The Lawyer's Lawyer

CHAPTER Sixty-Four



Tom Wylie felt terrible as he pulled into his parking space on Friday morning. An overcast sky with a light rain and thunderclouds in the distance would have been perfect weather to reflect his mood. Instead, he got bright sunshine, which made him even madder. Why the hell does the sun have to shine every day around here? It should be dark and dreary at least two days a week. Disney World is a fantasy.

He was mad at himself more than at Jack. He was frustrated with Jack but Jack was a good man, a man with principles. Danni Jansen must be one hell of a woman, he thought, for both Jack and Henry to stand up for her like that. He disagreed with them, but he didn’t know the woman. He should have given their opinions more respect. Hell, I can’t afford to be nice and polite. I’ve got a guy on trial for his life.

And that was the crux of the matter. He wasn’t angry at Jack. He respected Jack’s opinion. But he was so frustrated. This trial could be won if Jack would let him be just a little more aggressive. They could soothe people’s feelings down the road—although he knew that wasn’t true. You assail someone’s character unjustly, you assail your own character. He wished some politicians could understand that.

No, Jack was doing the right thing and he was willing to accept the consequences of his actions. It was just so damn painful to watch this good man go down the tubes in the name of justice.

This was the last day of testimony by Tom’s calculation. Closings would be on Monday and then the jury would get the case. There was a mob in front of the courthouse as he approached. They were jockeying for position in line. Everybody knew Jack was going to take the stand today. As he got closer, he could see the reporters start to run toward him like starving mice, desperate for that one unique morsel of information they could feed off of and disseminate to the rest of the world.

Tom put his hand up as he continued to move quickly toward his destination.

“I’m sorry. I’m late. I’ve got nothing to say.”

One reporter, a young woman with short blond hair, got in his face. “A lot of people are saying Jack can’t turn this around. It’s already too late.”

It was a teaser, a line designed to get Tom’s blood pumping so he’d fire something back without thinking. She had probably worked on that line all night. This wasn’t Tom’s first dance though. He knew the game. Still, he felt the need to come to Jack’s defense—to say something for him that he hadn’t been able to say to him the night before. So he stopped, and when he did, the reporters fought to get their microphones in front of his face, and the crowd closed in around him.

“Jack Tobin believes in our justice system, more than you can ever imagine. And I am proud to be representing him. He will tell his truth today. It’s never too late when you have truth on your side. I hope you will all remember that. There is no calculated hide-and-seek game by the defendant in this trial. Jack will tell his side. He will be subjected to cross-examination, and the chips will fall where they may. Now, if you’ll excuse me, I need to get inside.”

Tom put his head down and pushed his way through the crowd.

There were no surprises with the preliminary witnesses that morning. Tom started with Ben Chapman, the executive director of Exoneration. He took some time going over Chapman’s very impressive credentials as well as the work of the organization. In Tom’s mind, Chapman was actually there for two reasons.

“What is the purpose or the mission of Exoneration, Mr. Chapman?”

“Well, we have many purposes. First and foremost, we provide competent experienced counsel for individuals on death row. Some of them have never had that before. Second, but equally important, we try to shed light on the inadequacies of the criminal justice system with the ultimate goal of eliminating the death penalty as a punishment. We have cases that deal with inadequate defense counsel, improper identification, overzealous prosecutors—”

Robert Merton got the picture when he heard those words. “Objection, Your Honor. Mr. Wylie is trying to precondition the jury with this testimony.”

The judge thought about it for a moment. “Sustained. Mr. Wylie, I believe the jury understands that Exoneration represents death row inmates. Let’s move on.”

“Yes, Your Honor.”

He asked Chapman, “Did Jack Tobin work for your organization?”

“Not in a technical sense. Jack wasn’t our employee and we didn’t pay him a salary. He was an attorney who volunteered with us to represent death row inmates. He’s been with us for about five years or so and he is an excellent attorney, the best we have.”

“I move to strike that last statement, Your Honor,” Merton said without standing up.

“Motion granted.” The judge looked at the jurors. “Members of the jury, I’m directing you not to consider those statements by the witness about Mr. Tobin’s abilities as an attorney.” He then addressed Tom. “Mr. Wylie, I want you to control your witness a little better than that.”

