Rogue Lawyer (33 page)

As we break for an afternoon recess, I get a text message from Miguel Zapate. I've seen him in the courtroom throughout the morning, one of several relatives and friends clustered in the back row, watching intently but from as far away as possible. We meet in the hallway and stroll outside. Norberto, the former manager of Team Zapate, joins us. Partner follows at a distance. I make sure they understand that Tadeo is refusing a very good plea bargain. He could be out in eighteen months and fighting again.

But they have a better deal. Juror number ten is Esteban Suarez, age thirty-eight, a truck driver for a food supply company. Fifteen years ago he emigrated legally from Mexico. Miguel says he has a friend who knows him.

I hide my surprise as we wade into treacherous waters. We turn down a narrow one-way street with all sunlight blocked by tall buildings. “How does your friend know him?” I ask.

Miguel is a street punk, a low-end drug runner for a gang that is heavily involved with cocaine smuggling but not heavily involved with its profits. In the murky chain of distribution, Miguel and his boys are stuck in the middle with no room to grow. This is where Tadeo was when we met less than two years ago.

Miguel shrugs and says, “My friend knows lots of people.”

“I'm sure he does. And when did your friend meet Mr. Suarez? Within the past twenty-four hours?”

“It doesn't matter. What matters is the fact that we can deal with Suarez, and he's not that expensive.”

“Bribing a juror can land you in the same pen with Tadeo.”

“Senor, please. For ten grand Suarez hangs the jury, maybe even gets an acquittal.”

I stop walking and stare at this small-time thug. What does he know about acquittals? “If you think that jury is going to let your brother walk, then you're crazy, Miguel. Ain't going to happen.”

“Okay, then we hang it. You said yourself that if they hang once, then hang twice, then the prosecutor will dismiss everything.”

I start walking again, slowly because I'm not sure where we're headed. Partner trails fifty yards behind. I say, “Fine, go bribe a juror, but I'm not getting involved.”

“Okay, senor, give me the cash and I'll get it done.”

“Oh, I see. You need the money.”

“Yes, senor. We don't have that kind of cash.”

“I don't either, especially not after representing your brother. I've forked over thirty grand for a jury consultant and twenty for a shrink, plus twenty more for other expenses. Keep in mind, Miguel, in my business I'm supposed to get paid by the client, cash fees for representation. And the client also covers all expenses. It's not the other way around.”

“Is that why you're not fighting?”

I stop again and glare at him. “You have no idea what you're talking about, Miguel. I'm doing the best I can with the facts I have. You guys are under some misguided notion that I can fit your brother into a big, mysterious loophole in the law and walk him out of there a free man. Guess what? It ain't going to happen, Miguel. Tell that to your hardheaded brother.”

“We need ten thousand, Rudd. And now.”

“Too bad. I don't have it.”

“We want a new lawyer.”

“Too late.”

D is for donut. After another sleepless night I meet Nate Spurio at a bakery near the university. For breakfast he's having two honey-glazed filled with jelly, and black coffee. I'm not hungry, so I choke down the coffee. After a few minutes of small talk, I say, “Look, Nate, I'm pretty busy these days. What's on your mind?”

“The trial, huh?”

“Yes.”

“I hear you're getting hammered.”

“It's pretty ugly in there. You called. What's up?”

“Not much. I've been asked to pass along some kind words from Roy Kemp and family. They took the girl off to rehab someplace. She's a mess, obviously, but at least she's safe and with her family. I mean, look, Rudd, these people thought she was dead. Now they got her back. They'll do whatever it takes to make her whole again. And, they might have a lead on the baby. This thing is still unfolding all over the country. More arrests last night, more girls taken into custody. They got a tip related to the baby-selling angle and they're all over it.”

I nod, take a sip, say, “That's good.”

“Yes it is. And Roy Kemp wants you to know that he and his family are very grateful to you for getting the girl back and making all this happen.”

“He kidnapped my child.”

“Come on, Rudd.”

