I’d counted about two dozen people in the courtroom before I stepped up. With Judge Nash, that’s usually a bad thing, because he likes to skewer lawyers in front of an audience. But I was laying it on pretty thick now—truth be told, I
have
seen Judge Nash exalt his rules over the Seventh Amendment—in the hope that he’d be shamed into showing me some leniency.
“The People object,” said Wendy Kotowski, when asked. “The defense
had ample opportunity to disclose this witness, even while he was still in the military. They’ve known about him for almost a year. They may not have spoken with him, but they could have told us about him. They didn’t. They’ve waited until after the discovery cutoff in the clear hope of trying to gain an advantage.”
“That’s ridiculous,” I protested, jumping in without invitation, usually a no-no for this judge. “Your Honor, I could have just littered my witness list with everyone Tom Stoller ever served with in the military. I would have been within my rights. And if I did that, the prosecution would be here complaining that I abused the disclosure process. But I didn’t do that. And now the prosecution is saying that I
should
have named Sergeant Hilton as a witness even at a point when I had no idea if he was remotely relevant to the case.”
“Your Honor?” Wendy said, doing it the right way, asking permission. He gave her the floor. “Your Honor, the bottom line is that your rule protects both sides from gamesmanship, and it should do so now. We both have to live with this rule. And I would note that Mr. Kolarich has coupled this motion with a request for a continuance in the hope that you’ll split the baby, so to speak.”
She was right. That’s exactly what I was doing.
The judge nodded. “I did notice that, Mr. Kolarich. You make a request you know I’m likely to deny and couple it with a lesser request. ‘Splitting the baby,’ as Ms. Kotowski said. You think I’m going to split the baby, Mr. Kolarich? Do you think I’m King Solomon?”
Don’t ask me why I do the things I do. Call it a gut reaction, I guess, an instinctive read of the situation.
“No,” I said, “but I heard you taught him everything he knew.”
There’s that old saying that you could have heard a pin drop. I would say that for one beat of a moment in Courtroom 1741 on Wednesday, November 10, at 9:22
A.M.
, you could have heard the blood circulating through an ant’s scrotum.
And then the old man reared his head back and burst into laughter. My theory is that a guy accustomed to everybody sucking up to him enjoys catching a little shit once in a while.
The rest of the courtroom followed suit like lemmings. Everybody thought I was funny. But he still hadn’t decided my motion.
After a time, the judge removed his glasses, wiped at his eyes, and calmed down. “Why do you want a continuance, Mr. Kolarich?”
I paused a beat. I had to be careful here. I was unlikely to win this motion. The odds of Judge Nash moving this trial were slim. And if we were going to a jury in three weeks, I didn’t want to show my hand to the prosecution. I wanted to maintain the element of surprise.
No, I decided. It wasn’t worth the risk. I’d have to stick with the same bullshit I put in my written motion. “Judge, the information from Sergeant Hilton has opened up a new line of evidence for us. We’d like to pursue it. Now that we know the event that my client was reliving, we want to interview the servicemen and servicewomen with whom he worked for evidence of the effect it had on him. The prosecution is contesting the presence of a mental defect, and how he responded to this event in Iraq is part of the factual underpinning my expert needs.”
The judge looked down over his glasses at me. He glanced at the prosecutor but didn’t ask for a response. “The court finds that the defense exercised reasonable diligence in securing the information from Mr. Hilton and in disclosing his testimony to the prosecution. The court will deem the defense’s disclosure of Mr. Hilton to be appropriate. But you’re not getting your continuance, Mr. Kolarich.” He nodded presumptively. “See you in three weeks.”
“I need you to focus on me, Tom,” Shauna said, pointing to her own eyes.
I’d brought Shauna back because she seemed to be the only person he would respond to. But so far today he’d been playing with a deck of cards, organizing them by numbers, then by suits. To look at him, you’d think he had the brainpower of a young child. But he didn’t. His intelligence hadn’t diminished any. Dr. Baraniq had said that Tom would seek comfort from his demons by doing things that required no difficulty whatsoever. Boring, said the doctor, would be fine with Tom. Boring was comfortable.
“I know you don’t remember what happened when that woman was shot,” she tried, in that soothing voice that had been used on me, too, on occasion. “But can you tell me how you got the gun?”
