EDDIE
Nobody ran to Wesley Dreyer to make a deal. No plea agreements. This was a straight fight and today was the first major battle.
I arrived in court with Harry in tow. He'd prepared most of the motion briefs, which I'd filed last week. Today was arguments and judgments. No need to bring the client to court, for which I was thankful. After Sofia showed up at my office, she'd calmed down a little and between Harper and I we checked in on her almost every day. Yesterday she invited us over for coffee. Harper and I sat on her couch while she fussed over warming some cookies before she served them.
'She really is like a little kid, sometimes,' I said. 'Who serves cookies to their lawyers?'
'Look,' said Harper, pointing to the hallway. 'Go on, just a peek. It should be on her bed.'
I got up quietly, moved into the hall and there, on Sofia's bed, was an old, soft toy. Its fake fur had matted and was bald in other parts. It was a blue bunny rabbit. I sat back down before Sofia could notice I'd been snooping.
Harper whispered, 'She's had that since she was a kid. She said her mom bought one for her and her sister before she passed. She still sleeps with it.'
I nodded. I'd heard her mention her sister carrying a rabbit when she found her mother dead on the stairs.
'Did she mention the toy to you?'
'Yeah. She sleeps with it. Said she and her sister went everywhere with those rabbits when they were kids. I know it has sentimental value, but she's in her late twenties. She needs someone to look after her.'
Sofia was not cut out for the stresses of life even in ordinary circumstances.
I had no doubt that if she was convicted she wouldn't survive twenty-five to life in Bedford Hills Correctional. As prisons go, it's not bad. There are much worse. But it's still a maximum-security facility. The only max-security prison for women in the state. From the outside you can see the razor-wire-topped fences and what looks like an old Victorian house beyond. It's a large facility once you get inside, with buildings in a circular shape surrounding the exercise yards and training areas. Sofia would be placed on suicide watch – but not
forever. I knew, first chance she got she would check out. Either deliberately, or she'd cut too deep and that would be it.
Sofia brought a tray of cookies from the kitchen. We ate and drank while I gave her an update on what was going to happen in court the next day. It looked like she understood – but maybe didn't fully appreciate – the turn the case could take if the hearing went badly.
Harper and I thanked her for the cookies, and we left her clutching her blue rabbit for comfort.
That was yesterday. Today was the beginning of the fight to keep her out of jail. The opening skirmish. And it had to go in our favor.
Her life was on the line. The only way to save it was to make sure we got a 'Not Guilty' from the jury. The pieces used to make that verdict a reality would be set in play this morning, in this courtroom.
I had copies of the motions under my arm, and I dumped them on the defense table. Harry had his copies, which he placed beside mine, and took a seat next to me. He looked around the room.
'It's weird being on this side of the judge's bench,' said Harry.
'You've had four weeks of retirement, don't tell me you're starting to regret it now,' I said.
'I didn't say that, I just said it's weird,' said Harry, who then used his feet to rock back on his chair, and locked his fingers together over his stomach. He had put some weight back on, and I was glad of it. It made him look more solid, curved out some of the lines on his face. We'd had a lot of late nights working on these motions, and those nights usually ended in Scotch and pizza at three in the morning in my office, with Harry's dog snatching the pizza crusts we tossed him. That dog would eat anything.
There was no one else in the courtroom. I liked to get there early. Get my seat. Get a feel for the room. Plus, I liked watching my opponents show up and find me already there – established and ready. It was a psychological thing. A subtle form of manipulation. I wanted my opponent to feel like they were stepping into my house.
'How do you think things will go today?' said Harry.
'Depends on the judge,' I said.
'I tried my old clerk three times, and she wouldn't tell me which judge was
taking the case. Said she couldn't. She was sworn to secrecy. Loyalty ain't what it used to be.'
The doors at the back of the court opened, and I heard footsteps approaching. One pair of heels, and one pair of boots. I turned and saw Kate Brooks marching down the aisle, with a tall lady in a leather jacket behind her. Hardly the
entourage I'd expected from Levy, Bernard and Groff.
Kate took a seat at the next defense table, furthest from the central aisle.
Across the aisle was the table reserved for the prosecution. In front of us was a raised plinth, a mahogany bench and behind that a high-backed leather armchair flanked by the American flag.
Kate said, 'Hi,' as she passed my table.
Harry stood up and introduced himself, 'I'm Harry Ford. Consultant with Eddie Flynn. And you are?'
'Kate Brooks, from Brooks Law. That's my investigator behind you, Bloch.'
Harry turned around, and the tall lady with short black hair and the biker jacket shook hands with Harry. 'Ex-law enforcement, I presume?' said Harry.
Bloch nodded.
'Sorry, I didn't get your first name, Miss Bloch,' said Harry.
Bloch merely nodded in agreement. Harry sat his ass down.
I got up and went around to Kate's table. She stood behind it, arranging her
papers. From her bag, she took out five different colored pads of Post-It notes and five different colors of highlighters and began arranging them. I didn't want to disturb her, but I wanted to make sure I'd heard her correctly.
