Rogue Lawyer (2 page)

At 8:00 a.m. Partner knocks on my door. It's time to go. We say our good mornings and climb into my vehicle, which is a large black Ford cargo van, heavily customized for my needs. Since it doubles as an office, the rear seats have been rearranged around a small table that folds into a wall. There is a sofa where I often spend the night. All windows are shaded and bulletproof. It has a television, stereo system, Internet, refrigerator, bar, a couple of guns, and a change of clothes. I sit in the front with Partner and we unwrap fast-food sausage biscuits as we leave the parking lot. An unmarked state police car moves in front of us for the escort to Milo. There is another one behind us. The last death threat was two days ago and came by e-mail.

Partner does not speak unless spoken to. I didn't make this rule but I adore it. He is not the least bit bothered by long gaps in the conversation, nor am I. After years of saying next to nothing, we have learned to communicate with nods and winks and silence. Halfway to Milo I open a file and start taking notes.

The double murder was so gruesome no local lawyer would touch it. Then Gardy was arrested, and one look at Gardy and you know he's guilty. Long hair dyed jet-black, an astonishing collection of piercings above the neck and tattoos below, matching steel earrings, cold pale eyes, and a smirk that says, “Okay, I did it, now what?” In its very first story, the Milo newspaper described him as “a member of a satanic cult who has a record of molesting children.”

How's that for honest and unbiased reporting? He was never a member of a satanic cult and the child molestation thing is not what it seems. But from that moment Gardy was guilty, and I still marvel at the fact that we've made it this far. They wanted to string him up months ago.

Needless to say, every lawyer in Milo locked his door and unplugged her phone. There is no public defender system in the town—it's too small—and the indigent cases are doled out by the judge. There is an unwritten rule that the younger lawyers in town take these low-paying cases because (1) someone has to and (2) the older lawyers did so when they were younger. But no one would agree to defend Gardy, and, to be honest, I can't really blame them. It's their town and their lives, and to rub shoulders with such a twisted murderer could do real damage to a career.

As a society, we adhere to the belief in a fair trial for a person accused of a serious crime, but some of us struggle when it comes to the business of providing a competent lawyer to guarantee said fair trial. Lawyers like me live with the question “But how do you represent such scum?”

I offer a quick “Someone has to” as I walk away.

Do we really want fair trials? No, we do not. We want justice, and quickly. And justice is whatever we deem it to be on a case-by-case basis.

It's just as well that we don't believe in fair trials because we damned sure don't have them. The presumption of innocence is now the presumption of guilt. The burden of proof is a travesty because the proof is often lies. Guilt beyond a reasonable doubt means if he probably did it, then let's get him off the streets.

At any rate, the lawyers ran for the hills and Gardy had no one. It's a commentary, sad or otherwise, on my reputation that I soon got the phone call. In this end of the state, it is now well known in legal circles that if you can't find anybody else, call Sebastian Rudd. He'll defend anybody!

When Gardy was arrested, a mob showed up outside the jail and screamed for justice. When the police perp-walked him to a van for the ride to the courthouse, the mob cursed him and threw tomatoes and rocks. This was thoroughly reported by the local newspaper and even made the City's evening news (there is no network station based in Milo, only a low-end cable outfit). I howled for a change of venue, pleaded with the judge to move the trial at least a hundred miles away so we could hopefully find some jurors who hadn't thrown stuff at the kid, or at the least cursed him over dinner. But we were denied. All of my pretrial motions were denied.

Again, the town wants justice. The town wants closure.

There is no mob to greet me and my van as we pull in to a short driveway behind the courthouse, but some of the usual actors are here. They huddle behind a police barricade not far away and hold their sad signs that say such clever things as “Hang the Baby Killer,” and “Satan Is Waiting,” and “Crud Rudd out of Milo!” There are about a dozen of these pathetic souls, just waiting to jeer at me and, more important, to show their hatred to Gardy, who will arrive at the same place in about five minutes. During the early days of the trial, this little crowd attracted cameras and a few of these people made it into the newspapers, along with their signs. This, of course, encouraged them and they've been here every morning since. Fat Susie holds the “Crud Rudd” sign and looks like she wants to shoot me. Bullet Bob claims to be a relative of one of the dead girls and was quoted as saying something to the effect that a trial was a waste of time.

