The Mayor of Lexington Avenue

Seventeen

As soon as H.V. gave Tracey the word that he was ready, she filed her Motion to Suppress and set it for hearing on the judge’s calendar. She made sure she reserved enough time to present all her witnesses. The motion itself was nondescript, reciting only the basic theory that she had already related to Clay. She didn’t want to give him any more notice than she had to, afraid that he might wake up to what was coming. The Fourth should have caught on, however, when she set a simple motion for an all-day evidentiary hearing. Tracey was coming loaded for bear. It was up to Judge Wentwell to determine if she had brought the right ammunition.

The Fourth was desperately trying to stir up some publicity for the case at the early stages. He called a very good friend of his from one of the Miami television stations, but he couldn’t convince her that it was worthwhile to send a news team up for a motion hearing.

“Don’t worry, Clay, I’ll send somebody up for the trial,” Stacey Wilson assured him. “Better yet, I’ll come myself. I haven’t done a field assignment in a while. Do you think you can find a little time for me if I make the trip?”

“You bet, honey, especially if you come for this motion hearing.” Clay wasn’t giving up so easily.

“Clay honey, I can’t do it. Listen, I’ll call a friend of mine at our affiliate in Vero. Since it’s Tracey James, she’ll be interested. I’ll get her to send somebody over. You convince the judge to let her in the courtroom.”

“Will do. Thanks, Stacey. I’ll see you in a couple of months at the trial.” Clay knew there was no way Judge Wentwell was letting cameras into his courtroom. He had commented to Clay on many occasions that he would never let the media turn his courtroom into a circus. Clay wasn’t even going to make the request-might piss the old man off. But there was no need to tell Stacey that. All he wanted was to get a news crew to show up; he’d get the publicity he was after from interviews on the courthouse steps.

It took three weeks to get an all-day hearing set before Judge Wentwell. Tracey used the time to prepare. This motion was going to be a mini-trial. It had been three years since her last trial, a misdemeanor case that lasted half a day. She needed this hearing and she needed to win it, although she wasn’t quite sure why. The uncertainty bothered her. Confusion was not her forte. She always knew what she wanted and she made a plan to get it. Maybe it was Elena and that faded connection to her mother. Maybe it was Rudy himself, or perhaps her desire to be a lawyer for once rather than a businesswoman. She just didn’t know. All she knew was that something else was driving her this time besides the money, and it was driving her hard. She hoped the feeling didn’t last long.

There were no crowds outside the courthouse on the day of the hearing or inside the courtroom either. It wasn’t that nobody cared. The people of the barrio were behind Rudy one hundred percent, but they had to go to work. Kelly McDowell from the local affiliate in Vero Beach was standing on the courthouse steps with her camera crew wondering why in God’s name she had agreed to drive over from Vero for this. Tracey James was the only reason it was even remotely worthwhile. If she could get an interview with Tracey, maybe she could salvage something from the trip.

As for Tracey, Kelly McDowell was the last person she wanted to see. She never liked media attention when she faced the possibility of losing. But she knew she couldn’t duck Kelly so she planned on making the best of it.

Clay reached the courthouse before Tracey arrived. Kelly didn’t have to hunt him down for an interview. He practically grabbed the microphone from her. He was all smiles, tall and elegant in his charcoal gray suit-cocky and confident like a quarterback before the big game. Kelly smiled right along with him.

Not long after Clay went inside, Tracey arrived with Elena. Tracey’s gray suit over a light blue blouse was stunning and the picture of professionalism, but Elena actually outdid her in a conservative but tight-fitting navy blue dress she had purchased only the day before from the local thrift shop.

Despite her concerns, Tracey struck the perfect note when Kelly got to them. “How important is this hearing today?” Kelly asked, trying to lob the softball in a perfect arc so Tracey could smash it.

“It’s very important. We believe Detective Brume violated Rudy’s constitutional rights when he interrogated him. Rudy is a fine young man, but he has a mental incapacity. He’s slow. Not retarded, but slow. He was at a distinct disadvantage in this interrogation, which, by the way, was neither recorded nor videotaped. His mother, Elena, who is here with me had asked to be with her son during the interview to protect him, but her request was denied.” She hadn’t wanted the interview, but she had enough self-awareness to realize it was turning out to be a good one-like a dress rehearsal for how she wanted to present Rudy to the court. When she finished her statement, she didn’t wait for another question but took Elena by the arm and ushered her up the steps and into the courthouse.

Since witnesses were going to be providing sworn testimony and it was going to be more like a bench trial than a hearing, Judge Wentwell decided to hold the proceedings in the courtroom rather than chambers. He had another reason as well. This case was about a murder that had been reported extensively throughout the state. Even though public interest seemed to have waned in the time since the event, the judge felt that any hearing to suppress evidence in a case such as this should be held in open court with all its formalities.

Clay Evans noticed Elena as soon as she walked into the courtroom. She looked exquisite in that blue dress. Maybe I could agree to life imprisonment for a little action. The thought had barely flickered into consciousness before he reminded himself that his career was at stake in this case. Lust would definitely have to take a back seat for the time being. Tracey wasn’t looking too shabby herself, although he sensed the woman had a hard edge to her. Maybe he could impress her with his courtroom skills. God, he was feeling good today.

Once the lawyers were seated, the bailiff let the judge know everything was ready. At the appropriate moment, the judge knocked on the door three times, signaling the bailiff that he was ready. The bailiff then told everyone to rise and the judge entered the courtroom.

