A Good Marriage(63)

Outside of a political protest, a law student acting in such a way was odd—Judge Yu was right. Paul was right. Why hadn’t Zach just moved along when the police officer told him to? I wished now that I had more details about the warrant, but they had yet to arrive from the managing clerk. As it was, I had no choice but to rely on what Zach had told me, which wasn’t all that helpful.

“There was an extremely aggressive new mayoral initiative at the time, broken windows and such,” I said to Judge Yu as forcefully as I could, hoping that would make the excuse more credible than it sounded, even to me.

“‘Broken windows,’” the judge said derisively. “Lucky for your client that he’s white. Otherwise, he’d probably be dead.”

There was that lean to the defense. I had Judge Yu on our side for a second. I needed to seize the opportunity.

“Your Honor, on the night in question, my client had just found his wife dead in his home. He was in a state of extreme emotional distress when he accidentally struck an officer standing behind him with his elbow. Under the circumstances, I submit that the prosecution will never find a jury willing to convict for the assault, and yet he’s being held at Rikers, where he’s been assaulted three times already. This is an outrageous miscarriage of justice, Your Honor. One that could cost my client his life.”

“This all does sound excessive under the circumstances, Counselor,” Judge Yu said to Wendy Wallace. “And while I appreciate the ingenuity of getting those pictures in front of the arraignment judge, a homicide—with which the defendant has yet to be charged—is, as the defense points out, irrelevant.”

Paul wrote a note on his pad. “Ask about ADA Lewis, who was at the scene. I bet he wasn’t even on duty.”

Who cares? I wanted to write back, but there wasn’t time, and Zach’s public defender and Zach had both flagged the ADA, too.

“Further, Your Honor, this alleged assault only occurred once ADA Lewis appeared on the scene,” I began, rolling the dice. “It’s my understanding that he wasn’t even assigned to homicides that night.”

“Then what was he doing there?” Judge Yu asked. And, unfortunately, she was looking at me.

“I don’t know, Your Honor. That’s my question as well,” I said. “Perhaps Ms. Wallace or someone else at the DA’s office instructed him to find cause to make an arrest because the family involved is high-profile.” I braced for Wendy to shout an objection. Instead, she glared coolly my way. It was far worse. “Once ADA Lewis arrived on the scene with Detective Mendez, my client was deliberately manhandled, escalating the situation, which directly led to his inadvertently injuring the officer. The DA’s office effectively created cause for my client’s arrest, which they are now using as an excuse to hold him at Rikers while they conduct a murder investigation. It’s impermissible bootstrapping.”

Finally Judge Yu turned to Wendy Wallace. “So what’s the story with this ADA …” She consulted her notes. “Lewis.”

“There’s no story, Your Honor. It’s procedure to have an ADA at the scene of all homicides. Lewis was that ADA. Perhaps somebody went home that night with a stomachache or had a hot date, and Lewis filled in. Last I checked, the DA’s office is not obligated to provide evidence of its staffing schedule to the defense.” Wendy Wallace leveled her eyes at Paul this time, and with a look that should have, by all accounts, sent him up in flames. “This entire discussion is moot anyway,” she drawled, approaching the bench with a document outstretched. “The grand jury has just returned an indictment against Zach Grayson for first-degree murder in the death of his wife, Amanda Grayson.”

I had suspected this might be coming. And I was prepared.

“Your Honor, the defense objects to the amending of the indictment,” I began. “The defendant wasn’t offered the opportunity to testify. It’s a clear violation of CPL 190.50. It calls for vacating the indictment.”

This was all true. It was a violation of the criminal procedure rules not to give a defendant a chance to testify before the grand jury charged with indicting him. It was such a serious violation, in fact, that it could result in an indictment being thrown out after the fact. I might not have been experienced in state court, but I did excel at doing my homework. Unfortunately, I was also prepared for how Wendy Wallace would respond, which was why I already knew I was unlikely to prevail.

“Oh, wait, does your client want to testify?” Wendy Wallace turned to me, head tilted slightly. “Because we will happily vacate the indictment to make that happen.”

And there it was. Of course I didn’t want Zach to testify. A defendant testifying before the grand jury was suicide, no matter how innocent they were. Grand jury proceedings subjected defendants to broad questioning with no judge present, resulting in reams of testimony that could easily be used to impeach them at trial. Nope. No way. But it had been worth a try raising the objection. Attorneys made mistakes, even accomplished ones like Wendy Wallace.

“What about it, Counselor, is your client going to testify?” Judge Yu asked. She knew how this was going to end, too. We all did. It was only a meaningful violation if Zach actually wanted to testify.

“No, Your Honor.”

“Then the indictment stands.” Judge Yu cast a sharp eye on Wendy Wallace. “Counselor, your tactics go that close to the line one more time, and I’ll hold you in contempt.”