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CHAPTER FIFTY-FOUR
As I tried to wrap up my
felony case load, I struggled to squeeze in preparation for Mark Holland’s
trial. I wasn’t being assigned any new clients,
but I needed to resolve my remaining cases.
Unfortunately, due to extremely bad settlement offers, it seemed that I
could only resolve my cases by going to trial.
Many of the trials were simple—possession of drugs, possession of stolen
property, taking a motor vehicle without permission—while a few were more
complex—robbery, burglary, drug delivery.
I was still on the trial treadmill, and someone kept turning up the
speed.
One night, about half-way
through my remaining trials, I woke up at three a.m., my heart beating fast
from a disturbingly strange dream. I had
been standing in front of a jury, dressed in only a bra, panties, and beige
half-slip. On a dark wood suit butler
near the jury box hung the black wool crepe suit I had purchased a couple of
weeks earlier. In my dream, I struggled
to explain my appearance to the conservative community members who stared at me
from the jury box.
“I know I am standing
here in front of you in my underwear,” I told the frowning jurors, “but if you
will look over to the side, you will see I have a very attractive suit that I
could wear.” I noticed that I was
wearing my glasses. I hoped they lent me
a modicum of respectability. “Notice the
quality material,” I said, wheeling the suit butler to the jury box. “And I love these little pink and black
flowers on the silk blouse.” I removed
the jacket to show the blouse. “So you
see, if I were wearing the suit, I would probably look quite nice.”
I turned and saw Mark
Holland sitting at the counsel table, his face pressed into his hands. What the hell was I doing in my underwear? Just then, Judge Piddle came into the
courtroom. I watched as his expression
changed from neutrality to rage. He
raised a finger at me in anger, and just as his mouth opened, I woke up, alarmed
and disoriented.
I got out of bed and went
to my kitchen table, where I had a stack of yellow legal pads. I had heard of people having dreams where
they were awkwardly naked or in their underwear, but had never had such a dream
myself. I had never been particularly modest,
and I had always figured that people who had naked dreams must have nudity
issues. But here I was, dreaming about
wearing only my underwear in Mark Holland’s trial. While I lacked the psychological training to
know exactly what this dream said about my battered mental state, I guessed it
at least meant that I was experiencing stress about Mark’s upcoming trial.
To ease my subconscious, I
made a list of the trials I had scheduled prior to my transfer to
juvenile. There was a drug possession
case, a burglary, an assault, and then Mark’s case.
I considered the status
of my investigation of Mark’s vehicular homicide charge. The court had authorized funds for an accident
reconstructionist. I had hired Hank
Brennan, a retired state trooper, to help me determine if we could challenge
the state’s estimation of Mark’s speed. During
his career as a trooper, Hank had investigated vehicular assault and homicide
cases for the state. He now worked
independently, investigating traffic accidents for insurance companies and the
occasional criminal defendant.
In Mark’s case, Hank was
frustrated by the shoddy preservation of the accident scene. In most vehicular homicide cases, police
would spend hours documenting and cataloging every inch of the accident
scene. Because Mark’s accident had
initially appeared routine, however, the police had only taken quick
measurements of the skid marks and a couple of photographs. Compounding the fact that the initial
documentation of evidence had been minimal, the state had waited six months to
file the charges against Mark. Skid mark
evidence will remain on asphalt for some time.
It will not last for six months.
By the time I was assigned to be Mark’s lawyer, the skid marks had
vanished. I hoped Hank’s status as an
ex-cop would lend our case credibility when we criticized the state’s work as
“sloppy.”
“Talk to Hank,” I wrote
on my list. I wanted to make sure he had
prepared any exhibits that he planned to use in the trial. I also needed to nail him down on how fast he
thought Mark had been driving. I had
asked him this question many times, but had never gotten a straight
answer. I didn’t know if he was hiding
something he didn’t want to tell me—that is, that he too thought Mark was going
over 50 mph—or if he just didn’t know.
In order to prepare him for his cross-examination, I needed to know what
he did know, what he didn’t know, and what he couldn’t know.
I still needed to
interview Dr. Robinson, the pathologist.
