David Rosenfelt - New Tricks

I take out the copy of my signed statement. “Here is a statement I gave to the FBI about last night’s events. I signed it, and as you certainly know, if I was untruthful in this statement then I have committed a felony. It includes the negotiations I had with the FBI leading up to my visit to the Robinson house last night. The operation was conducted under their supervision, and certainly should be enough to compel their testimony.”

Hatchet and Richard read the statement, which in typewritten form is six pages. When they are finished, Hatchet says, “Mr. Wallace?”

“Your Honor, this is an interesting story that changes nothing.”

“With respect,” I say, “it changes everything. And I would submit that your calling Agent Corvallis to court for a closed hearing presents absolutely no risk. If he testifies under oath that I’m delusional, then all you’ve done is waste a few minutes of the court’s time. But if I’m correct, then my client has a right for the jury to hear what he has to say.”

I expect Hatchet to take the matter under advisement, but instead he says, “I will order that Agent Corvallis appear before this court at the earliest possible time, hopefully tomorrow morning. At that point I will decide whether or not to compel his testimony.”

THE MOST IMPORTANT DECISION of any trial is getting close. That, of course, is whether to have the defendant testify on his own behalf. While it is a crucial decision, it is usually an easy one for a lawyer to make. I can’t remember the last time I wanted a client to testify in his own defense. Too many things can go wrong, even when the defendant is innocent.

But it is also the one decision that the client must absolutely make on his own, albeit with advice from his attorney. If he decides not to testify, the judge will go so far as to question him in open court as to whether he was presented with the option, and declined voluntarily.

Kevin and I arrange to meet with Steven in an anteroom. Before we can even talk about his possible testimony, I tell him of our success in getting Corvallis into court.

“Will he tell the truth?” Steven asks.

“He won’t lie. Whether we can get him to tell the truth is another matter. He will try not to say anything at all.”

I bring up the matter of Steven testifying, and like most clients, he wants to do so. This is that rare time that I am leaning in the same direction. He is really the only person who can testify about his actions the night of his father’s death. He can also talk about their relationship, and he comes off as likable and credible.

The other reason I am inclined to support his decision to testify is that the way this trial has gone, we need a Hail Mary pass. We have to do something to shake things up, or we are going to lose. Juries generally want to hear a defendant testify, and this might be the time to give them what they want.

Kevin tells Steven that he agrees as well, which is a surprise to me, since we haven’t talked about it. I can’t ever remember Kevin being in favor of a client testifying in his own behalf, and it’s a sign that he thinks the situation is as dire as I do.

“But we don’t have to decide this now,” I say. “If you take the stand, you’ll be the last one to do so, and a lot is going to happen before then.”

“Are we losing?” Steven asks.

“We haven’t had our turn at bat yet.”

“I had this fantasy that the prosecution was going to present their case, and it would be so weak the judge would just end the trial right there.”

“It’s called a motion to dismiss,” I say. “I’m going to make one tomorrow morning, but the judge will turn us down. We need to make our case.”

“And can we effectively do that?”

“I don’t know.”

He smiles, but it’s not exactly a happy smile. “I was hoping you’d tell me what I wanted to hear. You should learn to bullshit more, you know?”

“I know,” I say, “it’s one of my weaknesses.”

Kevin and I head home to finish preparations for our defense case. We need to go over every detail, even though we’ve been over the same ground many times before, so that we are completely prepared for any eventuality.

It’s basically an issue of confidence for me. If I feel completely sure of the subject, then I can more comfortably freewheel, and thus be more effective. If I am in any way unsure of the details, I have a tendency to get more conservative.

Conservative is not what we need now.

The focus of the evening is altered when the court clerk calls to say that Agent Corvallis will be in court tomorrow morning at nine. We now have to turn our full attention to that argument, since if we fail we have no real hope of getting anything about Walter’s work or Robinson’s murder before the jury. And without that, we are in deep trouble.

So we work until midnight, pausing only to have dinner with Laurie. She’s made my favorite, pasta amatriciana, and in the face of that, preparation will have to wait. I have my priorities.

I arrive at court at eight thirty in the morning, and I learn that Hatchet has summoned Richard and me into his chambers for a pre-hearing chat.

“I have been told by FBI attorneys that there are serious national security implications involved in what Agent Corvallis is doing. I have turned down their request to withdraw my order for him to appear, but I have agreed that the hearing this morning will be closed, and the transcript will be held under seal,” he says.

“That’s fine with me, Your Honor.” I say.

“I’m so relieved,” Hatchet says. “You know how I covet your approval. Mr. Wallace?”

“Obviously we believe that Agent Corvallis should not be compelled to testify at all, but since we have for the moment lost that argument, we have no problem with it being closed and the transcript kept under seal.”

When we get back into the courtroom, Agent Corvallis has already arrived with four FBI attorneys. He gives me a big smile and handshake when he sees me, then introduces me to the smiling attorneys. Everybody’s so happy; you’d never know they were there to try to bury Steven Timmerman.

Steven is brought in, since defendants have the right to be present for every aspect of their trial. Hatchet then enters and convenes the hearing, spending a few minutes setting the ground rules. I will question Agent Corvallis first, and Richard will follow.

I am in an unusual situation here: The truth is I know very little about the FBI’s investigation of Walter Timmerman. I have theories, many of which have been mostly confirmed, but I don’t know the meat and potatoes of it. Thus, I can wind up doing that which lawyers religiously try to avoid, asking questions I don’t know the answer to.

“Agent Corvallis, have you been leading an FBI investigation focused on Walter Timmerman?”

“Yes.”

“When did that investigation begin?”

“About six months ago,” he says.

“What motivated it?”

“Walter Timmerman was doing some work that was potentially significant to the national security of the United States.”

“What was the nature of that work?” I ask.

“I’m not at liberty to say.”

“Are you aware if he enlisted the help of his friend Charles Robinson in connection with that work?”

“Yes. He did.”

I ask Corvallis to confirm that I approached him with my suspicions about Timmerman and Robinson, and he acknowledges that I did.

“Did I tell you the kind of work I thought Walter Timmerman was doing?”

The FBI lawyer objects, in an effort to preempt me from mentioning what the actual work was. Hatchet sustains and instructs me not to do so, then lets Corvallis answer the question.