Try Try Again (8 page)

The two months prior to the trial of Charley Dukes went by
with only a few notable events:

.. Charley Dukes remained in jail, and was formally
indicted. The effort to find a conspiracy behind him was on the back burner,
because there was no relevant evidence and Charley wasn’t talking, beyond his
final ‘confession.’ Chief Gardner insisted Dukes had acted alone, out of a
false sense of something or other. Charley disliked being in the City-County
jail. Once he was back in a real prison, he considered, at least the meals
would be on time.

.. Studying the evidence, Brent Nielsen, the State’s
Attorney for Grantwood County, decided Charley Dukes could readily be convicted
of second-degree murder, but he would try for first-degree with a fair chance
of success. And he was going to seek the death penalty in a case that could
make his career. He decided not to tell anyone yet he was going to go for
death. There was no ethical requirement – not quite – to inform the defense in
advance. Would he mention the death penalty in his opening statement, or wait
for closing arguments? Probably the former, to avoid a possible appeal, even
though he would rather have waited.

.. Olivia Saunders had several meetings with a client, a
manufacturer of outdoors equipment including tent pegs, with regard to suing a
different manufacturer for infringement of its tent-peg patent. A patent attorney
was working with her, and the two did not get along particularly well.

.. Judge Harriet DuCasse was assigned to hear the case.
Judge DuCasse was known, behind her back, as ‘The Duchess,’ a compliment to her
demeanor, airs, and authoritatively thin lips.

.. Jillian Hall had another fight with her husband Roger, as
a result of which Roger had moved to a cheap hotel in nearby Lancaster. Roger
asked if he could come back just to shower, since the cheap hotel had plumbing issues.
Jill had laughed at him, but let him come back. After Roger had showered, the
two held a spontaneous “truth in love” meeting that went south very quickly.

.. JTJ told her junior college Media Techniques class they
would be filming the Dukes trial as their major assignment that semester.
Having made the commitment out of whole cloth, she was determined to make it
happen. Whatever arms or other body parts she had to twist.

.. Sybille Haskin was only slightly concerned about the
trial. It was obvious Charley knew nothing that could involve her.

The Legal Aid society had asked to have their young attorney
back, and their wish was granted. A bar association clerk looked up the
pro-bono list, firms that had volunteered to contribute an attorney. The legal
talent required by law was sifted and sorted and expertly evaluated, and
finally Holmes & Epperly, P.C., were tagged at random with this particular
pro bono. The clerk duly notified the firm their services would be required, to
provide counsel to one Charley Wayne Dukes, accused of murder in the first
degree.

In the course of legal matters where no great amount of
money is at stake, there is a substantial amount of buck-passing, not-me’s, I’m
too busy’s, and why don’t you pick on the other guy this time’s. This
conversation, with a few variations, played out among the partners and senior
staff at Holmes & Epperly that evening.

Martin F. Holmes and Belinda Chase Epperly got their heads
together and chose an attorney from their ranks to donate as defense counsel.
There was little dispute when the name of Olivia Saunders was bruited: she was
talented, knew her law, and could argue well. But to clients, her manner had
not exuded comfort, or strength, and at times even belied the real competence
she had. Perfect to defend a guilty criminal who couldn’t pay anything and
couldn’t say no to whatever counsel walked in the door.

Epperly gave her junior associate the news. “Good news and
bad news, Ms. Saunders.”

Liv looked up from her desk, where she’d been pretending to
be busy and wondering what the hell she could charge to today and tomorrow. And
that “Ms. Saunders”: The partners called everyone else in the firm by their
first names, but they called Liv, ‘Ms. Saunders.’ She wondered how long she was
going to last at Holmes & Epperly; not long, she figured. But perhaps …

“Yes?” She looked up at Epperly, with what she hoped was
eagerness mixed with friendliness.

“A trial, and it’s all yours. Pro bono.”

One up, one down. Pro bonos were for attorneys who didn’t
have a client account to bill to. But her own case? That sounded good. Even if.

“What’s the case?”

“You know Congressman Barnes, who was shot in town here?”

“Certainly. The suspect was picked up within two or three
hours. And he might not be guilty?”

