7

Standing at the podium, before she could get a word out of her cotton-dry mouth, Paige found herself on the defensive.

“Don’t you think defense counsel should have at least disclosed this relationship to her client?” The question came from Judge Rahul Patel, a former public defender. He was the judge on the panel Paige knew would be the toughest sell.

“Under the ethical rules, yes. But I don’t believe it entitles Mr. Markell to a new trial.”

“Why didn’t you submit an affidavit from the assistant commonwealth’s attorney who had the affair, denying that he ever discussed the case with defense counsel?” Judge Patel leaned forward on the bench. “That would have been an easy way to buttress your argument, no?”

Paige had known that question was coming, but there was no good answer. “He refused to talk to us.”

This caused a few raised eyebrows on the panel. “Really?”

Yes, really, Paige wanted to say. Her frustration was beginning to beat back her nerves. “It doesn’t actually matter. Mr. Markell was well represented. There is nothing his defense counsel could have or should have done differently.”

For the next few minutes Paige found herself on solid ground. “Ms. Benton was smart not to call any character witnesses. The defendant had a long list of reprehensible acts that the prosecutors could have used if Ms. Benton had opened the door by calling character witnesses. As to the matter of the victim’s prior sexual history, Ms. Hernandez’s claim that she would not have consented to sex that left bruises on her arms and neck is hardly a statement putting her prior sexual history in play. If this court were to hold otherwise, every time bruises are left on a rape victim and she denies that she consented, defense counsel could drag her entire sexual history before the court. That can’t possibly be the law.”

Paige had now found her zone. It happened this way every time. Nerves. Fear. A rough start. But ultimately her obsessive preparation kicked in, and her adrenaline would fuel focus instead of fear.

Judge Patel asked Paige about the Thornburg case. Didn’t that case stand for the proposition that any time a defense lawyer had an intimate relationship with someone in the prosecutor’s office and the relationship wasn’t disclosed, there would have to at least be an evidentiary hearing to see if the defendant was entitled to a new trial?

“Thornburg was wrongly decided,” Paige said confidently. “If this court adopts the reasoning in Thornburg, it will open a huge can of worms.”

Judge Colson leaned forward. “Tell me more.”

The remark drew a smattering of chuckles, and Paige felt an uneasy chill tingle down her spine. The only one in the room not getting the joke.

“Thornburg wrongly holds that any undisclosed relationship between defense counsel and a member of the prosecutor’s office is enough for the defendant to have a hearing to determine whether he is entitled to a new trial. What if the prosecutor and defense lawyer had been on a date three months earlier? What if they were friends from law school? What if they went to the same church? What if they played tennis together? What if—?”

“But that’s not what we’re dealing with here,” Judge Colson interrupted. “There’s no doubt that Ms. Benton and a member of the commonwealth’s attorney’s office were having a long-term affair.”

“I agree, Your Honor. But I still believe that defense counsel should have to prove some prejudice against his client before he is entitled to a hearing.”

“But how does he know if his client has been prejudiced without a hearing where he can examine Ms. Benton, the defense lawyer, under oath?”

Paige felt herself backed into a corner. “We just have to look at the entire record. In a case like this, there’s no doubt the defendant was well represented.”

“But how do we know Mr. Markell’s lawyer wasn’t talking to her lover about the case?”

“There’s no evidence that she did.”

“But there is evidence that she was not forthcoming with her client. Why didn’t she just tell her client about the relationship?”

The red light flashed. “I see my time is up,” Paige said. “May I answer the question?”

“I think you’d better answer Judge Colson’s question,” Judge Patel quipped.

“Courts should not get into the business of second-guessing defense counsel based on the lawyer’s alleged motivations. What if Mr. Jackson over there has other clients who pay more than Mr. Markell—though I doubt he does. Should that allow the defendant to second-guess Mr. Jackson’s representation here and claim he didn’t try hard enough? No. We should look at the record and the conduct of defense counsel during the trial. Because Ms. Benton did an adequate job, the conviction should be affirmed.”

A few minutes later, Paige learned what the chuckling had been about. During his rebuttal argument, Wyatt Jackson pounced gleefully on her mistake.

“Your Honor’s opinion in Thornburg should not be brushed aside so quickly,” he said to Judge Colson.

Paige felt her face flush, her mind reeling. She had read that case. Surely she would have recognized Colson’s name if she had been the trial judge who decided Thornburg. Then the panic hit. Paige remembered something about a divorce that occurred before Judge Colson was elevated to the appellate bench. At the time she read Thornburg, Paige hadn’t been thinking about Judge Colson’s prior married name—she didn’t even know that Colson would be one of the judges chosen for Paige’s panel until this morning. But now it made sense—why the judges had wanted to talk so much about Thornburg.

Paige hardly heard another word that Wyatt Jackson uttered. She was too busy replaying her dismissive remarks about Thornburg. She would have addressed the matter differently if she had known Colson was the trial judge who had decided that case. Paige would have been far less critical of the reasoning; she just would have distinguished the facts.

“Accordingly, we ask that this court at least direct the trial court to provide the defendant with an evidentiary hearing to see if he is entitled to a new trial,” Wyatt Jackson concluded. The red light was on. This time he thanked the judges and sat down.

After the judges left the bench, commonwealth’s attorney Destiny Brown shook Paige’s hand and told her she had done a good job, but they both knew it was a lie. Wyatt Jackson came over and told Paige she’d had a tough case. She shook his hand and congratulated him, resisting the urge to ask how he could live with himself. She busied herself packing her stuff and grabbed her coat, determined not to make eye contact with anyone else on her way out.

But that proved impossible. First the reporter from the Tidewater Times approached her, though she was able to brush him off with a quick “no comment.”

And then, looking over the reporter’s shoulder, Paige saw him—the last person she wanted to see on the day of her humiliation. He was standing in the back row, wearing a baggy gray hoodie, hands in his pockets. He must have been there for the entire hearing. He seemed so out of place, like he belonged in an entirely different part of Paige’s compartmentalized life.

When she approached him, he broke into a broad smile.

“What are you doing here?” she asked.

Patrick Quillen shrugged. “Scouting out the best lawyers in case I get a traffic ticket.”

She couldn’t decide whether to laugh or cry. She was already fighting back tears of frustration. And now she felt a whole new set of emotions bubbling up.