly and slicked over, and his face was smooth and brown, clean-shaven with a pencil mustache. The scent of aftershave hovered over him. He was dressed in a dark suit, dark tie, and white shirt. He could be the local Latino undertaker. He tucked two menus bound in leather under his arm. “Two for lunch, sir?”

“Yes, Roberto.”

Bobby followed Roberto and Scotty through the entryway and into a dining room illuminated by fancy chandeliers and floor-to-ceiling windows and filled with dark wood paneling, dark wood columns, and dark wood tables covered with white tablecloths. Young brown men in white waistcoats and black bow ties served old white men. Roberto snapped his fingers at his underlings and gestured at glasses that needed to be filled and plates removed. The alluring aroma of grilled steaks, fresh fried shrimp, and charbroiled fish and the symphony of silver utensils against crystal and china joined together to remind Bobby of what might have been had his life taken a different turn here or there. He usually had lunch at the barbecue joint down the block where you ate at picnic tables on paper plates with plastic utensils.

While Bobby felt like Ralph Nader at a chamber of commerce meeting, Scotty strode through the dining room like the star halfback onto a football field, greeting and shaking hands with everyone he passed-that familiar Scotty Fenney entrance Bobby had witnessed so many times in the old days and from the same vantage point: behind Scotty Fenney. Bobby recognized the faces of the men Scotty was greeting from the business section of the newspaper. These men owned Dallas-the land, the buildings, the businesses, and everything else worth owning in the city. Scotty’s attention was suddenly drawn across the room. He said to Bobby, “I’ll be right there,” and went over to a table of four men.

Bobby followed Roberto to a table by the window through which Bobby could gaze out upon the city where he had lived his entire life. Born poor in East Dallas, he had moved with his parents to a rental duplex near SMU the summer before ninth grade. They wanted a better life for their son, but they couldn’t afford private school on his father’s truck driver’s pay. Instead their son would be educated in the Highland Park public school system just like the sons of the richest men in Dallas.

Bobby had met Scotty Fenney that first year, two renters seeking similarly situated companions-renters occupied a social status in Highland Park only a step above the Mexican household help. Bobby became Scotty’s faithful follower, like Robin to Batman; and as Scotty’s status rose with each football game, Bobby was pulled along in his friend’s considerable wake, welcomed anywhere in Highland Park, as long as he was with Scotty Fenney.

After high school, Bobby had followed Scotty to SMU. Scotty got a football scholarship; Bobby got student loans. Four years later, he followed Scotty to law school. But a law degree had not led to a better life for him. The money is in the big law firms, and the big firms take only the best of the best, the top ten percent-the Scotty Fenneys, not the Bobby Herrins. All through law school, they had talked about practicing law together, but the big firms came calling and Scotty answered; and suddenly, like a Texas summer storm that dumps two inches of rain and then abruptly disappears, Scotty was gone. For the first time since he was fourteen, Bobby did not have Scotty Fenney to follow.

For eleven years now, Bobby had wandered through life like Moses in the Sinai Desert, trying to find his way without Scotty. He had caught glimpses of his old friend in the society section-Mr. and Mrs. A. Scott Fenney at such-and-such society ball-and sometimes in the business section-another courtroom victory or major deal engineered by A. Scott Fenney, Esq. Each time he read something about his old friend the memories would return and he would feel so completely alone again.

Still, through no real intent, Bobby had fashioned a life of sorts. Not much of a life-his exact thought that morning as he arrived at the office and stepped over a drunk on the doorstep, the start of another day of bailing out dopers at the jail, fighting evictions in J.P. court, eating Korean donuts, and drinking Mexican beer and playing pool in the bar next door. But then the phone rang and the caller identified herself as Scott Fenney’s secretary. When she invited him to lunch with Scotty at the Downtown Club, Bobby thought he’d have to call 911 and have them hook him up to a defibrillator. He accepted, hung up the phone, took one look at his clothes, and immediately regretted his decision. He paced the office for an hour, deciding a dozen times to call back and cancel and a dozen times not to. When he finally pulled the old Impala into the parking garage under Dibrell Tower and the attendant looked it over and chuckled, he knew he was in over his head.

Bobby Herrin didn’t belong at the Downtown Club.