“Oh he’s guilty all right. Confessed right away and he’s
never retracted. The County shrink said he wasn’t wacko or anything, just not
very bright.”

“So – what can we do for him?”

“Not much. Just try to get him twenty years, maybe less if
you can. And if you can’t, then go for life instead of the needle.”

“No problem; there’ve been only four executions in…”

“I know. Life’s almost automatic instead of the death
penalty here. But we can make out like we saved his worthless ass, OK? That’s
fair publicity. Besides, a prosecutor who gets a capital conviction here, will
be headlines for years – very tempting, don’t you think? So they’ll be shooting
high.”

“Ah – OK. Who’s prosecuting?”

Epperly looked at her notes. “Brent Nielsen. He’s doing it
himself.”

Saunders sucked a sharp breath. Brent was very good.

Epperly misunderstood the sound. “Brent’s a good prosecutor,
but he’s easy to get along with. He won’t make it tough for you – as long as he
wins the case and you don’t.”

“Which he will?”

“Absolutely. We’re helping the wheels of justice run over a
killer here, one who never had much of a life anyway.”

“Certainly, Ms. Epperly. Glad to do it. I’ll speak with Brent
right away.”

“No ‘Ms. Epperly’ needed, Ms. Saunders; we’re informal here,
just call me Belinda.” Belinda Chase Epperly turned and strode out of the
juniors’ cube farm.

Liv’s thin fingers played on the computer, calling up one
news story after another about the killer of Ezra Barnes, about his desperate
attempts to explain his motives, each more implausible than the last.

He could be unstable. Could have diminished responsibility.
Maybe he didn’t know what he was doing at the time he was doing it. All very
chancy. Actual innocence? Apparently not a chance. OK, her aim would be to
plead him for manslaughter, settle for second degree, try to limit the sentence
to as few years as possible. Not that Liv wanted Dukes back on the street, but a
defense client deserved to get the lightest punishment a judge and jury would
inflict. Or rather, defense counsel had an obligation to work for that outcome,
results not guaranteed.

It had been a while since she’d been in front of a jury. How
would she look to the jurors? She stood and walked to the ladies’ room, looked
in the floor-to-ceiling mirrors. Tall, slim, hair a little too long, a little
too stiff but that could be fixed. At forty-one, no grey hairs yet. Firm thin
face, her mother had called it a “no-nonsense face,” not really a compliment: a
face that might not be attractive, that is, might not attract the kind of men
she might like; men her mother believed Liv deserved, given her intelligence
and dedication to her work.

Liv had tolerated her mother’s unintentional sexism, but
knew she’d been right. And her life had turned out that way: no serious men, no
close friends male or female. A succession of jobs she’d performed well at but
she hadn’t inspired confidence from her management, nor trust from her clients.

Liv phoned Nielsen, reached his voicemail, left a message
that she’d be over as soon as she’d reviewed the case; please call back.

Twenty minutes later, Brent got Liv’s message.

Brent Nielsen, State’s Attorney for Grantwood County, had
been following the case closely, because his office prosecuted those accused of
any local non-Federal offense. There hadn’t been a good juicy murder there for
at least seven years, and none had approached anywhere near the size, in terms
of publicity, as the Barnes killing.

Freshly pumped up and showered from an hour in the staff
gym, Brent leaned back in his chair, put his hands behind his full head of
light brown hair. Yes, he considered, he’d be prosecuting this one himself.
Then run for Congress? Barnes’ vacant House seat seemed sure to fall to the
other party, to an amateur politician who should be easy to topple in two
years’ time. Yes; two years.

Then he considered the appointment of Olivia Saunders, as
Dukes’ defense counsel. She seemed like a capable lawyer, but was going nowhere
in her firm. Now she’s trying to defend a confessed murderer? May be pro bono,
but there could be lots of publicity. For Brent himself anyway, and perhaps for
her too. Maybe they could strike a deal. Brent called back, told her to come on
by when she was ready.

Two hours after Liv’s arrival, Brent gave a “we’re done
here” exhale. “So that’s what we have,” he said. “I was glad to share it with
you – this time.”

“So there’s no doubt?”

