17
DUNCAN FOUND himself buying Professor Nathan Cole an expensive meal. He hadn’t been intending to do so, had thought he was just coming to the professor’s office, but when he’d arrived Cole had immediately suggested they talk over lunch.
Duncan had obediently followed Cole off of the John Jay campus and over to Eighth Avenue, at which point they’d cut down a few blocks, then over to Gallagher’s, one of the city’s better steak houses. “I’m not sure we can just get in here,” Duncan said.
“I made us a reservation,” Cole said. He was a short man with a bad comb-over, wearing corduroys and a blazer, looking like he dressed to ensure that everyone who saw him made him for an academic. “Lunch was the only time I could fit you in.”
Duncan understood what Cole was up to: sticking the firm for an expensive meal, the professor taking a little perk from his position as expert. Although he didn’t like being taken advantage of, Duncan couldn’t get too worked up: the bill would be coming out of the firm’s pocket, not his. He’d seen other experts pull similar stunts, snatch every fringe benefit they could get while moonlighting in a lawsuit. Besides, Duncan liked a good steak as much as the next guy.
“So,” Duncan asked, after they’d ordered—a filet for Duncan, a rib eye for Cole. “Have you had a chance to look over the gunshot residue report I sent?”
Cole nodded, taking a deep sip from the glass of California old-vine zinfandel he’d ordered. He’d suggested sharing a bottle but Duncan had demurred, citing work. “Do you understand what gunshot residue is?”
Duncan grinned. “For purposes of this conversation, let’s pretend I don’t.”
“Gunshot residue is distinct because it’s a fusion of three elements that otherwise don’t have occasion to meet: lead, barium, and antimony. When you fire a gun you’re essentially making a little explosion that sends the bullet on its merry way. That explosion fuses those three elements and sends a microscopic cloud of them out onto the hand of the person holding the gun. You grab somebody right after he shoots a gun and he’s going to have hundreds of these particles on his hand. The thing about those CSI shows is all that home-run forensic shit might be true if you caught the guy five seconds after the murder and he was still standing at the crime scene. But once time and distance come into play it’s a different story.”
“They arrested Rafael about an hour after the shooting,” Duncan said. “Are you saying that all the gunshot residue would’ve worn off?”
“That’s one way to look at it. The stuff we’re talking about is like talcum powder—it’s dust. If you wash your hands thoroughly you might get rid of it.”
“What jumped out at me was that the report said the particles were found on Rafael’s left hand. He’s right-handed.”
“That’s actually not as significant as you might think. Most people have both hands on or near a gun when firing. Plus it could easily get transferred from one hand to another, or if he held the gun in his nondominant hand for a second after it’d been fired, like while opening a door or something.”
“The report says they found six particles on his hand. Given the time and distance, is that a lot, or a little, or what you’d expect?”
“It’s not a lot under any circumstance. The point is that a handful of particles—that could well be incidental contact. Was your guy ever in the back of a police car after he was arrested?”
“Yeah.”
“You ran the back of the typical NYPD squad car, you’d easily find a few particles of gunshot residue sitting around in the carpet fibers. With a handful of particles your guy could have picked them up from letting his hand touch the seat cushion just as easily as he could’ve from shooting a gun. Police stations are also highly likely to have gunshot residue floating around. There’ve been several instances in which the GSR testing room itself was shown to be contaminated.”
“So would your view be that this amount of GSR is inconclusive in terms of showing that my client had actually held a gun?”
“If they’d found a hundred particles, then no way, he’d almost certainly been in contact with a fired gun. But the few particles they found? It could easily be contamination.”
“That’s great,” Duncan said.
“What you need to get is the actual lab notes,” Cole said. “They’re going to tell you a lot more than the final report does.”
Duncan nodded. “So you’re saying we really have legit grounds to challenge the GSR evidence?”
“I’ve learned never to underestimate the extent to which judges are in the DA’s pocket. But with anybody who’s actually doing their job, then yeah, we’ve got a fighting chance.”
“You think the DA’s office realizes that it’s weak?”
Cole laughed at the question. “You’re at Steven Blake’s firm, right?”
“You know Steven?”
“I’ve seen his name in the paper. I know you guys do all that clash-of-the-corporate-titans stuff. This is what, pro bono for you?”
Duncan stiffened at what he took to be condescension. “We’re putting the same resources toward this case as we would any other.”
“That wasn’t my point,” Cole said pedantically. “What I’m saying is, how often do you think a defendant like yours gets to have somebody like me double-check the forensics? What happens is, the DA says they’ve got gunshot residue on the guy’s hands, his public defender tells him he should plead out; plead out he does, and everybody goes home. The reason they don’t worry about getting this stuff right is because nine times out of ten nobody checks whether or not they do.”
