The Jury (30 page)

"So you're not willing to deal?" asks Tate.

"Not on those terms," I tell him.

He settles back in his chair, sucks some air and lightly scratches his cheek with the back of the fingernails of one hand, a la The Godfather. All the moves are well practiced.

"You know, even if your man beats the wrap on Jordan, there's no double jeopardy on Epperson and no statute of limitations." Eye to eye, and he just blinked, admitting they can't win on Jordan's murder.

"He'll have to discuss that with his next lawyer," I tell him.

Tate smiles, shakes his head.

"There's been a lot of press interest on this one," he says. I can almost hear the sparks jumping the synapses in the brain, sinuous threads of smoke as they overload.

"That press can only get worse if he's acquitted," I tell him.

"You take it to a jury, given the evidence, and the press is going to wonder why, and so is my client who is likely to lose his job at the university. A lifetime of tenure."

"We're talking about a woman who lost her life," says Tate.

"No, we're talking about evidence you don't have."

Tate has survived this long by knowing when to cut his losses. If he presses, in light of the new evidence, and he loses, the county could be facing an eight-figure lawsuit for malicious prosecution or abuse of process.

At this moment, Tate is the picture of a prosecutor in a box, and he knows it.

It's why he called us in. If he agrees to a motion for dismissal, he may be haunted by that decision if evidence later develops that Crone was in fact involved in Epperson's death. Any good defense attorney would look Tate's deputy prosecutor in the eye in a courtroom and, on closing argument, ask the jury why the prosecutors office agreed to dismiss murder charges against the defendant in an earlier case. Their answer might be That was a different case. Still, if Crone was such a bad actor, why did they let him go? Conviction or not, it won't make the office look good, and Tate is the office.

"I have to think about it," he says.

"I wouldn't think too long. Tomorrow morning we get the evidence, whatever you have in Epperson's death. After that, my client is not going to be willing to deal. Unless you've got some solid evidence, you're going to have to dismiss or face the wall if he's acquitted. The county board of supervisors is not going to be happy raising taxes to pay for a zillion-dollar lawsuit."

He tries to argue prosecutorial discretion, sovereign immunity. Harry and I take up seats at the other side of the room on the couch, pretending not to listen as Tate huddles with Tannery, who brings him current: that these protections have been eroded by recent court decisions. Prosecutors who abuse their discretion, based on the evidence, can get nailed big-time. The look on Tate's face says it all. He settles back in his chair, wags a finger for us to join him again. Harry and I cross the room and sit down again.

"So what are you gonna do for us if we agree to some kind of a deal?"

"You'll join in a motion for dismissal?"

"We won't join in the motion," says Tate.

"But we won't oppose it, based on evidence as we know it at this time, and in the interests of justice."

"Of course." I consider my options. We have to throw them some kind of a bone.

"Subject of course to my client's consent, he will waive

his right to bring any civil action against the county for his arrest or trial to this point."

I study Tate's eyes. He doesn't even blink.

"Good." He's up out of the chair, shakes my hand, all smiles.

I realize what has gone down is a show, something for our benefit. This was all Tate was looking for from the moment he walked through the door, civil immunity.

What in the hell is going on?

The following morning, we craft the details of settlement. Harry and I camp with Crone at the jail. He is elated with his good fortune, but wants me to talk to the university about reinstatement. I caution him not to get the cart before the horse. He is more than willing to waive any rights to sue, but we counsel him anyway. Clients in this situation are always jumping to give up everything, assuming their lives will click right back into place. That is almost never the case.

"What if they don't take you back?" I ask.

"What do you mean?"

"The university."

"Why wouldn't they?"

"There's the question of the sexual harassment complaint filed by Jordan."

"But you said that died with her."

"Yes, but now they're on notice."

"I don't understand?"

"Think of it like a dog-bite case," says Harry.