'You said Brooks Law, right?'
'Right. I left Levy, Bernard and Groff about a month ago.'
'Shit, and you're representing Alexandra?'
'I am,' she said.
I stood back and took a second to look at Kate properly. She seemed to stand
taller. She wore a nervous and excited smile, but now she looked like a lawyer rather than a beat-down paralegal who jumped and clapped for the boss every ten minutes.
'Congratulations, I'm really pleased for you. I do have one thing to ask though. I didn't get any of your motions to the court. I take it you're moving to split the trial?'
Kate took her own damn time to look at me now. She was gauging me, trying to figure out if I was a threat or if I was making some kind of play.
'We're not objecting to the DA's joint trial,' she said.
I heard Harry sucking air through his teeth, and the legs of his chair slapping down on the tiled floor. This was a major play from Kate. She'd realized that she had the better chance in a joint trial – that a jury would be more likely to believe Alexandra than Sofia. A brilliant strategy, but for one thing.
'I understand your thinking. But it's high risk, there's lots of ways that strategy might backfire,' I said.
'It can't backfire on me, only on your client,' she said.
'It can backfire if you destroy my client's credibility, and if I, in turn, destroy your client's. Then the jury won't believe either defendant and both get convicted. It's called a cut-throat defense – the DA just has to hand out the razor blades and sit back while we cut each other's throats.'
'I've considered it. I don't think you can lay a glove on my client.'
'Don't be so sure. I don't think this is wise. We should be fighting the prosecutor, not each other.'
'It's a risk my client is aware of, but we're confident. Tell me, is Sofia going to take the polygraph?'
'Is Alexandra going to take the polygraph?' I asked.
Kate folded her arms, shifted her weight. Her tongue grazed the inside of her cheek. She wasn't going to give that away so easily.
'Look, the way I see it, the prosecution is getting an easy ride with a joint trial. It will make us fight each other instead of fighting Dreyer.'
She pulled out a chair and sat down at the defense table, placing her three identical Muji pens in a neat row before her. The conversation was over. This was shaping up to be a war on two fronts for Sofia. It made it even more important that I got the trial split.
'Kate, I'm real pleased for you going out on your own. That's brave and no more than you deserve. I thought Levy was a creep. This is great for you, but I'm worried about making life easy for this prosecutor. At least don't object to my motion to split the trial? Don't muddy the waters.'
'I've got to do what I think is right for my client,' she said.
'Okay, let's see what happens,' I said. I didn't want to start a fight with Kate. I liked her. She was smart, and I was glad she'd ditched Levy and managed to wrestle his biggest case away from him.
I returned to my table, Harry giving me a worried look.
'If we don't split this trial—' he said, under his breath.
'I know, I know.'
Wesley Dreyer was the last player to show up and he looked like he'd been
shopping for a new outfit for today. A pale yellow tie in a Windsor knot lay over a crisp white shirt. The combination was set off by a smart blue suit. Cut especially for him, of course. He looked like he was about to go for a photo shoot with a magazine, and in some ways that was exactly what would happen after the hearing. I'd no doubt Dreyer had called a press conference from the DA's office straight afterwards. He had one assistant with him, a young man in a suit that looked almost as smart as Dreyer's.
I did notice one other thing about Dreyer's outfit, though. 'I see you're not wearing your pin,' I said.
'I don't need to wear the pin today,' said Dreyer, a smug grin on his pink face. The court clerk came through the chambers door and said, 'All rise.'
I stood with Harry. Dreyer was already on his feet. Judge Stone came through
the door with our motions under his arm.
I heard Harry mutter, 'Shit. We're toast,' under his breath.
Son of a ...
'Mr. Dreyer, you appear for the People. Mr. Flynn for Sofia Avellino and
Miss ...'
'Brooks,' said Kate. 'For Alexandra Avellino.'
'Very good,' said Stone. 'Mr. Flynn, I've read your legal briefs. I'm granting
all three of your discovery motions. The prosecution is obliged to provide you with the evidence and documents listed in your affidavit by close of business today. I'm also granting the motion for inspection of the crime scene. That's for both defendants. The inspection will be done alone, without police presence save for an officer of the court who will video-record the inspection to ensure the scene is not tampered with. There will be unilateral disclosures of these videos. Edited to remove sound, so you can discuss the case freely at the locus.'
Dreyer's assistant lifted a box from the prosecution table, put it on my desk. He then picked up another box and put it on Kate's table.
'All documents and evidential reports have now been served. We have an officer with a video camera at the ready for the inspection of the Franklin Street property,' said Dreyer. He was expecting this. I'd no doubt he'd spoken privately with Stone about it before today. That would be a huge breach of ethics, but it happened and there was no way to prove it.
'Likewise, Miss Brooks, I'm granting your motions. Mr. Flynn had actually asked for more documents than you did, but you've got it all now and more.'
