Tuesday, January 1
David and Lily looked up from their pancake preparations as I wandered into the kitchen, still trying to clear my sleep-deprived eyes.
“Happy New Year, Mom,” Lily said, apparently recovered from any ill effects of yesterday’s emotional fireworks. “Do you want bacon or sausage? We can’t decide.”
I kissed her on the head and my husband on the cheek. “Just coffee for me, please.”
“You’ll be sorry when you see our feast,” she said. “And Dad said we could eat in the family room so we can watch the Rose Ball Parade.”
David laughed and looked at his daughter with unabashed adoration. “And since we can’t make up our minds, we’ll have both bacon and sausage. Then Mom’ll really be sorry.”
I sat at the counter, warming my hands on my coffee mug and watching the two people I loved most in the world puttering away contentedly.
“You were pretty restless last night,” David said when Lily trotted off to the bathroom. “I was hoping you’d be relieved to be rid of Kate and would sleep like a baby.”
“I am relieved she’s gone,” I said, twisting to stretch my stiff back. “But I kept asking myself if she had a right to be pissed. About the presentence report, I mean. Kate left her copy here on the counter. So I got up around two o’clock and read it—four times, actually.”
“And?”
“And I need to do some legal research today to be sure.”
He couldn’t mask his disappointment. “You’re not going to the office, are you?” he asked.
“No, I can do it on-line. And I promise not to obsess about it or let it wreck our day.”
I sniffed at the air and forced a smile when Lily came back. “Is it too late to change my mind about breakfast?” I asked. “That bacon smells irresistible, and Chef David’s pancakes look wonderful. Golden brown, just the way I like them.”
“No, it’s not too late,” she said with a blink—she hadn’t quite mastered winking. “But you have to do the dishes.”
My dishwashing and cleanup chores accomplished, and with Lily and David scrunched together on the couch watching the parade, I sat at my desk in the corner of the family room and got down to what was no longer my business—Kate’s defense.
The presentence report was beyond disastrous. When George Cooper and I had discussed the plea agreement, he’d given me his estimate of Kate’s sentencing guidelines. I rummaged through a pile of papers and found my notes from that meeting. Cooper thought Kate’s offense would be categorized at level fifteen: a base offense level of six; ten levels added for the undisputed monetary loss; two levels added because Kate’s crime involved her abuse of a position of trust with the university; three levels subtracted because Kate accepted responsibility and pleaded guilty, saving the prosecutor the work and expense of trial.
I looked again at my copy of the sentencing chart. Since Kate’s criminal history was relatively minor, Cooper thought her imprisonment guidelines would be twenty-one to twenty-seven months. Cooper agreed to recommend a “downward departure”—or that the judge sentence Kate three levels lower for her help in prosecuting Joe Ames and Thorpe Akani. That would make the range twelve to eighteen months, and we’d planned to argue for a year or less.
What we hadn’t counted on was Helen Garrety’s recommendation for two more two-level increases. I didn’t agree that Kate’s offense involved “sophisticated means,” as Garrety believed it had. And I sure hadn’t anticipated Kate would be tagged for being a manager or supervisor of Joe Ames and Barbara Hughes, Marty Braxton’s mistress and sometime assistant. Kate was only doing Ames’ bidding, for God’s sake. She didn’t have anything to do with Barbara Hughes at all. Although how I could prove that without implicating Marty Braxton was beyond me. The bottom line: Garrety believed Kate should serve between thirty-three and forty-one months in prison.
I was also struck by how badly Kate came off on a personal level in the presentence report and how lukewarm Helen Garrety was toward George Cooper’s recommended downward departure.
After spending an hour studying case law on-line, I began formulating arguments to challenge Helen Garrety’s recommendations. Then I caught myself. What in hell are you doing, Caroline Spencer? This is no longer your concern.
