William Bernhardt - Capitol offence

Ben frowned. "I hardly think he gave that interview by accident."

"Agreed. But it has to have been done for the purpose of causing a mistrial. Then it would offend public policy to give him what he wanted. A dismissal is the appropriate penalty. But I don't think the district attorney gave that interview because he wanted a mistrial. Do you?"

"Well…"

"Why would he? His case went well and you haven't even started yours yet. No, he wasn't after a mistrial. He did it to win. He did it to bury you before you've even started. Didn't you, Mr. Guillerman?"

"Um, well…"

McPartland chuckled. "Yeah. Tough question. Assumes facts not in evidence. At least that's your story."

"But your honor," Ben said, scooting forward in his chair, "this was a serious and deliberate offense."

"Oh, I don't think it did your case that much harm, Mr. Kincaid. And that's the main thing. Because as those of us who went to law school know, not all error leads to a mistrial-not even violations of gag orders. The effect has to be prejudicial to a significant degree. There has to be a showing that the prejudice was great enough to affect the outcome of the trial. And I don't think that's the case here. The prosecution alleged something they can't prove. So what? That's what they do. You'll probably do some of that yourself, huh, Mr. Kincaid?"

"I would never-"

"Unless you're planning to put on evidence to support a possible finding of suicide. Which I very much doubt."

Ben fell silent.

"Good. So we all know where we stand. The jury will be sequestered, and the motion is denied."

Both lawyers rose to their feet and started toward the door.

"I'm not finished yet." The judge looked Guillerman straight in the eye. "This will not happen again. Do you understand me? There is a gag order in place. A total and absolute gag order. Any further violation will result in a mistrial with double jeopardy attached. This defendant will go free and it will be your fault. Plus I will personally recommend disbarment, in writing." He lowered his voice. "And I would imagine your shot at reelection would not be enhanced. Understand, Mr. District Attorney?"

"Yes, sir. I do."

"Good. Anything else?"

Ben leaned forward. "I want to call an Officer Torres to the stand. My investigator tells me he may have relevant information, and he's been mentioned-"

McPartland cut him off. "Is he on your witness list?"

"No, I just found out-"

"Then forget it."

"But the prosecution witnesses have mentioned him and-"

"You're the one who wants to be a stickler for the rules, Mr. Kincaid. He's not on your list. So you're not going to call him. Anything else?"

Ben smoldered silently.

"Fine." McPartland waved his hands at them. "Now get out of my chambers. Go forth and sin no more."

Ben stopped Guillerman in the hallway before they got to the courtroom and the reporters. "Tough guy" wasn't really his best mode, but he knew this situation called for a little grit. Or at the very least a furrowed brow.

"I don't appreciate you spreading that crap about me to the press," Ben said, blocking his path.

Guillerman smiled with such amiability as to be truly annoying. "Don't take it personally, Ben. It's just trial tactics."

"Don't take it personally? You told people that I conspired to commit murder!"

"No, all I did was say I was shocked by the news reporter's story. That doesn't make it true."

"You're mincing words."

"But you've got to understand something, too." The smile faded. "You're representing a cop killer. Most people take that pretty seriously. Including me."

"So you're saying you were justified in violating a judicial order?"

"All I'm saying is, if you want to remain in office, you'd better snap on your political weather vane. Because the wind is blowing against you on this one and the elections are not far away. You'll never be able to raise funds if you cling to this case. And it takes a lot of money-"

"To run for reelection these days. Yes, I remember." Ben wasn't finished. "Thanks to you, I've got a call from the bar association."

"What did you expect? Sometimes I think they spend more time going after lawyers than they do promoting them these days, apparently never noticing how much damage they do to the profession in the process." He took a breath. "Of course, that was off the record. Don't want them to find an excuse to come after me."

"I want you to make a public apology."

"Ben, I can't do that. For starters, it might violate the judge's gag order. Furthermore-"

"At least admit that you yourself have no evidence of any premeditation or conspiracy."

"With a capital trial pending? I'm sorry, Ben, but you're dreaming. I can't do it. And honestly, it wouldn't do you a bit of good if I did. Those evening news shows love it when you're being accused. But me calling a press conference to say something good about you?" He made a dismissive snort. "They probably wouldn't even show up."

"It's a matter of principle."

"No, Ben, it's not. It's about winning and losing. Why do prosecutors brag about their win/loss records? Why do athletes take steroids? Why do politicians claim we won wars when we won nothing? Americans love winners." He paused. "Until they get too successful. Then we love to watch them fall. It's the American way."

Ben stepped out of his path. "You're a cynical so-and-so, you know it?"

Guillerman passed on down the hallway. "Maybe. But I got elected to my office, unlike you, and I plan to retain mine, probably also unlike you. And I'm going to win this case." He stopped and gave Ben a parting look. "If you thought what's happened so far was bad, stay tuned."

Ben sat at the defendant's table waiting for the judge to enter the courtroom. No one was talking. Dennis was absorbed in his own thoughts. Ben wasn't sure if he was pleased or displeased that the judge turned down the mistrial motion. Probably a little of both. But it left him exactly where he had been before-hanging on to this case with only the most tenuous of tethers.

Christina was keeping herself busy, as usual. With the defense case about to begin, there were a million things to manage. Making sure the witnesses were on tap and prepared. Making sure all the exhibits were copied and ready to be admitted. Making sure the legal research was available when Guillerman made his inevitable objections. Making sure the extra-large bottle of Maalox was close at hand.

"Where do you think the jurors' heads are right now?" he whispered to Christina.

She didn't stop organizing whatever it was she was organizing. "They're confused. They're wondering if Dennis really is the type to make a death threat, much less to act on it. They're wondering what Conway was getting at when he dragged you into his testimony. Except for the ones who watched the news report on television and lied about it. They know what the accusation was about and are wondering if it's true. In any case, they will be watching very closely. Both Dennis and you."

"How do we convince them we're not a scum-sucking murder squad?"

She smiled a little. "Just stick to the plan. Put on your case. Be the straight arrow you usually are." She winked. "At least in public."

"And you think that will be enough?"

She plopped his first witness outline on the table in front of him. "I never said that."

The first defense witness was a professor, Gordon Taylor, who worked at TU in the English department with Dennis. He had known Dennis-and Joslyn-for many years. His testimony had two important aspects. First, he established that Dennis and Joslyn had been a loving couple, deeply devoted to each other. Despite the busyness of their schedules and the disparity in their incomes, he testified, the two were deeply in love and appeared to have a healthy relationship.