James Sheehan - The Law of Second Chances

The case was assigned to Judge Arthur Hendrick, a circuit judge in Dade County. Jack called every day to check on the status of his pleadings-something he normally wouldn’t do, because it might irritate the judge, but he couldn’t afford to adhere to the typical niceties of practice. Henry’s time was running out.

Jack never found out whether it was his constant nagging or a lack of merit in his legal arguments, but five days later the judge denied both the motion for new trial and the request for evidentiary hearing. Jack didn’t even have time to be disappointed-he had less than two weeks left. He called Wofford Benton to see if he had any ideas on how to handle this latest setback.

“Everything’s been denied,” he told Wofford. “I’m not sure whether I should file an appeal directly to the Florida Supreme Court or a motion for rehearing and ask the circuit judge to take another look at it. What do you think?”

A motion for rehearing was a request for the court-in most cases the same judge-to reconsider the original motion for new trial on the basis that it may have overlooked something. It was rarely granted.

“Did the judge give any reason for the denial?” Wofford asked.

“None. It was just a summary denial.”

“A summary denial,” Wofford mused. “The last bastion of cowards. Who was the judge?”

“Arthur Hendrick.”

“Damn, I could have told you going in that Artie would deny the motion. I’ve known him a long time. We went to law school together and we’ve maintained a pretty good friendship over the years, although our politics are on opposite ends of the spectrum. He’s a wonderful guy in a lot of ways but he’s a law-and-order man. It’s all black-and-white in Artie’s world-no gray areas whatsoever. You’d better just file your appeal, Jack. You won’t get anywhere on rehearing.”

Jack didn’t respond right away. He was mulling over Wofford’s advice when the judge spoke again. “Hang on, I’ve got a better idea-move to recuse him. I’ll give you another affidavit stating the nature of our friendship over the years, including the fact that we room together at all the judicial conferences. Artie would die before he’d enter an order finding me incompetent as an attorney, even if it was seventeen years ago. He simply shouldn’t be on this case.”

“Do you really think he would recuse himself?” Jack asked.

“He has to, especially if I put it in my affidavit, which I will, that he could not be fair and impartial when it comes to me. I’ve even got a case for you right here in Polk County-a similar situation. The attorney was a sitting circuit judge at the time of the motion, and all the circuit judges in Polk County recused themselves from hearing the case. You have an even stronger basis because of my close friendship with Artie. Either he recuses himself or you have a winnable issue on appeal.”

“I’m running out of time, Wofford. Am I better off getting another judge or just appealing this denial?” Jack favored an immediate appeal, but he wanted to hear what Wofford had to say.

“Think about it, Jack. You got a flat denial from Artie-no reasoning, nothing. Your chances on appeal with an order like that are slim at best. On the other hand, if you get a new judge, you’ve got another shot and you still have an appeal.”

Wofford’s analysis made perfect sense. “You’re right,” Jack said. “I’ll get started on both motions today.”

“Take the recusal motion over yourself to his office and bring an order for him to sign, and then wait for him to sign it. I’ll fax you my affidavit within the hour.”

“You guys aren’t going to be rooming together anymore,” Jack told him. “He probably won’t ever talk to you again.”

“I don’t give a shit, Jack. We’ve got more important fish to fry.”

Jack was a little surprised at Wofford Benton’s colorful language but not his message. Something had changed in the judge, and Jack thought he knew why: Wofford Benton had made a mistake seventeen years ago and he wanted to rectify it. The judge was committed to doing whatever was necessary to get Henry a new trial.

After Paul and David picked Benny out in separate lineups, Nick and Tony had him brought down to the basement of the station house for questioning. A uniform cop led him into a rectangular room with mirrors on both sides, one door, and no windows.

Benny had seen enough television shows to know what the mirrors were for and what was going to happen next. He remembered what Joe Fogarty told him: “Shut up and ask for a lawyer.”

The cop sat him down in one of four chairs clustered around a steel table and left him with his hands still cuffed behind his back.

Nick Walsh and Tony Severino were standing in a separate room behind one of the mirrors when Benny and the cop walked into the interrogation room. Their lieutenant, Angelo Amato, was with them. Amato had already determined that Nick would do the questioning alone, and Nick could tell that Tony didn’t take too well to that decision. Tony had found Benny, and Nick knew that Tony thought he should get the honors. At that point, it didn’t matter to Nick who did the questioning. His thinking was about to change.

“The brass upstairs wants this case over yesterday,” Lieutenant Amato told Nick before the detective left to enter the interrogation room.

Nick Walsh was a planner about most things. A good homicide detective had to be able to patiently and methodically build a case, often starting from the minutest details. However, when he walked into a room to question a suspect, Nick did not have a set agenda, a certain style, or even a specific list of questions. He learned in advance everything there was to possibly know about the man he was going to interrogate, and, of course, he knew every detail of the criminal investigation.

Nick’s plan, if someone wanted to call it that, was to start a conversation with the suspect-about anything under the sun-and gradually, when a rapport had been established, get around to the crime at hand. It was a time-consuming process that required a lot of patience, although Nick could be forceful when necessary and was not above making threats. He simply let the circumstances dictate who he was going to be on any particular day.

Benny was a little guy, almost emaciated. There was quite a contrast between Nick with his huge hands and thick forearms and little Benny. Nick knew he had to soften his appearance if he was going to get Benny to open up. He rolled up the sleeves of his white shirt and opened his shirt collar, letting his tie hang loosely around his neck like an unwanted appendage. He walked in the room with his hands in his pockets and a slight smile on his face, although he didn’t overdo it. This was a criminal investigation, after all.

“Mr. Avrile, I’m Detective Nick Walsh,” he said to Benny, who was sitting uncomfortably on the edge of a chair with his hands still cuffed. Before Benny could answer, Nick approached him. “Let me get those cuffs off you,” he said, “so you can be comfortable when we talk.” He reached behind Benny and deftly removed the cuffs. Then he shook Benny’s hand.

“Nice touch,” Tony said to Lieutenant Amato on the other side of the mirror.

“You can call me Nick,” Nick said to Benny.

The last thing Benny expected was to be shaking hands with his interrogator. He had envisoned the room darkening, the overhead lamp being pulled close to the table, and some body knocking him around the place with body shots until he started talking.

“You can call me Benny,” he said to Nick.

“How are you doing, Benny? Are they treating you okay?”

Benny thought he would ask for the moon right away since Nick was being so pleasant. “Not bad. Can you get me out of here, Nick?”