The Judge

CHAPTER 14

Witness lists have now been exchanged, and the name Oscar Nichols does not appear on theirs. Harry admits that Lenore was right not to kick this particular sleeping dog. For the moment, at least, he and Lenore seem to have put aside their differences. In the grind of final preparations for trial, they are both too busy and tired to fight.

It is midmorning and ten days have passed since the unpleasantness with Tony in the park. Arguillo is the original cop-child, what you would get if you issued guns and badges to kids in the fifth grade. Perhaps one day he will grow up, but with Tony I do not see it happening in this life.

“Well, do we have a consensus?” Lenore whispers, leaning over the counsel table. “What do we do with Mrs. Ramirez? Is she on or off? Or do you want to do more voir dire?”

Today we are ensnared in the next course of the Coconut’s juridical minefield. The four of us, Harry and Lenore, Acosta and I, are camped at the defense counsel table in Radovich’s courtroom, delving through a pile of jury profiles.

We did some legal parrying last week, motions to suppress, arguing that the cops had exceeded the scope of the warrants when they collected the fibers from Acosta’s county car and the animal hair from his home. Radovich gave them wide berth. With this judge, if we are to win at trial, it will not be grounded in the nuance of constitutional law. He gave our motion the old smell test, and flatly pronounced that the warrants were specific enough. The hair and fibers are in, subject to the state showing relevance and proper foundation.

Kline seemed vindicated. First blood for his side. On a roll, he told the judge that he wanted to join the prostitution case with the murder. We were hard-pressed to resist this, having argued for it originally ourselves, and so the matters are now joined, to be tried in one case.

It seems that he is headed somewhere with this, but we are not sure where. Kline then told Radovich that he had one other matter to be discussed in chambers when we are finished here today.

“The judge is waiting,” says Lenore. “Mrs. Ramirez,” she reminds us. “Thumbs up or down. Do we burn a preemptory or leave her on?”

“Maybe the state will waste her,” says Harry. “Mediterranean flavor,” he says, “they can’t be too happy.”

“What’s that supposed to mean?” says Acosta. Harry’s getting the evil eye.

“No offense,” says Harry. “But if I were defending, I would swing for a panel of your people every time. The last time they voted conviction was at the Inquisition,” he says.

“I don’t think so,” says Acosta. “It is true there is an ethnic factor,” he says. “But there is something about her I do not like.”

It is the thing about juries. There are as many theories as there are lawyers to produce them.

Ordinarily I would not expect the defendant to play an active role in the selection of jurors. But the facts that Acosta is trained in the law and has a vital stake here make it necessary for him to participate. It has me wondering if in doing this we are not merely spreading the accountability for a bad result.

“Could we have just one more moment, Your Honor?” Lenore says to Radovich.

“Take your time,” he says. “I want you to be happy with this jury,” he tells us.

If that’s the case, Acosta has a few hundred relatives in the hallway outside who would be happy to join the jury.

“Come on, guys, I need a decision,” says Lenore.

“Lookie here,” Harry whispers, lips barely moving, “she has a history of drugs.” Like a car salesman pitching the fact that his model has air conditioning.

Acosta hasn’t seen this in the profile, more personal information than a juror usually discloses.

Harry points it out to him. “No convictions, but to listen to her therapist, she’s a cognitive basket case, some shrink’s lifetime meal ticket,” Harry hisses.

“Maybe I have misjudged the woman,” says Acosta. This is the only place on earth where flirting with a criminal background is a positive reference.

I read the profile more carefully. Ramirez got hooked on cocaine in her late twenties, buying from a friend at work. She nicked her employer on a disability claim on her way out the door. At thirty-seven, she has been receiving supplemental Social Security benefits for eleven years, on the social fiction that self-induced drugs are a disability on the order of Parkinson’s disease. She lives in a group home, owned by a therapist who apparently tells her she will never recover, at least not until the government largesse runs out. Last year, largely on the political drag of her therapist and the drug culture’s circle of benevolence, Ramirez was appointed to a county commission and now serves as the local “drug czarina” of Capital County, where she makes public policy for other addicts. For this she is given a county car and a small stipend to go along with her perennial SSI. Upward mobility on the public dole.

“She’s our perfect juror,” says Harry.

“On its face,” I tell him. “But I am troubled as to why anyone would disclose this kind of lurid information unless they had to.”

