A Case of Redemption (25 page)

“Good to see you again, Mr. Sorensen,” the guard in the lobby said the moment Nina and I approached the front desk. I was embarrassed that I had absolutely no clue as to his name. Then again, I never stopped at the front desk when I worked in the building.

“We're here to see Benjamin Ethan,” I said.

“Yes, we were told to send you right up. Forty-seven,” he said with a smile.

“Yeah, I remember,” I said, smiling back.

“Is this really strange for you?” Nina asked as we made our way to the elevators.

“Not as strange as I think it's going to get,” I said.

When the doors opened on the forty-seventh floor, Janeene was there to greet us. If I thought she had come out to say a friendly hello, she made it a point to disabuse me of that notion immediately.

“Please follow me,” she said coolly. “You will all be in conference room A.”

Once we arrived at our designated location, she said, “Please make yourselves comfortable. I'll tell Mr. Ethan you're here, and he'll be down in just a moment.”

Taylor Beckett, like most large New York City firms, had two types of conference rooms. There were a host of interior rooms designated as “war rooms” that were usually filled floor to ceiling with boxes containing “hot docs,” the 10 percent of documents that were the most important in the case. I had been practicing long enough to recall the days when the other 90 percent, which might be more than a million pages, were kept off-site somewhere in a warehouse, but nowadays they would more often be kept on a thumb drive in the lead partner's desk.

In contrast to the war rooms, the conference rooms that visitors were allowed to see were the most opulent spaces in the firm. Usually twice the size of a partner's office, they had museum-quality artwork with plaques beside them indicating the artist and the year they were created. Conference room A was a case in point, with an Adam Fuss photograph of a baby suspended in blue liquid on one wall and an equally striking Miró print facing it. I was on the art committee when we purchased both, a hundred thousand dollars hanging on two hooks.

A long, white marble table surrounded by twelve high-back leather chairs sat in the center of the room, and a matching credenza held a collection of sodas and bottled waters. The coffee station, as it was called, was on the other side of the room.

Ethan arrived wearing a gray glen-plaid flannel suit with a vest, and his customary bow tie. No matter what his daily wear, however, you couldn't mistake Benjamin Ethan for anything other than an old-line WASP. He was tall and thin, creased around the eyes and nowhere else, and he hadn't lost a single white hair.

A step behind him was a beautiful woman, probably no more than a year or two out of law school. Ethan was known at the firm for always working with someone who fit that bill. Looking at Nina, however, reminded me that I lived in a glass house on this issue.

“Daniel,” he said, shaking my hand.

Ethan had one of those voices that were made for a defense lawyer.
Not only deep but serious, and he manipulated his inflection so that each word could have a different meaning depending on his emphasis. The way he said my name told me immediately that we were not friends.

“Good to see you again, Benjamin. This is my partner, Nina Harrington.”

Ethan introduced the woman as his “associate,” as if all non-partners were fungible commodities that could easily be replaced by another, which, truth be told, they were.

Not that it mattered. The associate wouldn't say a word at this meeting. Her entire job function was to take notes. And, of course, look good while doing it.

“To be absolutely frank, I am disappointed in you, Daniel,” Ethan said just seconds after we'd been seated. “What on earth makes you think that you have the right to compel Mr. Brooks to provide you with a sample of his pubic hair?”

“Not just his pubic hair, Benjamin. The subpoena also requests a copy of his fingerprints for our expert to analyze. Both are relevant because we believe they're going to put your client at the scene of Roxanne Wells's murder.”

Ethan didn't respond at first. Rather, he sat there impassively, as if my request had dumbfounded him. If it weren't for the scratching sound of his associate trying to take down what I'd just said, the silence would have been deafening.

After an exaggerated sigh, Ethan finally said, “Please, Daniel, we are both experienced enough lawyers to know that unless you have some evidence of a romantic relationship between Mr. Brooks and Ms. Wells, there's no basis for the subpoena.”

Among his many other skills as a lawyer, this was one of the best. Ethan never gave any information, but he was able to get the other side to give him plenty of it. In this case, he wasn't confirming or denying that Brooks was sleeping with Roxanne but was trying to figure out whether we had any evidence that proved it.

