by Reason of Sanity (8 page)

I save the most interesting stuff for Jack Bibberman, who gets the assignment of trying to find out from under what rock the mass fax spammer who counter-sued Stuart crawled out.

Now that we know the fax-spammer wants to play hardball, we might as well make the game interesting. I draft a set of Interrogs for them to answer.

The standard rule for trial lawyers is to never ask a question that you don’t already know the answer to. When non-lawyers hear that rule, they always ask the same thing. “If you already know the answer, why ask the question?” The reason is really quite simple. When you’re in court, you want to tell your client’s story to the trier of fact, whether it be a judge or jury. It’s not good enough to have your client or his mother take the witness stand and lay things out. You’re much better off having it come out of the mouths of some independent witnesses – people who have no apparent agenda or desire to help either side.

In order to do this you should have a list of the things you can’t use to build your side of the case up. Along with the list, you should also know which witness will testify to each item on the list. Then like a puppeteer, you call witness after witness, ask the questions in any order you want, and elicit the answers you need. There’s no need to worry about the proper order, because you can straighten all that out in your closing argument, when you ‘sum up’ all the answers you received and put them in the proper order for the jury.

Of course if you’re going to have the answers to all the questions, you must have some way of getting them in advance of the trial, so the courts allow for what’s called ‘civil discovery,’ which takes the form of written ‘interrogatories’ (Interrogs), or the taking of oral testimony under oath at a ‘deposition.’ There are also some other tools in our kit, like the right to subpoena documents, demands for admissions, statutory offers, and some other tricks that are better left to qualified paralegals. All the trial lawyer wants are the answers.

On Stuart’s case, I plan to use the Interrogs not only as a means of getting answers to some questions I’d like to ask, but also as a ‘spear,’ to give them some indication of how deep I want to probe the other side’s affairs.

Accordingly, my questions to them include information as to how they get the fax numbers they send their junk out to, as well as what those numbers are, what their procedures are for removing people who complain, how many faxes they’ve sent out over the past year, and on and on. They’ve obviously retained an attorney to help them, so there’s no reason not to make him work for his fee.

I’ve always had the suspicion that when you get one of those unsolicited junk faxes containing a number you can contact to be ‘removed’ from their list, it’s a number that doesn’t really work to remove you. Instead, it lets them know for sure that yours is a valid fax number – one that they should continue sending their junk to and sell to other junk fax broadcasters. With that in mind, I send Jack Bibberman to the nearby Santa Monica courthouse to do a naughty errand for me.

The written Interrogs are completed and sent along to the defense firm’s office, along with a formal Answer to their complaint – a general denial of everything. The real trick to sending Interrogs is to disguise the question you really want the answer to along with all the others, and hope that they don’t figure out which one you’re most interested in. My big question is in there and if Bibberman does a special task for me, that answer might make our case.

innie is calling. He want s to know if anything’s happening on his lawsuit. I try to be tactful. “Vinnie, you don’t have any property damage, you don’t have any lost wages and you have no medical bills to speak of, so let’s not get greedy on this one. It’s not going to be your retirement nest egg.”

“Yeah Mister Sharp, I know that, but they should still have to pay something… even a little maybe, for my inconvenience.”

“You’re right Vinnie, but if you’re looking for big numbers, I don’t want to see you disappointed. Just to give you an idea, I filed the case in Municipal Court, so if we get a settlement offer above five hundred dollars, I’d recommend that you accept it.”

It took a few days, but now I’m starting to get results on some background checks that I requested – and there aren’t any surprises. Mike Drago, the slipand-fall claimant has no record. He’s a single guy who lives alone with no family to be found, and not even a parking ticket. Same results came back for Harold Blitzstien, with the exception of the fact that Harold has an ex-wife and a couple of kids somewhere. They both appear to be honest, hard working blue-collar types who never got into trouble with the law. The only real difference between them is that one is dead and the other is headed for death row, and both show the same amount of concern for their respective conditions.

The other one isn’t as clean, because as expected, Vinnie’s drunken stolen-car driver Harry Michaels has several ‘deuces’ on his record over the past couple of years. The section of California’s Vehicle Code pertaining to drunk driving was number had formerly been 502. When the code was re-written, the code section became number 23102. Because both sections ended in the number ‘2,’ that particular violation took on the nickname of a ‘deuce,’ which is a term instantly recognizable by anyone remotely connected with the criminal justice system in California.

