William Bernhardt - Capitol Offense

“No!” Torres moved backward, fast.

“It’s important, Joe. A man’s life is on the line.”

“I won’t testify.”

“He can subpoena you.”

“No!” Torres turned and began to run.

“What are you afraid of? Losing your job?”

“I’m afraid of losing my life!” Torres shouted back. And then he disappeared into the night.

Loving didn’t bother chasing him. What would be the point? Even if he caught him, he couldn’t make him talk. And the truth was, Torres was right to be concerned for his life. Smart, even. Cops did not like being ratted on, especially by one of their own. Other people came after cops, they circled the wagons. But when it was one of their own mounting the challenge…

Well, he had a right to be concerned.

Loving checked his watch. Hell with the bar. He wasn’t likely to get more than he already had. He’d drive crosstown to St. Benedict’s. He had no idea what he was looking for. But he needed to find something. Something Ben could use in court.

Time was running out fast. If he didn’t come up with something useful soon, it would be too late.

“A mistrial?” Dennis looked back at Ben, perplexed. “Why would I want that? We’ve been in trial more than a week!”

“There are a million possible reasons. You’re the defendant. And you’re not currently in jail. Time is on your side.”

“Do you think we’re losing? Is that why you want to start over?”

“No. I have no idea what the jury is thinking. But we have taken some hits. This could be our chance to start from scratch.”

Ben had asked Dennis to come to the courthouse conference room early so they could discuss this all-important issue before he saw the judge. Mistrial was a delicate subject. A corporate defendant will always go for it; given the time value of money, the longer they can delay paying a judgment, the better. But with human beings, there were many more emotional issues. Humans wanted closure, resolution. Even if the trial process was nerve-wracking, even if they were uncertain about the result, there was always a strong desire to get it over with.

“Guillerman made a critical error when he spoke to the reporters. Judge McPartland issued a no-exceptions gag order. No comments to the press. Ironically, it was Guillerman who first raised the issue, because he was tired of our press conferences. Of course, Guillerman will claim he wasn’t commenting on the case as such-only on the breaking news story. But McPartland isn’t an idiot. He won’t be happy.”

“And the judge will give us a mistrial over that?”

“He might. We’ll have to impanel the jury, ask questions. If any of them watched the news report, they’re off the jury. If more than six of them saw the news report, then we don’t have enough alternates. We have to start over. And if one of the jurors mentioned it to the others, the entire jury pool is tainted. Automatic mistrial.”

“How long before a new trial would begin?”

“Depends on the judge’s schedule. I’m thinking it would be a good long while. Assuming the case remains with Judge McPartland.”

“It could go to another judge?”

“It could go to another county. Or another state.” Ben leaned across the conference table. “We could ask for a change of venue, arguing that the media coverage has irredeemably tainted the local jury pool.”

“Does that happen often?”

“No. But it does happen, usually in high-profile cases. This is why Timothy McVeigh was tried in Colorado, not Oklahoma.”

“Do we have any idea what kind of judge we might get somewhere else?”

“No. Potluck.”

“Would it be an improvement?”

“Depends on how you think McPartland is leaning. And I have no idea. He’s kept his cards pretty close to his vest so far.”

“So basically, asking for a mistrial is a big crapshoot.”

“Basically, yes.”

Dennis rubbed his fingers against his forehead. For once, the trial strategist who held all the answers seemed uncertain. “What do you think we should do?”

Ben took a deep breath. “I think I have to ask for a mistrial. I think it would be malpractice not to ask for a mistrial.”

“I’m not going to sue you for malpractice.”

“Thanks. But what if we have to appeal, you know? If we… we…”

“Lose?”

“Yeah. That. If the appellate court finds my representation incompetent, it would destroy me as a lawyer. And it could interfere with our appeal.”

Dennis ran his hands through his precisely coiffed hair. “I don’t know, Ben. I really just want to get this over with.”

“I know you do. But we have to be smart about this.”

“I suppose.”

This was where the conversation was going to get sticky. If Ben had his way, he wouldn’t go here at all. But he had no choice.

“Dennis… there’s one more possibility I have to raise. If I ask for a mistrial, it’s possible we could get even more than a delay of the game. We could conceivably win the whole shooting match.”

“What? How?”

“A tainted jury pool is one thing. Definitely grounds for a mistrial. But if the judge finds deliberate misconduct on the part of the prosecution…”

“Is that possible?”

Ben shrugged. “Guillerman obviously knew something. He planted the seed with Officer Conway. He didn’t have to appear on that news broadcast-but he did.”

“Okay, so he’s guilty of misconduct. What does that get us?”

“A mistrial, for sure. But in this scenario, there might be a little more. Here, the mistrial is the result of deliberate acts by the state. That being the case, the court could find that double jeopardy has attached.”

“And if double jeopardy has attached…?”

“You can’t be tried again for the same offense. Not even in a capital murder case. In other words, you go free.”

Dennis’s lips parted. “No.”

“It’s a long shot. A remote chance. Judge McPartland obviously will not be eager to dismiss a high-profile case involving the death of a police officer. But it is possible.”

“And I would be acquitted.”

“In effect.”

Dennis’s eyes seemed to draw inward. “But without a finding of innocence. Without ever really being tried.”

“True.”

Dennis sat up, squared his shoulders. “I don’t know if I like that idea.”

“I understand. But you can’t expect to be exonerated by a court. Even if you were found not guilty, some people will never believe it. Especially not if you get off on a charge of temporary insanity.”

Dennis remained strangely quiet. “Ben,” he said at last, “I don’t know if I’ve even said this to you before, but… I didn’t kill Detective Sentz.”

“I thought you didn’t remember what happened.”

“I don’t. But I still… I can’t believe I would do that. Even under the circumstances.”

“I understand,” Ben said. Though, he thought silently, your subsequent belief proves nothing about what happened.

“You know… this trial has been very hard.”

“I’m sure.”

“Are you? Sometimes I think you believe-and I know Christina does-that my willingness to plan and scheme and orchestrate the trial means I’m a cold, rotten person who wants to kill and get away with it.”

“Oh, no-”

“You don’t have to bother denying it. I know the score.”

“Maybe you were a little more… present than most defendants.”

“But I needed that. You know?” He looked at Ben with pleading eyes, and it occurred to Ben that this might have been the most vulnerable he had seen this man since the whole drama began. “That gave me an edge. When I lost Joslyn, my world was shattered. Into pieces, tiny little shards of glass where a life had once been. I didn’t know what to do. I had to distract myself. First with talk of revenge. Then with plans to escape punishment.”