“Until the other day,” says Kline, “when Ms. Goya questioned Sergeant Frost on the stand, the extent of how deeply we were compromised was not clear.” He says this straight up, soberly, so that even I could not question the statement’s sincerity. I suspect it is also true.
“You put up perjured testimony,” says Lenore, “and I exposed it for what it was.”
“Your opinion about perjured testimony,” says Kline.
“Mine, and that of any other honest person in the room that day,” she tells him.
“On that we could argue endlessly,” he says, “and I am sure we would never agree. But one thing is clear. In cross-examining that witness you were privy to confidential information from Ms. Hall, information gleaned from your employment with my office.”
What he is saying is that Lenore may have won the battle with Frost, only to lose the war here.
The bailiff returns with a bottle and a piece of cloth and hands these to the judge.
“I didn’t want lemon oil,” says Radovich. “Got anything with a little color in it?”
The cop shows both palms up, shrugs as if he hasn’t a clue, and then gets a revelation. He’s out the door and before we can speak, he’s back, with a can of brown shoe polish.
“Yeah,” says Radovich.
“Your Honor, if we could?” I say.
“Go ahead,” says Radovich, but his mind is elsewhere.
“You have broad latitude on the issue of conflict,” I tell him. I point to a case in Kline’s own brief. “A court should be loath to disqualify a lawyer.”
“Unless the attorney’s conduct ‘tends to taint the underlying trial.’” Kline finishes the quotation. “We would argue that Ms. Goya’s conduct here is just such a taint. She interviewed the prosecuting witness,” he says.
I remind the court that all of that is hearsay, that the witness being dead, she cannot testify and her words will never come into evidence.
“Still, Ms. Goya cannot purge her mind of what she already knows,” says Kline.
“What about the defendant’s right to counsel of his own choosing?” I say.
“It is a point,” says Radovich. His nose is now buried in the surface of the desk, spit, lemon oil, and shoe polish.
“You gotta admit, I’d be hobbling the defendant considerably if I were to tell him that he could not have the attorney of his choice.”
Radovich, his forefinger now brown with shoe polish, looks up at Acosta.
“How do you feel about all this?” he says. For a moment I think he’s asking our client if he has any advice on what to do with the damaged desk, perhaps some mystic secret, a potion known only to judges.
“I mean your lawyer,” he says. “What should I do here?”
“Your Honor, I object. These are private matters between client and counsel,” I tell him.
“I don’t mind,” says Acosta. He puffs himself up a little, not like a defendant in a murder trial, but one judge giving advice to another.
An ominous feeling rumbles through my gut.
“I don’t know all the details. .” he begins. Far be it from the Coconut to know all the facts before rendering a decision. “It is a difficult matter,” he says. “I, as the client, have confidence in Ms. Goya. . ”
“There, Your Honor, see?” Lenore tries to cut him off.
“But I suppose I would be equally well represented by Mr. Madriani and Mr. Hinds if it were to come to that. They are able attorneys capable of giving me competent representation.”
“Fine,” says Kline. “So no problem.”
I could thank him for the testimonial. Instead I turn and fix Acosta with a look that if it shot nails would pin him to his chair.
“Judge Radovich asked me,” he says. “I am only telling him the truth.”
I turn away from him, back to Radovich, and take another tack.
“In terms of our preparation for trial, removal of Ms. Goya at this stage would do major damage to our case,” I tell him. “It’s very much a team approach,” I say. “We have each carved out our areas of coverage in presenting the defense.”
“Let me guess,” says Kline, “Ms. Goya’s specialty is invasion of confidences.”
Lenore is about to get into it with him when Radovich makes this unnecessary.
“Mr. Kline. One more remark of that kind and you will pay for the privilege.” Radovich is shaking a brown finger at him at this moment. If Kline doesn’t back off, sanctions could include two days of sanding the injured surface with his nose.
The judge extracts an apology from Kline.
“It’s far too late to raise these kinds of concerns, particularly when the state has known about her role in the prior case from the beginning,” I tell Radovich.
“They are trying to sandbag us,” says Lenore.
“If there’s any sandbagging here,” says Kline, “it was done by you. We’re still investigating,” he says, “to determine if she took any files or records when she left the office, Your Honor.”
This is clearly intended as one more piece of bait for Lenore, and has the desired effect.
“Your Honor, I resent the implication,” she says. Lenore begins to stammer. “How? How is it possible? I mean how could I take files or documents when you”-she turns from Kline back to Radovich, realizing she’s addressing the wrong person-“when he and his crony pillaged my office in the night, and had a guard escort me off the premises? This is incredible,” she says. Lenore’s face is now in full blush, anger to the tips of her ears.
“We don’t need the personal invective,” says Radovich. “Both of you should calm down.” He is rubbing frantically with his finger, and has managed now to turn a three-inch area of the desk’s surface a shade two tones darker than the rest of the desk.
He looks up at us and notices that we are all watching. He puts the rag aside and slides the desk’s blotter six inches to the right to cover the mark. He will hunt for sandpaper after we leave.
“Your Honor, they handed me a box of personal belongings and threw me out of my office,” says Lenore. “There are items that belong to me that I never even got.” Taking up the gauntlet, Lenore’s tone makes it appear as if she is the one who is now on trial.
“I’m sure it was humiliating,” says Radovich. “But that’s not why we’re here.”
Acosta arches an eyebrow. His attempt to hire a former prosecutor for her possible influence with that office has backfired. Lenore is now tarred, and he must wonder about the effect this will have on his case.
Through all of this Kline is still seated coolly in his chair. Finally Lenore notices that she is the only agitated person in the room, regains composure, and rejoins the issue.
“You never answered adequately,” she says, “why you waited so long to raise this. .” She waves the air with the back of her hand, searching for a term sufficiently abusive, “this red herring.” She comes up short.
“I thought that would have been self-evident,” says Kline. “We only joined the prostitution case to the murder charge this week,” he says. “And I would remind you that we did so at your urging,” he says. “Before that moment, before joinder, there was no conflict,” he says.
Kline’s response is like an upper-cut to the solar plexus. I can almost hear Lenore sucking air. It is why you never want to ask a question unless you have already figured out the answer.
“Gotcha on that one,” says Radovich.
Lenore has no answer.
I step in, a little tag team.
“It’s still a major disruption to the defense,” I tell Radovich. “Serious question as to whether the defendant is being denied a fair trial.”
“That is the nub,” says Radovich. “I’m troubled,” he says, “by the consequences of your motion if I were to grant it, Mr. Kline. Particularly at this late date.”
I sense a toppling judge, one that is about to fall our way.
“Your Honor, the law is very clear. . ”
“True,” says Radovich, “but I must also balance the rights of the defendant to a fair trial. To adequate legal representation.”
You know you have won when the judge starts making your arguments for you.