The Law of Second Chances

50

“Where were you last night?” Henry asked when they were seated on the plane the next evening, waiting for takeoff.

“Why?” Jack asked rather defensively.

“Well, I called you around midnight because I’d forgotten what time we were leaving and I got no answer.”

“Maybe I was sleeping.”

“Jack, this is me, remember. I know your habits. You could be in a dead sleep and still answer the phone at three o’clock in the morning.”

“Well, I was out.”

“Out where? There’s nothing open at midnight in Bass Creek.”

“What are you, my mother or something?”

“You don’t have to get so defensive. I was just wondering where you were. You’re the one with all these conspiracy theories about people getting murdered. I’m just trying to make sure you’re not one of them. You’re lucky I didn’t come over there last night. I certainly thought about it.”

“I’m sorry, Henry. I was in Vero Beach with a woman.”

“A woman? Last week you couldn’t go on with your life, and this week you’re seeing hookers?”

“She wasn’t a hooker.”

“She wasn’t? As of last Friday, I was the only one around here in your life. This is Thursday.”

“I met her on Monday.”

“Oh? You met her on Monday and you’re sleeping with her on Wednesday. Is that what they call a whirlwind romance?”

“What’s with all these questions? I’m a grown man, you know. I can run my own life.”

“I know you can, Jack. I’m just a little concerned that’s all.”

“About what?”

“Look, you’re a strong person, but you’re just a little weak right now in the emotional department.”

“You’ve got nothing to worry about, Henry. This is just a fling.”

“A fling? You, Jack Tobin, are having a fling?” Henry raised his voice a little on the remark, and the woman sitting next to them in the aisle seat looked up from her book and gave Jack a distasteful look.

“You’re ruining my reputation, Henry,” Jack deadpanned.

“All right, all right. Forget I mentioned anything.”

Spencer Taylor was perfect in every way. Detective Nick Walsh had referred to him as a peacock: his hair was perfectly groomed to look perfectly natural-there was some kind of gel holding it, but it wasn’t noticeable. His suits were impeccably tailored. He was just the right size-about six feet tall-and there wasn’t an ounce of fat on his well-toned body. He had perfect diction, and he smiled when he spoke, to let you know how pleasant he was and how much he enjoyed talking to you. The perfect gentleman, he was bright and confident without a trace of arrogance-at least, not that anyone could see on the surface. Even his name had a perfect ring to it-Spencer Taylor.

Prosecutors came in many sizes and shapes, but the good ones were usually either bulldogs or, on rare occasions, smart, smooth, and silky. Spencer was clearly the latter. The bulldogs were normally career guys who really believed in truth, justice, and the American way. Guys like Spencer were filling out their resumes on their way to private practice and a life of representing rich drug dealers, white-collar criminals, and celebrities. Spencer had only stayed this long at the district attorney’s office because he thought he had a shot at the top job.

Spencer was delighted when he heard that Jack Tobin was going to represent Benny Avrile. Sal Paglia had been a blow-hard and in many ways an easy mark. Jack Tobin was a formidable opponent, at least by reputation, and Spencer relished the opportunity to do battle with him and in the process enhance his own standing.

When Spencer received Jack’s emergency motion requesting an expedited production of documents, he immediately called the attorneys for the telephone company and Carl Robertson’s estate and invited them to lunch. They met at O’Malley’s, a little Irish pub on Worth Street. Spencer was his usual charming self. He had never met Samuel Mendelsohn, the attorney for the estate, or Gary Hunt, the telephone company’s counsel.

Before his untimely death, Sal Paglia had bragged to Spencer that Benny’s father had paid him twenty-five thousand to represent his son. Sal had even told Spencer how he had talked Luis into refinancing his house to get the money. Spencer had filed the information away, never thinking that it might be useful one day. As he was formulating a plan to thwart Jack’s emergency motion, he realized that day had arrived.

