As I twisted the key in the front door lock the phone was ringing.
"Is this Martin Abramson, the lawyer?" The man sounded like he was crying.
"This is James Molina." No, the voice sounded more drunk than crying. Maudlin drunk.
"James Molina?" The question mark in my voice was unmistakable.
"Yes, Judge," he accented the word 'judge,' "James Molina."
"Oh, Judge." What do I say to a judge I knew only because I argued one insignificant case before him. That was in Detroit. That was six years ago. Now here he was on the phone. It was Friday night. Ten p.m. And he was calling me at home in Ann Arbor. He sounded drunk, well, almost drunk. I wasn't quite sure.
"Martin, I was in Ann Arbor tonight." There was a long pause.
"How are you, judge?"
"Fine, Martin, fine. Really I'm fine. You know, Martin, you're very good attorney. A good attorney and a good man, too. I wanted to tell you that."
"Thank you, Judge." Was I supposed to call him James? Certainly not, Jim. I don't think he heard me anyway. He kept talking.
"I wanted to tell you that. There's something else I wanted to tell you, too. I hope you don't mind."
* * * * *
I'd only been out of law school about a year. Art, my boss, had arranged the meeting with Molina. That was six years ago.
"I lunched with Judge Molina today," Art had said.
I said nothing.
"He wants to give you a case. It's a First Amendment case and he asked me who could handle that kind of legal issue."
"He wants to meet you first to be sure. He wants to see for himself if you're smart enough. Don't be intimated by the guy. He puts on a tough-guy act, but he's really a lamb, a very decent one-time civil liberties guy.
I nodded. Art continued.
"His First Amendment issue is bullshit. Twenty years ago he was president of the National Lawyers Guild. Never grown up. So he still believes in bullshit, bullshit issues.
"Thanks for the case, Art. Thanks for getting me the case. You're a good man."
I sat in the back of the courtroom. Molina was a small man. Very small but with a handsome chiseled brown face, Ricardo Montleban in miniature. His raspy voice sounded about six feet two. He was presiding over a jury trial and after he finished instructing the jury, he invited me into his chambers. He asked me what I thought about a particular case which he cited by name. I didn't know exactly what he was trying to determine by the question but as our meeting continued, it was clear he'd prepared for it. His questions were tart, pointed, and they were hurled at me in an unrelenting stream. At the end of it all, he just stood there looking at me dead in the eye saying nothing until I felt so uncomfortable that the only course open to me was to stumble backward out of his courtroom.
Almost two weeks later, Art called me into his office. The case assignment had come in the mail. It said: Pierre Saint Jean-Bey (Appeal). Art handed it to me, said "You passed the Molina I.Q. test," told me to sign the appearance of counsel affidavit, and go over to the courthouse and get Molina's signature as well as a copy of the trial transcripts.
I went during the lunch hour when I knew Molina would not be on the bench, but probably in chambers. He shook my hand warmly.
"The First Amendment is one of the most important in a free society and even this stupid asshole Saint Jean-Bey deserves its protection."
Molina wove his First Amendment theory to me. Saint Jean-Bey was a black separatist, a member of some obscure religious sect that believed the courts of the United States had no jurisdiction over its members. Molina referred to some early nineteenth century treaty that seemed to support the claim.
Saint Jean-Bey had been tried in Molina's courtroom for rape – the statutory rape of his very beautiful thirteen-year old stepdaughter.
At trial, Saint Jean-Bey had refused to let a lawyer represent him. Molina had even offered to appoint the lawyer of Jean-Bey's choice. Saint Jean-Bey had refused to state whether he wanted a jury trial or whether he wanted to waive one. His response to any question asked him in the court was always the same:
"This proceeding means nothing to me."
Though the proceeding meant nothing to Bey, there was a trial.
The prosecution presented his evidence. Saint Jean-Bey sat silent. The jury found Bey guilty. Molina never could figure out whether Saint Jean-Bey wanted to be tried by the jury or the judge alone, so to "protect" the record in the event of appeal, he stated after the jury reached its verdict:
"I have listened carefully to all the evidence presented. I have evaluated it carefully. I have considered only the evidence presented in open court. I find as the jury found. I believe beyond a reasonable doubt that Pierre Saint Jean-Bey is guilty of the rape of Tiara Saint Jean Bey."