I had read and re-read her autopsy report and it made little sense to
me. I wrote “Interview Pathologist” on the
yellow pad. I looked at the clock. It was 5:00 a.m. I could still get a little sleep. I crawled back into bed, placing the yellow
pad nearby on the floor. I stared at the
ceiling, watching the light creep into my room.
At 6:30, I got out of bed.
Two weeks before Mark’s
trial, I managed to schedule the interview with Dr. Robinson the same day that
I finished a first-degree burglary trial. I assumed the interview would be routine, but
I spent my lunch hour reviewing the autopsy report and photographs and all of
the medical records. The photos ruined
my lunch. I thought I might have
discovered the next diet craze. I could sell
packets of pictures of dead people’s brains and guts with instructions to view
the photos before each meal. I’ve heard
that a person can become accustomed to anything; I knew better.
I
still didn’t understand the autopsy report, even with a medical
dictionary. The report indicated
something about surgery being performed on a hernia and that Mr. Smith died of “acute
peritonitis.” I had no idea what this
meant.
Even
though I liked Dr. Robinson for her competency and neutrality, she treated me
with the same condescension with which most doctors treated lawyers. It probably didn’t help that I didn’t try to
make my questions seem intelligent.
“Could
you please tell me what this report means without all the technical medical
words?”
Her
controlled expression seemed practiced. “Mr.
Smith was admitted to the emergency room at 1:30, shortly after the
accident. Even though he was elderly, he
didn’t appear to be in great distress.
Mainly just bruising from the seat belt.
As a precaution, however, x-rays were done. The emergency doctors saw a large hernia, and
after consulting with the family, decided to explore what was wrong by surgery. Once the doctors were inside Mr. Smith’s
chest cavity, they realized the hernia was pre-existing. Since they had already opened him up, they went
ahead and repaired the hernia.”
“Are
you saying the doctors did emergency surgery to fix a hernia that Mr. Smith had
before the accident?”
“Basically,
yes.”
“I
don’t get it. How did he die?”
“The
doctors closed him up, but then nine days later his abdominal cavity became
infected. He died from this infection.”
“He
died from an infection? Where did that
come from?”
“That’s
the 60,000 dollar question. I spent a
considerable amount of time trying to find the source of the infection, with no
result. That’s why my report lists the
cause of death as ‘acute peritonitis from an unknown source.’”
“But
what if the infection came from the hospital?”
“It
very well could have.”
“So
why do you list the cause of death as traffic-related?”
“He
wouldn’t have been in the hospital but for the accident. Any surgery can have unforeseen consequences.”
“But
it sounds like the surgery wasn’t even necessary.”
“Not
in hindsight, but it was an emergency room.”
“I
wonder whether they should have done that surgery in the first place.”
For
a second, she let her gaze drop. She
looked back up at me. “I suppose if I
were you, I would want to consult with an emergency room doctor to determine if
the surgery was prudent.”
“Thanks,
Doctor,” I said, shaking her hand as I left. Wonderful, I thought. Trial was 14 days away—I had two weeks to
figure out if the hospital had committed medical malpractice.
I scheduled telephone
interviews—the best I could do with such short notice—with the emergency room doctors
on Wednesday afternoon.
“Good
afternoon, Dr. Baum. My name is Kate
Hamilton, and I’m calling you about the surgery you performed on Theodore Smith.”
“Do
you have a release of information signed by Mr. Smith?”
“No. I’m afraid Mr. Smith is deceased, so he won’t
be able to sign a release.”
“I’ll
still need one.”
“This
is regarding a criminal trial where the cause of Mr. Smith’s death is an issue.”
“The records are still confidential;
you’ll have to get a release from the family or a court order if you want to
talk to me about Mr. Smith.”
“Fine. I’ll be in touch.” Damn, why hadn’t I thought of confidentiality?
I
called Frank. “I need your help,” I
said, trying to sound polite through gritted teeth. I hated asking Frank for anything. “I’ve run into some last-minute investigation
I need to do on Holland. It’s about the
cause of death. I scheduled interviews
with the emergency room doctors, but they won’t talk to me without a release of
information from Mr. Smith. Which would
be difficult for me to get.”
“You
could ask for his family’s consent.”
“I
tried. They hung up the phone as soon as
I said my name.”
“It
is proper for the doctors to protect Mr. Smith’s privacy interests.”