Being a repeat offender, it’s no wonder that he didn’t drive his own car any more. Some judge probably lifted his license for at least a year. I don’t see any need to waste our assets going deeper into his record, because there’s no doubt he did what we think he did. Our case will depend on whether or not I can get the facts within the purview of the Dramshop laws and how bad of a guy the driver is or what his past record shows isn’t really relevant to our case. He could be either a mass murderer or a choirboy and the law should still be applied the same. Maybe a slightly different sentencing, but no change in the law on the way there.

The same goes for Mike Drago, the murdered slip-and-fall claimant, and Harold Blitzstien, the murder-on-video client. Add Stuart’s spammer into the mix and you have four cases where background, criminal history and character don’t come into play. All that counts is their actions.

If I have to go to trial with these cases on matters where all that counts is the evidence, and there’s no problem interpreting that evidence, then I’m going to have to come up with some strategies that test the law itself, and not the character or credibility of any witness.

Almost two weeks have gone by. Answers to both sets of Interrogs have just come back on Vinnie and Stuart’s cases. I’d like to spend some time going over them but I’ve got an appearance to make on Harold Blitzstien’s case. His arraignment was continued ten days last time and it’s set for this afternoon. I still don’t know what I’m going to do for his defense.

Once the bailiff’s announcement is made and Myra and I both state our representation for the record, it’s my turn to offer a plea on my client’s behalf. I think I’ve got a win-win way for us all to handle this – if it works. The Judge looks down at me. “Well, Counselor, you’ve had some time now. How would Mister Blitzstien like to plead? I’m sure you’re familiar with the menu. Today’s specials are Guilty, Not Guilty, Not Guilty by Reason of Insanity, or Nolo Contendere. Would you like to make a selection?”

I spend a few seconds telling Harold that Nolo Contendere means ‘no contest,’ and that they can do whatever they want, because you just don’t care. He’s not very talkative today. The judge is getting impatient.

“Mister Sharp, can we please move this along? Not Guilty has traditionally been our best seller, would your client like to try it out?”

I can’t keep the judge waiting any longer. “Your Honor, if the court pleases, at this point we’re down to two choices you offered that look attractive today.” I look over to the prosecution table. Myra is glaring at me, nervously tapping her pencil on the counsel table with one of those ‘what the hell is this schmuck up to now?’ looks on her face. I haven’t seen that look since we were married. I continue. “We seem to be on the fence between Not Guilty and Not Guilty by Reason of Insanity, so to save everyone a lot of trouble down the road, we would ask that the court order a psychological examination of Mister Blitzstien, to determine, among other things, his ability to understand the charges against him, his ability to cooperate with the defense, and whether or not he’s fit to stand trial.” The courtroom is silent. I can hear the gears grinding in Myra’s head. Not hearing any immediate objection, I go on. “In this way Your Honor, once the court has had an opportunity to examine the Defendant, we will go along with whatever the result is. In fact, we’ll stipulate to an agreement right now, that the plea will depend entirely on the results of the court’s psychiatric examination.”

The judge wants to make sure. “Mister Sharp, are you telling this court that if the examination I order shows the defendant to be fit to stand trial, that you will not consider an insanity plea and go with a straight Not Guilty?”

“That’s correct, Your Honor.” The judge looks over to Myra.”
She stands up. “No objection, Your Honor.” The judge bangs his gavel down. “So be it.

You’ll both be notified when the report comes in.” I look at Harold, just before they lead him
away. “Harold, just be yourself.” At this point, I have
no idea what he really is, so I’m as curious to see
what the shrink will say as Myra and the judge are. I
can only say one thing about him – he looks really
terrible. I hope he’s physically okay.

Back at the boat, I start to go over the responses to Interrogs returned to us. I scan through both sets, looking for answers to certain questions. On Stuart’s spamming case I see the answer I’m looking for. On Vinnie’s case I don’t.

The questions asked of the Mexican restaurant were about employees and customers. I specifically mentioned the night that the drunk driver was there, but their answers completely deny that he was either a customer or an employee. This is not good for us. If he wasn’t working as a bartender or waiter and he wasn’t an employee, then how the hell did he get enough booze in his system to blow a 0.19? The restaurant didn’t report him to the police for stealing alcohol, so he must have been drinking it over the six hours he was there. Was it free? I don’t think so.

The property report from his arrest didn’t indicate any credit cards, so if he paid for the drinks, it must have been by cash. This calls for more investigation. I call Jack Bibberman and tell him to re-interview the witnesses. No wonder Patty Vogel was so smug when I talked to her. I was right; she knows something that I don’t know and it bothers me.

