“No doubt. You big-city lawyers are scads more creative than us dumb country boys.”
Ben tried to ignore the jab. “First I have a motion in limine.”
The judge blinked. “Say what?”
“A … motion to exclude certain evidence.”
“I know what a motion in limine is, counselor.”
“He wants to keep out evidence that incriminates his client,” Swain explained.
“Well, wouldn’t we all?” Judge Tyler peered down at Ben. “Just what is it you wish to exclude?”
“A hearsay statement allegedly made by my client at the Bluebell Bar after a fight.”
Swain piped up. “My witness will testify that Vick said, ‘I’ll get you, you perverted little Vietnamese gook.’ ”
“The statement has no probative value,” Ben insisted, “but it would prejudice my client’s case. And it’s hearsay testimony. No question about it.”
“Well, maybe so,” the judge said. “But wouldn’t it also be an admission against interest? And as such admissible as an exception to the hearsay rule?”
“My thoughts exactly,” Swain said.
“No,” Ben said. “How could it be an admission? An admission of what? That Vuong was a perverted gook? It’s just name-calling.”
“Ah,” Swain said. “But that’s the point, your honor. It shows Vick hated Vuong. It proves his motive.”
“Thank you,” Ben said. “Mr. Swain has just confessed that he wants to admit this statement to prove the truth of the matter asserted—that Vick planned to kill Vuong. It is therefore by definition hearsay and cannot be admitted.”
The judge pursed his lips. “Any response, Mr. Swain?”
“Uh, no, your honor.”
“Mr. Kincaid,” the judge said slowly, “your motion will be granted.”
Swain was all eyeballs. “What?”
“I think you heard me.”
Ben was almost as astonished as Swain. He had felt obligated to make the argument, but he hadn’t expected to win. Wonders never ceased.
“Wait a minute, Judge,” Swain said. “I need that testimony. It’s practically a confession!”
“I’ve already ruled, counsel. Anything else?”
“I have another motion,” Ben said. Why quit when he was on a winning streak? “For a change of venue. I want this case transferred somewhere else.”
“Now, why would you want to do that? Don’t you like our fair city?”
“It isn’t—”
“Are you hoping to cut a few of your city-slicker lawyer friends in on this case? Maybe split some fees?”
“No, Judge. I just don’t think Donald Vick can get a fair trial in Silver Springs. You said it yourself last week—this town is a powder keg. Everyone’s running scared. A jury elected from this pool might convict my client just in the hope that it would set the world right again. Whether they’re convinced of his guilt beyond a reasonable doubt or not.”
“Got any evidence to support this theory of yours, Mr. Kincaid?”
“Well, how could I? I haven’t taken a poll.”
“Anybody come up to you and say they were going to convict your man no matter what?”
“Of course not.”
“You’ll have the chance to voir dire every prospective juror just like everyone else. If you find anyone who’s biased, you may excuse them.”
“Your honor, no one is likely to admit that they favor a quick conviction just because they’re frightened.”
“Then what am I supposed to rule upon? Your motion is denied.”
“Judge, that was only my first ground for a change of venue.” Ben had hoped he wouldn’t need the second. But now it appeared he was going to have to go all the way. “The second reason for a transfer is the trial judge’s obvious bias against my client.”
“What? How dare you—!”
“Judge, you told me yourself you read the DA’s file on the case. That’s improper. You said the evidence against my client looked pretty bad. You’ve already made up your mind.”
The judge rose halfway out of his chair. “I was simply stating facts!”
“The jury is supposed to determine the facts,” Ben said. “Not the judge. I want a transfer.”
“Mr. Kincaid, I am beginning to understand why you’ve had such a hard time holding down a job! I have served on this bench for twenty-eight years, and never—never!—have I been accused of being unfair!”
“You may not be conscious of it, sir, but you’re still—”
“Be quiet!” He pounded his fist on his desk. “I heard you out, now you listen to me. You’re right about one thing. I don’t like your client. And I’m starting to like you even less. But my likes and dislikes are irrelevant. Justice is what matters. And this court will serve justice—perfect justice—to the best of my ability.
“Your client will have a fair trial. And if he loses, it will be because the evidence was against him and he was found guilty by a jury of his peers. And for no other reason. Do you understand me?”
“Yes, sir.” There was nothing else to say.
“Very good. Your motion is denied. Understood?”
Ben nodded.
“Anything further?”
All attorneys present shook their heads.
“Very good, gentlemen. See you in court.”
40.
VICK WAS HUNCHED OVER the exposed sink in the middle of his cell when Ben arrived. He was splashing water on his face, wiping the sleep from his eyes. He didn’t look as if he had been up long.
“ ’Morning,” Ben said amiably.
Vick peered out over his wash towel, then went on with what he was doing.
“This will probably be our last chance to talk before the trial.”
Vick threw down his towel. “Why is there going to be a trial? I thought I told you I wanted to plead guilty?”
Ben chose his words carefully. “The DA didn’t give me a deal.” Not that he asked for one.
“I don’t give a damn. I’m pleading guilty.”
“Look, Vick. I know you’re young, inexperienced, and not incredibly … worldly-wise. Let me explain the facts of life to you. This case is going to trial, whether you like it or not. Therefore you have fulfilled your goal of protecting whoever it is you’re determined to protect. Maybe you’re concerned that if the jury finds you not guilty, the prosecution will go on trying people until they get a conviction. Wrong. Prosecutors bet all their chips on the first trial. If they win, great. If they lose, they complain that they were screwed by the judge or the lawyers or the press. They almost never bring charges against a second defendant following an acquittal. After all, to do so would be to admit they made a mistake.”
“I don’t need your—”
“Just shut up and listen. Given that this trial is going forward, and given that no one else will ever be tried for this crime unless he confesses his guilt on national television, the only remaining question is what the outcome of your trial will be. Will I get you off, or will you be on the receiving end of a lethal injection?”
Vick stepped away from the iron bars.
“It isn’t going to make a bit of difference to anyone else. Only to you. So what’s it going to be? Will you let me try to save you?”
Vick walked back to his cot, then seated himself on the edge. His eyes remained locked on Ben.
“I made a promise,” he said finally.
“Fine. Keep your goddamn promise. We’ll work around it.”
Eventually Vick’s head began to nod. “What do you want to know?”
Hallelujah. “They found a bloodstain on the crossbow. They say the blood is your type. Any idea how it got there? I thought possibly you were practicing with the crossbow out at the ASP camp one day and cut your finger. Then maybe someone else picked up the crossbow and used it to kill Vuong.”