Bear Is Broken (7 page)

“What’s for lunch?” I asked. “Suicide bombers?”

It was a cheap shot. Did I imagine he was going to close his restaurant
and preserve it as a shrine to my brother? It wasn’t his fault Teddy had
been shot there. He straightened, then got to his feet so slowly that
he might have spent the last twenty hours down there. From the look
on his face I guessed he was going to come over and push me out the
door, but when he’d walked halfway across the room he stopped, and
the irritation froze in his eyes. “Jesus, you’re the dude who was with
him.” He sighed. “I’m sorry, it’s just that we’re closed. But if there’s
anything we can do…”

I got out of there before he could offer me a complimentary gift
certificate for my inconvenience.

~ ~ ~

A couple of camera trucks were double-parked outside the courthouse,
but I didn’t immediately connect their presence with my
situation. I went through security and rode the elevator up from the
rotunda. As I rounded the corner I saw that the fourth-floor hallway,
which was normally deserted, was occupied by half a dozen reporters
and a pair of camera crews. The jurors were waiting on the benches
at the far end of the hallway. They were hands-off, but I received no
such deference.

The outer doors of Judge Iris’s courtroom were locked, and I banged
on them, hoping to rouse the deputy. The reporters gathered around me
and I turned, not liking to have my back to them. A TV anchor stood
next to me, a woman in a pantsuit over a low-cut blouse. She stuck her
microphone under my jaw and spoke in the intent auctioneer’s style her
kind have adopted. “Mr. Maxwell, do you have any idea who might have
wanted to kill your brother?” As she asked the question her eyes focused
somewhere behind my face, behind the door. Standing so close, I saw
that she was bored with the question, bored with me, bored with murder.

I just stood there like a poorly animated corpse until the sheriff ’s
deputy assigned to Judge Iris’s courtroom unlocked the door. He stared
at me for a moment, as if the courtroom were the last place he’d expected
to see me this morning. Then his face sagged, and he gave a little nod and
let me by him. The reporters and jurors had to wait in the hall. While
he relocked the doors I went on through the low swinging gate that
divided the spectator gallery from the counsel tables. I had to remind
myself to sit in Teddy’s chair, on the side closest to the jury. I arranged
the contents of my borrowed briefcase in front of me. There was a dry
rasp in my throat, and a muscle in my leg kept twitching. I couldn’t seem
to follow any thought to its conclusion.

The court clerk came through the door at the back of the courtroom,
the one that led to the judges’ chambers and to the secured hallway
through which prisoners were brought. “Oh,” she mouthed, stopping
short as she saw me. Without a word she turned and disappeared back
through the door she’d just entered. I heard the wooden heels of her
shoes clopping as she went toward the judge’s chambers.
Someone else hammered at the doors at the back of the gallery.

The deputy slowly rose from his chair, keeping his eyes glued on
his spread-out
Contra Costa Times
even as his body stepped around
the desk. Finally he tore himself away and went to let in the assistant
district attorney, Melanie McRae, your archetypical DV prosecutor,
impassioned and ambitious—and very, very good. Melanie wanted Ellis
in prison for the next dozen years, and the only thing standing in the
way of her getting what she wanted was me—and of course the jury.
Yesterday during her closing statement, she had seemed to hold the
jury in the palm of her hand.

She came right up to the defense table with her briefcase and her
giant tablet, which she’d used to great effect during that statement.
With a fat Sharpie of the kind preferred by juvenile graffiti artists, she
had written on the tablet in foot-high letters words like
Liar, Adulterer,
Wife Abuser, Rapist
, underlining each several times.

“Mr. Maxwell—Leo—I’m sorry about your brother.”

I didn’t like her standing so close. “Thank you.”

“It really isn’t necessary for you even to be here, you know,” she said
in what Teddy had labeled her sweet mother voice. “All that’s going
to happen is that the judge will declare a mistrial. Obviously the case
can’t proceed. This jury is irrevocably tainted.”

“Mr. Bradley has retained me as his attorney. And we’re going to
proceed.”

Her face changed. All the sympathy drained away. “We’ll see about
that,” she said.

The clerk returned and sat at her desk. “Judge wants to see you both
in chambers,” she said to Melanie without looking at me.