He was right about that, I'm afraid.

When the van stops, Partner hurries around to my door, where he's met by three young deputies about his size. I step out and am properly shielded, then I'm whisked into the rear door of the courthouse as Bullet Bob calls me a whore. Another safe entry. I'm not aware of any case in modern times in which a criminal defense attorney was gunned down while entering a courthouse in the middle of a trial. Nevertheless, I have resigned myself to the likelihood that I could well be the first.

We climb a narrow rear staircase that's off-limits to everyone else, and I'm led to a small windowless room where they once held prisoners waiting to see the judge. A few minutes later, Gardy arrives in one piece. Partner steps outside and closes the door.

“How ya doing?” I ask when we are alone.

He smiles and rubs his wrists, unshackled for a few hours. “Okay, I guess. Didn't sleep much.” He didn't shower either because he's afraid to shower. He tries it occasionally but they won't turn on the hot water. So Gardy reeks of stale sweat and dirty sheets, and I'm thankful he's far enough away from the jury. The black dye is slowly leaving his hair and each day it gets lighter, and his skin gets paler. He's changing colors in front of the jury, another clear sign of his animalistic capabilities and satanic bent.

“What's gonna happen today?” he asks, with an almost childlike curiosity. He has an IQ of 70, just barely enough to be prosecuted and put to death.

“More of the same, Gardy, I'm afraid. Just more of the same.”

“Can't you make them stop lying?”

“No, I cannot.”

The State has no physical evidence linking Gardy to the murders. Zero. So, instead of evaluating its lack of evidence and reconsidering its case, the State is doing what it often does. It's plowing ahead with lies and fabricated testimony.

Gardy has spent two weeks in the courtroom, listening to the lies, closing his eyes while slowly shaking his head. He's able to shake his head for hours at a time, and the jurors must think he's crazy. I've told him to stop, to sit up, to take a pen and scribble something on a legal pad as if he has a brain and wants to fight back, to win. But he simply cannot do this and I cannot argue with my client in the courtroom. I've also told him to cover his arms and neck to hide the tattoos, but he's proud of them. I've told him to lose the piercings, but he insists on being who he is. The bright folks who run the Milo jail forbid piercings of all types, unless, of course, you're Gardy and you're headed back to the courtroom. In that case, stick 'em all over your face. Look as sick and creepy and satanic as possible, Gardy, so that your peers will have no trouble with your guilt.

On a nail is a hanger with the same white shirt and khaki pants he's worn every day. I paid for this cheap ensemble. He slowly unzips the orange jail jumpsuit and steps out of it. He does not wear underwear, something I noticed the first day of the trial and have tried to ignore since. He slowly gets dressed. “So much lying,” he says.

And he's right. The State has called nineteen witnesses so far and not a single one resisted the temptation to embellish a bit, or to lie outright. The pathologist who did the autopsies at the state crime lab told the jury the two little victims had drowned, but he also added that “blunt force trauma” to their heads was a contributing factor. It's a better story for the prosecution if the jury believes the girls were raped and beaten senseless before being tossed into the pond. There's no physical proof they were in any way sexually molested, but that hasn't stopped the prosecution from making this a part of its case. I haggled with the pathologist for three hours, but it's tough arguing with an expert, even an incompetent one.