Judge Wentwell was a tall man, almost as tall as Clay, and ramrod straight, with a full head of white hair. Elena, who was seated in the spectators’ seats directly behind Tracey, felt for a moment like she was in church and the bishop had just come out to the altar. Rudy was not there. Tracey had told Elena it would be best if he were not in the courtroom. He didn’t need to hear what H.V. was going to say about him and Judge Wentwell didn’t need to see how handsome he was and how bright he appeared to be.

The Cobb County courthouse had only two courtrooms: the small one for county court cases, misdemeanors and arraignments; and the large one, Judge Wentwell’s court, which handled all the major civil trials and felony cases. It was a cavernous old room with rows of oak benches for the spectators, even a balcony. The judge ruled from an elevated mahogany dais. The witness chair was to his right and below him. The jurors’ chairs, which were empty on this day, were to the right of the witness. The lawyers’ tables were front and center where the judge could look down on them without turning a lick.

“Counsel, are we ready to proceed?” Judge Wentwell asked after everybody had been seated. Clay popped up.

“The state is ready, Your Honor,” he said briskly.

Tracey was a little more deliberate. “The defense is ready, Your Honor.”

“Ms. James, since it is your motion, you may proceed.”

“Thank you, Your Honor. The defense calls Detective Wesley Brume to the stand.” The bailiff left to retrieve Wes from the witness room.

Calling Wes was no surprise to Clay. Tracey had to lay the facts of the interview out and Wes was the only person to do it since Rudy would not be testifying. What Clay didn’t know was that Tracey would be playing a little Ping-Pong that morning using Wesley Brume as the ball.

She started politely asking him to tell the judge his name and how long he’d been a police officer and the different positions he had held in the police department. She had no idea the judge already knew Wes quite well. Many years before, Wes had pulled the judge over for speeding, something Judge Wentwell never did.

“Going to a fire or something?” Wes had asked the distinguished jurist as he walked up to the driver’s side window. “Whaddya think, the law doesn’t apply to you? A few days in the slammer will straighten you out. Come on, let’s see your license and registration.” It was the usual banter he delivered to everyone-it made him feel good and made the routine of chasing speeders more enjoyable. The judge handed Wes his license without looking up. People had been coming into his courtroom for years claiming that they hadn’t been speeding and that they had been treated quite rudely by Officer Wesley Brume, exactly what he had just experienced and exactly what Wesley Brume had denied every time. Wes read the name on the license and knew he was in deep shit. He thought about backtracking, pretending he knew it was the judge all along, but the look of guilt on his pudgy face had already betrayed him.

“Hi, Judge, how are you?” was all he could muster.

“Fine, Officer Brume. Finish with your ticket.”

“On second thought, Judge, I think I stopped the wrong car. It was the one in front of you.” There had been no car in front of Judge Wentwell and they both knew it. The old man glared at Wes and drove off.

The next day, the police chief received a hand-delivered letter from the judge detailing the whole incident and demanding that Wesley Brume be stripped of all authority to issue speeding tickets and that all his officers have explained to them the importance of ticketing people who actually were speeding. Needless to say the incident did not go over well with the chief.

The whole affair was also unknown to Clay, who sat supremely confident as he watched Tracey ask Wes one warm and fuzzy question after another. All that was about to change.

“Officer Brume, why did you pick up my client for questioning?”

That was an easy one for Wes. “He was identified by three people as a suspect.”

“Would those three people be Pilar Rodriguez, Ray Castro and Jose Guerrero?”

“Yes.”

“Is it accurate that you did not interview those three people?”

“Yes, that’s accurate. Officer Barbas interviewed them.” Everything seemed to be moving along quite well to Clay. The pace had a nice rhythm to it. Wes was answering the questions quickly and directly.

“I have Officer Barbas’s interview of the two men in my hands here. It says they described a tall man with black hair, is that accurate?”

“Yes.”

“So they didn’t identify my client?” Tracey said, staring intensely at Wes.

“No, but their identification was consistent with what he looked like and Ms. Rodriguez said the man who puked on her lawn looked like the boy who worked at the convenience store. She even said his name, Rudy.”

“But she didn’t see this person who looked like Rudy come from Lucy Ochoa’s trailer?”

“No.”

“And isn’t it true that she could not identify Rudy in a lineup?”

“That’s correct.” It was Clay who was glaring at Wes now. How could you not tell me something like that, you idiot?

Wes needed to redeem himself. “If I could explain.” Tracey knew what was coming. She had tried to use the fact that ultimately nobody identified Rudy without placing those facts in a time sequence. Wes was about to call her on it. “At the time we picked your client up for questioning, Ms. Rodriguez had said the man who puked on her lawn looked like Rudy and he also fit the description the other two men gave us. I believe that gave us enough reasonable suspicion to question him.”

“Did you read him his rights?”

“Of course. I had him sign a document explaining his rights.”

That was important to the judge. “Did you bring that document with you?” he asked.

“Yes, sir.”

“Let’s see it.” Wes showed the original to the judge.

“Is this your client’s signature?” he asked Tracey.

“Yes, Your Honor.”

“Then what are we doing here, Ms. James?”

“I want to show you how it was obtained and why it should be stricken.”

“Then get on with it, Ms. James. Stop wasting our time with these meaningless questions.” It was a definite slap, one Tracey was not used to receiving.