“His daughter was kidnapped, so he must know how it feels. I don't care how grateful he is. He's lucky I called off the FBI or he might be sitting in jail.”

“Come on, Rudd. Let it go. There's a happy ending here, thanks to you.”

“I deserve nothing and I want no part of it. Tell Mr. Kemp to kiss my ass.”

“Will do. They got a lead on Swanger. Last night, a tip from a bartender in Racine, Wisconsin.”

“Great. Can we meet in a week or so and have a beer? I'm rather preoccupied right now.”

“Sure.”

I huddle with Partner and Cliff in the hallway before the trial resumes Friday morning. At this point Cliff's job is to sit in various places among the spectators and watch the jurors. His reaction to yesterday is not surprising: The jurors have no sympathy for Tadeo and they've made up their minds. Grab the plea deal if it's still on the table, he keeps saying. I tell him about my conversation with Miguel the day before. Cliff's response: “Well, if you can bribe one you'd better do it quick.”

As the jury files in, I steal a look at Esteban Suarez. I planned to just glance at him quickly, as I normally do during trials. However, he's gawking at me as if he expects me to hand over an envelope. What a goofball. There is little doubt, though, that someone has made contact with him. There's also little doubt that he can't be trusted. Is he already counting his money?

Judge Fabineau says good morning and welcomes everyone back to her courtroom. She goes through the standard routine of quizzing the jurors about any unauthorized contact with sinister people hoping to sway them. I glance back at Suarez. He's staring at me. I'm sure others are noticing this.

Mr. Mancini stands and announces, “Your Honor, the State rests. We may have additional witnesses for rebuttal, but for now we'll rest.”

This is not surprising because Max gave me a heads-up. He's called only two witnesses because that's all he needs. Again, the video says it all, and Max is wise to let it speak for itself. He's clearly established the cause of death and he's certainly nailed the perpetrator.

I walk to the jury box, look at everyone but Suarez, and begin by stating the obvious. My client killed Sean King. There was no premeditation, no planning. He hit him twenty-two times. And Tadeo doesn't remember it. In the fifteen or so minutes before he attacked Sean King, Tadeo Zapate was struck in the face and head a total of thirty-seven times by Crush, also known as Bo Fraley. Thirty-seven times. He wasn't knocked out, but he was mentally impaired. He remembers little past the second round, when Crush landed a knee to his jaw. We will show you, the jury, the entire fight, count the thirty-seven blows to the head, and prove to you that Tadeo did not know what he was doing when he attacked the referee.

I am brief because there's just not much I can say. I thank them and leave the podium.

My first witness is Oscar Moreno, Tadeo's trainer and the man who first saw his potential as a sixteen-year-old boxer. Oscar is about my age, older than Tadeo's gang, and he's been around the block. He hangs out in a gym for Hispanic kids and offers to train the more talented ones. He also happens to have a clean record, a real asset when calling witnesses to the stand. Past criminal convictions always come back to bite you. Juries are tough on felons under oath.

With Oscar, I lay the groundwork for the events leading up to the fight. It's an effort to appeal to the jury's sense of compassion. Tadeo is a poor kid from a poor family whose only real chance in life so far has been inside the cage. We finally get around to the fight and the courtroom lights go down. The first time through, we watch the fight without interruption. In the semidarkness, I watch the jurors. The women are turned off by the sport's brutality. The men are thoroughly engrossed. During the rerun, I stop the tape each time Tadeo takes a shot in the face. The truth is that most of these were not that damaging and Crush scored only minor points with them. But to jurors who don't know any better, a punch to the face, especially one blown out of proportion by Oscar and me, becomes a near-lethal blow. Slowly, methodically, I count them. When they are displayed in such exaggerated manner, one can easily ask how in the world Tadeo stayed on his feet. With 1:20 to go in the second round, Crush is able to yank Tadeo's head down and bang it into his right knee. It's a nasty shot all right, but one that hardly fazed Tadeo. Now, though, Oscar and I make it look like the cause of permanent brain damage.

