The Wrong Man

22

Judge Bertrand Nash peered over his glasses at me as I sat in the first row of the courtroom. Even before they called my case, he had singled me out for disapproval.

“State versus Thomas Stoller,” the clerk belted out.

The prosecutor, Wendy Kotowski, wore an indignant expression as well, as she joined me at the lectern. She was playing to the judge. She knew what made him tick.

“Mr. Kolarich,” the judge boomed before I’d opened my mouth. “There are two motions before the court today, each of which seeks to excuse you from the normal preparation that I demand of every lawyer who appears before me. Now, you’ve appeared before me on several matters, mostly in your previous role as a prosecutor. Have you not?”

“I have, Judge.”

“And what is the typical batting average of people who think that the thirty-day discovery cutoff doesn’t apply to them?”

“Not one that would get them into the major leagues.” I happened to know that he was a particular aficionado of the national pastime.

“Or the minors,” he said.

“Your Honor-”

“Mr. Kolarich, did I not specifically warn you that if you were going to be a late entry into this matter, you couldn’t use the excuse of lack of time to prepare?”

Words to that effect, I guess. No need to quibble. “Judge-”

“Counsel, if your predecessor, Mr. Childress, had made this motion, I’d have said to him that this witness, this… Robert Hilton, he’s been discharged from the military for two months. That’s two months where Mr. Childress knew about him and could have tried to contact him to determine whether he had any relevant information.” The judge leaned forward. “Are you about to tell me that you should get special consideration because you came into this case late?”

“No,” I said. The best way to get your chance with this judge is to say as little as possible until he’s done with his ranting. It is essentially the same approach, I’m told, used by parents to deal with their toddlers. He was going to have to let me make my record, so better if I let him resolve his anger first.

The judge waved a hand. “It’s your motion, Mr. Kolarich.”

“Judge, there was an initial round of witness interviews and a follow-up by my office, with my investigator. As soon as we located Sergeant Hilton, we contacted him. As soon as we talked to him, we disclosed him to the other side. Less than twenty-four hours. At that time, we were twenty-six days out from trial. Four days late. If Your Honor were inclined to balance the equities, balance those four days against the fact that Mr. Hilton’s testimony is absolutely crucial to the defense. This is our whole case.”

The judge adjusted his glasses. “And-”

“My client won’t talk to me, Judge. He’s borderline catatonic. You’ve declared him fit for trial and I can’t do anything about that. But he’s suffering from disorganized schizophrenia and I can’t get him out of his shell. Sergeant Hilton has opened a very important window into what happened in Iraq, and it speaks directly-and I mean directly-to our defense. If the jury doesn’t hear this testimony, Tom Stoller doesn’t get a fair trial. Now, I know your rules are important, but I’ve never known you to exalt them over a defendant’s right to a fair trial.”

I’d counted about two dozen people in the courtroom before I stepped up. With Judge Nash, that’s usually a bad thing, because he likes to skewer lawyers in front of an audience. But I was laying it on pretty thick now-truth be told, I have seen Judge Nash exalt his rules over the Seventh Amendment-in the hope that he’d be shamed into showing me some leniency.

“The People object,” said Wendy Kotowski, when asked. “The defense had ample opportunity to disclose this witness, even while he was still in the military. They’ve known about him for almost a year. They may not have spoken with him, but they could have told us about him. They didn’t. They’ve waited until after the discovery cutoff in the clear hope of trying to gain an advantage.”

“That’s ridiculous,” I protested, jumping in without invitation, usually a no-no for this judge. “Your Honor, I could have just littered my witness list with everyone Tom Stoller ever served with in the military. I would have been within my rights. And if I did that, the prosecution would be here complaining that I abused the disclosure process. But I didn’t do that. And now the prosecution is saying that I should have named Sergeant Hilton as a witness even at a point when I had no idea if he was remotely relevant to the case.”

“Your Honor?” Wendy said, doing it the right way, asking permission. He gave her the floor. “Your Honor, the bottom line is that your rule protects both sides from gamesmanship, and it should do so now. We both have to live with this rule. And I would note that Mr. Kolarich has coupled this motion with a request for a continuance in the hope that you’ll split the baby, so to speak.”

She was right. That’s exactly what I was doing.

The judge nodded. “I did notice that, Mr. Kolarich. You make a request you know I’m likely to deny and couple it with a lesser request. ‘Splitting the baby,’ as Ms. Kotowski said. You think I’m going to split the baby, Mr. Kolarich? Do you think I’m King Solomon?”

Don’t ask me why I do the things I do. Call it a gut reaction, I guess, an instinctive read of the situation.

“No,” I said, “but I heard you taught him everything he knew.”

There’s that old saying that you could have heard a pin drop. I would say that for one beat of a moment in Courtroom 1741 on Wednesday, November 10, at 9:22 A.M., you could have heard the blood circulating through an ant’s scrotum.

And then the old man reared his head back and burst into laughter. My theory is that a guy accustomed to everybody sucking up to him enjoys catching a little shit once in a while.

The rest of the courtroom followed suit like lemmings. Everybody thought I was funny. But he still hadn’t decided my motion.

After a time, the judge removed his glasses, wiped at his eyes, and calmed down. “Why do you want a continuance, Mr. Kolarich?”

I paused a beat. I had to be careful here. I was unlikely to win this motion. The odds of Judge Nash moving this trial were slim. And if we were going to a jury in three weeks, I didn’t want to show my hand to the prosecution. I wanted to maintain the element of surprise.

No, I decided. It wasn’t worth the risk. I’d have to stick with the same bullshit I put in my written motion. “Judge, the information from Sergeant Hilton has opened up a new line of evidence for us. We’d like to pursue it. Now that we know the event that my client was reliving, we want to interview the servicemen and servicewomen with whom he worked for evidence of the effect it had on him. The prosecution is contesting the presence of a mental defect, and how he responded to this event in Iraq is part of the factual underpinning my expert needs.”

The judge looked down over his glasses at me. He glanced at the prosecutor but didn’t ask for a response. “The court finds that the defense exercised reasonable diligence in securing the information from Mr. Hilton and in disclosing his testimony to the prosecution. The court will deem the defense’s disclosure of Mr. Hilton to be appropriate. But you’re not getting your continuance, Mr. Kolarich.” He nodded presumptively. “See you in three weeks.”