If that clerk showed up in my jury pool I’d have struck her in a
second. Thank you for your service, ma’am, don’t forget to validate
your parking.

Melanie had rounded the prosecution table. I made a show of letting
her go ahead, following half a step behind down the secured hallway
to Judge Iris’s chambers.

I’d been back here once with Teddy for a pretrial conference. Catherine
Iris was in her late fifties, a former big-firm partner regarded by the defense
bar as generally fair. Unlike many judges, she seemed to care what
the lawyers who practiced in her courtroom thought of her. This made
Teddy uneasy. He always felt most comfortable when a judge was out to
screw him. “Because then you don’t let your guard down for a second,
which you might do if you start thinking of the judge as your friend,”
he said. “Never put your head in the tiger’s mouth.”

Melanie knocked, and we went in. Judge Iris sat behind a desk the
size of a Suburban. Her robe hung from a coat stand by the door. She
wore a V-necked cream-colored sweater and gray slacks. “Sit down,”
she said, watching me with troubled eyes.

I perched on the couch in front of her desk. Melanie hesitated, then
sat next to me. I moved over but I was still closer to her than either
of us wanted.

“Your brother was—is—a very—skilled lawyer.” Judge Iris chose
her words carefully. “There are going to be a lot of sad faces over at
the jail today. And around here, too,” she hastened to add. “It’s been
an education to see him at work. All these years I’ve heard about the
magic, but I’ve never had Teddy Maxwell in my courtroom until these
last few weeks.”

“Thank you, Your Honor.”

“I take it you’re here today to stand in for him.”

“That’s right. Mr. Bradley has retained me to represent him. I’ve
had my bar results for”—I made a show of checking the date on my
watch—“six days now.”

“Your Honor, the state intends to move for a mistrial,” Melanie
interjected. “Without prejudice, of course. We’ll plan on retrying Mr.
Bradley as soon as possible.”

“All that’s left is the closing argument,” I said reasonably. “My client
wants to proceed.”

Melanie sat back and was suddenly much closer to me. “There
isn’t a person with a pulse in the city who hasn’t heard about this
shooting.”

“We can poll the jury,” Judge Iris said.

I had no doubt that Judge Iris and Melanie were capable of this
same dialogue without my participation. Still, I had my arguments
prepared, and thought I might as well use them. “The way I see it,
Your Honor, there’s no clear prejudice either way. The DA may not
like how the evidence came in, but that’s neither here nor there. This
horrible event shouldn’t be an opportunity for the state to take another
crack at Mr. Bradley. Whatever happened to my brother, it wasn’t Mr.
Bradley’s fault, and as long as he doesn’t consent to a mistrial, the state
shouldn’t be able to try him again. He has a constitutional right to a
speedy trial and not to be put in jeopardy twice for the same offense,
and he wishes to assert those rights and move forward.”

Judge Iris looked at Melanie with raised eyebrows. “Counselor?”

I felt my first ruddy flush of success, like good Scotch spreading
warmth from the pit of my stomach.

Melanie shrugged. “If Mr. Bradley wants to roll the dice, I’m happy
to let him. I feel pretty good about the way the evidence came in. I
thought we were doing Mr. Bradley a favor by offering a mistrial. If your
client wants to turn down that offer, the state is content to proceed.”

Judge Iris was waiting for her to finish. “We’ll poll the jury. You can
make your mistrial motion, Ms. McRae, and I’ll consider it based on
what the jurors say, if the shooting will prejudice them either for or
against Mr. Bradley. I assume your advice to your client about proceeding
would change, Mr. Maxwell, if my polling indicates that this
event has turned a significant number of jurors against your client.”

“Yes, Your Honor, I suppose it would have to change.”

“All right, then. Let’s go out there, and we’ll call in the jury, and
I’ll ask them what they’ve heard about the shooting and whether that
news will affect their deliberations in any way.”

Melanie hastened to add, “And the state intends to request a jury
instruction to the effect that the news of the shooting should not affect
the jury’s deliberations in any way, in the event that Your Honor
allows the trial to proceed.”

I saw what she was doing. If we were going to go forward, she was
going to throw it in their faces, insist so stridently that the shooting
mustn’t affect their deliberations that the jurors would begin to wonder
if it should, whether we were hiding something important.

