The Lawyer's Lawyer

CHAPTER Fifty-Six



Robert Merton was already in the courtroom when Tom and Jack arrived. He greeted them both amiably as if they were business rivals who had just arrived for a negotiation. Anyone looking at the tall, handsome defendant and his even taller elder statesman lawyer would have thought the State had no chance based on appearances alone. Merton was a short, thick, unattractive man with olive skin and black, greasy hair. Both Tom and Jack knew, however, that appearances didn’t mean anything in a courtroom battle. Merton’s reputation preceded him. He was an experienced, efficient, tough prosecutor who had aspirations for higher office. This was the beginning of a war and they knew it.

As the nine o’clock hour approached, the reporters and spectators filed in. By ten minutes to nine when the bailiffs closed the doors, the courtroom was more than half full. Jack knew that would change once the trial started.

Judge Holbrook walked in at nine and everybody stood.

“You may be seated,” he said, almost shouting to be heard over the fans and the creaking benches. The courtroom was air conditioned but with window units. The windows were old and they leaked and the ceiling was thirty feet high, so there was a lot of space to cover and the antiquated ceiling fans that hung down from long poles to about fifteen feet from the floor had to stay on, swaying and creaking. Still, even with the courtroom only half full, it was warm. It didn’t take long for people to start sweating.

“We have a motion for change of venue set for hearing today and then we have some housekeeping issues if we are going to proceed in this venue,” the judge said. “Mr. Wylie, I have read your motion. Is there anything you would like to add?”

Tom stood up. “Yes, Your Honor. The newspaper articles we have attached to our motion show clearly and consistently that my client cannot receive a fair trial in Apache County. We have not attached any recent editorials or letters to the editor because, surprisingly, since Mr. Tobin was arrested for the murder of Thomas Felton, there haven’t been any. Nothing has changed, however, and there is no reason to conclude that public sentiment has changed.”

“Do you agree with that, Mr. Merton?”

“No, Your Honor.”

“Do you have evidence to disprove it?”

“Yes, Your Honor. May I approach?”

“Come on.”

Merton handed some documents to the judge and immediately gave a copy to Tom. “Judge, this is our response to the defendant’s motion. I’d like to summarize it if I could.”

“Proceed, Counselor.” The judge seemed irritated with Merton’s formality.

“Your Honor, the State doesn’t take issue with the defendant’s assertions in its motion. Those assertions simply do not tell the entire story and they don’t accurately reflect public sentiment at present.

“Obviously, public sentiment was against Mr. Tobin’s efforts to free a man who was convicted of terrorizing this town and killing its citizens ten years ago. I don’t think the record reflects that those sentiments were against Mr. Tobin personally at that time. Now, after Kathleen Jeffries was killed, emotions were very high and they were personal in the immediate aftermath of that tragedy. There is no denying that. However, this public emotional sentiment is not static, it has been continuously changing.

“I would point out to the court—and this evidence is contained in the State’s response—that there were letters to the editor attacking the State and the undersigned personally for setting Mr. Felton free, so the animosity was on both sides. Now, however, things have changed again. Jack Tobin killed a man who everybody in this town believes was a serial killer. People are happy about that. There are no recent editorials or letters to the editor against Tobin because the animosity is no longer there.

“Just two days ago, the Oakville Sun published an editorial questioning whether the State should even be spending the money to prosecute Jack Tobin. I submit to you, Your Honor, that the evidence shows that the worm has turned in Mr. Tobin’s favor. Maybe the State should be asking for a change of venue.”

“Well, do you want one?” the judge asked.

“No, sir. We’ll take our chances with the good citizens of this county.”

“The guy makes me want to barf,” Jack whispered in Tom’s ear.

“He’s good, though,” Tom said. “He tends toward the dramatic but he’s making his point.”

“Mr. Wylie,” the judge asked. “Do you have a response?”

“I would just comment that it seems a little strange, Your Honor, that since Felton was killed, there have been no editorials about the killing and my client—none—until two days before this hearing when the Oakville Sun suddenly woke up and questioned the wisdom of my client being tried at all. This is a hometown setup all the way.”

“Mr. Wylie,” the judge said, “you can’t base your reasons for a change of venue on the Oakville Sun and criticize the paper at the same time. You’ve got to take the good with the bad.”

“I disagree, Your Honor. What’s happening here is pretty clear.”

“Maybe to you, Counselor,” the judge replied, “but not to me. Your motion is denied. I will, however, agree to sequester the jury because once this trial starts there is going to be all sorts of stuff on the airwaves and in print. Now we need to discuss logistics.”

It was the ruling both Tom and Jack had expected, but one never gets used to injustice. Tom needed a minute to collect himself, so he sat down and let Merton take the lead.

“Your Honor, I have my list of witnesses and evidence, which I am giving to the defendant’s counsel this morning in open court. I believe these documents satisfy the state’s obligation under Rule 3.220 of the Criminal Rules of Procedure. Having said that, Your Honor, we are ready to proceed to trial at your earliest convenience. This is a case that needs to be disposed of as soon as possible, respecting the rights of all parties, of course.”

“Have there been any plea bargain discussions?” the judge asked.

“No, sir,” Merton replied, “nor will there be.”

That got the judge’s attention. He looked at Merton as if to say, Are you sure you want to do this? You can offer this guy a year, maybe two, save a lot of face and guarantee your reelection.

Jack leaned over and whispered in Tom’s ear, “Cocky bastard, isn’t he?”

“He sure is but we wouldn’t have it any other way, would we?”

“Nope. Makes our decision a lot easier.”

“Changed your mind on Sam yet?” Tom asked.

“Not yet.”

“Mr. Wylie, how do you feel about a trial date?” the judge asked.

“Your Honor, I obviously have not looked at the State’s disclosures yet. My client is not opposed to setting an early trial date, say three weeks from today, with the caveat that if we decide we need to do further discovery after reading the State’s disclosures, we can get a new trial date.”

“What do you think, Mr. Merton?”

“That’s fine with me, Your Honor, so long as we set a deadline as to when Mr. Wylie will make his decision.”

“That sounds fair. How much time do you think you need to make your decision, Mr. Wylie?”

“Ten days, Your Honor.”

“How about June sixth?”

“That’s fine, Your Honor,” Tom said.

“That’s agreeable to the State, Your Honor,” Merton said.

The reporters in the front rows were feverishly writing down the dates in their notebooks.

“Okay, if no request is made for a continuance on or before June sixth, we will have a pre-trial on June ninth and the trial will be set for Monday, June sixteenth. Mr. Tobin, if no continuance is granted, you will turn yourself over to the custody of the Oakville Police Department on the morning of June sixteenth at seven a.m. Is that understood?”

Jack stood to address the judge. “Yes, Your Honor.”

“Okay, gentlemen, if there is nothing further, this hearing is adjourned.” The judge stood up and walked out of the courtroom as the press moved in unison toward the lawyers and Jack.

“Let’s get the hell out of here,” Tom said.