“Before you picked my client up, you talked to his high school principal, Mr. Bill Yates, is that correct?”

“Yes.”

“And Mr. Yates told you that Rudy had an intellectual deficit, that he couldn’t keep up with the other students academically, correct?”

“Yes.”

“They passed him academically to the tenth grade, although they shouldn’t have, but after that he just received an attendance certificate, correct?”

“Pretty much.” That answer wasn’t good enough for Tracey. Too much wiggle room.

“Pretty much? Is there anything in my question you want to qualify?”

“No, it’s correct.”

“You’re sure?”

“Yes.”

“Did Mr. Yates tell you anything else about Rudy?”

“No.”

“You’re sure?”

“Yes.”

“He didn’t tell you that Rudy was very affable, that he’d agree to everything you’d say; that in all fairness you shouldn’t question him without either his mother or a lawyer present-the principal didn’t say those things to you?” Tracey was starting to squeeze. The Grunt resisted, just as she had hoped.

“No. I don’t remember him saying anything like that.”

“You don’t remember him saying anything like that or he didn’t say anything like that: Which is it, Officer Brume?”

“Detective Brume.”

“Okay. Which is it, Detective Brume?” She was getting under his skin already.

“He didn’t say anything like that,” the Grunt replied defiantly. This bitch wasn’t going to push him around. At counsel table, Clay put his left hand on his forehead. He knew what was coming.

“You picked Rudy up at the convenience store where he worked, correct?”

“Yes.”

“Did you speak to his boss?”

“Yes.”

“Was he reluctant to let Rudy go with you?”

“Somewhat.”

Tracey bit his head off again. “What does ‘Somewhat’ mean, Mr. Brume? Does it mean he was reluctant or he was not reluctant?”

“It means he didn’t want me to take Rudy at first but after we talked and I told him the importance of the investigation, he agreed that Rudy should go with me.”

“You mean he agreed after you threatened him with the health department?”

“That’s not true. I would never do that.” Wes didn’t dare look up at the judge. He had used those exact words before in a speeding hearing.

“Did Mr. Dragone want to call Rudy’s mother to let her know what was happening?”

“I don’t recall that.”

“Did you discourage him from doing that?”

“I don’t recall that.” Wes had hit on a new answer. He remembered a former president had used it very effectively.

Tracey kept the pace moving, mindful that the judge might wonder where all this was going. She picked up the police report from her desk, held it in her hand.

“So you took Rudy to the police department?”

“Yes.”

“And you began questioning him, correct?”

“Yes.”

“And according to your report, you began questioning him at 3:18 p.m., correct?” She showed him the report. Wes glanced at it.

“Yes, that’s correct.”

“And isn’t it true, Officer Brume, that before you started your interrogation of Rudy, his mother arrived at the station and demanded to see her son and that you not question her son without her being present?” The Fourth jumped to his feet. It was his first opportunity to stop Tracey’s rhythm.

“Objection, Your Honor. Compound question.” It was a valid objection but meaningless under the circumstances. There was no jury and Judge Wentwell certainly knew it was a compound question.

“Overruled. Proceed, Ms. James.”

“Do you need me to repeat the question, Officer Brume?” Tracey asked.

“Detective Brume. No, I recall the question. To my knowledge the mother didn’t arrive at the station until I was almost finished with the interview.”

“When she did arrive, did she request that you stop the interview?”

“Yes.”

“But you didn’t?”

“No.”

“Why?”

“He’d agreed to talk to me. He’s an adult and she’s not a lawyer.”

“Did you tell him his mother was outside and she wanted to see him before he answered any more questions?”

“No.”

“Is that because you knew that he wouldn’t talk to you anymore if he knew his mother was outside?”

“No. I was almost finished anyway. At that point it wouldn’t have made a difference.”

“You hadn’t taken his blood yet, had you?”

“No.”

Tracey changed subjects again. “Where did this interrogation take place?”

“In the interrogation room at the police department.”

“I’ve heard about that room. It’s equipped with a television camera, is that correct?”

“Yes.”

“And you have audio recording equipment in there as well, correct?”

“Yes.”

“But you didn’t use either?”

“No, I didn’t.”

“Was there a reason why you didn’t, Officer Brume?” The Fourth was on his feet again.

“Objection, Your Honor. She’s harassing the witness. He’s already told her several times that he’s a detective.” Unfortunately for Clay, Judge Wentwell was enjoying the harassment.

“He may be a detective, Mr. Clay, but he’s also a sworn police officer. I don’t see how addressing a police officer as ‘Officer’ can constitute harassment. Objection overruled. You may proceed, Ms. James.”

“Thank you, Your Honor. Do you need me to repeat the question, Officer Brume?” Tracey asked politely as she turned her focus back to the fat little cop.

“No. There was no reason in particular. We rarely use the video camera. And I didn’t have a tape available.”

“What would you have had to do to use the camera, just get a videotape?”

“Pretty much.”

“Is that a ‘yes,’ Officer Brume?”

“Yes.”

“Where was the videotape?”

“In the equipment room.” He was being evasive but Tracey didn’t mind. His evasiveness would have been obvious to a two-year-old.

“And where is the equipment room?”

“Down the hall.”

“And the recording equipment, would you have found a tape for that in the equipment room as well?”

“Yes.”

