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If convicted of first-degree rape, Mr. Fricke would get about 10 years in prison. After my interview with Tiffany, I asked Bradley if he’d consider a plea bargain of second-degree rape. Second degree rape would carry five years. I knew Burt didn’t want a plea bargain, but maybe I could talk some sense into him.
I was encouraged when, rather than outright rejecting my offer, Bradley agreed to consider it. “All right, I’ll think about it,” he said, sounding distracted and harassed.
A few days later, Bradley called me. “OK,” he said, “we can do the second rape. Tiffany is OK with it. She doesn’t really want a trial.”
“Great,” I said, hoping that this would make the case go away. I couldn’t help thinking that it was one messed-up system that would give the same sentence for selling a rock of crack as for raping a girl.
Mr. Fricke came to my office the following day.
“I talked to Tiffany,” I said. “I’m not going to lie to you. You’ve got some problems in this case.”
“No I don’t. I’m innocent.”
“Even an innocent person can have problems in a criminal case.”
“For one thing, Tiffany. She has an air of credibility—she’s not out to hang you. She didn’t even want to prosecute you. When she tells the story of the alleged rape, she’s pretty convincing.”
“You women are all alike.”
“There will probably be some women on your jury.”
“They never should have changed that rule.”
“All right, second problem. When the police interviewed you, you told them that you didn’t remember the night at all because you had too much to drink. You also told them that you thought Tiffany was a good girl and that she wouldn’t lie about something like that.”
“You’re not trying to help me. Who pays you? The prosecutors’ office?”
“What’s your defense?”
“How are we going to show this innocence?”
“That’s your job to figure out.”
“Well, Tiffany is going to come in and testify that you raped her. The police are going to come in and say that when they contacted you, you told them you had a black out that night, and that Tiffany wouldn’t lie.”
“They don’t have any evidence. There’s no DNA, no pubic hairs, nothing. Just her word.”
“Sometimes that’s enough.”
“I never would have done that.”
“I wish you had told the police that. Look, they’re offering you a rape two with five years. I think you should take it.”
I sensed that no amount of arm twisting would get him to change his mind. “Fine,” I said, “but don’t say I didn’t warn you.”
The week before Mr. Fricke’s trial, Bradley called me every day, hounding me about the trial.
“Why won’t he take the deal? I offered him a good deal,” Bradley whined.
“I know, Bradley. It’s not my decision, though.”
Bradley’s phone calls became persistent. “Kate, Kate, Kate. Why do you make things so hard on yourself? Your client should take the deal.”
“Look, I agree that your offer is reasonable. But I can’t force him to take it.”
“You are committing malpractice by not having him take the deal.”
“Why don’t you let me worry about that?”
Bradley was so insistent about the deal that I was starting to wonder if he had problems with his case. Something didn’t feel right, but I couldn’t figure out what it was.
Mr. Fricke showed up for his first day of trial wearing a black western-style shirt, pressed, black jeans, and a belt with a buckle the size of a baked potato. He definitely looked like a rapist.
“You can’t wear that,” I told him as soon as I saw him.
“Why not? It’s my dress-up clothes.”
“Yes, but you look like you’re going to go get drunk, ride a mechanical bull, and rape someone.”
I left Mr. Fricke in my office while I went in search of non-rapist clothing.
“Matthew, give me your shirt.”
“And your belt.”
“But I have court this morning.”
“I don’t have time to argue with you, Matthew.” Mr. Fricke’s jury trial would start in 30 minutes. “If you don’t give me your shirt and belt now, I’m going to make you give me your pants, too.”
Matthew quickly unbuttoned his shirt and belt. Mr. Fricke protested as he put Matthew’s clothes on, but at least did what I said.
Bradley called Tiffany to testify the second day of trial. She was dressed in every-day clothes, rather than the long dress and opaque stockings suggested to witnesses by the prosecutors’ office. She walked stiffly to the witness stand, looked at Judge Stewart with her hard eyes, and promised to tell the truth.
Tiffany answered most of Bradley’s questions matter-of-factly. When he turned her attention to the night of the rape, however, her demeanor changed—she started breathing faster, her voice became high-pitched, and she struggled to keep control.
I had seen a lot of witnesses feign emotion on the witness stand. This was the real thing.
By the time Bradley got to the actual rape, Tiffany was on the verge of crying, but fighting to maintain her composure.
“Tell me, Miss Greene,” Bradley said, “at some point did Mr. Fricke ask you to change locations?”
“Could you please describe that?”
“He asked me to go with him to the back bedroom. He said there was something he wanted to talk about.”
“Did you go with him?”
“Did you worry about going to a bedroom with a married man?”
“No. Burt was like a friend. We talked about everything.”
“What happened when you got into the bedroom?”
“He asked me to sit on the bed.”
“Then what happened?”
“He pushed me onto my back.”
“What did you do?”
“Tried to get up.”
“What did he do?”
“Pushed me back down.”
“What happened next?”
“I asked him to please stop.”
“Did he stop?”
“No. He forced me down.”
“Then what happened?”
“He reached up my skirt and pulled down my panties.”
“Did you see his penis?”
“I can’t remember.”
“Do you remember telling Officer Meyers that Burt unzipped his pants and you saw his penis?
“What do you remember happening next?”
“I can’t remember. It’s all blank now.”
“Could you please try to remember?”
At that moment, Tiffany let go of her barely-maintained control. Loudly, she sobbed, “I don’t want to remember!” Her cry filled the courtroom, reaching every corner, demanding attention.
