The Wrong Man

78

The prosecutors, Wendy Kotowski and Maggie Silvers, were speechless. Judge Nash, sitting behind his desk in his ornate chambers, was likewise dumbfounded. My client, Tom Stoller, sat quietly without showing any reaction.

Wendy Kotowski said, “Judge, I have to assume this is some kind of a joke.”

“I know it’s late, Your Honor,” I said. “Believe me, I know. But this is the first time I’ve had something concrete to show you. If I’d come to you before now, I don’t think I would have had much chance at succeeding.”

“And you think you have a chance now?” asked the judge. Out of his robe, his bony shoulders and stooped posture made him appear frail. But he still had that cannon of a voice.

“I would hope so, Your Honor. I know all about procedural rules, and I take them seriously. I’ve been working around the clock to compile this evidence so that I could give you something more than speculation.”

“It’s still speculation,” said Wendy. “This company-Global Harvest-sold fertilizer to one of its subsidiaries? Another company sold another product, also perfectly legal, to that same subsidiary? Kathy Rubinkowski came up with a theory that this meant someone is building a bomb, and she was murdered to silence her?”

The judge pointed at Wendy but looked at me. “Beyond the fact that all of this information is untimely, it’s also unconvincing,” he said. “If you think these individuals are up to something like you’re saying-some kind of terrorist

activity-then you should talk to the FBI.”

“I have,” I said.

“All right, you have.”

“Judge, the victim in this case stumbled upon the information and ended up dead less than a week later. And when she sent an e-mail to her boss at the law firm, that e-mail never made it to him. We just spoke with the individual, Tom Rangle. He never got the e-mail. Which means that someone at the law firm was monitoring Kathy’s e-mails and deleted them. And then killed her only days later. I have more than enough to take to a jury on this.”

“Putting aside the timeliness. Or lack thereof.”

I gripped both arms of the chair in which I was seated. “If Tom were convicted, and I came up with this information months or years later, I could get a post-conviction hearing on newly discovered evidence. I’m doing better than that. I’m discovering it right now and asking for the chance to get this into the record before a verdict. Give me that chance, Judge.”

“Your Honor-” said Wendy, but I cut her off and kept going.

“The end here is justice, Your Honor,” I said. “I mean, that’s what we’re all doing here, right? We have rules and protocols, but at the end of the day, nobody-not you, not me, not the prosecutor-should try to stop the truth from coming out. That’s why you wanted to wear a robe on day one. That’s why Wendy and I became prosecutors. We wanted to do the right thing. And I’m telling you that, even if it took me a while, I’ve come upon information that I believe in my heart will exonerate my client. I’m telling you that the state has the wrong man. And I can’t believe some deadline is going to prevent me from showing the jury that.”

The judge was actually considering my argument, which was more than I’d expected.

“Your Honor, I’m not looking to sandbag anybody. If the prosecution wants some time to digest what I have to offer, that’s fine with me. My client will stay locked up. She can have all the time she wants. Hell, I’d welcome her involvement. It might lead us to the right result. And it might prevent a terrorist attack. I don’t want that on my conscience. Do you?”

The judge was taken aback by that last comment. But that was my very point. I needed a little shock value, because while I’d been living with this information for a few weeks, this was the first either of them had heard of it.

I didn’t know how any of this was going to sit. Truth and justice, ironically enough, were words seldom uttered in this courthouse, filled with lawyers whose idealism had been eroded over decades of experience. No practitioner-judge, prosecutor, defense lawyer-mistook what happened in this building as justice. It was simply the closest anybody could come. The old line was that the United States had the worst system of justice in the world, with the exception of every other one.

In some ways, I sounded like an idealistic, first-year law student. But Judge Nash knew me well enough to know that I wouldn’t give this speech without some basis.

“Judge,” said Wendy. “Judge, this is absurd. And if, by some stretch of the imagination, it’s not, then Mr. Kolarich has alerted the authorities. It’s possible to take him seriously and proceed with this trial. And if by some chance he is ultimately right, then he has correctly pointed out his remedy of a posttrial motion.” I began to answer, but she raised a hand and, for good measure, her voice as well. “If trials were halted midstream every time a lawyer said he thought maybe, just maybe, he was about to connect some dots on a theory of innocence he has never once given us a hint about, then nobody could run a courtroom.”

I looked over at the court reporter and had one more thought. “I’d like to say one more thing for the record, if I could, Judge. Only days before we went to trial, you barred my insanity defense. I know you think you made the right decision, but regardless, you left me in a very difficult position. I was planning on asserting an affirmative defense and you took it away. You left me with nothing to argue but innocence, with only days to do so. So that’s what I did. And I’ll admit, at first I was clutching at straws, but for the love of God, it turns out that we’ve uncovered evidence that exonerates my client. I was as surprised as anyone. But here it is. I followed your instructions and came up with this evidence and now, if you bar that evidence, too-how can we possibly say this was a fair trial? Every avenue I turn, you shut me down?”

For the first time, I was stretching. The truth was, I was considering a dual defense all along-insanity and innocence, figuring I might settle on one eventually, most likely innocence, but keeping both options open. But Judge Nash would never know that. The story I just laid out was unassailable, and as Judge Nash watched the court reporter type these words, he was thinking about the appellate court reading this transcript. You took away his insanity defense, then he came up with an innocence defense and you barred that, too?

My plan had always been to put my case together airtight and then present it to the judge. I knew that if I convinced him of its viability, he’d have no choice but to allow it. That hadn’t happened. I just wasn’t quite there. But I was out of time. The prosecution would rest today and come Monday morning, I’d have to have a defense. So I had to do this now. I had to lay out my cards now, even if they weren’t a full deck.

Judge Nash leaned back in his leather chair and bobbed for a moment. A great mind at work, or something like that. I glared at Wendy, who glared back at me. I had to admit I would probably have the same initial reaction as she, were I the prosecutor, but I’d like to think I would give it more thought and reconsider.

“Okay,” said the judge. “Here’s what’s going to happen. We’re going to go in there and finish this witness examination. We’re going to finish that today. And then, Ms. Kotowski, I take it the People will rest?”

“That’s correct, Judge.”

“All right. Come back Monday morning. Mr. Kolarich, I’m going to think about this and reserve ruling for now. But understand me, Mr. Kolarich, and understand me well.” He wagged a bony finger at me. “You better be prepared to start your case on Monday. If you assume I’m going to reopen discovery and let you add all these witnesses, you are flying without a net. Don’t act surprised if I deny your request and expect you to call your first witness.”

Those comments, too, were for the transcript the appellate court would read.

“And as long as we’re making a record,” he added, “we should all be clear that this information has been made known to this court and to the prosecution for the very first time this afternoon. Now let’s get back in there.”

“Thank you, Judge.”

All things considered, it was the best I could hope for. The judge was giving me one chance, one forty-eight-hour period to put all of this together.

“Better than I expected,” Shauna whispered to me as we left the judge’s chambers. “Now we have two days to connect those dots.”