William Bernhardt - Capitol Offense

“In effect.”

“Do you know what those reporters you two are so fond of would do to me if I complied?”

Ben shrugged. “It’s not your fault, your honor. If there’s been deliberate prosecutorial misconduct, you have no choice.”

“The rank-and-file Joe Beer Can NASCAR pork-rind-eating voter won’t see it that way.”

“I understand. But of course the court has to rule on the law, not the potential professional ramifications.”

“Of course.”

“And I know we can count on your honor to do just that.”

McPartland pointed a finger Ben’s way. “My momma told me never to count on anything till I see it in writing. That was good advice.” He swiveled his chair around and stared out the expansive window at downtown Tulsa. “What if I declare a mistrial but simply order a new trial?”

“We’re not asking for that relief, sir.”

“You’re telling me you wouldn’t accept a new trial?”

“No, your honor.”

He looked incredulous. Guillerman appeared more than a bit surprised himself. “May I ask why?”

“Because my client doesn’t want that. He’s willing to accept a double jeopardy ruling-though he isn’t happy about it. He wants a jury to declare his innocence.”

“Every defendant does, counsel. Few get it.”

“But he does not want a new trial at some point in the distant future. This trial has been hard on him, especially coming so close on the heels of the loss of his wife. He wants it over, one way or the other.”

McPartland’s eyes narrowed. “Counsel, is this some kind of twisted trial tactic?”

“No, sir. And I don’t think I’m violating any confidences to say that this is not what I recommended. But it is what he wants.”

“All or nothing, huh?”

“Exactly.”

Judge McPartland swiveled back around to his desk. “You boys are not making my job easier, you know that?”

Guillerman smiled his million-watt smile. Seemed he could be charming even when he was under fire. “Do we ever, Judge?”

“No.” He took a deep breath. “Well, the first thing you should know is, I brought the jury in early this morning and quizzed them with a court reporter present. Only two say they saw any of the news coverage of this case over the weekend.”

“They’re lying,” Ben said succinctly.

“Very likely. I know I’d be watching if I were them. How could they not? They are human beings, after all. But what I did not get, as I questioned them, was a sense that anyone had changed their mind because of what they saw, or that anyone’s mind was made up, or that the jury pool was tainted. Even the two who admitted seeing the coverage said it didn’t affect them, and I believe them. One of them turned it off before it was over.”

“Your honor-”

“Let me finish. I’m going to remove the two jurors who admit to seeing the televised story. I will sequester the rest. I will give them strict instructions not to consider anything they didn’t get in the courtroom. And I’m also going to instruct them to disregard that last little salvo from your witness, Mr. Guillerman.” He gave the prosecutor a harsh look. “I’m hoping that will get the message across. Whether they know what the witness was implying or not, they will decide this case on the relevant evidence presented at trial.”

“That works for me,” Guillerman said. And no doubt it did, Ben thought. He was getting away with prosecutorial misconduct with virtually no substantive penalty.

“Your honor,” Ben said, “I respectfully object. This is not enough. We’re talking about deliberate misconduct.”

“But for what purpose?”

The question took Ben aback. “What do you mean?”

“Well, see, Senator, I’ve read the law on this subject. Reviewed it just this morning, in fact. And prosecutorial misconduct doesn’t necessarily mandate a mistrial. That extreme sanction only kicks in if the misconduct was engaged in purposefully.”

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.”