Follow the Money

18


The courtroom was packed. Despite its high ceilings, the air was hot and stagnant. Reporters had been lining up outside since four in the morning. Those who were too late to get a seat in the courtroom had to watch on a monitor in a room down the hall. Those who were too late to get a seat in there were out of luck.

Reilly and I had spent the entire time Carver was gone getting ready, going through every scrap of paper in the file. Carver had called almost daily from France. Not much of a vacation, I thought. But that was the price he paid for the lifestyle he had.

I scanned the crowd, wondering if Ed Snyder was there, and saw Garrett Andersen in a seat in the back row. I was surprised he’d shown up. I couldn’t imagine him standing in line to get in and I assumed he must have pulled some strings to get a seat.

When the bailiff came in, the room hushed. He called the room to order. Everyone stood. Then he held the door open as Judge Atkinson stepped inside. The Judge’s gray head poked up from his black robe and he hovered at the bottom of the stairs, surveying the packed courtroom before ascending the steps up to the bench. He spoke as he eased into his chair. “Please, be seated.” There was a dull clamor as everyone obeyed.

There was little in the way of beginning. The Judge announced the name of the case. Carver and Anthony Griggs, the State’s attorney, introduced themselves. Then the Judge nodded at Carver and said, “You can begin whenever you’re ready.”

Carver stood, tan and relaxed from his weeks in Provence. He left his notes on the table and walked to the podium in the center of the courtroom.

“Thank you, your Honor.” Carver straightened his glasses and cleared his throat. “This case arises from what we contend was the improper conviction of Mr. Steele for the murder of his wife twelve years ago. Had the jury been presented with all of the evidence that we believe a reasonably competent attorney would have uncovered and presented to a jury, there can be no doubt that the outcome of the trial would have been different.”

The Judge leaned forward, “Let me stop you there, Mr. Carver. Wouldn’t you concede that the evidence at trial was sufficient to sustain a conviction?”

“Well, your Honor, we’re here today because the jury clearly believed the evidence was sufficient for a conviction. But the jury only saw the pieces of evidence that made it possible to convict Steele. They did not see the evidence offered today, the evidence that we have so easily uncovered and that draws a direct link between Mr. Bishop and the murder.”

“But surely, the jury wouldn’t have convicted him unless they believed he did it,” the Judge responded.

“I believe juries do the best they can with the facts before them, your Honor. But when they have the wrong facts, they reach the wrong result.”

Carver paused for a second. He cleared his throat and poured a glass of water from the pitcher on the podium. He took his time, moving methodically, deliberately.

“Now, let’s look at what the jury saw. The jury was told that at 8:52 Steele made a 911 call. In fact, the jury heard the tape of the call. He’s frantic. He transposes the numbers in his address, which causes a brief, and I stress brief, delay in the arrival of police.”

Carver took a drink of water. The room was silent but for the faint squeak of Judge Atkinson’s chair. “Now remember that from that first moment, from the first words of that 911 recording until today, twelve years later, Steele has maintained the exact same story, never wavering even once. He told the 911 operator, ‘Someone broke into my house and attacked my wife. I found her in the tub, she’s bleeding everywhere.’ When the police arrived, Steele told them the same story. After his arrest, he told his daughter the same story. His daughter called early the next morning and was told by Matt’s sister that Matt didn’t come home that night.

“But later that day, after news of the murder was all over the television and newspapers, Matt and his sister and his mother all told the police that Matt was home all night. And that was it. That was the only time anyone connected with the case dug any deeper.

“Despite Steele maintaining his innocence, his attorney never spoke to Matt directly, never talked to the sister, never talked to the mother, never talked to any of Matt’s friends. Nothing. Even then Matt Bishop had a history of delinquency. It would be common, almost expected, that he would lie to the police. But no one asked any other questions.”

I turned to look back at Andersen and saw him sitting quietly, unconcerned. He wore a mild, almost mocking grin that seemed odd given the direct and very public attack on his own work.

“Now, let’s examine the evidence the jury relied upon.” Carver went on. “First, Steele had blood all over him. Well, the 911 operator told Steele to remove his wife from the tub and attempt CPR. This would explain both why he was covered with blood and why there were gaps in the 911 recording. In addition, Steele himself was cut with the knife, which means he was covered with his own blood as well. There were no signs of forced entry. And despite the fact that there was no motive, no insurance money, nothing to be inherited, no evidence of marital strife, the jury convicted. But it was not because they knew Steele was guilty. It was because there was simply no one else to blame.

“But let’s add to that the facts the jury never heard. First, Matt had a history of breaking into houses. He had been inside the Steele house countless times and knew his way around. Second, he had a history of threatening arguments with Mrs. Steele. In fact, right before the murder they had such an argument, an argument where he threatened to kill her. The jury did not hear about the two witnesses to Matt’s threat against Mrs. Steele. The jury never heard any of this because Mr. Steele’s counsel failed to do an adequate investigation.”

Carver picked up his notes from the counsel table. His flipping through them was the only sound in the room.

