Chapters 30 and 31, Bumble Bee Justice; and the Luck of the Highlighter

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CHAPTER THIRTY

Despite no chance of winning, Kelly wanted to go to trial.  Like Emily, he was charged with three deliveries of a tiny amount of cocaine, although his drug was crack cocaine, rather than powder.  Penny’s offer was to plead guilty to one count of delivery with a prison sentence of five years.  However, in all likelihood, Kelly would get the same sentence after a trial, even if he lost, because the judge could use a sentencing provision that treated all three deliveries as one.

“Fine,” I said, to him, “if you want a trial, you can have your trial.  Just don’t wear your clown suit.”

“What should I wear then?”

“Just dress like you were going to church.”

            On the morning of trial, Kelly arrived at court, wearing not a clown suit, but rather a bumble bee suit.  He had on black jeans, a black and yellow striped turtleneck, and bobbing silver antennae.

            “You’ve got to be kidding me,” I said as soon as I saw him.

            “What?”

            “What are you wearing?”

            “What I want to wear.”

            “Didn’t I tell you to dress like you were going to church?”

            “You didn’t say what kind of church.”

            “At least lose the antennae.”

            “I won’t,” he said, crossing his arms.

            I shook my head.  Maybe the jurors would take pity on this strange little man.

            We went in the courtroom and I set up my books on the table farthest from the jury.  Penny came in and stood for a moment while she looked at Kelly’s outfit.  “What kind of stunt do you think you’re trying to pull?” she hissed.

            “Just trying to add a little more surrealism to the situation,” I said, not willing to admit that the bumble bee outfit was not my idea. “You’re dressed like Mrs. Claus; my client is dressed like a bumble bee; we’re all going to participate in this process where the bumble bee ends up locked in a cage for five years for selling three rocks of crack.  And then we’re going to call it justice.”

            Penny raised her nose and walked to her table.  After a few minutes, Judge Black came out on the bench.  Luckily, Judge Black was irritated by few things and amused by many.

            “Ms. Hamilton, please instruct your client to remove his antennae.”

            I looked at Kelly.

            Kelly stood up.  “Your Honor, may I say something?”

            “Go ahead.”

            “This is my trial, where my freedom is at stake.  The Lord told me to wear this today, as a symbol of my religion and connection with nature.  It is my right of freedom of religion to wear this symbol during my trial.  If you do not allow this, you are violating my rights under the United States Constipation.”

            “You mean ‘Constitution,’” the judge said.

            “That’s what I said.”

            “All right, Mr. Campbell, I’ll allow you this one indulgence, but do not push me any further.”

            “Yes sir, your honor.”  Kelly looked at me as if to say, “Told you so.”

            Kelly had never really given me a straight answer about what his defense was, if anything.  Usually in this circumstance, I would not have my client testify—rather, I would focus on weaknesses in the state’s case and try to capitalize on the prosecutor’s inevitable mistakes.  However, in a criminal case, a defendant has a few decisions he alone can make, no matter what his lawyer tells him.  He can independently decide how to plead—guilty or not guilty; and he can decide whether to testify.  Thus, when Kelly told me emphatically that he wanted to testify, there was nothing I could do to stop him. 
After the undercover cops and the snitch had testified, I called Kelly to the stand.  Even though he had been adamant about wanting to testify, he now looked too petrified to speak.  He sat in the witness chair, a nervous, twitching bumble bee. 
To put him at ease, I asked, “Are you nervous, Kelly?” 
“Yes,” he squeaked. 
“Why are you nervous?” I asked, hoping to hear something like, “because I am afraid of going to prison.” 
Instead, he said, “Because I am a chronological liar.” “A what?” I asked before I could stop myself. “A chron-o-log-i-cal liar.  I’ve been diagnosed.  So I worry that I am not telling the truth, and I have to be extra careful that I am absolutely honest up here.” I thought it best to move on.  “Do you remember what you were doing on the date in question?”

            “Can I tell them about the chalice?”

            “Let’s get to that later.”

            We stumbled through the rest of his testimony, which was, to say the least, vague and amusing.  He never actually admitted or denied that he sold the crack, but mainly complained about the police, who had roughed him up when they arrested him.

