After Dark (4 page)

His Fifth Amendment argument was absolutely brilliant."

"He's smart, and he might be dedicated, but it's to the wrong cause."

"Don't be so uptight. Listen to the argument. Reynolds is really worth seeing. I'll check with you before I go up." i iiiiiiiiiiiiiii The most conspicuous feature of the Oregon Supreme Court is a stained-glass skylight in the courtroom ceiling that displays the state seal. The stained glass is protected by a second, clear skylight above it. On this sunny day, the light filtering through the two sets of glass cast a soft yellow glow over six justices of the seven-member court as they assembled to hear argument in State ex rel.

Franklin v. Pogue.

Tracy found a seat on a couch against the rear wall of the courtroom just after the justices took their places. The judges sat on an elevated dais that stretched across the courtroom in a gentle curve.

Directly in front of Chief Justice Stuart Forbes was the wooden podium on which Abbie Griffen calmly arranged her papers. When the Chief Justice told her to commence her argument, Abbie said, "If it please the court, my name is Abigail Griffen and I represent the Multnomah County district attorney's office and the interests of Denise Franin. We are asking this court to order trial judge David Pogue to withdraw an order commanding Mrs. Franklin to open her home to forensic experts employed by the defense."

"Judge Pogue was acting on a motion for discovery filed by the defendant, Jeffrey Coulter, wasn't he, Ms. Griffen?" asked Justice Mary Kelly, an attractive woman in her mid-forties who was appointed to the bench after a stellar career in corporate law.

"Yes, Your Honor."

"What was the basis for the discovery motion?"

"According to the affidavit of Mr. Reynolds, the defendant's attorney, Denise Franklin's son, Roger, pi'omised to sell Jeffrey Coulter stolen jewelry. Coulter went to Franklin's house, but Franklin had no jewelry and tried to rob Coulter. Mr. Coulter claims he shot Roger Franklin in self-defense after Franklin shot at him."

"And the defense wants to examine Mrs. Franklin's house for evidence that will corroborate the defendant's story?"

"Yes, Your Honor."

"That seems pretty reasonable to me. What's wrong with Judge Pogue's order?"

"Mrs. Franklin is in mourning, Your Honor. She doesn't want agents of the man who killed her son traipsing through her home."

"We're sympathetic to Mrs. Franklin, Counselor, but it's not unusual for witnesses to also be relatives of a murder victim.

They're inconvenienced all the time by police interviews, the press.

Your people went through the house, didn't they?"

"With Mrs. Franklin's consent and while the house was a crime scene.

It's no longer a crime scene. The state has returned the house to its owner, Mrs. Franklin, who is not a party to the criminal case between the state and Mr. Coulter. A judge doesn't have the power to order a nonparty to let the defense in her house."

"Do you have legal authority for that contention, Counselor?"

Griffen smiled with the confidence of an attorney who has anticipated a question. While she told Justice Kelly about several Oregon cases that supported her position, Tracy looked across the courtroom at Griffen's opponent. The contrast between the two attorneys was stark. Abigail Griffen in her black tailored jacket, black pleated skirt, ivory silk blouse and pearls looked like a fashion model, while Matthew Reynolds in his plain, ill-fitting black suit, white shirt and narrow tie seemed more like a country preacher or an undertaker than America's premier criminal defense attorney.

A question by Justice Arnold Pope pulled Tracy's attention back to the legal argument.

"Mrs. Griffen, when Mr. Coulter was arrested did he claim he acted in self-defense?"

"No, Your Honor."

"Did the police find the gun the defendant's counsel alleges was fired by the deceased?"

"No weapon was found at the scene."

Pope, a barrel-chested ex-DA with a Marine crew cut, furrowed his brow, giving the impression that he was deep in thought. Justice Kelly rolled her eyes. Pope was a mental lightweight who tried to compensate for his lack of intelligence by being arrogant and opinionated. He was on the court because he had defeated a well-respected incumbent in one of the dirtiest judicial races in Oregon history.

"Could this self-defense business be hokum?" Pope asked.

"Yes, Your Honor. We believe Mr. Coulter manufactured the self-defense scenario."

