Now in Legal Rebels:
Posted Jan 01, 2014 11:30 am CST
In August, we announced the very first winner of the inaugural ABA Journal Short Fiction Contest. The winner of the $3,000 prize was Whitehall, Mich., lawyer Lance Hendrickson, whose haunting submission is published here. The annual contest, supported by the Erskine M. Ross Trust, is intended to encourage literary fiction that illuminates the role of the law and lawyers in society. As you will see in the following pages, Hendrickson’s gritty exploration of a circumstantial infant death case reveals the variety of truths a lawyer may be forced to confront to achieve the best result for a client—and explaining painful reality may well be the toughest part of the job.
Shauna Kinney was scared. Frightened. And rightly so. Anybody would’ve been. I would’ve been, too, in her shoes. I mean, seven days before, she’d been booked in to jail for the first time, on a million-dollar bond, and for the last three days she’d been living under suicide watch. In the Delavan County lockup back then, “suicide watch” just meant solitary confinement with no sheets or blankets, with the lights on 24/7, and a usually-male, $9.75-an-hour, not-quite-road-officer banging on the bars with an old nightstick at the top of every hour. “Suicide watch,” hell … they should’ve called it “Let’s make sure she’s always thinking about suicide” watch.
I’d only been to see her once, before that first hearing. I’d watched as they brought her out of the solitary cell, and then again as they took her past the trustees mopping the day room after breakfast. Meeting her, and listening to her story in that little cement conference room—in there, with her, crying, scared out of her wits … afterward, I hadn’t been able to get outside and on the road fast enough.
It shouldn’t have affected me like it did. Or does. I mean, in those days I met clients in jail all the time. No big deal. After all, I wasn’t the one wearing red, and I got to go home afterward. Well, sorta. The day I met Shauna, I’d actually had to leave from there and catch a flight to Vegas. I’ll get to that. But they bothered me—that meeting, and that client, and that case. And it bothered me that they bothered me. Bothers, I guess. And bother.
In any event, the jailers hadn’t let her change clothes, so she was still wearing red and some broken shower clogs as we took our places at the table farthest away from the empty jury box and waited for the judge. I could smell the cheap detergent and the dank air and that relentless, abiding fear rolling off her faded, frayed, snap-up coveralls, all of it like a cold, vague fog. Impossible to see, hard to sense very clearly, but it was there. And it was staying a while.
“Will I get to go home after this?” She said it as much to the tabletop as to me. The tabletop would’ve offered her a more candid answer, and there wasn’t any fairness in that. But I had to say something. No way around it.
“Maybe,” I said. “Hopefully. Strictly as a matter of law, it’s pretty simple. All they have for evidence, about how Robert died, is your words on that videotape. And because of that rule we talked about, what—what you said, well, that can’t be used against you in court, without something else first to prove what happened.”
Not a bad horseback explanation of Michigan’s corpus delicti rule, really. Not a bad piece of lawyering, either, all things considered. It’s a common-law rule, and there’s more to it than that. But the way I’d put it, she understood, maybe almost as well as she understood the countrified slogans and beer logos she usually had on the big T-shirts she’d worn shopping and playing Bingo and yard-saling the previous week, and month, and over the two years since little Robert had been pronounced dead over at General.
Shauna had more sobering words stenciled on her clothes that day, and she and her dad and her brother, her only family, had been absorbing a whole new vocabulary from me since her arrest. They, sitting behind us, had understood the rule when I’d explained it to them, too, and I knew they weren’t quite as frightened as they’d been. Small, small win, obviously … and maybe it was just a push. But to me, right then, it counted.
The problems were in the things I couldn’t translate for them. Or anyone. And there surely wasn’t anything written on his black robe when Judge Connor appeared from the windowless door behind the jury box and mounted the bench.
See, by that morning, I already pretty much knew what was coming. I’d developed a guess at it soon after Grace, the court clerk, first handed me copies of the fist-thick disclosure file and a videotape, along with the appointment order. She’d offered me a sotto voce “sorry, Jim,” as she backed out of the judge’s office, and she’d meant it. It didn’t take me all that long to figure out how much she’d meant it. Probably still did. Does, I suppose.
I’d certainly known what was coming two days out, after I got a late-Sunday fax and a call from the Delavan County medical examiner. Screeching, sign-carrying, faux-graveyard-building abortion protester though he was, he’d had an attack of conscience or a divine intervention or something, and he’d wanted to alert me to another death certificate: the one he wrote two years before, with “UNKNOWN” pica’d into the “manner of death” box instead of “ASPHYXIATION,” like the only one I found atop that stack of papers from Grace.
