Gideon - 02 - Probable Cause (37 page)

“Using peremptory strikes to keep whites who won’t admit their racism off” the jury,” I say, somewhat disingenuously, “is hardly pandering.” Andy and I have previously discussed that in a capital case the defense gets to eliminate up to twelve potential jurors without having to disclose a reason, and the prosecution gets to eliminate ten. This tradition, not required by the United States Constitution and purely a creature of state law around the country, has as its purpose the selection of an impartial jury.

Like a law professor lecturing the statistically inevitable bad apple in his ethics class, Andy adjusts his glasses as if he would prefer not to see me and thunders, “You just want to use the system to get a black racist on the jury.”

Instinctively, I shake my head. Hell, I want both. I want to win his damn case for him. His long arm striking like a snake, Morris bridges the space between their chairs and clutches his brother’s arm.

“Jesus Christ!” he yells.

“Every person on this earth is racist. I don’t give a damn who you are. You think you aren’t one the way you run after whites? You hate us niggers so bad it makes you sick to look at us!”

Andy recoils as if Morris were trying to spit on him.

“I

don’t live where I do,” Andy says icily, “because I hate African-Americans.”

Morris laughs, sending an ugly barking sound through my small office as he holds the arm of Andy’s chair so he can’t pull back further.

“You’re scared shitless by us. You always have been. Even when you were a kid, you wouldn’t go play basketball if it was just a bunch of niggers.”

“I wasn’t any good and didn’t enjoy playing,” Andy observes coolly.

“And I live where I do because of the crime downtown.”

Disgusted, Morris gives Andy’s chair a shove.

“Bullshit!”

he snorts.

“Every other black person you see looks like a mugger to you.”

“That’s ridiculous,” Andy scoffs, meeting his brother’s now malevolent gaze. Watching this, I wonder how close to the truth Morris is. Their shared history has to count for something. Though I doubt if I would call for Morris to come hold my hand while I struggled through a life-threatening illness, I’m glad to have him now because I don’t have the guts to challenge Andy this way. And I can’t imagine he is making any of this up for my benefit. By the expression on his face he is as frustrated by his brother as I am.

“If you get convicted,” Morris says, his voice dropping,

“we’ll get a chance to see how scared you are, ‘cause the penitentiary is full of us!”

Maintaining his composure, Andy looks at Morris and me as if we are necessary but inescapably inferior beings. Maybe we are, but when this case is over, it seems highly likely that Morris and I will be going home, while he goes to jail.

it is late afternoon when Olivia arrives with the attorney for her company for a meeting that has been postponed twice.

Karen Ott is no more a criminal defense attorney than I am a real estate lawyer. If Olivia is eventually charged, undoubtedly Karen will bow out before the ink is dry on the warrant for Olivia’s arrest; but for now, she is here and plainly un comfortable with her role. Andy has seized on Olivia’s failure to go out and hire the best criminal lawyer money can buy as proof of her innocence. I’m not so sure she hasn’t already done so and is only appearing to be represented by Karen. Olivia may be as pure as new-fallen snow, but I no longer trust a word out of her mouth.

“It’s just going to be you, your client, me, and Olivia,” Karen says nervously after I tell her that Andy wants Morris to sit in with us. She is wearing a silk designer blouse that has never seen the inside of a courtroom, and has admitted in a previous conversation that it is difficult for her to refuse Olivia, especially since she does all her title business. I have kept to myself Olivia’s attempt to employ me.

“If you’re going to insist on it,” I say, pretending reluctance I do not feel, “I’ll tell him.” Morris, though he has promised to be merely an observer, is too much of a loose cannon for this meeting, which may soon take on the over tones of something other than a final get-our-stories-straight session. At some point I will take this opportunity to remind Olivia of her past.

I have reserved the conference room for this meeting. Pour people make my office seem a little close, especially under the circumstances. Andy and I take the east side of the table.

His former lover and her lawyer sit directly opposite from us. I do not offer coffee and Cokes. If they want something, they can ask for it. Andy is wearing a light gray suit with one of those wild, flowered ties in fashion that I can’t bring my self to buy. Even Morris, no clotheshorse either, is wearing one. Andy looks everywhere in the room except at the face of the woman he told me he loved. Maybe he, too, is finally having second thoughts about Olivia’s innocence.

