Andie was gone by Friday at noon. Jack barely had time to ponder where her undercover assignment might have taken her. At three P.M. he was in Courtroom 2 of the Richard E. Gerstein Justice Building.
The media seemed to hover perpetually around the criminal courthouse, poised to capture the arraignment of a federal prosecutor caught biting a stripper, the verdict on a high-priced call girl who claimed that “nymphomania made me do it,” or some other “trial of the century”-Miami style. At the government’s request, however, Judge Flint had closed his courtroom to the public. The prosecution sat at the mahogany table to Jack’s left, closer to the empty jury box. Neil Goderich was at Jack’s side. Together, the defense had almost fifty years of trial experience, and greener lawyers surely would have felt outgunned by such an unusual pairing of government lawyers.
“William McCue on behalf of the state of Florida,” the assistant state attorney said, announcing his appearance for the record. “With me today, for purposes of this emergency motion only, is Sylvia Gonzalez of the United States Department of Justice, National Security Division.”
The judge peered out over the top of his reading glasses. “I must say it isn’t every day that I see a lawyer from the NSD’s Counterterrorism Section in my courtroom.”
Gonzalez rose to address the court. “This case presents special circumstances, Your Honor.”
“ ‘Special circumstances’? ” said Neil, rising. “Gee, and I thought ‘enhanced interrogation’ was the government’s only euphemism for ‘torture.’ ”
Beneath the table, Jack ground his heel into his partner’s big toe, and Neil struggled not to yelp. Gonzalez had been a consummate professional at the habeas proceeding in Washington, and Jack shot his cocounsel a look that said, Tone it down.
“Neil Goderich of the Freedom Institute on behalf of the defendant,” he announced. “With me is Jack Swyteck, who has yet to decide if he has the set of you-know-what to take this case to trial, but he has agreed to assist me at this emergency hearing.”
Not sure what to do with Neil’s remark, the judge simply cleared his throat and moved on.
“I have before me the government’s emergency motion to prevent the defense from pursuing a frivolous alibi-specifically the defendant’s claim that at the time of the commission of the crime, he was held by the U.S. government in a secret interrogation site in the Czech Republic prior to his transfer to Guantanamo Bay, Cuba.”
Neil rose, eager to speak, even if he was out of turn. “Before we proceed, I have to say that this motion seems highly premature. We have not even informed the government that my client intends to pursue an alibi defense, and under the rules we are not required to do so until ten days before trial.”
“Does that mean you’re not going to assert an alibi defense?” asked the judge.
“They most definitely will,” said the prosecutor.
Neil smiled thinly, as if the prosecution had stepped into his trap. “I’m not sure how the government would know that, since Mr. Wakefield has never before stated publicly that he was detained in the Czech Republic. Unless, of course, the government knows from its own records that my client was, in fact, held at such a site.”
“We know because the defendant called the victim’s father from jail last night and told him,” said the prosecutor. “Mr. Wakefield dated McKenna Mays, and now that he has been indicted, it has apparently become important for him to convince Mr. Mays of his innocence.”
That took the wind out of Neil’s sails, and Jack felt his pain. A client who did something stupid from jail and then neglected to tell his lawyer about it was routine at the institute.
The judge said, “Given the national security issues raised by the alibi defense, I don’t see the motion as premature. Ms. Gonzalez, proceed.”
The Justice Department lawyer went to the lectern. It was almost taller than she was, and rather than disappear behind it, she stepped to one side to address the court.
“Judge, as anyone who reads the newspapers knows, the United States has acknowledged the existence of a limited number of so-called black sites-facilities at which enemy combatants were detained and interrogated prior to, or in lieu of, their transfer to Gitmo. As early as 2005, reports circulated about such sites in Afghanistan and at other locations in the Middle East. Later, however, unfounded rumors emerged about a possible site in an Eastern European country-perhaps in Poland, Romania, or the Czech Republic.
“Here, Mr. Wakefield claims that he was held in a secret facility in Prague. It is important for this court to understand that no one has ever produced a shred of evidence that a black site existed in the Czech Republic. The United States denies it. The Czech Republic has asserted that such reports are libelous.
