THE TRIAL, Day 1
Monday, December 9
Judge Judith Bialek, from her bench overlooking the court, peers down over her glasses at the defense and prosecution. Until now she has been businesslike, efficient, carefully instructing the twelve jurors and three alternates as to their duties in this case. But this particular case gives her pause, as she is familiar with the parties and tries to emit some kind of acknowledgment of this fact: a grim smile, lips tucked in, a brief nod in the direction of the defense table.
‘Please remember, above all,’ she says, ‘that the defendant has pleaded not guilty, and he is presumed not guilty unless proven otherwise beyond a reasonable doubt.’
Everybody knows that, of course. you’ve only made it as far as Judge Bialek’s courtroom if you’ve uttered those two words: Not guilty. Not guilty by reason of insanity. Self-defense, maybe. But always Not guilty!
How many times I’ve stood in a courtroom like this one, the grand, ornate walnut molding and finishes, the overdone lighting, the walls practically bleeding with the fears and horrors they’ve absorbed during the seven decades that this building has stood. Not guilty are the only words the exhausted and terrified defendants utter prior to trial, but so many more lie just beneath the surface, at the backs of their throats, yearning to gush forth: I didn’t do it. I was set up. This is all a misunderstanding. It’s not like it seems. I’m not a criminal. Please, please, before this goes any further, just please hear me out!
I’ve lost count of the number of times I’ve stood here. Over three hundred cases, if you count everything from third-chairing a trial to being the top dog, while I was prosecuting. Nearly fifty cases, surely, as a defense lawyer, standing next to a weak-kneed defendant watching the machinations of the criminal justice system begin to churn against him, the enormity of what is happening crashing down upon him – the judge in a black robe, the steely prosecutor, the sheriff’s deputy waiting to handcuff him, the United States flag waving over a courtroom of the public, spectators watching him stand accused by the government, peering at him with a combination of morbid curiosity and vicarious thrill.
‘We will now hear opening statements from the prosecution. Mr Ogren.’
‘Thank you, your Honor.’ Roger Ogren is a lifer at the office, probably close to twenty-five years in by now. I knew him when I was there. I was surprised, in fact, to learn that he was handling this case. And I was unhappy, too. This is a man who has seen everything, who is surprised by nothing.
He is slim, unusually so to anyone who knows him, after a long illness that many thought would end his career. No longer fitting into his old suits, Roger is wearing new stuff, fashionable threads his wife must have picked out.
As Roger Ogren approaches the podium to address the jury, Shauna Tasker very subtly places her hand over mine. I turn and offer a grim smile. Shauna is my law partner. She is my best friend.
And for this trial, she is my lawyer.
‘Ladies and gentlemen,’ says Ogren, ‘we are here today for one reason and one reason only. This is a murder trial, and the defendant is Jason Kolarich.’
Ogren turns and points his finger at me. I always advise my clients to be ready for that, to have earnest, nonthreatening looks on their faces, and to return the stare. I now understand just how difficult it is.
And again I hear the cries of the thousands who have sat in this chair, their silent, desperate wailings: It wasn’t me. They have the wrong guy. You don’t understand what happened, just let me explain, please don’t do this to me!
But I say none of those things. I just look at the jurors with my I didn’t kill anybody face – yes, I practiced before a mirror – searching their eyes, wondering what it is they are seeing in me.
I will probably testify. When I do, I’m not sure it will be convincing enough to establish reasonable doubt. I’m not sure it will do more good than harm.
I’m only sure, in fact, of one thing: When I testify, I will not tell the truth.
SIX MONTHS BEFORE TRIAL
Tuesday, June 4
I stand up in the courtroom gingerly, still hesitant with the knee, more out of habit than necessity. My mouth is dry and sticky, so I slide the glass of water near the podium in case I need it. Once I start, I don’t like interruptions unless I choose one for tactical advantage. It’s all about strategy once I walk into a courtroom.
