Chapter 15
“I’d like
to start prepping witnesses the first of next week for the Silsbee trial. It’s
going to take us several days to get through them all,” McCoy explained to
Southerlyn as she sat on the sofa across from his desk. “We still have to track
down Mrs. Weller. She moved last month,” he added as he reached for his buzzing
intercom. “Yes?” he queried into the small device.
“There’s
an attorney on her way to your office,” the breathless voice of the
receptionist responded. “I can’t remember her name but I know she doesn’t have
an appointment. When I tried to stop her, she ducked past me.”
He turned
his chair slightly so that he had a view of the hallway beyond his office door.
Through the glass he could see Morgan approaching with quick, purposeful
strides. “It’s all right, Susan. I see her. I’ll take care of it.”
He had
barely finished the sentence when Morgan pulled open the door, causing the
attached blinds to clang loudly against the glass. She came to stop in front of
his desk, her eyes full of fury.
“So is
this the way we’re going to play the game, Jack? Since you can’t win fair and
square, you think that gives you the right to cheat?”
McCoy
regarded her evenly for a second before deliberately looking past her to
Southerlyn. “Serena, would you give us a minute?” he asked calmly.
“Of
course,” Southerlyn responded, slightly surprised at the abrupt interruption.
Morgan
turned at the sound of Southerlyn’s voice coming from behind her, and by the
look on her face McCoy could tell she had failed to notice that anyone else was
in the room.
He waited
silently until Southerlyn had exited and closed the door behind her before
saying coolly, “It’s customary to knock before entering someone’s office
unannounced.”
“Oh,
well, pardon me,” Morgan snapped, crossing her arms. “I guess I’m not feeling
very polite today. Finding out that the lead prosecutor has withheld
exculpatory evidence relating to my case tends to have that affect on me.”
Giving
her an innocent look, he replied, “I don’t have the slightest idea what you’re
talking about.”
“If your
memory is failing you that badly, maybe you should see someone about it,”
Morgan suggested sarcastically. “Withholding information that could prove a
defendant has an alibi for the timeframe in which a crime has been committed
shouldn’t be that easy to forget.”
“I have
no such information regarding your client, Counselor,” McCoy contended.
“Are you
denying that you knew about Briscoe and Green’s encounter with Mrs. Lopez, the
coffee vendor my client says he spoke with on the morning the Braden girl was
killed?”
“I know
they had a conversation with Mrs. Lopez, but as for her confirming your
client’s alibi, she can’t confirm that which isn’t true.”
“How do
you know it isn’t true? You didn’t even bother putting him in a line-up!”
He leaned
forward in his chair, maintaining intently, “The detectives showed Mrs. Lopez a
photo array with your client’s picture in it. She said she had never seen him
before and that no conversation between the two of them ever took place.
Putting him in a line-up would’ve been pointless.”
“You know
as well as I do how difficult it is for someone to identify a person that they’ve
only seen once, from a photograph, especially when the photo is a mug shot. If you had a witness
that you thought could put my client even remotely near the victim, you
wouldn’t have hesitated to put him in a line-up for that. Whether or not to do
so in order to prove that he had an alibi is not your call to make. I should’ve
been informed of the detectives’ discovery of Mrs. Lopez immediately upon their
doing so. The fact that she not only exists, but could be found exactly where
my client said, proves that he’s telling the truth.”
“It does
nothing of the sort!” McCoy disputed adamantly. “Just because he has seen her
at one time or another, doesn’t mean he saw her on the morning of the murder.
He could’ve seen her on that corner some other day and simply took a chance
that she was there during the time he was off raping and strangling Corinna
Braden!”
“So the
all-knowing Jack McCoy made the decision to withhold information that could
quite possibly clear an innocent man because he didn’t want to believe it. If
you’re so sure Eric Fisher is lying, why are you afraid for him to be given the
chance to prove that he isn’t?”
“I’m not
afraid of anything, Counselor. If you want to waste everyone’s time putting
your client in a line-up, then be my guest. If that’s what it will take for you
to see that your client is lying, maybe it’ll be worth it.”
