False Testimony (2 page)

“How’s Chuck?” Harry stares at the snowy road ahead as he asks, a small smile tugging at the corners of his lips. He apparently finds it amusing that the Commonwealth’s senior senator is proving to be a less-than-model client.

“
Chuck
is the same as he was this morning,” I tell him. “Difficult.” I flip the heater in Harry’s old Jeep up another couple of notches and shift in the passenger seat to face him. He’s driving with one gloved hand, clutching a cardboard cup of steaming coffee with the other.

“Makes sense,” he says. “The guy’s usually the one calling the shots; he isn’t used to taking orders.”

“I’m not issuing orders, Harry. I’m offering advice.”

He smiles at me and then swallows a mouthful of coffee. “And you’re just the drill sergeant for the job.” He laughs.

Now there’s a sentiment every forty-something woman hopes to hear from the man in her life.

It’s three o’clock and we’re pulling into the Barnstable County Complex, headed up the hill to the House of Correction. We’ll spend the next couple of hours with Derrick Holliston, a twenty-two-year-old creep who’s accused of murdering a popular parish priest last Christmas Eve. Harry is Holliston’s court-appointed defender and—according to Harry—neither of them is happy about it. Holliston apparently thinks Harry’s efforts are less than zealous. And Harry calls Holliston a lowlife, a bottom-feeder.

Like it or not, Harry and I will spend the rest of the afternoon walking Holliston through his direct testimony. Tomorrow, to the extent possible, we’ll prepare him for cross. His first-degree-murder trial starts Wednesday morning. And unless Harry can convince him otherwise in the next forty-eight hours, Holliston intends to take the stand. He plans to tell the judge and jury that he acted in self-defense; that fifty-seven-year-old Father Frank McMahon made aggressive sexual advances toward him on the evening in question; that when Holliston resisted, the older man became violent. If Harry’s instincts are on target—and I’ve never known them to be otherwise—Holliston’s story is just that. Fiction.

Harry pulls into a snow-clogged spot and parks near the steps leading up to the foreboding House of Correction. He leaves the engine running, though, and shifts in his seat to lean against the driver’s side door. It seems he intends to finish his coffee before we go inside. “The guy’s a liar,” he says.

“You don’t know that, Harry. You think he’s lying, but you don’t know it.” Harry and I have had this discussion a hundred times over the course of the past year, but he can’t let it go. It’s eating at him.

“Trust me,” he says. “I know.”

“No, you don’t. Not the way the Rules of Professional Conduct require. There were two people in St. Veronica’s Chapel when it happened. One of them is dead. Holliston is the only living person who was there. No one can prove he’s lying.”

Harry shakes his head and stares into his coffee cup. He’s struggling with the ugly issue that confronts every criminal defense lawyer sooner or later: what to do when you believe—but can’t prove—your client’s story is fabricated. If he could prove it—before Holliston testifies—he could move for permission to withdraw from the case completely. His motion wouldn’t necessarily be granted, but at least he’d have a shot. As it stands, with nothing but his gut telling him his client’s a liar, he’s stuck. And once Holliston testifies, Harry will be stuck for good. At that point, even if he were to discover slam-dunk evidence of perjury, he’d be obligated to keep it to himself. The Massachusetts Canons of Professional Ethics say so.

Harry stares through the now foggy windshield and his eyes settle on the chain-link fence surrounding the House of Correction. The fence is twenty feet high—twenty-two if you count the electrified barbed wire coiled at the top—but Harry doesn’t seem to see an inch of it. He’s preoccupied, brooding even. And I don’t need a crystal ball to tell me his thoughts are back in Chatham, in the center of the small sacristy at St. Veronica’s Chapel.

“I can prove Holliston’s lying,” he says, still staring uphill. “Give me fifteen minutes alone with him—in a dark alley.”

“Listen to yourself, Harry. If you ever got wind of a cop saying something like that, you’d call him a miscreant. You’d raise the courthouse roof to suppress his testimony. And then you’d go after his badge.”

Harry nods, conceding all points, and drains the last of his coffee. “Come on,” he says, dropping the empty cup into a plastic bag dangling from the cigarette lighter. “Let’s get this over with.”

