Open and Shut

greatly lessen the discomfort, while not providing too serious a physical danger to the members of the court.”

“Mr. Wallace?” Hatchet inquires.

“No objection, Your Honor.”

“Very well. Guard, please adjust the handcuffs so that they are in the front.”

The guard comes over and does just that. When he is finished, Willie leans over and whispers to me. “Thanks, man. You're better than the last lawyer already.”

I just nod as Hatchet shuffles through some papers. “We'll start with the change of venue motion. Mr. Carpenter, I've read your brief. Do you have anything to add to it?”

I stand up. “Yes, Your Honor. We believe that the prosecution, in speaking out to the press about their view of the new trial as the result of an inconsequential technicality, has prejudiced the jury pool, and-”

Hatchet interrupts me. “That's all in your brief. I asked if you had anything more to add.”

“I'm sorry, Your Honor. The brief adequately represents our position, though perhaps understates the passion with which we hold it.”

“I'm suitably impressed,” says Hatchet. “Mr. Wallace?”

“Our response papers are complete, Your Honor.” Wallace is the type who would go up to high school teachers and thank them for a fair and well-thought-out final exam. “We believe that cases with far greater public awareness have managed to empanel impartial juries without much difficulty.”

“I am inclined to agree with that,” Hatchet says.

“Your Honor,” I jump in, trying to stem the tide. “Our papers demonstrate media coverage both inside and outside this community in great detail. We feel-”

He interrupts me. “ ‘Great detail’ is an understatement. I would appreciate it if you would be more concise in the future. But look at the bright side, Mr. Carpenter. Every motion I deny gives you a future grounds for appeal.”

“We would rather get a not guilty verdict in the first place, Your Honor.”

“Then present your best case. What's next?”

“The matter of Robert Hinton, Mr. Miller's so-called counsel in the first trial,” I say.

Hatchet nods and takes off his glasses. He's heard all about this, so he looks at Wallace.

“This can't be true, can it?”

Wallace replies, “I'm afraid our information shows that it is, Your Honor. We cannot find Mr. Hinton, but there is no record that he was ever a member of the bar.”

“How could that happen?”

“We're still looking into it. But it appears that Mr. Miller hired Mr. Hinton independent of the court, and that his credentials were not examined.”

Hatchet turns to me. “Is this consistent with your understanding of the facts?”

I take a quick look at Willie before I answer. “Yes, Your Honor, but our major concern is not with my client's representation, or lack of it, in the first trial, as terrible as it was. That verdict has already been set aside.”

Hatchet seems surprised to hear this. “Then exactly what is your concern?”

Here goes. “Your Honor, we believe this is evidence that a conspiracy existed at the time of the murder, and continues to this day, so as to protect certain powerful interests. We would request substantial leeway to deal with this matter at trial.”

“Do you have any other evidence of this conspiracy?” Hatchet is obviously skeptical, as I knew he would be.

“We are developing it, Your Honor.”

Wallace chimes in. “Your Honor, granting the defense's request would be providing them a license to conduct a time-consuming fishing expedition. The state would suggest that when and if the information is developed that it be presented to the court for admissibility.”

I expect Hatchet to agree with Wallace, but instead he turns to me. “Mr. Carpenter, was Mr. Hinton paid for his services?”

“Not by my client, Your Honor. Hinton represented himself as a public defender, assigned by the court. My client, having never before been charged with a crime, did not have the sophistication to realize that he was the victim of a conspiracy.”

Hatchet seems very troubled by this. “Mr. Wallace, we have here an extraordinary circumstance in which a fraud was perpetrated on the court in a capital case. Since we can safely assume that most lawyers, even fake ones, have at least some financial self-interest, then it seems quite credible to surmise that Mr. Hinton was put up to this by a person or persons, other than the defendant, prepared to pay for his services.”

“It is a long jump from that to evidence of the defendant's innocence,” Wallace says.

Hatchet nods. “That's true, and Mr. Carpenter, I am not going to allow wild Colombian death squad testimony.” This is a reference to the defense mounted in the Simpson case. “But I will be inclined to grant some leeway. We'll take it on an issue-by-issue basis.”

“Thank you, Your Honor.” It's not a victory, but it's a hell of a lot better than I expected, and Wallace looks a little surprised.

Hatchet continues moving things right along, turning to Wallace. “I believe there are DNA issues we need to address?”

“The state has submitted its intentions in this regard. Additional tests are being conducted right now.”

Hatchet nods. “Mr. Carpenter, if you are requesting a Kelly-Frye, I suggest you do so as soon as possible.”

“Your Honor,” I reply, “we respectfully point out that we cannot begin to decide whether to challenge evidence until we see that evidence.”

I've already decided not to ask for the Kelly-Frye, but by delaying announcement of that decision I might give us more time to prepare for trial.

Wallace will have none of this. “Your Honor, the Kelly-Frye, as the defense knows, is designed to challenge the technology itself, independent of the specific case. The results will not be in until almost the date of trial, and if the defense waits until then to decide whether to seek the hearing, the trial date you've set will almost certainly be delayed.”

I chime in. “In the interests of justice, the defense is willing to allow a delay, though we would prefer that our client not have to sit in a jail cell while the prosecution gets its act together.”

Wallace is getting annoyed, which is what I want, but Hatchet refuses to let the back-and-forth continue.

“Mr. Carpenter, your request to delay your decision is denied. Are you requesting a Kelly-Frye or not?”

“No, Your Honor.” Wallace whirls around in surprise. “But the defense reserves its right to challenge the evidence when presented.”

“No objection, Your Honor,” Wallace agrees.

“Very good. What's next?”

“There is the matter of bail, Your Honor,” I say.

“In a capital case?”

“The prosecution has not officially announced its intention in that regard.”

“That's just a formality,” Wallace says. “The paperwork is being prepared now.”

“My client has already served seven years in prison for a crime he did not commit. Every single additional day is an intolerable imposition.”

“Motion for bail denied. Anything else?”

Before Wallace or I have a chance to reply, Hatchet slams down his gavel. “See you at jury selection.”

Kevin and I say our goodbyes to Willie and make plans to meet with him and discuss some specifics of the case. After he leaves, Kevin says, “The judge wasn't as tough as you led me to believe.”

“Just wait,” I say. “Just wait.”

NEW JERSEYHAS ALWAYS BEEN A STATE WITH AN identity crisis. It is essentially divided into three areas: the part near New York, the part near Philadelphia, and everything in between. That middle part includes both fashionable suburban areas and lower-to middle-class towns and farmland. It is in the economically depressed farmland where Denise McGregor was raised, so it is where I am going today.