William Bernhardt - Blind Justice

“If you expected me to slide you some secret file that would break the case wide open—sorry. I couldn’t do that, even if such a file existed. Which it doesn’t.”

“If some new evidence comes to light, will you give me another call?”

“You know I can’t, Ben. I’ve got to play this by the book.”

Ben could not mask his disappointment.

“I took an oath to serve and protect the City of Tulsa and the United States of America. I’m on the prosecution side, and any act in opposition to them would be a betrayal of my oath.”

“Oh,” Ben said, blinking rapidly.

“Ben, you remember what I said about watching your backside? Well, it goes double now. There’s some serious trouble getting ready to go down—involving the mob, the South Americans, the FBI, everybody. And you’re right in the middle of it.”

“Thanks for the warning. It was good of you to meet me like this. I know you’re running some…career risks.”

Mike shrugged again. He was still looking away, but not at the ball game. His gaze seemed to be much further. “It was the least I could do.”

Ben had to agree. The least.

They sat together in silence. Ben felt almost invisible. Incorporeal. He snarfed down his hot dog and tried to focus on the game, without success. He just wasn’t interested; his attention kept drifting back to the gray void beside him that used to be his friend.

He slipped away during the seventh inning stretch.

30

BEN SURVEYED THE COURTROOM with disgust. You’d think they were trying Lizzie Borden again.

The courtroom was loud, crowded, and chaotic. Reporters flanked the aisle; spectators packed every available seat. Everyone was talking at once, pointing out the players, shouting questions at Ben or Moltke, demanding answers. And this was just a pretrial hearing.

A camera bulb flashed in Ben’s face, momentarily blinding him. Derek had issued a minute order permitting photography in the courtroom prior to and after the actual proceedings; the reporters were busily getting their money’s worth while they could. They were turning the courtroom into a carnival, and Moltke was playing it to the hilt—smiling, posing, pontificating about law and order and his personal crusade for justice. It was exactly what Moltke wanted: maximum exposure, minimum attention to detail.

Early that morning, Ben had received a phone message from Myra. Moltke was offering what he called his first and final offer to plea bargain: Christina pleads guilty and the government promises not to ask for the death penalty. Christina would most likely get a life sentence—long enough that no one could be critical of Moltke, but Moltke didn’t run whatever tiny risk he perceived that he might actually lose the case. And Christina? Well, of course, a huge chunk of her life would be wasted in prison. But she would live.

Ben turned it down. “No deals,” he had said.

He watched Moltke now, sitting at the other table with his flunkies. Moltke seemed supremely confident. He hadn’t mentioned the rejected plea bargain; he just kept babbling in his TV anchorman voice about “liberal criminal-coddling judges who care more about supposed civil rights than human beings.” Ben wondered if he had done the right thing. What did Moltke know that made him so damned self-assured?

After the bailiff intoned his oyez oyez routine, Derek strode into the courtroom. “Approach the bench,” he grumbled.

Ben and Moltke hurried to the judge’s platform.

Derek pulled out a white handkerchief and wiped his nose and eyes. His face seemed red and puffy. “Damned hay fever,” he said. “Pollen count in Tulsa must be over a hundred today. I’m miserable.” He looked down from the bench, directly into Ben’s eyes. “So let’s not make this too unpleasant, shall we?”

Ben tried to nod reassuringly, with little success.

“I assume you have some motions to present, Mr. Kincaid, although God knows I can’t imagine what motion you haven’t already made three or four times.”

“I have new ones, your honor.”

“Oh goody.” Derek rubbed his hands together in an exaggerated expression of delight. “Can you give me a hint as to the general nature?”

“Trying to thwart the government’s effort to cover their own butt by railroading my client.”

“God.” Derek pressed his fingers against his temples. “This isn’t going to be another of your grand conspiracy theories, is it?”

“I don’t know what you mean.”

“We both know exactly what I mean. I’m referring to your tendency to take a simple litigation matter and turn it into an episode of Perry Mason. ”

“If I may proceed with my motions, your honor…”

Derek wheezed heavily. “Very well, counsel. You can make them at the bench.”

Ben hesitated. “I would prefer to make them in open court.”

“Aren’t you the one who urged privacy when last we met? These motions are apparently of a sensitive nature. I’m sure you don’t want to publicly defame government officials unnecessarily.”

“I want the motions heard formally,” Ben insisted. “I want the court reporter to make a record.”

Derek peered through his handkerchief. Ben’s meaning had not escaped him. Ben wanted the court reporter to make a record—for the appellate court to review.

“I don’t suppose I can deny your request, can I?”

“Not unless you want to give me grounds for an immediate interlocutory appeal, your honor.”

Derek’s teeth ground together. “Proceed with your first motion, counsel.”

Ben returned to counsel table. Moltke did the same, with exaggerated shoulder shrugging and head shaking. Part of his routine: the noble civil servant, exasperated by the devious machinations of defense counsel.

“First motion,” Ben said. He could sense the reporters leaning forward, scribbling away. “We move to exclude the alleged evidence found by law enforcement officers during their improper search of me defendant’s apartment.”

“I ‘m familiar with the circumstances,” Derek said. “What was wrong with the search?”

“No warrant.”

Derek opened the file before him and scanned it for a few moments. “Yes, that’s as I remembered it. Your client invited the police into her apartment.”

“She invited them to investigate a breaking and entering incident, your honor. She did not invite them to start searching for evidence to use against her in a pending murder case.”

“She invited them into her home. She waived her right to privacy. They saw what they saw.”

“They did not just see the alleged narcotics, your honor. They were not in plain sight; they were inside a stuffed doll. In order to find them, the police had to actively reach in and withdraw the evidence. In so doing, they went well beyond me scope of their invitation.”

Derek did not seem impressed. “Any response, Mr. Prosecutor?”

“Yes, your honor.” Moltke rose. “The alleged burglars caused the, er, injury to the stuffed dolls. It occurred before the police officers arrived. It was only natural for the officers, in the course of the investigation they were invited by the defendant to conduct, to try to discover what the burglars were looking for. In so doing, they discovered the incriminating evidence.”

“That’s how I see it also,” Derek said. “I rule—”

“Your honor,” Ben said. “May I rebut?”

“I think I’ve heard enough.”

“Your honor, the legal question is whether Ms. McCall had a reasonable expectation of privacy regarding the inner contents of the dolls. She clearly did, and she did nothing to waive that constitutionally protected—”

“Counsel!” Derek’s voice boomed through the courtroom. “I would have thought you’d learned in your first year of law school that when the judge says he’s ready to rule it’s time to shut up.”