Chapter 9

Copyright© 2014 by Jay Cantrell

My Keenan counsel was nowhere to be found when I checked out our new digs. It was an unused judge's chamber so it was nice. There was an outer office for the staff. There was a spacious inner office and a separate private office. I figured I would share the big office with whoever my Keenan counsel wound up being and we would use the private office for meeting with witnesses. The judge had also allocated two other smaller offices – one on either side of the chambers – for our use. I was not disappointed.

My boss at CYS was, however, severely disappointed when I arrived, judicial order in hand, to announce that Michelle and I had been temporarily transferred to the Public Defender's office – and that we would be returned, again by judicial decree, upon completion of the Huntley case.

"Your job will no longer be here," I was informed.

I offered a shrug.

"Well, I think Judge Valasik and the commissioners see it differently," I explained. "So, I will wager that my job will be here whether you think so or not. Your job, however, might not be if you choose to make this a battle between CYS and the President Judge."

My boss was not an attorney. She was a social worker and a career bureaucrat. She didn't like that the CYS legal staff had put an end to some of the ways CYS had handled its cases in the past. For instance, unlike when I arrived at CYS, the office required a signed writ from a sitting judge to remove a child from a home. Previously, they would simply show up, remove the child and the parents would have to spend thousands of dollars fighting to get the child back. More often than not, they did get their parental rights restored – but not before a child spent months or sometimes years in foster care.

The county administrators had allowed the CYS attorneys to draft specific guidelines on many office policies after paying out one too many lawsuit claims after a social worker's heavy-handed actions.

I can say, without hesitation, that the woman who ran CYS would love to see me depart – and I often wondered if the only reason I stayed was to make sure she didn't have free reign to do as she pleased again.

"So I am not supposed to replace you?" she asked.

"That is entirely up to you," I said. "What is outside of your purview is my status – and the status of my paralegal – when the case concludes. The commissioners are aware of why I'm on the Huntley case. They recognize that I was given no choice in the matter – at least not a choice that would still allow me to keep my law license. My salary is off your books for the duration of the trial. I'm positive they will allow you to contract out with some private attorneys for consultations. However, I should warn you, the guidelines in place for this office are not to be modified without judicial review. Now, this was simply a courtesy call. You can do whatever it is you wish. What you cannot do is change what is going to happen in regard to my service or that of my paralegal."

I stood to leave.

"I'm not as powerless as you think," the woman said to my turned back. "I have some pretty influential friends, too."

I turned. I just had to have the last word, I suppose.

"The fact that, despite your obvious incompetence, you still have a job speaks to your friends' influence," I said. "But I think mine might have a little more stroke."

I left while she was still sputtering a reply.

Michelle was pleased with the change of assignment. I think she was equally pleased that she finally knew exactly what I was up to. We got her set up in the office and just before noon the computer equipment arrived – along with someone from the county's IT department to get it installed. The fact that the IT department sent someone right away spoke volumes about Judge Valasik's power to get things done. The IT department was known to do exactly what it wanted when it wanted to do it.

Michelle set to work familiarizing herself with the nuances of death-penalty law. She knew I would count on her to be up-to-date with case law while I dealt with the mundane exercise of interview and deposing witnesses, filing motions and briefs and sorting through the mountain of paperwork the prosecution was bound to drop on us after our discovery motion.

Every now and then I would hear a pen scratching on paper or a mumbled, "huh" from my paralegal as she worked. I was already trying to prepare for the preliminary hearing that was set for the following Monday. Tiny had been arraigned via videoconference and, as expected, bail was denied. The prosecutor's office had filed a formal motion with the court specifying that the criminal case State v. Huntley was a potential capital case. They had 30 days after the filing to declare their intention to seek the death penalty but I thought it was a foregone conclusion at this point.

The preliminary hearing for Desmond Huntley would be far different from that of Lauren Wells. I would not cross examine the witnesses – mostly because I had no ammunition to fire at them. If Elizabeth had not been able to garner the police report in Lauren's case, I would have never tried to discredit the witnesses. It is always a bad idea to ask a question blindly.