I call the public defender’s office and try to locate whatever deputy has been assigned to the drunk’s Grand Theft Auto charge. After what seems like an hour on hold, I finally reach a deputy PD who is handling the matter for arraignment. “Hi, this is Peter Sharp. I filed a civil matter against your client Harry Michaels. He’s the one charged with driving that Lexus into a tree after leaving a Mexican restaurant on Washington Boulevard, out here in the Marina, and I understand you’re representing him.

What can I do for you?”
“Well, as you probably know, he wound up
wrapping that car around a tree.”
“And you represent the tree?”
“Not quite. It so happens that my client was
standing next to that tree, taking a leak, at the exact
same time that Mister Michaels decided to attack it.” I hear laughter on the other end of the line. “Is
your client claiming some invasion of privacy, or
maybe peeus interruptus?”
“Not exactly, but the tree did fall on him. We
filed a Municipal Court action to recover for some
new clothes and minor pain and suffering. This is a
small matter but the client is an employee of one of
my bigger clients, so I’m trying to keep him happy.” “Okay. It’s time for the commercial. You
want to interview him, right?”
“Right.” The Interrogs I got back from the
restaurant that served him last don’t dispute the fact
that he was there for six hours, but I can’t establish him as either a customer or an employee. I’m trying
to figure out what the hell he was doing there.” “Sharp, I appreciate your situation but I can’t
arrange for an interview. I’ll tell you what - I’m
pleading him out later this week. If you want, you
can be there in the courtroom. Maybe you’ll get a
chance to ask him a quick question while he’s
standing next to me at the counsel table.”
“Do you think he’ll do some time?”
“Yeah, but it won’t be hard time. I’ve talked
to the City Attorney and they’re willing to let him do
six months at County Jail. They’re pretty
overcrowded there, so he’ll probably be out in a
month or so. If you really want some cooperation, I’d
like to be able to tell him that you’ve authorized me
to deposit some cash to his prisoner account, so while
he’s in there, he can buy some grooming stuff.
Nothing big, maybe ten or fifteen bucks.”
“It’s a deal. I’ll give it to you in court before I
talk to him. If anyone sees me handing you the
money, you can just tell them it’s a drug deal.” Just as I hang up the phone, there’s a knock
on the hull. It’s a messenger with the still pictures I
ordered off the security videos from the bank and
hospital, so it looks like I’ve got some work to do
now.
The dog is sitting and watching me. This
means that he knows something before I know it –
that I’m cooking tonight. Suzi must be busy doing
something, so she told the dog that I’d feed him. He
obviously doesn’t want to be late for dinner. Tonight’s pasta dish will be a special
combination that includes the usual small can of sweet peas, eight ounces of large elbow macaroni, a can of almost fat-free vegetarian chili, plus a few dashes of Paul Newman’s Spaghetti sauce. Added to the mix will be three slices of veggie imitation cheddar cheese and some garlic salt. I call this combination my chili-mac special. The dog smells the open can of chili, but because it’s up on the sink and he can’t see the label, he doesn’t know it’s the
vegetarian kind.
As I’m walking around the galley, I notice
that the door to the little princess’ stateroom is ajar.
She’s peeking out at me.
“I’m preparing one of my pasta dishes
tonight. Would you like a bowl of it?”
For the first time since I’ve met her, I see a
slight smile on her face as she nods ‘yes’ and then
immediately hides behind her door. I must have done
something right, because this is the first time she’s
agreed to voluntarily eat my cooking.
The phone rings. “Myra, my dear. Your
number is always a pleasant sight when it appears on
my caller ID display. What can I do for your
tonight?”
“You stood me up last time. I had to sit there
and eat lunch all alone.”
“I called.”
“Yeah, but I was already waiting in the
restaurant, so I stayed to eat.”
“I’m sorry, but you know how it is when
you’ve got a busy private practice.”
“Sure Pete. How many cases do you have
now, three?”
“It’s four, but who’s counting? To what do I
owe the pleasure of this call?”
“I thought I’d give you a heads-up on that
murderer you’re defending. We did a thorough search
of the hospital and found a discarded latex ‘missionimpossible’ type of facemask that looks exactly like
your client. That means someone else may have done
the crime and then looked up at the security camera
with the mask on, to make it look like your client was
the guilty one.
“It’s probably something the CIA is involved
in, so we’ll be dismissing the case and releasing your
client with a letter of apology signed by everyone in
the District Attorney’s office. I hope that helps you
out a little.”
She must really enjoy torturing me. “Oh gee,
