Follow the Money

7


I found Mark Jendrek sitting at the end of the bar in a restaurant attached to the Century City mall.

“Hey, hey, there he is,” he said when he saw me. He stuck out his hand. “Mr. Bigtime, are the rich staying that way?”

“They are this week.” I smiled and slid onto a stool. “How goes the fight against the man?”

“Ah, you know the man. Bastard never takes a break. What can I get you?” Jendrek waved to the bartender and ordered.

Professor Mark Jendrek was in his early fifties. With his oval face and gray, shoulder-length hair that swooped back over his head with a slight curl, he looked like Benjamin Franklin without glasses. He was an adjunct on the UCLA law faculty and taught my first year legal writing course. I guess I impressed him because he asked me to be his teaching assistant during my second year. I was going to be his teaching assistant again next year and we’d planned to meet a few times over the summer to prepare the materials for the class.

Twenty-five years earlier, Jendrek had been a brilliant law student and, as the son of immigrant parents who ran a small restaurant in Glendale, he still identified with outsiders to the profession. He joined the ACLU right out of school and was now a solo practitioner who took civil rights cases and taught legal writing every semester. He’d found my choice of Kohlberg & Crowley surprising.

We talked idly about everything except the class. I could tell Jendrek was far more interested in life at K&C than the writing course. It was a hot June afternoon and the smog was blotting out the hills of West Hollywood, less than two miles away. Just beyond the patio behind us, the traffic sat motionless on Santa Monica Boulevard. Cars exhaled exhaust like cancerous steel lungs as they waited their turn to cross Wilshire into Beverly Hills. The palm trees stood absolutely still. And everywhere the air was stagnant and heavy, as though the very atmosphere was denying the existence of the ocean that lay only five miles to the west.

“So what’ve they got you working on over there?”

“It’s a pro bono thing.”

Jendrek chuckled and slapped the bar lightly. “Ha, giving out the work that doesn’t pay. I should’ve figured as much.” He took another drink and smiled. “Something good though, I hope.”

“It’s a habeas petition.” I smiled back and wondered how much I could really say. “Everyone thinks it’s a loser, but at least I get to write the first draft.”

“They’re always losers. But hell, getting to draft the petition, that’s not bad.”

“You’ve done ‘em, haven’t you? Habeas petitions?”

“Sure, we did lots of them when I was at the ACLU. But hell, that’s been a long time ago now. I guess I shouldn’t discourage you; they’re not always losers.” He raised his eyebrows and grinned. “But almost always.”

“We’re going for ineffective assistance and it doesn’t look good.”

“Never does.”

“The guy’s lawyer was one of the best in town. At least, that’s what everyone tells me. So it seems like there’s no way to win. The only thing is that our client had an alibi — a ridiculous one — but an alibi nonetheless, and his lawyer never even interviewed the people involved.”

Jendrek turned and raised his eyebrows again. “Well, that’s a little strange. But then, I remember a guy who claimed he couldn’t have done it because at the time of the murder he was receiving the dreaded anal probe by the aliens who’d picked him up out at Zuma beach. So, you know, some alibis aren’t worth checking into.”

“Well, this alibi isn’t that crazy, but there is absolutely no evidence to support it and the person our client blames has two witnesses who claim he was home all night.”

“Family members?”

“Yeah.”

“They have a pretty good reason to lie.”

“Sure, but their story makes sense and ours doesn’t.”

Jendrek shrugged. “Go talk to them. Shake the tree and see what falls off. You never know.” He took another drink and then pointed as he spoke. “But see them in person if you can. It’s easier to figure out what people are lying about if you see them in person. And they’re always lying about something.”

I smiled, as if to suggest I knew what he was talking about, but I didn’t. Still in the first half of my twenties, I was nowhere near as jaded as that statement required. But Jendrek had been a lawyer for a long time and seemed to speak it like a mantra.

I thought about Steele and Detective Wilson. I’d met both in person. Spotting the liar didn’t seem that easy. Jendrek sensed my uncertainty.

“Look,” he began. “The thing to remember in any ineffective assistance claim is that you can’t question strategy. I mean, if a lawyer looks at a case and makes a reasonable decision not to present a certain argument, a certain witness, then you can’t second-guess that years later. I mean, if your client insists on a ridiculous alibi, a lawyer may be right to avoid putting that on because no one will believe it and the client will lose credibility. It’s virtually impossible to win a habeas case by questioning strategy.”

Jendrek took a long pull on his beer and drained it. He waved to the bartender, signaling that he needed another, and turned all the way toward me. He was in lecture mode.

“But where you can win is on a failure to investigate claim. What you have to say is that, even if a story sounds incredible at first, any reasonable lawyer would at least do some investigation.”

“Well, that’s where we’re heading with this thing.”

“Of course. But the problem you have is the second half of the argument. There has to actually be something to investigate. If there’s not, if all you can say is that a reasonable lawyer would have checked into the alibi — an alibi that was useless — then you’ve got nothing. A judge will say you’re right, a reasonable lawyer would have picked up the phone, but the fact that this lawyer didn’t pick up the phone is harmless error. It’s a mistake that had no impact on the trial because the alibi was no good. But if you hit the jackpot, and there really was something to look into, then you’ve got a shot. It’s easier to prove the lawyer screwed up than it is to prove a guy’s innocent.”

