A fool for a client, p.2
A Fool for a Client, page 2
“Because I don't intend to argue over technicalities.”
She leaned forward, resting her elbows on the desk. It was an innocent, subconscious gesture, but it drew back the sleeves of her white silk blouse, offering a tantalizing glimpse of her ivory forearms. There was no doubt in the judge's mind that she was completely self-assured. But from where, he wondered, did her self-confidence come? From the moral rectitude of innocence? Or from a misplaced faith in the capacity of a beautiful woman to manipulate the men around her?
“You see Your Honour,” her voice rolled on with relentless smoothness, “I know that I can quibble over whether chain of custody over physical evidence was broken, or whether an exhibit not explicitly named in the search warrant can be introduced, but I'm damned if I will. The last thing I want is to give the jury the impression that I've got no case and no answer to the charges and that my only hope of saving my skin is to gag the prosecution.”
“Let's not exaggerate Miss Levy,” said the ADA sharply, almost spitting out his righteous indignation. “It's only your freedom that's at stake, not your life. Unlike your victim.”
“There's no call for that Dan,” the judge chided.
Justine half-turned and leaned back, meeting Abrams eyes briefly.
“Oh it's all right Your Honour. If he thinks it, he's got the right to say it. I just hope that when he's through presenting his case, he'll close his mouth and open his ears.” Then, looking Abrams straight in the eyes with that uncompromising, piercing stare, she added quietly: “I see you have a strong sense of justice. I like that. I have a strong sense of justice too.”
It was just a few simple words, spoken in a calm and measured tone. But to the others in the room it rang out with all the rage and thunder of a threat. The judge wondered if Sean Murphy had heard that threat before, or perhaps failed to hear it.
“Miss Levy,” the judge's voice came out of the drawn-out silence, “when you say that you're not going to quibble over technicalities, does that mean you're going to argue your case in terms of the facts?”
Justine smiled and nodded.
“That's right, Your Honour... all the facts.”
The tone of her reply was almost sprightly, and the judge heard a touch of juvenile defiance about it.
So the woman is playing the girl with me.
“All right, I've heard enough,” he said as he rose. “Let's go back inside.”
Abrams leapt to his feet. Justine leaned forward and rose from her chair. As she did so, the judge looked at her expectantly, as if anticipating an inquiry. But it was Abrams whose impatience got the better of him.
“What have you decided?”
The judge raised a hand, pointing to the door.
“Wait and see,” he said, taking a sadistic pleasure in the prosecutor's discomfort.
Whatever the judge's misgivings about the case, Justine Levy had stirred something within him, something that he couldn't define. He had long ago become blasé about his job, and he wouldn't have believed that a defendant could move him in the way that Justine had. He had seen sympathetic defendants who had pulled on his heartstrings before, like the mothers and lovers who were guilty of the “crime” of euthanasia. But they were still just routine cases, and with plea-bargaining and a certain amount of judicial discretion he had been able to handle them as humanely as the system allowed. But Justine's case was different. He didn't know the truth or the reasons for anything that might have happened, he just knew that he was glad to have met her and sorry for her, even though there was nothing in her manner that cried out for sympathy.
Be careful he told himself. Don't get involved. But he knew that there was no way a judge could avoid getting involved. The danger was Justine. She was not a cry-baby, nor a gum-chewing slut, nor an aggressive old hen. She wasn't any sort of stereotype... she wasn't anyone or anything that he recognized. But he knew that if he had to choose the company of another person now, whether for a few hours or for the rest of his life, he would have chosen Justine. It was a dangerous feeling, and he didn't feel any safer for recognizing it.
* *
Tension still hung in the air when they returned to the courtroom.
In the press benches, the artists were busily at work, most of them sketching Justine. Although the judge's decision was to be a watershed, it was Justine who was the centre of attention. It was Justine whose vigorous oratory had stood out and whose quiet defiance had marked her out and set her apart from those other rare cases of attractive women accused of murder. She was no demure defendant. She was the red-headed spitfire who knew not the meaning of the word fear and didn't trouble to hide the fact.
So the press artists drew Justine in what was to become a classic pose and her symbol throughout this trial: standing proudly, almost like a warrior on a voyage of conquest, or a business tycoon who had just taken over a rival corporation. The image conveyed a sense or arrogance. Since she had first been arrested, arrogance had seemed to be her hallmark.
The door behind the bench opened to admit Justine and Abrams, sending a murmur of anticipation through the court as they took up their places. The courtroom was no longer as full as it had been when they left it. But it soon filled out as the reporters returned from the pay phones and the spectators with weak bladders heard the word that wafted through the building to the effect that the hearing was about to resume. All eyes were on Justine, except those of the press artists which periodically darted back to their sketches to get the details right.