“Yes, Your Honor.”

“And Mr. Chapman, I’m instructing you to answer the question and only the question asked. There will be no more editorializing, do you understand?”

“Yes, Your Honor.”

“Let’s proceed.”

Tom only had a few more questions to ask Ben Chapman.

“Is it accurate that Jack Tobin has represented a number of people on death row?”

“Yes. I’d say at least ten.”

“Have you ever known him to profit in any way from representing these people?”

“No. Never.”

“He donated his time for free?”

“Yes.”

“I have no further questions.”

“Cross-examination, Counselor?”

Robert Merton stood up and walked to the podium with an air of confidence. Merton had made his reputation as a prosecutor primarily because of his ability to effectively cross-examine witnesses. Sometimes he tore them apart, making them look like liars—snakes who slithered off the stand when he was finally through with them. Sometimes he used them to support his own case. It all depended on the situation.

“I think the question you were just asked, Mr. Chapman, was have you ever known Jack Tobin to profit from representing death row inmates. Is that accurate?”

“Yes, that’s correct.”

“Which leaves open the possibility that Mr. Tobin could have profited from this representation and you might not have known about it. Is that correct?”

“I doubt that very much. I have known—”

Merton cut him off. “You doubt it very much. I’m going to hand you State’s Exhibits numbers five and six. Have you seen these before?”

Chapman took a few moments to review the documents.

“No, I haven’t.”

“So you didn’t know about them?”

“No.”

“Exhibit number five is a document called a claims bill. Are you familiar with a claims bill?”

“I’m not familiar with this one but I am familiar with a claims bill.”

“And what is a claims bill in the context of what you do?”

“If an individual on death row is exonerated, we almost always file a claims bill with the Florida legislature asking that body to compensate the individual for the time he or she was wrongfully incarcerated.”

“And Exhibit number six. Do you recognize that document?”

“I have never seen this document but I recognize it as a contingency fee agreement.”

“Can you see that this document is a contingency fee agreement between Jack Tobin and Thomas Felton?”

“Yes.”

“Did you know that Jack Tobin prepared and signed a contingency fee agreement with Thomas Felton?”

“No, I did not.”

“Did you know that Jack Tobin prepared a claims bill asking for twenty million dollars from the Florida legislature and then prepared a contingency fee agreement giving him, personally, a third of whatever Felton recovered?”

“No, I did not.”

“Now, your organization has bylaws and rules and regulations that you and the attorneys who work with your organization must abide by. Is that correct?”

“Yes.”

“Is this contingency fee agreement a violation of your bylaws and your rules and regulations?”

“Yes.”

“Are the lawyers who work for you required to know about your rules and regulations?”

“Yes. They each sign a document saying they have read the by-laws of the corporation and the rules and regulations.”

“And the term ‘they’—would that include Mr. Tobin?”

“Yes.”

“I have no further questions, Your Honor.”

Jack leaned over and whispered in Tom’s ear when Merton was finished. “What were we thinking?”

Tom didn’t respond. The jury was watching and the judge was already addressing him.

“Redirect, Mr. Wylie?”

Tom didn’t want to ask Ben Chapman another question but Robert Merton had so thoroughly used Chapman to his own advantage that he had to give it a shot.

“Mr. Chapman, what is your success rate in representing people on death row?”

“Oh, it’s very low. Less than five percent.”

“And is it accurate that it takes an awful lot of work to undertake a death row appeal?”

“The amount of work doing one of these appeals is incredible, not to mention the time constraints, the stress.”

“It seems like counsel’s theory in his questions to you was that Jack Tobin was running some kind of business where he would represent a number of these people, have the ones who win sign contingency fee agreements, and then make money off those success stories. Knowing what you know about the success rate and the work involved, does that theory have any rational basis in fact—I mean, does that make sense?”

Merton was standing before Tom had finished his question. “Objection, Your Honor. Speculation.”

“Sustained.”

“Your Honor, may I be heard?”

Judge Holbrook didn’t like Tom’s continuously questioning his authority, but he knew Tom had a right to make his record. His anger made him change his own rule about speaking objections.

