‘Likewise, Miss Brooks, I’m granting your motions. Mr. Flynn had actually asked for more documents than you did, but you’ve got it all now and more.’
Kate stood, thanked the judge.
‘Now, we come to the last order of business. Mr. Flynn, your motion to split the indictment and have separate trials for each defendant – I’ve read your motion and the brief. It was put together … judicially, you might say,’ said Stone, giving Harry a sickening smile.
Harry mouthed something back to Stone. I’m no lip reader, but it looked like Harry said something that started with mother, and ended with trucker. Or something close to that.
‘Your legal arguments are sound. The potential prejudices to your client are real. However, as you have alluded to in your motion, even the criminal code itself states that I have discretion in this matter, and that I can deal with it as I see fit as long as I have addressed the potential prejudices to both defendants. Even if both defendants are blaming one another, if both are willing to testify then it cancels out any constitutional argument that your client can’t get a fair trial. And I can warn the jury about any fears of prejudice you may have. Those controls and warnings should stave off any substantial unfairness or prejudice. Miss Brooks, I take it your client is going to testify?’
‘She is, Your Honor.’
‘Well, Mr. Flynn, doesn’t that mean that your client should be refuting that testimony with her own?’
‘Your Honor, with respect, that means my client theoretically couldn’t exercise her fifth amendment right against self-incrimination,’ I said.
‘It’s up to you how you conduct your case, Mr. Flynn. Your client can take the fifth amendment all she wants, and I know you’ll explain the consequences to her in advance. I have to be satisfied that there would be a substantial prejudice to your client before I split this trial. The word “substantial” is the key one, here. Any joint trial has some element of potential prejudice, but in my view it is not substantial. Also, I have to weigh up the cost to the taxpayer of two separate trials. On that basis, I’m denying your motion. The joint trial will begin in two weeks. We’ll swear a jury this Monday. Court adjourned.’
‘Your Honor …’ I said, but he’d already gotten halfway to the door. He ignored me, and left.
‘Shit,’ I said, under my breath. ‘Can we lodge an appeal today?’
Harry folded his arms. His eyes were closed and his brows knitted together. ‘No can do. The trial hasn’t happened yet, so we can’t allege any actual prejudice. On appeal we have to show the judge wrongly exercised his discretion. When a trial judge has an inherent discretion built into their decision-making, it’s hell to get an appellate court to overrule him. It won’t work in this case. He’s acknowledging our arguments, but he says that doesn’t automatically mean a split trial if he can deal with any substantial prejudice to the defendants by warning the jury about certain aspects of the evidence. The Zafiro case kind of backs him up on that theory. Man …’
‘But the criminal code says if the defenses are diametrically opposed—’
‘I know what the codes say. So do you. So does he. And he still has the privilege of discretion. We can’t appeal him unless his decision is perverse,’ said Harry.
‘What about arguing bias? Between Stone and Dreyer both defendants are going down.’
‘Where’s your evidence of bias? Especially given that he granted all your other motions. That kind of proves he’s not biased. I’m sure that was in the back of his mind when he gave us everything we’d asked for in disclosure. If there’s clear and substantial prejudice that emerges during trial, then our client has a good appeal. That’s it.’
‘But that prejudice would result in her conviction. We can’t let that happen. Sofia wouldn’t last inside. You know how long an appeal would take, and if we won we’d only get a retrial. She’d have to go through all of this again,’ I said.
Harry shook his head, muttered, ‘He’s a son-of-a-bitch.’
‘What was that you said, Mr. Ford? Did you say something about the Honorable trial judge?’ said Dreyer with a serious tone. He wanted to embarrass Harry, mark his cards. It was a threat. You speak ill of Dreyer’s white nationalist buddy, who just happens to be a judge, and he’ll make sure that judge knows about it.
Harry said nothing, he just stared at Dreyer, his teeth clenched.
‘I thought I caught you saying he’s a son-of-a-bitch? Did you say that?’ asked Dreyer. He was pushing it now, making his power play.
‘I didn’t call him a son-of-a-bitch,’ said Harry.
‘Good. That’s a good boy,’ said Dreyer.
Harry stood up, the word boy had set him off.
‘I said, “he’s a neo-Nazi asshole and you’re his bitch.” That’s what I said, Wesley. Make sure you tell him I said that. You can both put on your white robes and have a good laugh about it.’
Dreyer wrinkled his nose, stood back. Harry was no longer a lawyer, nor a judge. He couldn’t be reported to any professional bodies for that comment, because he didn’t belong to any of them. Not anymore.
‘In case you haven’t worked it out yet, a joint trial gives me a guaranteed win. One of those women killed Avellino. The jury will convict one of them – at least. I don’t care if it’s your client, or Kate’s. I’ll try and have them both convicted, but even if one is acquitted I still get one conviction. I can’t lose. Between you and Miss Brooks – one or both of you will lose. I’ll see you gentlemen in court,’ said Dreyer, and with that he left.
‘Harry, that wasn’t smart. We don’t need the judge any more biased against us than he already is,’ I said.
‘Not possible,’ said Harry.
Kate packed her files away, and as she was leaving she passed by my table and whispered, ‘My client is taking the polygraph,’ and then walked away.
Shit.
Now there was an even bigger problem.
NINETEEN
KATE
Kate watched Dreyer get into the old judge’s face. She’d heard all about Harry Ford. Most young lawyers knew the stories. He was a legend. Smart, fair and fearless. What every judge should be.
She heard Dreyer call Harry boy.
At that moment, she wanted Harry to punch Dreyer in the face. Kate sniggered when Harry rose to the bait, called out Judge Stone, who was the exact opposite of Harry. She knew then that if her strategy paid off, Eddie’s client was going to jail, and she was helping Dreyer to do that. A knot formed in her stomach. Bloch grabbed the box of prosecution discovery, Kate packed away her files and as she passed Eddie, she gave something away.
It was a little thing. Just to let him know Alexandra had decided to take the lie-detector test. This made Eddie’s decision with his client a little less speculative. If both sisters had declined the test, the prosecution would have a better chance of convicting both of them. If Alexandra passed, Kate knew it would be a big point in her client’s favor. Especially if Sofia failed the test, or didn’t take it.
Sofia passing the lie-detector test didn’t enter Kate’s mind. Alexandra was convincing – even Bloch had been impressed. Kate had absolute faith in her client’s innocence, which automatically made Sofia the murderer. And it was right that murderers were convicted and sent to jail. That’s what she told herself. Yet something in the back of her mind hesitated at the thought of pointing her finger at another person and calling them a murderer. That was the prosecutor’s job. She was a defense attorney at heart. Prosecutors were a different breed.