“She wants to interview a few of them, then pick one.”
“That’s a tall order. There’s not that many of them, and the real problem is time. If she wants to get Richie out by Christmas, you need to get a lawyer tomorrow. He has to file papers right away.”
“I know.” Declan sounded tense. “I’m going back to the drawing board.”
“You know, there’s a place in Philadelphia called the Juvenile Law Center. They might have some referrals in the area.”
“I’ll call them. Doreen can be a pain in the ass. You have any siblings?”
“No, it’s just me.” Bennie didn’t have to tell him the whole story about her estranged sister Alice, at least not yet.
“And your parents? Are they still alive?”
“No, it’s just me and Bear.” Bennie wanted to shift the conversation. “If I get my hearing and win, whoever you hire has precedent, right there. The judge won’t have any choice but to grant Richie’s petition. So it’s for the best that I go first.”
“Good point.” Declan rallied. “Anyway I’m home now. Melissa says hi.”
“Does she?” Bennie smiled. “Did you ride tonight?”
“I’m on Ember now.”
“As we speak? You’re talking on the cell phone, on a horse?”
“It’s a helluva lot safer than driving a car.”
“Thanks, Dad. How’s Melissa’s hoof?”
“Better.”
“Good.” Bennie flashed on a bird’s-eye view of the same moment in two separate places. Declan was outside on his horse, under the moonlight in a pasture of frozen snow, and she was inside, in a row house in the middle of a city, brick and mortar and people and cars, the moon obliterated by the reflection of electric lights. The settings couldn’t have been more different.
The difference has to make a difference.
“You didn’t answer my text,” Declan said, after a moment.
“It didn’t require an answer, did it?” Bennie asked, surprised. She hadn’t known what to reply to the text, so she hadn’t.
“No. Not really. Hey, I’d better go.”
“Sure.” Bennie thought she heard a softening in his voice, but it could have been her imagination.
“Drive safe.”
“Take care,” Bennie said, but the line was already dead.
CHAPTER SEVENTEEN
Morning sunlight streamed through Bennie’s office window, and she’d just sat down at her desk when Marshall had materialized with some faxed pages. Bennie accepted the fax, surprised to see that it was the Commonwealth’s brief in response to her petition. “They replied early? That’s weird. They had until Friday.”
“That is weird. Lawyers do everything at the last minute. Ask any legal secretary.” Marshall’s eyes shone an amused blue, her shiny hair was in its trademark braid, and her denim jumper paired with a white turtleneck and white tights.
“From the looks of it, it took five minutes to draft.” Bennie flipped through the Commonwealth’s response. “There’s no substance to this brief. They don’t address any of my arguments or deal with any of my precedent, which was directly on point. It’s boilerplate.” Bennie shook her head, and Marshall came around the side of the desk and handed her another fax.
“This fax came in after it. It looks like a judge’s order.”
“An order?” Bennie read the paper, which was an order in Jason’s case, only a paragraph long. Her gaze zoomed to the bottom of the page, where it stated, Petition for Emergency Relief is hereby DENIED.
“Did you lose?”
“Yes,” Bennie answered, stunned. “I don’t get it. I had Supreme Court precedent on my side, U.S. and Pennsylvania. I even found the case on point from the same judge. He was reversed last year for the same mistake.” Bennie rose, reflexively. She thought best on her feet, like most trial lawyers. She had an old boyfriend who used to joke that she was born standing up.
“The judge sounds stubborn.”
“They call him Napoleon.” Bennie simmered, eyeing the faxes.
“So, not the first judge on a power trip.”
“I can’t believe this.” Bennie flipped through the sheets again. “Are you sure this is everything that came off the machine?”
“Except for the cover sheets, yes.”
“There’s no opinion with the judge’s order?”
“I’ll go check. Be right back.” Marshall left the office.