“You may be heard, Counselor. Go ahead.”

Tom was surprised that the judge was not calling him to sidebar. Perhaps the judge was trying to embarrass him. Whatever the judge’s motive, Tom was happy to make his argument in front of the jury.

“Your Honor, Mr. Merton raised this issue with this witness on cross-examination. And I anticipate that he is going to try and tell this jury on closing, based on this witness testimony, that Jack Tobin was running some kind of business with these death row appeals. I think I am entitled to ask this witness if that argument has merit.”

“Anything else?”

“No, Your Honor.”

“Mr. Merton?”

“I don’t intend to make that argument, Your Honor. I intend to use this witness’s testimony to argue to this jury that Jack Tobin was clearly going to make money, possibly seven million dollars, on his successful representation of Thomas Felton and that he was doing it behind the back of the organization for which he was working. The loss of that profit was his motive for killing Felton.”

“Thank you, Counselor. The objection is sustained. Any further questions, Mr. Wylie?”

Tom wanted to stick a knife in his eye, or his hand, or somewhere. Merton was killing him.

“No, Your Honor.”

“Call your next witness.”

The next witness was Henry Wilson. Tom kept it short and sweet. He didn’t know what Merton was going to do with Henry.

“Mr. Wilson, you had been on death row for seventeen years when you met Jack Tobin, is that correct?”

“That’s correct.”

“And what did Mr. Tobin do for you?”

“He represented me. He went through my file with a fine-tooth comb and found that prosecutors had hidden evidence. I was exonerated—they set me free.”

“And how long ago was that?”

“Five years ago.”

“Now when you were set free, did Mr. Tobin file a claims bill with the legislature on your behalf?”

“Yes.”

“And did you receive any money?”

“Yes. Three million dollars.”

“Did you give any of that money to Mr. Tobin?”

“No.”

“Did he ask you for any money?”

“No.”

“Did he ever ask you to sign an agreement to give him money?”

“No.”

“I have no further questions.”

“Cross-examination, Mr. Merton?” the judge asked.

“Yes, Your Honor.” Merton walked right up to where Henry was sitting but he didn’t look at him. He looked at the jury so that each juror looking at Merton would see Henry in the background, putting the focus entirely on Merton.

“Now before you went to prison for this seventeen years and before Mr. Tobin got you out, Mr. Wilson, is it fair to say you were what one would commonly call a career criminal?”

Tom was on his feet. “Objection. Improper impeachment.”

Merton knew the proper method. You ask a witness if he or she has ever been convicted of a felony and how many times and if they answered truthfully, the inquiry was over. Merton, however, didn’t care about the answer. It was all about the question—the accusation.

“Sustained,” Judge Holbrook bellowed. After a week, the jurors were as used to the judge’s and the attorneys’ loud voices as they were to the creaky floors and the fans and the air conditioners. They had adjusted.

Merton continued. “And after you got out of prison, is it true that you went to work with Mr. Tobin?”

“I volunteered to help out as an investigator for Exoneration on death penalty cases, if that’s what you mean.”

“Not on any death penalty cases, just the cases Jack Tobin was working on, isn’t that right?”

“Yes.”

“You became his right-hand man?”

“Yes.”

“You were a team?”

“Yes.”

“Mr. Tobin is your best friend, isn’t he?”

“Yes.”

“You would do anything for him, wouldn’t you?”

Henry was about to say, “I wouldn’t lie for him,” but he knew that wasn’t true. He’d kill for Jack. He already had.

“Yes.”

“No further questions.”

“Redirect?”

“No, Your Honor.”

“Okay, folks, we’re going to break for lunch. Remember the admonitions I have given you. Do not talk among yourselves about the case.”

* * *

As usual, Tom and Jack stayed in the courtroom for lunch. Tom brought the Snickers bars.

“Jesus, Merton is good,” Jack said. “I don’t know what he’s doing hiding in Apache County as a prosecutor. He could make millions as a criminal defense attorney on the big stage.”

“He doesn’t seem to be the type who is in it for the right reasons, either,” Tom added.

“No. He wants to win no matter what the cost. Maybe he wants to be the governor or something like that and this is his path.”