“Oh,
don’t worry,” Morgan assured him indignantly. “It’s already arranged. And so is
a meeting with Judge Ianello where I will move to have him declare a mistrial
on the grounds of prosecutorial misconduct.”
Shaking
his head he argued, “There was no misconduct. I didn’t withhold anything
exculpatory from you. Mrs. Lopez couldn’t identify your client so there was
nothing to disclose. As far as I’m concerned, I’ve done nothing wrong.”
Instead
of arguing, as McCoy fully expected, Morgan looked down and studied the floor
silently for a moment. When she looked back up at him, the anger in her eyes
was gone. “I guess that’s what I was afraid of,” she replied sadly. “At least I
now know what kind of person you really are.”
McCoy was
caught off guard at her sudden change of mood and could think of nothing to
say. And it was all he could do to not look away from her eyes and the
disappointment that he clearly saw in them.
Without
another word, Morgan turned and walked out of his office. After she disappeared
from sight, he let out a sigh and slumped back in his chair. He wished it were
later in the day. He suddenly felt the need for a Scotch.
***“I don’t know why I had to come here again. I
already told you I don’t remember anything,” the woman protested as she entered
the observation area behind Van Buren.
Morgan
was leaning against the wall just inside the doorway as Van Buren led the way
into the room. “I understand how busy you are, Mrs. Lopez, but this is
important. It won’t take long.”
Southerlyn and McCoy waited a few steps behind Briscoe and Green, who
stood on either side of the observation window. While several men filed into
the room beyond, Van Buren motioned to them and explained, “This is a one-way
glass. You can see them but they can’t see you. Just tell us if you recognize
any of the men.”
The woman
huffed out a breath in obvious annoyance. As the men in the line-up came to a
stop and faced her, she quickly scanned the row. She then frowned and took a
step closer to the window, studying one figure more closely.
“Do you
recognize someone, Mrs. Lopez?” Van Buren prompted.
The woman
nodded slowly. “Yes, I remember now. The man there, next to the end. He bought
coffee and a muffin from me. I remember his Mets jacket. I asked him where he
had gotten it. I did talk to him.”
“When?”
Green asked.
“It was
early in the morning, the day before I left for
“Can you
tell us what time you saw him?” Van Buren questioned.
“It was
only a little while after I got to my spot at
Van Buren
exchanged a look with the detectives before asking, “Are you absolutely sure
about the time and the day?”
She
nodded again. “I’m sure. It was early on a Tuesday morning. I left to visit my
sister on a Wednesday.”
“Thank
you for coming down, Mrs. Lopez. We really appreciate your help. The officer
who brought you here will drive you home,” Van Buren explained.
When the
woman had exited the room, Green touched the intercom button on the wall beside
the window. “We’re done,” he informed the waiting guard.
Van Buren
turned to McCoy. “Now what?”
Before he
could answer, Morgan straightened and moved to join them. “Now my client gets
acquitted.” Giving McCoy a pointed look she added, “It’s just too bad that we
had to waste everyone's time before you found out that he’s been telling the
truth from the start.” Then turning her attention to the detectives, she asked,
“Kind of makes you wonder what the real killer is doing right now, doesn’t it?”
Briscoe
took a few steps toward her. “The real killer just walked out of the room next
door! Eric Fisher killed Corinna Braden and I don’t care how many people say he
didn’t!”
“He
couldn’t have been in two places at the same time,” Morgan insisted. “Either he
was killing the girl between four and five, or he was having coffee with Mrs.
Lopez.”
“She
identified him off of the jacket,” Briscoe contended. “How do we know you
didn’t plant the seed? Maybe you reminded her that she’d had a conversation
with a man wearing a Mets jacket one morning and then suggested that it was on
the day of the murder.”
“Mets
jackets aren’t exactly a rarity in
Briscoe
opened his mouth for another angry response, but Van Buren stepped slightly
between him and Morgan. “Detective,” she said quietly, fully conveying the
warning underneath.
He turned
and stalked back to the observation window, still incensed.
Morgan
pulled a paper from her briefcase and handed it to McCoy, giving him an icy
look. “We meet with Judge Ianello in chambers at
After she
had left the room, McCoy shook his head and let out an exaggerated sigh. Green
didn’t wait for the tirade they all knew was coming.
