Chapter 12

Copyright© 2014 by Jay Cantrell

It was the weekend following Thanksgiving when I finally got the chance to sit down with the evidence.

The Pickle had admonished Judge Tagliotti and she had forced him to offer an apology to Jane and me in front of our staffs. More importantly, at least in my eyes, she relegated him to the newly created post of overnight arraignment judge. In order to keep the court staffed during its busiest times, she assigned him to work from 10 p.m. to 8 a.m. Thursday, Friday, Saturday and Sunday nights.

Needless to say, his clerk quit in a huff when she heard the news. As the paperwork came flowing in from the prosecutor – who was required by statute to file reams of it in a death-penalty case – our little office soon became overwhelmed. After two weeks of 14-hour days, I went hat in hand to the Pickle Jar.

She saw the bags under my eyes and gave me a look of sympathy. I had apologized for my outburst in the jail and she had forgiven me. Our contact had waned after she appointed a different judge to hear the case – after contemplating taking on the role herself. Instead, she called The Honorable Alberto Castille out of retirement. He was the most experienced barrister in the county, if Judge Valasik wasn't considered. He was also abidingly fair and impartial.

I informed Jane of the potential conflict of interest, but after a meeting with Judge Castille and the president judge, Jane agreed that the man had the perfect temperament for a capital case.

Judge Castille, however, took some convincing. It was only his overriding love for law and justice (two things I viewed as mutually exclusive) that he put his black robe on again.

Judge Valasik motioned me to a chair and asked what I needed.

"I wasn't certain if I needed to run this past you or not," I conceded. "I figured I would err on the side of caution – and grace you with my wit and charm on this Friday morning."

She rolled her eyes at me but motioned for me to continue.

"I want to hire another clerk," I said. I quickly added, "Not from the county's payroll. Out of the retainer Mr. Huntley's family has provided."

"Do you have someone in mind or are you looking for recommendations?" the judge wondered. She offered a fresh smile. "I understand Judge Tagliotti's former clerk is still trolling the courthouse looking for work."

It was my turn to roll my eyes.

"I have someone in mind," I replied. "I know you wanted a level playing field – and you've done a great job. I wanted your permission in case the prosecutor insists she be allowed to hire someone else, too."

"I appreciate the consideration but Miss Cummings appears to have things in hand," Judge Valasik told me.

"I would agree – if the amount of paperwork her office is churning out is any indication," I said with a grimace.

"Miss Cummings staff is comprised differently than yours," the judge noted. "She has three licensed attorneys and a paralegal. You elected to have two attorneys, a clerk and a paralegal. I am not worried about her coming up and asking for help unless one of her staff leaves. That isn't the problem with your staff, is it?"

"We're all still aboard," I answered. "It's just that we're overwhelmed. I've had to pull Lucy from trying – in vain, I might add – to find character witnesses for Mr. Huntley. We're simply ankle deep in paper down there. I believe I could carpet the entire hallway with the useless filings that the state requires. Of course, I have to read them and respond to them in a timely fashion. That means I don't get anything else done but reading briefs and writing replies."

"And you believe another clerk will help?" the judge asked.

"The person I have in mind will," I said. "The guy has finished his law degree but hasn't taken the bar exam yet."

"Then I see no problem," the judge replied. "Let me know if you require anything else."

Bringing in Mark Strickland helped the office morale immensely. First off, Mark was a really great kid. I say "kid" because he wasn't yet 21 – which is why he hadn't taken the bar exam. Mark was a prodigy who wrote the code for a series of well-known video games before his 13th birthday. His parents had squandered the majority of his funds on high-end automobiles and European vacations before he hit 15.

Mark was my last client in private practice before Lauren Wells. He had come to me just after his first game was sold for an obscene amount of cash. He wanted emancipation from his parents. Short of that, he wanted control over his money.

At the time, I couldn't do anything for him. No judge was going to grant emancipation to a 13 year old, regardless of how smart and wealthy he might be. The money situation was another problem. Mark's only living relative besides his parents was a sister three years older. She was too young to assume control of his assets. I kept the case even when I joined CYS.

I contacted Mark just after his sister's birthday and set up a trust with her as the trustee. He had just finished his last game project and he said the timing couldn't be better. He was holding off on selling it until he could ensure some of the money might be left for him. I convinced a judge to grant Mark his freedom the day after his 16th birthday. He immediately took early graduation from high school and started to college with his sister. He finished a degree in history from college in two years and then graduated top of his law class from NYU.

Then – against all logic and common sense – he returned to his hometown to set up his practice (only to find out he was too young to be licensed in the state for another six months). That left him at loose ends.

If I am honest, I had forgotten about Mark Strickland but he hadn't forgotten about me. He read about the Lauren Wells case in the local newspaper and then saw my name pop up again when I was appointed to represent Tiny Huntley. He had called the office several times but Jenny had refused to put him through, thinking he was a reporter resorting to subterfuge to get a comment. He finally tracked me down at a deli near the courthouse.