“Why don’t you ask her?” says Lenore.

It’s a tricky point, sensitive materials picked over in front of the other jurors. And yet we cannot just ignore it.

Lenore gives me a gesture, as if to say, “Be my guest,” and sits down.

Mrs. Ramirez sits near the center of the jury box, in the second row. The courtroom is full of mostly other prospective jurors waiting their turns in the tumbler as we bounce their predecessors.

There is one row for press. This is mostly empty. Jury selection doesn’t rate heavy coverage. In the back row, Lili Acosta sits by herself. An elderly man and woman are across the aisle from her, flanked by a younger man. I am told that this is Brittany Hall’s mother, father, and younger brother, here to see that justice is done.

Like most things with this judge, Radovich does voir dire in his own way. For this trial, because of the early publicity, he has called five hundred prospective jurors. Our first meeting was in a county auditorium, where Radovich asked some preliminary questions, what people saw and thought they knew. He weeded out nearly two hundred souls, including a woman whose husband had been cited downtown in a prostitution sting. It is unknown whether she would have hanged the police for their efforts, or Acosta for being so stupid. Radovich didn’t care.

“Mrs. Ramirez, how are you today?” I ask her.

“Fine.” She smiles, no toothy grin, but businesslike. She may be in her late thirties, but looks older. She is slender and small, a kind of Latin pixie with wavy dark hair pulled back by a comb.

“You have been very forthcoming in your juror questionnaire,” I say. “You have volunteered a lot of details regarding your background. I want to thank you.”

“I wanted to be honest,” she says. “I am a recovered drug user. I have been taught that acknowledgment and acceptance is the first step in any cure. I do not deny my past,” she says.

She would give me twenty more minutes of this, admission of sin being good for the soul, the Church of Reformed Zealotry, but I cut her off.

“A healthy attitude,” I tell her.

There are now big red flags fluttering in my brain. To one holding such views, the Coconut could be seen as in a state of denial, the only cure being some further fall from grace.

She is immaculately dressed, in a silk print and high heels, wearing tasteful earrings, an outfit to make an impression. What makes me think that she wants to sit on this jury?

“As long as you have been so honest with us I think we have an obligation to be honest with you, and with the rest of the panel. You have no criminal record. Is that right?”

“No.”

“And you have never been arrested for drug use, have you?” My merit badge for the day: Self-esteem 101.

“No.” With this she sits an inch taller in her chair. She may have been a walking pharmacy, but the cops never caught her.

“And you never dealt drugs? Sold them for cash to anyone else?” On this I am on squishy ground, so I try to make the question as narrow as possible. I hold my breath until she answers.

She makes a face like perhaps she is weighing her answer-maybe given them to others, but never for money. Then she finally says: “No.”

The relief on Radovich’s face up on the bench says, “Thank you.”

It seems that the cozy rigors of therapy, acknowledgment, and acceptance do not include admissions that might involve a stretch in the joint. Maybe there is hope for this woman yet.

The older woman, gray haired and Caucasian, sitting next to Ramirez moves perceptibly away, her eyes cast down at Ramirez’s purse. I suspect she is wondering what is in it at this moment, thoughts of little twisted white cigarettes, the horrified visions of needles and vials of pills.

I steal a glance at Acosta. He is smiling at Ramirez, his head I am sure dancing with images of joints being passed around the table during deliberations, followed of course by a mellow verdict.

I take her through the topics of concern, the burden of proof in a criminal case, proof beyond a reasonable doubt. She understands this. That the state must carry this burden and that the defendant has no obligation to prove anything in this case. She understands. Whether she has any difficulty presuming my client innocent in the absence of any evidence to the contrary. She says she does not.

“I see you have a position,” I tell Ramirez, “of some responsibility with this county commission?”

“We sit twice a month,” she says, “to act as a local clearinghouse for federal grants, and to review programs for funding.”

“And I take it you have considerable authority in these regards?” I ask her.

“Vice chairperson,” she says. “Next year, unless someone runs against me, I will be the chair.”

I give her congratulations, and then the question: “Are you expecting opposition?”

“Oh, no. But two years ago there was a contest. But that was different,” says Ramirez. “Some personality differences. I get along with everyone,” she says.

“So this is an elective post?”

“Yes.”

“This is considered quite a prize, to be chair?”

“It would go on my résumé,” she says.

