Afraid of the Dark (5 page)

Chapter Nine

I
t was 11:04
P.M.
when Jack finally got home from the office. When it came to pro bono cases, the well-established rule that “no good deed goes unpunished” seemed to have an exponential ripple effect, as if every hour spent working for free put you three hours behind on billable files. He walked through his front door and plopped on the couch just in time for the tail end of the lead story on the late local news.

“Wakefield was denied bail,” said the anchorwoman. “A trial date has not yet been set.”

Trial.
The very thought made Jack shudder. Neil had offered to pay him out of the Freedom Institute’s operating budget, but Jack knew how that would play out. Jack would present a bill, and Neil would wax on about all the schoolchildren who would have to go without textbooks because there was no money to sue the mayor for paying six-figure salaries to his chauffeur, his barber, and a nineteen-year-old waitress at Hooters who was also his “secretary.”

Jack switched off the TV, changed into jogging shorts and a T-shirt (his standard sleepwear), and headed to the bathroom to brush his teeth.

He’d been too busy all day to think much about Jamal Wakefield, but, naturally, bedtime brought the nagging questions to the fore. Had Jamal been out of the country when McKenna was murdered, or did he go on the run after she was killed? Was he telling the truth about the first round of secret interrogation, or was he making up an alibi? The polygraph examination was clear enough: no signs of deception. But that had absolutely no bearing on what was perhaps the biggest question of all.

“Why in the hell are you even doing this?” he asked his reflection in the mirror.

It sure wasn’t for the pat on the back from friends and family. Grandpa Swyteck had seemed to sum up the absurdity of it all. It had taken Jack two hours to calm him down from his “combative” episode, and it had been hard to tell if Grandpa was grasping any of the things Jack was telling him about his day. Finally, he’d leveled off at a semilucid level—or so Jack had thought.

“My grandson defending terrorists,” he’d said bitterly.

Apparently he’d absorbed plenty. “Accused terrorists, Grandpa.”

“That’s a hell of a job for a Jew.”

Jack had blinked hard, not comprehending. “A lot of the lawyers representing the detainees are Jewish, actually.”

The ceiling tiles had suddenly caught Grandpa’s attention, and he was swatting at dust floaters like a man catching flies. Jack needed to reel him back in before the nurse returned to chart him as “combative.”

“Grandpa, you know we’re not Jewish, right?”

“What do you mean we’re
not Jewish
?”

In truth, Jack had never known his grandfather to be of any faith, but the angry glare had taken Jack aback. “You were born in Bohemia in what used to be Czechoslovakia. We’re Czech.”

“Yes, Czech
Jews
.”

Jack could have spent the next ten minutes trying to explain that even though Grandpa had never been a churchgoing man, his son—Jack’s father—had gone to Mass every Sunday, married a Catholic girl from Cuba, and even taken communion from the pope during his second term as governor. But Grandpa had dozed off, exhausted from his earlier struggle with the nurse.

“Getting old sucks,” Jack said to the forty-year-old man in the mirror.

Jack heard a car door slam. He returned his toothbrush to the rack and peered out the bathroom window, but overgrown palm fronds blocked his view of the driveway. He listened.

Footsteps.

Someone was definitely out there. Key Biscayne was safe by Miami standards, but the last time anyone had shown up unexpectedly at his house after midnight, a couple of pissed-off Colombians had decided to express their displeasure with his courtroom performance by turning his 1966 Mustang into a charred hunk of metal. Jack went down the hall to the living room and waited. It was dark, lighted only in places by the dim glow of an outdoor porch lamp that shined through the open slats in the draperies. He listened, hearing nothing. But something—a sixth sense—told him that someone was on the other side of that door.

“Who’s there?” he asked.

There was no answer, but as he started forward, the knock startled him. It had the familiar rhythm:

DUH, duh-duh-duh-duh, DUH. . .

He stood in silence, waiting for the final
DUH, DUH
. Instead, there was the voice he knew well:

“I’m
baaaaack
,” said Andie.