“Whatever the reason, he’s doing a job on us.”

“I’d have to agree with you so far, Tom, but it’s not over yet.”

“I was going to call Ron next to talk about the night you were drinking and said you were going to kill Felton, but I think I’m going to let him go. Merton will just do the friendship cross again and it will backfire in our faces.”

“I agree. Just put me on. Let’s get it over with.”



There were definitely a few more press people in the room for the afternoon session, and it seemed like the gallery was even bigger as well. They all knew what was coming. You could taste the anticipation in the air.

“Call your next witness, Mr. Wylie.”

“The defense calls Jack Tobin.”

Jack stood up, walked over to the clerk, swore to tell the truth, and climbed up into the witness chair.

Tom first took Jack through his long and illustrious career as a civil trial lawyer. He wanted the jury to know not only how successful Jack was but how rich he was as well.

“So you started the firm and built it up, is that correct?”

“Yes.”

“And how many lawyers did the firm have when you left?”

“Right around one hundred.”

“Did the partners buy you out of your interest in the firm when you decided to leave?”

“Yes.”

“What was the buyout figure?”

“Twenty million dollars.”

“And was that in addition to your retirement package?”

“Yes.”

“What were your plans at the time?”

“I was going to retire to the small town of Bass Creek and fish. I’d work part-time as a country lawyer but nothing too serious.”

“So what happened?”

“An old friend of mine died in New York—my best friend when I was growing up. When I went up for the funeral, I found out that his son was on death row for a murder he had supposedly committed in Bass Creek. The fact that I was living in Bass Creek made me think that maybe I was supposed to get involved in my friend’s son’s case, so I took a look at it.”

“And?”

“And I became convinced that his son—Rudy was his name—was innocent. So I undertook to represent Rudy.”

“Was that representation successful?”

“No, it wasn’t.”

“What did you do after that?”

“I became a prosecutor for a while and I successfully prosecuted the detective who had arrested Rudy and whose testimony convicted Rudy.

“And then I started to represent people on death row. Representing Rudy gave me a different purpose in life as a lawyer. I found that I wasn’t ready to just sit back in the rocking chair.”

“Is that when you went to work for Exoneration?”

“Yes.”

“Now, Mr. Tobin, I want to talk to you particularly about your representation of Thomas Felton. Why did you take that case?”

“Ben Chapman asked me to come to Tallahassee. He didn’t tell me what it was about, he just asked me to come. When I got there, he told me about the Felton case and asked me to look at it. I didn’t want to even look at it.”

“Why?”

“Felton was a serial killer. A lawyer has an obligation when he or she takes a case to do the absolute best job he can. There is always a possibility that you could find a technical error in the prosecution’s presentation of its case that could result in the defendant’s being released. I did not want that on my conscience.”

“But you eventually did represent Felton?”

“Yes.”

“Why?”

“Henry Wilson, my friend and my investigator, convinced me to just look at the file. Henry said I shouldn’t prejudge anybody, including an alleged serial killer. When I reviewed the file, I found a huge problem with the prosecution’s case, and I became convinced that Felton had been set up as a fall guy.”

“We’ve heard a little about this from Chief Jeffries. Why don’t you tell the jury what you found.”

“The coroner’s reports indicated that the weapon that killed both Vanessa Brock and Pedro Diaz was one-quarter inch wide and three and one-half inches long. That description is for a stiletto or a similar type of knife. The police officer who testified, Sam Jeffries, testified that the murder weapon found at the scene was a bowie knife. If the murder weapon had been a bowie knife, the cut described by the coroner would have been two inches wide, not one-quarter inch. That’s a huge discrepancy.”

“You sat here and listened to Sam Jeffries tell this jury that you made a big case out of what was basically a typing error in the coroner’s report and you were successful because the coroner was dead—how do you respond to that statement?”

“I certainly considered the possibility that the coroner’s report contained a mere typing error, but I dismissed that possibility.”

“Why?”