After about half a minute, the door opened again and the bailiff intoned his admonition to all those present to stand. When the judge took his place and everyone was seated he held the attention of every man and woman in the courtroom. He coughed to clear his throat, and peered around reprimandingly to quell the murmuring that still lingered after his entrance. The murmuring was stifled within seconds and replaced by a silence that seemed to warn of an impending storm.
“The law on this subject is very clear,” he said slowly. “In the case of People versus McIntyre it was ruled by the New York Court of Appeals that the option to proceed pro se could be invoked as a matter of right as long as three criteria were met. The first was that the exercise of the right be unequivocal and timely. The second was that the defendant make a knowing and informed waiver of the right to counsel. And the third was that the defendant has not engaged in, and continues for the duration of the trial to refrain from engaging in, conduct which disrupts the proceedings.
“Regarding the first requirement, it was ruled in McIntyre itself that the request is timely if it is made before the jury has been empanelled. Moreover I think that not even the prosecutor would deny that the defendant's efforts to invoke the right have been unequivocal.”
A smattering of nervous laughter trickled down from the spectators.
“Putting the second requirement aside for the moment and moving on to the third, it cannot be said that the defendant has done anything to obstruct or impede the proceedings. Nor can it be said that she has engaged in disruptive or obstreperous conduct. She has certainly been forceful and vigorous in her assertion of her right to proceed pro se. But her arguments have at all times been couched in polite terms and she has shown unwavering respect for the dignity of the court. Therefore she has passed this test of the right to conduct her own defence.”
Abrams slumped back in his seat, defeated. The merest flicker of a smile appeared momentarily on Justine's face. But it vanished as quickly as it appeared, leaving not a single tell-tale sign for anyone in the courtroom to notice.
“This only leaves the requirement of a knowing and intelligent waiver of the right to legal counsel. State law mandates that when a defendant insists on conducting his own defence, the trial court should conduct a 'searching inquiry' on record to insure that the waiver of the right to counsel is made voluntarily and with eyes open. Accordingly, Miss Levy, I am going to ask you a few questions which you must answer for the record either yes or no or in your own words if you feel that clarification is needed.
“First of all are you aware of the fact that by not being represented by a lawyer you are giving up a valuable source of information and knowledge as to matters of law, possible defences, rules of evidence and procedure that may be invoked at your discretion and rights that are only advantageous if invoked in particular ways, such as the right to challenge jurors?”
“Yes Your Honour,” replied Justine calmly.
“Are you aware that as a lay person conducting your own defence there is always a danger that you might make a statement or ask a question or perform an action or omission damaging to yourself or to your case, and that a qualified lawyer would be less likely to make such errors and if he did make such an error would provide you with grounds to appeal because of counsel's professional incompetence.”
“Yes Your Honour.”
Again the voice was calm and the tone respectful. There was not a hint of off-handedness or impatience in her reply.
“Are you also aware of the seriousness of the charges and that you stand in jeopardy of a long sentence if convicted?”
“I am Your Honour.”
“And are you further aware that you are bound by the same rules of procedure as any qualified legal counsel and the same rules of evidence?”
“Yes Your Honour.”
“Do you understand Miss Levy that in the event that should you find yourself difficulty of any kind, the Court is under no obligation to render assistance to you, save by upholding the rules of evidence and procedure, nor can it take over defence chores for you or advise you on when to invoke specific rights.”
“I understand Your Honour.”
“Is your motive for wanting to conduct your own defence due to financial limitations Miss Levy? Is it that you desire an attorney but cannot afford one? Are you aware of the fact that if this is the problem then a lawyer can be appointed by the Court at no expense to yourself?”
“There is no financial impediment to my hiring a lawyer, Your Honour. I have ample financial resources to pay for a lawyer and I am aware of my sixth amendment right to legal counsel, but I do not want one.”
“Finally, having said all that Miss Levy, I can only advise you in the strongest possible terms that it is in your best interests to employ the services of qualified legal counsel and I urge you to reconsider your decision to conduct your own defence in the light of all that I have said. Will you reconsider, Miss Levy?”
“No Your Honour.”
“In that case I must rule that the defendant's waiver of the right to legal counsel has been made intelligently and voluntarily and that accordingly the last of the three requirements for appearing in proprio persona has been satisfied. However, because of the complexity of the case, the severity of the charge and the possibility, however remote, of the defendant wishing to change her mind, I'm going to appoint a qualified lawyer to act as stand-by counsel.”
Justine was on her feet, staring at the judge with open indignance, while Abrams turned away smirking.
“Your Honour I object! My defence is to be based on fact, not legal technicalities. A court-appointed standby, or any lawyer for that matter, would only distract the jury from the essence of my defence and give the jury the wrong idea of my position.”