Myra, thanks a lot. That’s exactly what I’ve been
hoping for to clear this innocent man. I’d better get
down to the county jail to pick him up… or will you
be sending your driver to take him home? There! You
feel better now? I know it doesn’t look too good for
us but there’s no need to rub it in. You’ll get your
conviction and you’ll get elected as District
Attorney.”
“Yeah, I know. But it’s still going to be fun
beating your pants off in court. In all the years I’ve
known you, I’ve never seen you at such a loss for
words or strategy. Your client is going down and
there’s nothing you can do about it.”
“The shrink’s report isn’t in yet, you know.
There’s always a possibility he can be found unfit to
stand trial.”
“No way Petey, and you know it. He’s just as
sane as you and me. I’m glad we’ve got him on tape
because the only weak link in our whole case was the motive. After this is all over, maybe you’ll tell me
why he did it.”
“Sorry beautiful. I’d like to assert the
Attorney-client privilege, but all I’ve gotten from his
so far is silence. And I do mean silence. The guy
hasn’t said one complete sentence to me since I was
appointed to defend him. Oh by the way, I’m
preparing one of my special pasta dishes tonight –
want some?”
“No thank you, I’m off of gruel this month.
But I’ll make it easy for you. If you win this case, I’ll
buy you dinner anywhere you want.”
“Anywhere?”
“You got it, pal.”
“Myra, if I win this case by proving that my
client didn’t do the crime, I’d like to have dinner at
the club.”
“What club would that be, Peter? Have you
joined the ‘Y’?”
“Not exactly, my dear. I mean our club – the
Lahaina Yacht Club. I’ll pay for the plane – you pay
for the food.”
There’s a brief lull while she’s thinks it over.
This will be the real test to see how much she
believes in her case. My macaroni timer is
approaching eight minutes, so I try to move the
conversation along. “Myra, I don’t want to sound
rude but my pasta is almost done cooking.”
“Okay Petey, you get an acquittal on this case
and I’ll buy you dinner at the club on Maui.” She can call me Petey as much as she wants,
as long as it’s accompanied by an offer to go to Maui
with me. The last time we were in Maui together was
during our first few years of marriage, and it was really great. Maybe because that’s before she started law school.
Now I’ve got some extra incentive to win this case. Even if the court only awards me fifty bucks an hour, by the time the trial is over I’ll have about two hundred hours invested. Ten grand will help to make it like a second honeymoon - and we’ll go first class. Now, all I have to do is figure out some way to win an impossible losing case. No problemo. I’m sure
that with the dog’s help, it’s in the bag.
During dinner I browse through the still
pictures that were ‘frame-grabbed’ from the hospital
security tapes. There are several that I requested and
they clearly show Harold walking into the hospital
room, standing by the closet door, walking over to
the vacant bed next to Drago’s, picking up the pillow
from the vacant bed, lowering the pillow onto
Drago’s face, pressing and holding the pillow down
on Drago’s face, and then putting the pillow back
onto the other bed.
There were another few minutes or two of
photos I didn’t ask for, during which time the nurses
ran into the room and tried to revive Drago.
Evidently, his flat line showed up on the nurses’
station computer, letting them know that they’d lost
another customer, so they rushed into the room.
When they ran in, Harold hid behind the vacant bed’s
curtain and then walked out while they were trying to
revive Drago. That’s when he looked up at the
hallway security camera outside Drago’s room. According to the added time-code on the
bottom of the photos, the whole act took no more
than two minutes. The hospital staff used those electric paddles and spent several minutes trying to
bring Drago back to life, but it was to no avail. I spread the ink-jet printed pictures out on the
coffee table in chronological order and scan back and
forth over them, looking – I don’t know for what –
just looking.
The Saint Bernard is coming out of the
forward stateroom with his leash in his mouth. This is
the signal for me to do the trick he taught me. When
he brings his leash over to me like that, I’m supposed
to attach it to his collar and take him for a walk. As
I’m fastening the leash, he drools on one of the
pictures, completely obscuring the upper portion of
the one that shows my client lowering the pillow onto
Drago’s face. No problem. That’s a picture I’m not
particularly fond of.
On the way back from our walk, I can’t help
but notice Laverne smiling in our direction from her
window. I hope it’s me she’s smiling at. I let the dog
go back to our boat by himself, and smile back at
Laverne. Aw, what the hell. I’ve worked hard today –
I might as well take a break from normality. If I
perform the tricks that she taught me, I’ll get
rewarded with French toast for breakfast.