'Yeah, well, if she's as big a bitch as you say, he's better off without her. And you should see Reynolds argue anyway. He's amazing. Do you know he's been defending death penalty cases all over the United States for twenty years and he's never had a client executed?'
'Reynolds is just another hired gun.'
'That's where you're wrong, Laura. These cases are like a mission for him. And he's a genius. Did you read his brief in State v. Aurelio?
His Fifth Amendment argument was absolutely brilliant.'
'He's smart, and he might be dedicated, but it's to the wrong cause.'
'Don't be so uptight. Listen to the argument. Reynolds is really worth seeing. I'll check with you before I go up.' i iiiiiiiiiiiiiii The most conspicuous feature of the Oregon Supreme Court is a stained-glass skylight in the courtroom ceiling that displays the state seal. The stained glass is protected by a second, clear skylight above it. On this sunny day, the light filtering through the two sets of glass cast a soft yellow glow over six justices of the seven-member court as they assembled to hear argument in State ex rel.
Franklin v. Pogue.
Tracy found a seat on a couch against the rear wall of the courtroom just after the justices took their places. The judges sat on an elevated dais that stretched across the courtroom in a gentle curve.
Directly in front of Chief Justice Stuart Forbes was the wooden podium on which Abbie Griffen calmly arranged her papers. When the Chief Justice told her to commence her argument, Abbie said, 'If it please the court, my name is Abigail Griffen and I represent the Multnomah County district attorney's office and the interests of Denise Franin. We are asking this court to order trial judge David Pogue to withdraw an order commanding Mrs. Franklin to open her home to forensic experts employed by the defense.'
'Judge Pogue was acting on a motion for discovery filed by the defendant, Jeffrey Coulter, wasn't he, Ms. Griffen?' asked Justice Mary Kelly, an attractive woman in her mid-forties who was appointed to the bench after a stellar career in corporate law.
'Yes, Your Honor.'
'What was the basis for the discovery motion?'
'According to the affidavit of Mr. Reynolds, the defendant's attorney, Denise Franklin's son, Roger, pi'omised to sell Jeffrey Coulter stolen jewelry. Coulter went to Franklin's house, but Franklin had no jewelry and tried to rob Coulter. Mr. Coulter claims he shot Roger Franklin in self-defense after Franklin shot at him.'
'And the defense wants to examine Mrs. Franklin's house for evidence that will corroborate the defendant's story?'
'Yes, Your Honor.'
'That seems pretty reasonable to me. What's wrong with Judge Pogue's order?'
'Mrs. Franklin is in mourning, Your Honor. She doesn't want agents of the man who killed her son traipsing through her home.'
'We're sympathetic to Mrs. Franklin, Counselor, but it's not unusual for witnesses to also be relatives of a murder victim.
They're inconvenienced all the time by police interviews, the press.
Your people went through the house, didn't they?'
'With Mrs. Franklin's consent and while the house was a crime scene.
It's no longer a crime scene. The state has returned the house to its owner, Mrs. Franklin, who is not a party to the criminal case between the state and Mr. Coulter. A judge doesn't have the power to order a nonparty to let the defense in her house.'
'Do you have legal authority for that contention, Counselor?'
Griffen smiled with the confidence of an attorney who has anticipated a question. While she told Justice Kelly about several Oregon cases that supported her position, Tracy looked across the courtroom at Griffen's opponent. The contrast between the two attorneys was stark. Abigail Griffen in her black tailored jacket, black pleated skirt, ivory silk blouse and pearls looked like a fashion model, while Matthew Reynolds in his plain, ill-fitting black suit, white shirt and narrow tie seemed more like a country preacher or an undertaker than America's premier criminal defense attorney.
A question by Justice Arnold Pope pulled Tracy's attention back to the legal argument.
'Mrs. Griffen, when Mr. Coulter was arrested did he claim he acted in self-defense?'
'No, Your Honor.'
'Did the police find the gun the defendant's counsel alleges was fired by the deceased?'
'No weapon was found at the scene.'
Pope, a barrel-chested ex-DA with a Marine crew cut, furrowed his brow, giving the impression that he was deep in thought. Justice Kelly rolled her eyes. Pope was a mental lightweight who tried to compensate for his lack of intelligence by being arrogant and opinionated. He was on the court because he had defeated a well-respected incumbent in one of the dirtiest judicial races in Oregon history.
'Could this self-defense business be hokum?' Pope asked.
'Yes, Your Honor. We believe Mr. Coulter manufactured the self-defense scenario.'
'Perhaps with the assistance of Mr. Reynolds?' Pope asked.
Tracy was shocked by Pope's suggestion that Matthew Reynolds had sworn falsely in his affidavit. Reynolds was rigid, his face flushed.
'There is no evidence that Mr. Reynolds has been less than honorable in this case, Justice Pope,' Abbie answered firmly.
'Besides,' Justice Kelly interjected to shift the discussion from this unpleasant topic, 'that issue isn't before us, is it, Counselor?'
'No, Your Honor.'
'As I understand it,' Kelly continued, 'your position is that we must set aside the order of Judge Pogue, regardless of the truthfulness of the affidavit, because he had no power to order a nonparty to a criminal case to do anything.'
'Exactly.'
A tiny lightbulb at the front of the podium flashed red, indicating that Griffen's time was up.
'If the court has no further questions, I have nothing more to add.'
Chief Justice Forbes nodded to Griffen, then said, 'Mr. Reynolds?'
Matthew Reynolds uncoiled slowly, as if it took a great effort to stand, and walked to the podium. He was determined not to let his anger at Arnold Pope interfere with his duty to his client.
Reynolds took his time arranging his papers and put the insult behind him. As soon as he looked up, Justice Frank Arriaga, a cherubic little man with an easy smile, asked, 'What about Mrs. Griffen's argument, Mr.
Reynolds? I've read her cases and they seem to support the state's position.'
There was a hint of the Deep South when Reynolds spoke.
His words rolled along softly and slowly, like small boats riding a gentle sea.
'Those cases should not control this court's decision, Justice Arriaga.
The facts in the case at bar are substantially different.
Mrs. Franklin is far more than a grieving mother. We believe she may be covering up her son's criminal involvement in an attempted robbery.
Every moment we are barred from the Franklin home presents another chance for Mrs. Franklin to destroy evidence.
'And that leads me to my main legal point. The Due Process Clause of the United States Constitution imposes a duty on a prosecutor to preserve evidence in her possession that is favorable to an accused on either the issue of guilt or the issue of punishment. When we filed our motion with Judge Pogue, the Franklin home was still sealed as an official crime scene. Our affidavit put the state on notice that we believed the Franklin home contained evidence that would clear Mr.
Coulter and it also put the state on notice that we believed that Mrs.
Franklin might destroy that evidence. Soon after we filed our motion, the police unsealed the crime scene and returned the home to Mrs.
Franklin. We consider that a violation of the state's duty to preserve evidence favorable to an accused.'
'Can we approve an order issued by a judge who lacks the authority to make it?' Justice Arriaga asked.