“But what is worse, the jury never heard that Matt left Ken Stevens’s house at 8:30, only ten minutes after having a heated argument with Mrs. Steele during which he’d threatened to kill her. He rode his skateboard over to the Steele residence. A trip that would take roughly fifteen minutes. He called his friend Dan Kelly between 8:45 and 8:50 to tell him that there was all kinds of activity over at the Steele house.”

Carver’s voice was rising. “He called his friends to say there were police cars, there were ambulances, there were people all over. He called his friends to tell them that they’d better get over there to check it all out.”

Carver paused again, tossing his notes back on the table. When he spoke, he spoke softly.

“Check out what?”

He took another drink from the glass.

“Check out what?” He repeated. And then added loudly, “At 8:45? At 8:50? There was nothing to see! The 911 call wasn’t even made until 8:52! The cops didn’t get there until after nine! Only minutes before Dan Kelly and Ken Stevens arrived at the scene. But the jury never heard any of that. None of it.”

Carver slapped the podium as he spoke.

“The only way Matt Bishop could have known that there would be police cars and ambulances at the Steele house is if he already knew that Sharon Steele had been attacked. Had the jury heard that, I submit that the outcome at trial would have differed. And I further submit that any reasonable attorney would have uncovered this evidence. In fact, when we took on the case we assigned it to a summer associate, Mr. Olson, who is sitting here at the counsel table.”

Carver motioned to me. I could feel a hundred pairs of eyes settle on my embarrassed face.

“Mr. Olson is not even an attorney,” Carver went on. “And he found all of this out twelve years after the fact. Now, with all due respect to Mr. Andersen, who I see is with us today, if someone who is not even a lawyer can find this evidence years later, surely a reasonably competent attorney not only could have, but should have found it in the days and weeks following the murder.”

I sat there convinced that Carver was right. If a law student could figure it out, surely a real lawyer should have. It was only then that I appreciated the genius of Carver’s strategy.

“I can’t offer the Court an explanation. All I can tell the Court is that the jury didn’t have the information it needed to reach the right decision. And the reason for that is because Mr. Steele had ineffective counsel.”

“Well now,” the Judge interrupted as he leaned forward and rested his arms on the bench. “Maybe we can get some of this sorted out. Mr. Andersen,” Judge Atkinson raised his voice, calling out to Garrett Andersen as though he were further away than everyone else. Andersen stood.

“Since we’ve got you here,” the Judge continued. “I hadn’t intended to turn this into an evidentiary hearing or anything, but I suppose I do have a couple of simple questions, if you’d be so kind.”

“Of course, your honor.” Andersen stepped forward, through the gate and onto the other side of the bar that separated the lawyers from the observers.

“Okay then,” Judge Atkinson continued. “Let the record reflect that Mr. Andersen is a highly respected member of the bar and has impressed this Court in the past with his skillful and ethical behavior.”

“Thank you, your Honor, that is very kind of the Court to say.” Andersen spoke with absolute ease, without defensiveness of any kind.

“Now, Mr. Andersen,” the Judge asked “Did Steele tell you the story he’s been telling all these years?”

“Yes, it was substantially the same as what’s been recounted here.”

“And you never spoke to Matt Bishop?”

“No, your Honor. I did not.”

“And you never spoke to Matt’s family or his friends?”

“No, your Honor.”

Judge Atkinson squinted and shook his head, obviously confused. “But why? Why didn’t you?”

“First of all,” Andersen began, “I simply didn’t believe him. I’d never met him before. All I had to go on was the fact that his story just didn’t seem to make sense. Then, when I got the police report, it was clear that the entire Bishop family was going to say that Matt was home all night.”

“But what about others who might say that he was not at home?”

“Your honor, I couldn’t just go around to everyone in Los Angeles and ask if they saw Matt Bishop that night. There are limited resources in an investigation. You can only do so much. As the Court knows, it’s easy to dissect an investigation after the fact. I agree with Mr. Carver that the evidence the State put on was weak and I chose to attack that weakness rather than chase an alibi that I thought no one would believe.”

“But in letting Steele testify, without any corroborating evidence, he sounded like a liar.”

“Your Honor, a criminal defendant has a right to testify in his own defense. I advised him against it.”

“Well, I suppose that’s correct.” Judge Atkinson paused. I could hear the sounds of scratching pens as the reporters took their notes. “Thank you Mr. Andersen, that’s all I have.”

“Thank you, your Honor.” Andersen turned and went back through the gate to his seat wearing the same smile as before.

“Mr. Carver.” The Judge called out. “Anything else?”

“No, your honor. I have nothing more.”

“Mr. Griggs.”

Griggs stood and walked to the podium. He took a thick three ring binder with him. There was a lengthy pause as he flipped through the binder and arranged a stack of papers in front of him.

“Your Honor, as Mr. Andersen just said, it’s easy to dissect a case years after the fact and find faults or flaws. But we have to remember that the Constitution accepts certain levels of mistake and error. The State submits that there were no errors made in this case, and, to the extent the Court is inclined to find that there were, we would argue that any errors the Court does find are harmless and do not rise to the level required to overturn a conviction.” Griggs flipped through some more papers. He appeared unorganized.