“There were two murders so there were two coroner’s reports. The injuries to the deceased were to different areas of the body but the descriptions of the wound, in particular the width of the cuts, were the same. It was inconceivable to me that the coroner could make the exact same error on two separate reports. I then went back to the transcript of the trial and saw that the coroner had described the wounds and testified to the cause of death, but he had never testified that the bowie knife was the murder weapon, and his reports were never introduced into evidence. Only the police officer, Sam Jeffries, testified that the bowie knife was the murder weapon. In all fairness to Chief Jeffries, he had not seen the coroner’s report nor had he attended the autopsy, so he could have believed that the bowie knife was, in fact, the murder weapon. The prosecutor and the coroner knew better. The Florida Supreme Court agreed with me on this, by the way.”

Merton stood up at that statement as Jack and Tom had figured he would. “Your Honor, I object to the witness interpreting case law on the stand.”

“He is not interpreting case law, Your Honor. He’s just stating what he understands the case says.”

“Is there a distinction?” the judge asked.

“Maybe, maybe not, Your Honor, but Chief Jeffries gave his interpretation. Mr. Tobin has now given his, and I have an actual copy of the Florida Supreme Court’s decision that I’d like to introduce into evidence so the jury can look at it for themselves.”

“The jury decides facts, not the law, Counselor. The decision of the supreme court is not going to be admitted into evidence. And I don’t believe I ever heard Chief Jeffries interpret the supreme court’s ruling. Therefore, I’m going to strike Mr. Tobin’s interpretation of that case. Ladies and gentlemen of the jury, I instruct you to disregard that last statement of Mr. Tobin’s where he told you the Florida Supreme Court agreed with him. Proceed, Counselor.”

The entire discussion had been in front of the jury. Tom wasn’t sure if that was good or bad. He then took Jack through his own personal ordeal of learning that Chief Jeffries’s daughter, Kathleen, had been killed.

“How did you feel?”

“Responsible.”

“Why did you feel responsible?”

“I had set the process in motion. I had uncovered the flaws in the prosecution’s case. If I hadn’t done that, Felton would still be in prison and Kathleen Jeffries would still be alive.”

“You were sure it was Felton?”

“It had to be.”

“What did you do when you heard this news?”

“First, I got drunk. Very drunk.”

“Is that when the police officers visited you?”

“Yes. I vaguely recall them.”

“Do you recall saying that you were going to kill Thomas Felton?”

“No, but I don’t dispute it. In the state of mind I was in that night, I might have killed him.”

Tom walked to the far side of the courtroom and retrieved the diagram of Danni’s backyard and the easel and set them up in front of the jury.

“Now at some point in time, soon after learning of Kathleen Jeffries’s death, did you set up a camp back here in these woods?”

“Yes.”

“Why?”

“I thought Felton would be coming for Danni Jansen next and I wanted to stop him.”

“Why did you think he would be coming for Danni Jansen?”

“She was one of the lead investigators in the original investigation, and he had threatened her and her daughter in the past. He had gone after Sam Jeffries’s daughter, and it was logical that he’d go after Danni or her daughter.”

“What did you intend to do with him if you caught him?”

“Turn him over to the authorities.”

“You didn’t intend to kill him?”

“Absolutely not.”

“Did you have a gun?”

“Yes.”

“Why did you have a gun?”

“Because I figured Felton would be armed and I didn’t think he would come with me peacefully.”

Tom then had Jack take the jury through the confrontation with Felton from the time he first saw him until he returned to the scene with Danni and was taken into custody by the police.

“Why did you shoot Thomas Felton, Mr. Tobin?”

“I thought he had a gun and I thought he was going to shoot me.”

“Can you describe what you thought you saw?”

“I thought I saw a small pistol but I can’t be sure.”

Tom then handed him State’s Exhibits #5 and #6. “I’ve handed you State’s Exhibits numbers five and six. Did you prepare those documents?”

“Yes.”

“Why?”

“Let’s take them one at a time. Felton asked me to prepare the claims bill because he had heard about them while he was still in prison. This is something we normally do when a prisoner is released, only this one was done a little earlier because of Felton’s insistence.”

“And the twenty-million-dollar figure—where did that come from?”

“It was Felton’s number. I didn’t have a problem with it because it doesn’t really matter what you ask for. It only matters what the legislature decides to give you. He wasn’t going to get anywhere near that amount.”

“And the contingency fee agreement?”