“There’s
no way we could’ve found out about this before now. Mrs. Lopez left the country
the day after the murder and only returned last week.”
“This is
a disaster!” McCoy exploded. “Any chance we might’ve had of convicting Fisher
has just been destroyed!”
“The
trial’s not over yet,” Briscoe reminded him.
“It will
be as soon as Mrs. Lopez takes the stand and gives him an alibi for the time of
the murder!”
“Fisher
still could’ve done it,” Briscoe argued.
“How?”
McCoy demanded. “The only way Fisher could’ve killed the girl and punched a
time clock at
“Then
maybe we have the time wrong,” Briscoe contended. “The M.E. said the time of
death was between one and five. Fisher could’ve killed her long before he
picked up his coffee.”
“That’s
true,” Green quickly agreed. “We narrowed down the time of death on the word of
a five year old who’d had a bad dream. He could easily have been mistaken about
whether his sister left before it or after.”
McCoy
walked the few steps to stand toe to toe with Green, his angry eyes boring into
him. “While that may very well be true, Detective, it isn’t going to do us much
good with the jury since you testified under oath that the girl was killed
between four and five. Or do you want me to put you back on the stand so you
can change your story?”
“The kid
was five! The jury will understand!”
“That
isn’t likely after the defense makes it appear that you deliberately lied the
first time around in order to simply clear a case, or to get even with Fisher
for resisting arrest!”
Van Buren
stepped forward again. “Look, my detectives did their best under the
circumstances. The brass was leaning on me to catch this guy and I was leaning
on them. If the case got rushed, it isn’t all their fault. The situation with
Mrs. Lopez was one in a million. They did everything they could to verify
Fisher’s alibi before trial.”
“That’s a
nice speech, Lieutenant. Maybe you can give it to the family of Fisher’s next
victim. With any luck, he’ll choose a girl within our jurisdiction. After all,
he knows the odds of getting away with it here are fairly good.”
Without
waiting for a reply, he stalked from the room, followed by Southerlyn.
“He’s
just ticked off right now,” Briscoe offered. “Once he cools down, he’ll think
of a way out. He’s pulled off worse than this before.”
Van Buren
gave him a steely glare. “If the two of you had done your jobs from the start,
he wouldn’t have to be scrambling for damage control right now.”
Green
gave her a surprised look. “What happened to it wasn’t our fault?
She shook
her head. “Just because I made excuses for you to McCoy doesn’t mean you’re off
the hook. The case was half-baked from the word get-go. He has every right to
be angry, and he isn’t the only one.”
***McCoy closed his eyes, leaned his head back
against the headrest of Southerlyn’s car, and tried to think. He couldn’t seem
to focus on the rather overwhelming problems with his case, though. All he
could think about was Morgan’s anger and how disappointed she had been in him.
He was doing his job, nothing more. She had no right to be upset with him
personally, he reasoned.
Southerlyn had said nothing to McCoy since leaving the precinct, giving
him time to calm down. But when she heard him let out a frustrated sigh, she
decided to keep quiet no longer.
“Look,
maybe it isn’t my place to ask, but what’s with you and this case?”
“What do
you mean?”
“It seems
to me that you’re making the conviction of Eric Fisher your personal project.”
Without
bothering to open his eyes, McCoy responded, “He lured an unsuspecting young
girl away from the safety of her home, then brutalized and murdered her. My
reaction to this case is no different than it’s been to any others we’ve
handled where a heinous crime has been committed.”
“I don’t
know.” Southerlyn argued. “I haven’t seen you rush into a trial without first
having enough evidence to convict, and I know I haven’t seen you withhold
evidence before.”
He
straightened slowly at her comment and turned to give her a searing stare. “I
didn’t do anything that the law doesn’t allow. After speaking with Detective
Briscoe, I determined that the information was not exculpatory. Therefore, I
was under no obligation to disclose it. I stand by my decision.”
