Chapter 8
Motions
Pretrial motions are where most cases are actually decided, and almost no one watches them.
The gallery on the sixteenth of January was nearly empty. A court artist from the Ledger sat in the second row with a pad on her knee, sketching Judge Teague's profile in a few careful strokes. A pair of law students whispered on the end of a bench. Clare Voss was in the front, in her black coat, with her back to the wall. At the prosecution's table Dana Whitlock sat straight and unhurried beside her young second chair, a soft-spoken man named Owen Pryce who took notes in a handwriting I could read upside down. And at mine, Priya, in her low heels, was arranging three colored tabs in a binder with the concentration of a surgeon laying out instruments.
Victor sat between us in a navy suit. He had been permitted, by the court, to wear his own clothes. Someone had pressed them. He had gained back some weight, I thought, and a little color, and he held himself with a quiet, upright dignity that made the deputy at his shoulder look faintly shabby.
"Mr. Cole," said Judge Teague. "Your motion."
I rose. I have always found that the first few seconds on my feet in a courtroom are the quietest of my life. The noise goes out of the room. I can hear the faint electric hum of the lights, the creak of a wooden chair, the sound of my own breath, and I become, for a moment, entirely calm. It is the one thing I have ever done that felt like a gift.
"Your Honor, the defense moves to suppress all statements made by Mr. Hale to Detective Sergeant Dunleavy and others on the morning of October fifteenth, from approximately three a.m. onward."
"On what ground?"
"That the interview ceased to be voluntary."
It was not a spectacular argument. I would not want it to have been. I did it the way I do most of the good ones, slowly, with documents, with the quiet accumulation of small facts that one by one make a different picture.
Mr. Hale had been brought to the Ninth Precinct at one in the morning in the back of an unmarked car. He had not been told he was free to leave. He had been taken to a windowless room, and his phone had been removed for safekeeping. He had been offered coffee and had accepted it, and I made the court notice that the cup was of foam, the kind that cannot be broken to make a weapon. At 2:30 a.m., according to Detective Dunleavy's own notes, which I read aloud, Mr. Hale had said, I think I should speak to a lawyer. The interview had continued for another ninety minutes.
"The detective's notes say," I said, "that he responded, We can get you one in a bit, let's just clear a few things up." I looked up. "In a bit. Your Honor, I've read that sentence thirty times. I don't think I've ever seen a sentence that contained so little help and so much pressure."
Whitlock rose to answer. She was very good. She said that Mr. Hale was an experienced businessman, a sophisticated man who had never at any point asked to leave, who had waived his rights in writing at the start of the interview, and that his mention of a lawyer at 2:30 had been, in the detective's understanding, equivocal. "I think I should," she said. "Not I want. The law distinguishes."
"The law does," said Judge Teague. "So does the English language." She looked at Dunleavy, who sat behind the prosecutor with his bulldog face set, and I saw her take in, quite deliberately, the tired brown suit and the folded hands. "Detective. At 2:30 a.m., when the defendant said that, what did you understand him to mean?"
Dunleavy stood. "That he'd like to talk to a lawyer eventually, Your Honor."
"Eventually."
"When he'd, ah, finished helping us."
"I see." She wrote something down. She did not look up for some time, and the room was very still. I could hear the court reporter's keys, a faint dry pattering, like rain on a skylight.
"I'm going to take a short recess," she said, "and consider this on the papers."
She was gone nineteen minutes. When she came back she read her ruling in a dry, level, unemphatic voice, and it was the best thing that happened to me that winter. Everything Mr. Hale had said before 2:30 a.m. was admissible. Everything after it was not. That included, I noted, the single statement that Whitlock had been proudest of: that he had thought she'd fallen. It had been said, according to the notes, at 3:11.
"A partial victory," said Priya, under her breath.
"A good one."
"She'd have got it anyway, from the 911 call."
"She'd have got the words. She won't get the interview." I did not look at the prosecution's table. I could feel Whitlock's gaze on the side of my face, level, patient, and I thought: She is already thinking about what comes next.
The privilege argument was shorter and less successful.
Roberta Kline, a divorce lawyer with a small, neat, gray-carpeted office on the fourth floor of the Fidelity Building, had met with Eleanor Hale on the twenty-third of September for an hour. Her notes ran to three pages. The State had learned of them through Eleanor's calendar, had subpoenaed them, and had been met by an indignant letter from Ms. Kline asserting the attorney-client privilege, which in this state survives the client's death.
