out of control.
“No, sir. I am promising you. I will not continue.”
“Then I’ll hold you in contempt and throw you in jail.”
“I’ve been there before. Do it, and we’ll have ourselves a mistrial. We can come back in six months and have this party all over again.”
They don’t know for sure that I’ve been in jail, but at this moment they figure I’m not lying. A fringe lawyer like me is constantly flirting with ethical boundaries. Jail time is a badge of honor. If I’m forced to anger a judge, or humiliate him, so be it.
We go silent for a few minutes. The court reporter stares at her feet, and if given the chance she would sprint from the room, knocking over chairs in the process. At this point, Huver is terrified of a reversal, of having his great conviction frowned upon by an appellate court that sends it back for another trial. He doesn’t want to relive this ordeal. What he wants is that glorious date in the future when he drives, probably with a reporter in the car with him, to a prison called Big Wheeler, where the State keeps its death house. He’ll be treated like royalty because he will be the Man—the gunslinger who solved the hideous crime and secured the guilty verdict that sent Gardy Baker to his execution, thus allowing Milo to have its closure. He’ll be given a front-row seat behind a curtain that will be dramatically pulled aside to reveal Gardy lying on a gurney with tubes in his arms. Afterward, he, Huver, will find the time to chat somberly with the press and describe the burdens his office places upon him. He has yet to witness an execution, and in this death-happy state that’s worse than being a thirty-year-old virgin. State v. Gardy Baker is Dan Huver’s finest hour. It will make his career. He’ll get to speak at those all-important prosecutors’ conferences held in cheap casinos. He’ll get reelected.
At the moment, though, he’s sweating because he has overplayed his hand.
They were convinced they had me by the balls. What foolishness. Nailing me with some bogus improper contact charge will not help their case and cause at this point. It’s overkill, and it’s not unusual. They have Gardy all but convicted and sentenced to die, and for fun they thought it would be cute to take a bite out of me.
“Smells like improper contact to me, Judge,” Huver says, trying to be dramatic.
“It would,” I say.
“Let’s deal with it later,” Kaufman says. “The jury is waiting.”
I say, “I guess you guys are deaf. I’m not proceeding until I get a hearing. I insist on getting this into the record.”
Kaufman looks at Huver and both seem to lose air. They know I’m crazy enough to go on strike, refuse to participate in the trial, and when that happens they are staring at a mistrial. The judge glares at me and says, “I hold you in contempt.”
“Put me in jail,” I say, mocking, taunting. The court reporter is getting every word. “Put me in jail.”
But he can’t do it right now. He has to make a decision, and a wrong one could jeopardize everything. If I go to jail over this, the entire trial is hijacked and there’s really no way to save it. Somewhere down the road, an appellate court, most likely a federal one, will review Kaufman’s exact movements right here and call a foul. Gardy has to have a lawyer, a real one, and they simply cannot proceed with me in jail. They’ve handed me a gift.
A few seconds pass and tempers cool. Helpfully, almost sweetly, I say, “Look, Judge, you can’t deny me a hearing on this. To do so is to hand me some heavy ammo for the appeal.”
“What kind of hearing?” he says, cracking.
“I want this woman, this Marlo Wilfang, on the witness stand in a closed hearing. You guys are hell-bent on nailing me with improper contact, so let’s get to the bottom of it. I have the right to defend myself. Send the jury home for the day and let’s have us a brawl.”
“I’m not sending the jury home,” he says as he falls into his chair, defeated.
“Fine. Keep ’em locked up all day. I don’t care. This gal has lied to you, and in doing so she’s stuck her nose into the middle of this trial. There’s no way her mother can stay on the jury. It’s grounds for a mistrial now, and it’s damned sure grounds for a reversal five years from now. Pick your poison.”
They are listening because they are suddenly frightened and woefully inexperienced. I’ve gotten the mistrials. I’ve gotten the reversals. I’ve been here many times, in the center of the arena where death is on the line and one mistake can ruin a case. They are novices. Kaufman has presided over two capital murder trials in the seven years he’s been on the bench. Huver has sent only one man to death row, an embarrassment for any prosecutor around here. Two years ago he bungled a death case so badly the judge (not Kaufman) was forced to declare a mistrial. The charges were later dismissed. They are in over their heads and they have just blundered badly.