Though I have requested this meeting, Karen begins it by asking me if I think Olivia should consider taking the Fifth Amendment and not testifying, which is another way of asking me if I have any knowledge that her client bears some criminal responsibility for what happened. Though she doesn’t practice criminal law, nobody has ever said Karen was dumb. She is not bad-looking for a real estate lawyer.

In addition to being as tall as her client, she looks around the mouth and eyes like that goofy movie star Geena Davis. She has the advantage of being able to claim relative ignorance.

Even if my client can’t bear to take a good look at his former lover, I can and do. She looks damn nice. Her hair, longer than the last time I saw her, is tightly permed. Her long legs, shaped by black tights under a short teal-green skirt, make her look sexier than I remembered. I guess if I were a woman and knew I was going to be on the front page of every news paper in the state the day after tomorrow, I’d go shopping and to the beauty parlor, too. Now that I’ve been handed this opportunity, I say, “I’m beginning to wonder, Karen. This morning I was told that your client” I watch Olivia’s face “years ago gave up another child she had abused.”

“That’s not true!” Olivia says, jerking her head sharply in my direction. But there is no mistaking she has been caught off guard. I turn and look at Andy who has become rigid in his chair. Behind his lenses, his eyes, more cinnamon than brown today, are wide and staring like a startled child’s, reflecting a mixture of anxiety, surprise, and fear. For once I have shocked him.

“Who told you that?” Olivia demands, her voice shrill with anger.

“I’m not at liberty to say,” I say, only half lying.

“I don’t think Andy or I knew you had another child, Olivia.”

“I knew about her son,” Andy says weakly. It is clear from his tone, though, that he hasn’t been told everything.

“It wasn’t child abuse; it was an accident,” Olivia says, her voice urgent and loud.

“He pulled a pan of water off the stove. I was going through a bad time then and was drinking a lot. In fact, by then I had become a full-fledged alcoholic.”

This admission does not come easy, and Olivia looks at me with undisguised resentment.

I do not quite shrug in disbelief, but I do not want Andy to think Olivia should be allowed to worm out of this one so easily.”

“Is that all?” I ask, indicating by my tone that I know more.

“Val had had a couple of accidents before this, and in my condition I couldn’t handle going through some kind of child-abuse proceeding, so I let my mother in Ohio take him, and that’s where he is today.”

What a great mother you’ve been, I think.

“How come you’ve never tried to get him back?” I ask, drawing the battle lines between us.

“Children and Family Services would have worked with you. Both state and federal law requires them to work to rehabilitate the family.”

“Val is happy where he is,” she says, her voice without a trace of warmth. I have found her guilty of abuse even if there is no court order.

“I see him whenever I can.”

I am the enemy now, and that is okay with me. I don’t like her much either. I say to Karen, “I don’t know if Jill Marymount knows this yet or not.”

Karen’s slightly round face appears deflated by this turn of events. This is more than she bargained for.

“Is this admissible?”

she asks me.

“It might well be,” I say, sensing Andy’s discomfort. He has begun to squirm in his seat like a small child who needs to use the toilet. Perhaps this revelation will be like replacing a distorted pane of glass in his bathroom mirror, and when Andy takes a hard look at himself tomorrow morning he might see a different man.

“I want to testify,” Olivia says, her jaw set, but her words sound brittle as if she has begun to doubt that she is still in control of her own fate.

Karen says in a low voice intended to soothe her client.

“We can talk about it later.” Olivia barely nods, and Karen, her gray-green eyes narrowing with obvious distaste at the question she is about to ask, says to me,”

“What are you going to say in your opening statement? Will you admit their affair?”

I look over at Andy who is studying a blank spiral note book he has brought in with him.

“I don’t see how it can be avoided,” I say, beginning to warm to the role of themes senger of bad news. If Olivia doesn’t testify, by the time we get to closing argument I can consider pointing a finger at her, possibly without running too great a risk that the jury will find the remaining fingers are pointed at my client. I justify this decision by saying, “If Andy is going to stay out of prison or worse, the jury will have to trust him. If he tries to hide anything, it will be extremely difficult for them to accept him, given that most or all of them will be white and will suspect a relationship anyway. His credibility is every thing in this case.” Without having said so, I have implied her client has none.

