“I understand your concern, and you were right to call,” she said. “Have you been approached by anyone else? Anyone stepping in for Loney?”
“No. You think I will?”
“Yes, you need to expect that.” For a CEO and no doubt an educated, sophisticated man, he wasn’t thinking very clearly. Fear will do that to you. “Whatever Loney had on you, whatever he wanted, he was just the front man.”
“God, I wish this were over,” he said.
“Please let me know when you are contacted,” she said. “I’ll try to help and-”
She didn’t finish the sentence, because she realized he had already hung up.
Less than an hour later, Bauer received a call, and the caller ID showed the number was blocked.
“Hello, Alex,” said Brett Fowler, a smile on his face as he talked. “This is your new contact.”
“Your Honor, next he’ll be talking about Colombian death squads.”
Dylan is referring to the attempt by the original Simpson lawyers to claim that Nicole Brown Simpson and Ronald Goldman were killed by mysterious, vicious Colombians in some kind of drug vendetta.
They had absolutely no evidence to support their theory, and Dylan is saying that my presentation regarding Loney et al. is similarly without relevance to this trial. If I were in his shoes, I’d be saying the same things, and I’d be confident in my position.
“These people make the Colombian death squads look like Donny and Marie,” I say. “People are dying all over the place, and my client is sitting in jail. The jury has a right to know that.”
Dylan thinks he’s playing a winning hand here, and he will not let anything go unanswered. “The fact that there are murders being committed in large metropolitan areas is not exactly unusual,” he says. “If that were simply the standard for admission, trials would never end. Mr. Carpenter has to establish a connection, and he has not come close to doing that.”
It’s my serve. “Your Honor, Mr. Camby was following me, and was killed before I could question him. I firmly believe that his interest in me related to this case, since Mr. Galloway is my only client at the moment. However, the fact that we have phone records connecting Mr. Camby to Mr. Butler would push the possibility of coincidence way beyond logical.”
“Camby never called Butler,” Dylan points out.
De Luca is sitting back and letting us fight this out. “Loney is the connection,” I say. “Camby called Loney repeatedly, and Loney called Butler. And now Loney is dead as well.”
“The phone calls could have had nothing whatsoever to do with this case.”
I see an opening, and I try to pounce on it. “You know what, Your Honor? Mr. Campbell is right. The phone calls could somehow be unrelated to this case, and just an extraordinarily bizarre coincidence. And maybe the jury would decide that’s exactly what it is. But we gain nothing except a few days by not giving them that chance.”
Dylan is vigorously shaking his head. “That could be said about anything. Why not let the jury hear it and decide? But that is why we have standards of admissibility, and why it is clearly within the province of Your Honor to rule it out.”
Dylan also raises the issue of the accuracy of the phone records, and questions where they came from. I don’t answer that directly, but instead I ask Judge De Luca to allow us to issue a subpoena for the same records, so that there will be no question of their authenticity should they ultimately be ruled admissible. He agrees, which gives me some confidence in what his ruling will be.
I have one significant advantage over Dylan in this situation, and that advantage could be called unfair. Most judges, when faced with a decision like this, are more inclined to side with the defense than the prosecution.
The reason for that bias is that if the defendant is convicted, the defense can appeal the verdict. If the verdict is for acquittal, the case is over with no appeal possible. That would be double jeopardy, and is absolutely prohibited.
So to side with the prosecution is to invite a future appeal, and if there is anything a judge hates more than annoying lawyers like me, it is being overturned on appeal. Siding with the defense, at least on matters that could go either way, is a way to avoid that embarrassment. No judge would ever admit that this is a factor, and no lawyer would ever doubt that it’s often the determining one.
There is also the more human side. To send someone away for the rest of his life is a very serious matter, and compassionate judges would certainly try to avoid doing that unjustly. It just seems easier and more decent to let the jury decide what they believe, rather than preventing them from hearing it at all.
But even with all this on our side, I am still very concerned about our ability to prevail in this argument. The link between our evidence and the case is tenuous at best, and De Luca must know that it would lead the jury down a convoluted and lengthy road. He would not want to do that; I’m just hoping he feels he has to.
“I need to consider these facts,” De Luca says, then to me specifically, “Call your witnesses unrelated to these matters today, and I will rule before court convenes tomorrow morning.”
It’s a victory of sorts for our side that De Luca didn’t rule against us out of hand, but I suppose Dylan might feel the same way. All we can do now is wait.
Once we move back into court, I call Tony Cotner as my first witness. Now in his mid-sixties, Cotner has run a homeless shelter in Clifton, for the last thirty years. The major difference between Tony and me is that he has spent his life helping people, while I have spent mine hanging out with them.
Tony’s shelter is the one at which Danny Butler claims Noah made the confession to him about starting the fire. Reading about it in the paper prompted Tony to call me and offer his help.
“You must have a lot of people go through there over the years,” I say, after we set the scene for the jury.
He nods. “Too many; there is simply not a sufficient safety net for the most unfortunate in our society. When economic times are bad, the people on the bottom of the ladder suffer the most.”
“Yet with all those people, you remember Mr. Galloway?”
“Very well,” he says. “I was impressed with him, and considered him a friend.”
“Why is that?”
“Well, he was obviously well educated, and his decency shined through in the way he dealt with others.”
“Yet he had a drug problem in those days?” I ask.
“Most definitely. It was very sad to see, but not unusual. Addiction can strike all kinds of people at all different times for all different reasons.”
“But you and Mr. Galloway talked frequently?”
“Yes, we did.”
“Did he ever talk about the fire at Hamilton Village?”
“Not that I can recall,” he says.
“If he had told you he set it, would you be likely to recall that?”
“Absolutely.”
“Do you monitor conversations that your visitors have, but that you are not a party to?”
“In a way, yes.”
I ask him what he means, and he tells me that he encourages people to come forward if they are aware of drugs being used on the premises, or if they become aware of criminal conduct. Certainly, he says, any confessions about setting a fire that killed twenty-six people would have been reported to him.
“So you feel confident that Mr. Galloway did not make such a confession?” I ask.
“You mean beyond the fact that I would never consider Noah capable of such an act?” he asks, a response that I am delighted with.
“Yes, beyond that.”
“I believe I would have heard about it, especially if it was said to more than one person.”
“Do you remember Mr. Butler?” I ask.
“I do not. He could not have been there very often.”
“So you would be surprised to hear that he and Mr. Galloway had a significant friendship with your facility as their home base?”
He nods. “I would be shocked by that.”
I turn him over to Dylan, who makes it clear he considers the testimony to be of little significance. After having Cotner admit that there are usually between seventy and a hundred people in the shelter for every meal, he asks if