With a
quick glance at him she asked, “Really? Even after it turned out that you were
wrong about it?” Before he could answer, she said, “If Fisher is guilty, I want
to see him convicted, too. But trying to circumvent the justice system to do it
isn’t right. You have to play by the same rules that apply to everyone else,
Jack. Sometimes that even means watching someone guilty walk away. With the
way things stand now, we’ll be lucky if Ianello doesn’t throw the case out and
let Fisher go home this afternoon.”
“He won’t
throw the case out if I can convince him we’re still going to proceed with prosecuting
Fisher for the crime.”
“What’s
the point in doing so? Once Mrs. Lopez takes the stand and gives Fisher an
alibi, there’s no way the jury can not
have reasonable doubt.”
“That’s
true – with this jury. But if Ianello declares a mistrial and gives us leave to
retry, we can re-present to a new jury. And next time, we’ll go strictly with
the M.E.’s time of death and leave what the little boy told Briscoe and Green
out of it. Fisher only has an alibi for the last hour of the murder timeframe.
He hasn’t offered any explanation for where he was when his neighbor knocked on
his door at
“And if
Ianello doesn’t declare a mistrial? Morgan would have to be crazy to agree to a
new trial under the circumstances. Why would she want to risk a new jury when
she’s about to win with this one?”
“She
already said she’s going to ask for a mistrial on the grounds of prosecutorial
misconduct. She’s angry with me personally,” McCoy insisted, putting his hand
to his chest. “Maybe that will cloud her judgment.”
“Do you
seriously think she will do something that goes against the best interest of
her client because of some personal problem with you?” Southerlyn shook her
head. “No offense, but I think you flatter yourself.”
McCoy let
out a long, weary sigh. “It’s called grasping at straws, Serena. What I think
is that we’re about to lose this case, which means a murderer is going to be
free to kill again.”
***As Ianello sat calmly regarding her, Morgan
insisted, “Brady obligates him to turn over all evidence material to guilt.
What could be more material to my client’s guilt than the discovery of someone
who could provide him with an alibi for the time of the murder?”
“Kyles v.
Whitley gives the prosecutor the responsibility of gauging the effect of any evidence
to determine whether or not it is indeed exculpatory,” McCoy argued. “After
having a conversation with the detective who interviewed Mrs. Lopez, I
determined that the information as to her mere existence was not. Upon being
shown the defendant’s photo, she said she had never seen nor had a conversation
with him. There was no material evidence to disclose.”
“And the
participation by my client in a line-up has proven that the information was
exculpatory since Mrs. Lopez was not only able to identify him, but also
recalled a conversation they had precisely during the time my client allegedly
committed the crime.”
“She was
adamant that she had never seen or talked with him after being shown his photo.
I had to base my decision on that fact.”
“A line-up
should've been the first choice for identification, not a photo. You violated
my client’s right to prove his innocence.”
“Then
file for a mistrial,” McCoy suggested, turning toward Morgan. “My office won’t
oppose. With a new trial, you can prepare your case using Mrs. Lopez’s
statement as evidence going in.”
“Why
would I give you another bite at my client, and this one for free, when you’re
the one who screwed up? I have no intention of filing for a simple mistrial
when a dismissal is in order. Mr. Fisher’s due process has been violated by
your suppression of exculpatory evidence and prosecutorial misconduct. I intend
to seek sanctions against you for it, as well.”
“As I
have already explained, the information was not exculpatory and, therefore,
sharing it was within my sole discretion,” he contended. “You have no basis for
a dismissal.” Turning to Ianello, he added, “The People fully intend to
continue with the prosecution of Mr. Fisher, Your Honor, although we are
willing to entertain the possibility of doing so with a new jury.”
“How
magnanimous of you,” Morgan noted sarcastically. “Am I not supposed to notice
that a new trial would give you the opportunity to change your story as to your
theory of when the crime was committed?”
“You’re
the one who suggested that this trial couldn’t be salvaged,” McCoy pointed out.