This is war, after all. No other way to look at it. The cop sitting on the witness stand arrested my client for possession of two grams of crack cocaine. My job at this hearing is to show that he had no probable cause to search my client, and therefore the product of that search – the cocaine – must be excluded from evidence. This is technically a preliminary hearing prior to trial, but everyone knows that this is the whole enchilada. If the crack is found admissible, my client is toast; he has no defense left other than claiming that the plastic bags fell from the sky into his pocket, which usually doesn’t work. But if, on the other hand, the judge excludes the crack from evidence, my client walks.
My client is William Braden, a nineteen-year-old high school graduate from the posh suburb of Highland Woods who’s ‘taking a year or two off’ before college. Exactly why Billy decided to come down to the city’s west side to buy his drugs is anyone’s guess. Surely he could have found them at the high school or other places up there; the lily-white, wealthy suburbs are no longer immune from hard-core drugs. But people do dumb things. If they didn’t, I wouldn’t have a job.
I cast a glance at Billy’s parents, John and Karen, doctors at a prestigious downtown hospital each of them, who are seated behind the defense table, wearing expressions I see all too often – they are overwhelmed, they can’t believe this is happening, this isn’t where people of their ilk are supposed to find themselves. Not wealthy white people from the suburbs.
I wonder if they know that their son is more than a user – he’s a dealer. I certainly can’t tell them. And the cops didn’t find enough drugs on Billy to charge him with possession with intent to distribute. So to all the world, Billy is simply a clean-cut kid who was experimenting, taking an ill-advised walk on the wild side.
I reach the podium and stop. Three months ago, this small exercise of motor skills would send pain skyrocketing up from my knee.
‘Detective Forrest,’ I say, ‘my name is Jason Kolarich. I represent Billy Braden.’ Billy, not William. A kid, a stupid boy, not an adult criminal.
‘Counsel,’ he says. Nick Forrest has worked undercover narcotics for almost four years. He is thick through the chest and shoulders and maintains a formidable posture. He must, if he works the city’s west side.
‘You arrested my client walking down Roosevelt Avenue on December eighth of last year, correct?’
‘He was walking west between Girardi and Summerset.’
‘That’s . . . that’s correct.’
‘He was alone, as far as you could tell.’
‘As far as I could tell.’
‘But there were other people on the street, on Roosevelt, yes?’
‘There were a few. It was getting close to dusk. People wander out less when it gets to be dark around there.’
‘It’s a dangerous neighborhood.’
‘It can be.’
‘Lot of gang activity, right?’
‘That’s right.’ Detective Forrest nods.
‘And Billy – Billy was wearing a black wool coat as he walked westbound.’
‘He . . . That’s right, yes.’
‘It was cold out that day, true?’
‘Below freezing, you could see your breath, that sort of thing?’
‘Nothing unusual about wearing a black wool coat on a cold day, correct?’
‘I didn’t say it was unusual.’
I pause. Sometimes judges like to interject when witnesses elaborate, especially at the beginning of their testimony. But Judge Goodson remains mute, his chin resting in his left hand.
‘You agree with me, it wasn’t unusual.’
‘I agree,’ he says.
‘His hands were in his pockets, correct?’
‘I believe they were, yes.’
‘Nothing unusual about that, either.’
‘You were in an unmarked Chevy Cavalier, parked on the south side of the street.’
‘That’s right. I was doing a drive-around.’
Judge Goodson, a former prosecutor, knows what that means, but I have to make my record for the appellate court. ‘you were driving around Roosevelt, looking for someone to stop and sell you drugs in your car.’
‘Okay, Detective. And you were in the driver’s seat.’
‘So you’re on the south side of Roosevelt, looking north?’
‘So Billy, walking west on the opposite side of the street, came up from behind you, so to speak. He wasn’t walking toward you, he was walking away from you.’
The detective clears his throat. ‘I observed the suspect in my rearview mirror, walking westbound. Then he passed by my line of sight and continued walking away from me.’
‘The suspect,’ I say. ‘you called him a suspect.’
‘He was already a suspect, the moment you laid eyes on him in the rearview mirror. That’s your testimony.’
Detective Forrest leans forward in his chair, a bit of crimson rising to the surface of his cheeks. Surely he’s been warned, over and over again by the prosecutor, not to let me get a rise out of him.