Of the four reporters in row two (a lot at one time, for a rural county seat like Delavan), I suspected that one or two of them knew what was going to happen that morning, too. I couldn’t tell my client, though. Sick. Wrong. I know. Sound insight that her own lawyer couldn’t give her.
Anyway, I knew what was coming down the line. And at that moment, with court ready to start, I wanted to get out in front of it. Had to, rather. If this was going to be a railroad job, I was going to start throwing switches and pulling out spikes and ripping up ties … well, standing on the tracks and flying two single-finger salutes might be a more accurate image, but you get the point. It was wrong. All of it, for lots of reasons. And I didn’t really believe I could stop the train. But it’d be one bloody headline-grabber of a smashup, if I had anything to say about it.
If I hustled, I could. Maybe. “Place your bets,” I thought, as I made sure my file was open where I might need it first. “Come on, shooter; baby needs new shoes.”
So when everyone else seated themselves and came to order at 78-year-old Bailiff Roy’s almost-too-gentle command, I remained standing, with a click pen from the Bank of Delavan in one hand, hoping there wasn’t too terribly much of that bone-soaking fog rolling off my suit, too. Judge Connor sat down and turned, and naturally looked to me, standing. I cut loose.
“Your honor, if I may, I understand that we’re scheduled for a preliminary examination this morning, and I gather that the government has subpoenaed several witnesses for these proceedings; but if it pleases the court, what I’d like to do, before, uh, before we get going on that, is to offer to stipulate to every fact contained in the prosecution’s newly amended disclosure package, and to ask the court to proceed directly to argument on our motion to dismiss.”
Shawn O’Brien stood up with a snort. A loud one. It was the kind of obviously contemptuous snort that really had no place in any courtroom, anywhere. Come to that, in terms of manners, it shouldn’t have been used by imperious backwoods landowners at township zoning-board meetings, or by cuckolded spouses in the heartbroken arguments they always had toward the ends of their naive, rushed marriages, either … but that’s precisely what it was, and where it came from. I supposed the Delavan County prosecutor had heard it, endured it, and probably used it in both contexts. But now? Here? Jesus. It was for the reporters, obviously. And so were (what I knew to be) his best suit and his new tie and the fresh shine on his shoes. And so was what followed. Manufactured dudgeon. Righteous bullshit. Theater. Here came the rant, in all its near-slobbering, ungrammatical, faux-populist, shortcomings-automatically-forgiven neon and overhype and ragged glory.
“Your honor, this is a stunt—and an incredibly, incredibly reckless one at that, eckspecially in a murder case. A murder case. Judge, this honorable court is, is, is well-aware, well-aware, that the people are entitled to a preliminary hearing, as well as the defendant, and counsel and his client clearly have had proper notice of these proceedings. We can’t just skip over them …”
He paused. “Stupid place for a pause,” I thought. “Probably gathering his balls up for a sucker punch.” Sure enough.
“Now, young Mr. Jensen’s a very skilled trial lawyer, and apparently quite a politician, as we’re reading these days, but clearly, he clearly hasn’t learned, yet, judge, he’s … he’s not apparently not grasped, that betting his client’s freedom on a loophole isn’t good practice … isn’t professional prac-tice, at all. The people of the state of Michigan are concerned, your honor, that if this court were to allow him, to allow us, to … if the court were to agree to go this route, well, the defendant, his client, might be losing out on her rights, to, to, to the effective assistance of counsel, and to examine the evidence presented, or to be presented today, and, and … in two years, we’d be right back here again, after the appeals on those grounds alone, judge. It’s, it’s a, well, it’s a procedurally improper request, and it’s ill-conceived, and it would be ill-advised for the court to allow argument on his motion at this time, your honor.”
So. O’Brien was arguing that the court had to help lay the tracks for railroading my client later, in order to protect her from my slick tricks and gambling and youthful “stunts” and political grandstanding.
I had one thought: “Screw him.” Telling, that. I could’ve used a smarter one.
I knew O’Brien was looking at me, and the press was looking at me, and everybody in the cheap seats had to be looking at me, and I could just about feel my client’s head turning back to look through the fog at her family. But I didn’t look around, or back, for a millisecond. I was locked on Judge Connor. I wanted him to know that I understood the game, and the odds, and that I’d never forgive him if he swapped in the special dice himself. He wasn’t interrupting yet, so I thought I still had a chance. Maybe. A little one. No going back now, regardless. And good for that.
I shot back at O’Brien. Hard. And fast, before Connor could act.