“Gentlemen,” Spencer said to the two attorneys sitting across from him at O’Malley’s. “The district attorney himself wanted to be here today to meet with you, but he was unable to get away. He wants you to know, however, that he considers this case the most important one in the DA’s office right now. You are, of course, aware of all the publicity it has received. Mr. Jacobs and I believe that Mr. Tobin has filed this emergency motion in order to delay the trial. We cannot let him do that, and we need your help.”

Sam Mendelsohn protested immediately. “He’s asked for five years of financial records. Mr. Robertson was a very busy man, even though he was retired. We can’t produce that type of information in a week. The judge will have to delay the trial.”

“Ours isn’t that big a problem,” Gary Hunt offered. “Still, it will be very costly for us to get the information that quickly.”

“I think we need a game plan for Friday’s hearing, gentlemen,” Spencer told them. “And I can tell you the judge is not going to listen to ‘We can’t do it.’ The defendant is on trial for his life. He is entitled to this information, even though it is totally irrelevant and isn’t going to help him one bit. On the other hand, this case has been pending for a year now. The judge does not want to continue it. I suggest that you fellows go back and figure out how much it will cost in manpower hours to comply with this ‘impossible’ request. Then, at the hearing, instead of telling the judge that you cannot comply, you tell him how much it’s going to cost to comply. You see what I mean? You’re giving him an option. I suspect that he’ll make the defendant foot the bill and that the defendant won’t be able to pay the freight. He spent all his money on his last lawyer. So you’ll be getting what you want-you’ll just be doing it in a roundabout way.”

“That’s beautiful,” Mendelsohn said. “This Tobin guy won’t know what hit him. I’ll get the numbers together.”

“I’ll do the same,” Gary Hunt added.

The press was waiting outside the courthouse on the Friday afternoon of the hearing. Henry had decided not to attend, so Jack was alone. As he walked up Centre Street toward the courthouse, a throng of reporters followed, shouting questions as they surged forward. Jack didn’t say anything until he reached the courthouse steps. He knew they were looking for some kind of quote that they could then bounce off the governor and keep the war of words going. Sal had been great for that. Jack, however, was not going to play their game.

“Look,” he told them, “this is a minor hearing to obtain certain records for trial. I don’t expect it to take more than fifteen minutes.” He then refused to say anything more and headed into the courthouse.

Spencer Taylor had already given his interview, telling the reporters that the state had no objection to the request. “The state is just interested in seeking justice as quickly as possible.”

Spencer was waiting for Jack outside the courtroom.

“Mr. Tobin?”

“Yes?”

“I’m Spencer Taylor. I’m the prosecutor in the Avrile case.” Spencer extended his hand and Jack shook it. As he did, he noticed the handsome face, the tailored suit, the perfect hair, and the too-firm grip.

“I recognize your name,” Jack told him. “It’s nice to meet you.”

“I just want you to know beforehand that I don’t have an objection to your request. I’m more or less just an observer here today.”

Yeah, right! Jack said to himself. You just want to help. He smiled at Spencer to let him know he understood.

The Avrile case had been like a dark cloud hanging over Judge Langford Middleton’s head since day one. The Judicial Qualifications Commission was watching to see how he handled it, and so was Warren Jacobs, the district attorney. Now that Jack Tobin had entered the fray, the pressure had become even more intense. For all those reasons, Judge Middleton had decided that every hearing, no matter how trivial, would be in open court. He was also determined to get this case to trial on time and to finally repair his reputation in the process. Along the way, there’d been many sleepless nights and frequent trips to the bathroom. What was it the doctor called it-irritable bowel syndrome?

He had read Jack’s motion and, once again, didn’t know what to do.

Promptly at three o’clock, the judge walked into the courtroom. He waved the lawyers to sit down.

“I’ve read your motion, Mr. Tobin. What do you want this information for?”

“Your honor, the deceased, Carl Robertson, was a very wealthy and powerful man. There is evidence in the police investigation that another person, a woman, may have been involved in this murder. I just want to find out if somebody else had a motive.”