“Who prepared the affidavit?” I ask.
No response.
I say, “Look, the language used here definitely came from a lawyer. No layperson speaks like this. Did your office prepare it, Huver?”
Huver, trying to remain cool but now far beyond desperate, says something that not even Kaufman can believe: “Judge, we can continue with Trots while Mr. Rudd sits over in the jail.”
I burst out laughing as Kaufman looks like he’s been slapped.
“Oh, go right ahead,” I say, taunting. “You’ve managed to botch this case from the first day, just go ahead and award Gardy with a reversal.”
Kaufman says, “No. Mr. Trots has said nothing so far and it would be wise if that boy just continues sitting there with that stupid look on his face.” While this is funny, I look hard at His Honor and then hard at the court reporter, who’s capturing it all.
“Strike that,” Kaufman barks at her as he catches himself. What a moron. A trial often resembles a bad circus as various acts spin out of control. What began as a fun-and-games attempt to humiliate me now looks like a terrible idea, at least for them.
I don’t want Huver coming up with any good ideas—not that I have much to worry about—and so to keep him off balance I throw some gas on the fire by saying, “Of all the stupid things you’ve said so far in this trial, that has got to be the winner. Bennie Trots. What a joke. You would want him in the first chair.”
“What’s your position, Mr. Rudd?” Kaufman demands.
“I’m not walking back into that courtroom until we have a hearing on improper contact with juror number eight, the lovely Mrs. Glynna Roston. If I’m really in contempt, then throw me in jail. Right now I’d rather have a mistrial than a triple orgasm.”
“No need to be crude, Mr. Rudd.”
Huver begins fidgeting and stammering. “Well, uh, Judge, uh, I suppose we could deal with the improper contact and the contempt later, you know, after the trial or something. Me, I’d just rather get on with the testimony. This, uh, just seems so unnecessary at this point.”
“Then why’d you start it, Huver?” I say. “Why did you clowns get all excited about improper contact when you knew damned well this Wilfang woman is lying?”
“Don’t call me a clown,” Judge Kaufman sneers.
“Sorry, Judge, I wasn’t referring to you. I was referring to all the clowns in the prosecutor’s office, including the district attorney himself.”
“If we could elevate the level of discourse here,” Kaufman says.
“My apologies,” I say, about as sarcastically as humanly possible.
Huver retreats to the window, where he stares onto the rows of shabby buildings that comprise the Main Street of Milo. Kaufman retreats to a bookcase behind his desk where he stares at books he’s never touched. The air is strained and tense. A weighty decision must be made, and quickly, and if His Honor gets it wrong the aftershocks will ripple for years.
He finally turns around and says, “I guess we’d better question juror number eight, but we’re not doing it out there. We’ll conduct the inquiry here.”
What follows is one of those episodes in a trial that frustrate litigants, jurors, and
observers. We spend the rest of the day in Judge Kaufman’s less than spacious chambers haggling and often yelling over the ins and outs of my improper contact with a juror. Glynna Roston is dragged in, put under oath, and is almost too terrified to speak. She begins lying immediately when she says she has not discussed this case with her family. On cross-examination, I attack with a vengeance that seems to astonish even Kaufman and Huver. She leaves the room sobbing. Next, they drag in her daffy daughter, Ms. Marlo Wilfang, who repeats her little narrative under the clumsy questioning of Dan Huver, who’s really off his game now. When she’s handed over to me, I sweetly walk her down the golden path, then slice her throat from ear to ear. Within ten minutes, she’s crying, gasping for breath, and wishing a thousand times she’d never called my name at the arena. It becomes painfully obvious she’s lying in her affidavit. Even Judge Kaufman asks her, “In a crowd of five thousand people, how did Mr. Rudd find you if he’s never met you before?”
Thank you, Judge. That would be the great question.
As her story goes, she came home from the fights late on Friday. When she finally woke up on Saturday, she called her mother, who immediately called Mr. Dan Huver, who knew exactly what to do. They met in his office on Sunday afternoon, worked out the language for the affidavit, and, presto! Huver was in business.