“You
know that confidentiality doesn’t apply when the cause of death is an issue in
a criminal trial.”
“I
don’t think that the cause of death is at issue. Your client caused Mr. Smith’s death.”
“It
doesn’t matter whether you think it’s an issue, but whether I think
it’s an issue. And I do. I need you to sign an agreed order compelling
Mr. Smith’s doctors to provide information to me. It’s the only way I can get ready for trial
in a week.”
“I’ll
do no such thing.”
“Why
not? You know that I’m entitled to that
information.”
“Then
you can ask the court for it.”
“I
don’t have time before the trial to make a formal motion to the court. That’s why I am asking you to agree to an
order that you know the court will grant.”
“I
have no obligation to agree with you, Kate.”
“Fine. But I’m going to need a continuance.”
CHAPTER FIFTY-FIVE
Mark’s
case was assigned to Judge Shelley Peterson, a woman who had practiced family
law for 10 years before recently being appointed to be a superior court judge
by the governor, her husband’s college roommate. She was sweet, attractive, and unfamiliar
with criminal law.
After
my conversation with Frank, I called Judge Peterson’s bailiff to ask if the
judge could hear an emergency continuance motion. After a few minutes, the bailiff asked, would
tomorrow at 9:30 work? The judge seemed
very accommodating.
Frank
answered my telephone call gruffly.
“What now, Kate?”
“I’ve set an emergency
motion for continuance at 9:30 tomorrow morning.”
“That’s
not proper notice.”
“That’s
why I said ‘emergency.’ If you want me
to do a motion to shorten time, I’ll be happy to prepare one.”
“You
don’t even know if your motion to shorten time will be granted. I have no obligation to appear in court on
such short notice.”
“Do
what you want, Frank. I will be at Judge
Peterson’s court tomorrow at 9:30 asking for a continuance.”
I
wasn’t particularly worried about my continuance motion. It was true that Mark’s case was old, but it
was also legally and factually complicated.
No one could dispute the parade of trials I had conducted over the past
year. I thought about again asking Frank
to agree to the continuance, because even Frank should recognize that the
continuance was inevitable, but I was tired of talking to him.
Frank
was sitting at the counsel table when I arrived at Judge Peterson’s court the
next morning.
“I
thought you weren’t coming,” I said.
“I
came as a courtesy to you, Kate.”
“A
courtesy. How nice.”
“We’ve
got to do this trial at some point.”
“I
know. As soon as I get the medical
stuff, I’ll be ready.”
“How
much time do you think you’ll need?”
“A
month would be best, but I think I’ll just ask for two weeks. If I drop absolutely everything else, I
should be able to get it done.”
Just
then, the bailiff entered the courtroom.
“All rise,” she said.
The judge came out on the
bench. “I believe you had a motion, Ms.
Hamilton?”
I
outlined the history of the case to the judge.
I pointed out that the state had waited six months after the accident
before filing the charges, which consequently delayed our investigation, as much
of the physical evidence had disappeared by that time, causing my expert to
have to rely on computer modeling rather than being able to view the accident
scene personally. I highlighted the
series of trials I had conducted in the past year, which gave me little time to
complete this investigation. I explained
how my interview with Dr. Robinson had led me to need to investigate what had
happened in the emergency room, an issue I hadn’t been pursuing earlier. I didn’t like to show my hand, but I told her
that negligent surgery may have caused Mr. Smith’s death, rather than the car
accident. I listed the doctors that I
needed to interview before the trial.
“I will be unable to
provide adequate assistance of counsel,” I said, using the magic words. These words were magic words because a person
accused of a crime is constitutionally entitled to adequate assistance of
counsel. Thus, if I told the judge that
I couldn’t perform adequately, and I could back this assertion with facts—that
I needed to interview doctors, call witnesses, etc.—the case would be reversed
on appeal if the judge did not allow the continuance.
. As
difficult as Frank was, I didn’t expect him to protest the continuance too
much. Frank was lazy and didn’t like
trials. I had never before asked for a continuance
that he hadn’t agreed to. However, Frank
was also nasty and mean-spirited. He
sensed weakness in my need to continue the case.
“Judge,
I cannot agree to this continuance. This
is the 27th continuance of the case.