“And you think we can really keep them from bringing it in?”
“Give me a fair-minded judge with an IQ over ninety and I like my chances,” Cole said. “So in the New York criminal courts, I’d put it at fifty-fifty.”
ALTHOUGH HE’D done his best not to show it over lunch with Cole, Duncan was buzzing from what he’d learned. He was a practitioner of massive, slow-moving, often tedious cases in which success was generally measured by victories so incremental and complex that even other lawyers could scarcely be bothered to understand them.
This was something else. Eliminating the key physical evidence in a murder case—there was something viscerally exciting about it. Of course, even if Cole was right and they could get the gunshot residue thrown out, the police would still have an ex-cop eyewitness and a clear motive. It wouldn’t mean in itself that Rafael would walk, not even close, but it would change the momentum, and it would certainly change plea-bargain negotiations.
At a minimum, it was enough for Duncan to go back to Blake with, tell him he needed to keep working the case for a while, at least through the motion to suppress. Duncan hadn’t realized how much he’d already come to want to stay on it. Part of it was that everybody went to law school wanting to be Perry Mason. Then there was the undeniable fact that a murder case was much more exciting than what he spent most of his time doing. But there was also the sense that he was actually accomplishing something here, getting a result for his client that another lawyer—one with fewer resources, one who was going through the motions—wouldn’t have gotten.
Plus he’d almost blown it. If he hadn’t pushed back against Blake, if he’d worried only about finding some character witness in aid of a plea, if he hadn’t gone to see Cole, Duncan wouldn’t have discovered the weakness in the DA’s forensic evidence. He’d almost allowed himself not to do the work, to take a gigantic shortcut he wouldn’t have dreamed of taking with a paying client, and as a result he’d almost missed his first break in the case. Duncan felt like he’d betrayed the lawyer’s version of the Hippocratic oath: to leave no stone unturned in advancing your client’s side. He had Rafael’s life in his hands—his actual life—and he’d almost let himself be talked into doing less than everything there was to do. In Duncan’s eyes, that wasn’t just a mistake; it was a professional sin.
Duncan e-mailed Blake from his BlackBerry as he walked through crowded Midtown streets back to his office, asking for a few minutes of his time when available. He didn’t get an immediate reply, which wasn’t unusual: getting hold of Blake during business hours generally ranged somewhere between difficult and impossible.
Back at his office, Duncan turned to the libel suit against the Journal. The case was a little neglected, nobody at the firm having much enthusiasm for it, the unspoken agreement being that it couldn’t be won. Duncan’s next task was seeking to uncover Candace’s confidential source. He wasn’t entirely sure why: doing so probably wouldn’t help their case. It would be very helpful if the source repudiated the article, or admitted to lying to the reporter, or had some obvious reason to be bad-mouthing the Aurora. But those were unlikely, and if the source turned out to be someone credible who stood by what Candace had written, then uncovering that person would make winning virtually impossible. The paper didn’t have to prove the truth of what they’d printed, only that they hadn’t done so with actual malice, and a credible source would provide them with that cover.
Duncan had raised all this, but Blake simply replied that the client wanted them to uncover the source. There weren’t that many likely suspects—the information had almost certainly come from an insider in the investigation. The logical assumption was that someone at the DOB had talked in frustration after Durant declined to refer it to the DA’s office.
Duncan was finalizing a half dozen deposition subpoenas of the people he considered the most likely. He wanted to prioritize the potential culprits, so he decided to issue the first subpoena to William Stanton, the investigator who’d been in charge of the DOB’s probe of the Aurora accident. If anybody was likely to have felt burned by the decision to shut down the investigation it was Stanton.
It was almost eight when Blake finally summoned Duncan to his office. “So I met with Dr. Cole today,” Duncan said as he sat down.
Blake frowned slightly. “Who’s that?”
“The forensics guy,” Duncan said. “About the gunshot residue.”
“Did you get closure, or whatever you were looking for?”
“Cole thinks we’ve got a real shot at tossing the GSR.”
Blake started to say something, but caught himself and leaned back in his chair, looking away from Duncan. “Even so,” he said after a moment. “They’d still have what, an eyewitness, motive.”
“I just don’t know if he did it,” Duncan couldn’t resist saying.
Blake gave him a puzzled look, as if Duncan had just asked him the meaning of life. “Is somebody asking you to know?”
“I understand our focus has been on leveraging a deal, and I understand why, but if he’s actually innocent shouldn’t our focus be on that?”
Blake’s annoyance won out. “Jesus, what, you’ve discovered your calling all of a sudden? I let you keep this guy because I could tell you felt sorry for the jam he was in, and I was pretty sure we’d get him a better deal than some public defender. I wasn’t looking for you to go searching for the Holy Grail.”