“Mr. Steele, who was a United States senator at the time of his trial and conviction, had one of the finest trial lawyers in the country. To claim that he received ineffective assistance of counsel is simply ludicrous. Petitioner’s entire case rests on the statements of a single individual who is himself a criminal with a lengthy record and who should not be trusted to tell the truth. Furthermore, Mr. Kelly, on who Mr. Steele’s argument relies, is able to recall a level of detail that, frankly, I find completely unbelievable. I would bet that most people in this room couldn’t describe an evening that took place last month, let alone twelve years ago.”

“Well, yes, counsel,” Judge Atkinson said. “That’s certainly true. But I think everyone of our generation can remember where they were when they heard Kennedy was shot. We may not be able to tell you what we had for dinner three weeks ago, but we remember big, traumatic events. Wouldn’t you agree that going to the scene of a gruesome murder would be something you would remember?”

“Perhaps. But there’s no reason to think that Mr. Kelly remembers the exact times that these events occurred. If his memory is off by as little as fifteen or twenty minutes, then petitioner’s case crumbles.”

“I would agree with that,” the Judge said, pointing his finger at Griggs. “But, whether or not Mr. Kelly’s memory is accurate, whether or not his memory is credible, aren’t these the kinds of questions normally reserved for juries?”

“Certainly the weight to be given to evidence is a traditional jury function,” Griggs conceded.

“Then why not give a jury a chance to hear this evidence?”

“Because the evidence is inherently unreliable your Honor. It simply is not believable, let alone credible, to claim that Mr. Bishop, who was then a fifteen year old boy, broke into the Steele house without leaving any trace of a forced entry; stabbed Mrs. Steele thirty-nine times; overpowered Mr. Steele, a grown man; and managed to slip away into the night without a trace. And all because he’d had an argument on the phone with Mrs. Steele. An argument that differed in no way from the many previous arguments they’d had that did not result in murder or violence of any kind. It is impossible to attribute all of these qualities and behaviors to a fifteen year old boy.”

The Judge cut in again. “But what about the criminal history? Why is it so impossible to believe that Mr. Bishop could have committed the murder. The kid’s got a rap sheet a mile long and a demonstrated history of committing crimes — crimes against women mind you — using a knife as his weapon of choice. Why shouldn’t a jury be entitled to at least hear it all and sort it out for themselves?” Judge Atkinson sat back. Griggs flipped the pages in his brief.

“Uh, your Honor,” Griggs began, slowly. “As the Court knows, the mere commission of subsequent criminal acts cannot be used to prove that Mr. Bishop committed an entirely different criminal act on an entirely different occasion.”

Carver rose to speak. “As to that objection, your Honor, if I may.”

The Judge cut Carver off. “Mr. Carver, I’m sure you’ve got thoughts on that issue, but you’ll have that on appeal, should you need it. I’m not sure the evidence of the criminal convictions adds much one way or the other, and I’m inclined to disregard it for purposes of my decision. I want to make clear that, although I find it interesting, my decision in this case is in no way based upon petitioner’s inclusion of that evidence.”

“Now, your Honor,” Griggs continued.

“Mr. Griggs, I think I understand and appreciate your points.” Judge Atkinson spoke in a tone that made it clear he’d heard enough. “This is not an easy case. It’s not easy to overturn a conviction, especially one involving the complexities and heinous acts at issue.”

Griggs sat back down and Judge Atkinson shuffled through some papers he had in front of him. When he spoke again, he addressed the entire room.

“The right to counsel and the right to due process guaranteed by our federal Constitution requires that a criminal defendant cannot be properly convicted under our laws without competent representation by counsel or a knowing waiver of the right to counsel.”

My eyes went back and forth between Carver and Andersen. Both of them were smiling.

The Judge went on. “There can be no doubt that the jury convicted Mr. Steele on evidence that was, at best circumstantial and inconclusive. The most salient fact the jury had to consider was the simple fact that there was no other suspect. It is my opinion that the failure to investigate Mr. Steele’s alibi in light of the evidence that was clearly obtainable constituted ineffective assistance of counsel. I believe that a reasonably competent attorney would have done more than rely on the police interview of Matt Bishop and that a minimal investigation would have uncovered the evidence offered today. Finally, I conclude that, had the jury been presented with the evidence presented today and in the briefing, the outcome of his trial would have been altered. Based on the forgoing, I hold that the conviction of Mr. James Steele was obtained in violation of the Constitution of the United States and it is therefore vacated.”

Commotion was already erupting in the courtroom even before the Judge finished. The reporters were clamoring over one another for interviews, lobbing questions on top of questions. Carver reached out to shake hands with Reilly and me, everyone was smiling, everyone was laughing.

Griggs packed his briefcase and made his way through the crowd, he was followed by Andersen. I watched them thread their way through the mob. Griggs wore a scowl and would say only that he would review the decision and proceed from there. Andersen said nothing at all, but I noticed that his expression had not changed from before. He walked slowly. The smile never left his face.