The bartender brought two more beers despite the fact that I was only half done with mine. I took two big swallows of the first and said, “Yeah, that’s where we’re at. I still need to talk to the family members providing the alibi, but they’re probably just going to say the kid was home all night.”

I picked up my second beer. “Funny though,” I began, “I’m making these phone calls and it’s tough to interview people without having it sound like an interview. Sometimes you just run out of things to say and you’re just stuck. It’s hard.”

Jendrek just smiled. We sat for a minute or so and said nothing. Then I began again.

“The problem is,” I said, between swallows. “Our client tells a pretty good story. He’s very believable. He had no motive to kill his wife and the guy he blames supposedly hated his wife.”

“Murder?” Jendrek smiled. “You didn’t say anything about murder.” He was almost finished with his second beer. “There’s almost always a reason to kill someone. The reason we find serial killers so disturbing is because they kill for sport, for no real reason at all other than their own entertainment. Everyone else always has a reason.”

“That’s just it. Our guy wasn’t going to get any money. They were both very successful, had two kids. They’d had some marital problems a couple years before, but they’d gotten through it and everything seemed fine. It just doesn’t make any sense. This other guy had just had a heated argument with the wife a half hour before.”

“Sounds like you’ve got a real mess on your hands.”

“And like I said, everyone seems to be telling the truth. But they can’t be. Someone’s got to be lying.”

“Ha!” Jendrek slapped the bar harder than he had the first time. He ordered us another round and tossed some peanuts in his mouth from a small wicker basket that had magically appeared from nowhere. “Look, everyone lies. Witnesses, cops, family members — they all lie, all the time. Your clients will look you directly in the face and tell you a lie that they will swear in court is true. A good lawyer never believes anything anyone tells him.”

I stopped in the middle of a sip and squinted. “But how the hell can you ever get anything done?”

“You’ve got to ask the questions they all assume you won’t ask. The questions they never thought to prepare a lie for.” Jendrek tossed some more peanuts down the hatch and continued. “I once had a client that used the old I-was-home-all-night alibi and had his wife swear that was the case. He was a good Catholic boy and swore he didn’t commit the robbery he was accused of. But he’d been in trouble before and had been rounded up and placed in a line up. A witness ID’d him and that was that.”

“But he was lying.”

“You bet your ass he was.” Jendrek smiled.

“And he got his wife to lie?”

“Sure did.”

“So what?” I went for the peanuts. “So people lie. You’d expect them to in a case like that.”

“Yeah, but why did they lie?”

“Because he was guilty!” I laughed and leaned back, wondering what the point could be.

“Hardly.” Jendrek took another drink. “When I asked them what they did at home that night, they told me they watched television and went to bed after the news was over. When I asked them what they watched, they recounted the shows that were on that night. And then my client said he remembered that night well because it was hot and they had to sleep with the windows closed because of the smoke from a fire up in the hills. It was a good detail to add.”

I waited out his silence, watching him over the top of my beer. Jendrek had a flair for the dramatic.

But Jendrek just smiled, taking his time. “There was a fire that night alright. But if they went to bed after the news, there was no way they could have known about it, because it didn’t start until 11:30. It wouldn’t have been on the news and there wouldn’t have been any smoke yet where they lived. It was a dead giveaway. It was part of their lie they never thought about. It was also the thing that saved him because it was the exact same lie he told the police.”

I must have looked puzzled. Jendrek tossed back the last of the peanuts, washed them down with the last of his beer, and leaned back on his stool.

“Look,” he began, “people lie for all kinds of reasons. Accused people don’t lie just because they’re guilty. This guy was innocent and thought that it wouldn’t make a difference whether he told the truth or simply said he was home all night — either way, he knew he was never at the crime scene. So, he went down and told his story and then he got f*cked because a witness picked him out of a lineup. That’s all the cops needed to conclude he was lying and his wife was covering for him.”

Jendrek ordered a fourth and ran his fingers through his colonial locks. I could see the salty trial lawyer coming out. His mannerisms, hand gestures, the facial expressions, pauses, it was all theater.

“You see,” he went on, “the reason he knew about the fire is because he and his wife were out that night. They were up in the hills and on their way home they could see the fire and all the emergency crews from the road. And, by the time they got home — at three in the morning — they did have to sleep with the windows closed because the smoke had made its way down the hill. He was never at the crime scene because he and his old lady were up in the hills at a swinger party. Seems his wife liked to get gang banged and he liked to watch. Truth was, this good old Catholic boy felt guilty and didn’t want anyone — especially his mother — to ever find out where he really was that night. And by the time the witness picked him from the line-up, it was too late, everyone was convinced he was guilty.”

Jendrek looked me in the eye and reached for his fresh beer. “The moral of the story? Always assume people are lying — but never assume you know why.”