I stop the video after the end of the second round, and through carefully rehearsed questions and answers I elicit from Oscar his impressions of his fighter between rounds. The kid's eyes were glazed over. He could only grunt, not speak. He was unresponsive to questions fired at him by Norberto and Oscar. He, Oscar, thought about waving the ref over and stopping the fight.

I would put Norberto on the stand to verify these lies, but he has two felony convictions and would be humiliated by Mancini.

Left unsaid in this testimony is the fact that I was also in the corner. I was wearing my bright yellow “Tadeo Zapate” jacket and trying to act as though I was somehow needed. I have explained this to Max and Go Slow and assured them that I saw and heard nothing crucial. I was just a spectator; thus I cannot be considered a witness. Max and Go Slow know I'm here out of love and not money.

We watch the third round and count more blows to Tadeo's head. Oscar testifies that when the fight was over Tadeo thought he had one more round. He was out of it, barely conscious but still on his feet. After he attacked Sean King and was pulled off by Norberto and others, he was like an enraged animal, unsure of where he was or why he was being restrained. Thirty minutes later, as he was changing in the dressing room while the police watched and waited, he began to come around. He wanted to know what the cops were doing there. He asked who won the fight.

All in all, not a bad job of creating some doubt. However, even a casual viewing of all three rounds clearly shows a fight that was fairly even. Tadeo dished out as much damage as he absorbed.

Mancini gets nowhere on cross. Oscar sticks to the facts he has created. He was there, in the corner, talking to his fighter, and if he says the kid took too many shots to the head, so be it. Max can't prove otherwise.

Next I call our expert, Dr. Taslman, the retired psychiatrist who now works as a professional witness. He wears a black suit, crisp white shirt, tiny red bow tie, and with his horn-rimmed glasses and long, flowing gray hair he looks incredibly smart. I slowly walk him through his qualifications and tender him as an expert in the field of forensic psychiatry. Max has no objections.

I then ask Dr. Taslman to explain, in layman's terms, the legal concept of volitional insanity, the standard adopted by our state a decade ago. He smiles at me, then looks at the jurors in much the same way an old professor would enjoy chatting with his adoring students. He says, “Volitional insanity means simply that a person who is mentally healthy does something wrong, and at the time he knows it's wrong, but at that moment he is so mentally unbalanced, or deranged, he cannot prevent himself from doing it anyway. He knows it's wrong, but he cannot control himself and thereby commits the crime.”

He has watched the fight many times, and the video of its aftermath. He has spent a few hours with Tadeo. During their first meeting, Tadeo told him he did not remember the attack on Sean King. Indeed, he remembered virtually nothing after the second round. However, during a later session, Tadeo seemed to recollect certain things that happened. For example, he said he remembered the smug look on Crush's face as his arm was raised in victory. He remembered the crowd screaming its disapproval of the decision. He remembered his brother Miguel yelling something. But he remembered nothing to do with the assault on the referee. Regardless, though, of what he remembered, he was blinded by emotion and had no choice but to attack. He had been robbed and the nearest official was Sean King.

Yes, in Dr. Taslman's opinion, Tadeo was so deranged he could not stop himself. Yes, he was legally insane, and therefore unaccountable for his actions.

And there is another, quite unusual factor in play here that makes the case unique. Tadeo was in a cage designed for fighting. He had just spent nine long minutes trading punches with another fighter. He makes his living punching people. To him, at that crucial moment, it was okay to settle the matter with more punches. Put in context, and in the environment of that instant, he felt as if he had no choice but to do what he did.

When I'm finished with Taslman, we break for lunch.

I stop by Domestic Relations to check the court file. As expected, old Judge Leef has denied Judith's request for an emergency hearing, and has scheduled the matter four weeks from now. His order also states that regular visitation will continue unchanged. Take that, sweetheart.

