Copyright© 2014 by Jay Cantrell
I drew stares as I entered the district attorney's office and asked to see my wife. They all knew who I was. But it was highly unusual for me to pay a social visit to Elizabeth's office.
"It's important," I said when the receptionist told me that Ellie was extremely busy.
The woman frowned but buzzed Elizabeth. She appeared at the door a moment later and the receptionist buzzed me through the security measures. Elizabeth smiled and took my hand.
"Come to see my new office?" she asked brightly. I had seen her old office only two or three times. "The ethics committee got the Superior Court to issue an injunction. Dwyer's license is suspended pending a hearing. Tony Baker's too. I've been given carte blanche by The Pickle to clear out this place."
"You've spoken to Valasik today?" I asked. I wondered if Elizabeth might actually be on board with all this and my display in The Pickle's office foolish.
"Just a notice of suspension on Dwyer and the elevation of my status," she said. "I am Acting District Attorney. That means I can hire and fire so long as I stay within the budget. It was waiting for me when I got here this morning. Cool, huh?"
I gave a sad smile.
"What's wrong?" she asked.
"I might be looking for work soon," I said. "Sit down, Ellie, I have something to discuss with you."
"You son of a bitch!" she said loudly – and completely from left field. "I worried something might be going on but you got caught didn't you? You bastard."
I was already half pissed off at the predicament I found myself in. I wasn't in the mood for sorting through Elizabeth's meandering logic.
"What are you talking about?" I asked. "I have something urgent to discuss with you and I don't have time to placate you. Tell me what you're talking about. I'll answer you honestly and we can get to something important."
"Our marriage isn't important to you?" Elizabeth asked hotly. I could see I'd lost an argument I didn't even know I was in.
"It is the most important thing to me, Elizabeth," I countered. "That is why I'm here waiting for your rant to conclude so I can talk to you."
"I guess you think you can just confess and I'll forgive you," she said. "You're wrong."
I sighed and raised my hands. It was evident that we were going to discuss things in Elizabeth's preferred order.
"OK, I surrender," I said. "Tell me why you think I'm here."
The Pickle could take lessons in glaring from my wife.
"Fine, although I should make you say it," Elizabeth said. "But I'm bigger than that. I suspect you were caught ... dallying with your paralegal this morning. I've heard rumors that you two might be getting it on."
I burst out laughing. I was pissed that Ellie would think I would screw around on her. I wasn't that type of guy. But in light of everything else, it was humorous.
"Of all the ridiculous notions," I said. "No, that is not why I'm here. I am not having an affair with Michelle or with anyone else. I would never do that. First off, I love you and I'm thrilled to be your husband. Secondly, I believe you could kill me without leaving any evidence."
Elizabeth's face turned from puce to simply red. She had gone from irate to embarrassed.
"I could, you know," she said, smiling sheepishly at me.
"Can we discuss this at home tonight?" I asked. "What I have to tell you now might lead to the same result."
She sat back and uncrossed her arms.
"How would you feel if I couldn't practice law again?" I asked.
"What?" Elizabeth asked, sitting forward with her mouth wide. "Ben, did you do something stupid?"
I gave a half shrug.
"Maybe soon but not yet," I said. "The reason I'm interrupting your day is so we can decide together which path is least stupid. I'm not sure I can get away with anything less than full moron in either case but maybe you see a way out that I don't."
Elizabeth's expression changed again. She was now the loving wife I knew her to be most of the time.
"OK, let's discuss this," she said. "Are you sure it can't wait until we have more time and more privacy?"
I shook my head.
"By 1 o'clock, you'll know," I said. "I've been appointed counsel of record for Desmond Huntley."
There it was out. All I could do was wait for an explosion.
"So disqualify yourself," Elizabeth said as if it weren't the first thing that popped into my mind. "I'm prosecuting. You can't defend."
"I can't," I said.
Now her face reddened again.
"You can't or you don't want to?" she asked.
"Purely a case of can't," I declared. "I want to. Let me tell you what happened and then we'll go from there."
I filled her in on my visit with The Pickle – providing every detail my addled mind could recall. Elizabeth listened and took notes. Then she sat back, clearly stunned.
"They boxed us in," she said. "Tiny and that stupid old witch are going to make us choose which one of us gets out. Damn it, Ben. How did you get us into this mess?"