Since the State has no evidence, it is forced to manufacture some. The most outrageous testimony came from a jailhouse snitch they call Smut, an appropriate nickname. Smut is an accomplished courtroom liar who testifies all the time and will say whatever the prosecutors want him to say. In Gardy's case, Smut was back in jail on a drug charge and looking at ten years in prison. The cops needed some testimony, and, not surprisingly, Smut was at their disposal. They fed him details of the crimes, then transferred Gardy from a regional jail to a county jail where Smut was locked up. Gardy had no idea why he was being transferred and had no clue that he was walking into a trap. (This happened before I got involved.) They threw Gardy into a small cell with Smut, who was anxious to talk and wanted to help in any way. He claimed to hate the cops and know some good lawyers. He'd also read about the murders of the two girls and had a hunch he knew who really killed them. Since Gardy knew nothing about the murders, he had nothing to add to the conversation. Nonetheless, within twenty-four hours Smut claimed he'd heard a full confession. The cops yanked him out of the cell and Gardy never saw him again, until trial. As a witness, Smut cleaned up nicely, wore a shirt and tie and short hair, and hid his tattoos from the jury. In amazing detail, he replayed Gardy's account of how he stalked the two girls into the woods, knocked them off their bikes, gagged and bound them, then tortured, molested, and beat them before tossing them into the pond. In Smut's version, Gardy was high on drugs and had been listening to heavy metal.

It was quite a performance. I knew it was all a lie, as did Gardy and Smut, along with the cops and prosecutors, and I suspect the judge had his doubts too. Nevertheless, the jurors swallowed it in disgust and glared with hatred at my client, who absorbed it with his eyes closed and his head shaking, no, no, no. Smut's testimony was so breathtakingly gruesome and rich with details that it was hard to believe, at times, that he was really fabricating it. No one can lie like that!

I hammered at Smut for eight full hours, one long exhausting day. The judge was cranky and the jurors were bleary-eyed, but I could have kept going for a week. I asked Smut how many times he'd testified in criminal trials. He said maybe twice. I pulled out the records, refreshed his memory, and went through the nine other trials in which he'd performed the same miracle for our honest and fair-minded prosecutors. With his muddled memory somewhat restored, I asked him how many times he'd had his sentence reduced by the prosecutors after lying for them in court. He said never, so I went through each of the nine cases again. I produced the paperwork. I made it perfectly clear to everyone, especially the jurors, that Smut was a lying, serial snitch who swapped bogus testimony for leniency.

I confess—I get angry in court, and this is often detrimental. I blew my cool with Smut and hammered him so relentlessly that some of the jurors became sympathetic. The judge finally told me to move on, but I didn't. I hate liars, especially those who swear to tell the truth and then fabricate testimony to convict my client. I yelled at Smut and the judge yelled at me, and at times it seemed as though everyone was yelling. This did not help Gardy's cause.

You would think the prosecutor might break up his parade of liars with a credible witness, but this would require some intelligence. His next witness was another inmate, another druggie who testified he was in the hallway near Gardy's cell and heard him confess to Smut.

Lies on top of lies.

“Please make them stop,” Gardy says.

“I'm trying, Gardy. I'm doing the best I can. We need to go.”

A deputy leads us into the courtroom, which is again packed with people and heavy with a layer of tense apprehension. This is the tenth day of testimony, and I now believe there is absolutely nothing else happening in this backwater town. We are the entertainment! The courtroom is packed from gavel to gavel and they're lined up against the walls. Thank God the weather is cool or we'd all be soaked with sweat.

Every capital murder trial requires the presence of at least two lawyers for the defense. My co-counsel, or “second chair,” is Trots, a thick, dull boy who ought to burn his law license and curse the day he ever dreamed of showing his face in a courtroom. He's from a small town twenty miles away, far enough, he thought, to shield him from the unpleasantness of getting caught up in Gardy's nightmare. Trots volunteered to handle the preliminary matters, intending to jump ship if a trial became a reality. His plans have not worked out to suit him. He screwed up the preliminaries as only a rookie can, then tried to extricate himself. No go, said the judge. Trots then thought it might be an acceptable idea to sit in the second chair, gain some experience, feel the pressure of a real trial, and so on, but after several death threats he stopped trying. Death threats are just part of the daily grind for me, like the morning coffee and lying cops.

I've filed three motions to remove Trots from the second chair. All denied, of course, so Gardy and I are stuck with a moron at our table who's more of a hindrance than an assistant. Trots sits as far away as possible, though given Gardy's current state of hygiene I can't really blame him.

Gardy told me months ago that when he was first interviewed by Trots at the county jail the lawyer was shocked when Gardy claimed he was innocent. They even argued about it. How's that for a vigorous defender?