‘The block in question is where Buildings A and B of the Eagleton Housing Projects are located,’ he says. ‘They are known drug houses. It’s been well documented that people go to Eagleton to buy crack cocaine.’
‘Okay, so he was a suspect the moment you saw him walking down the street in a black wool coat with his hands in his pockets.’
‘You forgot that he ran, Counselor.’
‘No, I didn’t. I’m not there yet, Detective. I’m at the point in time that you first saw him, in the rearview mirror. For the third time, Detective—’ It’s always nice to remind the judge that the witness isn’t answering your question.
‘—was Billy a suspect at that point in time, or wasn’t—’
‘And I already told you, Counselor, that he was walking along a route that is known for drug activity.’
‘Just walking down Roosevelt? you didn’t see my client come out of Building A or B, did you? you were just doing a drive-around when you saw my client, correct?’
He lets out a sigh. ‘Correct.’
‘So you’re saying that simply walking down Roosevelt, between Girardi and Summerset, made Billy automatically a suspect for drug possession.’
‘I didn’t say that.’
‘Well, you’ve already agreed that there were other individuals walking on Roosevelt at that time. Were they all suspects, too?’
‘I didn’t say that, either.’
I look at the judge, as if I’m bewildered. Judge Goodson actually smirks. My theatrics play better with a jury than with a judge who has seen this act a thousand times.
‘So Billy was one of several individuals walking along a known route for drug activity,’ I say.
‘He’s the only one who ran,’ says Detective Forrest.
‘He’s the only one you followed in your car,’ I answer. ‘Right? you drove along after him for almost an entire city block before he started to run. Isn’t that true?’
It may or may not be true, but it’s what he wrote in his police report, so he’s glued to it.
‘Yes, that’s true.’
‘What was so different about Billy versus the other people walking up and down Roosevelt Avenue at that time, Detective? He was wearing a black wool coat and kept his hands in his pockets in the dead of winter. What was so different about him that made you follow him and only him?’
As a technical matter, we tell young lawyers not to ask open-ended questions like this on cross-examination. you’re supposed to control the witnesses by asking your preferred questions and getting yes or no responses. But we’re going to get to this point one way or the other when the prosecutor gets to ask him questions, and I want this Q&A on my terms.
Plus, I have his police report, and if he adds facts that weren’t contained in that report, I’m going to crucify him. That would make matters even worse for him.
‘He was walking quickly and looking around, like he was nervous.’
‘Walking quickly in the dead of winter. Looking around nervously while he walked alone in a neighborhood you agreed was dangerous and gang-infested. Walking quickly and acting nervous while an unmarked car, with unknown occupants, followed him. That’s what you’re telling the judge struck you as suspicious.’
The detective glances at the judge.
‘Anything else, Detective? I’m giving you the floor here. What other facts, Detective, gave you probable cause to believe my client was carrying drugs?’ I tick off the points on my hand. ‘He was walking on Roosevelt Avenue like several other people, he was wearing a winter coat like several other people, he had his hands in his pockets like several other people, he was looking around nervously and walking quickly while some stranger followed him in a beater Chevy. Is that it, Detective?’
The heat has fully reached the detective’s face. I’m sure he’s the combative sort ordinarily. He’d like to have it out with me behind the courthouse, if he had his druthers.
‘He fit a profile,’ he answers with a bit less bravado. ‘It’s a known fact that suburban kids come here to buy drugs.’
‘Ah,’ I say, like I’ve discovered gold, like we’ve finally arrived at the truth. ‘He looked like a suburban kid.’
‘Because he is white.’
‘Because – he looked like a suburban kid.’
I drop my chin a notch and look up at the detective. ‘Among the several individuals who were walking along Roosevelt Avenue at that point, isn’t it true that Billy Braden was the only white person?’
‘I don’t recall,’ he snaps.
‘you picked him out because he was a white kid in a black neighborhood.’
Of course, he did. Billy looked like someone who didn’t belong. It’s not that Detective Forrest was acting illogically. It was somewhat logical. But when it comes to racial profiling, the police department gets very sensitive. They don’t want to admit that they single out a white kid in a black neighborhood any more than they want to admit that they single out a black kid in a white neighborhood.
