Misfortune (23 page)

“My friend here…” Bender paused for dramatic effect and touched his client’s right shoulder as he looked up at the judge. “Bill Avery has suffered more than you’ll ever know, Your Honor, more than any punishment our fine system of jurisprudence could ever mete out. He’s received more punishment than any period of incarceration could ever signify. He’s suffered the shame of his family, of his community, of his colleagues at Mitchell and Avery Investment Advisors, and of his fellow parishioners at Saint Francis. He’ll have to explain to his sons what has happened. He’ll have to live with this, this…” Bender cast his eyes upward, as if searching the heavens for assistance. “I implore you, Your Honor, to let him return to his family and begin to put this horrible episode behind him.”

Bender’s gaze hung for a moment on Judge Frank Cohen, who wrote something on the pad in front of him and then turned to Frances. “I’ll hear from the assistant district attorney. Ms. Pratt,” he prompted her.

Frances rose and buttoned the front of her dark green gabardine jacket. She felt the pull of the fabric in back and, for a moment, considered undoing the front button. No, she decided. Too much fidgeting with her attire might make the judge think she was nervous, which she was, but she wouldn’t give Judge Cohen, or Bender, for that matter, the satisfaction of seeing into her soul.

Frances looked down at the notes in front of her, the sum total of her labors from the night before. Pushing images of Clio’s body from her mind, she had forced herself to concentrate. The Avery prosecution was important, too. The criminal process marched on despite a death in the Pratt family.

Even without the distractions, though, Frances’s argument was difficult to fashion because she knew almost nothing about the middle-aged man in the black robe who now stared down from his perch in the front of the courtroom. Judge Cohen was relatively new to the bench and hadn’t come from the criminal bar. A politically connected New York corporate lawyer with a substantial home on the beach in Westhampton, he apparently had decided to spend his remaining work years presiding over a courtroom in Suffolk County. Rumor had it that Judge Cohen was liberal, even though he had run on a Republican ticket. If so, Frances could only hope that, while he may be lenient toward defendants convicted of crimes of poverty—drugs, robbery, domestic abuse, crimes that arose out of addictions and lack of opportunities—he would have little sympathy with a relatively affluent defendant who had simply gotten greedy.

The problem Frances perceived was that Avery could have been one of Judge Cohen’s own corporate clients. He looked the part. Avery’s black hair was parted on the right side and held in place by a slick of goo that emanated a spicy, clean odor. He wore a khaki suit and striped shirt and tie, held his collar in place with a gold tie pin, and kept his hands clasped together in front of him as though he still wore handcuffs, which the bailiff had removed more than an hour ago. Avery’s brown eyes were rimmed in red and seemed shrunken in his round, blotched face. Frances had to admit that he did look genuinely sad.

Appearances aside, jail time for defendants of so-called white-collar crimes, a phrase Frances had never really understood, was hard to come by. The defendant had no criminal record; the amount of money stolen was small by financial crimes standards, and what Bender said was true: Avery had the trappings of being a good guy. But jail time was warranted, Frances had no doubt. She just had to remind the court of the victims, an elderly couple from Avery’s own congregation who had entrusted him with their life savings. How was this any different from sticking his hand in the offering plate and making off with cash? Mary Lou and Roger Horton, who had spent every day of the trial in the front row of the courtroom, were completely wiped out. These people would not be able to put the “horrible episode” behind them. They had to live with the consequences immediately and forever. At seventy-eight years old Mary Lou was going back to work, scooping cookie dough ice cream for $6 an hour at the Candy Kitchen because William Howard Avery III had absconded with her retirement fund.

Frances began. “I’m not going to waste the court’s time. Your Honor presided over a lengthy jury trial and heard all the facts, including the defendant’s own self-serving testimony, which, I might point out, the jurors obviously disbelieved. Mr. Bendleton argues that his client’s been punished enough. I ask you, how much is enough? Mr. Avery had a prosperous investment business. He didn’t need money. He used his contacts in his community and his church to lure Mary Lou and Roger Horton into his carefully planned scheme. These people had worked and saved for more than forty years so that they could enjoy a peaceful, comfortable retirement. Then he stole their money. They trusted him to act on their behalf, and he betrayed that trust for personal profit. He spent their life savings on luxuries for himself. It is the coldest, most calculating type of greed imaginable. Any shame he has suffered is nothing compared to the hardship and suffering he has inflicted on the victims in this case.” Frances turned toward the back of the courtroom. She wanted the judge to focus on the two wrinkled faces huddled together, the human dimension of her prosecution.