I looked down at my yellow notepad, unable to look at her. I wished for all the world that I could find an “eject” button that would jettison my body from the courtroom.
Bradley tried several more times to get Tiffany to testify that Burt raped her. She continued to sob. The judge offered to take a recess to allow her to regain her composure. Tiffany refused this, as well.
“I don’t remember anything, OK? That’s my final testimony.”
After instructing her bailiff to supply Tiffany with tissue, the judge turned to Bradley. “Mr. Boldham, do you have any additional witnesses?”
“No, your honor, the state rests.”
I stood up. “Ms. Hamilton?” the judge asked.
I moved the court to dismiss the charge based on the fact that the state had failed to establish a prima facie case of rape. I knew that Bradley would move to amend the charge to attempted rape, but at least attempted rape carried less prison time.
“Your response, Mr Boldham?” the judge asked.
I looked over at Bradley, who was standing rigidly with a blank look on his face. The judge was waiting for his motion to amend the charge to attempted rape.
“Mr. Boldham,” Judge Stewart finally said. “Do you have a motion?”
“Yes, your honor,” he said, looking down. “I move to dismiss.”
Tiffany sat very still in the witness stand, unsure what was happening.
Finally, the judge said, “Miss Greene, you may step down from the stand. The case has been dismissed.”
Tiffany gasped and began crying again. She slowly stepped down from the witness stand and walked toward the courtroom doors. As she passed by me, she whispered, “I hate you.”
Mr. Fricke’s trial had a strange calming effect on me. After his case, I knew I would be able to handle any type of charge. Despite my bravado, I had worried whether I would have the guts to handle a horrible case. Now I knew. I might not like it, but I could do it.
I was sitting by myself at Moezy’s, the first of our group to arrive that day. I was blankly staring into space when Matthew and José slid in on either side of me. Their simultaneous arrival made me jump out of my reverie.
“What were you thinking about?” José asked. “The killing and torture of Gordon? Or maybe Penny?”
“No, I was thinking that I’m going to be OK to handle the grosser cases. After Fricke’s case, I think I can do anything.”
“I just got another murder case today,” Matthew said. “That’s the third one this year. I don’t know how I’m going to keep up.”
“Yeah, me too,” José said. “I’ve got three homicides going right now.”
“That’s funny,” I said, “I don’t have any murder cases.”
José and Matthew exchanged glances.
“What?” I asked.
Matthew looked down at his coaster.
“We wondered when you were going to notice,” José said.
“We didn’t want to tell you, because we were afraid it would send you over the edge.” José was stalling.
“Tell me what.”
“Gordon doesn’t think women should handle serious cases. Especially violent ones.”
“You’ve got to be kidding me,” I said. “That sort of thing doesn’t happen anymore.”
“I swear, Kate, sometimes it’s not Matthew who is the naïve one. Look at who has all the murder cases in the office. All men. And since Maxine left, you’re the only chick in felonies. Gordon thinks women are better suited to juvenile court and termination of parental rights.”
“But I am in felonies.”
“Yes, but you’re just handling property, drugs, and sex—chick crimes.”
“That’s not right.”
José and Matthew tried to talk me out of it, but the next morning, I went directly to Gordon’s office. Without even first checking my appearance, I walked in, unannounced.
“I want to have a homicide case,” I said.
“Well, good morning, Kate, come in. How nice to see you,” Gordon said, leaning back in his chair. “How can I help you?”
“I want to have a homicide case.”
“Kate, homicide cases involve complicated legal issues and require a considerable amount of skill.”
I put my hands on my hips. “I’m not saying I’m any more qualified than anyone else around here, but if José and Matthew can do homicides, then so can I.”
“I’m afraid I just don’t believe you are ready to handle a homicide.”
“Then I guess we’re going to have to talk about Harrell,” I said quietly. Over a decade earlier, Gordon had represented Phineas Harrell, who had been charged with a capitol offense, and was eventually sentenced to death. Death-penalty cases were rare in Olympic County; most people, or most attorneys at least, were aware that Harrell was on death row; few, however, remembered that Gordon Elliott had been Harrell’s attorney.
I only knew that Gordon had been Harrell’s lawyer because Bill had been sitting in my office when the news came out. “Hey, Bill, something awesome has happened!” I had decided that I liked having Bill in my office—he was quiet most of the time, but it was also nice to have someone to talk to. “Look at this.” I turned my computer screen toward him, “Harrell’s death sentence has been reversed! We should have a party and celebrate!”
Bill skimmed the news article about the reversal. “Oh, I don’t think there’s going to be any parties for this one—not officially, anyway.”
“But why not? Someone got off of death row! We’ve stopped the state from making murderers out of all of us!”
“Why was the death sentence overturned?”
“Hmmm … well, here it says something about not having a mental health evaluation for the penalty phase. But who cares why it was reversed? No death penalty is no death penalty, right?”
“Just keep reading.”
“OK, so let’s see, his lawyer should have had an expert evaluate the defendant, and the lawyer didn’t do that. So it was ineffective assistance of counsel? That seems like a crazy way to save your client’s life—by doing such a bad job, that the courts won’t let the state kill your guy. But still—no death is no death, right?”
“Right. But you might want to ask who Harrell’s lawyer was.”
“Just tell me, Bill.”
“It will be interesting to see what happens with that information,” Bill said, and then closed his eyes to resume his nap.
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