Outside of a political protest, a law student acting in such a waywasodd—Judge Yu was right. Paul was right. Why hadn’t Zach just moved along when the police officer told him to? I wished now that I had more details about the warrant, but they had yet to arrive from the managing clerk. As it was, I had no choice but to rely on what Zach had told me, which wasn’t all that helpful.
“There was an extremely aggressive new mayoral initiative at the time, broken windows and such,” I said to Judge Yu as forcefully as I could, hoping that would make the excuse more credible than it sounded, even to me.
“‘Broken windows,’” the judge said derisively. “Lucky for your client that he’s white. Otherwise, he’d probably be dead.”
There was that lean to the defense. I had Judge Yu on our side for a second. I needed to seize the opportunity.
“Your Honor, on the night in question, my client had just found his wife dead in his home. He was in a state of extreme emotional distress when he accidentally struck an officer standing behind him with his elbow. Under the circumstances, I submit that the prosecution will never find a jury willing to convict for the assault, and yet he’s being held at Rikers, wherehe’sbeen assaulted three times already. This is an outrageous miscarriage of justice, Your Honor. One that could cost my client his life.”
“This all does sound excessive under the circumstances, Counselor,” Judge Yu said to Wendy Wallace. “And while I appreciate the ingenuity of getting those pictures in front of the arraignment judge, a homicide—with which the defendant has yet to be charged—is, as the defense points out, irrelevant.”
Paul wrote a note on his pad. “Ask about ADA Lewis, who was at the scene. I bet he wasn’t even on duty.”
Who cares?I wanted to write back, but there wasn’t time, and Zach’s public defender and Zach had both flagged the ADA, too.
“Further, Your Honor, this alleged assault only occurred once ADA Lewis appeared on the scene,” I began, rolling the dice. “It’s my understanding that he wasn’t even assigned to homicides that night.”
“Then what was he doing there?” Judge Yu asked. And, unfortunately, she was looking at me.
“I don’t know, Your Honor. That’s my question as well,” I said. “Perhaps Ms. Wallace or someone else at the DA’s office instructed him to find cause to make an arrest because the family involved is high-profile.” I braced for Wendy to shout an objection. Instead, she glared coolly my way. It was far worse. “Once ADA Lewis arrived on the scene with Detective Mendez, my client was deliberately manhandled, escalating the situation, which directly led to his inadvertentlyinjuring the officer. The DA’s office effectively created cause for my client’s arrest, which they are now using as an excuse to hold him at Rikers while they conduct a murder investigation. It’s impermissible bootstrapping.”
Finally Judge Yu turned to Wendy Wallace. “So what’s the story with this ADA …” She consulted her notes. “Lewis.”
“There’s no story, Your Honor. It’s procedure to have an ADA at the scene of all homicides. Lewiswasthat ADA. Perhaps somebody went home that night with a stomachache or had a hot date, and Lewis filled in. Last I checked, the DA’s office is not obligated to provide evidence of its staffing schedule to the defense.” Wendy Wallace leveled her eyes at Paul this time, and with a look that should have, by all accounts, sent him up in flames. “This entire discussion is moot anyway,” she drawled, approaching the bench with a document outstretched. “The grand jury has just returned an indictment against Zach Grayson for first-degree murder in the death of his wife, Amanda Grayson.”
I had suspected this might be coming. And I was prepared.
“Your Honor, the defense objects to the amending of the indictment,” I began. “The defendant wasn’t offered the opportunity to testify. It’s a clear violation of CPL 190.50. It calls for vacating the indictment.”
This was all true. It was a violation of the criminal procedure rules not to give a defendant a chance to testify before the grand jury charged with indicting him. It was such a serious violation, in fact, that it could result in an indictment being thrown out after the fact. I might not have been experienced in state court, but I did excel at doing my homework. Unfortunately, I was also prepared for how Wendy Wallace would respond, which was why I already knew I was unlikely to prevail.