“Then you know something about the responsibilities of public office?”

She gives me an expression, as if to say, “This goes with the turf.” I press her to answer the question for the record, and she says, “Yes.”

“What do you think of a man who is alleged to have committed the acts charged against Mr. Acosta? A former judge.”

“These are serious matters,” she says, “if they are true. Of course I have seen no evidence,” she adds.

“Of course.” I am getting a bad feeling, a woman anxious to leave behind a troubled background, who wants desperately to get along.

“How would you judge the testimony of a police officer, Mrs. Ramirez?”

“What do you mean?”

“Well, would you be inclined to believe it? Or would you tend to distrust it?”

“Neither,” she says. “I would listen to it. I would have to evaluate it with all of the other testimony I hear.”

Very good, I think.

“Have you ever had any involvement with the police department?” I ask here.

“I’ve never been arrested.” She wants to take my merit badge.

“That’s not what I mean. Have you ever worked with the police?”

“Oh.” She puts it back.

“Not the department,” she says.

“With any police officers?” I say.

“On the commission,” she says.

“And what is your involvement with police officers on the commission?”

“They come before us from time to time, with recommendations on funding for various programs.”

“That’s all?”

She thinks for a moment. “Oh, and two members of the commission, by law, must be a member of law enforcement,” she says, “one from the city, one from the county.”

This was what I was searching for.

“How many members are on this commission?”

“Five.”

“So it would take three to elect you to the chair?”

By the look in her eyes, suddenly I sense that she can see where I am going.

Radovich is leaning over the railing on the bench to get a better look. His country nose sniffing for the scent of bias.

She does not answer my question. I prod her, and she says, “Yes.”

“Mrs. Ramirez, what if one of the other non-law enforcement members of the commission decided to run against you for the chair of the commission? If that person were to approach the two law enforcement members for their support, it would be necessary for you to be on good terms with those law enforcement members, wouldn’t it?”

She makes a face, some concession. “It’s not likely to happen,” she says.

“But if it did?” I no longer want to burn one of our limited preemptory challenges. Ramirez must go.

“I would do what is right,” she says.

“Even if it meant losing your position as chairperson of the commission? Not being able to put this on your résumé? That is a heavy price to pay for sitting on a jury in a criminal matter.”

“It’s an important case,” she says. As the words leave her mouth she knows she has said the wrong thing.

“Important to whom?” I ask.

“I mean, just that it’s important,” she says. “A big case.”

The “event of the season” is what she is saying.

“Could it be important to the police officers who sit with you on the commission?”

“I don’t know,” she says.

“Is it fair to assume that they would not be happy with you if you were to vote for acquittal in this case?”

“They are fair men,” she says.

“But they would rather you voted for conviction?”

“I don’t know. I haven’t discussed it with them.”

“You understand that either way, if there is a verdict, they will know how you voted, because in order to arrive at a verdict the vote must be unanimous?”

If she didn’t have a problem before, she does now. The powers of suggestion, and the burdens of higher office.

“Very nice, Mr. Madriani. You don’t need to go any further,” says Radovich.

“Mrs. Ramirez?”

She looks up at him.

“I want to thank you for coming here today and for giving us so much of your time.”

She doesn’t get it.

“You’re excused,” says the judge.

“I could be fair,” she says.

“I understand,” he says. “You’re still excused.”

Radovich leans over the bench a little, a broad smile on his country face, and whispers to me, out of earshot of the jurors, those in the panel, and those beyond the railing, “Remind me never to let you near my well with any of that poison.” It is a good-natured but wary smile that he unleashes as I take my seat.

Looks to kill from Ramirez as she vacates the seat on the panel.

It is nearing noon and Radovich calls it quits for the morning. He takes an assessment from the lawyers, the consensus being that we should finish jury selection by tomorrow.

“I will see the attorneys in my chambers now,” he says. “Mr. Kline, you have something you want to discuss?”

As we enter the judge’s chambers, Kline is bumping me in the ass with a handful of papers.

“Very good,” he says. “We had rated Mrs. Ramirez as high on our list.”

“I’ll bet you had,” I say. “Let me guess. She was your ace against acquittal?”

He won’t say, but it is my guess that they were banking on Ramirez to hang the jury if suddenly the fates favored us in deliberations.