“I prepared that as well at Felton’s insistence. He wanted to compensate me for saving his life. I didn’t want the money. I told him that he should give it to Exoneration. He said they didn’t get him set free, I did. So I prepared the agreement the way he asked with the intention of giving any money that I got to Exoneration.”

“Had you ever prepared a contingency fee agreement for any other prisoner in the past?”

“No.”

“Had you always done this work for free?”

“Yes.”

“I have no further questions.”

“Cross-examination, Mr. Merton?”

“Yes, Your Honor.”

Tom was satisfied. Jack was Jack. He had answered every question directly and truthfully. He didn’t avoid the hard ones, either. Now it was time to see how good Robert Merton really was.



Merton knew Jack was going to be a tremendous witness. The man was a great lawyer and communicator. He could not afford to play with him on cross. He had to make his points, make them quickly, and get out.

“Mr. Tobin, you would agree that there are many individuals, CEOs of major corporations for instance, who make more than twenty million dollars a year, wouldn’t you?”

“Sure.”

“And yet they still go to work. They still want to make more money, don’t they?”

“Objection, Your Honor. Relevancy.”

“Sustained. Move along, Mr. Merton.”

“Let’s talk about the contingency fee agreement for a minute. You testified that you planned to transfer any money you received to Exoneration, is that correct?”

“Yes.”

“Did you tell Exoneration about that?”

“No.”

“You could have just picked up the phone and called Ben Chapman, couldn’t you?”

“Sure.”

“But you didn’t?”

“No, I didn’t.”

“And you heard Mr. Chapman testify that a contingency fee agreement like this was a violation of Exoneration’s rules and regulations and the bylaws and that you knew it was a violation—is that accurate?”

“I don’t dispute that the agreement might have violated the rules and the bylaws. I just didn’t think about that at the time.”

“So you are telling this jury under oath that a lawyer of your talent and experience never thought of talking to the organization you worked for about an agreement that you had never prepared before?”

“That’s correct.”

“You also testified on direct examination that the agreement was Felton’s idea, is that correct?”

“Yes.”

“What did he say—‘Jack, I want you to prepare a contingency fee agreement’?”

“No, he said ‘I want to give you a third of what I recover.’”

“Did he say, ‘I want to put that in writing’?”

“No, that was my idea. I didn’t want to leave him the opportunity to change his mind.”

“So the contingency fee agreement was your idea?”

“The actual agreement—yes. The idea of giving money to me was Felton’s.”

“The idea of making it a legal obligation was yours, correct?”

“Yes.”

“And do you agree that the killing of Kathleen Jeffries effectively ended any chance of getting a claims bill passed?”

“Yes.”

“And effectively ended the possibility of your getting any money from this contingency fee agreement?”

“Yes.”

“But you weren’t angry about that?”

“No.”

“You didn’t want to get even?”

“No, I didn’t.”

“You’re not a person who tries to get even?”

“No, I’m not.”

“I want to revisit your testimony on direct examination about your representation of this young man named Rudy. You said that after Rudy was executed, you became a prosecutor and prosecuted the police officer who arrested Rudy and whose testimony convicted Rudy, is that correct?”

“That’s correct.”

“Is it also correct that you became a prosecutor for the sole purpose of prosecuting that police officer and after that prosecution was over, you resigned your position?”

“That’s correct.”

“You weren’t trying to get even then, were you?”

“No, I was trying to prosecute a man who deserved to be prosecuted and who, in fact, was convicted.”

“The police officer wasn’t the only person you prosecuted over the death of this young man Rudy, was he?”

“No.”

“You also prosecuted the former state attorney who successfully sought Rudy’s execution, didn’t you?”

“Yes.”

“And at the time that you prosecuted that former state attorney, he was a sitting federal judge, wasn’t he?”

“Yes.”

“You weren’t trying to get even with him?”

“No, I wasn’t. I was seeking justice for Rudy.”

“You were not successful against the judge, were you?”

“No.”

“Is it correct that the judge you unsuccessfully prosecuted was assassinated by a sniper’s bullet six months later?”

Tom was on his feet. “Objection, Your Honor.” He didn’t ask to approach sidebar. He just walked toward the bench.