He didn’t answer. He kept playing with the cards. I looked at my watch, except I’d left my watch with the front desk, so all I saw was the pale outline of it on my wrist. I was growing impatient. I had work to do, especially if this case was going in the direction I thought it was.
“Lieutenant,” I said, which always seemed to draw his attention, at least momentarily. I used my grown-up voice. I walked over and lorded over him. “Stand up, Lieutenant. Stand up!”
I’d held his eye contact, which was promising. I didn’t know if this approach would work, but I had nothing to lose.
Tom stood up and faced me. His eyes didn’t stay locked with mine, but they remained in the ballpark. It was as good as I would get.
“Where did you get the gun?” I asked. “Did you steal it?”
He turned away. I grabbed him by the shoulders and kept him where he was.
“Did… you…
steal
it?”
“No.” He shook his head, staring into my chest.
“Then how’d you get it?” I asked. “How?”
“I… found it.”
“Where? Where did you find it?”
“I… I don’t know where I was sleeping. I try to stay warm but not too warm. Not too warm. It’s so cold, but then it gets so hot and then I have to take off my coats because it’s so hot—”
“The purse,” I tried. “The woman’s purse? Where did you get that?”
“The… purse.”
“The purse, Tom! The victim’s purse and the gun? How did you get them?”
I shook him fiercely. I expected him to wilt, but instead he righted himself and in one motion raised both of his hands and swept my arms off his shoulders. Expertly done, the result of training. His eyes grew dark, and he moved his legs apart to anchor himself.
I wasn’t sure what would come next. Something was happening, that’s all I knew. He was out of his shell. For all I knew, he was going to come at me.
“I don’t think you killed Kathy Rubinkowski,” I said. “I think somebody killed her and tried to make it look like a robbery. They dumped the gun and her possessions, and you found them.”
He didn’t move. He just watched me.
“I don’t think you were confessing to her murder in that interrogation room,” I said. “You were confessing to killing that girl in the tunnel in Mosul. Tell me I’m wrong.”
He remained stoic, other than a reddening of his cheeks.
I pushed him with everything I had, but he kept his balance. He grabbed my right forearm, twisted it behind my back, and drove me to the floor. In the space of three seconds, the ex-Ranger had subdued me.
“No!” I called out as the door burst open and guards entered. “It’s okay. I have to do this!”
“It’s okay,” Shauna repeated to the guards. “Really.”
That stalled them momentarily. As long as things didn’t escalate, they might give us a few moments.
“I… don’t… remember,” Tom whispered harshly into my ear.
Tom released my arm and stood up. The guards came over and handcuffed him behind his back. I looked up at Tom, whose limp posture showed that he had immediately regressed to his normal state of detachment.
But he resisted when they tried to move him, twisting his body back toward me, looking in my direction, his lips parting but nothing coming out. I raised my hand to the guards, who seemed to understand.
“It’s too late,” Tom finally said. The guards turned him toward the door and marched him out.
Shauna looked at me. “Did he say he doesn’t remember?”
As the doors closed and my client disappeared, I said, “Happy Veterans Day, Tom.”
“Okay, everybody, stop what you’re doing on
Stoller
. A new game plan, and we don’t have much time. Twenty days, to be exact.”
Bradley John, Joel Lightner, and Shauna Tasker had joined me in the conference room. It was time to dole out new instructions for a sprint to the finish.
“Bradley, I want case law on the prosecution’s burden of proof in insanity cases and inconsistent defenses. I know it’s out there and I know what it says, but I want the most recent case law and I want a memo I can convert to a brief if need be.”
“Got it,” said Bradley.
“Joel, do background on the victim, Kathy Rubinkowski. I’ll look through the discovery, but we already know it’s light. They got their man the first night, and since he was a homeless guy with a screw loose, they must have figured they didn’t need motive. I have nothing on this woman. That’s what you have to find me. Who gained from Kathy Rubinkowski’s murder?”
“Who’s drafting the subpoenas?” he asked.
I shook my head. “No subpoenas. This is under the radar. Whatever you can get through your charm and good looks. Shauna,” I said. “Take whatever research Bradley’s come up with on the insanity defense on the use of hypotheticals and amnesia and turn it into a motion in limine.”