“Can you be more specific, Officer Brume? How long would it have taken you to walk down the hall, fetch the video or recording equipment, or both, and install them before beginning your interview?”

“Three to five minutes,” the Grunt replied nonchalantly. It was that cavalier attitude that made Clay Evans want to strangle him. Does this idiot have any idea where she’s taking him?

“Is it accurate that this recording equipment was in the interrogation room to be used for interrogations?”

“Of course.” What a stupid question, Wes thought.

“Is it accurate that when you brought my client in for questioning he was already a suspect in this murder?”

“Yes.”

“And he was your only suspect at the time?”

“Yes.”

“And is it accurate, Detective Brume, that in your twenty-plus years as a police officer in this department this is the most heinous crime you have ever investigated?” She had deliberately called him Detective. She was starting to give him the respect he deserved, or so it seemed.

“No question about that,” he responded. Tracey had him cornered. It was time to drop the bomb.

“So you bought this hi-tech equipment for the specific purpose of interrogation, you’re investigating the most heinous crime ever, and you make a conscious decision not to video or even audio record it, correct?”

“No, that’s not correct,” Wes replied, realizing too late the crater that he was sitting in. Tracey was not about to let him squirm his way out by asking him to explain his answer. She switched gears.

“Did you have Rudy make a written statement?”

“No, but I had him read my notes and sign them.”

“Did you tell him to sign them?”

“Yes, of course.”

“Was he allowed to make changes?”

“I don’t understand.”

“It’s very simple, Officer Brume, did you let him edit your notes?”

“Of course not.”

“You just had him sign them.”

“Yes.”

“No further questions, Your Honor.” The abrupt termination of the examination surprised the Fourth. He had expected Tracey to grill the Grunt on the questions and answers he’d written down, but Tracey was only interested in the procedure, not the substance.

Now it was Clay’s turn. His immediate task was to cauterize Wes’s wounds to prevent further bleeding. Wes hadn’t really suffered a direct hit but he was bleeding profusely from several minor wounds. The Fourth could choose either to cut his losses and get the poor man off the stand, something that required great restraint, or to ask more questions and open the Grunt up for even heavier artillery. He chose the latter course, rising slowly and calculating his questions as he walked to the podium. He had to rehabilitate the fat little toad.

“Detective Brume, in your twenty-plus years with the police department has your credibility ever been questioned?” Tracey was on her feet in a heartbeat.

“Objection, Your Honor. The character of Officer Brume is not an issue in this case, although his credibility in this particular case is.” It was classic litigator-speak, something the public probably wouldn’t understand. But Tracey didn’t care about the small group of regular folks observing the proceedings from the gallery. The only person in the room who mattered to her at that moment was Judge Wentwell, and he was sure to get it.

“This court is in recess for the next twenty minutes. I want to see the lawyers in my chambers with the court reporter.” The judge stood and left the courtroom. Clay and Tracey followed him to his chambers. When everyone was seated and the court reporter was set up, the judge began.

“I did not believe it was necessary to disclose this information at the beginning of this hearing, but the testimony has brought me to a place where I must disclose some pertinent information to you that I’m certain you’re not aware of.” Tracey and Clay looked at each other quizzically then turned back to the judge, who proceeded to tell them about the little “speeding” incident he’d had with Wes.

“I agree with Ms. James,” the judge went on, “that Officer Brume’s credibility is at issue here, not his character. However, Mr. Evans, since I will be deciding what evidence the jury hears, it is my duty to disclose to you that my opinion is somewhat tainted regarding Officer Brume’s credibility and character. I do not believe that will affect my decision on the legal issues in this hearing or at trial. However, if you wish, I will step down from this case.”

Clay was almost shaking by the time Judge Wentwell finished. He wanted to take a bazooka back into the courtroom and blow Wesley Brume to kingdom come. How could he do this to me? How could he not tell me about his encounter with the judge? But that was old news. Now Clay had to make a very important decision, a decision that would definitely affect the outcome of this case.

Seated next to him, Tracey was trying desperately not to smile. Things had definitely just taken a sharp turn for the better. And her best witnesses were yet to come. On the other hand, Clay had no choice but to ask the judge to recuse himself, and she wasn’t so sure she wanted to lose Judge Wentwell.

Seconds passed. The judge waited patiently while Clay thought it through. Judge Wentwell was a law-and-order guy. He would follow the law strictly. He wasn’t about to buy into a new theory of evidence even if he didn’t believe one word that came out of the fat little toad’s mouth. And a new judge might not be so conservative in his or her thinking.

“Judge, I believe this court will be able to separate any personal views in deciding issues of law. I will not ask you to recuse yourself.” Tracey was nonplussed. The judge turned to her.

“Ms. James, do you have anything to say?”

“No, Your Honor. I believe your full disclosure has said it all. Like the prosecutor, I do not believe your personal experience with Officer Brume will affect your decisions in this case.”

I’ll bet you don’t! the Fourth said to himself, hoping he had made the right decision.

Minutes later they were back in the courtroom, Clay standing at the podium.

Judge Wentwell spoke first.

“Mr. Evans, you may proceed.”

“No further questions, Your Honor.” Since the judge knew the Grunt was a big fat liar, there was no point in trying to rehabilitate him. Wes stepped down, not sure where things stood but pretty sure from the look on Clay’s face that he was annoyed about something.

“Call your next witness, Ms. James.”

Tracey had set up the state’s case with the Grunt’s testimony. Now she was going to rip it to shreds.