At 2 p.m. I met with the interim prosecutor, Jane Cummings. She was a short, stocky woman who didn't smile a single time during our meeting. I wondered how she would play with a jury. She seemed to be a bitter, hostile woman. Or perhaps I was not as charming as I had always assumed myself to be.

But from the outset, I could see she was a good attorney.

"Mr. Wallace," she said, extending a hand for a shake. I complied.

"Ms. Cummings, I'm glad to make your acquaintance," I said. "My wife tells me that you a top-flight prosecutor."

She nodded her agreement but her face showed no hint of losing its scowl.

"I tried to make sure you had working space," I said when we sat down in what Michelle had dubbed our conference room.

"It's adequate," she said. "I had a meeting with the judge to get some addition space. I have two outside consultants I want to hire to help me. But apparently I can't do that without talking to you first."

"Why?" I asked.

"Because I don't know a thing about the makeup of this county," she said, completely missing the point of my question. "I want someone local on the team and I need someone to help me with a jury."

"Oh, sure," I said. For the first time I considered that I might need to hire a jury consultant, as well. "But what I meant was, 'Why do you need to talk to me about your staff?'."

"Because I can't have additional space unless you agree to take additional space, as well," she stated. "Apparently this woman takes the level playing field analogy to the wall. If I want something, you have to agree to take it too. If you want something, I have to agree to take it. It's ridiculous."

To a career prosecutor, I suppose it would be a ridiculous concept. After all, they could draw upon the entire county, state or federal law-enforcement resources to get anything they needed. The defense was left to provide what it could with the client's resources – or, in many cases, with what the public defender's office could afford.

"Well, I'm OK with a little more space," I said. "I have my Keenan counsel so I don't have any problem with extra staff on your part. I hadn't really considered a jury consultant but I suppose I should."

"You're not a very good lawyer, are you?" she asked.

I found myself bristling at her comment.

"I would suppose in my area of expertise I am a very fine attorney," I countered. "However, criminal cases are not my specialty and I have never considered a death-penalty case let alone tried one. In that respect, I am outside of my comfort zone. However, if you would like to square off again in juvenile civil court, I think you'd find I am more than adequate."

Jane closed her eyes for a brief moment.

"That came out wrong," she said. "I'm, well, I'm not very good with people. I'm sorry, Mr. Wallace. I'm good with facts and I'm good when I have a moment to prepare an argument. But off the cuff comments seem to be a problem for me. What I meant to say was exactly what you said. I can see you're a little out of your depth here. Yes, I would suppose you would want to consider a jury consultant. In fact, in the interest of fairness, I will give you first choice. I would also urge you to bring in an experienced co-counsel to help you with this case – particularly the penalty phase. You only have a week to prepare for that after the verdict.

"I know the county has forced this upon you. I spoke to your wife and she gave me the details of how you've come to be here. As the prosecutor I have to prepare my case but I also have to worry about reversible error. I don't want to have to retry this case in two or three years because Mr. Huntley has convinced a court he received ineffective trial counsel. That was where I wanted to go with my statement. I wanted to try to offer some friendly, off-handed advice but I had a little trouble fitting my words around the foot in my mouth. I apologize."

I offered a smile that wasn't returned.

"As someone who suffers from that affliction myself, I accept your apology," I said. "And you're right on almost every count. I warned Mr. Huntley of my shortcomings. The President Judge went to the unusual step of giving him a second chance to select his attorney. He said he trusts me and that is the most important thing to him."

"Until they strap him down and put the needle in his arm," Jane said.

I could only nod.

"I'll let you know about the jury consultant in the next day or two," I said. "Right now I'm having some issues with the Keenan counsel the judge appointed. I'm not sure but I might have to replace her first."

Jane looked puzzled.