“Judge, I do appreciate Mr. O’Brien’s professed concern for my client’s rights, and I do understand that he’s been practicing in this county for my whole life. But even here, your honor, the law’s the law, and my esteemed colleague the prosecutor, knows—presumably—that he’s got to offer something other than my client’s alleged statements, inadmissible statements at this point, to establish a wrongful cause of death here. And, judge, nothing in that file, nothing in the documents—including what was hidden—hidden from me at first, your honor, I might add!— … and nothing the police have developed over these last two years, judge, can do that. Nothing. And Mr. O’Brien knows it. I still don’t know how this warrant was issued without useful evidence, or why I didn’t get a copy of the original death certificate in the first place, but if we’re going to be talking about reckless stunts this morning, maybe we ought to start the discussion right there.”
Old as he was, probably half-hung-over as he usually was, O’Brien had his best evidence hornbook raised before I got to “stunts,” and he banged it flat on his table in his best bad-dinner-theater-apoplexy by the time I got to “start the discussion.” “BOOM!”
Slick for the sticks, still, that guy. That’d have ’em talking in the coffee shops tomorrow.
“Your honor … !” O’Brien stage-howled, as he rolled his eyes. He resembled nothing so much as Rodney Dangerfield being served with a paternity suit.
When I saw Judge Connor going for the gavel, I ventured another glance at O’Brien. Right before it came down, for a flash, I saw a scared old man at the next table. Piss, vinegar, the odd shot of Jameson’s after midnight, and the rare peek behind Oz’s curtain can do wonders for a young-buck lawyer like I was that day. And for that moment, I gotta say, I felt like a rock star. Elvis, really. Rock-a-hula, baby. I’d arrived.
“BANG.” There went the gavel. Right on time. Connor was telling us, and the marble, and the hundred-year-old banisters, “that’s the bell, guys, I don’t need this; we’re going back in the back, I ain’t having a brawl here in front of people, and that’s it.”
The judge’s eyes were riveted on the bench, but the whole world knew he was staring through me. “Counsel,” he commanded, as he rose very deliberately, like Washington getting ready to load up and head for the Delaware. “In chambers.” His unspoken “now” had some heft to it. He and his robe floated off, but nobody moved until Grace flipped back her hair and picked up her dictation machine. Then O’Brien and I both sidestepped around our respective tables. Everybody was thinking one thing: “This is serious.” No kidding.
“Don’t worry,” I told Shauna quietly as I rounded my chair. Of course, she’d parlayed her worry into near panic, and the fog was rolling in a lot thicker at that moment, but this was exactly what I’d wanted. Needed. The hell with their locomotive, and the hell with their tracks. I’d stopped the boxcars cold, for a second.
I sent Shauna’s family a wink on the way out, but one of the reporters caught it. Whoops. Ah, well. “Let’s see how these conductors crawl out of a 30-foot ditch,” I thought.
Judge Connor wasn’t in his office when we got there. His robe was. Grace was, too. She was setting up her machine on the corner of the desk, but she wasn’t sitting down. Most likely, she was on her way through the back door to join the judge in the stairwell for a smoke.
“The hell was that?” O’Brien spat, looking everywhere but at me. He knew what it was, though. But for Grace, he probably wouldn’t even have said anything.
“Oh, dial it down, Shawn,” I half-smiled. As expected, that played like I’d inserted a cattle prod and thumbed the switch. I mean, “Sha-zam.” His ex-wife must’ve absolutely owned him, before he’d filed on her.
O’Brien hucked his own Bank of Delavan pen at the coat rack in the corner, and it caught the judge’s robe under the collar. I hoped he’d clicked it closed first. “This is a murder case, goddammit. Your client killed her own goddamned child, and here you are with your goddamned books and your goddamned loopholes and your goddamned grandstanding …”
I cut him off. “Hey, Shawn? Is that the only cuss word you brought to court today? ’Cause I could get my books out and look you up a fresh one …”
That was really snotty, and probably a bridge too far. Well, definitely, it was. Grace stopped, and she just looked at the stack of files on the judge’s desk.
O’Brien gathered himself, and turned, and folded his arms, and stared at me like a beat cop who’d caught me spraying graffiti on the side of the hardware store. “Son,” he started. “Son?” Shit. He was gonna do it. That last blast must’ve been two or three bridges too far. I just watched the turret spin.
“We’re both a long way from when I hauled your old man back here for that child-support thing. And fair’s fair—a lot of us around here are proud, really, at how you’ve grown up, and turned out, well, honestly, to be a good trial lawyer. Real good. We talk about you. One of the better we’ve seen.”
Uh oh. Incoming. This was gonna leave a crater someplace.