"I didn't do a damned thing to get us into this mess," I countered. My voice had risen slightly. "You are intent upon making a death case out of something that clearly isn't. I'm not sure The Pickle hasn't realized that and is trying to save you from yourself."
Elizabeth started to speak but I held up my hand.
"I am under judicial decree that I cannot discuss elements of the case with you," I said. "So, as I see it, here are our options: One, I take the case and you recuse yourself from any aspect of it; Two, I refuse to take the case and forfeit my license; Three, we seek relief from an Appellate Court and burn our bridges in this building; Four, you drop the death enhancement and this goes away."
"That's all I've come up with," I said.
"You think the case is a loser?" Elizabeth asked, as if I hadn't just told her I couldn't discuss that aspect of it.
It is another legal truism, I'm afraid. Attorneys expect others to follow the spirit and the letter of the law but we sometimes believe we should be exempt ourselves. Even if we are not exempt, we sometimes act as though we are.
I shrugged as if to say, "You tell me."
Instead I tried to move the subject back the main topic.
"If I give up my law license, would you hire me to work as an investigator?" I asked. "We can't really go without two paychecks."
"No," Elizabeth announced.
"Jesus, I have a criminal justice degree and worked in uniform for two years," I said. "I'm at least as good as some of the numb nuts you've got here already."
"I mean I can't, Ben," Elizabeth clarified. "It's not that I wouldn't. I can't. We have a strict nepotism policy. Besides, you can't give up your license. That's ridiculous."
"And you can't give up this case," I pointed out. "That's just as ridiculous."
"Even if I can't work on it directly, I'll still have to supervise it," she said. "I mean, even The Pickle has to see that."
"She said she would supervise them," I told her. I had forgotten to include that part in my narrative.
"The hell she will," Elizabeth declared. "She would sabotage the case any chance she got. You know what I'm going to do?"
I had no idea what I was going to do and I am far more predictable than my wife.
"I'll get the bar association to recommend a special prosecution staff," she said. "I'll make sure the funds for it comes out The Pickle's budget, too. We'll put her in a box even smaller than ours. She can have her fair-haired boy for the defense or she can pony up for the cost of bringing in a group of attorneys to run the show. I've got to make some calls. Go diddle your paralegal or something."
She was trying to make light of her earlier stupidity.
"We are still going to discuss that when we get home," I said. Elizabeth gave me a smile.
"What's to discuss?" she asked. "You're friends with Michelle and I'm not used to being friends with people I work with. There have been rumors but I didn't really think they were true. I've just been a little stressed, that's all."
I stayed seated and looked at her.
"Fine," she said. "The past couple of weeks, dealing with Pam and Lauren II, have made it difficult for us to express our desire for each other. Then every night this week I have come to bed hours after you were asleep. I knew I took too long to put my priorities in place yesterday. I guess I still worry that you're going to get tired of my behavior at some point and move on."
"I'm not," I said. "Now, why don't you let me call the bar association? You have a ton of stuff on your desk and I don't. Plus, it's my problem. We'll have decided something by tonight and then maybe take oh, I don't know, 20 or 30 seconds to fool around."
"I think I can spare you 20 or 30 seconds," Elizabeth said with a small smile. I think she was happy that I wasn't railing over her accusations. Perhaps if I didn't have so many others things to worry about, I would have.
But right then, I had calls to make.
The Pickle found herself in a pickle.
Her main goal was to coerce the district attorney to drop the death-penalty enhancement. I could see that from the outset and she found a way to do it legally by appointing me lead defense counsel – at Tiny Huntley's request.
I don't think she solicited that request but I think she had no problem taking advantage of it once it was made. Now she had more than she had bargained for.
First off, there is no way I could be considered adequate counsel on this matter. I'm not a bad attorney. But I am also nowhere near qualified to defend a death penalty case. And it would still be a death penalty case – a capital trial where she had absolutely no input because a state Appellate Court had issued an emergency order giving the district attorney the authority to appoint a special prosecution team from outside the county – and ordering the costs to be paid by the Court.
Lisa M. Valasik was not in a happy mood when I arrived – with my wife – at her chambers on Friday morning. She had been greeted by a judicial order that carried far more weight than hers did.
Lucinda Barrett was waiting outside the judge's chambers for me. I nodded in greeting but didn't say hello. Elizabeth elbowed me in the side and shot me a dirty look.