            “Those Po-lice,” he said, “they subjected me to Won Ton Cruelty.”

            Once again, even though I knew better, I asked, “What?”

            “Won-Ton Cruelty.  Of the worst sort.  They violated my rights and now want to falsely imprison me.  But that’s why we have a jury system, to correct injustice.  I am asking this jury to do justice and find me not guilty,” he said, looking as dignified as a bumble bee could.

            Because I had nothing to say about the facts of Kelly’s case during closing argument, I talked about the “war on drugs” and the absurdity of this situation.  Penny objected about a hundred times, because lawyers are supposed to argue the facts of the case, not that the law is unfair or unwise.  I thought a few jurors were listening, though.  A middle-aged housewife nodded her head when I mentioned the expense of the investigation and prosecution, and a young pharmacist caught my eye when I spoke of our nation’s drug problem as a public health issue.  I didn’t fool myself about our chances, though.  I believed what I was saying, but it had nothing to do with Kelly’s guilt or innocence.

            Penny was particularly strident in her final argument, berating Kelly and myself for our obstructive techniques and tactics.  I wished I could have been as obstructionist as she portrayed me.

After our closing arguments, Judge Black instructed the jurors about the law and sent them to deliberate.  I directed Kelly to wait quietly in the hallway, and went back to the judge’s chambers to give Rodney, Judge Black’s bailiff, my telephone number.  Since Eddie Keller’s trial, I had become friendly with Rodney.  He wasn’t a friend, per se, but he was an occasional patron at Moezy’s.  He never sat at our table, but he always said hello, and we often exchanged courthouse gossip.

While I was giving Rodney my phone number, the lead detective of Kelly’s undercover investigation walked back to the judge’s chambers to get some coffee.

Rodney looked the detective up and down, disapprovingly.  “What are you doing busting people like this pathetic little guy?”  The detective stopped pouring his coffee mid-pour.  “You spent thousands of our tax dollars to bust this guy for selling a couple of crumbs of crack?  Jesus, I’ve scraped more residue off my credit card in the morning.”  I looked at Rodney, shocked.  I’d never heard anyone talk to a police officer this way before.  I wondered if he would be arrested.

“We all gotta make a living, Rodney,” the detective said with a chuckle, and left with his coffee.

“Do you always talk like that to police?” I asked in wonderment.

Rodney pointed to a clock on the wall.  Instead of telling the time, it had months, days, hours, minutes, and seconds.  “Retirement clock,” read the inscription beneath the numbers.  Rodney was apparently retiring in three months, ten days, five hours, 25 minutes, and 15 seconds.  “I guess I can say whatever is on my mind these days.”

“I guess you can,” I said, marveling at the freedom.

After three hours, the jury was still deliberating.  I hated it when jurors deliberated for more than an hour on a loser case, because it started to give me hope.  I started to think:  maybe they see the absurdity in sending this man to prison, not to mention the waste of money; maybe they’ll just find him not guilty in order to send a message to the prosecutor that they don’t want their tax dollars wasted.

After the fourth hour, the jury returned and found Kelly guilty of one of the three counts of delivery.  This verdict made absolutely no sense, because the evidence was the same on each of the three sales.  We proceeded immediately to sentencing, because Kelly, still in shock, wanted to be sent to the state prison to start serving his sentence as soon as possible.  The judge sentenced Kelly to five years, the lowest sentence he could legally impose.  As we sat at the counsel table, waiting for the jail transport officers to come, Kelly started to cry.

            “What about the kids at my camp?”  He let the tears drip down his face—a sad, crying bumble bee.

            “Maybe I can find some people to keep it going for you while you are locked up,” I said.

            “Will you go talk to the lady at the bank?”

            “Sure,” I said.

            “The one with the black hair?”

            “The one with the black hair.”

            The jail transport officers arrived and told Kelly to put his hands behind his back.

            “Do you want me to keep your antennae for you?”  I was more worried about Kelly’s personal safety at the jail than the safety of the antennae.

            “Sure,” he said, handing me the antennae.

