The Last Witness

Chapter Seventeen

On Wednesday morning Leonard Campbell swept into Judge Pistone's courtroom for the start of the preliminary hearing as if it were the Oscars. He stopped every few feet so that the press could take his picture, giving each reporter and photographer a hearty smile and a thumbs-up. He plopped his thin, cordovan-leather Gucci briefcase on the table reserved for the prosecuting attorney, pulled out an empty legal pad, and placed it neatly on one corner. Planting his hands on his hips, he pivoted slowly, surveying the courtroom as if he were a general trying to decide where to position his snipers. Dressed in a black suit, pale blue shirt with white collar and cuffs, and a subdued gray necktie, he was dressed to kill, if not to convict. He shot his cuffs through the sleeves of his suit jacket and snapped off a crisp nod to the press corps-the little general saluting the folks back home before going off to war.

Patrick Ortiz arrived a few moments later, along with two assistants; one of whom pushed a two-wheel handcart loaded with bankers' boxes. The other assistant carried two-foot-by-three-foot enlargements of photographs of the murder scene and the victim, the autopsy report, and the results of the tests conducted by the forensics lab. Ortiz and his crew ignored the media, and began methodically emptying their boxes and setting up the files and exhibits they would use throughout the preliminary hearing.

Court was scheduled to begin at nine o'clock. Mason had spent the previous hour locked in a cramped, windowless witness room, little bigger than a walk-in closet, bringing Blues up to date. Armed deputies waited outside the door to take Blues into the courtroom.

"I should have told you sooner about Ed Fiora, but I was afraid you'd try and break out of jail just so you could kick his ass," Mason told him.

"I might have done that," Blues said. "I think you were more worried that I'd take the deal to save your bony white butt."

Mason scribbled a bad sketch of the prow of the Dream Casino and laughed. "Yeah, I suppose that's right."

"Well, guess what? I'm not taking a fall for you or anybody else and you know that. So why are you telling me now?"

"You understand street war strategy better than I do. That's what this is. The trial may only be a side skirmish. I need your help tying all this together. I can't do my job if I keep you in the dark."

"In that case, get me bailed out of here. I can't do either one of us any good inside."

Blues was wearing the one suit he owned. It was brown, worn at the elbows, and too tight across his shoulders, but it was better than the jailhouse jumpsuit.

Mason said, "Pistone is going to bind you over and deny bail again. Our best chance is with the Circuit Court judge we draw for the trial. In the meantime, I'll try to find you a new suit."

Mason opened the door, and two beefy deputies on the Dunkin' Donuts diet plan approached Blues cautiously. Blues dropped his right shoulder and gave them a head fake like a running back looking for a seam. Blues cackled when they both grabbed for their guns, blushing like schoolkids when they realized he was pimping them.

"Careful now, boys. I'm a dangerous man," Blues said, sticking the needle in a little deeper.

One deputy cursed under his breath and the other nodded in vigorous agreement. A third officer joined them, and the three of them huddled briefly outside the room while Mason and Blues waited. The largest of the three deputies stepped into the room, flanked by his comrades.

"We're gonna let your little joke go this time, big man. Don't fuck with us again or it's gonna be a rough ride back up in the elevator. Got me?"

Mason said, "Lighten up, Deputy. He was yanking your chain and you just threatened him in front of his lawyer. That elevator gets stuck and you'll be on the other end of a civil rights charge faster than you can sing 'We Shall Overcome.' Got me?"

The deputy turned on Mason, his hand on his nightstick. "You tell your client we don't play games here."

"Sure. Blues," Mason said, "no games. They'll put you in time-out."

The deputies surrounded Blues and shepherded him through a side door into the courtroom. Mason followed behind; glad to have avoided the press encamped outside the courtroom. Blues took a seat at the defendant's table, disappointing those in attendance by refusing to turn around. The deputies sat down in a row of chairs directly behind him, while Mason sat down next to Blues. Mason's chair was covered in worn vinyl and the padding had long since surrendered. The chair swiveled and rocked, but Mason couldn't find a comfortable position, making him glad that the preliminary hearing wouldn't last more than a day or two.

The judge's bailiff, a middle-aged black woman with a stem face and a linebacker's build, entered the courtroom through the door to the judge's chambers.

"Judge Pistone says that if he sees a camera in the courtroom, he'll add it to his collection. Pregame festivities are over." Before anyone could grumble, the judge appeared at her shoulder. "All rise!" she barked. "Hear ye, hear ye, hear ye! The Associate Circuit Court of the Sixteenth Judicial District is now in session before the Honorable Joseph Pistone. All persons having business before this court draw nigh and pay attention. Court is now in session." Mason knew that the judge wouldn't need a gavel as long as he had her to keep order.

Everyone stood as Judge Pistone shuffled up the two steps to his seat behind the bench, elevated above the masses to remind them of the power of the court. They all waited for his permission to sit down. Without looking up, he offered a dismissive wave and said, "Be seated."