She elbowed me again when I said "Good morning" to Lucinda. I couldn't win. Lucinda rose to enter the judge's chambers with us when the clerk said we could enter. I shook my head.
"This is between her and us," I said. "You have no standing because this does not involve case facts. This involves the structure and financial aspects of the trial and a discussion of an appellate decision that does not affect your position as Keenan counsel. I'll summon you when I'm ready for you."
Elizabeth took me by the hand and led me through the doorway. She gave my hip a bump that almost always meant I had done something that she adored. I simply didn't know what it was that I had done – at least for a few more seconds.
"She saddled you with the 'Starbanger, ' too," Elizabeth said as we waited in the chamber for the judge to enter.
"The what?" I asked.
"Starbanger," Elizabeth answered. "That's her nickname around the courthouse. She is not afraid to use her feminine charms to raise her status on the defense team. She's a death-squad groupie. Hell, I've heard she broke up Al Jennings' marriage. I'll just have to make sure you get enough at home."
She nudged me with her hip again. Ellie and I had spent a couple of hours renewing our physical acquaintances after Lauren went to bed the evening before. I had remarked that Elizabeth seemed far more relaxed than the previous couple of weeks – so she woke me up an hour early to make sure she was relaxed when we visited the judge's chambers.
I wasn't complaining in the slightest.
"Counselors," the judge said somewhat testily when she entered from her private office. I was certain she had spent the last hour trying to get the appellate order quashed. I was equally certain she had failed. It was based on good case law. I know because Michelle had told me so.
"Your Honor," Elizabeth said. There was just a hint of smugness in her voice.
"I assume, Mr. Wallace, that you have elected to maintain your employment," she said.
I nodded slightly.
"Subject to your assurances that you will abide by the Superior Court's decision in the matter, I will, Your Honor," I answered.
"I am seeking an opinion on the matter from the judicial board," she hedged.
"Then I will hold the right to remove myself from the case and surrender my license in abeyance until you receive that opinion and assess its import on this trial, Your Honor," I answered.
Elizabeth and I were still standing in front of the judge like naughty schoolchildren. The Pickle was seated behind her large, ornate desk.
"Oh, hell," she said. "OK, you win. I can't let you withdraw as counsel, Mr. Wallace. Mr. Huntley specifically asked for you and I had absolutely nothing to do with that fact."
"No, my husband took care of that all by himself, Your Honor," Elizabeth said. Suddenly it was them vs. me.
"Sit down and let's talk about how we're going to do this and how much I'm going to have shift to afford it," Judge Valasik said.
"If you prefer to wait for another opinion, I think that is appropriate, Your Honor," I offered.
The Pickle choked back a snort.
"I got my opinion verbally," she said. "I spoke to the head of the judicial board. He said and I quote: 'It's why you never bet the ranch on a king-high flush. You can't be certain someone else isn't holding that ace.' So, all bluster and legal wrangling aside, let's get down to business. I don't like being outmaneuvered but I also don't hold grudges."
I should have let it go at that. But I didn't. Elizabeth knew me well enough to know I'd say something and she tried to silence me by holding my hand.
"It isn't maneuvering," I countered. "I just happen to believe that a fair trial entails more than simply adhering to the barest rights of the accused. It extends to the prosecution, to the defense attorney and to the judge and jury. You tilted the scales so far in one direction, the prosecution was at a severe disadvantage."
"She thought making you lead counsel would balance it out," Elizabeth joked. I knew she was trying to make light of the situation so we could move forward.
"And it would have," I agreed. "Now we find ourselves in the opposite situation. I am Mr. Huntley's choice not because of my expertise but because it gained him the advantage of eliminating a woman who would have convicted him. Now that it will be a professional handling the duties, I think it is incumbent upon this court to allow Mr. Huntley to change his mind."
"Mr. Huntley played his hand just like I played mine," Valasik stated. "He was given an opportunity to choose his lead defense counsel and he has done it. We must secure his rights in this matter but we must not allow him to dictate the proceedings. Should he choose a different attorney, Ms. Vargas-Wallace's exclusion would be moot. She would return as prosecutor. Then he would want to change back to you."
"Let him know it's one and done, Your Honor," I offered. "He needs to make up his mind. He can keep Elizabeth from prosecuting or he can have a qualified defense attorney. He cannot have both."