She started by calling Rudy’s high school principal, Bill Yates, to the stand. After he introduced himself and explained that he’d been Rudy’s principal for all four years, Tracey got right to it.

“Mr. Yates, did Detective Wesley Brume visit you a couple of months ago?”

“Yes.”

“And could you tell the court the reason for the visit?”

“He wanted to find out about Rudy, how he had been as a student.”

“And what did you tell him?”

“I told him that Rudy was a very nice, motivated young man but that he was a little slow. I think his IQ was somewhere around eighty or a little below. We’re a small school. We don’t have special programs for children like that so we did the best we could. After two years we put Rudy in a vocational program. He never received a high school diploma, just an attendance certificate.”

“Did Detective Brume tell you why he was inquiring about Rudy?”

“Yes. He said Rudy might be a suspect in the murder of the young woman in the barrio.”

“And what was your response to that?”

“I told him he must be mistaken. I knew Rudy very well and I did not believe he was capable of anything like that.”

“Did Detective Brume tell you that he was going to bring Rudy in for questioning?”

“Yes.”

“How did you respond to that?”

“I suggested that if he did anything like that he should contact Rudy’s mother or at least make sure he had a lawyer. I told him that Rudy was a very affable person and very naive. He would not know how to protect himself. He would respond to every question the officer asked even if it was not in his best interests to do so.”

“Is there a reason why you told the detective that?”

“Yes. I figured that he wanted to conduct a fair investigation and I thought it was something he needed to know.”

“Thank you, Mr. Yates. I have no further questions.”

Judge Wentwell looked at Clay. “Cross-examination, Mr. Evans?”

“Yes, Your Honor.” Clay was certain this was a witness he could score some points with. He stood up but stayed at the counsel table.

“Mr. Yates, could Rudy read and write?”

“Yes.”

Clay approached the bench and retrieved the consent form Rudy had signed. He handed the document to the principal.

“And in your opinion could he have read this document and understood it?” Principal Yates put his glasses on and read the document.

“Yes, I believe he could.”

“And, even though he was a very affable person, if Detective Brume had presented this document to him before he began his questioning and Rudy had read this document, in your opinion he would have understood that he had the right not to speak to Detective Brume?”

Bill Yates hesitated for a moment. He could see that Clay Evans had backed him into a corner. He didn’t want to hurt Rudy but he had to answer the question honestly.

“Yes. I believe that he would have understood that he had the right to refuse to speak to Officer Brume but — ” Clay cut him off before he could go any further.

“Thank you, Mr. Yates. I believe you have answered my question. One other thing: Does Rudy in your opinion know the difference between right and wrong?”

“Yes, I believe he does.”

“Thank you. No further questions, Your Honor.”

Tracey had no re-direct. Clay had scored his points but she wasn’t arguing that Rudy did not have the capacity to understand what he was signing.

“Call your next witness, Ms. James.”

Tracey followed Bill Yates with Benny Dragone.

“Detective Brume wanted to take Rudy off the job and over to the station for questioning,” he told Tracey in response to a question. “I told him that I wouldn’t let him speak to Rudy until I talked with his mother.”

“Why did you tell him that?”

“I knew he was looking at Rudy as a suspect in that girl’s murder and I didn’t trust him. I knew Rudy just couldn’t handle himself with a snake like that.”

“Objection.” Clay tried to sound outraged but his opinion of Wes actually coincided with Benny’s.

“Sustained,” Judge Wentwell replied, not waiting for argument. He looked down at Benny. “Mr. Dragone, stick to the facts. We don’t need the derogatory comments.”

“Yes, Your Honor. Sorry.”

But Tracey wasn’t letting it go just yet. “The person you referred to as a snake, Mr. Dragone, who was that?”

“Objection.”

“Overruled. The record needs to be clarified. You may continue with this one question, Ms. James.”

“Thank you, Your Honor. Do you need me to repeat the question, Mr. Dragone?”

“No. The snake I was referring to was Wesley Brume.”

“Thank you, Mr. Dragone. Now, what was Detective Brume’s response when you told him you wouldn’t let him speak to Rudy until you called Rudy’s mother?”

“He threatened me.”

“He threatened you? How did he do that?” Tracey did her best to sound surprised, as if she didn’t know what was coming next.

“He told me he’d get the health department over to my store for an inspection. I knew what he meant.”

Tracey decided to end her questioning there. Leave it up in the air a little. See if Clay had the guts to jump in. “No further questions, Your Honor.”

“Your witness, Mr. Evans.”

“Thank you, Your Honor. Mr. Dragone, to your knowledge did Detective Brume need to ask you for permission to take Rudy in for questioning?”

“No, of course not.”

“So he could have just come into the store, asked Rudy to come with him and left without even saying hello?”

“I guess so.”

“But he was polite enough to talk to you and explain to you what he was about to do?”

“I wouldn’t exactly call it being polite.”

“Whatever, he did explain to you what he was about to do?” The Fourth snapped the question out.

“Yeah, I guess so,” Benny replied, almost reluctantly. It was that noncommittal answer that angered Clay, causing him to go a little too far.

“And you also ‘guessed’ that because Officer Brume mentioned the health department after looking around at your premises that he was somehow making a threat?”

“No, that wasn’t a guess. That was a fact.” Clay had pressed Benny’s button. “I come from Chicago. I know a threat when I hear one. Any fool knows when a cop tells you he wants somethin’ and you refuse, and then he says he’s gonna call the health department-that’s a threat.”