“For this reason, Your Honor, the people request that the defendant be sentenced to a two-year period of incarceration and ordered to make restitution in the amount of $517,386.”

Bender was on his feet. “Your Honor, my client—”

Judge Cohen cut him off. “Sit down, Mr. Bendleton. You’ve had your turn.”

Then he turned to Frances. “How are you contemplating restitution if the defendant is in jail?”

“The defendant has substantial assets, including the boat that was purchased with money stolen from the Hortons, the house in Riverhead where he and his family live, and, I believe, he still owns the condominium in Florida.”

“The bank owns it. There were foreclosure proceedings several weeks ago.” This time Bender spoke without rising.

“The point is,” Frances continued, “this defendant is not without means. I’m sure he’s been able to pay significant sums for the first-rate representation he’s received.” Frances smiled at Bender, pleased with her own attempt at sarcastic humor. “He should be ordered to make restitution. If he liquidates his assets and still has a shortfall, he can serve an additional six months on a suspended sentence to make up the remainder, but the restitution order should be entered as a condition of his probation. These people deserve to get their money back.”

Judge Cohen sat silent for a moment. Frances was unsure whether to continue or to give him time to think. As she debated how to proceed, he spoke. “Ms. Pratt, while I understand your concern, and I, too, am sorry for what the victims have been through, this court is not in the collections business. The Hortons are entitled to bring a civil suit, obtain a judgment, attach assets, and use any other legitimate means at their disposal to get their money back. In fact, I would strongly urge them to do so. But, I repeat, that is not the business of the criminal courts.”

“Recouping the money they are owed will be small recompense for the hardship these people have suffered. Your Honor, please don’t make them go to the additional expense and agony of a civil suit. It’s within your power to order restitution along with any sentence you may impose.”

“There is a limit to what I’m willing to do. Mr. Avery has a family. Besides, if Mr. Bendleton’s account of his client’s finances is accurate, you can’t get blood from a stone.”

“Your Honor—”

“I am making my ruling. The defendant is sentenced to one year suspended for two and ordered to pay a fine of ten thousand dollars. Mr. Bendleton, I expect payment by Mr. Avery no later than close of business tomorrow. You may make arrangements with the probation department.”

Before Frances could interject a further word, the court officer announced, “All rise.” Judge Cohen stepped down from the bench and disappeared into his private chambers through a door at the back of the courtroom.

A year suspended.
Frances stood perfectly still. Not a day in jail. Not even the money he stole returned. Avery would be on probation for two years, free to do as he pleased. That was it. Basically, his $500,000 theft cost him only $10,000, plus Bender’s fee. Easy money. The investigation and prosecution had cost the state of New York significantly more than that between overtime for the investigators, grand jury fees, and time spent by Frances, plus the court expenses incurred from a two-week jury trial. This was the system.

Frances couldn’t bear to move. She couldn’t face the Hortons’ inquisitive expressions as they looked to her to explain what kind of justice they had received.

Frances listened to the shuffling of feet and the low murmur of voices as the spectators filed out of the courtroom. She heard Avery thanking Bender, and Bender offering to buy his client lunch. Sissy Avery squealed something in delight, presumably, as she threw her arms around her husband’s neck. She would be able to keep the diamond pendant purchased with the Hortons’ hard-earned cash. The little Averys were probably there, too, hugging Dad and praising Bender for saving their father. They could all go home together and ride around in their fancy motorboat without a care in the world. It made Frances sick.