That way Molina figured Saint Jean-Bey had had both a jury trial and a bench trial – both concluding guilt.
By the time I was standing there talking to Molina, Saint Jean-Bey had been in Jackson Prison for eight months.
"Look, Mr. Abramson, maybe Saint Jean-Bey is tired of Jackson Prison. Maybe he doesn't like it so much. Maybe he's a little less religious now. I don't know. I don't care. Don't you come back here and ask me for a new trial because he didn't get to put on his defense. He didn't get to put on his case because he wouldn't accept a lawyer. I begged the guy to take a lawyer. I told him the state would pay for a lawyer. I told him I would let him pick any lawyer he wanted. I told him if he wanted to dig up Clarence Darrow out of his grave, I'd appoint him Darrow. Anybody he wanted. Hear me. Anybody. He waived it. He waived his right to an attorney. He knowingly waived his Constitutional right. I gave him the opportunity. The record is clear. I won't give him a new trial now. Don't come here. And the Court of Appeals will uphold me. I have no doubt about it."
I had read the record. The judge was right.
Molina continued. "He's got one issue, Mr. Abramson. It's for the Court of Appeals. That's where you'll take it. Don't come here with that one either. I won't decide a Constitutional issue. It wouldn't be right. This is a trial court. I don't know how good an issue it is but it's an issue. Take it to the Court of Appeals."
I hadn't researched it yet but it didn't sound like much of an issue to me. My intuitive sense told me that. When I did research it, I agreed with Art's more seasoned intuition: it was bullshit. Even if I argued it before a Court of Appeals comprised of three radical ex-Lawyer's Guild presidents, it was bullshit. Since Courts of Appeal were typically peopled by right wingers, I'd probably be happy if they would stop laughing soon enough for me to retire from the legal profession with some dignity intact in about twenty-five or thirty years.
I visited Saint Jean-Bey at Jackson Prison. He was wearing a white robe and a little round embroidered cap, the clothes that separated him from us. To my surprise, Saint Jean-Bey was a refined, handsome, forty-five year old man who was articulate and consciously soft-spoken. Without the white robe, the cap, and the black skin, he looked a whole lot more like a judge than Molina.
From our first meeting I began to implant in Bey's mind that he should accept an attorney if he got a new trial – which I believed a very unlikely possibility. He wanted to explain his religion to me. I didn't let him. He tried to tell me about the treaty that made the courts without jurisdiction. I cut him off. He did say, "I am a religious man. I am a good man. I have instilled my family with belief. In my religion, Mr. Abramson, we do not rape small children."
"And Tiara is lying." A slow serene smile whispered across Saint Jean-Bey's face. He leaned back, not forward. "She is my daughter. I have married her mother and I have accepted Tiara as though she came of my own flesh. I would not slander my own flesh."
I knew a jury would like this man.
His First Amendment issue was bullshit. Molina wouldn't listen to an argument that he didn't get to present his case at trial. That's what Molina had said . . . but would he? I had the original police reports delivered to my office. Since I knew I had no chance at the Court of Appeals, I was looking for some hook so that I could approach Molina. Among those reports was a medical examination conducted by a Doctor Bernard two weeks after the rape occurred.
"Tiara Saint Jean-Bey is a light complected, physically mature black girl of 13. Upon examination, no sperm was found in the vaginal area. She has a small marital hymen."
I had no idea what a small marital hymen was, but I knew Doctor Bernard could tell me.
It was evidence, not conclusive evidence, but evidence that two weeks after the rape, Tiara Saint Jean-Bey was a virgin. Doctor Bernard signed an affidavit saying just that.
I asked Art, "Well, should I go ask Molina for a new trial – even though Saint Jean-Bey didn't defend himself at the first trial?"
"Sure, you should. Don't believe it when Molina says 'Don’t come back to me.' He'll listen to your argument. He does what is right."
I briefed Molina's First Amendment issue. Fourteen typed pages of abstruse intellectual nonsense decorated with the correct high-falutin constitutional phrases. Maybe Molina would, after all, like to decide the case on Constitutional grounds.
