The Last Justice (20 page)

Lubow flushed a little. "That's not one I would forget. Doug got me in hot water with the chief over it."

"What do you mean?"

"I was assigned the pool memo for the Hassan case, and the chief got upset when he learned I had traded it for another case with Doug."

"I'm sorry, remind me-what's a pool memo?" Pacini said.

"Sorry. We love our jargon around here. We get about seven to eight thousand cert petitions a year, but the justices agree to hear only about seventy to eighty cases. The justices can't possibly review all the petitions themselves. The clerks help narrow the list so the justices can focus on only the important ones. It's a pool system, where we split up the docket and each write memos on our share of the cases."

"So no one person reads all the cases coming in?"

"Pretty much, though Justice Sorenson didn't participate in the pool, so his clerks were supposed to look at them all. But they didn't have to write memos on each case."

"So you write the pool memos and then what happens?"

"The memos are distributed to all the justices. From there, the justices use the memos to decide which cases they want on the 'discuss list."' Before they could ask, Lubow explained, "That's the list of cases the justices will go through at their conference and vote on whether to grant review. Law clerks aren't allowed in those conferences. But basically, what happens is that the justices go through the discuss list, and if four of them vote in favor, the court will hear the case."

"What happens to the cases that don't make the discuss list?" Pacini asked.

"They're dead-listed. The court issues a one-sentence order, usually the Monday after the conference, saying `Cert. denied.' The justices don't explain why."

"So these pool memos have a lot of influence on whether the court grants review of a case?"

"I'd say so, but it's still up to the justices to decide. Chances are, though, if the pool memo doesn't recommend that review be granted, the case will fall onto the dead list."

"And Chief Justice Kincaid was upset with you about the Hassan pool memo?" Pacini asked.

"Yeah. So I was assigned the Hassan pool memo. Doug asked if I'd trade him Hassan for one of his cases. His case had a much shorter appellate record and would require much less work to write the pool memo. It was like trading writing a thesis paper for a book report, so I jumped at it."

"Did he say why he wanted the trade?"

"He said he had a family reunion and couldn't meet the deadline for the memo on his case-not so unusual, since he was a recurring name on the justices"late list' of clerks who hadn't turned in their pool memos on time."

"Is trading pool memos common?" Milstein asked.

"Among clerks working for the same justice, it's not common, but it sometimes happens if a clerk has a conflict, like a wedding or something. But it's pretty rare to trade across chambers with the clerk of another justice. I assumed that none of the other clerks for Justice Carmichael had agreed to trade with Doug, so he started to look outside Carmichael's chambers. When the chief justice learned I'd traded the pool memo with one of Carmichael's clerks, he got upset. He sent a memo to all the clerks saying across-chambers trades were forbidden without express written approval from the justices of both the clerks involved."

"How did Chief Justice Kincaid find out about the trade? Did he keep close tabs on pool assignments?" Pacini asked.

"No. That was the worst part. Because the chief didn't necessarily trust the pool memos written by the clerks for the other justices, he'd have us do a check on their memos. When I read Pratt's memo, I was furious because he recommended granting review for a case that clearly didn't warrant it. So I had to go to the chief, and he blew his top when I told him about the trade."

"Can we see the Hassan pool memo?" Assad asked.

Lubow tensed. "I'll need to check with Justice Carmichael. She's been very clear that we keep the internal documents confidential. She didn't even allow the SG's office access for the commission's inquiry."

"Justice Carmichael instructed me that they are to have full access to whatever they need," Peckham said.

"Okay," Lubow said, "but we'll need to go to my office because I need access to the intranet. We keep all the pool memos online."

Peckham hesitated. "Let's go to my office instead. You can get on the system from there, right?"

She nodded, and they all proceeded to the ground floor. Walking to the elevator, Assad delicately asked Lubow if she had been in the courtroom the day of the attacks.

"No," she said. "I didn't attend argument too often. It's too easy to get behind with your work."

"In your meetings with commission investigators, have you ever told anyone about what happened with the Hassan memo?" Milstein asked.

"No, it wasn't something I would have thought relevant to Black Wednesday. I just assumed it was typical Doug the Slug incompetence. I assume you know he's the only clerk who wasn't invited to stay on for another year."

When they arrived at the office, Peckham gestured for Lubow to take the chair in front of his computer.

"Here it is," Lubow said triumphantly as the memo for the Hassan case appeared on the computer monitor. "The case had no basis for review, but one of the justices put it on the discuss list for the last conference of the term, probably because of Pratt's pool memo recommendation. They would have voted then, but it never happened because of Black Wednesday. Now nothing can happen until there's a quorum of justices confirmed. The case is on hold. I still can't fathom why Pratt stuck out his neck to recommend the case."

Milstein frowned. "Stuck out his neck?"