And no judge wants to condone racial profiling, either. Judge Goodson is a temperamental sort – if he weren’t, he’d have his own felony courtroom by now – but he isn’t stupid. Unless the prosecutor cleans this up, the judge will have to toss this one. And I don’t think the prosecutor can clean this one up.
He doesn’t, not very well at least, during his examination of the detective. I do a recross and lay the racial thing on pretty thick. I don’t particularly enjoy doing it, but guess what? My client doesn’t pay me for what I enjoy doing. He pays me to win the damn case. And this is the most effective route to winning it.
At the end of the hearing, the judge takes the matter under advisement. We’ll find out what he thinks soon. The Bradens thank me more profusely than I deserve. The adrenaline from the court hearing begins its slow leak, my interest in being here along with it. Actually, it’s more like the balloon has burst.
I have to leave. I have to get out of here.
Then I hear a woman’s voice behind me. ‘Mr Kolarich.’
I notice a change in both of the men, father and son alike, their eyes growing, their posture straightening.
I turn. It’s the court reporter. The prosecutor’s office likes to hire an independent court reporter for these suppression hearings, because when they lose – when their whole case goes in the dumpster because of an evidentiary ruling – they like to appeal the case right away, and the county’s court reporters aren’t the most reliable.
I quickly understand the reaction of the Braden men. The court reporter has cropped black hair with Cleopatra bangs and large, piercing eyes the color of teal or aqua. Her face is finely etched into a V, with a nicely proportioned figure, from what I can see in her blue suit.
Those are the vital statistics, but there is something more there, something haunting, something electric. Her very presence feels like a dare, a challenge. Like she understands me. I know you. I know what’s wrong with you.
She hands me her card. ‘That has my e-mail and cell on it,’ she says. ‘I’ll have the transcript to you by the end of the week, is that soon enough?’
I look down at the name. Alexa Himmel.
‘Okay, Alexa Himmel,’ I say. Just saying her name makes me feel dirty.
Tuesday, June 4
I slump into my chair and groan as I look over the files in front of me on my desk. My body is rubbery, fatigued. My brain is still fuzzy, buzzing from the comedown, even though I gave myself a long weekend to shake it out.
Last Friday, on the eve of a jury verdict, we settled our personal injury case, my client an industrial painter who got zapped by an electrical wire while working on a hydraulic lift underneath the train tracks. He survived, but suffered severe nerve damage to his right arm and can no longer hold a toothbrush, much less a sandblaster. We went to trial almost three weeks ago. The general contractor and electric utility blamed each other – the GC said the utility knew the work was going to be performed that day and was supposed to kill the power to those lines; the utility said the work went out of order and nobody told them my client, Joe Mariel, would be blasting by those electrical wires at that location on that day.
We gave it to the jury last Thursday morning. On Friday, while the jury was still deliberating, the general contractor and power company collectively coughed up $650,000 to end the suspense. My client Joe dipped me like a ballroom dancer with his good arm and planted a wet kiss on me when I delivered their final offer to him.
So the law firm of Tasker & Kolarich had a big day – over $200,000 – and I had my first weekend to myself in a month. No twenty-hour days, no combing over expert reports and witness summaries, no mock direct and cross-examinations, no hair-graying stress wondering if I’d make some crucial mistake that would sink my client’s fortunes.
Now the bad news, which, I guess, is also good news: I have another trial starting in five weeks. What are the odds? Civil litigants don’t go to trial very often. I hadn’t been in front of a jury in almost three years before this PI case. And now two trials within eight weeks? Unheard of. I find myself longing for the old days – before my time, actually – when the caseloads on the judiciary were less oppressive, and judges and lawyers alike tended to schedule everything around their summers. I’m going to lose my June prepping for Arangold and my July trying it.
I don’t live for these things. I like practicing law (you didn’t hear me say love) because I like helping people. I enjoy strategizing and the challenge of a good legal argument, too, but I don’t relish the fight, the drama, the high-stakes poker.
That’s Jason. That’s all he enjoys. Jason would prefer to be on trial constantly, because it’s the only thing that energizes him, the high-wire stuff. The preparation and workup in the time before trial are viewed as merely a necessary evil to him, something he tries to delegate as much as he can.