I also gave him Bernard's affidavit and the newly discovered-evidence-my-client-therefore-didn't-get-a-far-trial dance. I argued that the prosecutor – knowing Saint Jean-Bey didn't have an attorney – had a "higher duty" than in other cases. He had evidence in the police report "tending to show" that Tiara Saint Jean-Bey was a virgin and that he, the prosecutor, had a duty in this particular case to present that evidence to the jury.
The prosecutor bristled when I presented that argument to Molina. And the prosecutor responded:
"Prosecutors do not have a duty to go to extraordinary efforts to produce and introduce misleading evidence that might help a jury to free an obviously guilty man."
He half-turned toward me and lowered his voice only a little. "There are facts about this case of which defense counsel is unaware." He turned back to face the judge full-front. "Saint Jean-Bey waived counsel. He is an intelligent man. He did so knowingly. He did so for religious reasons. Perhaps his religion also instructed him penance was owed and Jackson Prison was the best place to pay off society's debt and . . . assuming he is the religious man he claims to be . . . God's debt. Good prosecutors don't help guilty child rapists avoid their punishment. . . . the punishment they themselves believe is due and in fact not only want but actively seek."
"Anything further from either counsel?"
"No, your honor."
"No, your honor."
Mr. Abramson, would you please approach the bench?" Molina turned toward his court reported. "Let's go off the record." She took her hands off the keys. The prosecutor followed me to the bench.
"Mr. Abramson, I'm not telling you how I will rule. I haven't made up my mind. But if I were to accept your argument . . . well . . . some of your arguments . . . if I do grant Mr. Bey a new trial . . .would Saint Jean-Bey accept the appointment of counsel? If I do decide to grant your motion, I'll give him a good one. If I do rule in your favor, you and I can decide who?"
"I think so, your Honor. I've been working on him." Herman simmered.
"I think so isn't good enough, Mr. Abramson." Herman looked hopeful. "No counsel, no new trial. I won't even take the time to consider whether I'd grant the man a new trial. I'll tell you what I won't do. I will not force this prosecutor to introduce your doctor's report. Mr. Herman conducted himself properly in the first trial. His point is valid. Evidence, which might appear to be credible on its face, may not, in fact, be credible. There are things about this case you do not know. Doctor Bernard has not stated that the girl is a virgin. He said she might be a virgin. If Saint Jean-Bey – through his own attorney – wants to introduce that report, that is his right. Mr. Herman can then cross-examine the good doctor. But I will not force Mr. Herman to introduce that report."
Molina turned toward the court reporter. "Back on the record. Mr. Abramson, I'm going to grant your motion for a continuance of this hearing. Even though you have not made such a motion, I know you were about to. I'm going to adjourn the matter for two weeks at which time you can present further argument . . . if you wish."
* * * * *
I was back in two weeks. Saint Jean-Bey had agreed to an attorney, and I felt pretty sure the new trial would be granted. The trial would automatically be assigned to Molina as he had conducted the first trial. It would be a fair trial . . . . fair in the sense that defense attorneys used that word . . . . that is that debatable questions of law would be resolved in favor of the defendant. Molina was about as liberal as judges could be and still get appointed to the bench.
Molina made his ruling:
"Had the jury been presented with Doctor Bernard's testimony, they might have reached a different result. It is the jury's province to determine what is true. That is done through competent evidence presented in open court. I have my own beliefs as to what is or is not true, but my personal beliefs are irrelevant. That is as it should be."
Further, I appoint as attorney for Pierre Saint Jean-Bey: Larry Schwartz. I have been informed by Mr. Abramson that Mr. Schwartz will accept the assignment."
I smiled broadly. It was wired. Schwartz was the lawyer. Molina was the judge. Saint Jean-Bey would walk.
As I began to walk out of the courtroom, Molina's words stopped me.
"Finally, I am disqualifying myself from any further proceedings in this case. The case is assigned for trial to Department 12, Judge Sullivan."
I didn't know Sullivan.
"Who's he," I later asked new counsel Larry Schwartz.
"Sullivan, who's he. You really want to know? He's a pig. That's who he is; 100% pure pork. Pig meat. Every ruling will go against the defense. He thinks a fair trial is one where the defendant isn't lynched until after the trial is over. That's fair. You get hung at the end, not the beginning. Fair is that if a trial is held, the defendant is found guilty."