“You did your job well,” he says. Kline is the picture of your average good sport. He would have me believe that holding a grudge is against his religion, a creed to which Lenore does not adhere.

“We would like to have kept her on the jury, or at least forced you to waste a preemptory challenge,” he says.

“The fortunes of war,” I tell him.

“Oh, not war,” he says. He searches for a moment for the right term. “Maybe friendly forensic combat,” he says. Then a glint in his eye as another thought enters his mind. “Though I suspect your colleague will be taking no prisoners.” He is talking about Lenore.

I could tell him that mutilation on the field of combat is more likely, but I think Kline has already figured this out.

“The indomitable Ms. Goya,” he says. “Well, we shall see what the future holds,” he tells me. He gives me a look that would indicate there is something prophetic in this, then turns and takes a seat directly across from Radovich.

The judge has his robe off and boots up on the desk. There are a few cardboard boxes with books still in them on the floor, near his chair, Radovich’s traveling library. For all the use these are to the man, we could set them on fire.

I can see that the single volume of the Penal Code Radovich carries is two years out of date. The judge no doubt operates on the theory that like fine wine, new pronouncements of the legislature should mellow awhile before their fruits are tasted.

Lenore, Harry, and I sit like set pieces on the sofa. Kline and one of his deputies occupy the two client chairs.

“I hope this is something we can deal with quickly,” says Radovich. “I have a luncheon with the presiding judge.”

Kline tells him he will move with dispatch, but that it is a serious matter he is bringing before the court.

“It troubles me to have to raise the issue,” he says. An ominous tone.

“What is it?” says the judge.

“Conflict of interest,” says Kline. “Involving Ms. Goya.”

“Aw, shit. I don’t believe this.” Lenore is up from the sofa, and for a moment I think perhaps she is going to sink her fingernails into the back of Kline’s head.

Radovich looks at her like he’s never heard a woman say the S-word before.

“What are you talking about?” says Lenore.

“I’m talking about your representation of our office in the initial prostitution matter. Your interview of Ms. Hall in the office. Your access to confidential working papers and files in the solicitation charges against the defendant in this case. I’m talking about serious conflict,” he says.

“Give me a break,” she says. Lenore rolling her eyes, treating this with all the deference one might give to a squalling schoolchild.

She calls it a trumped-up issue, and complains about Kline’s delay in bringing the matter before the court, waiting until the eve of trial.

“There’s nothing trumped up about it,” says Kline.

“I think both of you should calm down,” says Radovich. “First things first,” he says. “I think we should have the court reporter in here before we go any further.” He issues a directive to the bailiff.

“I would suggest that the defendant should hear this as well,” says Kline. “It affects his representation.”

Radovich concurs and calls for Acosta to be brought in.

Through all of this Harry and I are sitting, nearly stage struck by what we are hearing. It is not that we did not see the problem. We had all discussed the potential of conflict in our earlier meeting at the office. But we thought that when Kline didn’t raise it in preliminary motions, the matter was deemed waived.

The court reporter is ushered in. She sets up her stenograph machine, and they roll in a secretarial chair.

Acosta is brought in by two of the jail guards. He is half-undressed, a T-shirt above suit pants, suspenders dangling behind him. He is clearly ill at ease to be seen in public this way, and Radovich apologizes and instructs one of the guards to get him a coat. The other guard brings in a chair for their prisoner, and then the two stand sentry inside the door.

While he’s putting on the coat he shoots a glance our way. “What is going on?” he whispers.

Lenore is too agitated to answer, and is at this moment edging toward Radovich’s desk for position.

“The prosecutor has raised an issue of conflict regarding Ms. Goya,” I tell him.

“Oh.” It is all he says, but the sober look on Acosta’s face tells me that he is weighing the consequences of this as it might affect his own fate.

The court reporter feeds a little piece of fan-folded paper into her machine, and we are ready.

“Now,” says Radovich. The signal for Kline to start.

“The people make formal motion,” says Kline, “that Lenore Goya be disqualified from participating in the defense of this matter based upon a conflict of interest. It is very simple,” he says. “It is our position that she has represented adverse interests in this case, and as such has compromised herself. The law,” he says, “is clear.”

He hands the judge documents, points, and authorities, citing the facts of alleged conflict and cases in point, the stuff he poked me in the ass with three minutes earlier.

Lenore can no longer restrain herself. “What is this? We are given no notice or opportunity to be heard?” she says.