"Perhaps with the assistance of Mr. Reynolds?" Pope asked.

Tracy was shocked by Pope's suggestion that Matthew Reynolds had sworn falsely in his affidavit. Reynolds was rigid, his face flushed.

"There is no evidence that Mr. Reynolds has been less than honorable in this case, Justice Pope," Abbie answered firmly.

"Besides," Justice Kelly interjected to shift the discussion from this unpleasant topic, "that issue isn't before us, is it, Counselor?"

"No, Your Honor."

"As I understand it," Kelly continued, "your position is that we must set aside the order of Judge Pogue, regardless of the truthfulness of the affidavit, because he had no power to order a nonparty to a criminal case to do anything."

"Exactly."

A tiny lightbulb at the front of the podium flashed red, indicating that Griffen's time was up.

"If the court has no further questions, I have nothing more to add."

Chief Justice Forbes nodded to Griffen, then said, "Mr. Reynolds?"

Matthew Reynolds uncoiled slowly, as if it took a great effort to stand, and walked to the podium. He was determined not to let his anger at Arnold Pope interfere with his duty to his client.

Reynolds took his time arranging his papers and put the insult behind him. As soon as he looked up, Justice Frank Arriaga, a cherubic little man with an easy smile, asked, "What about Mrs. Griffen's argument, Mr.

Reynolds? I've read her cases and they seem to support the state's position."

There was a hint of the Deep South when Reynolds spoke.

His words rolled along softly and slowly, like small boats riding a gentle sea.

"Those cases should not control this court's decision, Justice Arriaga.

The facts in the case at bar are substantially different.

Mrs. Franklin is far more than a grieving mother. We believe she may be covering up her son's criminal involvement in an attempted robbery.

Every moment we are barred from the Franklin home presents another chance for Mrs. Franklin to destroy evidence.

"And that leads me to my main legal point. The Due Process Clause of the United States Constitution imposes a duty on a prosecutor to preserve evidence in her possession that is favorable to an accused on either the issue of guilt or the issue of punishment. When we filed our motion with Judge Pogue, the Franklin home was still sealed as an official crime scene. Our affidavit put the state on notice that we believed the Franklin home contained evidence that would clear Mr.

Coulter and it also put the state on notice that we believed that Mrs.

Franklin might destroy that evidence. Soon after we filed our motion, the police unsealed the crime scene and returned the home to Mrs.

Franklin. We consider that a violation of the state's duty to preserve evidence favorable to an accused."

"Can we approve an order issued by a judge who lacks the authority to make it?" Justice Arriaga asked.

"No, but we believe the court should address this issue as if the house was still under seal and an official crime scene. Otherwise, the state can frustrate legitimate motions of this sort by simply unsealing the scene before the court has the opportunity to act.

"The Due Process Clause codifies the concept of fundamental fairness into our law. It's a wonderful thing to have a jurisprudence based on fairness rather than power. You can see the tension between these two ideas in this case. The state symbolizes power. It used that power to take over the home of a private citizen so it could investigate a crime.

Once the state was satisfied that it had identified the criminal, it used its power to arrest my client and deprive him of his liberty.

"These were proper uses of power, Your Honors. Fair uses.

But the state's final use of its power was unfair. As soon as my client stood up to the state and requested an opportunity to examine the crime scene for evidence that would clear his name, the state exercised its power unjustly.

"Legal motions should be decided by unbiased judges, not unilaterally by zealous advocates. When the police released the crime scene to thwart our motion, they acted in violation of the concept of fundamental fairness that is the foundation of the Due Process Clause. All Mr.

Coulter is asking for, Your Honors, is a chance to examine the crime scene. The same thing the state was able to do through the exercise of its power. All he is asking for is a fair shake. Judge Pogue understood that and we ask you to be fair and permit his order to stand."

Court recessed when the argument ended. Matthew Reynolds watched Abigail Griffen collect her papers and close her attach( case. In a moment, she would be fighting her way through the reporters who were waiting for them outside the courtroom on the third-floor landing. If he was going to talk to her, Reynolds knew it had to be now. Abbie started toward the door. "Mrs. Griffen."