“In your opinion?” It was all Clay could come back with although he bathed the question in sarcasm.

“Yeah,” Benny replied. “In my opinion and a thousand other people if they were asked the same question.” Clay had no place else to go so he just stood there looking at Benny with disdain, hoping he could convince the judge that Benny was an uncooperative piece of shit who insulted lawyers.

“I have no further questions of this witness, Your Honor.”

Tracey called her next witness, another surprise for the Fourth, who was starting to feel like a punch-drunk fighter.

“The defense calls Maria Lopez.” The name did not ring a bell with the Fourth.

“I’m the receptionist at the police department,” Maria told Tracey. She went on to tell the judge that Elena had arrived at the police station at 3:16 p.m. on January 24th. She knew the exact time because Elena had asked her to write it down.

“What happened when Elena-Ms. Kelly-arrived at the station?”

“Nothing. I was told to have her sit and wait.”

“For how long?”

“Maybe twenty minutes. Then Detective Shorter came out to talk to her.”

“Did he come out on his own or did you have to call him?”

“I had to call him. Ms. Kelly insisted that I call again to let them know she was there.”

“Was she allowed to see her son after that?”

“No.”

“No further questions.”

Clay had no cross.

Tracey kept the pressure on, following Maria Lopez with Elena, who repeated Maria Lopez’s testimony almost verbatim, adding only the substance of her conversation with Del Shorter.

“He told me that my son could be a very valuable witness to them since he worked at the convenience store. I almost believed him but when he continued to talk and finally admitted that he wasn’t going to let me see my son, I knew it had been a stall all along. Detective Shorter flat out lied to me about what was going on.”

Clay couldn’t let that last statement stand. “I move to strike the last sentence, Your Honor. It is opinion testimony.”

“I believe a witness can give an opinion about whether she believes somebody is lying to her or not,” Tracey said.

“I’ll allow it,” the judge ruled. “Motion denied. Any further questions, Ms. James?”

“No, Your Honor.”

“Cross-examination, Mr. Evans?”

Clay wanted to take a shot at Elena, wanted to establish through Rudy’s own mother that he had the capacity to read and write and make decisions. But he already had that testimony from the principal, and it was always dangerous to keep a sympathetic witness on the stand.

“No questions, Your Honor.”

The stage was now set for Harold Victor Fischer. He strode confidently into the courtroom dressed in a dark blue suit, white shirt, red tie-his power outfit. Actually, H.V. didn’t fit the mold very well. He was tall enough but slumped over like a sack of potatoes, soft in the middle and around the shoulders-more like the Marshmallow Man than Superman.

Tracey started building him up right away, having him recite his credentials: Cornell, Penn medical school, and so on. When she was finished, she simply turned H.V. loose. It was on the stand, lending his expertise to the process, that H.V. transformed into a formidable figure.

“Doctor, have you had occasion to visit Rudy?”

“Yes, I met with him for approximately two and a half hours.”

“And have you formed any opinions in this case?”

“Yes.” And off he went. “I not only met with Rudy, I performed a battery of tests including the Wechsler Aptitude Test. I have reviewed his entire medical chart and his school records.

“Rudy’s IQ is seventy-five, which means he is not retarded but is what we call borderline. He has many characteristics of the retarded, including his affect. What do I mean by affect?” Posing his own questions was classic H.V. “I mean that Rudy always had a smile on his face, always greeted-no, greets, even in his present circumstances-the world with open arms. He’s a happy person, very gullible, very naive.

“There have been case studies about retarded children and their inability to make the right decision under similar circumstances-mostly teenagers exposed to the general population of other teenagers. I remember one case in particular. A group of teenagers in Ohio had convinced a retarded student in their class that they were his friends. They took him out to a high bridge and convinced him to jump into the river below. They assured him they were all going to follow. The jump didn’t kill him. He drowned because he couldn’t swim, a fact he hadn’t thought to tell his newfound friends.

“I mention this case study in particular because it is an appropriate analogy. Young Rudy told me during our interview that he liked Detective Brume, that he thought Detective Brume was his friend. A normal person in his circumstances would definitely not share those sentiments. When you befriend an individual like Rudy, he does not have the capacity to refuse to do what you ask. He could not refuse to talk to Detective Brume once Detective Brume became his friend. I think Detective Brume knew this instinctively. From my conversation with Rudy, it became clear that Detective Brume tried to establish a friendship before ever discussing the murder.

“Under those circumstances, Rudy could not refuse to answer his questions.”

H.V. was a veteran of the game. He knew the more he said, the more ammunition he gave to opposing counsel on cross. When he had completed his expert opinion on the issue, H.V. simply shut up and waited for the onslaught.

It never came. Clay Evans had no desire to engage in a game of wits with Harold Victor Fischer-one he’d probably lose anyway. He fell back on drilling home a few fundamentals for the judge’s benefit.

“Doctor, can Rudy read and write?”

“Yes.”

“Can he distinguish right from wrong?”

“Yes.”

Clay retrieved the written confession from the clerk who was now holding the evidence. He handed it to H.V.

“Could he read and understand this document?” H.V. glanced at the confession. He had seen a copy of it in the documents Tracey had sent him.

“Read it, yes. Understand it, yes. But you’re not getting my point — ” Clay cut him off in mid-sentence.