I’m on my feet and join her at the edge of Radovich’s desk. A show of unity.

“If we could, Your Honor. We have not seen these documents.”

“Right,” says Radovich. “You got copies for opposing counsel?” Radovich clearly does not like the tactic; trial by ambush, and Kline is filled with remorse for the oversight. He chastises his subordinate for the error, and blames the man for the infraction of legal etiquette.

Kline’s fall guy rifles through his briefcase and comes up with two more copies. Stapled there are a dozen pages, cases underlined, a double-spaced argument.

The issue is clear-cut. Rules of professional ethics in this state bar a lawyer from representing two parties with adverse interests in the same legal action, civil or criminal. While there are fine points and nuances in the way the rules are applied, the penalty for a conflict is removal from the case, disqualification of counsel.

“There may be little question about what the rule says,” I tell Radovich, “but there is a serious question of waiver. Why did the prosecutor wait until the eve of trial to raise this issue?”

“A good point,” says the judge. “You are now threatening a delay, Mr. Kline.”

“I see no reason for any delay,” says Kline. “The defendant is ably represented. More than one lawyer,” he says. He is alluding to Harry and me.

“Not me,” says Hinds. “I never agreed to participate that fully.”

“Well, you’re here,” says Kline. “You’re being paid, aren’t you?”

“Not nearly enough,” says Harry.

Acosta gives him a dirty look, an imperious sneer.

“I wish to make something clear,” says Acosta. “I am not waiving time.” What he means is that he is still demanding a speedy trial.

Kline tries to draw our client into a dialogue and I intervene to cut this off. Failing this, Kline tells us that a speedy trial is not an issue, since the trial has already commenced with the selection of jurors.

He launches off on further argument.

“We believe that Ms. Goya is possessed of certain privileged information,” says Kline, “that she would not have except for her prior employment with my office. This places the people in a disadvantaged position.”

“The only disadvantage the people are suffering from is the incompetence of their lawyer,” says Lenore.

“Yes. Well, you’re the one charged with conflict,” says Kline. “Perhaps you should bone up on legal ethics.”

“Stop it now.” Radovich reaches for the first thing at hand, and slams a heavy metal paperweight on the top of the desk, putting a dent in the wood. He looks at this, and now utters the S-word himself.

“Charlie’s gonna kill me,” he says. He has borrowed Charlie Johnson’s courtroom for this trial and has now put an indelible mark in the top of his desk.

“Why don’t we do this in open court?” says Lenore.

“Why don’t you both shut up,” says Radovich. “And somebody find me some furniture polish,” he says, “and a rag.” He issues a frantic wave at the bailiff, who disappears into the other room.

I shudder to think what a court of appeal will conclude from this record.

It is clear why Kline has chosen to air this linen, here in the privacy of the judge’s chambers. A public argument would raise questions as to the running of his own office, the circumstances of Lenore’s departure, and perhaps questions about disgruntled prosecutors that Kline would like to avoid.

“Why did you wait so long to bring this up?” says Radovich. He’s rubbing at the wound in the desk with his thumb, drops a little spit on it, and tries again.

“Until the other day,” says Kline, “when Ms. Goya questioned Sergeant Frost on the stand, the extent of how deeply we were compromised was not clear.” He says this straight up, soberly, so that even I could not question the statement’s sincerity. I suspect it is also true.

“You put up perjured testimony,” says Lenore, “and I exposed it for what it was.”

“Your opinion about perjured testimony,” says Kline.

“Mine, and that of any other honest person in the room that day,” she tells him.

“On that we could argue endlessly,” he says, “and I am sure we would never agree. But one thing is clear. In cross-examining that witness you were privy to confidential information from Ms. Hall, information gleaned from your employment with my office.”

What he is saying is that Lenore may have won the battle with Frost, only to lose the war here.

The bailiff returns with a bottle and a piece of cloth and hands these to the judge.

“I didn’t want lemon oil,” says Radovich. “Got anything with a little color in it?”

The cop shows both palms up, shrugs as if he hasn’t a clue, and then gets a revelation. He’s out the door and before we can speak, he’s back, with a can of brown shoe polish.

“Yeah,” says Radovich.

“Your Honor, if we could?” I say.

“Go ahead,” says Radovich, but his mind is elsewhere.