So Trots sits at the end of the table, his head buried in useless note taking, his eyes seeing nothing, his ears hearing nothing, but he feels the stares of all those sitting behind us who hate us and want to string us up with our client. Trots figures this too shall pass and he'll get on with his life and career the moment the trial is over. He is wrong. As soon as possible, I'll file an ethics complaint with the state bar association alleging Trots provided “ineffective assistance of counsel” before and during the trial. I've done this before and I know how to make it stick. I'm fighting my own battles with the bar and I understand the game. After I get finished with Trots, he'll want to surrender his license and get a job at a used-car lot.

Gardy takes his seat in the middle of our table. Trots does not look at his client, nor does he speak.

Huver, the prosecutor, walks over and hands me a sheet of paper. There are no good mornings or hellos. We are so far beyond even the most benign pleasantries that a civilized grunt from either of us would be a surprise. I loathe this man the way he loathes me, but I have an advantage in the hating game. Almost monthly I deal with self-righteous prosecutors who lie, cheat, stonewall, cover up, ignore ethics, and do whatever it takes to get a conviction, even when they know the truth and the truth tells them they are wrong. So I know the breed, the ilk, the subclass of lawyer who's above the law because he is the law. Huver, on the other hand, rarely deals with a rogue like me because, sadly for him, he doesn't see many sensational cases, and almost none in which a defendant shows up with a pit bull for a protector. If he dealt with rabid defense lawyers more regularly, he might be more adept at hating us. For me, it's a way of life.

I take the sheet of paper and say, “So who's your liar of the day?”

He says nothing and walks a few feet back to his table, where his little gang of assistants huddle importantly in their dark suits and ham it up for the home crowd. They are on display in this, the biggest show of their miserable backwater careers, and I often get the impression that everyone from the DA's office who can walk, talk, wear a cheap suit, and carry a new briefcase is packed around the table to insure justice.

The bailiff barks, I stand, Judge Kaufman enters, then we sit. Gardy refuses to stand in homage to the great man. Initially, this really pissed off His Honor. On the first day of trial—it now seems like months ago—he snapped at me, “Mr. Rudd, would you please ask your client to stand?”

I did, and he refused. This embarrassed the judge and we discussed it later in his chambers. He threatened to hold my client in contempt and keep him in jail all day long during the trial. I tried to encourage this but let it slip that such an overreaction would be mentioned repeatedly on appeal.

Gardy wisely observed, “What can they do to me that they haven't already done?” So each morning Judge Kaufman begins the ceremonies with a long, nasty scowl at my client, who's usually slouched in his chair either picking at his nose ring or nodding with his eyes closed. It's impossible to tell which one of us, lawyer or client, Kaufman despises the most. Like the rest of Milo, he's been convinced for a long time that Gardy is guilty. And, like everybody else in the courtroom, he has loathed me from day one.

Doesn't matter. In this line of work you rarely have allies and you quickly make enemies.

Since he's up for reelection next year, as is Huver, Kaufman slaps on his phony politician's smile and welcomes everyone to his courtroom for another interesting day in the pursuit of the truth. Based on the calculations I made one day during lunch when the courtroom was empty, there are about 310 people sitting behind me. Except for Gardy's mother and sister, everyone is fervently praying for a conviction, with a quick execution to follow. It's up to Judge Kaufman to deliver. This is the judge who has so far allowed every word of bogus testimony offered by the State. At times it seems as though he's afraid he might lose a vote or two if he sustains one of my objections.

When everyone is in place, they bring in the jury. There are fourteen people crammed in the box—the chosen twelve plus a couple of alternates in case someone gets sick or does something wrong. They are not sequestered (though I requested this), so they are free to go home at night and trash Gardy and me over dinner. Late each afternoon, they are warned by His Honor not to utter a single word about the case, but you can almost hear them yakking as they drive away. Their decision has been made. If they voted right now, before we offer a single witness in defense, they would find him guilty and demand his execution. Then they would return home as heroes and talk about this trial for the rest of their lives. When Gardy gets the needle, they will take special pride in their crucial role in finding justice. They will be elevated in Milo. They will be congratulated, stopped on the streets, recognized at church.