“Then you have nothing to worry about,” I replied. “But it seems to me that you're turning what should be a nonevent into something quite significant.”

“Enlighten me as to how I am doing that, Daniel.”

“Well, I take it that Mr. Brooks is denying he had a sexual relationship with Roxanne.” I stopped, trying to gauge Ethan's reaction, but he didn't betray any response. His associate didn't even look up. “If that's true,” I continued, “then there's no way his pubic hair could have ended up in her bed. And if that were the case, well, then there'd be no reason not to give us a sample. We'd do the test, the hairs wouldn't match, and then we'd leave Mr. Brooks alone. Done, end of story. But you're not going that way . . . and that tells us an awful lot.”

Ethan didn't answer. Instead, he looked at the beautiful, anonymous associate, the cue for her to reach into her bag and pull out a stack of papers at least a foot high. Then she pushed them across the conference table to me.

On the first page, in all capital letters and bold type, it stated: “MOTION TO QUASH FILED UNDER SEAL.” Just as I'd expected.

“Judge Pielmeier set the hearing for tomorrow at two,” he said.

“I guess we'll be seeing you in court, then,” I said.

•   •   •

“That went well,” Nina said to me on our way out of the building.

“What do you think was my best moment?” I deadpanned back. “When Ethan told me I was an idiot or when he dropped the motion to quash on us?”

“I was being serious, Dan. You were right about what you said in there. There's got to be something there about Brooks or they wouldn't be taking such a scorched-earth approach.”

I chuckled. “I'm glad you're on my team, Nina.”

T
o ensure secrecy, Benjamin Ethan's motion wasn't on the court calendar. As a result, the one camera crew on the sidewalk was there for another case, and we walked by them without being recognized.

It also meant that the courtroom was empty, other than the six of us: Kaplan and her number two, a bald guy named John Something-or-Other who looked older than her; Nina and me; and Benjamin Ethan and the same very attractive female associate Ethan introduced as “my associate” during the meeting in his office.

Judge Pielmeier never actually took the bench. Rather, her law clerk invited us all to come back to the judge's private office. Without an audience, she must have figured there was no reason to put on a show.

When we entered, the judge was sitting behind an antique desk. A court reporter was seated next to the judge, at the ready.

Even off the bench, Judge Pielmeier wore her judicial robes. It made me wonder if she wore them at home, too.

“Come in and sit down,” she said. “Pull some chairs in from the conference room so there's seating for everyone.”

No one asked why we didn't meet in the conference room, which had more than enough chairs. Instead, the men got chairs from the next room—thick wood and covered in a red vinyl with exposed nail heads that were as heavy as they looked—while Kaplan, Nina, and Ethan's associate took their places in the chairs already in the judge's office.

When everyone was seated, Judge Pielmeier said, “On the record,” which prompted the court reporter to begin typing. “We're here on the motion made ex parte by a nonparty witness requesting that I quash a subpoena duces tecum seeking a sample of pubic hair and fingerprints. Before we begin, because we're in chambers, there's no need for any of you to stand when addressing me. Also, Mr. Sorensen, as I'm sure you will understand, given the emergency nature of the motion, the court did not have the opportunity to arrange for your client to attend this conference. Although I'm sure you will consent to our proceeding without him, just this one time, I still need to have that stated on the record.”

There was little point in delaying the proceedings, and Judge Pielmeier was now making abundantly clear to me that there would be blowback from her if I tried. “No objection, Your Honor,” I said, hoping that it might buy me some goodwill.

“Okay, then, now that that's out of the way, we can begin. Mr. Ethan, the floor is yours.”

Despite Judge Pielmeier's instruction, Ethan stood and then buttoned his jacket, just as he would have done in court if he were twenty feet away from her, instead of the three feet that actually separated them. “Thank you, Your Honor. We ask the court not to permit the defendant to destroy the reputation of a highly public man in what is, plain and simple, nothing more than a fishing expedition. New York State law is very clear that a criminal defendant is not permitted to require innocent people to have to produce their pubic hair. I know Your Honor is well versed regarding the scope of discovery to which a criminal defendant is entitled, but because Mr. Sorensen has made this request, it is possible that he's not as familiar with the criminal procedure rules. So if the court will indulge me for just a moment, section 240.20 only permits a defendant to obtain statements made by him and/or his coconspirators, photographs of the crime scene, scientific reports and the like, and exculpatory evidence under
Brady
and its progeny. And, Your Honor, that's it. There
is nothing in the law that permits the defendant to obtain any other evidence, such as pubic hairs from nonparties.”