            “I’ll keep them safe,” I said.

            “Thanks, Ms. Hamilton.”

            Back in my office, I mounted Kelly’s antennae on top of my computer monitor.  My phone rang, and I picked it up, too weary to bother to screen my calls.

“Is this Ms. Hamilton?” a male voice asked.

“Yes.”

“I’m Melvin Cohen, a juror from your trial today—the pharmacist.”

“Yes, I remember.”

“I just wanted to say I’m sorry for convicting your client.”

            “That’s all right,” I said, not meaning it.

            “We felt like we had to give a guilty verdict, due to all the evidence and everything, but it all seemed pretty stupid.  Like, why did we spend all that money on the cops and the trial for someone that was so obviously at the lowest level in the drug world?  That’s why we only convicted him of one count.”

            “If you think the trial was expensive, you should see how much prison will cost.”

            “He’s going to prison?  I thought he’d just get probation.”

            “No, he had two felonies from a couple of years ago, so the lowest sentence the judge could give him was five years.”

            “Five years?  Oh my God.  We wouldn’t have found him guilty if we’d known that.”

            “Yes, but I wasn’t allowed to tell you.”

            “Is there anything I can do?  Call the judge?  I know none of us wanted that man to go to prison over this.”

            “No, it’s all done now.”

            “Well, I just wanted you to know we all thought you did a good job.”

“Thanks.”

“Are you going to be a real lawyer some day?”

            “Some day,” I said, and hung up the phone.

CHAPTER THIRTY-ONE

I found Janet, Matthew, and Jose watching a re-run of Law and Order at the bar.

“Why are you guys watching that?” I asked.

“The episode had a gal with Battered Woman’s syndrome,” Jose said.  “I’ve got one of those cases now—I thought I’d see what the TV shows were doing with it.”

“I loved all the lawyer shows in law school,” I said, “but now I can’t take them.”

“My favorite part is when the defense attorney takes his client to meet with the prosecutor,” Janice said.

“Which would never happen in real life,” I said.

“Yeah, and then the client confesses to the prosecutor while his lawyer sits there and nods,” Jose said.  “Then the prosecutor says sternly, ‘You’d better tell your client to take the deal or I’m going to hammer him!’”

“Then the wimpy defense lawyer leans over to the client and whispers sideways, ‘You’re really screwed, you’d better do what the prosecutor says,’” Janice said.

“Don’t those shows have consultants or something?” Matthew asked.

“I checked the credits one time,” Jose said.  “It listed ‘legal consultants.’”

“What kind of lawyers do they consult?” Janice asked.  “Tax?  Estate Planning?”

“I’m in favor of stretching reality for dramatic effect,” I said.  “But they’re doing the opposite.  The reality of our job is way more entertaining than any of those shows.  They’re not only making criminal law unrealistic, they’re making it more boring.”

            The episode ended without any of us really watching it.  Our jobs had ruined TV for us, too.

“Where were you yesterday, Kate?” Matthew asked.

“Another blind date.  Make that my last blind date.”

“Did he have to blow into a tube to start his car?” Janice asked.

“I never should have told you about that.  No, this one actually started out great.  The guy was taller than me, was maybe 37, but still had all of his hair.  He was funny, too.  I actually felt a little chemistry.  Until the end of the date, when he told me, ‘Now don’t get mad, but I have to tell you something.’”

“Married?” Jose said.

“Yep.  Legally separated, but still married.”

“Kids?” Janice asked.

“Three.”

“How old?” Matthew asked.

“Seventeen, fifteen, and twelve.”

“You could marry him and be a grandmother in a couple of years,” Jose said.

“I think I’m going to give up on love,” I said.  “Can I borrow your Gold Card, Janice?”

            I checked my office mail box, and saw a fax addressed to me.  It was a drug screen report.  My heart pounded as I looked for the name.  Emily Knight.  I scanned down the page to the results.  There, in columns, were listed all of the drugs the lab tested for.  Beside each drug name, was the abbreviation, “NEG.”  Thank God, I thought, almost beginning to celebrate, but then I noticed something further down the page had been highlighted in neon yellow.  The highlighted words read:  “Creatinine: 7, out-of-range.”