Olivia’s long, sensuous face dips slightly, as if she knew this part of the story wouldn’t be left on the cutting-room floor. Remembering her coldness at the probable cause hearing I ask her, “If you do testify tomorrow, how reluctant a witness are you going to be?”

Instead of looking at me, Olivia stares at Andy as she answers, “I had no intention of hurting Andy’s case last time.” “But you did,” I reply, not bothering to conceal my anger.

This is ground that Olivia and I have covered before, but it can’t hurt to remind her.

“When I questioned you, your manner suggested you wanted to put as much distance as you possibly could between your own participation and what occurred.”

“That’s understandable,” Andy says, gently rebuking me. “Olivia was not only angry at me but also upset at herself.”

Since he has been in the same room with her, his large and soulful eyes, the color of pennies found on a river bank, have become melancholy.

“It may be understandable,” I say, irritated by his defense of her, ‘but she’s got to be a hell of a lot more forthcoming next time or she shouldn’t testify at all.”

There is an air of unreality in the room. We might as well be rehearsing Our Town for the high school senior class play.

More sullen than she has a right to be, Olivia asks, “How specific do I have to get?”

With her Queen of England attitude, this woman is fast getting on my nerves. I explode at her: “Tomorrow’s going to be the second most horrible day in your lives! Jill Marymount will eat you alive, and the judge is going to let her, no matter how many objections I make, so you better be prepared to be pretty goddamned specific if you want to come out of this with any credibility. You’re going to need an explanation for everything that both of you did starting from the day you met and ending with this meeting today, and if you’re not prepared to do that, you better keep off the witness stand.”

For the first time since I met her, Olivia looks scared, as if she is about to cry. I can’t say that I blame her. I can’t always explain my own life even to myself, much less to the people I love. How much more difficult would it be for her to have to justify her life to twelve people, some of whom will regard her as an evil witch as soon as Jill finishes her opening statement. Pour boiling water on one child and then give him up? Put her other child in an institution? Have her shocked? Love a man (a black one, for God’s sake!) who is willing to send enough electricity into the child’s body to kill her? Even if you forget the damn money, how innocent can she be if she is willing to admit to all of that? If I didn’t dislike Olivia so much, I’d feel sorry for her.

My speech gets some results, after a bit of hemming and hawing, and for the next two hours I get to play the role of Jill Marymount and ask every question I can think of that will incriminate either of them. When I am finished, I don’t have a clue as to what a jury will do with Olivia’s testimony, but at least she has a complete story.

“Are you in love,” I finish up, as mockingly as I can, “with the defendant at this very moment?”

Love! The burdens we place on that word. Olivia, exhausted as we all are, shakes her head.

“I don’t know how I feel anymore.”

At one time I would have believed her, but no longer. I now think she has manipulated Andy every step of the way.

Her past has grown too long. Honesty, a scantily clad virtue usually born of necessity, is Andy’s only hope. The trouble is that people lie so much it is hard to recognize the truth when it appears. Without enthusiasm, I follow Olivia’s rehearsal with an abbreviated reprise of my opening statement: “Whether you approve of it or not, ladies and gentlemen, this is what happened and why it happened….” On the assumption she will testify as she has rehearsed, I summarize many of the events from Olivia’s perspective, but barely mention the issue of race. If I can put enough of a tragic spin on Olivia’s story, perhaps the white women on the jury (and they should be in the majority) will empathize with her enough to realize that if their circumstances had been different, they could have been faced with the same choices.

Though I do not say it (so as not to set off Andy), I firmly believe white women are less racist than white men.

By six o’clock, when we have finished, the emotional climate in the room precludes idle chitchat. Olivia looks as if she has learned she has two months to live, and Andy doesn’t seem much better. Saying goodbye in the conference room, I let Andy escort Karen and Olivia to the elevators and go look for Morris. He is in my office, on the phone, with his feet propped up on my desk. Barely glancing up at me, he continues his conversation, apparently to someone in one of his businesses in Atlanta. I wonder if I’m paying for his calls.