A preliminary hearing is just that, a hearing to determine preliminarily whether there’s probable cause to believe a crime has been committed and that the defendant committed it. A few days before Emily’s hearing, Jeff Taylor, the prosecutor, called me.
“What do you need on this one, Rachel?” he asked. Jeff had been a prosecutor in the Boulder County District Attorney’s office for as long as I’d been a public defender, almost twelve years. We’d actually gone to law school together and even went out a few times during our first year when I was still dating men. We had a good working relationship and generally trusted each other.
“I need you to dismiss it,” I said.
“Right,” he laughed. “It’s fine if you need to do the prelim. I understand. Let me know when you want to talk. This case could be a little sticky, though, because the victim was an ex-cop. His buddies have been calling every week. They want me to hang tough.”
“He was an abusive bastard,” I said.
“Can you prove it?”
I hesitated. So far, Donald had located a few hospital records that established Emily had sought medical attention for a broken arm, a dislocated shoulder and a torn ligament in her knee. These were significant injuries, but she’d always lied about how they happened. None of the neighbors were helpful. Hal’s mother wouldn’t rat on her son (she’d seen a number of bruises on her daughter-in-law, but claimed not to know where they’d come from), and none of Emily’s acquaintances had suspected a thing. My client’s best friend had moved to New York about eight years earlier and had visited only twice. For years, she’d wondered if Hal was an abuser, but Emily would never confirm it.
“There wasn’t a scratch on her when she was arrested,” Jeff reminded me.
“So what?” I said, a shoo-in for Miss Bravado of 1985. “It doesn’t mean she wasn’t acting in self-defense.”
“You’re a great lawyer, Rachel, but I don’t think even you can pull this one off. Anyway, you know I’ll eventually offer second-degree murder. Maybe we’ll find a number she can live with.”
“That’s not good enough.”
“It’s the best I can do. See you on Wednesday.”
I stared out the window at a bluebird roosting in the branches of a naked tree. The wind was blowing steadily, ruffling his short feathers. He looked cold, but resolute. The rest of his clan had long since headed south. I tapped hard on the windowpane and wondered for a moment if he’d frozen to death, but then saw his head move slightly in my direction.
“Hey,” I shouted, “it’s almost winter, you idiot. Get the hell out of here.”
On Wednesday, I let Donald sit with Emily and me at the preliminary hearing. At trial, however, I would try to hide him in the audience. Donald didn’t clean up well, even when he tried. The last time he’d testified at a trial for me, he’d worn a pair of brand-new polyester pants that were at least two sizes too small, the same shirt he always wore, and a brown wrinkled tie with hula girls on it.
At two o’clock, Jeff was calling his last witness, the lead detective on the case. By two thirty, Judge Thomas would find probable cause and bind the case over for trial on first-degree murder. After quizzing the detective about Emily’s statements to the police, Jeff looked up from his notes and addressed the court.
“Your Honor, I’d like to ask the detective a few questions about a search of the defendant’s house that was conducted early this morning. The defense hasn’t been given notice of this because I just found out about it myself.”
Judge Thomas said, “Ms. Stein, do you object?”
I thought for a moment. “No, Your Honor.” Since the case would be bound over regardless, there was no reason not to learn as much as possible.
“Detective Moorehouse,” Jeff began, “could you tell the court what you found at the defendant’s home early this morning?”
The detective turned to the judge. “We found some papers in the back of a kitchen drawer. One of them pertained to an insurance policy on the deceased’s life.”
Oh-oh, I thought, here comes a little surprise. God, I hate surprises.
“How much money was the deceased insured for?” Jeff continued.
The detective spoke in a careful monotone. “The deceased was insured for a quarter of a million dollars.”
“And who was the beneficiary on the policy?”
“The defendant.”
“Detective Moorehouse, were you able to determine who had taken out the policy on the deceased’s life?”
I heard Emily make a small distressed mewing sound.
“Yes,” the detective answered, “we called the insurance company. They informed us the defendant had taken out the policy three weeks before her husband died.”
“That ain’t good,” Donald muttered.
“No, it ain’t,” I agreed.
We both looked at Emily.