“We’ll cross that bridge when we come to it,” Judge Iris said, saving
me from having to respond.

We went back into the courtroom. The reporters and a few spectators
had been admitted to the gallery, but the jurors were still
outside. The moment of truth was close, and I could not remember
how I’d meant to begin. I needed to review my notes. The deputy
had brought in Ellis and seated him at the defense table. I gave him
a thumbs-up. He shook his head, looking sick to his stomach. He
had on his gray suit and a purple shirt with a black tie. Teddy had
gone to his house with a sheriff ’s deputy the weekend before trial
to retrieve a selection of clothes. The judge had been keeping them
for us in her chambers.

“Okay,” I said to Ellis. “The judge is going to ask the jury if they
heard about what happened to Teddy, and whether it’s going to affect
their deliberations in any way. The jurors want to finish this trial as
much as we do. They’ve been sitting here for two weeks the same way
we have. So it’s really just a formality. I doubt any of them is going to
want to get out of it at this stage.”

“And then you’re on,” Ellis said in a tense voice, one of regret and
fear. He wouldn’t look at me. I knew I ought to ask him whether he
wanted to accept the DA’s offer of a mistrial. I didn’t say anything. If
someone had told me I didn’t have to give that closing argument, I
would have kissed him on the lips.

“All rise,” the deputy said. “The Superior Court of San Francisco
is now in session, the Honorable Catherine Iris presiding.” She came
in and took her place on the bench. The court clerk called the case. It
was all as ritualized as a church service where the officiants have long
since forgotten the meaning of the prayers. “All right,” the judge said.

“Anyone have anything to put on the record?”

“Yes, Your Honor.” Melanie stood, resting her fingertips on the
glass-covered table. “The state moves for a mistrial without prejudice,
based on the fact that defense attorney Theodore Maxwell was critically
wounded in a shooting just a block and a half from this courtroom
yesterday prior to the conclusion of arguments. Reports of the shooting
have saturated local news media, and it is the state’s belief that the
jury has become irrevocably tainted.”

“Counselor?”

It took a moment for me to realize that the judge was looking at
me. Thinking that we’d been through this, I feared that they were
playing a trick on me, that what I had thought would happen was not
happening. Perhaps the judge was going to change her mind and rule
in the DA’s favor. My face burned. Judge Iris said, “We’re just making
a record here, Counselor. What we were talking about in chambers.”

There was subdued laughter from the gallery. Feeling my face grow
hotter, I managed to blurt out something about my client’s constitutional
rights, a garbled version of what I’d said before.

I was barely finished before Melanie said, “Your Honor, the state
requests that the jury be polled.”

“Very well,” Judge Iris said. “I will poll the jury. Deputy, please ask
the jurors to come in and take their seats.”

I felt Ellis stiffen. I didn’t dare look at him now. My eyes were on
the notes I’d made for the closing argument. I was too nervous to read
them, but I stared down at them just the same, willing the words to
resolve into meaning. Then I heard the doors open at the back of the
courtroom. I jerked upright, standing as Teddy had taught me whenever
the jury came or went, elbowing Ellis to remind him to stand with
me, as a gesture of respect for the jury’s service and for the power they
held over his life. I glanced at their faces, trying to remember which
ones were likely with me and which against me, and which might be
on the fence. There were fourteen, twelve jurors and two alternates. A
few of the jurors studied me as they followed the deputy through the
swinging gate, their movements stiff under the scrutiny of the journalists.

One woman around my age gave me a little pursed-lipped smile
of sympathy. An older man looked at me suspiciously, as if imagining
I might have tried to kill my own brother. Dear God, I prayed, just
give me a hung jury.

For Teddy, it would have been blasphemy to hope for any result
short of total acquittal.

The judge polled the jurors one by one, asking them if they’d heard
about the attempted murder, if they realized that it had been Teddy
who was shot, if it would affect their deliberations in any way. This
was the first time since selection that they’d been called on to speak.
Their eyes flashed to the reporters, to the judge, to the DA, but most
of all to me. After two jurors answered that they could be fair, Judge
Iris began to phrase it as a leading question. “And what’s happened
won’t have any effect on your deliberations in this case?” she asked, and
each juror answered no, though I could see a few of them wondering
if maybe it should. Otherwise, why would she ask?