I checked my posture while I led them into the conference room. In my
sling backs, I edged out the notoriously napoleonic power broker by a
full inch. He straightened his trademark bow tie. I chose to
interpret the nervous gesture as a very small leveling of the playing
field.
Make that a very, very small leveling. Fish was ready to go the second
I shut the door.
"I won't take up your time, Ms. Kincaid, because I know you've got a
court appearance to prepare for. I was hoping I could convince you to
support Mr. Caffrey's motion to quash the subpoena. Duncan sounded
amenable to it when I spoke with him yesterday."
I noticed that the spineless Mr. Caffrey had no problem letting his
attorney handle the talking.
"I believe what Duncan was amenable to was a meeting this morning at
seven thirty," I said, glancing at my watch, "as a courtesy to your
client. As you know, the decision whether to grant your motion is
entirely in the trial court's discretion."
I had spent the early morning researching the issue. There was no
clear correct legal answer to Caffrey's motion. Most important from my
perspective, there was no risk the court's ruling on the motion could
lead to a reversal of Jackson's conviction down the road.
"It seems patently obvious to me, Ms. Kincaid, that it would be in the
government's interest to prevent this Mr. Sillipcow "
"Szlipkowski," I corrected.
"Yes, this public defender, from deflecting the court's attention from
the very strong evidence against the defendant."
"That's one way to look at it, but I plan on staying out of it."
"I'm not certain how else one could possibly look at it."
"Well," I began, "one might look at the defense's subpoena as an
opportunity to make certain the state's not missing something we should
know about prior to trial. If, for example, your client was having an
affair with the victim and I'm not saying that he was then one might
believe it better to get that news out in court during the prelim,
rather than having a desperate defense attorney leak it to the media in
the middle of trial."
I watched Caffrey glance at his attorney. Clearly he could tell this
sit-down was going nowhere.
"Or perhaps," I continued, "one might see this as an opportunity to
make certain, outside of the presence of the jury, that the state isn't
missing some off-the-wall defense theory that might take off at trial.
Something like a connection between the victim being found in Glenville
and Mr. Caffrey's power to shape the future of suburban development
out there. I don't know, something like that. But, again, maybe it's
better heard now rather than later."
I didn't take my eyes off Caffrey's face. Nothing.
I had no idea what his wooden affect said about his knowledge of the
case or any possible connection between Clarissa and development in
Glenville. But I knew one thing: I'd never vote for T. J. Caffrey,
whatever his politics. There was no doubt in my mind that this man had
some kind of relationship with Clarissa. I had spent the week watching
Tara, Townsend, and Susan struggle with their profound grief. But here
sat Caffrey observing this discussion like a Wimbledon match.
I excused myself to prepare for court and walked them to the exit.
News crews from all four local stations were waiting in front of the
Justice Center. Fortunately, they weren't allowed in the courtrooms,
so they only polluted what the attorneys said before and after the main
event.
Slip and Roger were giving competing statements. Slip was accusing the
police and prosecutors (I guess that would be me) of rushing to
judgment to comfort a nervous public that was demanding a quick arrest.
Roger, on the other hand, was grateful that the police had finally
gotten around to catching the right man.
When the cameras rushed over to me, I gave them the standard
prosecutorial line. We're confident about the evidence, wouldn't be
going forward if we weren't, blah blah blah. Because of the ethical
rules that govern the public statements of prosecutors, we never get to
say the good stuff.
Once we were in JC-3 before Judge Prescott, it was a whole other story.
In a prelim, the prosecutor runs the show, since the only relevant
question is whether the state's evidence, if believed in its entirety
by a jury, could support a conviction. Slip most likely would try to
get some free discovery by squeezing in as much cross-examination as
Prescott would tolerate, but he'd know there was little to gain by
grandstanding this early in the process. Roger was completely
irrelevant, sitting next to Townsend with the other observers. I
couldn't help but wonder how much he was charging.
I wheeled my chair toward Slip. "You subpoenaed Caffrey, huh? I
assume you know that he'll move to quash."
"His lawyer wants to wait until I actually call Caffrey to the stand.
He's probably making sure it's not a bluff. I told him I'd call him
when you were done presenting your evidence, so they wouldn't have to
wait."
"Hate to break it to you, Slip, but I doubt your courtesy's going to be
enough to win Ronald Fish over."
"I'm a good guy. What can I say?"
Prescott took the bench and called the case. Every other judge in the
county lets the prosecutor call the case, and we do it in about five
seconds flat, the words so routine that the court reporter has no
problems keeping up with the pace. But Prescott treated even this
routine function like a constitutional moment.
When she was finally done, it was my turn for a quick opening
statement.
"Thank you, your honor. Deputy District Attorney Samantha Kincaid for
the state. As your honor is well aware, the only question here is
whether the state has sufficient evidence to hold the defendant over
for trial on the pending Aggravated Murder charge. The ultimate
decision regarding the defendant's guilt must be made by the jury at
trial, and the jury is entitled to make its own determinations about
credibility. Accordingly, the standard for today's hearing requires
the court to credit as true all testimony that benefits the state, and
to discredit any contradictory evidence from the defense, even if that
would not be your own assessment of the evidence were you to sit in
this case as a juror."
I went ahead and cited the controlling cases for good measure. I would
never spell out the governing law as thoroughly for a more experienced
judge, but Prescott was still learning the basics of criminal law. The
last thing I needed was for her to substitute her own opinion for the
jury's because I forgot to cover Criminal Procedure 101.
I gave a brief outline of the critical evidence and then called Ray