“But you, and, and yeah, with your books, and with your taxpayer-funded schooling … well, I guess you apparently still don’t see what we’re trying to do here. What, what we’re all doing here. Your client killed her own son. And, hey, Robert wasn’t just her son—that boy’s father’s out there in that courtroom right now, too. Who do you think keeps things together up here for these people? Huh? Who takes care of them? I don’t see you buying in, Jim. And I sure as hell don’t see your loopholes or your Latin doing anything for that little boy, or his family. You read much about stuff like that lately, have you?”
I was still chasing, and without the stake to do it. But I couldn’t let go.
“Well, I guess not … but say, Shawn, Robert’s dad was Kizzy Holmes’ meth cook, and everybody knows it. You guys scooped her up in your big headliner raids last month. No deal at all for her, right? So, why didn’t your ‘grieving father’ catch a case or 12 in your fancy ‘sting,’ too, hmm? Why not? Huh? Why exactly was that, Shawn? Or, is it, is that? Call me stupid, but no, I don’t fully understand your grand plan for taking care of Delavan County, sir.”
O’Brien just snorted again and headed for the stairwell door. He tried to stalk off, but that was at least seven years behind him, and it came off like a nervous saunter. When the door closed, I sat down in one of the two chairs in front of the judge’s desk and stared out the window. Grace couldn’t leave just yet, after O’Brien’s sturm und drang, so she started.
“Yeah, say, how is your dad these days, Jim? Do you hear from him?”
I still had the pen in my hand, and I gave it a couple of clicks. “He passed 11 days ago, Grace. In Nevada. I was just getting ready to fly out for the funeral when you gave me this file.”
“Oh, Jesus, I’m so sorry,” she said. She meant it. “You OK?”
“I guess we’ll see when Connor’s done with that smoke,” I smiled, as I folded up a leg and got ready to wait for the judge to come back. “I don’t know why Shawn brought that up, Jim, but I’m sure he didn’t realize …”
“Yeah, I know. It’s fine, Grace. No worries. Really. I hadn’t even heard from the old man in years, anyway.”
She headed toward the stairwell door, and I thought back to the day we’d met. Well, almost met. I was 15, and Judge Kuiper was holding contempt hearings for a bunch of child-support deadbeats that afternoon. It was hot as all get-out in the courtroom, no AC of course, and my brothers and my mom and I were the only ones there, besides Grace, who weren’t wearing a badge and a nametag, or those faded red coveralls, or a black robe. Except my dad, that is. With a little warning, he’d brought his only suit back east with him, huge lapels and all. It hadn’t impressed Kuiper. “Ninety days, next case.” We never actually saw a nickel of the arrearage, but I suppose that hadn’t been the point.
And don’t ask me how, but a decade later, when I’d gone in to sign the paperwork and take advantage of my new approval to join Delavan County’s felony-contract rotation, she’d remembered that day. Remembered me. Somehow.
So I had a minute or six to myself. And I wound up thinking back to the trip. The regional to Chicago had been good for three vodka sevens, and the layover at O’Hare brought five more Stolis and half a USA Today at a miniature Chili’s in the concourse. A well-tipped stewardess rationed me seven or eight more tiny bottles of vodka over three 7Ups on the next leg—there may have been a quick nap involved—and by the time the jet banked and the bell dinged and I put my tray up and the captain told us the obvious, I’d figured I was just about ready for Vegas.
The sun was setting, and some of the lights of the Strip were starting to stand out more than others. From the window next to me, I could still make out a few traces of smog out in the farther reaches of the valley. Nothing like what I’d seen on that first trip out, when I was 17, and the old man was trying to square up some debts by spending half a summer with us. It’d been our first flight, one of our first times out of state, and I remembered how seeing the pollution at noontime from above had stuck with me all the way to the baggage carousel. It was out there, still, that evening. Had to have been. The City of Angels never stopped kicking out the haze, and the mountains around Vegas hadn’t gone anyplace. It was there. Right where I’d left it.
I didn’t hassle the cab driver when he long-hauled me on I-215 instead of just taking Paradise Road out of McCarran and over to the north Strip to Fremont Street, and I politely deflected his questions about whether I had “a girl in town tonight” or “enough smoke on hand.” I was looking for plumbing, through the sides of the busted-flush projects various myopic billionaires were doggedly raising near the Strip back then.
See, the old man spent his years installing overhead-sprinkler systems in high-rises. I scanned the skeletons for pipes as they hulked their way past the cab window, imagining I saw some. I remembered how one time, before he split Michigan, a couple of years before those late-night calls from whichever casinos he was losing in before he met his second wife, on a Sunday, he’d let me drive a hi-lo at his job site. I’d thought it was pretty cool, driving from up near the rafters but having to watch the floor.