“I’m simply trying…”
Ianello
held up his hand. “That’s enough, both of you. While this is all very interesting,
since we’re sitting in my office, how about letting me do my job here?” He sat
back in his chair and contemplated momentarily before saying, “Mr. McCoy, you
shouldn’t have relied on the identification, or lack thereof, from a photograph
alone. Putting Mr. Fisher in a line-up to begin with would've been the
prudent thing to do. On the other hand, I don’t see that a trial dismissal or
imposing sanctions is necessary, Ms. Morgan. No harm has been done. You haven’t
been prejudiced in any way. It isn’t too late to present this evidence to the
jury and you can’t tell me you would have prepared your case any differently
had you known about it before.”
“He
should've disclosed…” Morgan began, but Ianello held his hand up again,
silencing her.
“Yes, he
should have, but he didn’t. I’m still not going to sanction him for discovery
violations. If you’d like to pursue the matter, you’re welcome to file a
complaint against Mr. McCoy with the State Bar Disciplinary Committee. But for
the purposes of this meeting, all I will do is allow the testimony of Mrs.
Lopez to be admitted into evidence. We’ll resume trial tomorrow morning at
***“Do you think she’ll go through with it?”
Southerlyn asked as they exited the criminal courts building and started down
the steps.
McCoy
shrugged. “I wouldn’t even hazard a guess. I have absolutely no idea what goes
on inside that woman’s head. But whether she does or not is of no concern to
me. The law is on my side and I have Judge Ianello’s refusal to impose sanctions
to back me up.”
“Well I
think Ianello just took the easy way out so he could get this trial over with.
Don’t forget he also admitted for the record that you should’ve disclosed the
information to the defense. And this would be your second appearance in front
of the Disciplinary Committee as a defendant. That can’t work well in your
favor.”
He gave
her a slightly wounded look of indignation. “Maybe you’d like to sign up to be
a witness against me. I’m sure Calea would jump at the chance to put you in
front of the Committee to tell them your version of how wrong I was.”
Southerlyn sighed. “I’m not taking sides against you, Jack. I’m only
pointing out the facts. The last thing I want to see is you having to appear
before the Committee. I happen to like working with you and we have several
tough cases coming up. I don’t want to have to start over with another
prosecutor if you get sanctioned. What I would really like is to figure out a
way to make this whole thing simply go away.”
“Right
now, we need to focus on the case at hand. It’s up to Calea whether or not to
file a complaint. If she does, it will take weeks before anything comes of it.
In the mean time, I’m not going to lose any sleep over it. I have more
important things to think about, namely, how in the hell we’re going to keep
Fisher from walking.”
***
“Hey,”
she greeted the A.D.A. with a smile as she pulled out a chair and sat down.
“How are things on your side of the street?”
Southerlyn shrugged. “All things considered, pretty good. It’s been
quite an adjustment but I’m beginning to get the hang of it.”
“I knew
you would,”
After
taking a sip of her own drink, Southerlyn answered, “I could use a little help
on a case we’re trying with your friend, Calea Morgan.”
“The
Fisher case?”
“So
you’ve heard of it.”
With a
frustrated sigh, Southerlyn replied, “Jack is the problem.” She paused while
the waiter placed
Shaking
her head,
“I can
appreciate his using every means at his disposal to put someone he thinks is
guilty behind bars,” Southerlyn agreed. “But this case is different. He’s come
dangerously close to violating Fisher’s due process. His obsession is going to
get him disbarred if he isn’t careful.”
“I don’t
think this is all about the defendant,”
“What do
you mean?”
“I think
a lot of what’s happened has to do with Calea. He’s upset with her for agreeing
to represent Fisher so he’s determined to beat her at any cost.”
“She’s a
defense attorney. Representing people accused of crimes is what defense attorneys
do. Why should he be upset with her for taking Fisher’s case?”
With a
shrug,
Southerlyn’s eyebrows arched. “Don’t tell me that she’s yet another of
his conquests.”
“She’s
not,”
After
taking a sip of her drink, she somewhat hesitantly explained, “Although he
didn’t mention anyone by name, a defense attorney once made a comment to the
effect that Jack has had relationships with some of his past assistants. It
isn’t something I feel comfortable asking about around the office. I don’t want
Jack to think I’m sneaking around, prying into his personal life behind his
back. And I can’t come out and ask him about it, but I am more than a little
curious. Do you know if there’s anything to what the attorney said?”