Kate stood, thanked the judge.
'Now, we come to the last order of business. Mr. Flynn, your motion to split the indictment and have separate trials for each defendant – I've read your motion and the brief. It was put together ... judicially, you might say,' said Stone, giving Harry a sickening smile.
Harry mouthed something back to Stone. I'm no lip reader, but it looked like Harry said something that started with mother, and ended with trucker. Or something close to that.
'Your legal arguments are sound. The potential prejudices to your client are real. However, as you have alluded to in your motion, even the criminal code itself states that I have discretion in this matter, and that I can deal with it as I see fit as long as I have addressed the potential prejudices to both defendants. Even if both defendants are blaming one another, if both are willing to testify
then it cancels out any constitutional argument that your client can't get a fair trial. And I can warn the jury about any fears of prejudice you may have. Those controls and warnings should stave off any substantial unfairness or prejudice. Miss Brooks, I take it your client is going to testify?'
'She is, Your Honor.'
'Well, Mr. Flynn, doesn't that mean that your client should be refuting that testimony with her own?'
'Your Honor, with respect, that means my client theoretically couldn't exercise her fifth amendment right against self-incrimination,' I said.
'It's up to you how you conduct your case, Mr. Flynn. Your client can take the fifth amendment all she wants, and I know you'll explain the consequences to her in advance. I have to be satisfied that there would be a substantial prejudice to your client before I split this trial. The word "substantial" is the key one, here. Any joint trial has some element of potential prejudice, but in my view it is not substantial. Also, I have to weigh up the cost to the taxpayer of two separate trials. On that basis, I'm denying your motion. The joint trial will begin in two weeks. We'll swear a jury this Monday. Court adjourned.'
'Your Honor ...' I said, but he'd already gotten halfway to the door. He ignored me, and left.
'Shit,' I said, under my breath. 'Can we lodge an appeal today?'
Harry folded his arms. His eyes were closed and his brows knitted together. 'No can do. The trial hasn't happened yet, so we can't allege any actual prejudice. On appeal we have to show the judge wrongly exercised his discretion. When a trial judge has an inherent discretion built into their decision- making, it's hell to get an appellate court to overrule him. It won't work in this case. He's acknowledging our arguments, but he says that doesn't automatically mean a split trial if he can deal with any substantial prejudice to the defendants by warning the jury about certain aspects of the evidence. The Zafiro case kind of backs him up on that theory. Man ...'
'But the criminal code says if the defenses are diametrically opposed—'
'I know what the codes say. So do you. So does he. And he still has the privilege of discretion. We can't appeal him unless his decision is perverse,' said Harry.
'What about arguing bias? Between Stone and Dreyer both defendants are going down.'
'Where's your evidence of bias? Especially given that he granted all your other motions. That kind of proves he's not biased. I'm sure that was in the back of his mind when he gave us everything we'd asked for in disclosure. If there's clear and substantial prejudice that emerges during trial, then our client has a
good appeal. That's it.'
'But that prejudice would result in her conviction. We can't let that happen.
Sofia wouldn't last inside. You know how long an appeal would take, and if we won we'd only get a retrial. She'd have to go through all of this again,' I said.
Harry shook his head, muttered, 'He's a son-of-a-bitch.'
'What was that you said, Mr. Ford? Did you say something about the Honorable trial judge?' said Dreyer with a serious tone. He wanted to embarrass Harry, mark his cards. It was a threat. You speak ill of Dreyer's white nationalist buddy, who just happens to be a judge, and he'll make sure that judge knows about it.
Harry said nothing, he just stared at Dreyer, his teeth clenched.
'I thought I caught you saying he's a son-of-a-bitch? Did you say that?' asked Dreyer. He was pushing it now, making his power play.
'I didn't call him a son-of-a-bitch,' said Harry.
'Good. That's a good boy,' said Dreyer.
Harry stood up, the word boy had set him off.
'I said, "he's a neo-Nazi asshole and you're his bitch." That's what I said,
Wesley. Make sure you tell him I said that. You can both put on your white robes and have a good laugh about it.'
Dreyer wrinkled his nose, stood back. Harry was no longer a lawyer, nor a judge. He couldn't be reported to any professional bodies for that comment, because he didn't belong to any of them. Not anymore.
'In case you haven't worked it out yet, a joint trial gives me a guaranteed win. One of those women killed Avellino. The jury will convict one of them – at least. I don't care if it's your client, or Kate's. I'll try and have them both convicted, but even if one is acquitted I still get one conviction. I can't lose. Between you and Miss Brooks – one or both of you will lose. I'll see you gentlemen in court,' said Dreyer, and with that he left.
'Harry, that wasn't smart. We don't need the judge any more biased against us than he already is,' I said.
'Not possible,' said Harry.
Kate packed her files away, and as she was leaving she passed by my table and whispered, 'My client is taking the polygraph,' and then walked away.
Shit.
Now there was an even bigger problem.