When Men Betray (37 page)

After what must have seemed an eternity to Sam, Marshall said, “Well, what do you propose?”

“I'm reluctant to close my case at this point, unless the court advises, prior to my resting, that I've met the burden of proof.”

Marshall remained silent.

“If, for purposes of this preliminary hearing only, Jack would stipulate that the bullet fired from Exhibit 13 killed the senator, we could avoid the third alternative.”

“The third alternative?” Marshall asked.

Sam looked apologetic. “I continue to put on eyewitness accounts of what happened that day, while I ask this court to give me an order to exhume the body of the senator. I'll have to notify the family and give them an opportunity to be heard. I'm sure nobody wants to be the one to tell Lucy Robinson we need to dig her husband up. Investigators
and crime scene specialists are still scouring the rotunda for the bullet as we speak. We're searching the funeral home that handled the body and have requested their records, but unless something has been found in the last hour or so, I'm out of options. I can't afford to rest my case without the benefit of the court's ruling or Jack's stipulation, because I don't want an appellate court to find that a dismissal is appropriate and double jeopardy applies. But I'd really like to avoid an exhumation.”

Marshall kept his judicial demeanor. “Before I comment on your suggestions, I'd like to have as much information as possible. Normally, you wouldn't have to tell me or defense counsel what happened, but it might help me to decide what to do next. It also might help the defense as well.”

Sam cleared his throat. “From what I can understand, there was a mad scramble for the exits after the shooting. The crime scene was badly compromised, but the investigative team arrived and did their best to preserve the evidence. No bullet was found, and the investigators figured that the bullet was lodged in the senator's brain. Hundreds of photographs were taken, and the senator's body was taken to the hospital where he was officially pronounced dead. His body was then sent to the morgue for an autopsy. That evening, after most everyone had gone home for the day, Lucy showed up with her lawyer. She demanded that her husband be released to the funeral home, and whoever was on duty was so intimidated he allowed the release of the body. The next day, when the pathologist couldn't find the body, he assumed the police or some higher-up had intervened. We all know that Russell was buried Monday, and on Tuesday evening, I was told we didn't have a report from the medical examiner, a ballistics report, or the bullet.”

I could easily imagine Lucy intimidating someone on the graveyard shift of the morgue. Why had she been in such a hurry?

Marshall sent the clerk out to tell the gallery that court was adjourned for the day. Maggie offered to go out as well and tell our crew not to wait. I asked that Woody remain in the holding area so I could consult with him later. I knew Helen would be upset, but I trusted Beth and Jeff to take care of her.

Marshall waited patiently. The silence was uncomfortable, to say the least. He took off his robe and loosened his tie, but he sure didn't look relaxed.

I whispered to Micki, “I'll do the talking.” I knew what she wanted me to say, but I wanted to hear what Marshall had to say first.

When everyone was back and seated, Marshall said, “Sam, I appreciate your candor and your willingness to accept responsibility for the mess we're in. I have no doubt that whoever is responsible appreciates your taking the blame as well.” He glared at Sam's deputy who had blustered earlier about Micki's use of the word “allegedly.”

“I wish this matter had been brought to my attention this morning when I asked if there were any problems, but as my grandmother used to say, ‘If wishes were fishes, we'd all be kings.'”

I smiled to myself—more grandmother wisdom.

“I'm reluctant to advise either side where the evidence stands right now relative to probable cause. The appellate court in this state frowns upon an advisory opinion, and until we hear from any witnesses the defense may call, such a request is premature. No matter how much I'd like to ease your office's conscience, I'll not give you any indication, one way or the other, as to whether you've met your burden.”

Fortunately for Sam, Marshall wasn't through. “Jack and Micki, I also can't tell you what to do. You're not responsible for what happened or for the prosecutor's mistakes; nor do you have any obligation to make his life easier. You can tell me right now that you won't stipulate, and I suspect Sam will make a motion for a continuance. I'll hear that motion sometime in the distant future as my calendar permits.” Marshall looked at me pointedly. He was telling me that Sam would have all the time he needed to dig up the body and do the autopsy before he ruled.