“What do you say, Mr. Taylor?”

“It’s a fishing expedition, Judge, but I can’t argue that it won’t lead to discoverable evidence. I just don’t know.”

“Who are the other people here? Please identify yourselves.”

Sam Mendelsohn stood up. “Samuel Mendelsohn, your honor. I represent Mr. Robertson’s estate.”

Gary Hunt stood up next and introduced himself.

“What’s the estate’s position, Mr. Mendelsohn?”

“Your honor, we don’t object to the production per se. But if we have to produce this material, the earliest we could do so would be a week before trial, and the volume is so enormous it will cost us twenty thousand dollars in manpower hours to compile it. I have cost estimates here from our accountants. Most of the cost will be digging the material out, assembling it, and copying it.”

Jack recognized the tactic immediately. When he was an insurance defense attorney, he had always tried to make frivolous lawsuits too expensive for the plaintiffs’ lawyers to pursue. These clowns were trying to play the same game with him. One look at Spencer Taylor, who was smiling smugly, told him who the ringleader was. Gary Hunt’s figure was five thousand dollars to retrieve the telephone records.

“How do you respond to this, Mr. Tobin?”

“I assumed there would be some cost, your honor. But twenty thousand dollars to produce five years of financials and five thousand for some telephone records is a little ridiculous.”

“Your honor,” Sam Mendelsohn responded, “Mr. Robertson was a very rich man with extensive holdings around the world. It’s all there in that summary I gave you. Nothing is inflated.”

“Did you give this summary to Mr. Tobin?”

“Not before this hearing, Judge. We didn’t have time.”

Judge Middleton liked the argument almost as much as Spencer did. He didn’t have to deny the motion, he just had to require the defendant to pay. Best of all, the trial wouldn’t be delayed.

“I know you’ve come in here late in the game, Mr. Tobin, but this case has been pending for a year. I’m not going to deny your client access to these records, but I believe the cost for expediting their delivery should be borne by him. I’m going to grant your motion, but I’m going to make your client pay the twenty-five thousand dollars requested to expedite production if he still wants the records. And I’m going to make him pay it by the end of business today. The records must be available by a week before trial, gentlemen,” Judge Middleton told the two lawyers for the estate and the telephone company.

Spencer Taylor’s plan seemed to have worked. It had even paid off better than expected. Nobody had thought the judge would require immediate payment.

Jack made one last attempt to get the trial delayed. “Judge, I’ve got to get an expert to look at these documents and I haven’t settled on anyone yet, although I do have somebody in mind.” He was trying not to lie outright. “It’s going to be almost impossible to get someone, have them review the records before trial, notify opposing counsel, and provide counsel with an opportunity to depose that expert in the time frame we have.”

Spencer Taylor had anticipated this argument and was ready for it. “Your honor,” he responded, “the state will waive notice of the expert’s name, and we will also waive any discovery rights.” Spencer was so sure of victory he was eager to erase all Jack’s arguments.

“What about witnesses who might arise from this material?” Jack asked Spencer directly.

“We waive notice of them too, although I doubt there will be any.”

“Anything else, Mr. Tobin?” the judge asked.

“No, your honor.”

“Then my ruling stands.”

Jack gave the three lawyers a moment to cherish their triumph. Spencer was smiling from ear to ear, enjoying the fact that he had outmaneuvered and outflanked Jack at every turn.

Then Jack took it all away by pulling out his personal checkbook.

“Your honor, let the record reflect that I am providing two checks to counsel here in open court in the amount of twenty thousand dollars and five thousand dollars to satisfy the court’s ruling.”

“The record will so reflect,” the judge replied. The other lawyers were momentarily speechless-a rare event in any courtroom.

“Nice move,” Jack told Spencer as they walked out of the courtroom. “I’m looking forward to seeing what else is in that arsenal of yours.”

Spencer Taylor didn’t reply. Jack noticed, however, that a couple of hairs on his perfectly groomed head had fallen out of place.