“You have broad latitude on the issue of conflict,” I tell him. I point to a case in Kline’s own brief. “A court should be loath to disqualify a lawyer.”

“Unless the attorney’s conduct ‘tends to taint the underlying trial.’” Kline finishes the quotation. “We would argue that Ms. Goya’s conduct here is just such a taint. She interviewed the prosecuting witness,” he says.

I remind the court that all of that is hearsay, that the witness being dead, she cannot testify and her words will never come into evidence.

“Still, Ms. Goya cannot purge her mind of what she already knows,” says Kline.

“What about the defendant’s right to counsel of his own choosing?” I say.

“It is a point,” says Radovich. His nose is now buried in the surface of the desk, spit, lemon oil, and shoe polish.

“You gotta admit, I’d be hobbling the defendant considerably if I were to tell him that he could not have the attorney of his choice.”

Radovich, his forefinger now brown with shoe polish, looks up at Acosta.

“How do you feel about all this?” he says. For a moment I think he’s asking our client if he has any advice on what to do with the damaged desk, perhaps some mystic secret, a potion known only to judges.

“I mean your lawyer,” he says. “What should I do here?”

“Your Honor, I object. These are private matters between client and counsel,” I tell him.

“I don’t mind,” says Acosta. He puffs himself up a little, not like a defendant in a murder trial, but one judge giving advice to another.

An ominous feeling rumbles through my gut.

“I don’t know all the details. .” he begins. Far be it from the Coconut to know all the facts before rendering a decision. “It is a difficult matter,” he says. “I, as the client, have confidence in Ms. Goya. . ”

“There, Your Honor, see?” Lenore tries to cut him off.

“But I suppose I would be equally well represented by Mr. Madriani and Mr. Hinds if it were to come to that. They are able attorneys capable of giving me competent representation.”

“Fine,” says Kline. “So no problem.”

I could thank him for the testimonial. Instead I turn and fix Acosta with a look that if it shot nails would pin him to his chair.

“Judge Radovich asked me,” he says. “I am only telling him the truth.”

I turn away from him, back to Radovich, and take another tack.

“In terms of our preparation for trial, removal of Ms. Goya at this stage would do major damage to our case,” I tell him. “It’s very much a team approach,” I say. “We have each carved out our areas of coverage in presenting the defense.”

“Let me guess,” says Kline, “Ms. Goya’s specialty is invasion of confidences.”

Lenore is about to get into it with him when Radovich makes this unnecessary.

“Mr. Kline. One more remark of that kind and you will pay for the privilege.” Radovich is shaking a brown finger at him at this moment. If Kline doesn’t back off, sanctions could include two days of sanding the injured surface with his nose.

The judge extracts an apology from Kline.

“It’s far too late to raise these kinds of concerns, particularly when the state has known about her role in the prior case from the beginning,” I tell Radovich.

“They are trying to sandbag us,” says Lenore.

“If there’s any sandbagging here,” says Kline, “it was done by you. We’re still investigating,” he says, “to determine if she took any files or records when she left the office, Your Honor.”

This is clearly intended as one more piece of bait for Lenore, and has the desired effect.

“Your Honor, I resent the implication,” she says. Lenore begins to stammer. “How? How is it possible? I mean how could I take files or documents when you”-she turns from Kline back to Radovich, realizing she’s addressing the wrong person-“when he and his crony pillaged my office in the night, and had a guard escort me off the premises? This is incredible,” she says. Lenore’s face is now in full blush, anger to the tips of her ears.

“We don’t need the personal invective,” says Radovich. “Both of you should calm down.” He is rubbing frantically with his finger, and has managed now to turn a three-inch area of the desk’s surface a shade two tones darker than the rest of the desk.

He looks up at us and notices that we are all watching. He puts the rag aside and slides the desk’s blotter six inches to the right to cover the mark. He will hunt for sandpaper after we leave.

“Your Honor, they handed me a box of personal belongings and threw me out of my office,” says Lenore. “There are items that belong to me that I never even got.” Taking up the gauntlet, Lenore’s tone makes it appear as if she is the one who is now on trial.

“I’m sure it was humiliating,” says Radovich. “But that’s not why we’re here.”

Acosta arches an eyebrow. His attempt to hire a former prosecutor for her possible influence with that office has backfired. Lenore is now tarred, and he must wonder about the effect this will have on his case.