“You probably won’t believe this,” she whispered. “I mean I can hardly believe it myself, but until now it never occurred to me it was even relevant. That’s pretty naïve, isn’t it?”
“I’ll say,” Donald muttered.
I gave Donald a dirty look and then turned to Emily. “It’s okay, I believe you, but in order for us to help you, you have to start thinking—”
“I understand,” she interrupted. “If I don’t want to spend the rest of my life in prison, I have to start thinking like a criminal.”
Donald and I considered this and then nodded. “Exactly,” we said.
Judge Thomas cleared his throat and everyone in the courtroom immediately stopped talking. “Thank you,” he said. “The court will start by calling
People versus Watkins
,
85CR1260
.”
I grabbed my file and walked to the podium, signaling Emily to join me. She was seated in the jury box where the prisoners always sat except during jury trials. She was dressed in the usual Boulder County jail uniform: loose cotton navy blue pants and matching pullover blouse. On Emily, somehow it looked more like an outfit than a uniform.
The district attorney stood up from his table and said, “Good morning, Your Honor, Jeff Taylor for the people.”
“Good morning, Mr. Taylor. And Ms. Stein, how nice to see you so early in the morning.”
I grimaced. “God, I hate these early morning court appearances.”
Judge Thomas smiled at me. He was a thin, distinguished looking man with graying hair who looked exactly like what he was: a district court judge. “And yet you were on time. I’m impressed.”
“It was an accident, judge. I just didn’t sleep well last night.”
“Well I’m sorry to hear that, Ms. Stein.”
“Thank you, Judge. For the record, Rachel Stein appearing on behalf of Emily Watkins, who is now standing next to me at the podium.”
“Your Honor,” Jeff said, “the case comes on for arraignment. This court heard the evidence at a preliminary hearing in November and bound the case over on the original charge of first-degree murder.”
“I remember,” the judge said. “Is the defendant ready to be arraigned?”
“Yes, Your Honor,” I said. “The defendant pleads not guilty and asks that her case be set for a jury trial sometime in late April or early May.”
“Very well,” Judge Thomas said, and then leaned over to confer with his court clerk. “All right, a jury trial will be set for the week of May second. Both sides have thirty days to file any pretrial motions. I’ll set a motions hearing for March twenty-sixth. I assume you’ll need the entire day. Is there anything else?”
“Nothing from the defendant.”
“Nothing from the people,” Jeff echoed. “Thank you.”
I walked Emily back to the jury box. “I’ll come and see you tomorrow or the next day,” I told her. “Are you all right?”
She nodded. “I just wish I were here under different circumstances. It’s actually quite interesting. If this was a field trip, I’d love it.”
A heavyset guard, whose face was pitted with scars, approached us. “Emily,” he said. “I’m sorry to interrupt, but I have to take you downstairs and get someone else that I forgot to bring up.”
Emily smiled graciously. “Of course.” She put her hands out in front of her so that he could refasten her handcuffs.
“Does everyone at the jail know your name?” I asked. The county jail was a busy place where hundreds of inmates came and went every week.
“Larry’s niece is one of the women I’ve started teaching to read,” Emily explained. “She’s in here for stealing her mother’s Vicodin. Listen, try some hot milk with honey and a dash of nutmeg. It’s always worked for me.”
I had no idea what she was talking about.
“For your sleep,” she added.
“Oh, right. Thanks.”
I watched her being escorted out of the courtroom. She was doing remarkably well for a middle-class housewife suddenly living among sociopaths, drug addicts and prostitutes. Too well. A jail is one of the strangest, most artificial, almost surreal environments you can imagine. Actually, you can’t unless you’ve been there. Reading about it is like reading about cancer—until you or someone very close to you has been diagnosed, you can’t truly comprehend it. And yet my shy, bright, poetry-loving client had quickly adapted to it. I felt my stomach lurch. Emily, I thought, stop worrying about your lawyer’s insomnia and wake up. Denial is an excellent short-term coping mechanism, but this is a coma. Don’t get used to it.
Of course I knew I had my work cut out for me. Emily had been hibernating for almost ten years—if not longer—and had no real desire to ever wake up. She’d seen what was out there and figured she wasn’t missing a thing; the prince had already kissed her and it had been a disaster. The vision I was offering her, of hacking through the forest on her own in a world without princes, wasn’t an appealing one. But neither was snoozing on a lumpy cot in a ten-by-twelve foot prison cell for the rest of her life.