“Miss Pratt?” She heard the unmistakable voice of Roger Horton close behind her. She turned to see him and his wife standing a few feet from her, their eyes desperate for an explanation. They were dressed impeccably. It was ironic that the victims seemed to respect the majesty of the legal system. Mary Lou’s white hair was enclosed in a net so that it didn’t stir, although her head trembled slightly. She dabbed at her eyes with a pale blue handkerchief held between gloved hands. Roger had one arm around his wife’s waist and supported himself with the other by resting it on the bar that separated the counsel tables from the public seats.

“What happened?” he asked.

“Will he pay us back?” Mary Lou’s voice was high-pitched but soft.

Frances shook her head.

“Why not? The jury found him guilty.”

Frances took a deep breath and exhaled slowly. “Yes.” The words felt like rubber cement on the roof of her mouth. “The jury did find that Mr. Avery stole your money. Unfortunately, though, the judge didn’t want to send the defendant to jail. He didn’t even order Avery to give you back your money.”

Both Mary Lou and Roger had expressions on their faces that Frances couldn’t read. Did they not understand or, like her, were they shocked by the unfairness of what had just transpired?

“Judges in state court have discretion over how to punish defendants. We talked about that before the trial ever began. Judge Cohen apparently felt that a fine and a period of probation was sufficient punishment. I can’t lie to you. It’s a terrible outcome. I thought, given how well the trial went, that we would get a better result. I don’t know why this happened.”

“What did the judge mean by a year suspended?” Mr. Horton had been listening closely to the precise words of Judge Cohen.

“With a suspended sentence, if Avery does anything to violate the conditions of his probation, his sentence, in effect, becomes ‘unsuspended’ and he goes to jail for a year. But since there are no special conditions of probation, he simply has to report to his probation officer and stay out of trouble—not socialize with known felons, not commit a felony himself, all things that will be pretty easy for Avery to do.” Frances looked at the Hortons, realizing that her explanation was futile. The Hortons wanted their money back, and they wanted Avery punished. They had gotten neither, and there was nothing more that Frances could do. “Judge Cohen recommended that you file a civil lawsuit. That’s something you may want to consider.”

“But we haven’t any money to pay for a lawyer. As it is, we’re just managing on our Social Security and the bit that I earn at the Candy Kitchen. If Roger’s arthritis were better, perhaps—”

“You might be able to find someone who’d be willing to represent you on a contingent fee, meaning that you’d only have to pay your lawyer when you had a recovery. The criminal conviction will make the civil suit very easy. I can get you some recommendations for good civil lawyers.” Nausea washed over Frances as she spoke. Assuming a contingent fee lawyer could recover most of the money from Avery, it would still end up costing the Hortons one-third, more than $150,000, fifteen times what Avery’s theft cost him.

“How long will that take?” Roger Horton said.

“I don’t know.” Frances couldn’t bring herself to tell them that it could be years before they saw any money. The civil docket was jammed. Even if the Hortons got a quick judgment against Avery, they would still have to attach assets, force a sale. They could lose additional time if they got bogged down in an appeal. The morass was too hard to explain. “I’m sorry. I truly am. I wish the outcome had been different.” Frances turned away, not wanting the Hortons to see the tears that welled in her eyes. They had counted on her to help them and she had failed. Blaming it on the system was a feeble justification for her inability to deliver a favorable result.

Frances cleared her throat. “Let me see what I can find out for you about contingent fee lawyers. There’s also the possibility that I can get you some money from the Victims Assistance Program. It’s an organization that generally compensates only victims of violent crime, but maybe there can be an accommodation in your case. Why don’t we talk tomorrow.” To steady her nerves, she focused on gathering up her papers.

“What time tomorrow will you know?” Roger Horton asked.

“As early as possible. I’ll call you at home. I promise.” Frances stuffed her file back into her briefcase and walked quickly out of the courtroom.

Frances wished there were a back entrance to her office, a way to avoid the crowd of colleagues eager to express condolences, inquire about details, and otherwise involve themselves in the death of her stepmother. An early arrival at the office of District Attorney Malcolm Morris would have provided the opportunity to slip in unnoticed, but by ten o’clock the rumor mill had worked its wonders. Now the litany of sympathetic phrases showered forth.