Then I remembered how, in Vegas that first night, that half-summer, after several PBRs around his wife’s pool, he’d been spouting off about how his work “pertectd thousahds o’ people. Milluns.” “Great,” I’d thought. “How wonderful for the masses.” This after he’d made fun of my holey, mower-stained tennis shoes at the airport in Detroit, mind you. Those remarks, or, I guess, how I’d reacted to them, kept me on near-tilt for the rest of that trip.
The construction and the memories and the long-haul hustling ended as we found downtown. “Well, good on ye, old man,” I mumbled to myself, as the cab driver burned a stop sign, cracked off a U-turn, and rolled up to the cab stand at the Nugget. “At least you kept somebody safe.”
The following two days’ worth of Scotch-hued memories of the viewing, and the step-in-laws, and meeting his gambling buddies, and the funeral, and the neon, and the heat, and the same suit he’d been wearing in the coffin, and the smog again from above on the way out of town, were going to have to wait for their turn at the bar later. Hopefully much later … but even “much later” wouldn’t be long enough for me.
The judge, Grace and O’Brien came back through the stairwell door, and everybody sat. Grace didn’t touch her machine.
Connor got right to it. “Shawn, I don’t see how you’re going to do this. What do you have to establish criminal agency, besides what’s on that tape?”
“Well, Judge, the EMTs will say the boy was wet when they arrived, and the medical examiner will say he was drowned.”
“Maybe drowned, somehow,” I interjected. “And the second death certificate was written last week.”
Connor smoothed me a glance—I hadn’t had to say any of that. Lesson learned.
He leaned forward toward O’Brien. “Shawn, that was after he’d seen the tape, and how the boy might’ve drowned is the issue here. What can you offer, that doesn’t rely on what this defendant said?”
O’Brien had anticipated the question. “The boy’s father will testify that there’s no swimming pool, or creek, or any place around that single-wide where a toddler could’ve drowned accidentally. And there’s no bathtub. It was the kitchen sink or nothing. Little Robert couldn’t operate the faucet, let alone the drain plug.”
A “don’t” look from the judge. I stood pat.
O’Brien kept rolling. “The father will also say that Shauna didn’t have a vehicle, and she stayed home with the boy all day, every day. There was nobody else around.”
I thought it, but I didn’t say it: “Yah, except for the backwoods tweakers stopping by for more crystal every day.” I couldn’t have been the only one thinking that.
The judge caught himself. He’d done defense work before his appointment back in January, but he had his first election coming up in the fall, too. Nobody in the room needed this case.
He looked at me again.
“Counselor, I’ve read your motion, and, and, your brief. Maybe the prosecutor has some proof of criminal agency that doesn’t rely on your client’s statements, but I haven’t heard it yet. Nevertheless, the warrant did issue, it was proper, and unless you’ve got some authority to the contrary, the people are entitled to a preliminary examination, to try and convince me to bind your client over to circuit court for trial. Now, is there anything in the rules, or the case law, that would allow me to consider a motion to dismiss before Mr. O’Brien gets his chance to do that?”
There wasn’t. Everybody knew it. There was going to be a hearing, and a record, and a dismissal, but the bond would be continued, and the dismissal order would be appealed to the eventual trial judge, who knew very well how to keep getting elected in Delavan County.
I should’ve gotten off the tracks. I didn’t.
“No, judge, there isn’t. But my client’s obviously indigent, and she’s obviously not gonna post a million-dollar bond while it’s all sorted out. Judge, I’d argue that as a matter of law, this court isn’t required to engage in an ultimately meaningless exercise while an innocent defendant sits in jail, on, on suicide watch, I might add. It’s pointless, and it’s wrong, and this court doesn’t have to, and shouldn’t, lend its imprimatur to that.”
There it was. “Dammit, you guys. There’s no useful evidence, but you both know, we all know, that if you leave them something in a transcript today, Judge Kuiper and some lead-assed calendar clerk at the court of appeals will keep Shauna Kinney in jail for two years anyway. G’head and railroad her, you backroom-dealing pricks. But don’t expect me to ride along.” I’d pressed the issue without saying any of that; the point was made.
Judge Connor didn’t like it. But he didn’t see a way out, either. He stood up and got his robe. “Let’s get going,” he said.
The hearing took two hours. O’Brien started with the father. This was just a prelim, but he stuck with the trial formula: Bring the victim to life first, then let the defendant’s deeds kill him in open court. So the father was the first witness called. I had to look like I felt for him, sitting up there, but I didn’t. I mean, yeah, but not really. He was probably the biggest meth chef in Delavan County, had been for years, and everybody knew he did it in a shed 20 feet past his property line in the state forest. For two years, he’d kept quiet about his own son’s death, even through the divorce that followed. Then when his distributors had been picked up, he’d dealt his son’s death for a pass. I only had a couple of questions.