When she
didn’t continue for several seconds, Southerlyn said, “If you don’t want to
tell me, that’s fine. I just thought I’d ask.”
Giving her
a slightly surprised look,
“I heard
‘assistants’,” Southerlyn shrugged. “I didn’t know to whom he was referring.”
“Jack
admitted to me that he had affairs with several of my predecessors,”
“And?”
Southerlyn prompted with a smile.
Returning
the smile,
“You
didn’t answer my question,” Southerlyn reminded her.
Leaning
forward, her deep brown eyes twinkling with amusement,
“No it
isn’t,” Southerlyn agreed. “But that certainly doesn’t keep it from happening.
The question is, did it stop you?”
***Holding her side,
“No one
forced you to keep up,” Morgan retorted, equally winded. “And what do you know
about the kind of day I’ve had?”
Reaching
up to take down two water bottles sitting on a branch, she replied, “You’d be
surprised at the things I know.”
Accepting
one of the bottles from her, Morgan queried, “Oh? Like what?”
As their
breathing slowed and they began to walk around the small park in order to cool
down,
“And how
exactly do you know all of this?”
With a
shrug,
“Why
would she do that?”
“She
knows you and I are friends and wanted me to talk with you about what you plan
on doing in regards to Jack.”
Morgan
nodded. “She wants to know if I’m actually going to go to the Disciplinary
Committee, or if it was an idle threat.”
“And are
you?”
Giving
the other woman an indignant look, Morgan asked, “What do you think? If I had
my way, he’d already be off the case.”
“Oh,
don’t even bother trying to defend him! He knowingly withheld exculpatory
evidence,” Morgan argued adamantly. “A first-year A.D.A. would’ve known to
disclose that a possible alibi witness had been located.”
“Hind-sight is twenty-twenty. If the coffee vendor hadn’t been able to
I.D. your client, no one would’ve even questioned Jack’s decision.”
“I would
have!” Morgan declared. “The outcome of the line-up is irrelevant to his
behavior in the matter. He still withheld information that he should’ve
disclosed.”
“And
you’re going to make sure he pays, right?”
Morgan
walked silently beside
As she
turned and continued walking, Morgan said, “If I don’t pursue it, it’s as though
I’m condoning what he did. I’ll be an accomplice after the fact.”
“No, what
you’ll be is reasonable. Maybe Jack made a questionable decision this time, but
it was his call to make. And put yourself in his shoes for a minute. If the
prosecution wanted to put your client in a line-up that you felt was completely
unnecessary, would you allow it?”
Morgan
shook her head. “That’s totally different. My client’s rights would be at
stake. I have a duty to protect him from being trampled by over-zealous cops
and prosecutors. The system isn’t infallible. Sometimes people who are charged
with crimes are actually innocent.”
“And what
about the times when they aren’t? What about the victims’ rights? Who’s
protecting them when the justice system is held hostage by suspects’ rights?”
“Why do
you care so much? It isn’t as if he’s your problem anymore.”
“You
aren’t going to stop badgering me until I agree to do as you want, are you?”
“Nope,”
After
several minutes of silence, Morgan sighed. “Okay, okay. You win. I won’t file a
complaint with the Disciplinary Committee. Happy?”
With a
grin,
“I can’t.
I have to be up early tomorrow morning to run an errand for a client before
court. But why don’t we plan on it tomorrow evening? I should wrap things up
fairly early in the afternoon.”
“Sure,
that sounds fine. I might even be able to sneak out a little early myself
tomorrow.” As they headed for the parking lot,
“I have
my client to thank for that. From the time I first took his case, he’s been
after me to locate this woman. So over the past few weeks, I’ve periodically
driven by the place where he said he saw her, but I couldn’t find her – until
today. This morning, she was right where he said she would be.”
“So now
you’re adding ‘detective’ to your resume?”
Morgan
shrugged. “If that’s what it takes. I’m just glad I made the effort. Now, not
only do I get to win, but I get to win big.”
“Didn’t
you mention something recently about how it seems that some people focus too
much on winning?”
“Hey, I
agreed not to file a complaint,” Morgan reminded her. “I’m entitled to at least
a little satisfaction.”