"You are a qualified defense attorney, Ben," Elizabeth said. "It has been a few years, yes. But you showed last week that you are as good as anyone he could name. But, I do have a question of law for the Court."
"Go ahead," Judge Valasik replied. She had given me a sharp nod as Elizabeth sang my praises but she deferred to the question.
"How is Tiny Huntley considered an indigent defendant?" Elizabeth asked. "I am aware of the stipulation that offers someone accused of a capital crime a reasonable choice of counsel. In fact, it might surprise you that I support that law wholeheartedly. I simply cannot see how a man who runs a multi-million dollar criminal enterprise is granted in forma pauperis status."
"Yes, I wondered why that didn't occur to Mr. Wallace yesterday," The Pickle replied. "I'll answer in a moment. First off, let me assure you, Mr. Wallace, I would not have appointed you counsel unless you were qualified. I'll be honest. Everyone in the legal community knows of what happened with Valerie Dwyer in Al's courtroom. And I'm aware that he had a part in getting to the bottom of that. Until last Friday, I can't remember hearing your name for years. I didn't even know you still practiced law in this county and I didn't know you were the Wallace at the end of your wife's last name.
"But I remember you from years ago. I was presiding judge over the criminal division when Mr. Roberts was convicted of rape. You did a yeoman's job of getting him acquitted in his retrial – against odds that were stacked against you much further than they are today. I have every confidence that you will perform your duties well in regard to Mr. Huntley.
"Now, to the defendant's financial affairs. Simply put, Mrs. Vargas-Wallace, Desmond Huntley owns absolutely nothing. He has no job, no property and no bank account that we can find. Everything we suspect to be his is in his sister's name or the name of his girlfriend. We cannot prove he financed the purchases and, as I'm sure you know as well as anyone, we have no proof that he runs a criminal enterprise. Believe me, I did not want to give that man indigent status. I believe that should be reserved for those without means to defend themselves. But, he fits the requirements and I am duty bound to sign the order.
"However, I am still looking into his finances. If I find something, I will not hesitate to pull the status and saddle him with the entire cost of this trial."
I bet she would like nothing better.
"Now, Mrs. Vargas-Wallace," the judge began.
"She prefers Ms.," I interrupted.
"Oh, I apologize," the judge said. She sounded sincere, which sort of surprised me. "Ms. Vargas-Wallace, have you decided who you will appoint as special prosecutor?"
"I have contacted Jane Cummings to gauge her interest," Elizabeth said. She pulled out a printed sheet of paper and handed one to me and one to the judge. "This is her C.V. She worked the Attorney General's criminal division for several years. Now she is in private practice. She has experience in Hobart County and she tried three death cases there. If we can meet her financial requirements, she is my choice, subject to the court's approval."
The Pickle shook her head.
"I do not have approval over this," she said. "That was very clear. You are authorized to pick who you want to try this case and I am to pay for it. If you convince a sitting Supreme Court Justice to come down here, I am to lump it."
"I am authorized to do that, I suppose," she said. "But I happen to agree with my husband on most things – at least as far as how a trial should be run – and there is nothing that says it has to be that way. I think it is important that your office and mine work together to ensure there are no grounds for appeal. Jack Donahey called me this week to let me know there was a discretionary fund for lengthy or costly trials. If Dwyer didn't find it and raid it, I will transfer control of this account to the Court – or more specifically, to you, Your Honor.
"My office has already started to prepare a budget for this trial. The amount we set aside will be added to the discretionary account to offset the Court's costs. I will run it past the Special Prosecutor but I will make it clear that anything above what I've determined must be approved by you. I do not want to see someone come in here and bankrupt us by hiring in their friends as outside experts or padding their expenses."
I had wondered if my wife was political enough to handle elected office. I wondered no more. Elizabeth had gotten what she wanted out of the deal – the ability to make sure that a quality prosecutor tried Tiny Huntley. She did not feel the need to lord it over a sitting judge. I probably would have. Dwyer almost assuredly would have.
"I will agree to that," the judge replied. "I would, however, like a liaison within your office. It has been four decades since I tried a case and I'm willing to bet some costs have risen during that time."
She laughed – and we joined her – before she continued.
"Do you have someone you trust to handle that?" Valasik asked. "It would have to be done without your knowledge and consent."