“Mr. Kinney, I am sorry for your loss … but I do have to ask you a few questions. Is it your testimony today that you left Robert and his mother alone, with no vehicle, 6 miles out of town?”
He shifted in his seat. The whole room was uncomfortable. “She had a phone there. I was either working or fishing that day.”
“Sir, isn’t it true that the shed out back of that trailer, the trailer you still own, has been raided no less than four times in the past two years, that about 30 drug users have been arrested nearby in that time, and that evidence of a meth lab has been found there every time it’s been searched?”
“Objection! Irrelevant!” O’Brien’s courtroom voice was back on “bombast.” Probably because he knew he’d been a little slow—he shouldn’t have let me get past “shed.”
“Sustained,” said the judge. Obviously it was irrelevant, I guess. Legally.
“Mr. Kinney, do you know who called the paramedics for Robert?”
“I don’t know. I don’t recall if I ever knew. I guess it had to be Shauna,” he said, looking at O’Brien for guidance or support or something. Then he shrugged. Like he didn’t have any idea. Yeah. Right.
I didn’t know the answer to the next question, but the answer didn’t matter. “Sir, after the boy’s death, and before your most recent negotiations with law enforcement, had you and Shauna discussed how Robert died?” He had two choices: He could say no and look like the uncaring drug-dealing prick that he was, or he could say yes, and then either admit that he’d known and kept mum for two years, or try and cook up a story on redirect about how he’d miraculously found out what’d happened to his son exactly when his distribution network went down.
This he figured out. “I don’t recall.”
“Good enough,” I thought. Everybody thought. I sat down. If it ever got to trial, and it wouldn’t, I’d do the rest then.
The EMTs were next—all three of them, who’d found Robert dead. They’d tried CPR for 12 minutes. Two of them, the women, cried on the stand. I didn’t ask them a thing. After all, they had no idea how that little boy died. They just knew they couldn’t bring him back to life.
Then it was time for the medical examiner. To his credit, he told the whole truth, or at least what he knew of it. The reporters must’ve been scribbling like hell when he talked about how he was shown the videotape in his office, and how O’Brien himself had asked to have the DC changed and reissued to line up with what Shauna’d said. Or at least they should’ve been scribbling. I didn’t look. I just made the record clear that the Delavan County medical examiner hadn’t known what to conclude until he’d heard my client’s words a few days ago, and I sat down silently. “This guy doesn’t know how it happened, either. Nothing further.” No need to say those words, much less shrug.
Two deputies capped things off—the ones who’d investigated the death originally, and who’d worked with Robert’s father, taping Shauna at the trailer. I recognized their voices from the tape, near the end, when they’d burst out of the back bedroom and half-dragged her off one of the sad-chrome kitchen chairs to the bare floor. No warrant, mind you—that came later. I’d prepared a stack of questions about how they’d made the deal with the boy’s father, and what he’d received; but when I thought about it, sitting there, I knew they’d just lie, or spin it. I didn’t want any of that to be legitimized any further in the transcript. I didn’t ask the first deputy anything. There’d be lots of time for that later. Theoretically.
The second deputy just laid foundation for the tape. O’Brien moved it into evidence, I objected again, Connor just said “noted,” and then O’Brien aimed the two remote controls from his table. An old Zenith on a metal TV cart fuzzed to life near the bench, and we all went to the faded calico-and-pine interior of that squalid, filthy trailer in the woods. Right there in front of us, the Kinneys returned from 50-cent tacos and beers at Sporty’s and sat, and then Robert Sr. started in with the browbeating I’d watched seven times the night before.
“Shauna, if I ain’t got it clear in my mind, we can’t be together again. I just have to have it clear.”
Country girls should never be stupid, drunk and in love with the wrong guy at the same time. It’s bad, bad math. She was distraught. Anybody in her shoes and her Marlboro T-shirt would’ve been.
“What do you want me to say? I told you. I called 911. I did everything!”
I’d have bet that Mr. Kinney, back in the first pew behind O’Brien to our right, “recalled” who’d phoned for help just fine, at that moment.
He soldiered on. “Shauna, darling, I think about it all the time. I just, just … I just need to get it clear in my mind. For me. For us. Why not just tell me all of it again, everything that happened, and let’s get it over with?”
She was crying by now. He didn’t need to knock the salt shaker off the table, but of course he did it. Didn’t quite get the pepper, but it moved some. She looked away. He didn’t quit.
“Answer me! You say you love me, but you know what this is doing to me! Tell me exactly what happened!” The pepper hung tough at the edge of the table, fist-pounding or no.
