a mystery novel
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Chapter 18 -- Perpetual Motionless
We once again sat at the defendant's table going over the list of motions we had made and those of the prosecution. For about the hundredth time. “Is he always this late?” I asked.
“Yes, unless one of the parties is a second late, then he's out right on time, chastising the latecomer up one side and down the other. He must have a peephole so he
can watch to see who's here.”
A couple of minutes later the door behind the judge's bench slammed open and the man himself bustled in. The clerk jumped up and told us all to stand while his holiness took his seat. Judge Lester studied some document for a long moment, leaving us all standing uncertainly, before he glanced up and waved imperiously for us to be seated. Belatedly, the clerk advised the same thing, then recited the case information and the purpose of the day's hearing.
In his wonderful baritone, Lester then dispatched the motions in quick succession, identifying each then saying simply 'granted' or 'denied' before going on to the next one. Again I got lost in his rapid fire delivery, but it seemed there were about an equal number granted and denied so I thought we were doing pretty well. Tanya had put in several that we didn't really care about – as she was sure the prosecution had also – because he had to deny some if only to uphold his reputation. Then I saw Tanya's face. “What?”
“He denied every one of ours that mattered and granted almost all of the prosecution's,” she replied, “He really went overboard. We got nothing!”
Lester said, “If there is nothing else at this time, this court is…”
“Excuse me, your honor,” I interrupted, standing, “But I have one more motion.”
Tanya muttered something that sounded like, “No, no!” but I didn't dare look at her as I offered copies of my written motion to the bailiff to give to the prosecutor and the judge.
The bailiff started toward me but the judge waved him back, saying with a condescending grin, “Just read your motion for us, Mr. MacIntyre.”
This time I definitely heard Tanya’s,”Oh, shit!”
“All right, your honor. 'Comes now Kurt MacIntyre, defendant in the above entitled case, to state the following: Defendant believes the judge Conrad Lester to be prejudiced against Defendant's interests to the point that Defendant cannot receive a fair and impartial trial before said judge, and Defendant therefore respectfully requests said judge disqualify himself from the above entitled case.'” Loud gasps came from everywhere in the courtroom, then dead silence descended as I continued, “'In the event said judge declines to recuse himself, then Defendant chooses to exercise his right under California Code of Civil Procedure section 170.6 to have said judge recused from the above entitled case peremptorily.' There is also my sworn declaration supporting the motion in addition to some references to appropriate statutes and case law, which I'll read if you want me to. Should your honor decline to recuse yourself, if the clerk will be good enough to place me under oath now, I’ll repeat for the record the sworn declaration required for the peremptory disqualification. Your honor.” I looked at the judge then, surprised he hadn't replied. His face was so red I thought he'd have a stroke! I believe the man was absolutely speechless.
After what seemed like minutes but must have been only a couple of seconds he recovered enough to croak, “Chambers! Now!” and he scurried from the courtroom.
As we walked toward the judge's chambers, Tanya stared at me as if I were already on the gurney with the needle in my arm, “What have you done? My God, Kurt, What have you done!”
“What needed doing, Tanya. I realize you couldn't do it, but I had to.”
“But why? Don't you understand every judge in the system is going to feel threatened? And whomever we get now can't afford to antagonize Lester, even if he weren't headed for the State Supreme Court?”
“You told me all this, and I respect your opinion. But I had to do this, and I can't even explain why. I just know that man wants to see me convicted.”
“Of course he does! He's the law-and-order standard-bearer. But the jury decides, not him. I know it's your life, but you shouldn't throw it away!”
“Come on, do you honestly believe any other judge could be worse for us than Lester, even now?”
“As long as you don't get one of his buddies, I suppose not. But he's got enough pull to make that happen. And the presiding judge is one of his closest friends.”
“Well, I'll just have to live – or die – with that now.”
* * *
Half an hour later we were all sitting in Lester's chambers waiting for him to make an appearance. Everyone else was now glancing at me with the same expression Tanya had had earlier. The court reporter knew better than to be there, and the clerk and bailiff were standing in opposite corners trying to be invisible. The other side had all moved their chairs as far from us as possible. Tanya got three courage points for sitting beside me but may have lost a few for imprudence. I turned to the prosecution team, who were passing their copy of my motion back and forth, and said, “What, afraid of being collateral damage when the lightening strikes?” They didn't appreciate my humor. Few people do.