I tried to take advantage of the pause. “Your Honor—” But Judge Pielmeier wouldn't hear of it. She interrupted me with a wave of her hand.

“It's not your turn yet, Mr. Sorensen. Just like in kindergarten, you have to wait your turn. Now, Ms. Kaplan, do you have anything to offer us in this enlightened discussion about pubic hair?”

So much for my buying goodwill.

Kaplan followed Ethan's script, so much so that it occurred to me he likely drafted it for her. Right down to her standing when she addressed the judge.

“The prosecution has no dog in this fight,” she began, a phrase that didn't seem natural coming from a woman wearing what I'd wager were five-hundred-dollar shoes. “Nonetheless, we certainly agree with both points made by Mr. Ethan. First, as Mr. Ethan said, the criminal procedure rules do not permit a defendant to obtain this type of discovery. And purely as a matter of decency and fairness, there's no reason for someone of Mr. Brooks's standing in the community to be humiliated—to have his marriage threatened—on nothing more than the unsubstantiated allegation that he was having an affair with the victim. In fact, Your Honor, allowing the defendant to pursue this type of discovery would sully two people's reputations without any basis. Not only will Mr. Brooks's reputation be irrevocably compromised, but Roxanne's will be damaged as well. Many young girls looked up to her, and it would be a true tragedy if in death she was turned into some type of home wrecker, especially when there is absolutely no evidence of any sexual relationship between Mr. Brooks and Roxanne.”

The moment Judge Pielmeier turned to me, I knew I was in deep trouble. Her eyes were narrowed, like she was about to go for the kill.

“You got to admit,” the judge said, “they make a strong point. There's no evidence you've presented that suggests Mr. Brooks and
the victim were even intimate. You could just as easily be asking for
my
pubic hair now, couldn't you, Mr. Sorensen?”

Even though I felt foolish doing it, I stood. “Your Honor, we have evidence that the hairs found in Roxanne's bed came from a non–African American—”

“Congratulations, you've narrowed it down to ninety percent of the population, or thereabouts,” Judge Pielmeier said.

“That may be true, but what's important is that it eliminates the defendant as a potential match.”

“But it doesn't mean that person is Mr. Brooks, now, does it? And that's all we're talking about.”

“That's precisely why we're asking you to enforce the subpoena,” I replied. “If the hair belongs to Mr. Brooks, that proves the point. And if it doesn't, then that also proves the point.”

Judge Pielmeier actually looked to be enjoying the back-and-forth. “How about that, Mr. Ethan?” she said. “Mr. Sorensen is telling me that all it'll take is a few yanks of your man's privates, and we'll know for sure whether your man left this little gift in the victim's bed.”

“Not to be disrespectful, Your Honor, but after Mr. Sorensen concludes that the pubic hair in Ms. Wells's bed was not left by Mr. Brooks, why isn't the same argument he makes now equally applicable to his asking for anyone else's pubic hair? Just think about it for a second: he's got as much basis for asking Mr. Brooks to provide a sample as he does you, as Your Honor just suggested.”

“Well, not mine, Mr. Ethan,” Judge Pielmeier said with a chortle. “He needs a white person's hair. Maybe yours, though.”

“The court has driven home the point for me,” Ethan said, a triumphant smile on his face. “The exact same argument Mr. Sorensen makes now with regard to Mr. Brooks is equally applicable to my pubic hair, and to everyone's pubic hair he decides he wants to test. ‘What's the harm?' Mr. Sorensen will say. If it matches, then it was a good thing he was able to get the hair. And if it's not a match, then he will move on to the next person. I submit, Your Honor, that is
precisely why the legislature expressly limited the kind of discovery that a defendant can obtain, to avoid these types of fishing expeditions that do, indeed, harm innocent third parties. No matter what Mr. Sorensen says, news of his request will get out into the media, and that will forever follow Mr. Brooks. The only way to avoid that is for this court to quash the subpoena.”