THE COURTROOM WAS full when we arrived. Maggie was waiting at our table. Helen, her friend Mabel, Beth, and Jeff sat on the front row right behind the rail. I came around to hug Helen, explaining that Woody had a few bruises and cuts but otherwise was all right. I also whispered that he was cooperating—a slight exaggeration.
I soaked in the electric atmosphere of the packed courtroom. The judge had allowed video cameras positioned unobtrusively, but there’d be no photographs. All electronic devices were checked at the door. No laptops, iPads, cell phones. No exceptions. Any violators would find themselves in the holding cell downstairs.
Marshall had a section roped off for the pool reporters and twenty other reporters from the various services. Rodney Fitzhugh and an associate sat in the place reserved for the US attorney. Rodney had told Micki that Dub thought the judge had been unfairly hostile toward him—he would keep his distance.
At precisely ten o’clock, we heard the “All rise” and duly rose as the Honorable Marshall Matthew Fitzgerald entered the room. He cut a very imposing figure.
Marshall put his yellow legal pad on the bench and asked whether the prosecution and the defense were ready. The clerk announced the case, and Marshall asked that Woody be escorted into the courtroom. I was glad to see he wasn’t handcuffed or shackled, but two burly officers held his arms tightly as they led him to our table.
Marshall asked, “Is the defendant willing to waive the reading of the indictment?”
Micki said he was.
For the next fifteen minutes, Marshall went through all the preliminary matters. So far so good, but the tension in the courtroom was building.
He took his time before asking somberly, “Having waived the reading of the indictment, how does the defendant plead?”
Micki rose to a very imposing height in her heels.
“The defendant pleads not guilty on all counts, Your Honor.” Her voice was full of conviction.
The murmurs in the courtroom grew to a growl, and Marshall gave a sharp rap with his gavel.
“Ms. Lawrence, if the defendant intends to argue insanity or diminished capacity, you are required to notify the court promptly of that intention so I can supervise the examination of the defendant. May I take it that I should make such arrangements?” His formal manner accented the gravity of the moment.
“Such arrangements are not necessary, Your Honor. Our plea is ‘not guilty.’ We do not intend to establish that the defendant had, or now has, diminished capacity.”
Marshall raised his eyebrows, Sam leapt to his feet, and the gallery grew even louder, resulting in another firm rap of the gavel.
Marshall gave me a long, suspicious look before reacting. “Well, we’ll proceed with binding over the defendant until trial at a date that will be set in the future. A pretrial order regarding discovery will be entered, but I hope the parties will voluntarily comply without any problems.”
“Your Honor,” Micki quickly interjected, “what about bail for my client?”
Sam spoke before Marshall could reply. “Your Honor, the defendant is charged with the cold-blooded murder of Senator Russell Robinson. It would be unprecedented to allow a killer out on bail under such circumstances.”
“The court will deny bail at this time. Ms. Lawrence, if your concern is for the safety of the defendant, you may rest assured I’ve discussed this issue with the sheriff, and he will be well protected.” The press had no idea what the court was talking about, but they could see the cuts and bruises on Woody. “If you want a bail hearing, file a motion with this court. I’m not inclined to grant bail, but I’ll keep an open mind. Anything else? … If not, I’ll meet with counsel soon to hammer out dates for the trial. I usually do this a few weeks after the arraignment, unless your client intends to waive our state’s Speedy Trial Act.”
Marshall had asked just the right question. Micki looked at Sam, waiting for him to say something.
“Your Honor,” Sam said, “the state will oppose any attempt to delay a trial. The people of this state and this nation deserve a quick and speedy resolution of this matter. The defendant’s not-guilty plea is an insult to the senator’s family and our justice system. We ask this court to set this case at the earliest possible date. The state is ready to try this case tomorrow.”
Marshall stopped him. “I appreciate your interest in justice, Mr. Pagano, but my question was to Ms. Lawrence concerning her client’s position on the Speedy Trial Act.”
She didn’t look at Marshall, but stared at Sam, a clear challenge. “Your Honor, I take it that Mr. Pagano means what he says. The defense does not waive its right to a speedy trial, and moreover, we request an immediate preliminary hearing. Since Mr. Pagano is ready to try this case tomorrow, he shouldn’t mind a preliminary hearing.”
She turned to the judge. “I apologize, Your Honor. This is certainly your call, but I checked with your clerk, and your calendar is free for both tomorrow and Thursday. Of course, if Mr. Pagano was merely blowing smoke, we understand.”
Marshall could have put his foot down right there, but I think he was enjoying the tension between Micki and Sam. He waited for Sam, who knew he was in a corner. Micki didn’t let him retreat either. No one could misunderstand her body language. She was challenging Sam on all fronts. For a second, I felt sorry for him. He was probably imagining the headline: “Prosecution Not Prepared. Cowed by Defense.”
Marshall had waited long enough. “Mr. Pagano, what says the state?”
Sam turned from Micki’s gaze to Marshall. “Your Honor, if Mr. Cole is not willing to waive a preliminary hearing, then the state asks it be set as soon as possible, even if that means tomorrow. I admit the timing is unexpected, as is the defendant’s unwillingness to waive this procedural hurdle; however, the state will be ready.”