Ms. Hamilton is purposefully delaying the Smiths’ quest for justice. It is simply too late for her to come in,
claim some unsubstantiated defense, and ask for a continuance.” He forgot to mention that the reason there
were so many continuances was that the presiding judge would only continue
cases for a couple of weeks, even if you said you need six more months to
investigate. He forgot to mention that
he had agreed to every previous continuance.
He forgot to mention that the state had waited six months before it
filed the case, thus making our investigation that much more difficult. “I think Ms. Hamilton is simply trying to
delay justice for these victims.”
The
judge flipped through the file for a few minutes, and then removed her reading
glasses. “Counsel, I have reviewed the
record before me. I am aware that Ms.
Hamilton has had a number of trials recently, and has not been able to complete
the last stages of her investigation in this matter. I am also aware that this case has been
continued numerous times. I have a duty
to ensure that Mr. Holland receives a fair trial.” I smiled.
I was going to get my continuance.
The judge continued, “However, I also have a duty to the citizens of the
State of Washington. I find that it’s
not your fault, Ms. Hamilton, that you are not ready for trial; and that you
are working under extreme conditions.
However, my duty to the citizens of this state requires me to see that
this matter is carried out expeditiously.
The trial must go forward.”
My
mouth dropped open. Duty to the citizens
of Washington
Frank was ahead of me,
almost to the stairwell. “Hey Frank,
wait a minute. I was wondering if you
would go back and talk to the judge with me.
You know she had to grant that continuance. The case will be reversed if you lose. You can’t want that. Mr. Smith’s family couldn’t want that.”
“I
don’t agree with you, Kate.”
“What
are you talking about? You know Mark is
entitled to have a lawyer who is prepared and has had time to investigate every
aspect of the case.”
“Not
if the court of appeals finds that your lack of preparation is a tactic.”
“A
tactic? What do you mean, a tactic?”
“You
can’t go in and be ineffective on purpose, as a way to win on appeal.”
“What? Are you telling me that you think my
inability to be prepared is some sort of ploy?
That I’m doing it on purpose? To
what possible end?”
“That’s just my opinion, Kate. See you on Monday.”
I walked back to the
office in a mild state of shock. What
was I going to do? I really wasn’t ready
for the trial, and thanks to Frank’s obstructionism, there was no way I could
possibly be ready by Monday. I could
subpoena all of the doctors to court, but then I would have no idea what they
were going to say. I knew I had a good argument
that Mark was not the legal cause of the accident. But I didn’t feel safe going with that
defense alone. The law regarding
proximate cause was convoluted, stating that there could be more than one
proximate cause of an accident, and the fact that the deceased driver was also
negligent was only a defense if his negligence was an “intervening cause.” Who knew what a jury would do with those
concepts.
I passed Janet in the
hallway. “What’s wrong with you?” she
asked.
“Judge Peterson just denied
my continuance.”
“On Holland
“Yes.”
“She can’t do that.”
“She just did.”
“She’ll get reversed.”
Just then, José popped
his head over the cubicle divider. “Who’s
getting reversed?”
“Judge Peterson. She just denied my continuance on Holland.”
“What? She can’t do that.”
“All right, already. She just did it. I’ve got to figure out what I’m going to do.”
Matthew joined us in the
hallway. “You should just make a really
good record that you’re not prepared,” Matthew said. “You know, say, ‘Your honor, at this point I
would call witness X. I believe his
testimony would be crucial regarding the cause of Mr. Smith’s death.’ Et cetera.
She will definitely be reversed.”
“But I need to win
this case, not just make a good appeal record.
Mark is innocent. Imagine what I
would have to say to him: ‘Mark, the bad
news is that your lawyer will not be prepared for your vehicular homicide
trial. The good news, however, is that
you will have a killer appeal issue if you get convicted. Yes, you may have to wait a year or so in
prison while your appeal works its way through the system, but you’ll
eventually get out.’”
“Maybe you’ll win on the
proximate cause issue,” Matthew offered.
“Matthew, if you were
charged with vehicular homicide and your lawyer thought the hospital might have
killed the guy rather than the accident, wouldn’t you want your lawyer to point
that out to the jury?”
“I suppose.”