“The other thing I'd like both of you to consider is this: No matter how private these discussions are, at some point, the fact that an autopsy doesn't exist, and that the senator's body must be dug up, is going to get out. I can't sign an exhumation order without a hearing or without giving the family an opportunity to be heard. If you think this hearing is a media circus, can you imagine what an exhumation will be like? It's your turn, Jack.”

I knew what Micki would say. She'd say dig up the body; maybe they'd screw up the autopsy as well. It was the right position to take in most cases. But this wasn't most cases, and I had to trust my instinct.

“I want to be sure what the prosecution is suggesting. Woody would stipulate that a bullet from Exhibit 13 entered the senator and caused his death. The stipulation would be for the purposes of the preliminary hearing only. At any other proceeding, including a trial, this stipulation would not bind the defendant, and the prosecution would have to meet its burden of proving the cause of death, even if it means an eventual exhumation. That's it—nothing else.”

Sam said, “That is correct.”

“We'll have to work out specific language, but I'm willing to take the basics to my client.” I could see that Sam didn't like leaving it up to Woody. I shrugged. “I don't think anyone here wants to go through all this again. If I were to stipulate to something as critical as the cause of death, even for a preliminary hearing, without consulting my client, even Les Butterman could get the verdict or plea deal overturned. Besides, you know Woody Cole. He might surprise you.”

Micki wasn't happy—she wanted to tell the prosecution to stick it.

Sam wasn't happy—he'd have to wait until tomorrow to know whether he'd need to exhume the body or not.

Marshall wasn't happy—he didn't like uncertainty.

But they all knew I was right: I had to consult my client.

“I'll see Woody as soon as we're through here. I'll try to give you his response tonight. If he wants to sleep on it, we'll meet with him in the morning. Either way, you'll know as soon as the decision is made. One more thing …” I looked at Sam. “I take it that if we agree to stipulate, you'll rest your case in the morning. Your Honor, I don't know if this needs to be in the form of a written motion. If it does, we'll file it first thing in the morning under seal. Either way, as soon as the prosecution rests, I'd like to make a proffer of proof in the court's chambers, away from the eyes and ears of the media.”

Sam's annoying deputy muttered, “What the hell?”

Both Sam and Marshall gave him a look that would have shamed a better man.

Marshall asked, “What do you mean by proffer? Do you mean an oral presentation of what you intend to prove? If so, why not just put on the proof?”

I took a deep breath, knowing I'd reached the Rubicon. Once I
crossed it, there was no going back. “On occasion, the US government has evidence that it believes should be sealed for national-security reasons. I'm not saying national security is involved here, but I do believe I have certain evidence that casts light on my client's actions—evidence the court and even the prosecutor may want to consider not making public, at least at this time. I propose to make a proffer so the court and the prosecution can give it full consideration before I present it in open court.”

Both Marshall and Sam were frowning.

I pressed on. “What have you got to lose? I'm merely presenting what I intend to prove. Think of it as an opening statement with exhibits not yet introduced.”

“What you're asking is very unusual,” Marshall said. “There may be precedent for national-security reasons, but you admit that's not the case here. The real problem for me is credibility with the media, and more important, with the US attorney. He's going to holler that we're up to no good behind closed doors.”

“I've thought about that. Micki told me that the US attorney is a bit of a loose cannon, but his deputy, Rodney Fitzhugh, has been in court from day one. According to Micki, he's a straight shooter. I'd suggest you ask him to observe. I also noticed that the chief deputy of the Justice Department's Criminal Division was in the courtroom today. Perhaps you could invite her to sit in as well.”