Mason glanced around the courtroom as the door opened from the hallway. Harry Ryman and Carl Zimmerman slipped inside and leaned against the rear wall. Harry and Lou looked at each other, both trying not to reveal anything. Harry tipped his head at Lou, who responded with the same sparse gesture.

Mason found Rachel standing in the corner on the opposite side of the back wall from Harry and Zimmerman. She was back in uniform, wearing jeans and a green-and-brown plaid flannel shirt over a tan crew-neck T-shirt. They exchanged winks and smiles, comforting gestures that distracted him briefly from the judge's monotone recitation of the name of the case and his instruction for the attorneys to state their appearances.

Leonard Campbell rose majestically from his chair, buttoned his suit coat, and slowly stepped to the podium in the center of the courtroom. "The people of the State of Missouri," he intoned as if it were an invocation, "are represented by Leonard Campbell, prosecuting attorney, and Patrick Ortiz, deputy chief prosecuting attorney. We are ready to proceed at the court's pleasure, Your Honor."

Campbell turned on one heel, struck a confident, serious pose for the crowd, and resumed his seat. Patrick Ortiz hated showboats and adopted Judge Pistone's head-down posture, pleased with the knowledge that Campbell had completed his only assignment in the hearing.

Judge Pistone raised his eyes at Mason, signaling that it was Mason's turn. "Lou Mason for the defendant. We're ready," Mason said as he stood up. "I've got a preliminary matter that I'd like to take up before we get started," he added.

"Proceed," the judge said.

"There are a lot of people in the courtroom, Your Honor. Some of them may be witnesses. I recognize Detectives Ryman and Zimmerman, who investigated this murder, and there may be some others. I'd like to invoke the rule that prohibits a witness from being in the courtroom prior to testifying."

"Mr. Campbell?" Judge Pistone asked.

Patrick Ortiz rose in Campbell 's place. "We've got all our witnesses sequestered except for Detective Zimmerman. He's our first witness, and I guess he's just a little anxious to get started."

Ortiz's explanation drew soft laughter from the packed house, establishing his usual easygoing connection to his audience. There was no jury in a preliminary hearing. Only the judge would make the decision whether to bind Blues over for trial. Ortiz didn't need all the boxes or the blowups to make his case for Judge Pistone. He understood that the reporters in the courtroom would tell everyone who read a paper, listened to the radio, or watched television how overwhelming the state's evidence was. That message would reverberate with the people who would ultimately be the jurors that would decide this case. He also knew that Mason would watch him closely, gauging how his adversary weighed in the lawyer's gamble between trial and plea bargain, between a crapshoot for freedom and a date with a deadly needle. Ortiz felt the connection at his back, like a breeze that filled his sails.

"What about Detective Ryman?" the judge asked Ortiz.

"We don't intend to call Detective Ryman to testify. I don't know what Mr. Mason's plans are."

Mason was surprised at Ortiz's decision to keep Harry off the stand. He wondered if Harry had asked to take a pass to avoid a confrontation with him, or whether it had been Ortiz's idea. Either way, Mason knew Harry wouldn't help his defense of Blues.

Mason said, "I don't intend to call Detective Ryman and I have no objection to his presence in the courtroom."

"Very well, Counsel," the judge said. "The rule is hereby invoked. No witness will be permitted in the courtroom until after he or she has testified. I will expect the lawyers to enforce the rule by keeping a close eye on who comes and goes. Don't expect me to take roll. If you let somebody slip in, it's on you. Any opening statement, Mr. Ortiz?"

"Yes, Your Honor. Even though this is a pretty cut-and-dried case, I'd like to put the evidence in context for the court and let you know who you are going to be hearing from."

Mason was glad that the state had the burden to prove its case. He understood that was why the prosecutor got to go first at every stage of the preliminary hearing and trial- first to make an opening statement, first to put on witnesses, first to make a closing argument. But Mason couldn't stand going second. Sitting quietly while Patrick Ortiz did his this-defendant-is-so-guilty-why-bother-with-the-trial routine was worse than having a tooth pulled slowly.

"How about you, Mr. Mason?" the judge asked.

"Your Honor," Mason said, "I'm certain that Mr. Ortiz believes that all of his cases are cut-and-dried, that the police only arrest the guilty, and that we could save a lot of tax dollars if we just skipped all this trial stuff. Fortunately, the Founding Fathers decided not to leave it up to Mr. Ortiz, or me or you, to decide innocence or guilt in this case. The jury will make that decision. I'll save my opening statement for the trial."

Mason didn't want to admit that he had nothing to say at this point in the case except that the prosecuting attorney was taking orders from Ed Fiora to offer Blues a plea bargain. He could add that Amy White wanted Mason to find Jack Cullan's secret file on the mayor even though she assured him that it had nothing to do with the murder. He might mention that someone had tried to kill him after he refused to play ball with Ed Fiora. He could describe how Fiora had blackmailed Beth Harrell into trying to seduce him and that she had asked Mason to get back the blackmailer's blackmail so she could seduce him, for her own reasons. None of which, he would have to admit to Judge Pistone, he could prove any more than he could prove that Blues was innocent. So instead, Mason took a shot at Ortiz's understated arrogance and sat down.