“You’ve answered my question, Doctor. Thank you.”

Tracey couldn’t let it end there. She accepted a redirect.

“What is the point that Mr. Evans is not getting, Doctor?”

“The point is that reading and understanding are not the only questions you have to ask when you consider the issue of ‘consent’ with a person like Rudy.” This was a statement Tracey hadn’t heard from H.V. during their two-hour preparatory meeting the day before. It was new even to H.V., who had just arrived at the thought on the stand. Up to now, Tracey and H.V. had conceded that Rudy had the capacity to understand and consent, but they had planned to contend that his affable nature wouldn’t allow him to refuse to talk to someone he considered a friend. Now H.V. was about to change the issue to one of capacity itself, and Tracey could see that this would turn out to be a much better argument for the defendant. Apparently Clay Evans could bring a person to new heights even on cross-examination, she thought, trying to conceal a smile.

H.V. continued. “With a retarded person or a borderline retarded person, you must also consider the circumstances under which the confession was made. If a relationship of trust was established between the questioner and the defendant, then in my opinion the defendant would not have the capacity to refuse to speak. Therefore, he would not have the capacity to consent.”

H.V.’s intellect was in free flow now. He was having a breakthrough right on the stand. Not only was he testifying for money, he was testifying for truth. He truly believed what he was saying and he truly believed he was about to save Rudy’s life. He turned toward the judge and started speaking directly to him.

“Your Honor, if I may be permitted to make an analogy. It’s similar to a will contest where the issue is undue influence. The question is not necessarily whether the elderly person has the ability to make decisions regarding his or her property, it is whether that person has a diminished capacity because of his or her age and that fact, combined with the beneficiary being in a position of trust, a fiduciary capacity, has robbed the person of the ability to make a voluntary decision concerning his or her property.” It was a highly intellectual legal argument made very simple. Tracey was blown away. It was a perfect analogy and she had never thought of it. What was the logical argument to counter it?

One thing was for certain: The logical counterargument was not floating around in Clay Evans’s brain. He was having a hard enough time just trying to figure out what H.V. was talking about. But Judge Wentwell was going to give him a chance to dive in if he wanted to take it.

“Mr. Evans, since this issue of lack of capacity was more or less raised on redirect, I’m going to give you an opportunity to recross.” Don’t take it! Don’t take it! somebody was screaming in Clay’s brain. But Clay had been making terrible decisions his whole life-he wasn’t about to stop now. He decided to counter intelligent discussion with sarcasm and derision.

“Is this a will contest, Doctor?”

“Of course not.”

“Is Rudy an elderly person?”

“No.” It was ugly, almost stupid, but like a blind man walking in a minefield, the Fourth finally stepped on something that made a little noise.

“Is there something here I’m missing? How long did this kid Rudy know Detective Brume?”

“I don’t think they knew each other before the interview.”

“And how long did the interview last?”

“Thirty-eight minutes, according to the reports I’ve seen.”

“And in that thirty-eight minutes, you’re saying they developed a fiduciary relationship?”

“In a way, yes.”

“What does that mean, ‘In a way, yes’?” It was an open-ended question, and H.V. didn’t miss the invitation.

“It means that the detective, who clearly had the superior intellect, established a position of trust with Rudy in that interview room. He pretended to be Rudy’s friend. Rudy still believes Detective Brume is his friend. He still believes the detective is trying to help him.”

“Are you saying that Detective Brume lied to Rudy?” The Fourth asked the question with such surprise in his voice Tracey almost started to laugh out loud. H.V. was possibly the only witness who had not attested to the Grunt’s lies.

“Not at all,” H.V. responded. “He just used the situation to his advantage.” Clay took the answer as a concession. He was done but he took a moment to stare at H.V. as he had done with Benny Dragone.

“I have no further questions of this witness,” he finally told the judge, acting as if he had beaten H.V. to within an inch of his life.

“I have nothing further,” Tracey told the judge when Clay sat down. The judge looked at the courtroom clock. It was ten after two. Everybody was hungry and tired.

“Mr. Evans, do you plan on having any rebuttal?” Clay thought about it only for a second. Who would I call? The Grunt again? Del Shorter?

“No, Your Honor.”

“Why don’t we take a lunch break? Come back at three. When you return, I want to see the lawyers and the court reporter in my chambers. Ms. James, the boy’s mother can come if she wants. Court is adjourned until 3 p.m.” The judge stood and walked out of the courtroom.

Tracey and Elena ate lunch at one of the two little restaurants across the street that specialized in quick sandwiches for the courthouse crowd. Elena was very nervous and had questions she was dying to ask, but she waited patiently until Tracey had given the waitress her order and had her first sip of coffee.

“I thought you were magnificent today.”

“Thank you, Elena.”

“Dr. Fischer was great too. I think he had the whole situation pegged.”

“He did. And his analogy was unique. I’ll have to do the research but I don’t think anyone’s ever made that argument before.”

“Do you think the judge will accept it?” Elena asked.

“I don’t know.”

“Why did the judge say he wanted to see us in chambers?” Tracey did have an idea about that and it wasn’t good. She decided against speculating and upsetting Elena unnecessarily.

“I don’t know, Elena. We’ll just have to see.” The waitress arrived with their sandwiches at that moment. They ate in silence.