I call Huver as a witness. He objects. We argue, but Kaufman has no choice. I question Huver for an hour, and two bobcats trapped in the same burlap sack would be much more civilized. One of his assistants wrote every word of the affidavit. One of his secretaries typed it. Another secretary notarized it.
He then questions me and the squabbling continues. Throughout this tedious ordeal, the jurors wait in the deliberation room, no doubt briefed by Glynna Roston and no doubt blaming me for another frustrating delay in the trial. As if I care. I keep reminding Kaufman and Huver that they are playing with a cobra here. If Glynna Roston stays on the jury, I’m guaranteed a reversal. I’m not sure of this—on appeal nothing is guaranteed—but I gradually see them wither under the strain and doubt their own judgment. I repeatedly move for a mistrial. The motions are repeatedly denied. I don’t care. It’s in the record. Late in the afternoon, Kaufman decides to excuse Mrs. Roston and replace her with Ms. Mazy, one of our blue-ribbon alternates.
Ms. Mazy is no replacement to get excited about; in fact, she’s no better than the last old gal who occupied her chair. No one in Milo would be better. You could select twelve from a pool of a thousand and every jury would look and vote the same. So why did I burn so much clock today? To hold them accountable. To scare the hell out of them with the scenario that they—prosecutor and judge, duly elected by the locals—could screw up the most sensational case this backwater hick town has ever seen. To collect ammunition for the appeal. And, to make them respect me.
I demand that Marlo Wilfang be prosecuted for perjury, but the prosecutor is tired. I demand she be held in contempt. Instead, Judge Kaufman reminds me that I’m in contempt. He sends for a bailiff, one with handcuffs.
I say, “I’m sorry, Judge, but I’ve forgotten why you found me in contempt. It was so long ago.”
“Because you refused to continue the trial this morning, and because we’ve wasted an entire day back here fighting over a juror. Plus, you insulted me.”
There are so many ways to respond to this nonsense, but I decide to let it pass. Tossing me in jail over a contempt charge will only complicate matters for them, for the authorities, and it will give me even more ammo for Gardy’s appeal. A large deputy comes in and Kaufman says, “Take him to jail.”
Huver is at the window, his back to it all.
I don’t want to go to jail, but I can’t wait to get out of this room. It’s beginning to reek of stale body odor. The handcuffs are locked around my wrists, hands in front, not back, and as I’m led away I look at Kaufman and say, “I’m assuming I will be allowed to continue as lead counsel in the morning.”
“You will.”
To frighten them even more, I add, “The last time I was tossed in jail in the middle of a trial the conviction was reversed by the state supreme court. Nine to zero. You clowns should read your cases.”
Another large deputy joins our little parade. They take me through the back doors and down the rear hallway I use every day. For some reason we pause on a landing as the deputies mumble into their radios. When we finally step outside, I get the impression that word was leaked. A cheer goes up by my haters when they see me frog-marched out, handcuffed. For no apparent reason, the cops stall as they try to decide which patrol car to use. I stand by one, exposed, smiling at my little mob. I see Partner and yell that I’ll call him later. He is stunned and confused. For sport, they shove me into the same backseat with Gardy; lawyer and client, off to jail. As we pull away, with lights and sirens fully engaged to give this miserable town as much drama as possible, Gardy looks at me and says, “Where you been all day?”
I’m not about to try. I lift my bound hands and say, “Fighting with the judge. Guess who won?”
“How can they throw a lawyer in jail?”
“The judge can do whatever he wants.”
“You getting the death penalty too?”
I chuckle for the first time in many hours. “No, not yet anyway.”
Gardy is amused by this unexpected change in routine. He says, “You’re gonna love the food there.”
“I’ll bet.” The two deputies in the front seat are listening so hard they’re barely breathing.
“You ever been in jail before?” my client asks.
“Oh yes, several times. I have a knack for pissing off judges.”
“How’d you piss off Judge Kaufman?”
“It’s a long story.”
“Well, we got all night, don’t we?”