She couldn’t carry personal items—including a house key—when she was working undercover. Jack smiled as he hurried to turn the deadbolt and open the door. He barely got a look at her face before she burst across the threshold, threw her arms around his neck, and planted her lips on his. The passion was contagious, but finally she stopped for air.

“You’re blond,” he said.

“You like it?”

He wasn’t sure—but he was glad the FBI hadn’t forced her to cut her hair for her assignment. “Looks great.” He laced his fingers with hers and noticed she was not wearing the engagement ring he’d given her.

“Sorry,” she said, attuned to his discovery. “I love my diamond, but it doesn’t fit the undercover role.”

It was the most she’d told him about her assignment to date. “Are you going to tell what role that is?”

“If I told you . . .”

“I know, I know: You’d have to kill me.”

“That’s the bad news,” she said, smiling coyly. “The good news is: Wait until I show you my preferred method of execution.”

“So you
are
going to tell me?”

“No. In your case, I punish the ignorant.”

“You mean innocent.”

“Keep arguing, Counselor, and you’re going to end up with a suspended sentence.” She closed the door with a hind kick, her eyes never leaving his. “I have to be back at noon.”

Jack glanced toward the bedroom, then back. “That doesn’t give us much time.”

“I’m going to take a quick shower,” she said. “How about you join me?”

“Hmm. Very tempting, honey. But there’s absolutely no way we’ll get out of there without having sex, and sex in that teeny-tiny shower stall rates right up there with sex on a coffee table. Alluring in theory, but what the hell’s the point when there’s a perfectly good mattress twenty feet away?”

“You’re such a putz.”

“It’s a gift. I’ll open some wine.”

She kissed him and went off to the bedroom. Jack found a bottle of red in the wine chiller. His collection was comprised mostly of gifts from clients, and this bottle of Betts & Scholl Hermitage Rouge was from Mr. Scholler himself—an old friend who’d had the good sense to listen to his wife and buy up declining apartment buildings on Miami Beach right before
Miami Vice
made art deco cool again. Timing was everything in life.

“Jack,” Andie sang out from the shower, “naked, sex-starved woman wants her wine.”

Luck didn’t hurt, either.

“Coming,” he said, a glass in each hand.

Theirs was not the perfect engagement, but Jack had given up on perfect long ago, right about the time he’d discovered that his first marriage was the perfect storm. A man didn’t ask an FBI agent to marry him and then tell her not to do her job. No more than Andie would tell Jack not to do his—with the exception of Jamal Wakefield. Andie had made it her business to tell Jack to stay away from him. More than anything else—more than the grief he’d caught for defending an accused terrorist, more than the emotional burden of a murder case involving a blind cop and a dead teenager—Andie’s decision to step on his wing tips was eating at Jack.

A billow of steam moistened his face as he entered the bathroom.

“Here you go,” he said as he opened the shower door. She was gorgeous even when shaving her legs.

Andie gave him a kiss, took a long sip of wine, and handed the glass back to him. Jack leaned against the wall, keeping an eye on the blurred beauty behind the foggy shower door. And he was still thinking about Jamal Wakefield. He just couldn’t let it go.

“So you really don’t want me to take that case, huh?”

The shower door opened a crack. She had shampoo in her hair and a look of incredulity on her face. “You want to talk about that
now
?”

She disappeared back into the shower, and Jack tasted the wine from his friend’s vineyard. Timing was everything, it reminded him, but for Jack, “no time like the present” was the general rule.

Probably why the wine is Betts & Scholl, not Betts & Swyteck.

“It just took me by surprise,” said Jack. “You’ve never tried to steer me away from a case before.”

The shower stopped. Jack handed her a bath towel, and Andie stepped out, wrapped in terry cloth. She towel-dried her newly blond hair and then stood before the mirror, speaking as she combed through the snarls.

“Jamal Wakefield is bad news,” she said.

“Well, what does that mean?” asked Jack.

“It means you should stay away from him.”

“That’s your opinion.”

“I’m trying to help you, Jack.”

“Help me what?”

