Page 62 of Fifty-Fifty

I stood with Harry. Dreyer was already on his feet. Judge Stone came through the door with our motions under his arm.

I heard Harry mutter, ‘Shit. We’re toast,’ under his breath.

Son of a …

‘Mr. Dreyer, you appear for the People. Mr. Flynn for Sofia Avellino and Miss …’

‘Brooks,’ said Kate. ‘For Alexandra Avellino.’

‘Very good,’ said Stone. ‘Mr. Flynn, I’ve read your legal briefs. I’m granting all three of your discovery motions. The prosecution is obliged to provide you with the evidence and documents listed in your affidavit by close of business today. I’m also granting the motion for inspection of the crime scene. That’s for both defendants. The inspection will be done alone, without police presence save for an officer of the court who will video-record the inspection to ensure the scene is not tampered with. There will be unilateral disclosures of these videos.

Edited to remove sound, so you can discuss the case freely at the locus.’

Dreyer’s assistant lifted a box from the prosecution table, put it on my desk.

He then picked up another box and put it on Kate’s table.

‘All documents and evidential reports have now been served. We have an officer with a video camera at the ready for the inspection of the Franklin Street property,’ said Dreyer. He was expecting this. I’d no doubt he’d spoken privately with Stone about it before today. That would be a huge breach of ethics, but it happened and there was no way to prove it.

‘Likewise, Miss Brooks, I’m granting your motions. Mr. Flynn had actually asked for more documents than you did, but you’ve got it all now and more.’

Kate stood, thanked the judge.

‘Now, we come to the last order of business. Mr. Flynn, your motion to split the indictment and have separate trials for each defendant – I’ve read your motion and the brief. It was put together … judicially, you might say,’ said Stone, giving Harry a sickening smile.

Harry mouthed something back to Stone. I’m no lip reader, but it looked like Harry said something that started with mother, and ended with trucker. Or something close to that.

‘Your legal arguments are sound. The potential prejudices to your client are real. However, as you have alluded to in your motion, even the criminal code itself states that I have discretion in this matter, and that I can deal with it as I see fit as long as I have addressed the potential prejudices to both defendants.

Even if both defendants are blaming one another, if both are willing to testify then it cancels out any constitutional argument that your client can’t get a fair trial. And I can warn the jury about any fears of prejudice you may have. Those controls and warnings should stave off any substantial unfairness or prejudice.

Miss Brooks, I take it your client is going to testify?’

‘She is, Your Honor.’

‘Well, Mr. Flynn, doesn’t that mean that your client should be refuting that testimony with her own?’

‘Your Honor, with respect, that means my client theoretically couldn’t exercise her fifth amendment right against self-incrimination,’ I said.

‘It’s up to you how you conduct your case, Mr. Flynn. Your client can take the fifth amendment all she wants, and I know you’ll explain the consequences to her in advance. I have to be satisfied that there would be a substantial prejudice to your client before I split this trial. The word “substantial” is the key one, here.

Any joint trial has some element of potential prejudice, but in my view it is not substantial. Also, I have to weigh up the cost to the taxpayer of two separate trials. On that basis, I’m denying your motion. The joint trial will begin in two weeks. We’ll swear a jury this Monday. Court adjourned.’

‘Your Honor …’ I said, but he’d already gotten halfway to the door. He ignored me, and left.

‘Shit,’ I said, under my breath. ‘Can we lodge an appeal today?’

Harry folded his arms. His eyes were closed and his brows knitted together.

‘No can do. The trial hasn’t happened yet, so we can’t allege any actual prejudice. On appeal we have to show the judge wrongly exercised his discretion. When a trial judge has an inherent discretion built into their decision-making, it’s hell to get an appellate court to overrule him. It won’t work in this case. He’s acknowledging our arguments, but he says that doesn’t automatically

mean a split trial if he can deal with any substantial prejudice to the defendants by warning the jury about certain aspects of the evidence. The Zafiro case kind of backs him up on that theory. Man …’

‘But the criminal code says if the defenses are diametrically opposed—’

‘I know what the codes say. So do you. So does he. And he still has the privilege of discretion. We can’t appeal him unless his decision is perverse,’ said Harry.

‘What about arguing bias? Between Stone and Dreyer both defendants are going down.’