Larry's office was in an old building in Greektown. Rundown. Shabby. Winos did not hesitate to sleep in the doorway. It was an office, though, with history. Assignment of the case to Larry was, in reality, assignment to Larry and Irv. Irv was the grizzled old man – age 36. Larry was the rising star. The office had an apprenticeship history; always one grizzled old man and one rising star. In time, the grizzled old man would move to California, become a judge, disappear into the Canadian wilderness, do a little time in prison with his former clients, or wind up stuffed into the trunk of a Cadillac out at the airport.
The rising star he sired would replace him and sire a new rising star. For almost 50 years it had been that way. Stars rose very fast and grizzled old men didn't last very long. It was that kind of business. Very serious stuff.
No matter who a trial was assigned to, no matter who would actually conducted the trial, Irv and Larry prepared every case together. I watched as they went at each other.
"The girl is a whore. That is the picture. Got it. That's how you paint her. If she weren't a whore, she wouldn't have gotten raped, right? That's how to try this case."
"But, Irv, this is a sweet-looking little thirteen year old girl. I've seen her. Checked her out. She looks sweet." I think I want to play it subtle . . . just suggest she may be a little wild, a little trampy underneath that sweetness. Let them conclude . . . ."
"Juries don't conclude, Larry. You conclude. And you tell them what truth is. You conclude for them. Don't make them think. Do you know just how fucking dumb a jury is? You're not talking to actual people in that courtroom. You're talking to jurors. That's twelve ignoramuses. Do you know what you get when you take one stupid juror and multiply by twelve? Twelve ignoramuses. Wrong. Not twelve ignoramuses. No. You get twelve-prime ignoramuses. Prime like in numbers – one hundred forty-four. May that's square. Square, prime, who gives a flying. The point is . . . what I'm telling you is that there is a geometric principle at work here. Collective ignorance. You understand. No addition. That's not what we're talking about here. We are talking multiplication. She's a whore, I say. Simple, no? Girls who get raped are whores. If she weren't a whore, she wouldn't have gotten raped."
"Irv, this is statutory rape. It doesn't matter if she consented. She can't consent. She's underage. He'd be guilty anyway."
"Better. She's a whore and . . . and he didn't do it. Got it. You appeal to their emotions, Larry, their emotions. Don't tell me what the law it. It's the best defense there is . . . that he didn’t' do it and so what if he did. You want be subtle. You subtle get the "so what defense" past that prick fascist judge. That's how you be subtle."
Back and forth it went. In the end, it was Larry's case to try and he would do it his way: low key, don't attack the girl. She was beautiful and believable but so was Saint Jean-Bey, and Larry would be betting that Saint Jean-Bey would at least break even in the "who do you believe contest" and then he would argue reasonable doubt. That is if you, you jurors, are unsure then the close call goes in favor of the defendant. And he knew the judge – even Sullivan – had to instruct that way.
I went to the trial, sat at counsel table with Larry. As expected, Tiara Saint Jean-Bey was lovely, demure . . . believable. Her direct testimony ended. Larry sat at counsel table studying her for one dramatic slow minute. He rose.
"I have no questions for this witness, Your Honor." It was the hardest thing for an attorney to do – ask a witness no questions at all. It required the humbling recognition that no points could be scored against the witness.
Sullivan hammered his gavel against the bench.
"The court will recess until 1:00 p.m. for lunch. We will resume promptly at 1:00 o'clock for testimony from the defense."
Larry disappeared with his client for the final primping before Saint Jean-Bey would take the stand to deny his guilt. It would then be his credibility versus her credibility plus the doubt-casting small marital hymen and the presumption of innocence on his side of the scoreboard. Not great odds but pretty good odds. I ate a withered courthouse cafeteria salad. I was the first one back at counsel table, wanting to watch the jurors as they entered the courtroom. Larry gave me a hard poke in the ribs. His client was not with him.
"That asshole," Larry seethed quietly, shutting out the jury with his back. Larry pulled me into the hall with him, away from the eyes of the jury.
"He isn't going to testify."
I looked at Larry with baffled shock.
