At three ten in the morning, I was finally allowed to see my client. I was escorted by a nurse and a detention deputy into the high-dependency unit of the medical wing. I had to gown up because of the risk of infection to Andre, and then I was able to enter a surgery recovery room where Andre’s frail body lay attached to a concert of machines, tubes, and hanging plastic bags.
I stood at the end of the bed and just watched as the nurse checked the machines and then lifted the blanket over him to look at the bandages that wrapped Andre’s entire torso. His upper body was propped at a low angle on the bed, and I noticed that next to his right hand was a remote for setting the bed’s incline. His left wrist was handcuffed to a thick metal eyelet attached to the bed’s side frame. Though the prisoner was barely clinging to life, no chances were being taken with the possibility of escape.
Andre’s eyes were puffy and half open, but he wasn’t seeing anything.
“So . . . is he going to make it?” I asked.
“I’m not supposed to tell you anything,” the nurse said.
“But you could.”
“The first twenty-four hours will tell the tale.”
At least it was something.
“Thank you.”
She patted my arm and left the room, leaving the deputy standing in the doorway. I walked over to the door and started to close it.
“You can’t close that,” the deputy said.
“Sure I can. This is an attorney-client conference.”
“He’s not even conscious.”
“Right now he isn’t, but it doesn’t matter. He’s my client and we are entitled by the U.S. Constitution to private consultation. You want to stand in front of a judge tomorrow and explain why you failed to provide this man—who is now the victim of a vicious crime—his inalienable right to confer with his attorney?”
In the Sheriff’s Department, all academy graduates are transferred directly into the detention division for their first two years on the job. The deputy in front of me looked like he was twenty-four at the most and maybe even still on probation. I knew he would back down and he did.
“All right,” he said. “You have ten minutes. After that, you’re out of here. Doctor’s orders.”
“Fine.”
“I’ll be standing right out here.”
“Good. I feel safer already.”
I closed the door.
40
Judge Leggoe brought the attorneys into chambers first thing the next morning. Lankford was invited in with Forsythe so he could brief the judge on what was known in regard to the stabbing of Andre La Cosse. Lankford, of course, couched it in terms of the kind of random violence that happens often between incarcerated men.
“Most likely it will be determined to be a hate crime,” he said. “Mr. La Cosse is a homosexual. The suspect is already convicted of one murder and is on trial for another.”
The judge nodded thoughtfully. I could not counter Lankford’s insinuations because so far Cisco had not come up with any link between Patrick Sewell—La Cosse’s suspected assailant—and Marco and Lankford. My response was weak at best.
“There’s still a long way to go in the investigation,” I said. “I would not jump to any conclusions yet.”
“I’m sure they won’t,” Lankford said.
He didn’t have the judgmental smirk that was customary on his face. I read that as an early indication of something changing in Lankford. Maybe it was the weight of knowing he wasn’t in the clear. If the attack on La Cosse was, as I believed, an attempt to end the case by eliminating the defendant, then it had failed. The question now was how badly it had failed.
“Your Honor,” Forsythe said. “In light of these events and the recovery time the victim will certainly need, the state moves for a mistrial. I really don’t see any alternative. We will not be able to guarantee the integrity of the trial or the jury if the case is continued until the defendant reaches a condition in which he can come back to court—if he ever reaches that condition.”
The judge nodded and looked at me.
“Does that make sense to you, Mr. Haller?”
“No, Your Honor, not at all. But I would like my colleague Ms. Aronson to respond to Mr. Forsythe. She is better prepared than me. I spent the night at the hospital with my client.”
The judge nodded to Jennifer, and she responded with a beautiful and unrehearsed argument against mistrial. With every sentence I grew prouder of the fact that I had picked her for my team. Without a doubt she would someday leave me in the dust. But for now she was working for me and with me, and I could not have done better.
Her argument had three concise points, the first being that to declare a mistrial would be prejudicial to the defendant. She cited the cost of mounting the defense and the continuation of Andre La Cosse’s incarceration; the physical toll it would take; and the simple fact that with the prosecution team having seen most of the defense’s case, it would be allowed with a mistrial to retool and be better prepared for the next trial.
“Your Honor, that is not fair in any perception,” she said. “It is prejudicial.”
In my opinion that argument was good enough on its own to win the day. But Jennifer hammered it down with her next two points. She cited the cost to taxpayers that a new trial would certainly entail. And she concluded that the administration of justice was best served in this case by allowing the trial to continue.
These last two points were particularly genius because they hit the judge where she lived. A judgeship was an elected office, and no jurist wants to be called out by an opponent or a newspaper for wasting taxpayer dollars. And the “administration of justice” was a reference to the discretion the judge had in making this decision. Leggoe’s ultimate goal was the administration of justice in this matter and she had to consider whether cutting and running on the case allowed for it or precluded it.
“Ms. Aronson,” the judge said after Jennifer submitted, “your argument is cogent and persuasive, but your client is in a hospital bed in a critical care unit. Surely you’re not suggesting that we bring the jury to him. I think the court is faced with a dilemma here with only one solution.”
This was the only part that was rehearsed. The best way to get what we wanted was to lead the judge to it, not come out of the gate with it.
“No, Judge,” Jennifer said. “We think you should proceed with the case without the defendant present, after admonishing the jury not to consider the defendant’s absence.”
“That’s impossible,” Forsythe blurted out. “We get a conviction and it will be reversed on appeal in five minutes flat. The defendant has the right to face his accusers.”
“It won’t be reversed if the defendant has knowingly waived his right to appear,” Jennifer said.
“Yeah, that’s great,” Forsythe responded sarcastically, “but last I heard, your client is lying unconscious in a bed and we have a jury sitting out there in the box ready to go.”
I reached into my inside jacket pocket and pulled the waiver I had taken to County/USC the night before. I handed it across the desk to the judge.
“That is a signed waiver of appearance, Judge,” I said.
“Wait a minute, wait a minute,” Forsythe said, the first notes of desperation creeping into his voice. “How can that be? The man’s in a coma. I doubt he could sign anything, let alone knowingly sign it.”
The judge handed the waiver to Forsythe. Lankford leaned over from his chair to look at the signature.
“I was at the hospital all night, Judge. He was in and out of consciousness, which is not the same as being in a coma. Mr. Forsythe is throwing around medical terms he doesn’t know the meaning of. That aside, during my client’s periods of consciousness he expressed to me the strong desire to continue the trial in his absence. He doesn’t want to wait. He doesn’t want to have to go through this again.”
Forsythe shook his head.
“Look, Judge, I don’t want to accuse anyone of anything but this is impossible. There’s just no way that this—”
“Your Honor,” I said evenly, as though it didn’t bother me that Forsythe was calling me a liar. “If it will help with your decision, I have this.”
I pulled my cell phone and opened up the photo app. I went to the camera roll and expanded the shot I had taken in my client’s hospital room. It showed Andre in his bed, propped at a forty-five-degree angle, a bed table positioned across his midsection. His right hand was on the table, holding a pen and signing the waiver. The shot was angled down from Andre’s right side. The angle and the swelling around his eyes made it impossible to tell if his eyes were open or closed.