He realized his finger was tapping the table like he was sending an urgent Morse code message. He craved a cigarette, but the Dallas city council had banned smoking in all public places. He desperately wanted to get up and walk out, to go back to East Dallas where he belonged. Goddamnit, why had he accepted this lunch invitation? Only because Scotty’s secretary’s call had caught him by surprise, he told himself, but he knew the truth: he wanted to see Scotty again.

He missed Scotty more than he missed his two ex-wives.

Bobby looked for Scotty and saw him several tables away, leaning over and whispering in the ear of a man whose face Bobby also recognized. Whatever Scotty said had made the man very happy. He stood and shook Scotty’s hand, slapped him on the back, and damn near hugged him. Scotty walked over to Bobby with a big smile on his face and sat down across the table.

“You know Tom Dibrell?” Bobby asked.

“I’m his lawyer. Got him out of a crack yesterday. Literally.” Scotty leaned over and whispered, “Tom’s got a problem keeping his prick out of the payroll.”

“Scotty, he’s the guy who paid SMU players, got the football team the death penalty! You hated assholes like him back then. Now you’re working for him? Why? ”

Scotty smiled. “Three million bucks a year in legal fees, Bobby, that’s why.”

The number took Bobby’s breath away: three million bucks. Bobby’s best year ever, he’d grossed $27,500. Only a few minutes together after eleven years apart, and he was already envying Scotty’s life again. Sure, Bobby had loyal clients-one brought him homemade tamales each week, another had named her illegitimate son after him-and his money was no good at either the donut shop or the bar-free donuts and beer were the only perks his particular position offered-but his best client had paid him $500 last year; Scotty’s best client paid him $3 million. In all English-speaking parts of Dallas, money was the only recognized measure of a lawyer’s success; consequently, only among the Spanish-speaking population of East Dallas was Robert Herrin, Esq., not considered a total loser.

His mind was prying open the door to depression again, the point in each day when he would walk next door and down a few Tecates, when Roberto appeared with two glasses of iced tea and placed them on the table and then spread napkins in their laps, which made Bobby flinch-where he ate, someone leans in that close they’re going for your wallet. After Roberto left, Bobby emptied two sweeteners in his tea, drank half the glass, and said, “Kind of surprised to get your call this morning, Scotty. Your secretary’s call, anyway. But you know me, never could pass up a free lunch.”

“So, how you been, Bobby?”

Bobby studied Scotty sitting there in his expensive suit and starched shirt and designer tie and looking like the Prince of Dallas and wondered if his old friend really gave a damn how Bobby Herrin had been. Used to be that when Bobby ran into an old law school classmate who had done better-which is to say, any law school classmate-they would both realize the awkwardness of the encounter and manufacture a quick escape. But there was no escaping here.

So Bobby said, “Scotty, when you get up in the morning, do you think good things are gonna happen to you that day?”

Scotty frowned a moment, then shrugged and said, “Yeah, I guess so.”

“Why?”

Scotty shrugged again. “Good things have always happened to me.”

“The best football player, best student, best looking, marries the most beautiful cheerleader, becomes a rich lawyer, and lives happily ever after?”

Scotty flashed that big smile again. “Something like that.”

“Exactly like that.”

“Yeah.”

“Well, see, Scotty, it ain’t like that for everybody. I don’t wake up thinking good things are gonna happen that day. I wake up wondering what’s the next bad thing that’s gonna happen to me.”

Scotty was staring at his water goblet with the same expression Bobby had seen on the faces of those other classmates he’d run into over the years, a look of abject embarrassment. But he was too far in to stop now.

“You graduated first in our class, Scotty. I graduated. Remember that old law school joke? What do they call the doctor who graduated last in his med school class? Doctor. What do they call the lawyer who graduated last in his law school class? Infrequently.” Bobby lowered his eyes to the silver fork he was fiddling with. “Well, it’s no joke.”

Scotty did not respond immediately, so Bobby raised his eyes, expecting to see a haughty smirk; instead, he saw a hint of real concern on his old friend’s face. Scotty and Bobby had been inseparable in college and law school: they had lived together, studied together, got drunk together, chased girls together (Bobby got Scotty’s hand-me-downs), and played hoops and golf together. They were like brothers, right up until the day Scotty hired on with Ford Stevens at a starting salary of $100,000. They had not spoken since.

“Things haven’t gone well?” Scotty asked.

“Clients you get from ads in the TV guide don’t pay so well.” Bobby shrugged and tried to smile. “Hey, life just didn’t work out.”

