The massive granite steps. The white marble columns. The dazzling gold dome. The chiseled busts of ancient lawgivers: Plato, Aristotle, Demosthenes, and Moses. Laura felt just the right degree of intimidation as she entered the Thurgood Marshall United States Courthouse at 40 Foley Square in Lower Manhattan. Her briefcase swung like a pendulum as she marched on the marble floors of the main hallway under the glimmering chandeliers that hung from the ceiling thirty feet above. The courthouse served as home to the U.S. Court of Appeals for the Second Circuit, which reviewed cases from New York State and Connecticut.
Laura stepped into the elevator and got out on the seventh floor. She strode to Hearing Room #746—set aside for New York v. Nash.
Laura entered and marched down the aisle, taking a seat at a mahogany desk with a sign bearing her name and affiliation. She turned to a matching desk to her right, catching sight of a middle-aged man unpacking a briefcase.
Square-jawed and blue-suited, State’s Attorney Robert McCall did not acknowledge her nod. His stare was intense.
In the awkward, pre-hearing silence, the three judges—all clad in black robes with gold sashes—took their places at the raised mahogany bench. Each justice opened a folder and began scanning a document known as a “bench memo.”
The moment of truth was here. Oral arguments were about to commence. The fate of Edward Thomas Nash hung in the balance, even though Eddie was hundreds of miles away, locked in a cell, unaware that his fate was being debated at this moment in one of the highest courts in the land. Only lawyers attend oral arguments, period.
Laura ran through the facts, observations, insights, and anomalies she’d laid out in her written brief. The coerced confession. The paid-for testimony. The prosecutor’s rants. She also reviewed her research on the three judges: Their judicial philosophies, previous rulings, and pet peeves.
I’ve got this. Laura felt no sign of her old anxiety. Maybe she’d conquered the beast.
In fact, she felt confident, optimistic. She had a strong case to present. At the same time, she had no illusions. She was not going to persuade these sophisticated jurists that her client was an innocent man who should be set free. She didn’t have to. She just had to show that the trial court had reached its verdict—whether right or wrong—by an erroneous route.
At 2:06 PM, an attractive female judge of Japanese descent spoke from the elevated bar. Laura and McCall rose to their feet.
“Counsel. Let me start by commending each of you. Your written briefs are both thorough and illuminating. The legal issues are clearly delineated. I’m going to dispense with any repetitive opening statements and go straight to Q&A. Justices, questions, please.”
Laura hid a flash of relief. Doing away with opening statements meant the justices wanted to cut to the chase. Justice Sandra Chen, the presiding judge, was an Obama appointee with a liberal record on police and prosecutor misconduct.
A male judge with close-cropped, gray hair and a poker face looked out over his designer tortoiseshell glasses. “Ms. Tobias.” Justice Edward Manning was a George W. Bush appointee who tended to give prosecutors and police wide latitude. “Much of your argument hinges on alleged misconduct by the police and prosecutor,” he stated. “Would you agree?”
“Yes, Your Honor.”
“Now, you’re aware that we hear these arguments quite often. In fact, allegations of police and prosecutorial misconduct are included in ninety-percent of all major felony appeals.”
“I’m sure of it, sir.”
“And I’m sure you’d agree that our police and prosecutors face serious challenges to enforcing the law.”
“Yes, sir.”
“And our state and local prosecutors face serious challenges to proving guilt beyond a reasonable doubt. Protecting society is not for the faint of heart.”
“True, Your Honor.”
“Can you cite one example of egregious misconduct that may have slanted the outcome of this trial against your client?”
“The false characterizations made by the County Prosecutor to the jurors,” Laura fired back. She pointed to the grotesque—and baseless—claim that he’d urinated on the dead, suspended body. “The facts of this case did not support these outrageous accusations, Your Honor. The statements were outlandish, prejudicial, and wrong, and should have been stricken by the trial judge.”
Judge Manning looked to the state’s attorney. “What about it, Mr. McCall?”
“Your Honor, the state views my colleague’s allegations against the police and prosecutors as overblown and irrelevant. The premeditated hanging of this poor young woman was a hideous crime, committed by a vicious and violent man. The prosecution had to describe the horror of the act, and the depravity of the actor. I urge you not to give this monster a second chance to kill.”
“That presumes the guilt of my client, Your Honors. The state failed to meet the burden of reasonable doubt.”
Laura beamed inside. McCall had just done her a big favor.