“But he would only be on standby, Miss Levy. He wouldn’t even be allowed to open his mouth without your permission.”
“But his mere presence might give the impression that he’s defending me.”
“The Court notes, and over-rules, the defendant's objection. Although the Court is not required to appoint stand-by counsel, it has the right to do so even over the objections of the defendant. In a complex and serious case such as this, bearing in mind the danger of having to declare a mistrial in the event of the defendant changing her mind or forfeiting the right to continue pro se, I believe it to be a desirable precaution which need not in any way step on the defendant's toes. At any rate, the federal Supreme Court has ruled that the trial court may ignore counsel's objections in the matter of appointing stand‑by counsel, in Faretta versus California, a case already cited by the defendant herself.
Justine sat down, the seething anger showing on her face.
The judge looked around the courtroom.
“Is there anyone here from the legal aid office?”
“I am Your Honour,” a nervous voice pierced the pregnant silence as a young African-American in a well-cut dark blue suit rose from an uncomfortable wooden seat.
“Your name?”
“Rick – I mean Richard Parker”.
The judge had taken on a serious tone, as if he was subconsciously trying to intimidate the young man. This lawyer, with his adolescent good looks and below average height looked like a high school student who was too young to be there.
“Do you have any heavy commitments that might impair your ability to give this case the attention that a murder charge deserves?”
“No Your Honour.”
Justine was looking around frantically at this nervous looking kid whom the judge was about to appoint to be on stand-by to represent her.
“The Court appoints Richard Parker to act as stand-by counsel for the defence of Justine Levy in the case of the People of the State of New York versus Justine Levy.”
Again Justine leapt to her feet, facing the judge with a brimming anger that overflowed as she spoke.
“Your Honour this is just too ridiculous for words. He looks like he's fresh out of law school!”
“May it please The Court Your Honour, I am practically fresh out of law school.”
It took no more than a second for the words to register all round and when they did the courtroom rocked with laughter. Even the normally sedate Daniel Abrams was forced to smile. Only the stoic judge and the granite-faced Justine remained impassive. Like two pillars supporting an otherwise fragile structure during an earthquake. When the laughter subsided, Parker continued calmly.
“I graduated first in my class at Harvard, and I served as clerk to the Chief justice of the United States for a year.”
He seems to be rubbing it in, thought the judge. But why, he wondered, is he working as a two-bit hustler in the legal aid office where all they do is plea-bargain for the scum when he could be working for 75K in a private practice?
But it would have been unprofessional and inappropriate to verbalize these thoughts. In any case, by this stage he was watching Justine, wondering how she was going to handle the embarrassing situation that she had got herself into.
“Your Honour, without prejudice to my objection to a court-appointed lawyer, I apologize to Mr. Parker for any aspersions I may have inadvertently cast on his professional abilities.”
Justine Levy's voice was silky smooth as she adroitly carried out the impromptu salvage operation.
As Justine took her seat once again, Parker complemented the performance with a brief gracious acceptance speech. Then the judge spoke again.
“In order to give standby counsel for the defence a chance to study the case and confer with the defendant, I will grant a thirty day continuance on my own motion and set the date of a further pre-trial motions hearing at the eleventh of next month. I will set the trial at that time when I see how crowded my docket is. Are there any motions on bail?”
“Yes Your Honour,” said Justine quietly. “I move that I be released on my own recognizance. It is a matter of public record that my impending arrest was known long before it occurred. In that time I made no attempt to evade arrest or conceal my whereabouts. I made it clear in all my pre-arrest that I welcome the opportunity to have my day in court. For these reasons I move for a release on recognizance.
“Mr Abrams?” the judge beckoned, inviting the prosecutor’s predictable response.
“Your Honour, the People oppose both bail and R-o-R. The accused has been indicted by a Grand Jury for the most serious offence in the New York penal code and the arraignment judge decided at that time that there were sound reasons to hold the accused in custody. I see no reason to regard those circumstances as having changed. There is a danger that as long as she is at liberty she will be in a position to use the press to generate publicity favourable to her case.”
“That may be, Mr Abrams,” said the judge. “But that can hardly be grounds for denying bail or R-o-R. The only purpose of both bail and remand is to ensure that the accused shows up for trial. As far as media publicity is concerned, that can be handled by a joint gagging order imposed equally on both parties. But such an order cannot be linked in any way to bail or R-o-R.”
The judge tightened his facial muscles to resist the urge to smile at the discomfort and frustration on the ADA’s face.
“In that case, Your Honour,” said Abrams, “I ask that bail be set at an appropriately high level, taking into consideration the defendant’s large inherited real-estate assets.”