Marshall looked over to me as he said, “Well, Ms. Lawrence, as they say … be careful what you ask for. The court will hold a preliminary hearing in this matter beginning tomorrow at ten o’clock. I want the lawyers in my chambers at nine. Bailiff, please return Mr. Cole to the sheriff. Counsels, please join me in my chambers after we are adjourned. Are there any other matters before the court?” He banged his gavel and was up and out before anyone could say a word.
As we walked into chambers, Sam’s expression said, All right, you got the best of me, but don’t count on it happening again.
For her part, Micki played innocent, a tentative smile hovering on her face.
Marshall hung his robe on the rack, sat in the chair behind his desk, and motioned for all of us to sit. “All right, Jack, what in the hell is going on? Yesterday, you told me you hadn’t had a chance to consult with your client. Today, you’re asking for an immediate preliminary hearing. Micki has surely advised you that all I need to find is whether the prosecution has enough evidence to proceed to trial. Excuse me, Micki, I should be addressing you both, but this ploy has all the hallmarks of my old friend.” He returned his gaze to me. “If you’re trying to make a mockery of this court or trying to put on some kind of prima facie case for ineffective assistance of counsel, you’ve got another thing coming. I admitted you to the bar of this state yesterday. I’ll have you removed quicker than a jack rabbit if I catch you trying some trick.”
Micki started to say something, but I touched her elbow lightly. “Your Honor, we have no intention of showing anything but respect for this court. However, one need look no farther than the gallery to realize we are playing on a different stage than normal. This nation, the media, and the US government are scrutinizing every action taken by each of us. So if I waive a defendant’s right, I’d better have a good reason for doing so. I’m sure Sam is even more aware of the increased scrutiny. He has a headline-grabbing US attorney looking over his shoulder.
“In eighteen ninety-five, in Coffin v. the United States, the Supreme Court called the presumption of innocence the ‘bedrock’ of our criminal-justice system, and its enforcement lies at the foundation of our criminal law. Unfortunately, while it may be the bedrock, it’s seldom the reality. Thanks to the media, the accused are often presumed guilty from the very get-go, and defense attorneys fight an uphill battle just to get where the law says we should start.
“Your Honor, I’m not accusing the prosecutor of doing anything inappropriate. I’m a realist. Every person in this state believes Woody Cole is guilty, and for me to have even a fighting chance, I have to use every tool the law gives me. I intend to hold the prosecution to strict proof. There’ll be no waivers from the defense. Whatever legal or constitutional protections are left to my client, I intend to use.
“Our tactics are not meant as a lack of respect for the prosecution or the court. Micki and I will stay within the rules, but we intend to use the rules when they work to our advantage. We represent a client who leaves the dugout for the pitcher’s mound with the bases loaded, three balls on the batter, and a rubber arm. We need a few warm-up pitches.
“One last thing: My client was roughed up last night. I don’t have to remind this court or the prosecution of the mess we’d all be in if something were to happen to Woody. We’d be accused of being part of some grand conspiracy, like Lee Harvey Oswald or James Earl Ray. I know Your Honor has admonished the sheriff, but I’m concerned about my client’s safety. I think there are people who want Mr. Cole dead before a trial can occur, and I guarantee that if anybody so much as spits at him, I’m going to the US attorney and asking him to take over both his protection and this case. I won’t have Woody harmed or worse before this trial if I can help it.”
Marshall cleared his throat. “I have no intention of letting something happen to the defendant. I have made this clear to sheriff Barnes. Sam, you might speak to the sheriff, as well. And your points about presumption of innocence are well taken. Now that you’ve laid your hand on the table, I’ll show you mine: It is my intention to conduct these proceedings in a manner completely above board and within the rules. You want a hearing tomorrow. You’ve got it. You want to hold Sam to strict proof. He’s forewarned. But I also warn you: no theatrics, no withholding evidence, and no trying the case in the press. From this moment, on there’s a gag order on all of you. I’ll catch heat from the press, but I’ll have no leaks and no press conferences. Sam, you’ve been quiet.”
“I’ll be ready tomorrow to present a case to the court that there’s probable cause to bind Mr. Cole over for trial on all counts. I appreciate the warning that I’m to be held to strict proof. The state will meet its burden. All will be above board on our end.” Sam spoke clearly, without a hint of emotion.
Marshall said that, if there wasn’t anything further, we all had a lot of work to do. He hadn’t counted on needing security in the courtroom for the week, and he was sure the media would ruin the rest of his day. Micki went off into a corner with Sam’s deputies to talk about exhibits and how we could get copies on such short notice, so Sam and I were left to twiddle our thumbs. He looked at me thoughtfully.
“You know hiring Micki was a dirty trick, don’t you?”
“She assured me that whatever there was between the two of you was over.”
“I thought so myself, but seeing her yesterday and now today, I’m wondering what I was thinking.”
I nudged him on the shoulder. “You weren’t.”