Damn. Bennie read the order and reply brief again, her heart sinking. She had known it was a possibility that she could lose, but she deserved at least a rehearing. Plus, the fact that she had such good case authority merited at least a written opinion, wherein the judge explained his rationale for denying the petition. She looked up from the papers to see Marshall coming back, empty-handed.
“Bennie, that’s all there was. I double-checked to make sure nothing got jammed.”
“This order leaves a kid sitting in jail. A twelve-year-old boy.” Bennie threw the faxes down in disgust.
“Are you going to appeal?”
“It’s either that or burn the courthouse down.”
“Peace is better than war.”
“Litigation is war, only more expensive.” Bennie gritted her teeth.
“Don’t get riled up.”
“Too late.” Bennie felt her adrenaline flowing. “I became a lawyer to take down bullies like this. It feels good to get this angry.”
“Don’t get mad, get even.”
“Why do I have to choose?” Bennie set the faxes side by side on her desk; the Commonwealth’s response on the left and the judge’s order on the right. “You know what else makes me mad? Look at the timing of these papers. First, we have a reply brief, filed a day early. That’s a tipoff. Second—” Bennie checked the tiny numbers at the top of the faxed brief, which showed the time as 9:01 A.M. She compared it with the time the order had been faxed, which was 9:15. “—there’s only fifteen minutes between the time of the reply brief and the judge’s order. This must be a coordinated effort between the judge and the prosecutor.”
“Really? How did that happen?” Marshall cocked her head.
“I think they’re all buddy-buddy at that courthouse, and the judge and the assistant district attorney touched base on the timing, maybe because Christmas is around the corner. Their offices are in the same courthouse. They could have run into each other in the lobby, even the men’s room.” Bennie started counting off the days in her mind. “Assume the judge is already on a big murder trial and he doesn’t want this case hanging over his head. So he tells the assistant district attorney to file his brief early. Or the A.D.A. takes it on himself to file early because he knows what the judge will do. There’s only one judge and one A.D.A. who handle juvenile cases. They work together all the time, the two of them. They know each other.”
“Then it does sound possible.”
“It’s more than possible, it’s likely.” Bennie threw up her hands. “I bet the judge waited for the A.D.A. to file his brief, because it would be improper for him to deny without their filing anything, then he denied my petition.”
“Will they get caught?”
“No, the record doesn’t reflect what time papers are filed. The docket shows only that they were filed the same day. But that they’re fifteen minutes apart? It doesn’t show that.”
“Is what they did against the law?” Marshall frowned.
“No, but it’s improper.” Bennie knew the Code of Judicial Conduct because it was similar to the Code of Professional Responsibility for lawyers. “The Judicial Code says that judges should avoid the appearance of impropriety. The test is whether the conduct ‘reflects adversely,’ among other things, on the judge’s impartiality.”
“That would cover this, wouldn’t it?”
“Yes, but I can’t do anything about it. If I file a misconduct petition, I’d only make this judge madder at my client, and I’m sure he would argue that they discussed the timing, not the merits. This probably happens
all the time in a small courthouse.”
“Couldn’t it happen here, though, too?” Marshall lifted an eyebrow. “Be real. Things get pretty chummy in Common Pleas in Philly.”
“God knows that the Common Pleas Court of Philadelphia is no paragon of judicial virtue, but it’s far less likely to happen here, if only because of its size.” Bennie was thinking aloud. “Our Common Pleas Court has eighty-something judges, about twenty of whom handle juvenile cases, and there’s probably a group of assistant district attorneys who handle juvenile cases. The offices aren’t in the same building, and it’s not the same thing, at all. It’s clubby out in the counties, and I’m not in the club.”
“Sounds like you have your work cut out for you, then.”
“I sure do.” Bennie raked a hand through her hair. “It’s hard to know what to do first. I have to tell the client, who will be disappointed, and I have to hit the road, too. This isn’t the day I planned.” Or the night, she thought.
“Like my husband says, ‘Do like the pilots.’ ‘Aviate, navigate, and communicate.’”
“Right.” Bennie smiled. “So how does that apply to this?”