"She is part of the Innocence Group and we want to insure she understands that her loyalties lie with Tiny Huntley and nowhere else," I informed her. I didn't think I was talking out of school and I thought the prosecutor had a right to know what sort of issues she might face in the trial.

Jane shook her head.

"Those people are like cultists," she said. "You'll wind up replacing her. Once they get them to drink the Kool-Aid they never let them go. So, you'll be waiving time?"

Waiving time refers to the defendant agreeing to suspend the 180-day rule.

I shook my head.

"I don't think so," I said.

Jane looked up sharply.

"You cannot prepare an adequate defense in six months," she said.

"I think I can," I said. "I'll discuss it with my client but I suspect he will want to get this before a jury as quickly as possible. After all, he is the one sitting in jail without bond."

Jane sat and stared at me.

"I would urge you to reconsider," she said.

"I will consider it if that is what my client wants," I said. "I'll talk to Mr. Huntley and my Keenan counsel. But unless one of them can offer a compelling argument to delay, I think we'll go forth within 180 days."

My reason for refusing to waive time was simple: the time limit put the prosecutor at a bigger disadvantage than it did the defense. My defense was simple. I planned to discredit the witnesses and hope to establish reasonable doubt. I didn't plan to encourage Desmond Huntley to testify. A man with an arrest record as long as his would not impress a jury.

So I didn't have to prep him for trial. I couldn't think of a single defense witness to call who would require time to prepare. I planned to call some people from Biff Wells' past to let the jury know that the man had plenty of enemies. Still, outside of me and Tiny, I didn't think there was anyone in our state who had a real issue with the man. In all honesty, I wasn't certain how to prepare a defense.

I wasn't surprised when 3:30 p.m. rolled around and I'd seen nothing of my proposed Keenan counsel since 8 that morning. In fact, I doubted I would ever see her again.

Her arrival just before 4 p.m. caught me off guard. I had already culled a list of qualified attorneys and I planned to approach as many as I could in the morning.

"I'd like to speak with you privately before we go see the judge," she said. I nodded my agreement but stopped her before she could close the door. She frowned slightly but complied with my wishes.

She took a seat before speaking.

"The Innocence Group would like to offer you a temporary position until the end of the trial," she said. She was looking at the top of the desk or she would have seen my look of displeasure. Instead she continued. "They will pay your salary and it would give us access to their resources."

"And it would give them oversight over Mr. Huntley's defense," I answered.

She tore her eyes off the fascinating array of papers on my desk to look at me.

"I suppose so," she replied. "Does that matter?"

I pondered that question myself for a moment before I answered.

"It probably doesn't to me but it might to my client," I decided. "He was singularly unimpressed by the fact you tracked down his family over the weekend. Then you showed up at his house even after his girlfriend told you she wasn't interested in seeing you."

"I was only doing as I was instructed," Lucinda insisted.

I nodded.

"Which is why I won't accept oversight from the very people who instructed you to do that," I told her. "Mr. Huntley made it perfectly clear – to me and, I suspect, to you – that he is not interested in having the Innocence Group associated with his defense. I believe I made it clear that I distrust the group and dislike their methods. Still, despite that, you go and solicit a place for me with them to represent Mr. Huntley. Ms. Barrett, I do not think having you as Keenan counsel will meet with Mr. Huntley's approval. I urge you to remove yourself from his defense."

She shook her head.

"I believe Judge Valasik might compel you to accept the offer," Lucinda replied.

"I do not believe Judge Valasik is in a position to compel me to do much of anything," I rejoined. "She certainly is not in a position to require me to relinquish decision-making authority to a group my client expressly stated he did not wish to associate with. However, you might be correct in asserting she will seek to influence me. But you are incorrect if you believe I will accept. Now, if we are to see her before she leaves for the day, we might as well get moving. I hope, for your sake, you have either the letter Judge Valasik requested or a motion to sever yourself from this trial."

Lucinda peered at me for a long moment.

"I have neither," she stated.

"Then I hope you have a toothbrush with you," I replied casually. "Because I believe you might be spending the night in the cells."