She wasn’t so tenacious. “Fine!” she sobbed. You want me to say it? That I killed him? I’ll say it. I killed him. It was my fault. He was crying, and he wouldn’t stop crying, and … and … then he wasn’t. I didn’t know what to do. I called 911.”
Enter the deputies. Cut. Print. O’Brien gave the Zenith another well-deserved sleep and heaved to his feet. “The people rest, your honor.”
Sure they did. I dunno how, and I don’t think most of us in that courtroom rested much later that night. I know I didn’t. At least, I don’t re-member that I did.
Judge Connor looked at me. “Counsel?” I just sat there and shook my head. He nodded. “The court will be in recess until 2:00.” He floated off again, and we “all-rose” together, and the judge and Grace and O’Brien made their way back to their offices. The reporters stayed quiet, scribbling, amid the muted buzz and the gettings-up from the well-worn pews.
Bailiff Roy took Shauna back across to the jail, and everybody else went to lunch. Or somewhere. I went down and wandered around the big gravel parking lot behind the courthouse, smoking, kicking little rocks—OK, brooding, I guess, and watching an old guy mow his lawn across the way. He was being careful to keep the lines straight. Job well-done, that. He cared about it. Good for me to see, just then.
About the time the neighbor finished up and settled into a porch chair with a beer, it was time to head upstairs again. Judge Connor took the bench, legal pad in hand. He had a script. He used it carefully.
“The court has heard, and has examined, the evidence adduced at this morning’s hearing. And it finds that, that … that as to the manner of Robert Kinney Jr.’s death, on that point, there is no evidence before the court, that is independent of the recorded statements of defendant Shauna Kinney.”
O’Brien didn’t snort again, but he did shift in his chair, and he very firmly planted one jowl in the palm of his hand. Connor didn’t miss a beat.
“The court is bound by the Michigan corpus delicti rule. That rule provides that in the absence of any other evidence of criminal agency in a death, or in any criminal case, confessions alone, or other incriminating statements, are not themselves admissible as evidence. Therefore, based on what’s been presented today, this court cannot bind the defendant over for trial, and the case against Shauna Kinney must, must therefore be, and is hereby, dismissed.”
O’Brien had been on his feet since “… not themselves admissible … .” He didn’t need a script. “Your honor, the people will appeal, this afternoon. In the meantime, the people would request that the court stay its order of dismissal, and that bond be continued and remain set at one, er, one million dollars, cash or surety.”
I didn’t get a chance. It wouldn’t have mattered anyway. “So ordered,” Connor said. The gavel came down again, but it didn’t offer any wisdom. It just fell.
Thirteen days of dealing misdemeanors and writing collection letters and drinking draft beers ’til last call and checking football scores for the pools I always lost gave way to a graying Monday morning, and we all found ourselves back upstairs at the courthouse. Reporters, too. Shauna still had red coveralls on, but Mondays were shower days, and the fog wasn’t quite so insistent. For her, anyway.
Circuit Judge Kuiper’s ascent brought a snappier “all rise” out of Bailiff Roy. It was necessary. We all sat quickly, and then it was right to business. Kuiper wasn’t hearing argument.
“Counsel, this court has reviewed the record from the preliminary examination, and it has read the parties’ respective briefs. Clearly, the medical examiner’s testimony, and report, taken together with Robert Kinney Sr.’s testimony, well, they provide an ample basis for the finding contained in the amended death certificate—death by criminal asphyxiation.”
Of course. Back on the tracks for me, though. I kept my middle fingers in my pockets, but I stood up—and I stood my ground—right between the rails.
“But your honor, if I may, that was the medical examiner’s second report. It was produced because of, and for its new conclusion it relies upon, nothing more than my client’s statements. That’s the kind of impermissible bootstrapping, judge, that the Michigan Supreme Court was talking about in the Boyd case, and that, that the court of appeals found impermissible in People v. Exber, and, and that’s been roundly rejected in the other cases we’ve cited in our brief. Clearly, judge, my client’s statements can’t be used to make themselves admissible.”
Fat chance of winning this one, law and logic or no. Kuiper wasn’t having it. I’d known that, and he knew I’d known what he was going to do. I was just stuffing it up his nose to make him spell it out in the transcript. He didn’t bother.
“Well, that argument certainly may be something for the court of appeals to review; and the defendant, through counsel, would certainly be within the, the rules of procedure, certainly, to appeal this court’s ruling within the next 21 days. For now, District Judge Connor’s order is reversed. Trial in this court will be scheduled for Aug. 8, and the defense’s contingent motion to modify bail is hereby denied. One million dollars, cash or surety.”
Just like that, Circuit Judge David Kuiper broke the law. On purpose. And someone else was gonna have to do the time for it.
