The Wrong Man

5

Judge Bertrand Nash is one of these larger-than-life legal figures in this city who seems like he’s been on the bench since the dawn of mankind. Word is that he once served as the county attorney-the top local prosecutor-but I’m not sure anybody is alive today to actually attest to that fact. If you looked up the definition of “judge” in the dictionary, you’d expect to see his picture: the broad, weathered face; the thick mane of silver hair; he even has a baritone voice belying his age.

He is imperialistic and stubborn and gregarious. He spares absolutely no one his wrath, which may come in the form of a stinging rebuke or withering sarcasm, always to the acclaim of the spectators in the courtroom, most of them lawyers well trained in the art of laughing uproariously at every tidbit of humor offered by the man in the robe.

He treats his courtroom like a treasured jewel. He tolerates no informality, no breach of etiquette circa 1890 or whenever he cut his teeth as a practitioner in the courts. You don’t approach the witness without permission. You don’t dare utter a sound after an objection is made until he’s addressed it. You don’t address the court unless you’re on your feet, and only then if he invites you. You don’t ask for an extension of time on a response to a motion unless your reason for doing so involves death or serious bodily harm. And you are never, ever late to court.

Cancer took a bite out of him two years back, but he’s slowly rebounding, growing that wide face back into the loose-fitting skin around his eyes and jowls. The guy is probably going to live to a hundred, if he isn’t already there.

This morning, Judge Nash looked over his glasses and down at me. “You’re a bit late to the game, Mr. Kolarich,” he said.

“Yes, Your Honor. As Mr. Childress indicated-”

“I can read, Mr. Kolarich. Mr. Childress is moving on to greener pastures, I see?”

“I’ll be joining Gerry Salters’s firm, yes, Judge,” said Bryan, standing next to me.

“Mr. Salters is a fine attorney. A lousy golfer, but a fine attorney.”

Like a laugh track in an old sitcom, the courtroom burst out in amusement.

Judge Nash looked over at the prosecution team, led by a woman named Wendy Kotowski. “Do the People have any objection?” he asked.

I moved to the side so that Wendy could approach the microphone. Judge Nash handled his courtroom more like the federal courts, where the lawyers spoke from a lectern into a microphone.

Wendy said, “We would only object to a continuance at this stage, Your Honor.”

The judge looked alternatingly at me and Childress, then back to Wendy.

“I didn’t ask you if you objected to a continuance, Ms. Kotowksi. I asked you if you objected to substitution of counsel.”

Wendy should have known better. This wasn’t her first time in front of this guy.

“We do not object, provided that it will not delay this proceeding,” she clarified.

“What about that, Mr. Kolarich? Will you be seeking to move this trial date?”

“Your Honor-”

“It’s a one-word answer, Mr. Kolarich. Do you want to move this trial date? We’re scheduled for trial six weeks from now.”

“Judge, my answer depends-”

“That’s more than one word, Counsel. I said one word. And I gave you your choice of yes or no. These are basic words of the English language.”

The judge looked over our heads at the gallery. We were first up, which you never wanted to be in front of Judge Nash. He was playing to the crowd.

“Maybe,” I answered.

“Maybe?” The judge rotated his head. The courtroom went silent, waiting for the volcano to erupt.

“Maybe,” I said.

The judge’s eyes narrowed. “Well, how about this, Counsel: This case has received several continuances, and I don’t want another. Mr. Childress has undoubtedly prepared this case for trial, and the parties are prepared to try this matter on the scheduled date. If your entry into this matter requires a continuance, keeping in mind that Mr. Childress is perfectly capable of staying on as lead counsel, I will have to think very hard about your motion. Now,” he said, leaning forward, “does that change your answer?”

“No,” I said.

The judge blinked. He didn’t like my response. A defendant’s right to counsel of his choice is sacred in the law. It transcends virtually all other rights. It is not without limits, but a judge runs very close to that word he dreads the most- reversal, an appeals court overturning his ruling-when he tells a criminal defendant he can’t have his chosen lawyer.

The judge had been trying to box me in, and I’d called his bluff.

After a moment, a twinkle appeared in his eye and one side of his mouth moved. Judge Nash loved the artistry of the courtroom. He respected someone who was willing to play the chess game.

“I’d like to hear from the defendant,” said the judge.

Tom Stoller was seated in the holding pen to our right, staring at the corner of the courtroom, seemingly oblivious to all of us. A guard had to walk over and get him to stand up. He was wearing a canary-yellow jumpsuit befitting an inmate in solitary lockup pending trial.

“Mr. Stoller, do you understand that the purpose of the proceeding today is that Mr. Kolarich is seeking to become your lawyer instead of Mr. Childress?”

Tom wouldn’t look at the judge and kept up with the same tics, the tongue popping in and out of his mouth and the wiggly fingers, even though his hands were cuffed in front of him. “Okay,” he said.

“You understand that, sir?” The judge’s tone had softened. He liked beating up on us lawyers, but an individual defendant got kinder, gentler treatment. Plus the courts of appeals in this state were big fans of the Sixth Amendment, and no judge wanted to be viewed as denying someone the counsel of their choice.

“Yeah.”

“And this is something you agree with, Mr. Stoller? You want Mr. Kolarich to be your lawyer?”

Tom’s eyes bored into the floor. “Okay.”

“Well, I want it to be more than ‘okay,’ Mr. Stoller. This isn’t my request. This is your request. You want to change lawyers? Because Mr. Childress here is a fine, experienced attorney who has handled your case for some time. And the law firm that’s going to hire him can wait for him, if you’d prefer to keep him.”

“Okay,” Tom said.

The judge sat back in his chair, exasperated. “Mr. Kolarich also is an excellent attorney. He’s appeared before me many times, and I have no qualms about his abilities. But he’s coming into this trial very late. I’m not sure your case is that complicated, but he’s still late. And I want you to understand, I am going to be very reluctant to move your trial date. So before you choose, you need to understand that. Now,” he said, “do you understand what I’m saying?”

“Yeah.”

I was pretty sure Tom was having a different conversation inside his head right now.

“Who do you want as your lawyer, Mr. Stoller?”

Tom looked at both of us. Then he pointed at me. “Him,” he said.

“You are indicating Mr. Kolarich?”

“Okay.”

The judge took a deep breath. “Even though he’s only going to have about six weeks to get ready for this trial? I am very unlikely to move this trial date.”

“I don’t wanna,” Tom mumbled.

“Say that again, Mr. Stoller?”

“I don’t wanna move it. I want this over.”

The judge studied Tom for a moment, concern arching his eyebrows.

“May I be heard, Judge?” I asked.

“You may.”

“My client doesn’t want a continuance, Judge. But I very well may. My client is mentally ill, and I think he should take my advice. So far, he hasn’t. I’m not prepared to move for a continuance at this time, but I may do so.”

“You’ll carry a heavy burden,” Judge Nash warned me. He granted the motion allowing me in as lead counsel and called the next case.

I looked back at Deidre Maley-Aunt Deidre-who was watching her nephew walk out of the courtroom, tears brimming in her eyes. When he was gone, she turned her eyes to me.

Thank you, she mouthed to me, showing a bit more hope in that expression than I’d previously seen.

I sincerely hoped that it was warranted.