Abbie turned to find Reynolds following her. With his suit jacket flapping behind him like the wings of an ungainly crow, Reynolds looked like Ichabod Crane in flight from the headless horseman.

"Thank you for telling the court that you didn't believe I would falsify my affidavit," Reynolds said with a tremor Abbie had not heard when he was arguing. "My reputation means so much to me."

"No need to thank me, Mr. Reynolds. But I'm curious. That was such an odd accusation to make. Is there bad blood between you and Justice Pope?"

Reynolds nodded sadly. "I tried a murder case against Arnold Pope when he was the district attorney for Walker County. It was poorly investigated and an innocent man was arrested. Justice Pope had a penchant for trying his cases in the press when he was a prosecutor and he promised a swift conviction."

"I take it he didn't deliver."

"No. After the trial, he threatened to indict me for jury tampering."

"What happened?"

"The judge told Pope he lost because he should have, and promised to dismiss any jury-tampering indictment Pope obtained. That was the end of it as far as I was concerned, but I guess he still harbors a grudge."

"I'm sorry to hear that."

"That's gracious of you, considering that Pope's animosity guarantees you his vote."

"On the other hand, some of the judges will side with you simply to be on the other side of Pope's position."

"I hope you're right, Mrs. Griffen," Reynolds answered solemnly, the joke going right by him.

"Why don't you call me Abbie. We're going to see too much of each other during this case to stay on formal terms."

"Abbie, then."

"See you in court, Matt."

Reynolds hugged his briefcase to his chest like a shield and watched Abigail Griffen glide through the courtroom doors.

The reporters converged on Matthew Reynolds as soon as he walked into the hall, and Abbie was able to escape down the marble stairway and leave the courthouse through the rear door.

Her car was parked around the block from the court because she'd expected the press. Reynolds could go nowhere without them. When she rounded the corner, she saw Robert Griffen sitting in the passenger seat of her car.

Justice Griffen looked like a golf pro in tan slacks, a navy-blue Izod shirt and loafers. His long brown hair fell casually across his forehead. When she opened the rear door and tossed her attach case in the back seat, he smiled. Abbie saw the sparkle in his clear blue eyes and almost forgot why she had walked out on him.

"How'd the argument go?" Griffen asked.

"What are you doing in my car?" Abbie answered sharply as she slid behind the wheel. His smile wavered.

"I missed you. I thought we could talk."

"You thought wrong, Robert. Maybe one of the women you were fucking behind my back has time for a chat." Griffen flinched. "Can't you spare a minute?"

"I have a meeting in Portland and I don't want to be late," Abbie said as she turned on the engine. "Besides, Robert, I know what you want and the bank is closed. I suggest you either find a rich mistress or change your lifestyle."

"You don't know what you're saying. I was never interested in your money, and those other women ... God, I don't know what got into me.

But that's all behind me. I swear. It's you I love, Abbie."

"Was reversing the Deems case the way you show your love?"

Griffen paled. "What are you talking about?"

"You reversed Deems to embarrass me."

"That's nonsense. I decided that case on the law. So did the justices who joined the majority. Even Arnold Pope voted with me, for Christ's sake."

"I'm not stupid, Robert. You adopted a rule that only three other states follow to reverse the conviction of a dangerous psychopath."

"The rule made sense. We felt . . ." Griffen paused. "This is ridiculous. I'm not going to sit here and justify my decision in Deems."

"That's right, Robert. You're not going to sit here. You're going to get out of my car."

"Abbie . . ."

Abigail Griffen turned in her seat and stared directly at her estranged husband. "If you're not out of my car in ten seconds, I'm going to call the police."

Griffen flushed with anger. He started to say something, then he just shook his head, opened the door and got out.

"I should have known I couldn't reason with you."

"Please shut the door."

Griffen slammed the car door and Abbie peeled out of the parking space.

When Griffen walked back toward the court he was so angry that he did not notice Matthew Reynolds watching from the doorway of the Justice building.

In 1845, two Yankee settlers staked a claim to a spot on the Willamette River in the Oregon Territory and flipped a coin to decide if their proposed town would be called Portland or Boston.