“Oh, wait, does your clientwantto testify?” Wendy Wallace turned to me, head tilted slightly. “Because we will happily vacate the indictment to make that happen.”
And there it was. Of course I didn’t want Zach to testify. A defendant testifying before the grand jury was suicide, no matter how innocent they were. Grand jury proceedings subjected defendants to broad questioning with no judge present, resulting in reams of testimony that could easily be used to impeach them at trial. Nope. No way. But it had been worth a try raising the objection. Attorneys made mistakes, even accomplished ones like Wendy Wallace.
“What about it, Counselor, is your client going to testify?” Judge Yu asked. She knew how this was going to end, too. We all did. It was only ameaningfulviolation if Zach actually wanted to testify.
“No, Your Honor.”
“Then the indictment stands.” Judge Yu cast a sharp eye on Wendy Wallace. “Counselor, your tactics go that close to the line one more time, and I’ll hold you in contempt.”
“And, Your Honor, first degree?” I asked. “On what possible grounds?”
The premeditation involved in first-degree murder conflicted directly with the crime of passion theory Wendy Wallace had just laid out. Obviously, they could pursue any theory they liked, but there was the chance—with Judge Yu on my side—that I could at least use my objection to do a little reconnaissance. What did Wendy Wallace know that I did not?
“As counsel well knows, we are at liberty to amend the indictment to include second-degree or other lesser offenses at a later time,” Wendy Wallace replied smoothly as she sauntered back to the prosecution table.We know this happened, unless we decide this completely different thing happened.Such were the mental gymnastics permitted by our justice system. “We are also under no obligation to share grand jury evidence with defense counsel at this time.”
“But you are obligated to share some of your evidence with me,” the judge countered brusquely. She didn’t like being strong-armed by Wendy Wallace any more than I did. Luckily, she had the power to dosomething about it. “Given the context of everything else that’s gone on here, I think defense counsel can be privy to your theory in broad strokes.”
Wendy Wallace didn’t seem the least bit bothered, which suggested her case was even stronger than I knew. “Very well. We’ve received a preliminary forensics report confirming that the defendant’s fingerprints and the victim’s blood were found on the murder weapon. We also have evidence that Amanda Grayson was having an extramarital affair, providing ample motive for the defendant to kill his wife.”
“Your Honor, the prosecution has no actual evidence of an alleged affair,” I protested, hoping that Wendy Wallace might give up a name. While an affair might have been proof of Zach’s motive, it would also have handed me another possible suspect: Amanda’s lover. Maybe this supposed paramour was even the person stalking her?
“Witnesses saw Amanda Grayson heading ‘upstairs’ with a lover at the sex party she and Mr. Grayson attended right before her death. And, as counsel well knows, premeditation need not occur weeks in advance. Hours or even minutes suffice.” Wendy Wallace was certainly correct about that. But surely she also knewwhoit was that Amanda had been with that night, and there was a reason she wasn’t mentioning it. It must have been a weakness in her case. “And the defendant refuses to account for his whereabouts at the time of the murder. So we have motive, opportunity, and physical evidence that ties the defendant to the crime—certainly adequate for a first-degree indictment. Perhaps he’d like to say where he was, and we could get this all cleared up.”
Zach claimed he’d been walking on the Brooklyn Heights Promenade. Maude was a much better alibi, even with the complications it presented. But I hadn’t even had the chance to speak with Zach about it yet. Besides, Wendy Wallace was baiting me, and I wasn’t falling for it. Maybe she already knew about Maude and wanted me to say something. And to what end? It wouldn’t get Zach bail. Alibis went to whether a defendant was guilty, not whether he waslikely to flee.
The same was true of Amanda having a stalker. I could raise it now and hope the suggestion of an alternate suspect might curry favor with Judge Yu, but it wasn’t actually relevant to bail. The prosecution had gotten their murder indictment, and so that train had left the station. I needed to focus on the narrow issue at hand.