"It's a question of dangerous propensities. You have a pet, a little dog. The dog has never attacked or bitten anybody. Then one day a neighbor's kid comes in your yard. The dog attacks and bites him. Who knows why; maybe the kid tormented him. The parents go to court.

That one bite may not cost you much. But now you have a problem. You know your dog has bitten once. That puts you on notice that he has dangerous propensities.

The next time he bites and someone sues, you may lose your house."

"You're saying I'm like the dog?"

"We're saying the university may see it that way. They may decide they're better off not to take the chance. If they take you back and some other employee later files on you, sexual harassment or discrimination, the damages for the employer can be excessive. They're the deep pocket."

"Can they do that? I mean, I have tenure."

"They can do whatever they want; the question is whether the courts will grant relief to you after they do, and whether you can afford that relief if it drags out."

He thinks about this.

"How long would it take?"

"It could take years," I tell him.

"Between administrative hearings, writs in court and appeals. And it could cost a considerable fortune."

"The moneys no problem," he says.

"But the time. Is it possible I could work, at the center, at my old job, while this was going on?"

"Doubtful," I tell him.

"It would depend on the university's position, what the courts might order." , "We don't know whether they'll take me back," he says. ' "No, we don't, but the prosecutors want an answer this afternoon as to their offer."

"What should I do?"

"There's only one thing to do," says Harry, "and that's to take it.

We're telling you because if you lose your job, you wouldn't be able to go back and sue the county for bringing the criminal charges."

"Damn it," he says.

"I don't care about the money."

"That's fine. Then you have nothing to lose," says Harry.

Crone slumps noticeably in his chair.

"I have my position to lose, my reputation."

Neither Harry nor I have an answer for this.

chapter eighteen

What do you mean he was undercover?" I ask.

"He was working special gangs unit in the jail." Tannery is showing the stress of the last several days. He is not looking well. He has a kind of whipped-dog demeanor as he stands stoop-shouldered in front of the judges desk. Tate may not have expected this, but Tannery is now taking a beating for acts that I suspect are not his doing.

Harry and I, Tannery and de Angelo are in the judge's chambers. Coats is behind his desk, his eyes boring holes through the prosecutor.

I'm all over Tannery, in his face.

"Your Honor, we were given no notice. They had an undercover officer in the jail talking to my client, gathering evidence to use against him without notice to counsel."

"What are you complaining about?" says Tannery.

"We're about to dismiss against your client based on information obtained by that agent. We are satisfied that your client was not involved in Dr. Epperson's death. As for the other"--he's talking about Jordan's murder-"it does seem that we've run into a wall."

Harry and I have dragged Tannery in here over his objections. Before we would put the final touches on the deal to dismiss in open

court, we wanted to know what the cops were holding in Epperson's death. The court agreed that this was material to our client's knowing waiver of his right to seek legal redress should they rearrest him on that charge later.

Confronted with this demand, there was no way Tannery could avoid letting it be known that the cops had engaged in some serious misconduct.

The blond Viking, it turns out, is an undercover cop. He had been planted in the jail to penetrate the gangs that thrive there. It is the reason Tate was so willing to deal. His man had penetrated more than the Aryan Brotherhood.

Harry and I had good cause to worry about Crone's lack of discretion. It seems he used the Viking to pass information to Tash, a list of numbers similar to those they had exchanged in front of Harry and me.

Tate had the same thought we did, except that he acted on it. He copied the numbers and sent them to military encryption experts. He made a profound discovery. The list represented genetic codes.

Before he got this information back, he had a brief meeting with Tash at his office the day we were there. The fact is, Aaron Tash turned tits up in the conference room. One suggestion that he might be indicted for conspiracy to commit murder, and all the trade secrets in the world went out the window. Tash gave Tate chapter and verse of everything they were working on.