Scotty straightened in his chair. “Well, Bobby, let’s have lunch and talk about that.”

Scotty stuck a finger in the air and a waiter appeared instantly. Bobby was scanning a menu with entrees that cost more than his suit when he heard a thick Latino accent: “Mr. Herrin?”

He looked up at the waiter, a young Hispanic man, well groomed with erect posture. His face seemed vaguely familiar.

“Mr. Herrin, it’s Carlos. Carlos Hernandez? Remember me, last year? You was my lawyer? Possession with intent to distribute?”

So many of Bobby’s clients looked so much alike-young males, brown or black-and were charged with the same crimes-possession of a controlled substance, possession with intent to distribute, conspiracy to distribute; they were just two-bit users caught in the cross fire of the war against drugs. Sometimes he could remember a particular client by his tattoos-he vividly recalled a client named Hector (conspiracy to distribute) because his entire upper body was one big tattoo, a mural in honor of the Virgin Mary-but since Carlos here was clothed from his neck to his toes, Bobby could not remember Carlos from Jorge or Ricardo or Lupe. Still, he said, “Oh, yeah, Carlos. How you doing, man? You staying clean?”

A big grin from Carlos and a bigger lie, “Oh, yes, sir, Mr. Herrin.”

They never stay clean. “Good man.”

Scotty ordered salmon, Bobby a T-bone. As Carlos walked off, Bobby gestured after him. “My best client.”

“You do a lot of criminal defense work?”

Bobby nodded. “I represent the petty criminal class. Guys like Carlos, they don’t need estate plans.”

“Federal court?”

“Yeah, since they federalized all the drug crimes.”

Carlos soon returned with their food, and they ate and talked and laughed about the old days, old friends, good times, and their families. Scotty didn’t know Bobby had been married and divorced twice; Bobby didn’t know Scotty’s mother had died or that he had a daughter. And for a brief moment it was eleven years ago and they were still best friends. But Bobby knew he was just Cinderella at the ball with the Prince of Dallas, and the fancy lunch at the fancy club would soon be over and he’d be back in his crappy office in East Dallas living his shitty life again representing clients like Carlos.

So when he finished his steak, he pushed his plate aside and said: “Scotty, I appreciate the lunch, man. It’s been fun, catching up and all. But I know you didn’t invite me up here just to catch up, not after all these years. What’s up?”

Scotty glanced around, leaned in, and in a lowered voice said, “Buford appointed me to represent the hooker who murdered Clark McCall.”

Bobby almost spit out his iced tea. “You’re shittin’ me.”

“Nope.”

Bobby Herrin might not be the brightest bulb in the box, but it didn’t take him long to figure out this game: Scotty Fenney was giving him another hand-me-down.

“You want to hire her out?”

Scotty nodded. “Here’s the deal. I met with the defendant this morning, Shawanda Jones, black girl, hooker, heroin addict-Christ, she damn near puked on my suit! Says she didn’t kill him, but that’s bullshit-her gun was the murder weapon. Says McCall picked her up on Harry Hines, offered her a thousand bucks for the night, took her home, started slapping her around, cursing her and”-his voice was a whisper now-“using the N-word.” Back to his normal voice. “Anyway, they fought, she kicked him in the balls, took the money he owed her and his car keys, drove herself back to Harry Hines, and left the car. Police got her prints off the gun-she’s got prior prostitution charges-and arrested her the next day. She refuses to plead out, wants a trial. Bobby, Ford Stevens can’t represent a hooker!”

Bobby nodded. “Okay.”

“Okay what?”

“I’ll take her. What’s the pay?”

“Fifty an hour?”

“Plus expenses.”

“Like what?”

“Investigator, forensic experts, DNA tests…”

“Okay, but don’t go overboard.”

“Yeah, what the hell, she’s just a nigger.”

“I didn’t say that, Bobby.”

“Sorry. Cheap shot. You got a detention hearing?”

“Tomorrow morning, nine.”

“I’ll be there.”

They stood. Bobby pulled out his parking ticket.

“They validate?”