Lester walked out of his private bathroom and sat behind his massive desk, face now a few shades lighter but still in the crimson zone. He didn't even glance at me. “What the hell was that, Ms. Barnes?”
“Ms. Barnes had nothing to do with this, your honor. In fact, when I mentioned it, she strongly advised against it,” I interrupted, “Which is why I didn't even tell her I still considered it. I prepared the motion myself and the first she heard of it was when you did just now in the courtroom.”
There was little of that wondrous voice evident as he asked, “And you also decided to read it in open court – are you trying to make a fool of me in my own courtroom, Mr. MacIntyre?”
“No, your honor. You're more than capable of handling that yourself.”
OK, OK. I just thought that last remark. What I said was, “Not at all, your honor. If you recall, I offered you a written copy to read in private. You instructed me to read it aloud.” And now it's on the record where even you can't erase it.
“Ms. Barnes, I'm disappointed. I thought you would have more control of your client.”
“Again, your honor, I must remind you that I am not Ms. Barnes client. She is a very competent attorney but I am lead counsel in this case. She offers excellent advise, but the final decisions are mine. And, in some instances, as in this one, I may leave her out of the decision process completely. Your honor.”
“Is that what this is about? That I don't treat you as lead?” A little resonance and confidence crept back in as he continued, “Rest assured, Mr. MacIntyre, during the trial itself you will be treated as lead counsel in every respect. However, during these preliminary matters, which are technically difficult to comprehend for most laymen, I naturally addressed Ms. Barnes as the attorney familiar with the process. This was to ensure that you received the benefit of her expertise and no disrespect toward you was intended. In fact, when you brought up this… motion, I was just about to suggest to Ms. Barnes – and to you, of course – that some of your denied motions were just slightly off-point; with a little more research, should they be resubmitted, they might be looked upon more favorably. Also, since you are so adamant about having a speedy trial, you should be aware any new judge would require time to get up to speed, and his schedule might impose a significant delay. He could even revisit the prosecution's requests for extensions.”
I expected Tanya to reply, but her expression was – the term that immediately came to mind was one made notable here recently by a marvelous British singer: she appeared gob-smacked. And the prosecution guys were the same. “Thank you for the advice, your honor, but my motion stands. With all due respect, your alternatives seem to be to disqualify yourself or to be recused. The former would appear to me the more graceful, but as you noted, I'm not a lawyer.”
After a prolonged silence, tone regressing, he replied, “Your motion is taken under advisement; you'll have my answer forthwith, Mister MacIntyre. Now, everybody out!” As we stood up to leave I reached over and dropped the judge’s copy of my motion on his desk: not taking any chances he’d say I hadn’t complied with the requirements. If I smoked, I could have lit a cigarette on his face.
While walking out of the courthouse, Tanya was uncharacteristically silent, apparently still pissed at me. I said, “Sorry for keeping you in the dark but I didn't want you blamed for this. I know you think it's a terrible decision, but I had to go with my gut.”
“No, no; I'm beginning to think you made the right choice. The way he was just now, that was plain weird.”
“Yeah, seemed as if he really wanted the case.”
“Wanted? Wanted?” she exclaimed, “Try begged for it. 'Resubmit your motions and they might be looked on more favorably?' He never, but never reverses himself, and in a murder case? That was Lester down on both knees, arms outstretched, tears running down his face, begging to keep the case. What the hell is going on?”
“Don't ask me, I'm just the sacrificial layman.”
“Something must be up with his Supreme Court nomination; there must be some problem or another viable candidate, and he needs this case to keep himself in the headlines.”
“Yeah, well it wouldn't help his image with the law-and-order crowd to preside over a case where the defendant walks, now would it?”
“No, it wouldn't. Hate to admit it, but you made a smart move, darn you.”
“So the big question: will he recuse himself or make me force it?”
“Oh, he'll recuse himself. Once he calms down, he'll want this out of the news ASAP. And his ego won't let the record show you recused him! Of course, once he gets over his bruised ego, he’ll realize he could turn this to his advantage: if the trial goes well for us, he'll proclaim it from the rooftops, 'See, they knew to get rid of me: I never would have let that scumbag off!'”
“Good. If he recuses himself, I've still got my freebee, right?”
“What, you intend to recuse the whole damn stable?”
“Nope, only Lester's friends.”