Still sappy, Kaufman welcomes them back, thanks them for their civic service, asks gravely whether anyone tried to contact them in an effort to gain influence. This usually prompts a few looks in my direction, as if I have the time, energy, and stupidity to slink around the streets of Milo at night stalking these same jurors so I can (1) bribe them, (2) intimidate them, or (3) plead with them. It's now gospel that I'm the only crook in the room, in spite of the torrent of sins committed by the other side.

The truth is, if I had the money, the time, and the personnel, I
would
bribe and/or intimidate every juror. When the State, with its limitless resources, commences a fraudulent case and cheats at every turn, then cheating is legitimized. There is no level playing field. There is no fairness. The only honorable alternative for a lawyer fighting to save an innocent client is to cheat in defense.

However, if a defense lawyer is caught cheating, he or she gets nailed with sanctions by the court, reprimanded by the state bar association, maybe even indicted. If a prosecutor gets caught cheating, he either gets reelected or elevated to the bench. Our system never holds a bad prosecutor accountable.

The jurors assure His Honor that all is well. “Mr. Huver,” he announces with great solemnity, “please call your next witness.” Next up for the State is a fundamentalist preacher who converted the old Chrysler dealership into the World Harvest Temple and is drawing crowds to his daily prayer-a-thons. I watched him once on local cable; once is enough. His claim to fame here is that he says he confronted Gardy in the middle of a late-night youth service. According to his version, Gardy was wearing a T-shirt advertising a heavy metal rock group and conveying some vague satanic message, and this T-shirt was allowing the devil to infiltrate the service. Spiritual warfare was in the air, and God was unhappy with things. With divine direction, the preacher finally located the source of evil in the crowd, stopped the music, stormed back to where Gardy was sitting, and kicked him out of the building.

Gardy says he's never been near the church. Further, Gardy claims he's never seen the inside of
any
church in all of his eighteen years. His mother confirms this. As they say out here in the country, Gardy's family is severely “unchurched.”

Why this is allowed as testimony in a capital murder case is thoroughly inconceivable. It is ridiculous and borders on stupidity. Assuming there is a conviction, all of this crap will be reviewed in about two years by a dispassionate appellate court two hundred miles away. Those judges, only slightly more intelligent than Kaufman but anything is an improvement, will take a dim view of this redneck preacher telling his trumped-up story about an altercation that supposedly took place some thirteen months before the murders.

I object. Overruled. I object, angrily. I'm overruled, angrily.

Huver, though, is desperate to keep Satan involved in his theory of the case. Judge Kaufman opened the gates days ago and anything is welcome. However, he'll slam them as soon as I start calling witnesses. We'll be lucky to get a hundred words into the record.

The preacher has an unpaid tax bill in another state. He doesn't know I've found it, and thus we'll have some fun on cross-examination. Not that it will matter; it will not. This jury is done. Gardy is a monster who deserves to go to hell. Their job is to speed him along.

He leans over long enough to whisper, “Mr. Rudd, I swear I've never been to church.”

I nod and smile because this is all I can do. A defense lawyer cannot always believe his clients, but when Gardy says he's never been to church, I believe him.

The preacher has a temper and I soon stoke it. I use the unpaid tax bill to really irritate him, and once he's pissed he stays that way. I lead him into arguments over the inerrancy of scripture, the Trinity, the apocalypse, speaking in tongues, playing with snakes, drinking poison, and the pervasiveness of satanic cults in the Milo area. Huver yells objections and Kaufman sustains them. At one point the preacher, pious and red-faced, closes his eyes and raises both hands as high as possible. Instinctively, I freeze and cower and look at the ceiling as if a lightning bolt is coming. Later, he calls me an atheist and says I'm going to hell.

“So you have the authority to send folks to hell?” I fire back.

“God tells me you're going to hell.”

“Then put Him on the loudspeaker so we can all hear.”

Two jurors actually chuckle at this. Kaufman has had enough. He raps the gavel and calls for lunch. We've wasted the morning with this sanctimonious little prick and his bogus testimony, but he's not the first local to wedge himself into the trial. The town is filled with wannabe heroes.