“No doubt at all. Just think about it: lengthy rap sheet
with three gun possessions. About thirty-five witnesses who were close enough
to see Charley Wayne Dukes draw and fire. A woman who had her Chevy Nova
hijacked and ID’d Dukes in a lineup later: the governor’s mother, no less. A
trooper stop of that car later in the day, with Dukes inside. A confession that
wasn’t coerced, or even suggested to him; he yelled ‘I killed the politician!’
even before the troopers had a chance to tell him he was under arrest. But then
he was Miranda’d and confessed again. So no, no doubt at all.”

“’The politician’? Isn’t that odd?”

“How do you mean?”

“Not ‘I killed Barnes,’ or ‘I killed the Congressman,’ or
even ‘I killed that pinko liberal’?”

“Ah – so what?” said Brent, a little testily.

“Maybe nothing,” Liv said, “but maybe something.”

“What are you thinking?”

“I don’t know – yet.” After a pause, she asked “Has the
trial date been set? Who’s the judge?”

“Not yet, but probably soon since there are – so far – no pre-trial
motions,” he looked at her sharply, “that I expect. DuCasse will be on the
bench.”

Liv gave a ‘cringe’ expression.

“Yeah,” said Brent, “the ‘Duchess.’ Watch your objections or
she’ll ram them down your throat.”

There was a moment of profound silence as Liv and Brent
contemplated dealing with a bench occupied by The Honorable, Ms. Harriet
DuCasse.

Then Liv said “Do you have a photo of Dukes? I’d like to
have one.” Brent gave her a photo. Blurred but usable.

“One more thing,” she said. “You’re not going to recommend
capital punishment, are you?”

Brent smiled. “Not likely.”

Liv thanked Brent and left.

Brent thought it over. No, he hadn’t actually lied: seeking
the death penalty hadn’t been likely, for the past half-century, in Pennsylvania.
But that’s what he was planning to do. Too bad to have to blindside her. Could
be a really attractive woman, if she’d…. Or maybe in private she was different.

His mind wandered. Guessed she’s about five-six years older
than he was; hard to tell.
Wonder if
… Brent’s thoughts wandered farther
away from a prosecutor’s normal line of work, then came back. He picked up a
pile of papers from his inbox. He guessed he’d never find out if she … O hell,
another subpoena.

The next day, Liv drove to the Grantwood County jail. In
contrast to some other courthouse-jail facilities, this one was a tall, modern,
but no-nonsense building with people bustling in and out – mostly fellow
lawyers, judging by their use of neckties or pantsuits. She showed her ID, was
admitted, and asked to see her client.

After waiting in a small room for a time she thought was too
long, Charley Dukes arrived accompanied by six guards. She looked up at the
entourage.

“Murder suspect, lady. Important case. Can’t be out of our
sight. New rule.”

“Well then look through the window. There, the little one in
the door. Or you could go around outside and use a periscope. My client and I
are entitled to privacy.”

“We’ll stand back,” the burliest of the six answered.

“Here?” She gestured at the twelve by twelve room. “That’s
not good enough. Should I call someone?” (Someone more important than he was,
she meant.)

Burleyman made a call.

“OK,” he said after a few minutes, “we’re all going to one
of the rec rooms. You’ll have to stand up there - I trust that will be
satisfactory,” he said with a smirk.

Unwilling to complain further, she nodded and followed the
parade of three jailers, the defendant, three more jailers preventing the
otherwise inevitable bloody jailbreak, and herself.

They reached the rec room and stood, Liv and Charley near
one wall, the guards on the other side of the room.

“Charles Duke?”

“Charley.”

“Well, let’s keep it formal here.”

“No, my mom named me ‘Charley,’ not ‘Charles’. She told me
it sounded friendlier.”

“Is she living?”

“No.” he said.

“Well, I suppose it does sound friendlier. Look, my name is Olivia
Saunders, and you can call me “Ms. Saunders,” or “Liv,” your choice. I’m your
court-appointed attorney. They shook hands, Charley with no enthusiasm. He looked
down throughout the interview, and to Liv his posture and voice were those of a
guilty man just waiting for his punishment, which was pretty much the way it
was. She tried to avoid pre-judging him, but that wasn’t possible for her.

“Do you know why you’re here?”

“I shot a man. A politician. I guess he’s dead.”