I didn't recognize him when he approached. The teenaged boy with zits and greasy hair had worn nothing but ratty jeans and black T-shirts. The man who approached me looked nothing like the kid I had represented. He wore a nice suit and his hair was short. His complexion had cleared and he'd grown about half a foot in the five years since I'd last seen him. It took me a moment to recognize the name when he introduced himself.

We talked for a while over lunch and he offered to do some volunteer work for Huntley's case if I was interested. At the time I thought it would mean more work for me. A kid fresh out of law school would require a great deal of oversight, I thought. It wasn't until I pulled out Mark's case file from my home office that I changed my mind. He had never required oversight, even when he was in his teens. Since he wasn't an attorney, he couldn't produce work product. But he was qualified to assist Michelle in putting together the replies to the hundreds of motions filed by the prosecution.

It took me most of the weekend to sift through the physical evidence the prosecution team had provided. They certainly hadn't tried to hide anything – unless they hid it in plain sight. I sorted through the crime scene photos and took a bit of pleasure from seeing Biff Wells' lifeless corpse.

He had been shot several times in the chest and upper torso. I pulled out the medical examiner's report to see exactly how many times Wells' body had been punctured. I scanned down the report until I saw the answer: He had been shot five times – and a sixth shot had missed Wells and embedded itself in the wall behind his head. The police ballistics lab said the bullets, although mangled, had come from a small-caliber weapon, a .22 or .25. That didn't sound like the sort of gun a professional badass like Tiny Huntley would use. In fact, I wondered if Tiny could even hold such a small weapon in his massive paw.

I set aside the photos and the analysis for a moment and pulled out the statement from the hotel clerk. As I perused, my fingers idly flipped through the rest of the box. I wanted to see the photo array the police used but I couldn't find them.

I noticed that there was no copy of the surveillance tape in the box either. That brought me up short. The prosecution was under no obligation to provide me with evidence they didn't intend to introduce – unless it proved my client's innocence. I doubted the video would do that but I wanted to see it anyway.

When I got to the second page of Muralidhar Patel's statement, I sat up straight in my chair. I went back to the start and read more carefully this time.

"Son of a bitch," I said. I smiled for the first time in a long time when dealing with the Huntley case. "Son of a bitch!"

I fought the urge to call Jane Cummings at home. Instead I pigeonholed her as she walked through the metal detectors at the courthouse.

"You have some problems with discovery," I told her.

"Oh, that's crap, Ben," she replied. She looked as tired as I did.

"The surveillance video is missing," I told her, starting small and working my way up.

"We don't plan to use it as evidence," she told me. I lifted an eyebrow at her so she expounded. "We have an eyewitness statement. The video isn't necessary."

"I'd still like to view it," I told her. I was surprised when she shook her head.

"It is potentially exculpatory evidence," I added. "I am entitled to it."

"You're not entitled to it," Jane replied. "It is of no evidentiary value to you."

"I believe I should be the one to decide that," I said, my temper starting to rise. "I thought you said you didn't plan to play fast and loose with discovery."

"I am not playing anything," Jane said, her voice harsher than I'd heard it outside of Judge Tagliotti's office. "I have years of case law on this. I have reviewed the video and I've found it of no evidentiary value. I do not plan to introduce it so you don't get the chance to muddy the waters with it."

"I guess I'll just have to get a subpoena from Judge Castille," I said.

"Good luck with that," Jane replied. "I've told you, I've got a dozen pieces of case law on this matter. I will fight you on this."

"What is your problem?" I asked as the door opened on our floor.

"I just told you," Jane countered. "The only thing you could do with this video is to try to confuse the jury."

"Which is the defense attorney's right," I shot back. "I think the judge will agree with me."

"Look, Ben," Jane said, "if you do manage to get a subpoena from Castille, I'll appeal and win. It is a waste of time – time neither of us have."

"Then just give me the damned thing," I said.

"It's not going to happen without a court order," Jane replied. "What else do you have?"

"When can I depose your eyewitness?" I asked when the doors opened.

"Right now if you want," she said. "Ben, I'm not trying to play game with you on this. This is a big case not only for me but for the county. Neither of us can afford to have this overturned on appeal. If you get the videotape admitted over my objection, we'll be right back here in a year."

"I try not to play games either," I replied. "You know I'm not a criminal defense attorney. I don't even know how to play games with discovery. The fact is, I don't figure to have much discovery. I don't think you can make a case."

"Oh, please," Jane said. "I wouldn't have brought the case if I couldn't win it. Your client's history makes it easy."

"You're not going to be able to introduce his past history," I replied. "I'll object because it's prejudicial. It has no bearing on Biff Wells."

"I'll get it in somehow," Jane said confidently. "If not on direct examination I'll use it to impeach your witnesses. I have to be able to discuss their relationship with your client. Plus, you know, the jury will know just from looking at him."

I nodded. Tiny Huntley wouldn't make a good impression on a jury but I doubted the jury would know it from simply looking at him.

"You'll have the same problem with your witnesses," I added. "Their statements are suspect. I'll want a lineup for your eyewitness."

Jane stopped. She knew that eyewitness accounts could be shaky. The motel clerk had picked Desmond Huntley out of a photo array.

"And I want the photos you used," I added.