We emerge into the late-day mist and both lock our doors before slamming them shut. Most of the time, Harry doesn’t bother to lock his Jeep. Any thief dumb enough to steal this crate deserves to drive it for a while, he always says. But here in the county complex the rules are different. Harry locks without fail, not because he’s more concerned about car theft here than anywhere else, but because he’d rather not have an unexpected visitor waiting in the backseat when he returns.

The stone steps are covered with snow that melted a little during yesterday’s foray into above-freezing temperatures and then refroze during last night’s return to single digits. I opt to climb the hill beside the steps instead, where my boots can find a little traction in the snow. Harry trudges up the hill too, on the opposite side of the stairs, though he seems oblivious to the icy conditions. He looks down at the shin-high snow, one hand clutching the battered schoolbag he carries in lieu of a briefcase, the other tucked into his coat pocket. “So what did you tell old Chuck?” he asks, glancing sideways at me. “What are his marching orders?”

“I didn’t give him marching orders, Harry.”

“Oh, right.” He removes his free hand from his pocket and taps his temple. “Advice,” he says, feigning the utmost seriousness. “You gave him lawyerly advice. What was it?”

At six feet, 210, Harry has a good half foot and ninety pounds on me. But I’d like to clock him upside the head anyway. “Simple,” I say. “I told our senior senator to keep his mouth shut.”

Harry laughs out loud, sending a cloud of white vapor into the cold air ahead of us. “Simple? Are you serious, Marty? The guy’s been a politician his entire adult life. You think it’s going to be simple for him to keep his mouth shut?”

I walk ahead of Harry as the guard at the front booth presses a button that opens the prison’s enormous double doors, two slabs of black steel in the center of a redbrick mountain. “It better be,” I answer over my shoulder. “The guy’s front and center in a high-profile missing person case. And the young woman’s been gone four days now. He damn well better keep his mouth shut.”

The front desk is manned by two guards who would look ominous even without their shiny weapons. They greet us with silent nods and wait, knowing we’ll jump through the institutional hoops without instruction. We hand over our Massachusetts Bar cards to be checked against the list of warden-approved appointments. We empty our pockets of keys, paper clips, and coins. We turn in our coats, hats, and gloves. I surrender my Lady Smith as well and Harry pulls Derrick Holliston’s thick file from the old schoolbag. The file goes in with us; the bag stays here.

Once each of us is stripped to a single layer of clothes, we’re directed—one at a time—through the metal detector beside the desk. Neither of us sets if off, which comes as a great shock to everyone in the room. This particular machine usually shrieks at all of us—for no apparent reason. A third guard meets us on the other side of it, his expression wary. He looks like he’s about fifteen and his eyes say he’s already made up his mind about Harry and me. Our failure to set off the alarm renders us suspect.

We wait with the vigilant guard—our assigned escort, I presume—while the two at the front desk rummage through Holliston’s file. They seem to think we might have hidden something sinister amid our pretrial motions. A miniature hacksaw, perhaps, along with a diagram of the escape route voted most likely to succeed by the county’s cleverest guests. Minutes pass before they apparently conclude that the overstuffed accordion folder holds nothing of interest. They turn it over to the cautious one, who directs us toward the dingy corridor behind him with a toss of his crew-cut head.

Harry and I lead the way, our escort three paces behind with the file tucked under one arm. “Stop right there,” he orders soon after we pass the first door on our left. We do, knowing he allowed us to walk past our destination on purpose. It’s a device some of them use—mostly the new guys—to avoid ever turning their backs to their charges, no matter who their charges happen to be. His key is already in the lock when we turn to face him. He keeps his focus on us as he opens the door and steps aside. He hands the file to Harry when we approach and Harry enters the meeting room first. As I follow, the young guard assumes a sentinel’s pose in the hallway and gives me a gentlemanly nod.

Our client is already here. Derrick Holliston is seated at a small, banged-up card table and I’m initially surprised to see he’s free of restraints. I shouldn’t be, though. This eight-by-ten room is windowless—the air in it long past stale—and its solitary door locks automatically. The accused isn’t going anywhere.