I need Jason, I think to myself. I needed him for the personal injury trial, too, but he was still recuperating from the knee surgery. But the Arangolds are expecting Jason to be the lead trial attorney. They swooned when he came in and did his aw‑shucks routine while we discussed his successful defense of Senator Almundo on federal RICO charges, his role in the downfall of Governor Snow, and the number of cases he’s tried overall, both as a prosecutor and then as a private attorney. I made it clear that Jason would be there when the jury was in the box. I hate to admit it – really hate to – but I don’t think I could have landed this case without Jason.
I hear him now, down the hall, and feel an extra skip to my pulse.
I don’t think we’ve been in the office together once in the past month – or if we were, I was too busy huddling with a witness or the client or an expert. He’s my law partner and best friend, and I haven’t laid eyes on him for weeks. The law firm managed okay while he was laid up, but it felt like an effort, like the entire small firm of Tasker and Kolarich was hobbling on a bad knee along with him.
‘Hey, trial lawyer,’ he says when he pops into my office. He is glowing from the aftermath of an adversarial hearing himself, some rich kid who got caught with crack cocaine and was looking to Jason to use a legal technicality, also known as the Fourth Amendment.
Glowing, but different. Skinnier, longer hair, dark circles under his eyes. The skinnier part reminds me of high school at Bonaventure, the broad-shouldered, tall kid without much definition to him before Coach Fox got hold of him and he became one of the best football players in school history. The longer hair, of when we were roommates at State, after he got kicked off the football team for fighting and was strongly considering dropping out of school altogether. The dark circles, of the stretch of time two years ago after his wife and daughter missed a turn on a rain-slicked county highway.
I get out of my chair as he walks into my office. I take note of the knee, which doesn’t seem to be causing a limp. He wraps one of his bear-arms around my neck and draws me close. He smells like bar soap, exactly as he has ever since Bon-Bon.
‘Hey, handsome,’ I say, noting that it’s not the kind of thing you say to someone you see every day and know like a brother. It’s something you say to someone you don’t know that well.
‘Sorry I missed the celebration,’ he says when we pull back. ‘Great job on Marion. Six-fifty?’
Actually, Mariel was my client’s last name, but whatever.
‘I’ve missed you.’ I put a hand on his cheek. ‘You look like you could use some sleep.’
‘Nah, I’m all good.’
‘How’s the knee?’
Jason is one of those guys who think it’s heroic to be stoic. Nothing ever hurts. Nothing’s ever wrong. When Talia and his baby, Emily, died off that county highway, he dropped off the face of the earth for six weeks. He didn’t answer his phone, and when he did, he never once told me he was sad. I never once saw him cry, though he assured me he did. I had to drag him to my law office, put him behind a desk, sit a client in front of him, and say, ‘Help this person, he needs your help.’ That was the only thing that got him back on his feet.
‘And how is Richie Rich doing?’ I ask. ‘Will he be standing trial or whistling on his way home?’ I can’t tell from his expression whether his hearing went well or not, just that he participated, that post-performance glow.
Jason shrugs. ‘Who knows?’ That’s the funny thing about him. He’s all for the fight but little for the glory. I could hold him down and put a knife to his throat and he wouldn’t say a nice thing about himself.
Our associate, Bradley John, appears in the doorway looking fresh and bright-eyed. He second-chaired the trial with me. It looks like the long weekend helped him more than it did me. ‘Jumping into Arangold,’ he says. I’d warned him that Tuesday afternoon we’d be back full-throttle in trial preparation.
Jason takes the cue and makes his exit. I watch him leave. There’s something not quite right, a couple pieces missing or something.
‘You sure you’re okay?’ I ask.
But I know the answer. ‘All good,’ we say together.
Excerpted from The Last Alibi by David Ellis. Copyright © 2013 by David Ellis.
First published in the USA in 2013 by Penguin Books Ltd. This edition published in Great Britain in 2013 by Quercus Editions Ltd, 55 Baker Street, 7th Floor, South Block, London, W1U 8EW.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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