William Bernhardt - Blind Justice

“But, your honor, I haven’t—”

“Mr. Kincaid! You are not doing your client any favors.”

“I’m sorry, your honor.”

“The motion is denied. Anything else?”

Ben tried to calm himself. “Yes, your honor. A motion to suppress.”

Derek sneezed, then wiped his nose. “And what is it you want to keep out this time, counsel?”

“Testimony by prosecution witness James Abshire regarding an alleged confessional statement made by the defendant at the time of her arrest.”

“Ah, yes,” Derek said. “I’m familiar with that, also. I’ve read the magistrate’s report.”

“Your honor, this statement is grossly prejudicial and not probative in any meaningful way of any issue to be tried.” Ben noticed an odd expression on Derek’s face. “Is something wrong, your honor?”

“No, no,” he said, chuckling, “I was just trying to imagine the appeal brief in which you try to explain why the statement ‘I killed him’ is not probative in any meaningful way of any issues in this case.”

“Your honor, the evidence at trial will show that the defendant was dazed, confused, and unaware of what she was saying. There’s a strong possibility she was drugged.”

“Then you may present that evidence at trial, Mr. Kincaid, and the jury will decide whether it is trustworthy. Your problem is you don’t have enough faith in the jury.” He looked out toward the gallery. “You keep wanting to protect the jurors of this district from any evidence that goes against your client.”

Playing for the morning edition, Derek? Ben began to realize why Derek had been so liberal about allowing press coverage. “There’s a Miranda problem, your honor.”

Moltke evidently decided it was time to make some of his arguments for himself. “The defendant was properly Mirandized. She signed an acknowledgment.”

“ After she made the statement in question,” Ben added.

Derek leaned back in his chair and stroked his chin. Ben took this as a sign of encouragement. At least he was going to ponder this motion before he denied it. “She was in custody at the time she made the statement, wasn’t she, Mr. Moltke?”

“Yes,” he admitted. “They had slipped the cuffs on her and finished the frisk.”

“Still, there was no actual custodial interrogation , was there?”

Moltke brightened. At least when you led this dog to water he was smart enough to drink. “No, your honor, not at all. No questions were asked.”

“You don’t need a question to start an interrogation,” Ben said, “as we all know. The Christian burial case, in this very state, proved that point.”

“As far as I can see, there was no provocation or inducement of any kind,” Derek said. “Mr. Abshire made a simple declarative statement, and your client was unwise enough to start babbling.”

“That’s what Abshire says,” Ben replied. “He’s hopelessly biased, your honor. He’s the instigator of the investigation from which this case arises. He considers the whole affair a career move. He has a personal stake in seeing that the government obtains a conviction.”

“All of which I’m sure you will draw out on cross-examination ad nauseum,” Derek said. His eyelids fluttered; he was beginning to look bored. “We’ll let the jury decide.”

“That would be fine if the jury could hear the actual conversation, your honor. But all they’ll hear is Abshire’s slanted retelling—”

“I’ve ruled, Mr. Kincaid.”

“Not very well,” Ben muttered.

Derek’s eyes flared. “What did you say?”

“I said, I can tell.” He flipped a page on his legal pad. “I move the court to permit an interlocutory appeal to the Tenth Circuit on this issue.”

“Waste of time. Denied.”

“Your honor, after this evidence is presented, the jury will be hopelessly tainted—”

“By unfavorable evidence!” Derek shouted. He half rose from his chair, leaning across the bench. “That’s the way it works, counsel. If all the evidence is against you, as it seems to be in this case, you lose. You don’t try to hide the evidence from the jury. You take your lumps and move on.”

Ben couldn’t tell if Derek was truly angry or simply playing for the indignant Republicans in the audience. “But your honor—”

“Mr. Kincaid! I’ve spoken to you in a prior context about your tendency toward whining. I expect more professional behavior from an officer of the court. Even if you do not possess the requisite maturity, for your client’s sake—and this court’s—I will expect you to feign maturity during this trial. If you do not, you may find yourself the subject of a legal competence proceeding.”

Ben braced himself and pushed ahead. “Your honor, I renew our motion for a continuance.”

Steam seemed to rise from Derek’s brow. “Denied.”

“May I know the grounds?”

“No.”

“Not even a hint? Just to make life easier for the appellate court?”

Derek drew himself up in his chair. “Mr. Kincaid, the only reason you are not currently in jail on contempt charges is that your client would be forced to obtain new counsel. While that undoubtedly would inure to her benefit, it would also delay the start of this trial, and I am determined to see that speedy justice, as dictated by the United States Constitution, is done in this case.” He raised his gavel. “I may reconsider contempt charges, however, when the trial is over. This hearing is adjourned.”

With the bang of the gavel, the reporters leaped to their feet. Flashbulbs flared and a thousand voices filled the courtroom. Ben heard only one. As he passed the defendant’s table Alexander Moltke smiled a sickening smile and said in a singsong voice, “You should have taken the deee-al.”

Ben wondered if he was right.

31

“HERE’S YOUR FOURTEENTH MOTION for a continuance,” Jones said, as he tossed the pleading to Ben. “Shall I draft the judge’s denial also?”

“What a wisenheimer.” Ben scanned the brief, then passed it back to Jones. “What about our petition to the Tenth Circuit for emergency relief?”

“Denied. Premature.”

Ben sighed. It was hardly surprising news, but he couldn’t help but hope. “I’m about at the end of my rope. Is there anything else we can try that I haven’t thought of yet?”

“I don’t think so, Boss. That trial is gonna start Tuesday morning whether you want it to or not. What about hiring a shadow jury?”

“Shadow juries are for big firms with lots of money to spend and a client to impress. No shadow jury could ever duplicate the thought processes of a real jury, no matter how many demographic studies are conducted. You just have to pay attention during the trial and do the best you can with the jury you draw.” He ticked through his mental checklist. “Have you made any progress with the business records we got from Reynolds’s office?”

“Yeah.” Jones pointed to a tall stack of papers. “These are my notes and work papers. I’ve been backward and forward over these records a dozen times. I can tell you what they say , but not what they mean. I need something to compare and contrast these figures with.”

“Something like Albert DeCarlo’s business records of the same transactions.”

“Exactly. Then I could put the two together, see what matches and what doesn’t. And if there were discrepancies, say, large infusions of cash that appeared in one set of records but not in the other—”

“We’d be onto something. I know. Have you heard from Loving by any chance?”

“Not since he took off the other day.”

“I was afraid of that. I hope he’s not in trouble. Why don’t you see if you can find him?”