“The Department of Justice has asked the state of Florida to file this motion because we anticipate that Mr. Wakefield’s attorneys will subpoena intelligence officers and demand classified documents to establish his alibi. If that happens, the Justice Department will file an action in federal court under the Confidential Information Protection Act to quash those subpoenas. That will only delay the trial, and we are sensitive to the fact that Mr. Mays, who lost his daughter, and Officer Paulo, who lost his eyesight, have already waited long enough for justice. Granting this motion would avoid further delay. Denial of this motion and allowing the defendant to pursue this alleged alibi would be tantamount to turning NASA upside down to show that he was abducted by aliens and taken to another galaxy.”
Neil rose, again a little too eager. “Judge, that is simply not true. Although the government refuses to admit it, there have been numerous reports about sites in Eastern Europe.”
“Rumors,” said the prosecutor. “No proof.”
The judge raised a hand, putting an end to the cross-debating. “Let me ask you this, Mr. Goderich. Is it true, as you just stated, that your client has never stated publicly that he was detained in Prague before going to Gitmo?”
“Well, yes. That is true,” said Neil.
“So am I to infer that Mr. Wakefield never told anyone that he was held in a secret detention facility until he spoke with the victim’s father last night-until after he was indicted for murder?”
Neil froze, seeing where the judge was headed. “I can’t answer that question without breaching the attorney-client privilege,” he said.
Jack did a double take. The implication was clear, and Jack didn’t think Neil really wanted to go down that road.
The judge leaned forward, as if he were cross-examining Neil. “Are you affirmatively representing to this court that prior to his indictment Mr. Wakefield told you that he was detained in Prague?”
Neil paused, and Jack could almost hear him tap dancing.
“I’m simply saying that I am unable to give a yes-or-no answer to that question without breaching the attorney-client privilege.”
“That’s nonsense,” the prosecutor said. “Mr. Goderich filed a detailed memorandum in federal court setting forth the entire history of his client’s detention. He wrote in detail about his apprehension by Ethiopian troops in Somalia and his alleged forced confession. He wrote in detail about his transfer to and detention at Gitmo. In fact, Mr. Wakefield pretended to speak only Somali for his entire three years in captivity, until he was charged with murder. If Mr. Wakefield had been detained in Prague, we would have heard of it by now.”
Neil fell silent, realizing his mistake.
Jack rose. “Judge, may I speak?”
“No. I’ve heard enough.”
“Shit,” Neil said under his breath. “I pissed him off with that attorney-client smoke screen.”
“The government’s motion is granted,” the judge said. “The defendant will be allowed to testify at trial about his alibi if he so chooses. But until you show me more than Mr. Wakefield’s own belated claims of a secret facility in Prague, the defense will not have the subpoena power of this court to compel government officials to testify or to produce records about an alleged secret facility.”
“But-”
“That’s my ruling,” the judge said with a bang of the gavel.
“All rise!” said the bailiff.
Jack and Neil climbed to their feet as the judge made his way to his chambers. The side door opened, the judge disappeared into his chambers, and the lawyers gathered their papers. Neil looked as if he’d just been shot in the chest-or worse, as if he’d shot himself in the foot.
“I’m sorry,” he said. “I’ve never dropped the ball like that in my life. What in the hell was I thinking?”
Jack wasn’t one to judge, especially when it was someone as talented and ethical as Neil. Besides, Jack suspected that something else was at work-something much bigger than a misstep by his co-counsel.
“No worries,” said Jack.
“Swyteck,” said the prosecutor, “may I talk to you privately for a minute?”
Jack and Neil exchanged glances. “I’ll meet you downstairs,” said Neil. He closed up his briefcase and headed for the exit, leaving Jack alone with the prosecutor.
“Here’s the deal,” said McCue. “Wakefield pleads guilty to both counts-first degree murder and attempted murder-and I won’t seek the death penalty. Life without parole.”
“That’s not much of a deal.”
“We’re talking about a teenage girl brutally murdered and a cop who was blinded trying to save her.”
“You should be pitching this deal to Neil Goderich.”
“I’m not offering it to him. In fact, I’m only giving it to you because-”
The stop was abrupt, and as the silence lingered, the reality washed over Jack, making his blood boil. “Because my fiancee asked you to?”
McCue didn’t answer, and his body language was anything but a denial. Jack glanced across the courtroom toward the lawyer for the Department of Justice-the same agency that Andie worked for. She averted her eyes.
“I’ll give you until Monday,” said McCue. “After that, it’s the death penalty. No more deals. No more favors.”
Jack took a deep breath as he stood and watched the prosecutors leave the courtroom, and he wasn’t sure who made him more angry: the arrogant assistant state attorney with his Washington ringer or the meddlesome new blonde who had stopped wearing her engagement ring.