She put down the comb, a little flabbergasted. “Okay, if you were to take this case, you’d find this out anyway. So let me tell you now. After McKenna Mays was murdered, the police got a warrant and seized her boyfriend’s computer.”

“What did they find?”

“Encrypted files.”

“So what?”

“Encrypted files from known terrorist organizations,” said Andie.

“And you know this because . . . ?”

“Because I have friends who don’t want to see you embarrass yourself.”

“You mean embarrass you.”

“This isn’t about me.”

“It’s not? Really?”

Andie glared but said nothing. She grabbed her wineglass and walked out. Jack followed her to the bedroom.

“Look, I’m sorry, okay?” said Jack. “But none of this makes sense to me.”

“Well, exactly how much of my duty of confidentiality and loyalty to the FBI do you expect me to breach in order to keep you from making a huge mistake?”

“I don’t expect anything. I never asked your opinion.”

Her mouth fell open, and her chuckle of disbelief spoke more than words.

Jack said, “I didn’t mean that the way it sounded. It’s not that I don’t value your opinion.”

“Can we drop this, please?”

Jack breathed in and out. “I wish I could. But now I’m more confused than ever. This kid spent three years at Gitmo. They fingerprinted him there. Surely they ran his prints through every conceivable database and discovered that he was really Jamal Wakefield. Now you’re telling me that the FBI found encrypted files on his computer with links to terrorism. But no one at Gitmo ever asked him if his name was Jamal Wakefield. And at the habeas corpus hearing two days ago, the Justice Department let him walk for lack of evidence. I just don’t get it.”

“They didn’t let him walk,” said Andie. “They played their ace in the hole: They got the state attorney to indict him for murder.”

“Why play that ace? Why not just have the Justice Department tell the judge about his computer and keep him locked up on terrorism charges?”

“Because if you tell the judge about the computer, someone might want to see what’s in the files.”

“Someone like me?” asked Jack.

“Like any defense lawyer,” said Andie.

“Would that be the end of the world—if someone wanted to find out what was in Jamal’s encrypted files?”

“I don’t know,” said Andie. “But why risk letting that kind of information go public when you can keep an accused terrorist locked up for the rest of his life on a murder charge?”

“It’s all in the interest of national security—is that what you’re saying?”

“Yes.”

Jack suddenly recalled what Jamal had told him about the interrogators’ threats against McKenna in Prague.

“And what if Jamal didn’t kill McKenna? Would it still be in the interest of national security to keep him locked up for the rest of his life and keep his encrypted files secret?”

“What are you talking about?”

Jack took a long breath, then shook it off. “Nothing,” he said.

They stood in silence for a minute. Finally, Andie dimmed the light and turned on some music. The mood slowly changed. Andie walked toward the bed, and Jack ogled her like a sailor on shore leave as her towel dropped to the floor and she slid beneath the sheet. Andie had a telltale way of arching one eyebrow, and it always got Jack’s motor running.

“Are we going to talk all night?” she asked, peering across the room at him.

Jack swallowed the rest of his wine, then smiled.

“God, I hope not.”

Chapter Ten

A
ndie was gone by Friday at noon. Jack barely had time to ponder where her undercover assignment might have taken her. At three
P.M.
he was in Courtroom 2 of the Richard E. Gerstein Justice Building.

The media seemed to hover perpetually around the criminal courthouse, poised to capture the arraignment of a federal prosecutor caught biting a stripper, the verdict on a high-priced call girl who claimed that “nymphomania made me do it,” or some other “trial of the century”—Miami style. At the government’s request, however, Judge Flint had closed his courtroom to the public. The prosecution sat at the mahogany table to Jack’s left, closer to the empty jury box. Neil Goderich was at Jack’s side. Together, the defense had almost fifty years of trial experience, and greener lawyers surely would have felt outgunned by such an unusual pairing of government lawyers.

“William McCue on behalf of the state of Florida,” the assistant state attorney said, announcing his appearance for the record. “With me today, for purposes of this emergency motion only, is Sylvia Gonzalez of the United States Department of Justice, National Security Division.”