Harry drops the heavy file onto the table and roots through his jacket pockets until he comes up with his glasses. “This is Marty Nickerson,” he says to Holliston as he puts them on. “She’ll sit second-chair at trial.”

Harry and I frequently second-chair for each other. Limited resources dictate that only one of us actively works each file, but when a trial rolls around, an extra set of eyes and ears can be critical. The second chair also takes a witness or two in most cases, giving lead counsel a much-needed breather. We’ve decided I’ll handle Tommy Fitzpatrick in this one. He’s Chatham’s Chief of Police. And I was an ADA long enough to establish a pretty good rapport with him.

Holliston stares at me for a moment, then turns his attention back to Harry. “Good,” the less-than-satisfied client says. “You need help.”

Harry looks over his glasses at Holliston and smirks, but otherwise lets the remark pass. He sits and starts unpacking the file without a word. I retrieve my own glasses from my jacket pocket and then claim the only remaining seat.

“First of all,” Harry says, opening a manila folder in the middle of the table, “let’s go over the Commonwealth’s offer again.”

“Let’s not,” Holliston says, mimicking Harry’s cadence. “Let’s tell the Commonwealth to stick its lousy offer where the sun don’t shine. I told you—I ain’t doin’ time. Not for this one.”

Harry leans back on two legs of his chair. “You are if you’re convicted,” he says evenly. “You’re doing endless time.”

“Well, now, that’s where you come in, ain’t it? You got a job to do, remember? You’re the guy whose job is to get me off.”

On the surface, Harry appears entirely unaffected by his client’s comments. But I know better. He’d like to deck this smart-ass.

“I’m also the guy who’s supposed to advise you,” he says, his words measured. “And I’m advising you to seriously consider pleading out.”

“Yeah? Well, you can stick your advice right up there with the offer.” Holliston stands, folds his arms against the chest of his orange jumpsuit, and presses his back against the wall. He’s a wiry man, five-ten or so, with a sketchy mustache and greasy brown hair that hangs below his collar. His pallid complexion is partially covered by a five o’clock shadow—yesterday’s and today’s, I’m guessing. “I told you a hundred times,” he says, jutting his chin out at Harry. “No deal. What’re you, deaf?”

Holliston reaches up to the low, suspended ceiling and dislodges one fiberglass square. He peers into the opening, presumably expecting to find the treasure he stashed up there the last time he was here.

“Did you lose something?” Harry asks.

Holliston glares at him like an impudent child. “No, I dint
lose
nothing,” he says. He goes back to examining the gap he created, appearing to be in no hurry to continue our discussion. “I was an electrician in a prior life,” he says. “I like wires.”

Harry laughs. “I’m surprised you had a job in your prior life,” he says. “That’s more than you can say this time around.”

Holliston glares at him again.

“What’s the offer?” I ask them both.

“What’s the difference?” Holliston demands.

“Humor me,” I tell him. “Generally speaking, I try to learn a fact or two about each case before trial begins. Crazy, I know.”

“Murder two,” Harry says. “Eligible for parole in fifteen. And he’ll get it if he keeps his hands clean and his mouth zipped.”

“You can’t
not
consider it,” I tell Holliston.

He turns toward me, his eyes wild, apparently infuriated by my audacity. “You don’t know a goddamn thing about it,” he says.

“You’re wrong there,” I tell him, meeting his angry eyes. “I know a few things. I know you’re looking at life if you get bagged for murder one, for instance. I know life means life, as in, until you draw your last breath behind bars. And I know this deal gets you out in your late thirties—still young enough to build a decent future. Only a complete fool would reject it out of hand.”

Holliston snorts and spreads his arms wide, as if he’s onstage and the house is sold out. “What’s with you people?” he asks. “First I get this guy”—he tosses his head toward Harry—“wantin’ to sell me down the river. And now you come in here tellin’ me I don’t need to have a life till fifteen years from now. What the hell kind of sorry lawyers are you? Ever hear of stickin’ up for your client, for Chrissake?”