"Mr. Campbell?" Judge Pistone asked.
Patrick Ortiz rose in Campbell 's place. "We've got all our witnesses sequestered except for Detective Zimmerman. He's our first witness, and I guess he's just a little anxious to get started."
Ortiz's explanation drew soft laughter from the packed house, establishing his usual easygoing connection to his audience. There was no jury in a preliminary hearing. Only the judge would make the decision whether to bind Blues over for trial. Ortiz didn't need all the boxes or the blowups to make his case for Judge Pistone. He understood that the reporters in the courtroom would tell everyone who read a paper, listened to the radio, or watched television how overwhelming the state's evidence was. That message would reverberate with the people who would ultimately be the jurors that would decide this case. He also knew that Mason would watch him closely, gauging how his adversary weighed in the lawyer's gamble between trial and plea bargain, between a crapshoot for freedom and a date with a deadly needle. Ortiz felt the connection at his back, like a breeze that filled his sails.
"What about Detective Ryman?" the judge asked Ortiz.
"We don't intend to call Detective Ryman to testify. I don't know what Mr. Mason's plans are."
Mason was surprised at Ortiz's decision to keep Harry off the stand. He wondered if Harry had asked to take a pass to avoid a confrontation with him, or whether it had been Ortiz's idea. Either way, Mason knew Harry wouldn't help his defense of Blues.
Mason said, "I don't intend to call Detective Ryman and I have no objection to his presence in the courtroom."
"Very well, Counsel," the judge said. "The rule is hereby invoked. No witness will be permitted in the courtroom until after he or she has testified. I will expect the lawyers to enforce the rule by keeping a close eye on who comes and goes. Don't expect me to take roll. If you let somebody slip in, it's on you. Any opening statement, Mr. Ortiz?"
"Yes, Your Honor. Even though this is a pretty cut-and-dried case, I'd like to put the evidence in context for the court and let you know who you are going to be hearing from."
Mason was glad that the state had the burden to prove its case. He understood that was why the prosecutor got to go first at every stage of the preliminary hearing and trial- first to make an opening statement, first to put on witnesses, first to make a closing argument. But Mason couldn't stand going second. Sitting quietly while Patrick Ortiz did his this-defendant-is-so-guilty-why-bother-with-the-trial routine was worse than having a tooth pulled slowly.
"How about you, Mr. Mason?" the judge asked.
"Your Honor," Mason said, "I'm certain that Mr. Ortiz believes that all of his cases are cut-and-dried, that the police only arrest the guilty, and that we could save a lot of tax dollars if we just skipped all this trial stuff. Fortunately, the Founding Fathers decided not to leave it up to Mr. Ortiz, or me or you, to decide innocence or guilt in this case. The jury will make that decision. I'll save my opening statement for the trial."
Mason didn't want to admit that he had nothing to say at this point in the case except that the prosecuting attorney was taking orders from Ed Fiora to offer Blues a plea bargain. He could add that Amy White wanted Mason to find Jack Cullan's secret file on the mayor even though she assured him that it had nothing to do with the murder. He might mention that someone had tried to kill him after he refused to play ball with Ed Fiora. He could describe how Fiora had blackmailed Beth Harrell into trying to seduce him and that she had asked Mason to get back the blackmailer's blackmail so she could seduce him, for her own reasons. None of which, he would have to admit to Judge Pistone, he could prove any more than he could prove that Blues was innocent. So instead, Mason took a shot at Ortiz's understated arrogance and sat down.
"I would suggest that both counsels save their editorial comments for the press, except I'm imposing a gag order. No one connected with this case will discuss it in public outside of this courtroom. When we're done here, this case is going to be assigned to a Circuit Court judge. I don't want the first motion filed by the defendant to be one to move the case out of the county because there's been so much publicity the defendant can't get a fair trial. Now let's get to it. Mr. Ortiz, you may begin."
"Excuse me, Your Honor," Mason interrupted. He stood up slowly and held his hands up, underscoring his regret at delaying the proceedings again. "I'm certain you didn't intend to prejudge this case, but your comments suggest that you've already decided to bind the defendant over for trial. If that's so, I'm compelled to ask that this case be reassigned to another magistrate."
Judge Pistone looked up from the papers in front of him and glared at Mason. "The last time you were before me, Mr. Mason, you practically accused me of being pressured to deny your client bail. I invited you to prove such and you declined. Now you are suggesting that I have prejudged the case against your client. Tell me, is it your desire to be held in contempt by this court? If you are, I shall be happy to oblige you."
"Not at all, Your Honor," Mason answered. "I'm certain that you misspoke when you said a moment ago that this case was going to be assigned to a Circuit Court judge. That will only happen if you bind the defendant over for trial. You can't know until you hear the evidence whether you will make that decision. I didn't want to leave that impression on the record without bringing it to the court's attention. Perhaps you'd like the court reporter to read back your comment."
Mason knew that he was digging a deep hole for himself with Judge Pistone. He also knew that it didn't matter because Pistone had already made up his mind. Just like Ortiz, Mason knew that he had more than one audience. The judge had just testified on behalf of Blues in the court of public opinion. Mason had given the press a different lead than one about Blues's guilt. They could now write a story about how Mason had trapped the judge with his own words, continuing Rachel Firestone's theme that Blues was getting the bum's rush. The judge wouldn't hold Mason in contempt since that would elevate Mason to martyr status for a wrongfully accused client. Instead, the judge would have to swallow hard.
Judge Pistone, known for his disinterested demeanor, was eye-popping mad at Mason, and gripped the edge of the bench as he fought to keep his self-control. He wouldn't risk asking the court reporter to read his comments aloud. "Thank you for bringing to my attention what was clearly an unintended and unfortunate choice of words. I assure you that I have the highest regard for the presumption of innocence. If you have any doubt on that score, you may request another judge. Is that your desire, Mr. Mason?"
"Not at all, Your Honor. As you said, let's get to it."
Mason knew that taunting Judge Pistone was a high-risk strategy. A defense attorney often made himself a lightning rod, taking hits from the court to deflect attention from his client. The strategy was a don't-confuse-me-with-the-facts ploy that meant one thing: The defense attorney didn't have dick. Mason took no comfort in his strategy as Ortiz ambled to the podium, a slightly rumpled, overweight everyman who knocked back a few brews on the weekend, watched sports, talked about women, and sent men to death row.
"Your Honor," he began, “I agree with Mr. Mason about one thing. It's not his job or mine to judge the facts. It is our job to tell you what the facts are. But don't make the mistake Mr. Mason did. You are the only judge of the facts at this point in this case. Before a jury is asked to decide the defendant's guilt, you are asked to decide whether there is reasonable cause to believe that a crime was committed and that the defendant committed it. If you find that there is probable cause to believe those things, then you must bind the defendant over for trial.