I typed a short motion, requesting to withdraw as Kate’s defense attorney, and sent it electronically to the U.S. Clerk of Court. The motion would be filed when the courthouse opened for business in the morning, and someone else could handle Kate’s sentencing hearing.
Good luck, whoever you are, I thought as I closed my laptop and went to join my family in front of the TV.
Wednesday, January 2
Just as I finished telling Rosalee about the blow-up with Kate, a deputy court clerk called me at my office.
“Judge Coburn wants to hold a hearing on your motion to withdraw as counsel,” the clerk said. “Would ten o’clock tomorrow work for you?”
I looked down to see my hand shaking and wondered fleetingly if I was nervous or excited by the judge’s quick response. “That’s fine with me, but you’ll have to contact Ms. Daniels. We’re not in communication at this point.”
“Oh, we will. I’ll send you the notice as soon as it’s firmed up.”
Within minutes, I received an e-mail notifying me of the ex parte hearing scheduled in the case of United States of America versus Kathryn S. Daniels. Ex parte, meaning one-party, indicated George Cooper would not be present at the hearing, only Judge Coburn, Kate, and me.
Thursday, January 3
I dreaded seeing Kate in the courtroom and timed my entrance for the last possible moment. She sat alone at the defense table, a yellow legal pad and a pen in front of her. I hadn’t noticed it in the previous days, but her shoulders appeared bony through the cream-colored cashmere sweater she wore, and her hair was once again lacking in luster. Has she been using regularly?
She turned to look up at me as I approached. “Hello, Caroline.”
“Hello,” I said, thumbing through the files in my briefcase and pulling out the ones I’d need.
While we stood as Judge Coburn took the bench, Kate slid her legal pad in front of me. I looked down and saw, scrawled across the bottom of the page, “You OWE me.”
My breath caught in my throat. I felt my face flush and my knees buckle. Once seated, it was all I could do to croak, “Kathryn Daniels, in person, with attorney Caroline Spencer,” when the clerk asked for our appearances.
The judge began the hearing without fanfare, clearly unaware of my distress.
He looked up from the paperwork on his desk. “Ms. Spencer,” he said, “I’m never happy to see motions like this so late in the game. We’ve got sentencing scheduled in two weeks, the early date at your request, as I recall. There’s no way substitute counsel could be up to speed by then. You’ve requested permission to withdraw as counsel because of ‘an irreconcilable breakdown in the attorney client relationship,’ preventing you from providing effective assistance of counsel. You’re going to need to tell me more.”
“Yes, Your Honor,” I said. “Ms. Daniels and I became friends in college in 1989, and our friendship continued. I initially encouraged her to retain another attorney to represent her in this case so as not to jeopardize our friendship, but I nevertheless accepted the retainer. Shortly after Ms. Daniels pled guilty, she sold her home and came to stay with me and my family while awaiting sentencing.”
I didn’t want to go on with the story—it all sounded trite and childish. But I wanted even less to continue representing my former friend.
I took a deep breath and forged ahead. “Ms. Daniels became angry when the presentence writer recommended a longer sentence than she expected and was clearly dissatisfied with my work. I asked her to leave our home due to the adverse effect the conflict was having on my family. It’s my opinion Ms. Daniels would be better represented by another attorney at this time.”
“Are you in agreement with the facts Ms. Spencer has proffered, Ms. Daniels?” the judge asked.
“I’m in agreement with most of it,” Kate said with an edge of petulance. “But I’m not dissatisfied with her work and don’t believe I could be better represented by anyone else. And I certainly don’t want to wait longer to be sentenced.”
The judge leaned back in his chair, his hands crossed behind his head, and stared at the ceiling for what felt like an eternity. I kept my eyes straight ahead but could sense Kate fidgeting next to me in her chair.
Finally, he spoke. “Ms. Spencer, you were right to begin with: it would have been prudent for your friend to hire another lawyer. But she didn’t, and you accepted the retainer, knowing full well it could strain your relationship. There’s no conflict of interest here—just ill will. I trust that if I deny your motion to withdraw, you’ll still give your client your best efforts?”