I had spent a week of my life on that letter.
It is the kind of fight that makes a defense lawyer feel a little ashamed. I was arguing that the notes should be kept out, because they said things that would hurt my client, and I was arguing it on behalf of a privilege that belonged to the woman he was accused of killing. There is something obscene in it. I knew that. I had no way around it. The privilege was there. It belonged to her estate, which was to say to Clare Voss, who had not waived it. If the court let the notes in, I would lose a great deal.
I argued it well. The judge ruled in the middle. The fact of the consultation was admissible. The date, the subject in general terms, dissolution of marriage, could be put before the jury. The contents of the three pages could not.
"Thank you, Your Honor," I said.
"Don't thank me, Mr. Cole." She took off her glasses. "I observe only that the privilege belongs to the dead woman, and that she isn't here to waive it. I take that seriously." She looked at the front row, at Clare, and then at me. "I'd advise both sides to take it seriously, too."
It was a small thing. She did not say it with any particular emphasis. But I felt it, as one feels a cold draft from a door that has been left ajar, and when I sat down, I found that Victor, beside me, had turned his head very slightly and was watching me with an expression I could not read.
"Is something wrong?" he murmured.
"No."
"You went quiet."
"It's nothing." I looked at my pad. "It's a good ruling."
"Is it?"
"It is for us."
He was silent a moment. Then he said, very softly, so that only I could hear, "I'm sorry you have to do it this way."
I looked at him. It was the first time he had said anything like it. He sat with his large hands folded and his gaze on the bench, and there was nothing in his face at all. But his voice had a sound in it I had not heard before, a kind of dry, careful sorrow, as of a man who has stood at a window for a long time.
"It's my job," I said.
"I know." He nodded slowly. "That's what I'm sorry about."
"You've got a wrinkle between your eyes," said Walt Abernathy. "It's new. Shall I give you the bill for it?"
He was seventy-one, and he was feeding ducks.
It was a Sunday morning in late January, a day of raw wet wind and a sky of dirty cotton, and Walt stood on the stone embankment below the Civic Gardens in a long gray overcoat and a tweed cap with a paper bag of stale bread in one fist. The pond below him was crowded with birds. He threw crumbs in short underhand arcs, with a kind of bored precision, and they dived on them. He had been a judge on the Calder Court of Appeal for twenty-two years and had retired five years ago to enjoy what he called the full indignity of leisure. I had clerked for him for a year after law school, and he had read every brief I'd ever written, and he still told me, regularly, with great affection, that I was a better advocate than I was a person.
"I'm fine," I said.
"You look like a man who's been told that he must now eat what he's been serving." He threw a crust. "Come on. Walk with me. My knees prefer to be lied to while in motion."
We went round the pond. A man was running past with a stroller. Two women on a bench shared a thermos. The wind brought the smell of the river and wet leaves, and a faint sweetness from the bakery on the corner of Hargreave Street. Walt's stick tapped on the paving.
"Tell me," he said.
I told him. I had not told anyone, not in this way. I told him about the study and the shelf, the scuffs on the wood. About the call at 9:44, and the way Victor had looked at it, so mild, so calm. About his hands. The left that he had been beaten out of using, and the cufflinks that were his father's, and the way he had said, quietly, in the courtroom, I'm sorry that you have to do it this way. I told him about Maribel's cousin in Houston, and Clare in the cemetery, and the nine words in a text message that kept coming back to me in the middle of the night: Not about us. About the other thing.
He listened. He did not interrupt. He walked with his head down and his stick going, and when I stopped he said nothing for some time.
"You like him," he said at last.
"I don't know."
"You do. I can hear it. You like him, and you can't tell whether he did it, and for the first time in your career it's beginning to matter to you which." He glanced at me, a quick bright glance from under the cap. "That's the wrinkle."
"It shouldn't matter."
"It shouldn't. It always does. Anyone who tells you otherwise is selling something." He stopped at the rail. Below us a swan had come out of the reeds and was cruising toward the bread, unhurried, with an expression of weary contempt. "Adrian. I'm going to say something that you won't like. Not because it's wise. Because it's what the rules say, and you should have it in your ear before you need it."
"All right."
"You know Rule 3.3."
"Candor toward the tribunal."
"What does it say?"
"That a lawyer can't knowingly offer false evidence. That if he learns that evidence he's offered is false, he has to take reasonable steps to fix it."
