Steve Martini - The Judge

Kline’s fall guy rifles through his briefcase and comes up with two more copies. Stapled there are a dozen pages, cases underlined, a double-spaced argument.

The issue is clear-cut. Rules of professional ethics in this state bar a lawyer from representing two parties with adverse interests in the same legal action, civil or criminal. While there are fine points and nuances in the way the rules are applied, the penalty for a conflict is removal from the case, disqualification of counsel.

“There may be little question about what the rule says,” I tell Radovich, “but there is a serious question of waiver. Why did the prosecutor wait until the eve of trial to raise this issue?”

“A good point,” says the judge. “You are now threatening a delay, Mr. Kline.”

“I see no reason for any delay,” says Kline. “The defendant is ably represented. More than one lawyer,” he says. He is alluding to Harry and me.

“Not me,” says Hinds. “I never agreed to participate that fully.”

“Well, you’re here,” says Kline. “You’re being paid, aren’t you?”

“Not nearly enough,” says Harry.

Acosta gives him a dirty look, an imperious sneer.

“I wish to make something clear,” says Acosta. “I am not waiving time.” What he means is that he is still demanding a speedy trial.

Kline tries to draw our client into a dialogue and I intervene to cut this off. Failing this, Kline tells us that a speedy trial is not an issue, since the trial has already commenced with the selection of jurors.

He launches off on further argument.

“We believe that Ms. Goya is possessed of certain privileged information,” says Kline, “that she would not have except for her prior employment with my office. This places the people in a disadvantaged position.”

“The only disadvantage the people are suffering from is the incompetence of their lawyer,” says Lenore.

“Yes. Well, you’re the one charged with conflict,” says Kline. “Perhaps you should bone up on legal ethics.”

“Stop it now.” Radovich reaches for the first thing at hand, and slams a heavy metal paperweight on the top of the desk, putting a dent in the wood. He looks at this, and now utters the S-word himself.

“Charlie’s gonna kill me,” he says. He has borrowed Charlie Johnson’s courtroom for this trial and has now put an indelible mark in the top of his desk.

“Why don’t we do this in open court?” says Lenore.

“Why don’t you both shut up,” says Radovich. “And somebody find me some furniture polish,” he says, “and a rag.” He issues a frantic wave at the bailiff, who disappears into the other room.

I shudder to think what a court of appeal will conclude from this record.

It is clear why Kline has chosen to air this linen, here in the privacy of the judge’s chambers. A public argument would raise questions as to the running of his own office, the circumstances of Lenore’s departure, and perhaps questions about disgruntled prosecutors that Kline would like to avoid.

“Why did you wait so long to bring this up?” says Radovich. He’s rubbing at the wound in the desk with his thumb, drops a little spit on it, and tries again.

“Until the other day,” says Kline, “when Ms. Goya questioned Sergeant Frost on the stand, the extent of how deeply we were compromised was not clear.” He says this straight up, soberly, so that even I could not question the statement’s sincerity. I suspect it is also true.

“You put up perjured testimony,” says Lenore, “and I exposed it for what it was.”

“Your opinion about perjured testimony,” says Kline.

“Mine, and that of any other honest person in the room that day,” she tells him.

“On that we could argue endlessly,” he says, “and I am sure we would never agree. But one thing is clear. In cross-examining that witness you were privy to confidential information from Ms. Hall, information gleaned from your employment with my office.”

What he is saying is that Lenore may have won the battle with Frost, only to lose the war here.

The bailiff returns with a bottle and a piece of cloth and hands these to the judge.

“I didn’t want lemon oil,” says Radovich. “Got anything with a little color in it?”

The cop shows both palms up, shrugs as if he hasn’t a clue, and then gets a revelation. He’s out the door and before we can speak, he’s back, with a can of brown shoe polish.

“Yeah,” says Radovich.

“Your Honor, if we could?” I say.

“Go ahead,” says Radovich, but his mind is elsewhere.

“You have broad latitude on the issue of conflict,” I tell him. I point to a case in Kline’s own brief. “A court should be loath to disqualify a lawyer.”

“Unless the attorney’s conduct ‘tends to taint the underlying trial.’” Kline finishes the quotation. “We would argue that Ms. Goya’s conduct here is just such a taint. She interviewed the prosecuting witness,” he says.

I remind the court that all of that is hearsay, that the witness being dead, she cannot testify and her words will never come into evidence.

“Still, Ms. Goya cannot purge her mind of what she already knows,” says Kline.

“What about the defendant’s right to counsel of his own choosing?” I say.

“It is a point,” says Radovich. His nose is now buried in the surface of the desk, spit, lemon oil, and shoe polish.

“You gotta admit, I’d be hobbling the defendant considerably if I were to tell him that he could not have the attorney of his choice.”

Radovich, his forefinger now brown with shoe polish, looks up at Acosta.

“How do you feel about all this?” he says. For a moment I think he’s asking our client if he has any advice on what to do with the damaged desk, perhaps some mystic secret, a potion known only to judges.

“I mean your lawyer,” he says. “What should I do here?”

“Your Honor, I object. These are private matters between client and counsel,” I tell him.

“I don’t mind,” says Acosta. He puffs himself up a little, not like a defendant in a murder trial, but one judge giving advice to another.

An ominous feeling rumbles through my gut.

“I don’t know all the details. .” he begins. Far be it from the Coconut to know all the facts before rendering a decision. “It is a difficult matter,” he says. “I, as the client, have confidence in Ms. Goya. . ”

“There, Your Honor, see?” Lenore tries to cut him off.

“But I suppose I would be equally well represented by Mr. Madriani and Mr. Hinds if it were to come to that. They are able attorneys capable of giving me competent representation.”

“Fine,” says Kline. “So no problem.”

I could thank him for the testimonial. Instead I turn and fix Acosta with a look that if it shot nails would pin him to his chair.

“Judge Radovich asked me,” he says. “I am only telling him the truth.”

I turn away from him, back to Radovich, and take another tack.

“In terms of our preparation for trial, removal of Ms. Goya at this stage would do major damage to our case,” I tell him. “It’s very much a team approach,” I say. “We have each carved out our areas of coverage in presenting the defense.”

“Let me guess,” says Kline, “Ms. Goya’s specialty is invasion of confidences.”

Lenore is about to get into it with him when Radovich makes this unnecessary.

“Mr. Kline. One more remark of that kind and you will pay for the privilege.” Radovich is shaking a brown finger at him at this moment. If Kline doesn’t back off, sanctions could include two days of sanding the injured surface with his nose.

The judge extracts an apology from Kline.

“It’s far too late to raise these kinds of concerns, particularly when the state has known about her role in the prior case from the beginning,” I tell Radovich.