It became apparent to Tate that there was nothing passing between the two men but work. This was the reason Tate was so willing to trade everything for civil immunity. He knew he couldn't get a conviction for Jordan, and from all indications, neither Crone nor Tash * knew anything about Epperson's death. :|| "You do understand the problem?" asks Coats. He's looking at Tannery.

"I didn't know myself, Your Honor, not until this morning."

"You're telling me that Mr. Tate didn't inform you? "Tannery doesn't want to name names, especially his boss's.

"It was known only at the highest levels." He's talking about the undercover agent in the jail.

"On a need-to-know basis. Otherwise, the man's life wouldn't have been worth salt."

"Nonetheless, he was an agent of the police talking to my client, gathering information from Dr. Crone out of my presence when the cops knew he was represented by counsel. A clear violation of his right to counsel. This was not some jailhouse snitch," I tell Coats.

"This was a sworn peace officer."

"It was a futile act, Mr. Tannery. What was your office hoping to accomplish?"

Tannery has no answer for the judges question.

"If you'd found something, you couldn't have used it," he says.

"I would have had to suppress it. Or maybe you weren't going to tell me?"

It's always the problem with evidence obtained illegally. If the cops don't mention it and they can find some independent source, even if that source is tainted by their illegal conduct, you may never know.

"Your office had an obligation to disclose it."

"I'm well aware, Mr. Madriani." Coats is steaming.

"You can't erect a Chinese wall inside your office and claim you didn't know," says the judge.

"I'll tell you one thing, we're not gonna be doing this deal. If Dr. Crone wants to sue your office, I'm gonna make sure he has every opportunity. If you want to dismiss, you do it with no stipulations," says Coats.

"I don't have the authority," says Tannery.

"Then you better call your office and get authority."

They stare each other down across the desk.

Harrys eyes are beginning to get misty, little sparkles, tiny dollar signs if you look closely--another civil case in the offing.

"What else did they find at the scene?" asks the judge.

"If you don't mind, I'm gonna let Lieutenant de Angelo cover

that," says Tannery. He's afraid he may say something rash to Coats and get himself thrown in the can for contempt.

Tannery heads toward the door to use the phone in the clerk's office to call Tate. I'd love to be a fly on the wall.

"You tell him if he has any questions to come on over and talk with me about it.

I'll be happy to discuss it with him," says Coats.

"I don't think that'll be necessary."

"Let's hope not," says the judge.

"Now to you." He looks at de Angelo, who by this time is chastened.

"They didn't find much, Your Honor. An impression in some mud. Appears to be a work boot. Large sole in the soft ground around one of the sprinkler heads in the park not too far from the cross. They haven't been able to match it up yet.

Probably belongs to one of the gardeners," he says.

"We're not sure."

He checks his notes.

"That's it. Everything else you got," he says.

In the early afternoon a contingent of jail guards escorts Crone through a tunnel under the street and into the criminal-courts building. Because the jury will not be in the box, our client wears orange jail overalls and is shackled with leg chains, hands cuffed to a chain around his waist. These are removed, and he is directed to the chair between Harry and me at the counsel table.

From the look on his face I can tell that he senses something has happened, but is not certain what.

The press is back in the front row. This has been reserved for them. A few of the reporters, because of overcrowding, have had to take seats in the back rows.

One of the journalists tries to worm his way into the jury box, which is empty, but the bailiff won't allow it.

There are the usual courthouse groupies, gadflies, most of them retired, with nothing better to do than to follow the doings in the courthouse. It's the best show in town.

There are people here from the university. I recognize one of the

vice chancellors, the woman in charge of legal affairs. She has been a regular.

Each time she has maintained her distance from Crone, never talking to him, taking notes, no doubt for briefings with her superiors back at the U. There are a couple of new faces in the front row, reporters from the police beat who are now picking up on the story of Crone's trial as a sidebar to Epperson's death. As Harry and I guessed, Tate is now calling for a coroner's inquest, trying to spread accountability. If the coroner blesses suicide, Tate and his office are off the hook.