“Maybe if you just said
in your opening statement ‘Ladies and Gentlemen of the jury, I represent Mark
Holland here, an innocent young man charged with vehicular homicide. Unfortunately, due to my recent trial
schedule, I am not prepared to conduct this trial. I’ll do the best I can, though,’” Janice said.
“Frank would have a heart
attack,” José said, smiling at the thought.
“And then get a mistrial. They’d bring a new jury panel in the next day
and we’d start all over. This time the
judge would instruct me not to mention being unprepared.”
“You probably just have
to make your record for appeal,” Janice said.
I
stood silently for a minute, aware of a steely feeling in my stomach. It radiated upward and felt like strength or
something. “What if I just refuse to do
it?” I said.
“What
do you mean?” Matthew asked.
“I
mean, just say, ‘I’m not going to conduct this trial, and you can’t make me.’”
“I
think that’s called contempt of court.” Janice said.
“But
I do have contempt for the court.”
“No,
the judge would hold you in contempt of court,” José said.
“Oh. Well, that doesn’t sound so bad—it almost
sounds like an award. ‘Ms. Hamilton,’
they would say, ‘we can now officiously say that you have Contempt for the
Court.’”
“There’s
actually a down-side to it, Kate,” Matthew said.
“And
that is…”
“Going
to jail.”
“Judge
Piddle used to threaten me with jail all the time,” I said.
“The
key word being ‘threaten,’” José said. “I
don’t know if you realized it, but Judge Piddle didn’t have the balls to put
you in jail. He was a petty little
dictator who made himself feel bigger by terrorizing the powerless. He never would have actually put you in
jail.”
“I
didn’t know that.”
“Know
this,” José said, seriously. “It is a
different game in superior court. These
judges think they are semi-gods. People
have to pay millions of dollars, just on their say-so. People spend the rest of their lives in
prison by their order. People die based
on an execution verdict that they sign.
So, no, they don’t like it very much when they order someone to do
something, and the person refuses to do it.”
“It’s
what I’m going to do.”
“I
figured.”
“I
think I’m going to need a lawyer.”
“No
kidding.”
“Will
you be my lawyer?” I said, looking straight at José.
“We’re
both going to end up fired over this,” he said.
“Probably.”
“What
the hell.”
Over
the weekend, I fantasized about the possible consequences of my coming
disobedience. For example, if I went to
jail, would I be in the regular population or in protective custody? Would I have a cell mate? Could I bring books with me? I figured if I did go to jail, it would
definitely make me famous, so part of me almost wished for brief incarceration. For a while, I painted a rosy mental scenario
of myself in jail. I could sit and read
books all day, I could paint, write music, etc.
I refused to acknowledge the fear that was building inside me.
José
researched the legal aspects of the situation while Janice called a lawyer she
knew at the court of appeals. José found
some good cases, from other states unfortunately, that said a court could only
hold a lawyer in contempt for disobeying a valid court order, and that it was
not a valid court order to make a lawyer go to trial when he or she was not
prepared. Unfortunately, it appeared
that the lawyer had initially gone to jail for refusing to conduct the
trial. It was something, anyway.
CHAPTER FIFTY-SIX
By Monday morning I was ready
to walk into Judge Peterson’s courtroom and refuse to conduct Mark’s trial. José and I had prepared a detailed affidavit
describing the reasons I was not prepared to try Mark’s case. I described the numerous trials I had
conducted in the past six months. Janice
created a chart that showed the disparity in staffing the public defenders’
office versus the prosecutors’ office. Matthew
helped me list parts of the investigation that had yet to be completed. At the end of my affidavit, José wrote for me,
“Thus, despite my best efforts, I have not completed my investigation or
preparation of Mr. Holland’s case.
Accordingly, I refuse to conduct this trial. I take this stance not in disrespect for the
court, but due to the higher calling of providing my client with adequate
assistance of counsel and a fair trial.”
“That’s pretty heavy, José,”
I said after I read the closing lines.
“Where’s your usual combination of sarcasm and mania?”
“Sarcasm and mania can
get you through 99 per cent of life.
Every once in a while, you just have to call it like it is.”
I signed the document,
feeling slightly proud of myself.
Noticing
that my mouth was dry, I left my office to get a drink from the water
fountain. Too late to duck out of sight,
I saw Gordon walking toward me.