"I'm not sure we kept them," Jane admitted.

"Then you'll need a lineup before I even let you bring in an eyewitness," I said.

"Oh, come on," Jane said. "He'll make his ID in the courtroom. That's the way it always works."

"Not with me," I countered. "You are going to have to prove to me that your witness is credible. He might have ID'ed my client but it was fraudulent. Desmond Huntley was not at that motel."

It took Jane Elliott almost 24 hours to locate the booking photos the police had shown the motel clerk. Jane knocked on the door to my office and dropped off a packet of items.

There was a group of six photographs. The last thing Jane Cummings wanted was a lineup and she hoped to fend off the request by providing the photo array.

I glanced at the photos and back at Jane. Then I glanced down at the photos again.

"I'm going to request a lineup," I said finally.

"Oh, bullshit," Jane spat. "This is just a waste of time."

I took another look at the photos.

"Jane, did you interview my client?" I asked.

"No, he requested an attorney before he was even booked," she said. "He knows the system. He should. He's been in it enough."

I frowned at her statement. I had no doubt that Desmond had killed men before. But I also knew that he wasn't the man Patel saw outside the door. The photos proved it to me if nothing else did.

"What?" Jane asked.

"Who ran your photo ID?" I asked instead. "Your guys or the local cops?"

"The locals," Jane admitted. "This was all done before you or I came on board. What difference does it make?"

"A lot," I said. "How old is that mug shot?"

"How in the world would I know?" she asked. "What does it matter?"

"Because your photos show morbidly obese black men," I told her. "Desmond Huntley doesn't weigh more than 190 pounds. He's lost almost 150 pounds in the last two years. He said it was because he wants to be around to see his kids."

Jane's face dropped. I knew she didn't think I'd lie to her. This was one of the things that she could verify by pulling up the mug shot from the computerized database. She frowned for a moment then asked to use my computer. I shrugged and she logged in with a different password. She went to the county's mug shot archive and pulled up the shot for Desmond "Tiny" Huntley.

She pointed me to the picture on the screen. It was different from the one in the photo array but it still showed a fat black face.

"What did you hope to accomplish with an obvious falsehood?" she asked. I laughed and shook my head.

"The IT guys haven't updated the site," I informed her. "Desmond hasn't been arrested in three years. That's how old the picture probably is. The one they took last month will wait for years before it's posted. I'm serious. If you want, I'll walk you down to the jail and show you my client. Or you can wait for a day until I put forth a motion for a lineup. Your photo array is garbage and it won't hold up. You'll lose your eyewitness before the trial ever starts."

Jane sighed.

"Give me a minute," I said. I picked up my phone and dialed the three-digit number for The Pickle. I told the President Judge of the problem with the county's Internet Technology Department.

"They pulled a picture at least five years old and used it for a photo ID," I explained. "The guy weighed 350 pounds when they booked him at that time. He's about 190 now. I can't convince the prosecutor that she'll need another run with her eyewitness unless she wants me to tear her apart."

"I'll call you back," the judge promised. I sat quietly with Jane Cummings until the phone rang on my desk.

When I answered, I heard Judge Valasik's voice and she sounded unhappy.

"I was told the system is updated automatically," she stated. "I was informed that the photo on the website is the most recent they have."

"They lied to you," I said. "Well, unless they didn't book Desmond properly."

"They lied to me?" the judge asked angrily. "They better pray that you are wrong. Do you by chance know of an independent computer firm?"

"I have a guy I know," I admitted. "He's done some stuff."

"Get him," The Pickle said. "Today if you can."

"Uh, it won't be cheap," I said. I was paying Mark Strickland a pittance but I knew he wouldn't work for the county on the cheap.

"I don't care," The Pickle said. "I'm authorizing an investigation of our IT department. Counselor, if you're trying to game the prosecutor, I will take the fee out of your ass."

My second call from Judge Valasik came an hour after I asked Mark Strickland to contact the President Judge.

"You will not believe this," she stated. "Stop and get the prosecutor and get to my office."

I walked down the hall to Jane's office.

"Judge Valasik wants to see us," he said.

"Why?" the prosecutor asked.

"I don't know," I answered. "She just told me to get you and get up there."

We wandered down to The Pickle's office and saw Mark sitting in the outer office. He smiled and waved. He was about the least pretentious person I'd ever met. I told the administrator that we were here and took a seat beside Mark. My butt was barely on the seat before the court administrator told us the judge would see us.

I waited for Mark to stand up but he kept seated.

"She wants to see you two first," Todd said.

As soon as she saw Jane Cummings, she tossed an 8-by-10 photo across the desk.

"This is a photo of Desmond Huntley, taken earlier today," she said.

Jane looked at the photo and back to the judge. Then she looked at me.

"This is not possible," she said.

"It is possible," the judge stated. "In fact, he's factual. This is what the man sitting in our jail looks like. If you showed a picture of someone else to your eyewitness, it won't hold up in court. Mr. Wallace had done you a favor."

"Why didn't I have this information before now?" Jane asked harshly. "And why am I finding out about this from you and not from Judge Castille?"

I thought they were good questions.

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