“Well, actually, that’s pretty slick. He’s only asking for a civil forfeiture.”
“As opposed to criminal, I presume. But what does that mean?”
“It means, basically, that he posts the property… you know anything about this at all?”
“Not really. It doesn’t come up every day.”
“No. I’d guess not. Which is why Glass can have so much fun with it. Just for starters, you want to guess what the forfeiture rules are administered under?”
“The Little League?”
Drysdale cracked a smile. “Closer than you’d think, actually. The Rules of Admiralty.”
“That was my second guess.”
“I’ll give you partial credit, then. And you know why it was Admiralty rules? Because since Elizabethan times, the British Empire allowed an action against a ship as a way of getting at the owner. They would literally ‘arrest’ the thing, the ship, before it took off, and make the owners in some faraway country post a bond before they would release the ship back to the high seas. Then they could collect whatever was owed from the bond. In rem jurisdiction. Latin for ‘against the thing.’ Just like here. Grab the store. Make the owners come to court to free it in a civil case. So basically, your clients are going to have to sue to get their shop out of this limbo, and, surprise, the burden of proof is now on them. The good news is that they get to stay in business-their legitimate business-until the final ruling.”
Hardy walked over and settled himself into a rocking chair in the corner by the bookshelf. “So what’s the point? What’s it get Glass to just post the place?”
“Not much, if that’s all he’s doing. He might win, he might not. But either way, he gets their attention.”
“So what?”
“Aha!” Drysdale held up a finger. “ ‘So what’ is that he’s allowed to talk about a civil case. To the newspapers, TV, to your clients, to the cops, to anybody. He’s doing the public a service by talking about it. Meanwhile, he’s stirring the pot to see what rises.”
“But as opposed to what?”
“I’d tell you, but I know you already know.”
Hardy paused, and of course the obvious truth emerged. “The grand jury.”
“Ta da!” Drysdale spread his hands in a victory gesture. “Two prongs. One public, one secret.” His face went dark. “It is a serious, no-bullshit press, Diz. And my sources tell me that old Jerry is playing it so far like a maestro. You know, he got his homicide inspector-Schiff, is it?-designated as a special agent of the grand jury?”
“He can do that?”
Drysdale tsked. “I believe we’ve mentioned that he can do anything, haven’t we? He can get the grand jury to designate anybody as its agent. And what does that agent have access to? Grand jury documents, including financial and bank records, which, by the way, in real life the feds-us-can subpoena anytime and the state can never ever get its hands on.” Drysdale turned a hand over. “Now, of course, that agent can’t reveal what’s in those documents-that’s secret-but she can act on her knowledge of them. Including-you’ll love this-based on this private knowledge, she can argue for a judge to order release of these otherwise secret docs. And also, PS, if that doesn’t work, once the documents leave the grand jury room, sometimes they get leaked somehow. Though that, of course again, would be wrong.”
Hardy could listen to Drysdale’s commentary all day, but he wasn’t even slightly amused. “This isn’t right, Art.”
Drysdale laughed with some enthusiasm. “We’ve barely started, Diz, and if you can’t laugh at it, you’re in deep shit.”
Hardy sat back. “What else?”
“You really want to know?” At Hardy’s nod Drysdale settled himself on the desk. “Jerry’s got so many ways he can play this, it’s just gorgeous. You said Kathy West may be involved here, right? And Harlen? Okay, first, he has them talk to one of our agents a few times. They’re not targets, he tells them. He wants them to roll over on your client, but they’re not themselves part of the investigation. So what’s that get him? Well, first, if either of them tells even a little fib to the federal agent, they are in felony land. And guess what? Federal agents don’t have to tape-record interviews.”
“Now you’re kidding me!”
“Would that I were, my son, but that was J. Edgar’s original policy and it’s in force today, so it’s always your word against that of a federal agent, and guess who the grand jury is more likely to believe? They’ve even got a cute little name for this cute little strategy-the Perjury Trap. Isn’t that special?”
“Beautiful. And I’m guessing we’re still not done yet.”
“You catch on fast, Batman. You really want to know?”
“I want to know where they teach this stuff. I’ve been a lawyer for thirty years and I’ve never run across it.”
“That’s not a coincidence, Diz, I promise. This is some très arcane shit. But anyway, since you asked, let’s say your people-Kathy and Harlen and even your client-avoid lying to their friendly federal agent. Now they go in front of the grand jury as individuals, where, you remember, they are specifically not targets. Glass gives them immunity for anything they say, and what’s interesting about that? Now they can’t take the Fifth! Now they’ve got to answer every single thing Glass asks them; if they refuse, they go to jail for contempt. Is that great, or what?”
“Why is that somehow familiar?” Hardy asked.
“Because you, as a lawyer, will remember that this is almost exactly what happened to Susan McDougal in Ken Starr’s Whitewater investigation. The grand jury called her up and even gave her immunity, but she refused to answer questions because she was concerned her statements would be viewed as false-”
“There’s a nice distinction,” Hardy commented. “Viewed as.”
“Isn’t it? Well, anyway, if they were viewed as false, then she’d be indicted for perjury, so she didn’t answer, and so for her troubles she got slammed with civil contempt, where you stay in custody as long as you refuse to answer or until the grand jury term expires, which in McDougal’s case was eighteeen months.”
“Holy shit.” Hardy rocked gently, his hands gripping the armrests, taking it all in. “So it’s way more than just this forfeiture stuff? What’s Glass going for? Money laundering?”
“At least. Plus distribution, conspiracy, you name it-where you’re looking at major hard time.”
“Jesus.”
Drysdale wasn’t smiling anymore either. “And I’m afraid it just gets worse, Diz.”
“I can’t really imagine how.”
“No. You probably can’t. So let me tell you the real ugly truth. You should know for your client’s sake, and Kathy and Harlen’s, too, for that matter, that you want to do everything you can to keep them from getting charged at all. That’s what Jerry wants-he wants to force them to cop a plea to maintaining a place.”
“Even if Kathy or even Maya had nothing to do with the dope?”
Drysdale shook his head. “Doesn’t matter. They can still both be criminally liable.”
“How’s that?”
“Because if any of them has reason to believe there was the criminal activity, but didn’t ask, the jury is allowed to impute knowledge.”
“Under what possible guise, Art?”
“Simple and glorious. They should have asked, so it’s deliberate ignorance.”
“Deliberate ignorance. I love that.”
“And why would you not? It’s a lovely thing.”
Hardy sat still for a long moment, his feet planted to the floor. “So let me get this straight. They’re going to get them at least for maintaining a place, pretty much automatically, it sounds like. Is that about right?”
“Close enough.”
“Then why wouldn’t they want to duke it out in court on the money-laundering and distribution and conspiracy charges?”
“Good,” Drysdale said. “I love a guy who pays attention. That was just hanging out there, wasn’t it?” He absently threw up one of the baseballs and caught it. “I was saving the best for last. I bet you think that if you get acquitted in federal court, you can’t be sentenced.”