Marshall seemed agreeable to the idea, but not Sam. “I'm not so sure. Sounds to me like you're up to something. I don't want this preliminary hearing to become some cabal of international intrigue involving spies and spooks. It's a straight-forward shooting of a senator, not some terrorism trial.”

I said, “I hear you, Sam. But let's deal with first things first. If Woody won't agree to the stipulation, the matter is moot. But if he does, all I'm doing in chambers is giving you a preview of my case. I'll even provide you my exhibits. I'm just asking you to listen to me make a fool of myself before I do it in front of a national audience.”

Marshall interjected, “I think it has to be on the record. If I don't think there's a reason to keep it from the media, I can release a transcript.”

“Your Honor, let me suggest you authorize a video recording of the proceeding and release it if you desire. If at any time the court thinks I'm wasting its time, you can shut it down.”

Sam sighed. “I have a feeling I'm going to regret it, but no objections to a proffer, Your Honor.”

His deputies were as unhappy with Sam as Micki was with me. Sam didn't have to tell me I'd used my last bit of capital. If what I did tomorrow was a trick or a scam, we were through, both professionally and as friends.

Marshall thought for a moment. “All right. I'll extend the invitation to Mr. Fitzhugh as well as the visitor from DC. If Mr. Blanchard shows up, he will not be allowed in my chambers. My fellow judges on the federal bench may have to put up with his histrionics, but I don't.

“If your client agrees to the stipulation, I want to see it in writing signed by counsel. I will personally ask the defendant if the consequences have been explained to him. Do both parties understand?”

We did.

Maggie gave our exhibit list and copies of the exhibits to Sam's deputies. Of course, the exhibits would make absolutely no sense to them.

Micki, Maggie, and I headed downstairs to see Woody. I didn't know yet exactly what would be in my proffer tomorrow, but first things first … Woody.

“I hope you don't expect me to convince Woody to stipulate,” Micki said forcefully. “I won't do it. I simply won't do it.”

“I don't want you to.”

She stopped and looked at me like I'd just flown in from Mars.

“In fact, I want you to convince him
not
to.”

W
OODY EMERGED FROM
the holding cell in the orange jumpsuit he'd worn earlier, as well as handcuffs and leg irons. Micki yelled loud and long enough for the deputy to unlock Woody's restraints and allow us to give him a cup of coffee. As soon as we were settled, I began.

“Woody, there's been a new development. I'm going to let Micki explain things because she's more passionate about what you should do. Listen to her. There's no hurry.”

Sitting next to Woody, Micki couldn't help smiling. “We got a huge break today. In the rush to bury the senator, there was no autopsy. Neither was there a ballistics test on the weapon, and the bullet was not found. There weren't even any rudimentary tests performed to establish that the gun in your hand was the murder weapon. These are monumental errors.

“Without this proof, Sam is on the horns of a dilemma. He tried to convince Marshall they'd met their burden for going to trial, but Marshall correctly told him that he wouldn't rule on that issue yet. If they rest and Marshall holds they didn't establish probable cause, or an appeals court says they didn't, you'll walk. No jail, no death penalty—you're a free man.”

Micki was violating the rule against getting too optimistic, but it was okay, considering the circumstances. She kept rolling.

“Now … Marshall or an appellate court could rule that the video was enough, but they'll still have to exhume the body for an autopsy. Sam has proposed two alternatives to his immediate problem. The first is that you stipulate to the cause of death for this preliminary hearing. The second is that he continues to examine his string of eyewitnesses while he gets an order for exhumation. I'm certainly not going to let you concede the cause of death. So, he's got to exhume the body, and I think his case may be in big trouble. The funeral home is bound to have tried to cover up the damage the bullet did. If they're lucky, Sam finds the bullet and the ME agrees it caused the death. But by then, we've embarrassed his office, and he'll want to deal for a lesser sentence. More likely, his office will continue to make mistakes, the press will be all over Sam, and down the road, you get a reduced sentence. You'll be out of prison relatively soon, certainly not stuck there forever.”