“Keep the craft in the air, figure out where you’re going, and tell everybody what you did later.”
“Gotcha.”
“Good luck. See you later.” Marshall left for the reception desk, and Bennie sat down and pulled her laptop closer to her, rallying. She would do some quick research, then cut and paste her petition to draft the appeal papers, so that wouldn’t take too long. Pennsylvania procedure required her to begin the appeals process by first filing a Notice of Appeal in the Common Pleas Court, so she’d have to go back to Wilkes-Barre and file the notice, then drive to the Superior Court in Harrisburg to file the actual appeal, which she would also style as an appeal for emergency relief. By the end of the day, she’d feel more like a chauffeur than a lawyer, but the only person having a crappier day would be Jason Lefkavick.
* * *
An hour later, Bennie was back in her car, with the dog. She hadn’t been able to get a dog-sitter, and nobody loved a road trip more than a golden retriever. Bear sat in the passenger seat, his brown marble eyes glued to the road, exercising better judgment than his mistress, who was already on the phone.
“Matthew?” Bennie knew the only way to deliver bad news was directly. “Unfortunately, the judge denied our petition for a readjudication.”
“Oh no. Jeez, I thought you said we were going to win!” Matthew groaned, and Bennie heard anguish, not blame.
“If you remember, I said there’s no guarantee. We should have won, by all accounts. We had the law and the facts on our side.”
“So what went wrong?”
“He turned us down anyway. It happens. I can’t explain it any other way, except that he has the power.” Bennie filled Matthew in on her theory about the timing.
“You got that right. I’m sure that’s what happened. It’s, like, a conspiracy.”
“In any event, I’m already in the car, and I’m filing an emergency appeal today, with the Superior Court.”
“Do you think we’ll win?”
“No guarantees, again, but I do.” Bennie steered ahead, in light traffic. “The Superior Court is an excellent court, and we have a good argument on appeal because we fall within a certain exception.”
“What exception?” Matthew asked, with a new note of distrust.
“Generally, an appellate court will deny an emergency appeal. They usually think that litigants can wait the six months to a year that it takes to get an appeal heard. Do you follow me?”
“Yes.”
“But there’s an exception for cases that would always moot themselves, like ours. By that I mean, juvenile sentences are usually less than six months. It takes more than six months for an appeals court to make a decision. The expiration of the sentence moots the appeal, every time. Understood?”
“Okay.”
“Appeals judges will look favorably on an emergency appeal in a case like ours because if the normal timing were followed, Jason’s appeal would never be heard. I want ours to be the case they take, the case they make an exception for.”
“I would testify if you need me to.”
“You don’t have to. There’s no testimony taken in appellate court. The judge will make his decision on the papers unless they grant me an oral argument. Then I’ll make the oral argument to them, but you can come.” Bennie reminded herself to manage his expectations. “But just so you’re aware, here’s the problem with our appeal. We still have the general rule about emergencies going against us. So I can’t say for sure that we’re going to win. They get emergency appeals filed from time to time, even in adult criminal cases. Nobody in jail thinks they should be in there any longer than they have to, follow me?”
“Yes, but it’s a kid!”
“I’m hoping that it will appeal to their compassion. But courts are always aware that they’re setting precedent when they act, and they might not want to make a new precedent and thus invite appeals in juvenile cases—”
“Whose side are you on?” Matthew shot back.
“Yours, but we have to be realistic. We just have to hope for the best.”
“That’s what they said after my wife had her first heart attack.” Matthew sighed. “I’ll start praying. Thanks for the call, I better get back to work. Thanks for keeping me posted.”
“Sure, good-bye.” Bennie hung up, switching lanes to pass a grimy tractor-trailer, then realized she should call Declan to update him and see how he was progressing with Richie. She slowed her speed, calling him.
“Please tell me you’re not driving,” Declan said, as soon as he picked up.
“You don’t give up, do you?”
“Neither do you.”
“Am I catching you at a bad time?”