Judge Valasik's assistant was gone for the day by the time we reached her chambers. But the Judge was still there and she appeared to be waiting for us. She didn't look all that happy to see us – or perhaps it was just Lucinda Barrett that drew the scowl. She wasted no time in getting to the point.

"Ms. Barrett, I believe I requested a letter from you," she said.

"Before we get to that, Your Honor, I'd like to relate a proposal that was made this afternoon," Lucinda said.

"Briefly," the judge replied, looking at her watch.

"The Innocence Group has offered Mr. Wallace a temporary position in order to give him access to their library and other resources," she said, quickly I might add. "This would relieve the county from picking up our salaries and other incidental costs for the duration of the trial."

The Pickle glanced in my direction. Lucinda had worded things in exactly the right way to pique the judge's fiduciary interests.

"I have informed Ms. Barrett and I will inform the court," I began, "that I am not interested in the other portion of the arrangement which Ms. Barrett has conveniently left out. I will not accept the group's involvement in strategy, nor do I believe would my client. Mr. Huntley was very clear about his feelings toward the Innocence Group after Ms. Barrett, acting on their orders, tracked down his family and harassed them over the weekend."

"I did not harass them!" Lucinda said, a bit loudly for a judge's chambers.

"That is how he viewed and how his family viewed it," I countered. "You phoned them and they told you they weren't interested. Instead of accepting their decision, you showed up at the family home. When that didn't work you had an unauthorized meeting with my client and attempted to sell him on the idea by making derogatory remarks about me. I am not interested in their assistance if it requires that I relinquish control over my client's defense."

The judge turned back to Lucinda. It was hard to read her expression. It wasn't difficult, however, to parse through her next statement.

"Well, that's settled then," she said. "Now, Ms. Barrett, do you have the letter I require?"

Lucinda appeared at a loss for words.

With a gulp, she shook her head.

"Then I will accept a motion to remove you as Keenan counsel," the judge said. She extended her hand, certain it was coming. I closed my eyes and waited for the train wreck.

"If I might borrow your fax for a moment I will send my letter of resignation to the Innocence Group," she announced. My eyes flew open so quickly that they watered.

"What?" I croaked. A few seconds earlier I was certain I was going to be rid of Lucinda Barrett. I was certain she was a fine attorney – even Elizabeth admitted that fact – but she would be a distraction. Not only was she terrific looking but I worried that her resignation was a sham and that she would provide case information to her previous employer.

"I asked for the letter you requested," she continued. "My request was ignored. When the managing partner came back a few minutes later, he presented the offer I have just made. I again made a request for a temporary leave of absence. This time, my request was flatly denied. Under the circumstances I believe Mr. Huntley would be better served by having me assist in his defense even if it requires I leave the Group. I will, however, comply with the stipulation that I have no contact – professional or social – with anyone still affiliated with the Group. Given the situation, I do not consider that to be unreasonable. I will give my word as an officer of the court. Does that meet the requirements to allow me to stay as Keenan counsel on this case?"

She glanced first at the judge and then at me. I have to admit, she sounded sincere. Judge Valasik joined Lucinda in peering at me. I could see from the look on the Pickle's face that she wasn't happy with the turn of events. After all, we'd both been around long enough to know exactly what the word of an officer of the court was worth when a situation that suited their purposes arose.

"So long as you understand and stipulate that I am lead counsel I suppose that is as much as we can ask," I said.

"I am in no way qualified to be lead counsel on a capital case," Lucinda replied.

I blinked hard. I started to tell her that I wasn't either but a sharp shake of Judge Valasik's head cut me off.

"Ms. Barrett, the court accepts that you will stay as Keenan counsel under the terms you've indicated," the judge said. "Please feel free to use the fax machine in the outer office."

When Lucinda was out of hearing range the judge turned to me.

"That was interesting," she said.

I frowned.

"I'm going to have to watch her like a hawk," I said.

The judge smiled.

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