Judge Wentwell still had his robes on when he entered the hearing room, which was surprising to both Clay and Tracey. Usually chambers meetings were more informal. Perhaps he wanted to maintain the formality because Elena was present. Perhaps he had other reasons.

The hearing room was a rectangular room adjacent to the judge’s private office, with a long table that extended from the front of a desk. It was similar to a hundred other hearing rooms that Tracey had been in during her career. The judge sat behind the desk, the lawyers on each side of the table. Elena sat next to Tracey. The court reporter had her own chair slightly to the right of the judge but in front of him. She was dutifully watching Judge Wentwell’s lips, waiting for him to begin.

“I’ve asked you to come to my chambers this afternoon because I am prepared to rule.” He looked at the two lawyers. “I know that you both have prepared closing statements to assist me in my deliberations but I don’t need them. I’ve heard the evidence.” The judge paused for a moment to gather his thoughts. Elena was so nervous she was digging a hole in the seat with her nails.

“I’m ruling in chambers because I want most of this record sealed.” That statement confirmed Tracey’s speculation. “I’m going to make factual findings for the purposes of this hearing and any appeal that ensues. If this case proceeds to trial, the jury will not be bound by my findings. They will not even know of them. However, I am ruling that the jury may hear the same evidence as I have heard.

“I find that Principal Yates, Mr. Dragone, and Ms. Lopez were all credible witnesses. They had absolutely no incentive to mislead this court. On the other hand, I find that Officer Brume had a total lack of credibility. Specifically, I find that Principal Yates advised Officer Brume to make sure that Rudy had either a lawyer or his mother with him when he was questioned for the boy’s own protection. I find that Mr. Dragone was threatened by Officer Brume.” The judge glared at Clay Evans. “I also can recognize a threat when I hear one.” He paused to let that sink in before continuing. “I find that Rudy’s mother, Elena, arrived at the police station before questioning began. I have no doubt, based on what I have heard, that Detective Shorter lied to her about why they were questioning Rudy.

“Most troubling for this court was Detective Brume’s own admission that he chose not to use the readily available video or audio equipment, which were purchased by the department for this very purpose. If he had done so, I could have either watched or listened to the actual questions and answers. This is especially troubling because of the total lack of candor displayed by Officer Brume in his testimony here today.

“Having made the above findings, however, I still cannot suppress the confession. The only issue in a suppression hearing is whether the defendant was advised of his rights, which include his right to counsel, and voluntarily waived them. It is clear that Rudy was advised of his rights in writing, understood them, and waived them. His mother is not a lawyer. She did not have the right to be present during questioning. The way she was treated, however, is relevant to assess the credibility and intent of the police officers involved. The testimony of Dr. Fischer intrigues me and I am not ruling on the issue of Rudy’s competency to consent to be interviewed by Officer Brume at this time. I think both sides need to do comprehensive briefs on that issue and present them before trial to your new judge.”

Both lawyers looked at him somewhat surprised. The judge returned their questioning stares.

“Yes, I’m going to recuse myself on my own motion. I will not be able to sit as a fair and impartial arbiter in this case. My own experience with Detective Brume prevents that. Another judge, probably a retired judge, will be appointed to take over the trial. I don’t think there will be any appreciable delay.

“Once again, the only evidence of this hearing will be a written order denying the Motion to Suppress. You are all bound to silence about my factual findings. I will not tolerate a discussion of these findings in the press.” He glared at the two lawyers, who nodded their assent. “I am ruling, however, that all the evidence presented today, including the testimony of Dr. Fischer, may be presented to the jury at trial. It is my belief that twelve reasonable men and women could find that the substance of the confession as transcribed by Officer Brume, based on all these facts and circumstances, is untrue. This hearing is adjourned.”

It was unlike Judge Wentwell not to solicit questions or clarifications after a ruling, but the old man had had it. He was too disgusted by the Grunt’s testimony. He looked at Elena for a brief moment before he stood up and left the room. The look was different from the lustful glances she’d been getting all day from the Fourth. It was a look of compassion, as if to say, This is all I can do. It’s out of my hands now.

Elena learned at a young age to hide her emotions from the outside world. Where she came from, the vultures could smell vulnerability. But as she walked out of the courthouse that day, she was visibly shaking. Tracey put her arm around her and pulled her close, something she had never done with a client before. That corset of business at all costs that she wore so tightly was starting to loosen.

“Elena, I know you’re disappointed but this is good news really. We still have a chance if we can convince the new judge to listen to Dr. Fischer’s opinion. And even if we go to trial, we have all this evidence.” Her arguments were falling on deaf ears. Elena had always believed in America, the Constitution, and the jury system. She even believed in the death penalty because if a jury convicted you beyond a reasonable doubt, you had to be guilty. Now for the first time, as if in a vision, she saw how illusory it all was. None of the people from the barrio were going to make it on the jury. They weren’t registered voters. Rudy was going to be judged by people who knew nothing about who he was or how he lived. They were going to hear that he was in Lucy’s house, that his blood was found there, that he puked outside-and that was going to be it for them. This other stuff about Detective Brume’s credibility and Rudy’s rights wasn’t going to mean a damn thing.

“I believe we can win this case even with the confession,” Tracey continued, still trying to sound convincing. “Look, I’m going to stay in town overnight. Let’s meet first thing tomorrow morning and discuss where we go from here, okay?”

Elena just nodded. She knew what tomorrow’s discussion was going to be about. Tracey was part of her vision now.