The athletic club was located on the top floor of the building adjacent to Dibrell Tower, connected by an air-conditioned skywalk so Scott Fenney didn’t have to sweat on the way to his daily workout. Most of the office buildings in downtown Dallas were connected by skywalks or underground tunnels, air-conditioned passageways so the lawyers and bankers and businessmen didn’t have to venture out into the heat or among the vagrants and panhandlers who called the downtown streets home; it was a prudent practice, particularly after a homeless man jumped a cop a few years back, grabbed his gun, and shot him point-blank in the face, right across the street from the downtown McDonald’s.

Scott had just traversed one such skywalk. It was now half past five and he was looking down on Dallas while running at 7.5 miles per hour up a ten-degree incline on a commercial treadmill and feeling pretty damn special. Which was not a new feeling for him. Scott Fenney had been special all his life. His father, Butch, had told him so when he was only eight, when he first put on pads and discovered his talent in peewee football. “You’ve got a gift, Scotty,” Butch had said. Later his mother said the same thing: “You’ve got a gift, but I don’t mean football,” she said. He never understood what she meant, and then she died.

But the notion took hold and grew inside him, nurtured by eight years of high school and college football heroics; the fans, students, cheerleaders, boosters, coaches, and reporters all assured him daily that Scott Fenney was indeed special. It became a part of him, like the blue of his eyes. And it had never left him; it had only grown stronger, through three years at SMU law school and eleven years at Ford Stevens. But now, instead of athletic ability, it was money that made Scott Fenney special. Money enough to buy a mansion, a Ferrari, a perfect life-and even an old friend.

For the first time in the twenty-four hours since the judge’s call, Scott’s mind was clear, his spirits high, and his eyes locked on the backside of the girl running on the treadmill in front of him, her amazing buns barely shimmying as they pumped up and down like pistons. Scott pulled his eyes off her firm butt and glanced at the mirror to his right; he caught the girl on the treadmill behind him checking out his firm butt. Their eyes met and she winked, and that intoxicating feeling of male virility formed in his brain, coursed through his nerves and veins like a narcotic, and energized his muscles. He increased the speed to ten miles per hour. He loved being special.

When Scott walked into her bedroom that night, Boo was already in her pajamas and in bed, propped up on pillows against the headboard. Her hands were folded in her lap, her hair brushed smooth, and her face scrubbed pink. She smelled like fresh strawberries. She had positioned a chair next to the bed, as she did each night before bedtime, with the current book Scott was reading to her in the seat. Scott picked up the book and sat down, rubbed his eyes, and replaced his glasses.

“Where were we?” he asked.

“Number six,” Boo said.

Scott opened the book and turned to the Sixth Amendment to the Constitution. Boo’s teacher had mentioned the Bill of Rights in class one day, so naturally Boo wanted to know everything about these special rights she never knew she had.

So he read: “‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.’” He looked up. “What do you think that means?”

“The cops can’t lock you up and throw away the key.”

“That’s right. And your trial can’t be held in secret.”

“So if your prostitute doesn’t cop a plea, anyone can go to her trial.”

“Yes. And she won’t.”

“Won’t what?”

“Cop a plea.”

Boo leaned forward, her eyes wide. “You talked to her?”

“This morning, at the jail.”

“What’s she like?”

Scott shrugged. “Young, not very well educated, strung out, says she’s innocent.”

“Do you think she is?”

Scott shook his head. “No. Her gun was the murder weapon and her fingerprints were on the gun.”

“She had a gun?”

“Yeah.”

“ Shit…I mean, wow.”

She leaned back, thinking, so he read again: “‘By an impartial jury.’ You know what ‘impartial’ means?”

She shook her head. “Uh-uh.”

“It means jurors who are fair, not prejudiced against the defendant. ‘Prejudiced’ means hating people just because they’re different.”

She nodded. “We talked about that at school last year during Kwanzaa. So if someone hates black people, they can’t be on your prostitute’s jury.”

“That’s right.”

“How do you make sure?”

“You get to ask potential jurors questions before they become jurors.”

“Like what?”

“Well, in the prostitute’s case, you’d ask whether they’re prejudiced against black people or prostitutes or drug addicts.”

“But they’ll just say no.”

“Well, you don’t ask it straight out; you ask subtle questions, like, uh, have they ever been to a black person’s home? And you watch their body language, say a white guy is sitting next to a black guy, does he lean away.”

“Have you?”

“Have I what?”

“Ever been to a black person’s home?”

“Uh, no.”

“But you’re not prejudiced, are you?”