I suppressed a much-wanted “pffft” when the gavel dropped, but Shauna’s father didn’t. For good measure, he hissed out a muted F-bomb as well. Judge Kuiper didn’t raise an eyebrow as he abandoned the bench. Maybe he couldn’t raise an eyebrow, past his furrows and receding hairline and sense of purpose. Maybe past some latent guilt, too. I didn’t know. He just split and left the remark to color the banisters. Wise, I guess. Good for him, anyway.
The family and I retired to the jury room next door, and a moment later Bailiff Roy brought Shauna in, uncuffed. She sat down next to her dad. It was all on me now. But instead of beginning, I wandered over toward one of the large windows at the other end of the room. I could see some thick, heavy clouds rolling in low from the west, with a nasty shade of black underneath. They were getting ready to let go over near the elementary school on top of the hill … and I hated every damned one of them.
“Can he do that?” Shauna’s father began. I could hear his upper lip trembling, and I knew he was right at that spot between anger and frustration and aggression and crying. Powerless, scared … all he wanted was to save his daughter, whatever it took. But he couldn’t, now. God bless him. I wanted to turn and give him a bear hug, and take him out for beers and smokes. I thought I needed to invite him out back, so he could tell my knuckles why he didn’t run that meth cook off years ago, before, and before, and before. Instead, I just stared out the window. He wasn’t done yet.
“What about that last hearing? Judge Connor said you were right. Why does she have to stay in jail?”
Shauna’s brother put his 2 cents in. Smart kid, kinda. Smart for the room, anyway. “Because we don’t have a million bucks.”
For a flash, I thought, “That ain’t the only reason, kid.” I knew I’d be chewing on that one for a while. A long while. At least until I opened some of the letters that’d been coming in from the Nevada probate court, or until I quit spending so much time knocking down drafts at the mahogany office. Maybe longer. I had no idea when any of that would be. I didn’t want to know.
O’Brien knocked, and the door creaked. I didn’t look, but I knew he was poking his mottled pate inside.
“Eighteen, counselor,” he said quietly. “Best I can do.”
The door creaked again as it closed. I halfway thought about being mad at the maintenance staff, but the hinges were as old as the banisters and the pews and the marble, and they were all probably doing the best they could, too.
“What’d he mean?” Shauna’s dad wasn’t getting it. He was still nervous, and angry, and more than a little frustrated. Time for me, such as I was. I kept my eyes on those clouds. It was gonna rain. And rain, and rain. I didn’t look back.
“The prosecutor’s offering to reduce the murder charge to involuntary manslaughter, in exchange for a guilty plea. That’s still a felony, but instead of a possible life term, it carries a maximum sentence of 12 years in state prison. Since this is a first offense, he’s willing to recommend capping Shauna’s sentence at 18 months. In ‘jail math,’ assuming she doesn’t get into any trouble inside, that works out to about 12 months. So she’d be doing that time here in Delavan County, instead of some faraway prison.”
The brother again. “But what about the court of appeals?”
The first few drops smacked the windows with an impertinence I’d rarely seen. Out of others, that is. I knew it. Or thought I did. Time to turn around.
“Look, folks, the truth is, even with an emergency appeal, cases like this usually take about a year and a half to be decided in Lansing. Even if we were to win there—and you all heard Judge Connor, so don’t get me wrong; there’d be a real chance of that—she’ll still have been in the same jail for 18 months by that time. And if—if we were to win, O’Brien would appeal to the state supreme court after that. So stack on another year in jail, minimum, while that process goes. Keep in mind, too, though, that if we were to lose those appeals, she’d just be going to trial for murder three months afterward, and she’d be looking at a 10-year minimum sentence if she were to be found guilty. Possibly life. In prison.”
Shauna was crying softly, and shaking, and her dad reached past the arms of the polished juror’s chairs and gave her a hug. I had to look at the table, when his arm didn’t leave her shoulders after. It was beautiful, and awful, and at that moment I’d have killed to have a thick goddamned lightning bolt cut through the air and rip a big hole in the crabgrass and the molehills dotting the patchy-green courthouse lawn out behind me. No luck, though. No lightning. Just that deepening gray and the still, heavy air, and the truculent splatters we could all hear on the window.
David again. Good brother, he was. Best he knew to be. “Jim, what do we do? What should she do?”
Like I knew. Like I was anyone to say, there and then. I half-turned again, and paused, and glanced over. There was nothing on the blackboard along the wall, except a few eraser arcs in the chalk dust that’d always keep it from ever really being black again. No help.
“Folks … Shauna … take the deal.”
This article originally appeared in the January 2014 issue of the ABA Journal with this headline: “It’s Legal, There: A dead child, an old grudge, and a lawyer caught between the facts and the truth.”