Through all of this Kline is still seated coolly in his chair. Finally Lenore notices that she is the only agitated person in the room, regains composure, and rejoins the issue.

“You never answered adequately,” she says, “why you waited so long to raise this. .” She waves the air with the back of her hand, searching for a term sufficiently abusive, “this red herring.” She comes up short.

“I thought that would have been self-evident,” says Kline. “We only joined the prostitution case to the murder charge this week,” he says. “And I would remind you that we did so at your urging,” he says. “Before that moment, before joinder, there was no conflict,” he says.

Kline’s response is like an upper-cut to the solar plexus. I can almost hear Lenore sucking air. It is why you never want to ask a question unless you have already figured out the answer.

“Gotcha on that one,” says Radovich.

Lenore has no answer.

I step in, a little tag team.

“It’s still a major disruption to the defense,” I tell Radovich. “Serious question as to whether the defendant is being denied a fair trial.”

“That is the nub,” says Radovich. “I’m troubled,” he says, “by the consequences of your motion if I were to grant it, Mr. Kline. Particularly at this late date.”

I sense a toppling judge, one that is about to fall our way.

“Your Honor, the law is very clear. . ”

“True,” says Radovich, “but I must also balance the rights of the defendant to a fair trial. To adequate legal representation.”

You know you have won when the judge starts making your arguments for you.

“Your Honor, if you could withhold judgment for one moment while I confer.”

“Be quick,” says Radovich. He checks his watch while the two prosecutors step to the back of the room, hands cupped to ears and lips, the hissing of whispers, high intrigue. The subordinate takes out another piece of paper from his briefcase, and the two of them study this.

I look at Lenore. She gives me a shrug. Not a clue as to what they could be talking about.

Finally a consensus and they step forward.

“I had hoped not to have to do this,” says Kline, “but there is another dimension to this entire matter. This was delivered to our office late yesterday afternoon,” he says. He hands the single-page document to Radovich.

“It is a report,” says the prosecutor, “from the state crime lab, specifically Criminal Information and Identification. CI and I,” he says.

“What has this to do with the issue of conflict?” I say.

“It is a report on a latent fingerprint lifted from the front door of the victim’s apartment the day after her body was discovered,” says Kline.

My blood runs cold.

Kline suddenly turns his attention on Lenore, full focus like the glaring beam of a floodlight

“We would like to know, Ms. Goya, what you were doing at the victim’s apartment on the night she was murdered?”

Suddenly Lenore is in full stammer.

“Don’t answer that,” I say.

Lenore at least has the presence of mind not to admit it. Instead she calls it a shoddy trick. More mud thrown up by the prosecution.

“How do you know that the fingerprint was left there that night?”

Kline smiles. “Well, that’s the peculiar thing about this case, Counsel. We found virtually no prints on any of the exposed surfaces in or around that apartment. Wouldn’t you say that’s strange?” He gives me a quizzical smile.

I don’t answer this.

“Wouldn’t you say that it’s a little peculiar that even the victim’s own prints are not there? On that door? On the knob? Inside the bathroom? In the kitchen.” He gives us a moment for this to settle in. “It seems that somebody went to a lot of trouble to wipe the place clean.”

“Still, even if it is Ms. Goya’s print, and I’m not stipulating that it is. .”

“Oh, it’s her print, all right,” says Kline.

“Still you can’t prove it was left there that night.”

“That’s a question for the jury,” says Kline. He now turns his argument on Radovich. “Is it probable, is it likely, that someone would wipe that door clean and miss only one print: the thumbprint of Ms. Goya?” he says. “Is it probable?”

Kline is right. It is something he can feed to the jury, and their verdict on the question will not matter. Lenore is now compromised in a way we could never have imagined.

“You can be sure that we will be asking you that same question when we put you on the stand at trial,” Kline tells Lenore.

She stands there, speechless, her hand seemingly glued to the edge of Radovich’s desk, as though this is somehow now the boundary of her universe.

“Your Honor,” says Kline, “the question of adverse interest is perhaps now moot. But the law is ironclad as it affects witnesses. A witness may not legally, under any circumstances, represent one of the parties in a case in which they are to testify. It is the law,” he says, “without exception.”

He turns now to Lenore and faces her straight on.

“Ms. Goya, you are hereby on notice that the state intends to call you as a witness in its case against Armando Acosta.”