“No, Boo, of course not. I used to have black friends, guys I played ball with at SMU.”

“Like who?”

“Well, like Rasheed…and Leroy…and Big Charlie-”

She smiled. “Who’s Big Charlie?”

Now Scott was smiling. “Charles Jackson. He was my right offensive guard. He blocked for me. He saved me many times on the field…and a few times off the field.”

“Y’all were good friends?”

Scott nodded. “Yeah. He was a great guy.”

“Is he dead?”

“No…I don’t think so.”

“Why aren’t y’all friends anymore?”

Scott shrugged. “He went off to play pro ball. I went to law school. We lost touch.”

She nodded. “So the only reason you don’t have black clients is because you don’t represent people, only corporations.”

“Exactly.”

She pointed at the book. “What’s next?”

Scott read again: “‘To be informed of the nature and cause of the accusation,’ which means to be told the crime you’re charged with.”

“Murder, that’s the crime your prostitute is charged with.”

“Yes.” Reading again: “‘To be confronted with the witnesses against him.’ That means the prosecution must put the witnesses on the stand in court to testify against the defendant. ‘To have compulsory process for obtaining witnesses in his favor.’ That means you can call witnesses to help you.”

“Your prostitute can get people to say she didn’t do it.”

“Right. If she can find anyone. And to have the assistance of counsel for his defense.’”

“What’s counsel?”

“A lawyer.”

“Your prostitute has a right to a lawyer?”

“Yes, she does.”

“Even if she can’t pay you?”

“Yes.”

“Why?”

“Why what?”

“Why does she get you for free when everyone else has to pay you three hundred and fifty dollars an hour?”

“Well, George Washington and the other Founding Fathers…you know about them?” She nodded. “Well, they didn’t think it would be fair for the government to charge someone with a crime but not give him a lawyer to defend him.”

“Because he might be innocent and if he didn’t have a lawyer to prove he’s innocent, he might still go to jail.”

“Exactly…well, the lawyer doesn’t have to prove him innocent, the government’s got to prove him guilty. And that’s the lawyer’s job, Boo, to make the government prove the defendant’s guilt beyond any reasonable doubt.”

“So the government proved your prostitute is guilty?”

“Not yet. And she’s not my prostitute, Boo. She’s my client.”

“But you wanted her to cop a plea, say she’s guilty.”

“Yes, to confess that she did it.”

“So the government wouldn’t have to prove she’s guilty.”

“Right.”

“Then why does she need you?”

Scott chuckled. “Well, I’m supposed to, uh…I mean, the court appoints a lawyer so she, uh…Well, the Bill of Rights says she has a right to a lawyer even if she’s guilty and decides to confess. To make sure the rules are followed.”

“And the judge appointed you to make sure the rules are followed for her?”

“Yes, but she doesn’t want to confess. She wants to go to trial, so I hired her out.”

She frowned. “Explain.”

“I hired an old law school buddy to take her case to trial.”

“Why?”

“Because I’m too busy.”

“You’re too busy to make the government prove she’s guilty?”

“Yes. So I’m paying a friend to do it for me.”

“Like if I hired a friend to do my homework?”

“Exactly…well, no, not exactly. You’ve got to do your own homework, Boo.”

“Why?”

“Because that would be cheating.”

“But it’s not cheating if you’re a lawyer?”

“Yes…well, no. I mean…it’s complicated, Boo.”

She pointed at the book. “Does that Sixth Amendment have one of those things, what did you call it, a pro…prov…”

“Proviso?”

“Yeah, a proviso.”

“What do you mean?”

“A proviso that if the lawyer’s real busy, you don’t have a right to a lawyer?”

“No. But you don’t have the right to a particular lawyer, just a lawyer.”

“Any lawyer?”

“Yeah.”

“Even a bad lawyer?”

Scott shrugged. “Yeah.”

“Is your friend a good lawyer or a bad lawyer?”

“Well…I don’t really know.”

“Is he as good as you?”

Scott smiled. “No.”

“So the judge appointed you as her lawyer and you’re a great lawyer, but now she’s going to get stuck with your friend, who’s not so great?”

“Well, yeah. Not everyone can have me as their lawyer.”

“Only corporations that can pay you three hundred and fifty dollars an hour.”

“Exactly.”

She sighed. “That doesn’t seem like such a great deal.”

“What?”

“That right to a lousy lawyer.”