The judge peered out over the top of his reading glasses. “I must say it isn’t every day that I see a lawyer from the NSD’s Counterterrorism Section in my courtroom.”

Gonzalez rose to address the court. “This case presents special circumstances, Your Honor.”

“ ‘Special circumstances’? ” said Neil, rising. “Gee, and I thought ‘enhanced interrogation’ was the government’s only euphemism for ‘torture.’ ”

Beneath the table, Jack ground his heel into his partner’s big toe, and Neil struggled not to yelp. Gonzalez had been a consummate professional at the habeas proceeding in Washington, and Jack shot his cocounsel a look that said,
Tone it down.

“Neil Goderich of the Freedom Institute on behalf of the defendant,” he announced. “With me is Jack Swyteck, who has yet to decide if he has the set of you-know-what to take this case to trial, but he has agreed to assist me at this emergency hearing.”

Not sure what to do with Neil’s remark, the judge simply cleared his throat and moved on.

“I have before me the government’s emergency motion to prevent the defense from pursuing a frivolous alibi—specifically the defendant’s claim that at the time of the commission of the crime, he was held by the U.S. government in a secret interrogation site in the Czech Republic prior to his transfer to Guantánamo Bay, Cuba.”

Neil rose, eager to speak, even if he was out of turn. “Before we proceed, I have to say that this motion seems highly premature. We have not even informed the government that my client intends to pursue an alibi defense, and under the rules we are not required to do so until ten days before trial.”

“Does that mean you’re
not
going to assert an alibi defense?” asked the judge.

“They most definitely will,” said the prosecutor.

Neil smiled thinly, as if the prosecution had stepped into his trap. “I’m not sure how the government would know that, since Mr. Wakefield has never before stated publicly that he was detained in the Czech Republic. Unless, of course, the government knows from its own records that my client was, in fact, held at such a site.”

“We know because the defendant called the victim’s father from jail last night and told him,” said the prosecutor. “Mr. Wakefield dated McKenna Mays, and now that he has been indicted, it has apparently become important for him to convince Mr. Mays of his innocence.”

That took the wind out of Neil’s sails, and Jack felt his pain. A client who did something stupid from jail and then neglected to tell his lawyer about it was routine at the institute.

The judge said, “Given the national security issues raised by the alibi defense, I don’t see the motion as premature. Ms. Gonzalez, proceed.”

The Justice Department lawyer went to the lectern. It was almost taller than she was, and rather than disappear behind it, she stepped to one side to address the court.

“Judge, as anyone who reads the newspapers knows, the United States has acknowledged the existence of a limited number of so-called black sites—facilities at which enemy combatants were detained and interrogated prior to, or in lieu of, their transfer to Gitmo. As early as 2005, reports circulated about such sites in Afghanistan and at other locations in the Middle East. Later, however, unfounded rumors emerged about a possible site in an Eastern European country—perhaps in Poland, Romania, or the Czech Republic.

“Here, Mr. Wakefield claims that he was held in a secret facility in Prague. It is important for this court to understand that no one has
ever
produced a shred of evidence that a black site existed in the Czech Republic. The United States denies it. The Czech Republic has asserted that such reports are libelous.

“The Department of Justice has asked the state of Florida to file this motion because we anticipate that Mr. Wakefield’s attorneys will subpoena intelligence officers and demand classified documents to establish his alibi. If that happens, the Justice Department will file an action in federal court under the Confidential Information Protection Act to quash those subpoenas. That will only delay the trial, and we are sensitive to the fact that Mr. Mays, who lost his daughter, and Officer Paulo, who lost his eyesight, have already waited long enough for justice. Granting this motion would avoid further delay. Denial of this motion and allowing the defendant to pursue this alleged alibi would be tantamount to turning NASA upside down to show that he was abducted by aliens and taken to another galaxy.”

Neil rose, again a little too eager. “Judge, that is simply not true. Although the government refuses to admit it, there have been numerous reports about sites in Eastern Europe.”