"I would suggest that both counsels save their editorial comments for the press, except I'm imposing a gag order. No one connected with this case will discuss it in public outside of this courtroom. When we're done here, this case is going to be assigned to a Circuit Court judge. I don't want the first motion filed by the defendant to be one to move the case out of the county because there's been so much publicity the defendant can't get a fair trial. Now let's get to it. Mr. Ortiz, you may begin."

"Excuse me, Your Honor," Mason interrupted. He stood up slowly and held his hands up, underscoring his regret at delaying the proceedings again. "I'm certain you didn't intend to prejudge this case, but your comments suggest that you've already decided to bind the defendant over for trial. If that's so, I'm compelled to ask that this case be reassigned to another magistrate."

Judge Pistone looked up from the papers in front of him and glared at Mason. "The last time you were before me, Mr. Mason, you practically accused me of being pressured to deny your client bail. I invited you to prove such and you declined. Now you are suggesting that I have prejudged the case against your client. Tell me, is it your desire to be held in contempt by this court? If you are, I shall be happy to oblige you."

"Not at all, Your Honor," Mason answered. "I'm certain that you misspoke when you said a moment ago that this case was going to be assigned to a Circuit Court judge. That will only happen if you bind the defendant over for trial. You can't know until you hear the evidence whether you will make that decision. I didn't want to leave that impression on the record without bringing it to the court's attention. Perhaps you'd like the court reporter to read back your comment."

Mason knew that he was digging a deep hole for himself with Judge Pistone. He also knew that it didn't matter because Pistone had already made up his mind. Just like Ortiz, Mason knew that he had more than one audience. The judge had just testified on behalf of Blues in the court of public opinion. Mason had given the press a different lead than one about Blues's guilt. They could now write a story about how Mason had trapped the judge with his own words, continuing Rachel Firestone's theme that Blues was getting the bum's rush. The judge wouldn't hold Mason in contempt since that would elevate Mason to martyr status for a wrongfully accused client. Instead, the judge would have to swallow hard.

Judge Pistone, known for his disinterested demeanor, was eye-popping mad at Mason, and gripped the edge of the bench as he fought to keep his self-control. He wouldn't risk asking the court reporter to read his comments aloud. "Thank you for bringing to my attention what was clearly an unintended and unfortunate choice of words. I assure you that I have the highest regard for the presumption of innocence. If you have any doubt on that score, you may request another judge. Is that your desire, Mr. Mason?"

"Not at all, Your Honor. As you said, let's get to it."

Mason knew that taunting Judge Pistone was a high-risk strategy. A defense attorney often made himself a lightning rod, taking hits from the court to deflect attention from his client. The strategy was a don't-confuse-me-with-the-facts ploy that meant one thing: The defense attorney didn't have dick. Mason took no comfort in his strategy as Ortiz ambled to the podium, a slightly rumpled, overweight everyman who knocked back a few brews on the weekend, watched sports, talked about women, and sent men to death row.

"Your Honor," he began, “I agree with Mr. Mason about one thing. It's not his job or mine to judge the facts. It is our job to tell you what the facts are. But don't make the mistake Mr. Mason did. You are the only judge of the facts at this point in this case. Before a jury is asked to decide the defendant's guilt, you are asked to decide whether there is reasonable cause to believe that a crime was committed and that the defendant committed it. If you find that there is probable cause to believe those things, then you must bind the defendant over for trial.

"Mr. Mason seized on an innocent misstatement by the court to suggest that you have prejudged this case, although he knows that you haven't and wouldn't. Mr. Mason has his own reasons for trying to keep our attention away from the facts, away from his client. When the state has finished presenting its evidence, listen closely to hear if Mr. Mason denies any of the facts we present to you. Listen to hear if he offers any other explanation for who shot Jack Cullan in the eye with a.38-caliber handgun. Listen to the silence from Mr. Mason because that's all you will hear.

"I told you that this case was cut-and-dried. Tell me if I'm wrong. Jack Cullan was found murdered on Monday, December tenth, by his housekeeper. He'd been shot to death. Mr. Mason won't deny that. The preceding Friday night, Mr. Cullan and Beth Harrell had been customers at a bar owned by the defendant called Blues on Broadway. Mr. Cullan and Ms. Harrell quarreled. The defendant intervened and fought with Mr. Cullan. Afterward, the defendant threatened Mr. Cullan with physical harm if he interfered with the defendant's liquor license or came back to his bar. Four witnesses, including Ms. Harrell, will testify at trial to the fight and the threat. Mr. Mason won't deny that.

"Blood and tissue belonging to the defendant were found under the fingernails of the murder victim. The defendant's fingerprints were found in the room in which Mr. Cullan died. The defendant has a history of violent conduct, including shooting to death an innocent and unarmed woman while he was a police officer. The defendant has no alibi. Mr. Mason won't deny any of that.

"There is more than enough evidence to bind the defendant over for trial on the charge of murder in the first degree. I call that a cut-and-dried case and make no apology for it. I wonder what Mr. Mason calls it."