If he knew me and my competitive nature, he wouldn’t have to ask. “Yes, Your Honor,” I said. “But—”
“And Ms. Daniels, are you certain you want me to deny the motion?”
“Yes, very certain,” Kate said.
“The motion is denied,” Judge Coburn said without a trace of apology in his voice, which told me any further argument on my part would be futile. “Ms. Daniels, I expect you to cooperate fully with your attorney to keep this case on track. Ms. Spencer, I’ll extend the deadline for submission of your objections to the presentence report by three days, but the sentencing hearing will remain as scheduled. Is there anything further?”
Bile rose in my throat, tasting of dashed hopes and resignation, and I struggled to speak. “No, Your Honor.”
“Very well. We’re adjourned.” He rose and walked through the door behind the bench.
My albatross was back.
**
The cold, steely look in Kate’s eyes as we left the courtroom precisely reflected my feelings toward her. Her dilated pupils told me she was probably high, and I wondered what sort of scheme she’d come up with to beat the urine tests. The question fled as quickly as it had come, though, since I no longer cared.
“Sorry, Caroline,” she said. “I had to do it.”
It was a hollow apology, not worth the breath she’d expended to say it, and I knew it as well as I knew my own name.
I ushered her toward a bench outside the courtroom, tension tightening my neck muscles. At the same time, my course of action was suddenly clear.
“This is how it’s going to be,” I said, towering over her as she sat. “I don’t want to see you until the sentencing hearing. We’ll communicate by e-mail or through Rosalee. I take pride in my work, so I’ll do my best to argue for the lowest sentence possible, but I’m doing it because it’s my professional responsibility and for no other reason.”
I walked toward the elevator.
“Caroline,” she said, “don’t you want to know where I’m living?”
“I’m not babysitting you for one more minute,” I said looking back over my shoulder. “Call Rosalee and give her the address for our file.”
**
With focus unclouded by emotion, I finished my legal research and filed the written objections to Kate’s presentence report a day before the deadline. My arguments were well crafted and supported by case law, if not slam-dunk strong. Rosalee sent a copy of my submission to Kate, who couldn’t resist responding.
“Great job!” her e-mail to me read. “I knew my confidence in you wasn’t misplaced. Thanks for all your work and your vigorous, professional defense of my position. And again, I’m very sorry for the hurt I’ve caused you. Give Lily a hug for me. –K.”
Her shallow platitudes turned my stomach. She wasn’t saying “great job” when she stormed into my house a week or so ago. I hit “delete.”
**
“Looks like you finally got some good news,” Rosalee said several days later as she brought in my mail and a fax from the probation office. “That Garrety woman agrees with your argument on one of the objections to her presentence report.”
I scanned through the paperwork. “Hallelujah!” George Cooper and I had both objected to Helen Garrety’s two-level increases for the “sophisticated means” and managerial role guidelines. Now Garrety had amended her calculations, agreeing with us that Kate should not be classified as a manager or supervisor of other participants in the crime. She persisted, though, in her assessment that the offense involved sophisticated means.
Buoyed by the small success, I had Rosalee e-mail a copy of the letter to Kate along with the message: “We’ve gotten the probation officer to lower the guideline range to twenty-seven to thirty-three months. The judge doesn’t have to agree, but from what I hear, he usually sides with the probation office.”
Kate must have been sitting at her computer. “Pardon me for not being elated,” she replied within seconds, writing directly to me. “It still sounds like a shitload of time to me.”
Bitterness and defensiveness rose in my throat. “As I’ve told you before,” I typed furiously, “the guideline range is just the starting point for our downward departure argument. We’re shooting for three levels lower than that. You should be thankful for any slack we can get.”
I powered down my computer before she could respond, my hands shaking with adrenaline and frustration. The ungrateful bitch!