"We look at thousands of petitions, and it's much easier for a clerk to recommend denying review than granting it. You can fly beneath the radar on denials because chances are, no one will ever call you on it-that was much more Doug's style. If you're going to recommend a grant, you know everybody's gonna be looking closely at the memo and the briefs, and the other clerks will enjoy picking it apart. Doug wasn't one to work hard. In fact, I'm not sure he had ever made a recommendation to grant review before the Hassan case."

Pacini, Peckham, Assad, and Milstein did not say it aloud, but each reached the same conclusion: Douglas Pratt had been bought.

White Flint Mall, Kensington, Maryland

iden, I need your help," Kate said into McKenna's cell phone. It was a slow day at the White Flint Mall: mostly nannies pushing strollers and a few retiree power walkers.

"What's going on, sis? You're on the news big-time!" Aiden said. "I got back from Vegas and federal agents were at my house. Questioned me but wouldn't even let me in the door. My bike's gone. Where are you?"

"I need you to come to our emergency place."

"You mean Whi-"

"Don't say it," Kate cut him off. "You know where." She clicked off and powered down the phone.

"Are you sure he'll know where to go?" McKenna asked.

"Because of 9/11, we discussed where we'd meet if there was ever another attack and we needed to get out of the city. We agreed this would be the spot-far enough out of the District and near the subway. Even after the plane hit the Pentagon on 9/11, the metro kept running. We agreed to wait here for each other as long as possible."

Sure enough, thirty-five minutes later, Aiden pulled his Jetta up near a chain restaurant at the White Flint Mall. Kate and McKenna walked quickly from the entryway of the restaurant and hopped in the car.

Without even a greeting, Kate said, "Do you have your laptop?"

"No," Aiden said. "Those assholes won't let me in my place. All I've got is my luggage from Vegas."

"We need a computer."

"Ah, but first of all," Aiden said, turning to McKenna in the backseat, "Hi. I'm Aiden. And you must be Katie's boyfriend-fugitive murder suspect, Jefferson McKenna." He gave McKenna a boyish grin and pushed away the bangs of his scruffy hair that kept falling into his eyes.

"The pleasure is mine," said McKenna, reaching over the seat to shake hands.

Kate hit her brother on the arm. "Drive," she said.

Aiden took them to a nearby electronics megastore on Rockville Pike and let them out at the curb.

"Nice outfit, by the way," he said out the Jetta's window to McKenna, who was clad entirely in Aiden's clothes.

"Even now he can't be serious," Kate grumped. "He's been an undergrad at Georgetown for seven years. Seven years. He's racked up massive student loans, and his job prospects are pathetic. He's so freaking irresponsible!"

"He's also helping you without any hesitation or apparent concern for himself," McKenna noted.

Kate blushed, embarrassed at her frustrated-big-sister outburst. Since they were kids, it had been apparent that she and her little brother were very different people. He was the guy whose name would be shouted by a dozen people when he arrived at a party, who would wear the same pair of jeans for two weeks, and who never seemed to allow stress of any kind to enter his life. Kate, on the other hand, skipped the parties to study, dressed meticulously, and drove herself so hard to get accepted by a top college that she nearly had an ulcer before her eighteenth birthday.

She and McKenna went to the store's computer section, which had perhaps thirty desktop and laptop models on display. Kate knew that McKenna had only the most rudimentary computer skills, so she asked him for the CD they had taken from the Watergate. Kate inserted it into one of the computers and began typing.

"Damn it!" she said as a password page appeared on the monitor. "It needs a password."

"Try what's written on the sleeve of the CD."

Reading the paper sleeve, Kate typed in "CJK/JC." Again the password error message appeared.

They hurried out of the store and back to the car, and Aiden merged into the traffic on the Pike.

"Know anyone who's good with computers?" McKenna asked Kate.

"There are a couple of IT guys at the office, but we obviously can't call them. I can't think of anyone else. You know anyone?"

McKenna shook his head.

"What about Javier?" Aiden asked.

Kate shook her head emphatically. "No way-I couldn't."

"Who's Javier?" McKenna asked.

"Why not?" Aiden said. "He lives just down the street. C'mon, Katie, he's way over it."

"Who is Javier?" McKenna repeated.

"He still lives there?" Kate asked, still ignoring the question.

"Same place," Aiden replied.

"You've got to be kidding-the same house?" Kate said, smiling despite herself.

Aiden didn't wait for the okay to head toward the home of their childhood friend Javier Mendoza.

Harrington & Caine law offices, Washington, D.C.

he offices of Harrington & Caine would weaken the resolve of even the most hardened adversary. The lobby, designed to intimidate, was a glass-and-steel-encased atrium covered by a huge skylight twelve stories above. The front entrance had marble floors and two escalators leading to the main reception desk, where an armed security guard stood and three receptionists sat talking into headsets.