“Little bit. Go ahead.”
“I’ll make it fast.” Bennie wondered if Declan had somebody in custody or was even in danger. She felt a twinge of concern, but dismissed the thought. “I lost my petition and I’m filing an appeal. I’m on the way to Wilkes-Barre and Harrisburg. Anything new on hiring a lawyer for Richie?”
“I’ll fill you in later.”
“Declan, we’re shifting into a higher gear. If you don’t have a lawyer yet, you should get one with appellate experience.”
“So you’re coming this way?”
“Yes.” Bennie detected a change in his voice, and it wasn’t her imagination, but she stayed in work mode. “I’m staying in Harrisburg tonight and maybe the next day. The Superior Court can grant me oral argument at any time, and I have to be ready when they call. There won’t be time to drive from Philly.”
“So you’re free tonight?”
“Well, yes.” Bennie blinked. Bear looked over. They both thought, Huh?
“I have a better idea.”
“What?” Bennie asked, knowing that whatever it was, she wasn’t dressed for it. She had on her crummy jeans with an old blue sweater, and she’d packed a bag full of court clothes. Not that any of that mattered. It was a reflexive thought.
“Ever hear of Jim Thorpe?”
“No, who’s he?”
Declan chuckled softly. “I’ll text you, Philly.”
CHAPTER EIGHTEEN
Bennie traveled until about five o’clock, and the wintry sky was graying by the time she reached Jim Thorpe, a town nestled in a valley between snowy mountains. She steered onto its main street, lined with cute boutiques, quaint restaurants, and antique stores, most of them two stories of red brick, with tall shuttered windows. Holiday lights twinkled in the trees, and couples, families, and tourists strolled along the sidewalks.
Bennie perked up at the picturesque scene, a welcome sight after a tiresome day of highway driving interrupted by courthouses and gas-station bathrooms. She drove uphill until she found the address that Declan had texted her, which was an inn. She had no idea what he was up to, but she presumed she’d find out, soon enough. She felt co
nfused but vaguely excited, even though she hated to admit as much.
She steered into the parking lot, pulled into a space, and cut the ignition, checking her reflection in the rearview mirror. She looked predictably tired, her hair a mess, and a mustard stain from a road pretzel encrusted her sweater. Bear started barking, and she turned to see Declan coming toward the car. She opened the car door, whereupon the golden lurched out and jumped on him, tail awag.
“Sorry, this is Bear.” Bennie grabbed her purse and the dog’s leash, then closed and locked the car.
“He’s cute. Good to see you.” Declan looked tense, his forehead buckled. His broad shoulders were hunched, and he seemed buried in his green parka. If he’d been in a good mood on the phone, it had vanished.
“So what’s up?” Bennie asked, concerned.
“It’s a long story. I just pulled up, myself.” Declan gestured to the back of the lot, where his pickup was parked. “You want to take a walk through town? Stretch your legs before dinner?”
“Okay. So, dinner? Is that your better idea?” Bennie fell into step with him, and they left the lot, joining the others on the sidewalk, with the dog tugging ahead.
“Partly. The inn has a nice restaurant. I made a reservation at eight. I also got you a room. The inn is a helluva lot nicer than anything in Harrisburg. Jim Thorpe’s close enough to get to Harrisburg fast.”
“Wow, okay.” Bennie liked the idea, but it was a surprise. “I’ll cancel the hotel in Harrisburg.”
“Do. You’re helping my family. I wanted you to know, I appreciate it.”
“Well, thanks.” Bennie felt uncertain. “You’re not paying.”
“I already did. Whatever progress you make will help Richie, too. I insist.”
“I can’t accept it.”
“You have to.” Declan paused. “Please.”
“Okay, you’re welcome.”
“I got a room, too.”
“Really.” Bennie tried not to react.
“It’s not what you’re thinking.” Declan managed a smile, his dark eyes shifting sideways to her. “I thought it would be a nice break. I come here all the time. I ski nearby.”