“I thought
I
was doing that,” said Bradley.
“Man up, kid. I don’t have time for a learning curve right now.”
“You’re not seriously going with inconsistent defenses,” Shauna said.
“They’re not technically inconsistent,” I said. But what a defense strategy I was putting together.
Tom didn’t kill her, but if he did, he was insane
. But it probably wouldn’t get that far. I’d see what the next twenty days would bring and pursue a defense of innocence as far as it would take me. I could always fall back on insanity. Point was, I didn’t have to make that decision yet. I could wait until the defense put on its case if need be.
I clapped my hands together. “Get me good stuff, people.”
Everyone scattered. It was mid-afternoon now, the morning having been spent at the Boyd Center with my client. I took the discovery file on Kathy Rubinkowski and started to read.
At five-thirty, my intercom buzzed.
“Tori Martin?”
said our receptionist, Marie.
Shit. I’d forgotten. “Here or on the phone?”
“Here.”
“Send her back.”
Dinner tonight had been my idea. The other night, when we’d visited the scene of Lorenzo Fowler’s murder, my mind had turned to other things, and Lightner was there, anyway, so we had a couple of drinks and scratched on dinner. This was the rain check.
I wasn’t really sure why I was pursuing this. She’d made it clear that she wasn’t interested in anything other than a platonic relationship. It’s not like I was looking to get married or anything, but I guess I wanted something, though if pressed I couldn’t define what.
“Hey. Nice offices.” She couldn’t have meant that, at least not my office. With the well-worn couch and a desk I’d picked up at a garage sale, half-empty bookshelves, and a desk full of disheveled papers, it looked more like a bachelor pad.
She brightened the place up, though. I couldn’t deny the attraction. She put herself together nicely. The long white coat was expensive, and she dressed fashionably, with the caveat that I knew absolutely nothing about women’s fashion. And truth was, Tori Martin would look hot in a cloth sack.
“Sorry, something’s come up,” I said. “I should have called.”
“That’s okay. Should I—we can reschedule.”
“Sit a minute,” I said. I came around the desk and picked up the football in the middle of the room. She lifted her purse off her shoulder and sat on the couch.
“A case just heated up,” I said.
“The one about Lorenzo? That crime scene?”
“Not exactly. Kind of.”
She cocked her head. “Really.” She was interested. Most people, on a superficial level, would be. Cops and robbers. Cool stuff. But she didn’t pursue it. It was one of the things I liked about her. She had a natural reserve, bordering on aloofness, but I preferred it to the nosy type.
Said differently, she reminded me of me.
“I have a case going to trial in three weeks,” I said, “and we’ve just decided to change our theory.”
“What kind of case?”
“A murder trial.”
“Cool.” Her expression lightened. “That’s exciting, right?”
“That’s one way to describe it.”
“Can you tell me about it, or do you have some privilege or something?”
“No, I can.” I sighed. “You want a bottle of water? Or something stronger?”
“Water’s fine.”
I had a small refrigerator in the corner of my office, near my desk. “My client’s accused of murdering a woman in Franzen Park last January,” I said. Inside the fridge were three bottles of Sam Adams, a small bottle of Stoli, and one bottle of nature’s finest. I considered taking a small break and opening up a cold one, but one would probably lead to more. I figured I’d let Tori make the call. If she wanted a drink, that meant she wanted dinner, and maybe I could use a few hours to clear my head. “You sure you just want
agua
?”
She didn’t answer, so I glanced back at her. She looked like she’d just swallowed a bug. I sometimes forgot how this worked. People thought crime and justice were interesting to hear about and read about and watch on television, but when it got close to home, the idea of defending somebody who murdered a fellow human being was not for everybody. There
are a lot of people—other lawyers as well as laypersons—who don’t have the stomach for it. I might not, either, had I not first been a prosecutor and grown somewhat inured to death and violence. A lot of prosecutors become true believers and form a deep-seated antipathy for their opposing counsel. Me, I never saw the world that way, maybe because I spent a good part of my youth putting minor dents in the law myself. There are a lot of people from my neighborhood who would say that if I didn’t have some size and the ability to catch a football and run like hell, I’d have wound up serving time in prison instead of sending people there.