“I’m just following the case where it’s taking me,” Duncan protested, unsure why Blake was reacting this way. “Like I would any other. You want me to take the first halfway decent deal I can get for him, even if I think we can maybe take the state’s case apart?”
“Yes,” Blake said without hesitation. Duncan looked at him, suspecting he was being f*cked with. But Blake’s expression did not support that theory.
“But, Steven, I can’t just … I mean, I’m his lawyer.”
“And if you had something real—an alibi, a way to get rid of the eyewitness—something that really said he didn’t do it—then I’d say go to the wall. But all you’ve got is that the DA thinks they’ve got your guy three different ways and you think they’ve only got him two. It doesn’t mean the rest of their case isn’t solid. Besides, you’ve got a lot on your plate here. You know how much our bill to Roth was, just last month? Almost half a million. You know how much of that was you?”
Duncan wasn’t comfortable with Blake’s sudden shift of direction. “I spent most of my time on their cases.”
“Twenty percent. Leah Roth is inviting you to parties, going on walks with you in her old man’s yard, for Christ’s sake. Having someone like that in your corner when your partnership vote comes up—I don’t need to explain that, do I? One of the firm’s anchor clients wants you to be a partner here, then you’re a lock. Last time I checked, that was what you wanted, right?”
“Of course,” Duncan said quickly. Blake had never directly raised partnership like this with him before.
“We play a team sport around here, and I need you on the team. Clear?”
Duncan cleared his throat before he trusted himself to speak. “As a bell,” he said.
DUNCAN WAS trying to figure out just how bad this was. He understood what his marching orders were, but he wasn’t sure he could follow them. He’d been asked to do a couple of ethically questionable things in the course of his legal career (as had every other firm lawyer he knew), but this was the first time he was being asked not to put his client’s interests first. It felt like crossing a different sort of line.
But then again, it wasn’t like Blake was asking him to take a dive on the case. Most criminal cases ended with a guilty plea, after all. Blake was just trying to make sure he kept his eye on the ball, that he should take what he had and go to the DA and see where they were.
Much as he wanted to believe it, Duncan wasn’t sure that was true. He needed a second opinion, somebody who knew Blake but who wasn’t involved in the murder case.
Duncan walked down to Lily’s office. They’d been through the wars together, and he trusted that he could talk to her about such things.
Lily was in her office, some obscure trip-hop playing on her Bose iPod dock as she typed away on her computer. “Can I interrupt?” Duncan asked.
“You just did,” Lily replied, but she leaned back in her chair, giving Duncan permission.
He closed her door and sat down. Duncan knew the broad outline would be enough for Lily to get the picture. It took him only a couple of minutes to get her up to speed. “So what do you think?” Duncan asked once he was finished.
Lily hadn’t looked at him while he was talking, which was typical for her when concentrating. Now she looked over, twisting up one side of her mouth. “You sound pretty f*cked,” Lily said.
Not exactly what Duncan wanted to hear, though he wasn’t sure how serious she was being. “I hear what Blake’s telling me. But I have a job to do. I don’t romanticize being a lawyer—God, I hope I don’t—but I do believe in it. I mean, it’s something more than just being a whore in a suit.”
“First I’m hearing of it.”
Duncan ignored Lily’s reflexive sarcasm. “Loyalty. To our clients. That’s the difference. You say you’re somebody’s lawyer, that means something. You fight for them, even when you know full f*cking well that they don’t deserve to win. That’s the job, right? I don’t do that, I don’t follow through for Rafael because it’s a pro bono case and I’ve got work to do—then what am I?”
“I have no idea what you can live with,” Lily said. “But Blake’s telling you to cut bait. If you really think that goes against your client’s interest, then you’re basically f*cked.”
“But if I figure out a way to really win it, don’t you think Blake will come around?”
“Maybe what he’s telling you is it was good for the firm to help this guy out when he first got indicted and his name was in the paper, but it’s not good for the firm to take the case to trial.”
Duncan had wondered if it could be something like that. He hoped that wasn’t it, because that would mean the firm was putting its own interests above those of its client. While he didn’t think himself naive about the fundamentally mercenary nature of his employer, he wasn’t willing to accept that they would take it that far. “You really think the Blake would do that?”
Lily shrugged. “We don’t have a sight line on all the angles here.”
“So what would you do if it was you?”
Lily looked uncomfortable with the question. “Play out the string as long as you can. Get the best possible deal for your guy—it’s obviously up to the client whether to take it or not. At the end of the day he’s a nonpaying client who’s going to be in your life for one case. You and me, the Blake babies—you know what partnership here brings.”
“Don’t question, follow orders, that’s your advice?”
Lily shrugged. “That’s why they call it work.”