The crowd started murmuring right after Merton finished asking the question. The jurors looked shocked as well. Judge Holbrook raised his gavel and lowered it again and again.

“Silence in the courtroom!” he shouted. “If you can’t be silent, you will be removed.”

Nobody stopped talking.

“Remove the gallery,” the judge told the bailiffs who dealt with the gallery.

“Take the jury out,” the judge told the bailiff who was assigned to the jurors.

In a matter of minutes, the courtroom was empty. The press was gone as well. Only then did Holbrook speak to the lawyers.

“Mr. Merton, just what do you think you are doing?”

“Asking a question, Your Honor.”

“A question that carries the implication that Mr. Tobin was involved with the murder of a federal judge.”

“I never meant to imply that, Your Honor.”

“Your Honor, I’d like to move for a mistrial,” Tom said. “And I’m requesting that this court rule that my client cannot be retried since double jeopardy has attached.”

“Relax, Mr. Wylie. There’s not going to be a mistrial. The witness is not going to answer the question, and I am going to instruct the jury not only that it was an improper question and that they should disregard it but also that the only inference to be drawn from that question is that the prosecuting attorney committed an egregious error in asking it. Now are there any more questions?”

Nobody said a word.

“Bring in the jury.”

The courtroom was still empty as the jurors filed in and sat in their respective seats.

“Ladies and gentlemen of the jury, sometimes things occur in trial that we don’t expect. Sometimes lawyers ask questions without thinking. The last question Mr. Merton asked should never have been asked. It is not enough for me to tell Mr. Tobin he does not have to answer the question. I need to tell you that it should not be a part of this case and you should wipe it from your memory. And the only inference you should draw from that question being asked is that the prosecuting attorney, Mr. Merton, overstepped his bounds and committed an egregious or gross error when he asked it. Now, can you all do that?”

The judge asked each juror individually and had each juror say “yes” on the record.

“Okay, ladies and gentlemen, it has been a long day. We’re going to recess for the weekend. Remember the admonitions that I have given you. This trial is almost over but it’s not over yet.”

After the jury left, Judge Holbrook addressed the lawyers.

“Mr. Wylie, do you have any other witnesses in your defense?”

“Not at the moment, Your Honor, but I’d like to have the weekend to assess everything before I rest.”

“That’s fine.” The judge’s attitude toward Tom and Jack had suddenly changed.

“And what about you, Mr. Merton?” the judge growled. “Are you going to have any rebuttal?”

“I don’t plan on it at this time, Your Honor, but it will depend on what Mr. Wylie does on Monday.”

“Fine. I’ll see you both here Monday morning at nine. And Mr. Merton, I don’t want to be seeing your face on television talking about the events that occurred here this afternoon. Do you understand?”

“Yes, Your Honor.”

Tom stood up. “Your Honor, the press needs to at least be told that the question was determined to be improper by this court. It can’t just hang there.”

“I have placed no restriction on you, Mr. Wylie. I assume you will make the point in a professional manner.”

“I will, Your Honor.”



Jack and Tom stayed in the courtroom after everyone left. Jack’s guards stood by the door leading out to the jail and waited for him while he spoke with his lawyer.

“So what do you think?” he asked Tom.

“I think your direct went as well as it could possibly go, but this Merton is damn good, and just a little crazy.”

“A question like that last one can lose the jury for you, especially when the judge comes back and says what he said,” Jack said.

“Under normal circumstances I would agree with you, Jack. But if these people are predisposed to have it in for you, Merton gave them all the rope they needed.”

“He knew exactly what he was doing,” Jack said.

“No doubt in my mind.”

“Well, Tom, you’re doing as good a job as can be done within the restrictions I placed on you. I wouldn’t change or add anything. I appreciate what you’ve done for me.”

“We’ve still got Monday, Jack. We’re not done yet.”

“No, we’re not. Listen, do me a favor. Go grab Henry, and both of you have a beer tonight for me.”

“I think we can do that.”

“Good.”

Tom watched Jack get up and walk over to the guards and say something that made them both laugh. Then all three walked through the door heading for the jail.

Such a good man, Tom thought. We’ve got to find a way.