Creatinine?  What was that?  And why was it out-of-range?

            I called Rob at the urinalysis unit.  “Just out of curiosity, what is creatinine?”

            “Those are the solids in your urine.”

            “So what does it mean when the lab report says ‘out-of-range’?”

            “On every drug screen, the lab tests not only for drugs, but also to determine if the urine is too diluted.”

“Why would they do that?”

“Sometimes people will try to hyper-hydrate their urine in order to test negative.  That is, the more watered down the urine is, the less concentrated any evidence of drugs will be.  Also, if a person is testing daily, the concentration of solids in their urine can go up or down.  One day they may test negative for marijuana, and the next positive.  It doesn’t necessarily mean they used pot on the second day, if their urine is more concentrated that day.”

            “Are there any legitimate reasons a person’s urine might be out-of-range?”

“Sure.  Some people just drink more water than others.”

            “Like when I did this Weight Watchers thing?  I had to drink about a million glasses of water a day?”

            “Yes,” he said, “that would make your urine more diluted.”

            “OK,” I said, feeling a little better.  “What would the number ‘7’ mean next to ‘out-of-range’ on a drug test?”

            “Seven?” he asked.  “That would mean it is the most diluted urine I have ever heard of.”

            “Most ever?”

            “Most ever.”

            I put my head down on my desk.  Goddammit, now Emily was going to prison.  And all because I told her to drink a lot of water.  Well, not all because of me, but still …  When I opened my eyes, I noticed my head was on Emily’s lab report.  I held my head still, not letting my eyes focus on the test results.  The yellow, highlighted creatinine level blurred in my vision.

            I heard a noise and looked up.

“Hi, I’m Bill,” Bill said.

            “I’m Kate.  How long have you been sitting there?”

            “A while.  You seem sad.”

            “Creatinine out-of-range,” I said.

            “You know, that shade of highlighting won’t show up on a photo copy.”

            I looked at the piece of paper.  At the top of the paper was the list of drugs with “NEG” next to all of them.  My eyes had gone immediately to “Creatinine” at the bottom of the page because it had been highlighted.  The highlighted language, however, had the appearance of boilerplate.  “Creatinine—7—out of range” was in small print at the bottom of the page.  I wondered if I would have noticed the creatinine level if it hadn’t been highlighted.

            I walked purposefully down the hall to the copy room, lab results held gingerly in front of me.  I opened the machine’s cover and put the report face-down.  I pressed ‘copy,’ and watched the bright light scan the page.  Afraid to look, I retrieved the copy from the bin.  I waited a few seconds, and then looked at it.  The highlighting had disappeared—and not in that grainy way highlighting sometimes still shows on copies.  The highlighting had disappeared completely, without a trace.

            Because I didn’t know what the fax machine would do to the highlighting, I faxed the copy, rather than the original, to Penny.  Obviously, I wouldn’t give her the original in any event; I would have to make her a copy.  While I couldn’t change anything on the document, I didn’t think it was my duty to re-highlight Penny’s copy in order to bring the creatinine level to her attention.  The creatinine levels were still there, they just weren’t glowing.

            I faxed the copy, and held my breath.  A woman’s future hung in the balance, depending on whether a certain bitchy prosecutor noticed “creatinine out-of-range” at the bottom of the page.

An hour later, I saw Penny’s name on caller ID.  Taking a deep breath, I picked up the phone, trying not to sound anxious.  “Hey,” I said.

            “Hey.  Got Emily’s UA results.  Shall I set a plea?”

            “Oh, sure,” I said, casually.

            “When’s best for you?”

            “Oh, the sooner the better,” I said.

An hour later, I saw Penny’s name on caller ID.  I continued to hold my breath up to and through Emily’s guilty plea.  I was careful to tell the judge that Emily had stopped using “cocaine,” rather than “drugs.”  The judge commended her on her rehabilitation, and we all left the courtroom feeling like we had had a big group hug.  I was just glad it was over without Emily dying from drinking too much water or me being disbarred.

Want to read more?  New chapters coming this Friday, June 22, 2012!