"And how long does that last?"
I opened my mouth. I closed it. It was one of those questions to which I knew the answer and had never had occasion to say it aloud, like the name of a street one has driven every day.
"Until the proceeding's over," I said.
"In most places. Not here." He put both hands on the top of his stick. "Here, the Legislature, in its wisdom, extended it. After a scandal in the Hendry case, you remember. A man bought a verdict. A forged ledger, an expert who was paid. The jury was twelve people who believed what they were shown. He walked. And two years later, it came out." He smiled thinly. "So they wrote the Tainted Acquittal Act. Section 417. If it can be shown that an acquittal was procured by interference with the administration of justice, by perjury, by forged evidence, by a corrupted witness, the court can vacate it. Double jeopardy doesn't apply. And a lawyer who finds out that the evidence he put before the court was false has a duty to say so, for a year after the verdict, if the verdict was a good one."
"I know about 417."
"You know it as a footnote."
"Walt."
"I'm only telling you what's in the book." He said it very kindly. "You'll hear a great many people over the next few months explaining that a lawyer's duty is to his client, and that's true. But it is not the only duty. There's a place where the two cross. I have spent forty years watching good lawyers find it. It tends to be a very quiet place. Nobody announces it. It looks like a piece of paper." He tapped the stick on the ground. "Learn the shape of it now, while you can do it with a clear head."
"Why are you telling me this?"
"Because you've got a case where somebody is lying." He did not say it unkindly. "I don't know who. Neither do you. But you've got a witness who says she told the police everything three times in a minute, and a four-minute phone call nobody remembers, and a client who is, if you'll forgive an old man, a little too good at looking as though he has nothing to hide."
"That's not evidence."
"No. It's an instinct. You've got a better one than most." He turned and looked at me directly, and his eyes, which were a pale watery blue, held a brief, fierce, entirely un-judicial tenderness. "Just remember that it isn't only the State who can be fooled."
I went home that night through a thin, driving rain.
Nora was in the kitchen. She was standing at the stove with a wooden spoon in her hand, in a gray sweatshirt with the sleeves pushed up, stirring something that smelled of garlic and tomatoes. She did not turn when I came in. Her hair was wet. She had come off a twelve-hour shift, I knew, and had not slept, and had gone to the market on the way home, and had decided to cook. It was a thing she did when she was angry with me. She cooked very well.
"I've been reading about the Hale case," she said.
"Everyone has."
"It's in the paper every day. There's a photograph of you on the courthouse steps, looking as if you'd like to be somewhere else." She tasted the sauce. "I thought you'd like to know. You look as if you'd like to be somewhere else."
"I'm tired."
"I know." She set down the spoon. "Adrian, I want to tell you a story. It's not about you. You can listen to it as a person, not as a lawyer."
I sat down at the table.
"A year ago," Nora said, "in the winter, a woman came into the emergency department. Forty-one. A teacher. She had a broken wrist and a cut on her scalp. She said she had fallen down the stairs at home. I put in eleven stitches. She was very polite. She thanked me. She said she was clumsy." Her voice was even. "She came back in March. A cracked rib. Stairs again. And in July, a collapsed lung. I asked her, that time, whether she was safe. She laughed. She said, Of course. My husband's a lovely man."
I said nothing.
"She died in August. I read about it in the paper. He was a lovely man. He'd been to every appointment. He'd held her hand in the waiting room. He had a lawyer, a very good one, who got the charges reduced to manslaughter." She turned. Her gray eyes were steady and bright. "I'm not saying anything about your client. I don't know him. I'm saying that there is a kind of person who is very good at looking safe. And that I've been wrong about them. I've been wrong about them eleven times."
"Nora—"
"I'm not asking you to do anything. I'm only asking whether you've ever wondered." She picked up the spoon again. "Whether you've ever wanted to know."
The sauce bubbled. Rain ran down the window in long wavering lines. I sat with my hands on the table, and in my mind there came, quite suddenly and without warning, a woman's round clear handwriting on a page: I am so tired of being an exhibit in my own house.
"It's not my job to know," I said.
"I know." She did not turn. "That's what I keep hearing."
She dished up two bowls of pasta and set one in front of me. We ate in silence. It was very good. I told her so, and she said thank you, politely, as a stranger would, and the clink of the forks was very loud in the room, and the rain went on against the glass.