I left the courtroom and caught up to Jeff in the hallway.
“Hi Rachel,” he said. “You ready to talk?”
“Nice suit,” I said, fingering the buttery soft fabric on his sleeve.
“Thanks,” he said, looking embarrassed.
“Hey, you can’t help it if you were born independently wealthy. It’s to your credit that you work when you don’t have to.”
Now he was actually blushing. Unfortunately for the defense bar, Jeff Taylor was not only rich and handsome he was genuinely nice. A young, self-effacing Cary Grant who’d gone into law instead of acting. Juries invariably loved him. “So what do you want, Rachel?”
“Felony menacing with probation,” I said with a straight face. Sometimes the difference between lawyering and acting is too subtle for ordinary laymen to distinguish.
“On the Emily Watkins case? Maybe you haven’t noticed, but there’s a dead body.”
“Oh yeah, that.”
“Yeah, that,” he said.
“Look, how about reckless manslaughter with community corrections? That’s as high as I can go.” I stroked the sleeve of his jacket. For my clients, I was shameless.
“You’re dreaming, Rachel. I’m offering second-degree murder, but we can talk about the number. I’m thinking somewhere in the thirties, maybe even the low thirties.”
“I don’t want her to go to prison,” I said.
He shook his head. “I know you think she acted in self-defense, but the evidence doesn’t support it. She seems like a nice lady, everyone at the jail likes her. If you can come up with anything, you know I’ll listen. That’s the best I can do.” He patted the shoulder of my fifty-dollar blazer.
“I wish you were an asshole,” I said.
He looked surprised. “Why?”
“So I could hate you.”
He looked incredulous. “Why would you want to do that?”
And there you had it, I thought as I hurried to my next court appearance in division four, the reason it was so difficult to practice law in the 20
th
Judicial District: everyone was so goddamned nice. The judge, the prosecutor, the guards, the defense attorney, even the client. The tragedy of Emily’s life would get lost in all that pleasant backslapping congeniality. It would slip, unnoticed, like a suicide off the side of a ship during a wild and happy party. A quick slight splash, and she’d be gone.
“Ah, Ms. Stein,” Judge Thomas would say at Emily’s final hearing. “How nice to see you again.”
“Nice to see you too, Judge.”
“And Mr. Taylor, what a nice suit jacket. Is it cashmere?”
“I’m not sure, Judge, but thank you. Your Honor, Ms. Stein’s client has agreed to plead guilty to second-degree murder and we’ll be stipulating to a sentence of only thirty years in the state penitentiary.”
“Well, that sounds like a nice disposition. I will accept it and sentence the defendant to the Department of Corrections for a mere thirty years.”
“Thank you, Judge,” Emily would say. “You’ve all been very nice to me.”
“Well, you’ve been a very nice defendant. And now, is there anything else?”
“Nothing from the defendant, Your Honor. Thank you.”
“Nothing from the people either. Thank you.”
“Well, thank you all for appearing. The best of luck to you, Ms. Watkins.”
“Thank you, Judge.”
***
I was still thinking about Emily’s case as I drove downtown to meet Donald at Tom’s Tavern for a working lunch. I was hoping he’d uncovered a few more witnesses to prove Emily’s husband had been abusing her for years. It was the kind of testimony that was crucial in a self-defense case.
I found my investigator sitting at the bar, talking to a man I’d represented a few years ago for his eighth DUI. The place stank of hamburger grease and cigarette smoke. It was Donald’s favorite restaurant and in another fruitless effort to be nice, I’d stupidly agreed to meet him there.
“Come on,” I said to Donald, “let’s get a booth.”
As we groped our way through the smoke to an empty booth, Donald said, “The guy I was talking to said you used to be his lawyer. Said you couldn’t do much for him, and that he had to spend a year in the Boulder County Jail. Seemed like a nice guy.”
I glanced back at the bar. “One of these days he’s going to get drunk and smash into a car full of unsuspecting people and kill them. But other than that, I guess he’s all right.” I picked up a sticky menu and began studying it. “Let’s order quickly and get to work.”