Cliff, Partner, and I walk a few blocks to a diner and hide in a booth for a quick sandwich. The morning's testimony could not have gone better for Tadeo. All three of us are surprised at how well Oscar did on the stand, and how believable he was in telling the jurors that Tadeo had been knocked out, but was still standing. Few fight fans would believe that, but there are none on our jury. For $20,000, I expected Dr. Taslman to perform admirably, and he did. Cliff says the jurors are thinking now, with some doubt firmly planted. However, an acquittal is impossible. A hung jury is still our only chance. And it could be a long afternoon as Mancini goes after our expert.

Back in court, Max begins by asking, “Dr. Taslman, at what moment did the defendant become legally insane?”

“There is not always a clear beginning and ending. Obviously, Mr. Zapate became furious over the judges' decision awarding the fight to his opponent.”

“So, before that moment, was he insane by your definition?”

“It's not clear. There is a strong likelihood that Mr. Zapate had been mentally impaired during the last few minutes of the fight. This is a very unusual situation, and it's not possible to know how clearly he was thinking before the decision was announced. It's pretty obvious, though, that he snapped quickly.”

“How long was he legally insane?”

“I don't think it's possible to say.”

“Okay, under your definition, when the defendant whirled around and struck Sean King with the first punch, was that an assault?”

“Yes.”

“And punishable by some standard?”

“Yes.”

“And excusable, in your opinion, because of your definition of legal insanity?”

“Yes.”

“You've seen the video many times. It's clear that Sean King made no effort to defend himself once he fell to the deck and was sitting against the cage, right?”

“That appears to be the case.”

“Do you need to see it again?”

“No, not at this time.”

“So, after only two punches, Sean King is down and out, unable to protect himself, right?”

“That appears to be the case, yes.”

“Ten punches later, his face is bleeding and basically pulverized. He cannot protect himself. The defendant has hit him twelve times around the eyes and forehead. Now, at that point, Doctor, was the defendant still legally insane?”

“He could not control himself, so the answer is yes.”

Mancini looks at the judge and says, “Okay. I want to run the video again in slow motion.” The lights are dimmed yet again, and everyone stares at the large screen. Max runs it in super slow-mo and announces loudly as each punch lands, “One! Two! He's down now. Three! Four! Five!”

I glance at the jurors. They may be tired of this footage but they're still captivated by it.

Max stops with blow number twelve and asks, “Now, Doctor, you're telling this jury that they're looking at a man who knows he's doing wrong, violating the law, but cannot physically or mentally stop himself. Is that right?” Max's tone is one of incredulity and mockery, and it's effective. What we're watching is a slaughter by one pissed-off fighter. Not a man driven insane.

“That's correct,” Dr. Taslman says, not yielding an inch.

Thirteen, fourteen, fifteen, Max counts them off slowly and stops at twenty. Max calls out, “Now, at this point, Doc, is he still insane?”

“He is, yes.”

Twenty-one, twenty-two, and bodies land on Tadeo as Norberto finally dives on and stops the carnage. Max asks, “How about now, Doc, they've pulled him off and the attack is over? At what point does the boy return to sanity?”

“It's hard to say.”

“A minute later? An hour later?”

“It's hard to say.”

“It's hard to say because you don't know, right? In your opinion, legal sanity is like a switch that flips on and off, rather conveniently for the defendant, right?”

“That's not what I said.”

Max pushes a button and the screen disappears. The lights are brightened as everyone takes a breath. Max whispers to an assistant and picks up another legal pad covered with notes. He shuffles to the podium, glares at the witness, and asks, “What if he hit him thirty times, Dr. Taslman? You'd still diagnose him as legally insane?”

“Under the same set of facts, yes.”

“Oh, we're talking about the same facts. Nothing has changed. What about forty times? Forty blows to the head of a man who's clearly unconscious. Still legally insane, Doc?”

“Yes.”

“This defendant showed no signs of stopping after only twenty-two. What if he landed a hundred shots to the head, Doc? Still legally insane in your book?”

Taslman earns his money with “The greater number of punches is clearer evidence of a deranged mind.”