“Rumors,” said the prosecutor. “No proof.”

The judge raised a hand, putting an end to the cross-debating. “Let me ask you this, Mr. Goderich. Is it true, as you just stated, that your client has never stated publicly that he was detained in Prague before going to Gitmo?”

“Well, yes. That is true,” said Neil.

“So am I to infer that Mr. Wakefield never told anyone that he was held in a secret detention facility until he spoke with the victim’s father last night—until
after
he was indicted for murder?”

Neil froze, seeing where the judge was headed. “I can’t answer that question without breaching the attorney-client privilege,” he said.

Jack did a double take. The implication was clear, and Jack didn’t think Neil really wanted to go down that road.

The judge leaned forward, as if he were cross-examining Neil. “Are you affirmatively representing to this court that prior to his indictment Mr. Wakefield told you that he was detained in Prague?”

Neil paused, and Jack could almost hear him tap dancing.

“I’m simply saying that I am unable to give a yes-or-no answer to that question without breaching the attorney-client privilege.”

“That’s nonsense,” the prosecutor said. “Mr. Goderich filed a detailed memorandum in federal court setting forth the entire history of his client’s detention. He wrote in detail about his apprehension by Ethiopian troops in Somalia and his alleged forced confession. He wrote in detail about his transfer to and detention at Gitmo. In fact, Mr. Wakefield pretended to speak only Somali for his entire three years in captivity, until he was charged with murder. If Mr. Wakefield had been detained in Prague, we would have heard of it by now.”

Neil fell silent, realizing his mistake.

Jack rose. “Judge, may I speak?”

“No. I’ve heard enough.”

“Shit,” Neil said under his breath. “I pissed him off with that attorney-client smoke screen.”

“The government’s motion is granted,” the judge said. “The defendant will be allowed to testify at trial about his alibi if he so chooses. But until you show me more than Mr. Wakefield’s own belated claims of a secret facility in Prague, the defense will not have the subpoena power of this court to compel government officials to testify or to produce records about an alleged secret facility.”

“But—”

“That’s my ruling,” the judge said with a bang of the gavel.

“All rise!” said the bailiff.

Jack and Neil climbed to their feet as the judge made his way to his chambers. The side door opened, the judge disappeared into his chambers, and the lawyers gathered their papers. Neil looked as if he’d just been shot in the chest—or worse, as if he’d shot himself in the foot.

“I’m sorry,” he said. “I’ve never dropped the ball like that in my life. What in the hell was I thinking?”

Jack wasn’t one to judge, especially when it was someone as talented and ethical as Neil. Besides, Jack suspected that something else was at work—something much bigger than a misstep by his co-counsel.

“No worries,” said Jack.

“Swyteck,” said the prosecutor, “may I talk to you privately for a minute?”

Jack and Neil exchanged glances. “I’ll meet you downstairs,” said Neil. He closed up his briefcase and headed for the exit, leaving Jack alone with the prosecutor.

“Here’s the deal,” said McCue. “Wakefield pleads guilty to both counts—first degree murder and attempted murder—and I won’t seek the death penalty. Life without parole.”

“That’s not much of a deal.”

“We’re talking about a teenage girl brutally murdered and a cop who was blinded trying to save her.”

“You should be pitching this deal to Neil Goderich.”

“I’m not offering it to him. In fact, I’m only giving it to you because—”

The stop was abrupt, and as the silence lingered, the reality washed over Jack, making his blood boil. “Because my fiancée asked you to?”

McCue didn’t answer, and his body language was anything but a denial. Jack glanced across the courtroom toward the lawyer for the Department of Justice—the same agency that Andie worked for. She averted her eyes.

“I’ll give you until Monday,” said McCue. “After that, it’s the death penalty. No more deals. No more favors.”

Jack took a deep breath as he stood and watched the prosecutors leave the courtroom, and he wasn’t sure who made him more angry: the arrogant assistant state attorney with his Washington ringer or the meddlesome new blonde who had stopped wearing her engagement ring.