“Kate, will you see me in
my office?” he said.
“Of course.” I followed him to his office. I never liked to talk to him, but I wasn’t
too worried about meeting him today. José
and I had spoken with Gordon last Friday and explained what we were going to
do. He had grudgingly given his
approval, probably wanting to see me in jail.
“Kate,” Gordon said, once his office door had closed. “I just wanted to make sure that the press
doesn’t know anything about this situation.”
“I didn’t call them,” I
said, wondering what he was getting at.
“Because
I don’t want anyone looking too closely at your situation.”
“What?”
“We
don’t want too close a scrutiny of your claims.”
“What
are you talking about?”
“If
someone looks too closely at your representations, you, and this office, could
end up looking bad.”
“What?” I couldn’t believe what he was insinuating. “Are you saying that I’m lying?”
He
looked at me in a bemused way, as if I should know the answer to my question.
“Are
you saying that we aren’t understaffed?
Or that I haven’t been doing these trials?”
“You
haven’t been in trial every single day, now have you? The judges don’t think you’ve been working
that hard.”
“Who
cares what the judges think? They don’t
have any idea what I do. They sit around
in their vaulted courtrooms and make derogatory gossip. But you know.
You see how hard I work.”
“I
don’t know anything, Kate. All I know is
that you need to make the judges happy.”
I could feel my face
becoming hot and the tears filling my eyes.
Damn. I had 10 minutes before I
pitted myself and my client against the power of the superior court judges of
the State of Washington, and I was about to cry. Nothing made me madder than someone making me
cry when I needed to appear strong.
“Let me tell you one
thing, Gordon,” I said, still managing to hold the tears back, my voice
steely. “You don’t belong in this
job. You don’t even understand what it
means to be a public defender. This job
is not about getting along with everyone.
This job is about fighting for this one little person—the client—against
all the people who want to put him in jail.
If you do it right, you’re not going to win any popularity contests.”
“You’re not winning any
contests right now, Kate.”
“That’s because I’m doing
my job, rather than kissing ass.”
“Watch yourself,
Kate. You got yourself into this mess
because your caseload is too high.”
“That’s because we don’t
have enough lawyers.”
“No, it’s because you
aren’t managing your cases right.”
“Managing my cases right
doesn’t mean doing what’s easiest. I
have to do what’s best for my client, and sometimes that takes a lot of work.”
Before he could fire me, I
turned and walked out of his office, banging on the temporary walls with my
fist as I walked along. I slammed my cubicle
door and tried to stop the tears. A few
deep breaths helped. I saw Kelly’s antennae
where they sat on top of my computer, and picked them up. “This is one crazy, fucked-up job,” I said to
the antennae. Why did I even talk to Gordon? I kept fantasizing that I would
say something, and he would realize that he was wrong, and then apologize to
me. Why did I care? Why did I need validation from a person I did
not respect?
I
heard a soft knock on my door. José stuck
his head in the door. “Kate, you ready?
Time to go.” He stopped when he
saw my tear-streaked face. “What
happened to you?”
“Gordon.”
“That
bastard,” he said with intense hatred. “Listen,
Kate. Gordon is a piece of shit who shouldn’t
be allowed to defend the local dog catcher.
The prosecutors are pissed because you don’t bow to them and have been
kicking their asses over the past year.
The judges are pissed because you don’t make their priorities your
priorities. Now, come on. Today is a great day. You’re going to tell these bastards that your
client’s constitutional right to a fair trial is more important than their
asinine scheduling agenda.”
“I
might go to jail.”
“Which
would be about the greatest thing on the planet. You would be famous. Not to mention the fact that, at this point,
a jail sentence would be a nice rest.”
I
looked at José’s intense face. I had
never had friends like this before. “Let’s
go, then,” I said.
“You
gonna take your trial notebook?”
“Why? I’m not going to trial.”
“A
toothbrush then?”
“You’ll
bail me out, right?”
“I
don’t have any money.”
I
dug my credit card out of my purse and handed it to him. “Just in case,” I said.
“We’re
really doing this, aren’t we?” he said, taking the card.
I
finally managed a smile. “Don’t say ‘we’
unless you’re going to go to jail with me.”
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