I suppose we do, though I doubt they’ll throw me in the same cell with my dear client. Minutes later we stop in front of a 1950s-style flat-roofed building with several additions stuck to its sides like malignant tumors. I’ve been here a few times to meet with Gardy and it’s a miserable place. We park; they yank us out of the car and jostle us inside a cramped open room where some cops lounge around pushing paper and acting like badasses. Gardy disappears into the rear, and when an unseen door opens I can hear prisoners yelling in the background.
“Judge Kaufman said I can make two phone calls,” I snap at the jailer as he moves toward me. He stops, uncertain as to what exactly a jailer is supposed to do when confronting an angry lawyer sent over for contempt. He backs away.
I call Judith, and after barking at her receptionist, then her secretary, then her paralegal, I get her on the phone, explain I’m in jail again and need help. She curses, reminds me of how busy she is, then says all right. I call Partner and give him the update.
They hand me an orange jumpsuit with “Milo City Jail” stenciled across the back. I change in a filthy bathroom, carefully arranging my shirt, tie, and suit on one hanger. I hand it to the jailer and say, “Please don’t wrinkle this. I have to wear it tomorrow.”
“You want it pressed?” he says, then roars with laughter. The others break down too at this real knee-slapper, and I smile like a good sport. When the laughing is over I say, “So what’s for dinner?”
The jailer says, “It’s Monday, Spam day. Always Spam on Monday.”
“Can’t wait.” My cell is a ten-by-ten concrete bunker that reeks of stale urine and body odor. On the bunk beds are two young black men, one reading, the other napping. There is no third bed, so I’ll sleep in a plastic chair stained with dark brown splotches. My two new cellies do not appear the least bit friendly. I don’t want to fight, but getting beat up in jail, in the middle of a capital murder defense, would cause an automatic mistrial. I’ll ponder it.
Because she’s done this before, Judith knows exactly what to do. At 5:00 p.m., she files a petition for habeas corpus in federal court in the City, with an urgent demand for an immediate hearing. I love federal court, most of the time.
; She also sends a copy of her petition to my favorite reporter at the newspaper. I’ll make as much noise as possible. Kaufman and Huver have blundered badly, and they’ll pay for it. The reader on the bottom bunk decides he wants to talk, so I explain why I’m here. He thinks it’s funny, a lawyer in jail for pissing off the judge. The napper on the top bunk rolls over and joins the fun. Before long, I’m giving legal advice, and these guys need as much as I can dish out.
An hour later, a jailer fetches me with the news that I have a visitor. I follow him through a maze of narrow hallways and find myself in a cramped room with a Breathalyzer. This is where they bring the drunk drivers. The Bishop stands and we shake hands. We’ve spoken on the phone but never met. I thank him for coming but caution him about doing so. He says screw it—he’s not afraid of the locals. Plus, he knows how to lie low and stay under the radar. He also knows the police chief, the cops, the judge—the usual small-town crap. He says he’s tried to call Huver and Kaufman to tell them they’ve made a big mistake, but he can’t get through. He’s leaning on the police chief to put me in a better cell. The more we talk, the more I like the guy. He’s a street fighter, a worn-out, frazzled old goat who’s been knocking heads with the cops for decades. He hasn’t made a dime and doesn’t care. I wonder if I’ll be him in twenty years.
“How about the DNA tests?” he asks.
“The lab will get the samples tomorrow and they’ve promised a quick turnaround.”
“And if it’s Peeley?”
“All hell breaks loose.” This guy is on my side, but I don’t know him. We chat for ten minutes and he says good-bye.
When I return to my cell, my two new friends have spread the word that there’s a criminal lawyer in here with them. Before long, I’m yelling advice up and down the block.
11.
Common sense is not always my strong suit, but I decide not to start a fight with Fonzo and Frog, my two new partners in crime. Instead I sit in my chair all night and try to nap. It doesn’t work. I said no to the Spam for dinner and no to the putrid eggs and cold toast for breakfast. Thankfully, no one mentions a shower. They bring me my suit, shirt, tie, shoes, and socks, and I dress quickly. I say good-bye to my cellies, both of whom will be behind