"You want to know why, I suppose. Well, I don't know why. I'll tell you what he said. I'll bet you'd like to know what that asshole said. I didn't believe it, so I said would you please repeat that for me. He did. And so I said would you say that again please for me, asshole. And I wrote down what he said. Just to be sure I got it right." Here.
Larry slammed a crumpled up piece of yellow legal pad into my hand.
"What did you get me into with this asshole?
Good attorneys hated to lose.
I uncrumpled the yellow legal paper. In Larry's angriest handwriting it said: 'I will not slander my own flesh.'
Larry was absolutely crazed. "There you are. That's why. I hope that asshole likes my closing argument: 'Ladies and gentlemen of the jury: Let me get right to the point. My client is an asshole. In fact, the biggest asshole I have ever met in my life. I think you should convict this asshole. Whether or not he rapes little children . . . is . . . irrelevant. This man, the accused, is an asshole. He belongs in Jackson Prison. I stand before you now, begging you: Please convict this asshole."
Saint Jean-Bey strolled right up calm as candy, opened his hand palm upward, gesturing us through the courtroom door. He held it delicately open for us.
"Your Honor, my client will not be testifying. Defense rests. We are ready to present closing argument."
It was not the closing argument he gave in the hall. He argued the skeptical hymen and reasonable doubt. Didn't even mention Tiara Saint Jean-Bey. Never cast doubt upon her testimony. Didn't even say her name.
When Larry returned to counsel table, Pierre Saint Jean-Bey rose. The handsome black man grasped Larry's hand in both his and said sonorously "Thank you." The jury saw it, heard it. That, plus his good looks and calm bearing was Bey's "testimony."
The jury returned to the courtroom less than twenty-five minutes after instructions from the bench. Legal lore has it that the longer a jury is out, the greater the likelihood of acquittal. Larry glanced at Saint Jean-Bey. He leaned over and whispered to me: "Here it comes."
"Ladies and gentlemen of the jury, have you reached your verdict?" asked Judge Sullivan. The collective breath holding in the courtroom was always the same after those words got spoken.
"How then say you?"
"Your Honor. We find the defendant . . . . . not guilty."
Larry looked in shock. Saint Jean-Bey rose up slowly. Piously. Almost as though he knew all along.
Outside the courtroom Saint Jean-Bey and Larry were in quiet rapt conversation. Bey shoved his hand hastily, nervously into his pants pocket looking through the tiny courtroom window into the now empty jury box.
"Congratulations, counsel," I said to Larry.
"Screw you. That phony just hit me up for fifty bucks. All the shit he gave me prepping this trial. All the time I spent. Court appointed. Wonderful. State pays me $12 an hour and then I lend that two-bit hustler fifty bucks. I'll never see that fifty again. He's a phony and he's a rapist. I say he did it." Larry was still angry at Bey for not taking the stand but soon he would be back at his office and proud of victory.
I don't usually touch men but I put my arm around Larry's shoulder. "Congratulations. Good job. You're a good man." And, I believed that.
* * * * *
"David, I hope I'm not disturbing your weekend." Molina continued our phone conversation.
"No, Judge, not at all."
"Well, David. You do read the daily Free Press, don't you?"
"Yes, I do, Judge."
"Well, I just wanted to tell you there's something in tomorrow's Free Press . . . well, I'm sure you'll see it tomorrow. That case we had together? There were two other children. A few years older. Two more stepdaughters. They wouldn't testify against him. Jenkins – from Family Services – did the investigation. He couldn't get the older ones to testify. And, Jenkins, he's a good man. Good with youngsters. Well, anyway, sorry to bother you at home like this on a Friday evening. Hope I didn't disrupt your weekend.
The article was short, buried on the third page: I started to read
The body of 51-year old Pierre Saint Jean-Bey was found in a pool of blood late last night. He apparently died of multiple stab wounds inflicted with a kitchen knife. The police have arrested 20-year old Tiara Saint Jean-Bey who neighbors say has lived with Pierre Saint Jean-Bey for at least three years at the address where the body was found. Police have not yet determined whether the victim and the accused were legally married and . . .
I put the paper down. DSS
David Alan Goldstein, 69, of West Linn, Oregon, is a retired trial and appellate attorney. His award winning short stories and poetry have appeared in many publications.This one is based on a true event, he stated.
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