35
The Court of Appeal hearing was scheduled for 9:30 a.m. The trial would continue after that. At least this would be a little less tense for Dana, as Lee Penn-Garrett would handle the application on behalf of Lestage. Several days earleir, he had obtained the order ex parte permitting questioning on missing documents to take place in front of the jury. Court of Appeal rules allowed that when such an order was granted, the opposing party, in this case the prosecution, was entitled to apply to set it aside. This was that application.
Nine thirty came and went—no Penn-Garrett. Nine thirty-five—no PennGarrett. Nine forty slipped by and still no Penn-Garrett. Dana was beginning to squirm. The impossible run of bad luck that had dogged her from the outset of the trial was continuing. The court clerk’s phone rang. She spoke quietly and placed the receiver back in its cradle.
“I’m sorry, Ms. Wittenberg, but their lordships wish to proceed.” Dana was almost sick. She had not prepared for this application. She had barely read the affidavits, or the applicable law, as she assumed that Penn-Garrett would handle it. The clerk retreated through a door at the side of the courtroom at about the same time that Dana felt her cell phone vibrate. She fished it out of her pocket and saw a text from Shannon Saddleton, Lee’s secretary for a good four decades. The message was brief, yet for Dana, foreshadowed yet another courtroom calamity: DANA, LEE HAS HAD A MILD, I REPEAT, A MILD HEART ATTACK. NO SERIOUS DAMAGE, AND HE IS RESTING PEACEFULLY IN ST. PAUL’S. HE IS EXPECTED TO BE BACK IN COURT IN TWO OR THREE DAYS, CERTAINLY NEXT MONDAY AT THE LATEST. GOOD LUCK, SAYS LPG.
Thus began her first ever battle in the Court of Appeal without a brief, without law, without having read the affidavits, without preparation, without a clue.
“Order in the court.” It was not a bellow as it usually was in Courtroom 401, two floors below them. It was a tranquil, melodious voice, appropriate for the more rarified air in the Court of Appeal. The three justices strode in. Dana watched them assemble on the huge curved bench. All three had fearsome eyes and wore intimidating scowls. Justice Westin sat at the center of the panel. Dana had heard of her. An ex-prosecutor and a bully; a walking legal encyclopedia.
Westin turned to McSheffrey. He had brought Archambault with him, leaving Danson and McGhee to guard the fort in Courtroom 401.
“Mr. McSheffrey, what can we do for you this morning?” asked Westin with what she presumed was a smile.
“We are here to set aside the ex parte order obtained last week by Mr. Penn-Garrett. Justice Mordecai made a very sensible ruling that documents my learned friend says she has, from us, cannot be used by her in crossexamination.”
“Well, why not, Mr. McSheffrey? Are they relevant?”
“Yes, I suppose some of them are.”
“Then why can’t Ms. Wittenberg use them? What’s your point here?” Dana let her breath out slowly. Finally. An issue was going her way.
“The circumstances of their production are important here, and Justice Mordecai’s ruling should be seen in that context.” McSheffrey then launched into a lengthy explanation of how the documents came into the defense’s possession, concluding with the Mordecai ruling that Dana could not use them. She could not, the ruling went, pursue a “missing documents” defense until she had filed an affidavit detailing how it was that she concluded that there were indeed missing documents.
Westin grasped the point within five minutes. Once she did, she cut McSheffrey off midsentence. “You, Ms. Wittenberg, stand up. Is everything that Mr. McSheffrey just said true?”
Dana shrugged. “Yes, I can’t take issue with any of it.”
“So this comes down to you swearing an affidavit setting out what process you went through to assemble those binders? A simple affidavit from you swearing that the missing documents are indeed missing? It comes down to that?”
“Yes, I guess so.”
“You guess so. Well, Ms. Wittenberg, Judge Mordecai’s ruling, while a little odd, is not inappropriate. You’re not claiming work-product privilege or anything like that?”
“No, m’lady.”
“Well, then, this is all very simple. You swear an affidavit setting out how you read all 100,000 pages of documents and noted that, thirty or forty documents are missing. Four or five paragraphs will suffice.” “I can’t swear such an affidavit,” Dana replied.
“And why not?”
“I just can’t. Period.” She had promised Turbee that she wouldn’t reveal his assistance to anyone. She had given him her word.
“I am ordering you to. Got that, Ms. Wittenberg? Swear an affidavit.”
“I can’t.”
“I can see why Judge Mordecai was so upset with you, Ms. Wittenberg.” Judge Westin was glaring at Dana. “He obviously sensed that you were not being candid with the court and he imposed a simple remedy. You refused to swear the affidavit but continued to use the suppression of documents defense in front of the jury. The judge was entitled to ask you to do what he did and you were in contempt of his order when you deliberately flouted that order. Now I am ordering you to swear the affidavit. Just tell us that you sat down with 100,000 documents over a weekend and discovered that thirty-seven were missing.”
“I can’t do that.”
“Fine. The ex parte order is set aside. You cannot raise this issue in front of the jury.”
“Thank you, m’lady,” said McSheffrey in a smug I-told-you-so tone.
“Order granted on those terms,” said Justice Westin. “Now, as for you, Ms. Wittenberg, you have made this application when you knew or ought to have known that there was no legal foundation to make it. You’ve wasted this court’s time, twice, and the time of the court below. There are obviously no missing documents and you know that. You were in contempt of Judge Mordecai’s order, and you flaunt your contempt of this court. Your conduct is inexcusable. Costs will go against you personally. I assess those costs to be
