The Trial of Jordan Colmar - 4. Chapter 4: The Defense

Dan smiled and put his file on the corner of Martin's desk. "I thought that went well."

Martin nodded absently. Portman's redirect went well. The last thing the jury heard was him reaffirming Jordan's role as ringleader of the assault. "Certainly didn't hurt us."

"Not in the least." Dan tugged at his tie and unbuttoned his collar. "His, 'I took responsibility and got a good plea offer,' really hit home. I can't believe Rankin fell for it."

"Nice witness coaching." There was a hint of sarcasm in his voice. Coaching bordered on an ethics violation.

"Oh, please." Dan rolled his eyes before tossing Martin a bottle of water. "Don't pretend you don't review testimony with witnesses. I never specifically told him what to say."

Martin smirked, as much at the truth behind the words as to show he wasn't accusing Dan of something unethical. "Right, but constantly telling him, 'they're going to ask about the plea you got when you took responsibility for your actions,' certainly wasn't lost on him."

"As they always say; you take your witnesses as you find them." After taking a long swig from the bottle, he screwed the cap on. "The kid's bright. He figured out how best to say things. But let me say this, he and his family loathe Jordan Colmar. They know exactly who's to blame for starting this nasty affair. I think he'd have testified even without a better deal."

Martin almost snorted water through his nose. "Now you tell me."

Mary and Alan came through the open door, followed closely by Belle and Dravek, carrying the exhibits.

"Today went well," Mary said, grabbing two bottles of water from the case. Handing one to Alan, she picked up her note pad. "We're done, aren't we?"

"Yes." Martin nodded. "Tomorrow we make sure all our evidence has been moved in, and we rest."

"Go home tonight and relax," Dan said. Holding the orange Nerf ball, he waited until Martin looked his way, before tossing it to its owner. "Everything went according to our plan. As you said upfront, we have a great case, all we need to do is execute. You did that."

"We did it," he corrected. Tossing the ball to Belle, he let out a sigh. "I don't understand why we went to trial. What do they think they have to overcome Bennett, Peter, the video and Portman?"

"Nothing."

Everyone turned toward Alan who froze with the bottle almost to his lips. Before Martin could ask what he meant, Dan spoke, "Care to expand on that?"

"Earlier today, when I went to get lunch, I overheard Rankin speaking to Hank Colmar." He finally took a drink. "Let's just say it was not a happy conversation."

"What do you mean?" Martin glanced at Dan, hoping the kid wasn't about to torpedo his promising legal career. "How did you 'happen' to hear this?"

No longer relaxed, Alan sat up straighter. "As I said, I was waiting for the delivery person by the front door. You know those black plastic seats by the entrance? I was sitting on one of them when I heard Hank Colmar's voice. Everyone heard it."

"And you saw no reason to leave, did you?" Dan smiled at Martin, looking relieved this was a conversation that 'came' to Alan and not one he sought out.

He shrugged. "It's the same place I met the guy every day this week. Not my fault they were loud."

"Okay so you weren't eavesdropping." Unsure if he should ask, Martin hoped Rankin hadn't discussed his trial strategy in the hallway. "What did you hear?"

"If you're worried it was their super secret trial plan, don't." Alan drank again, allowing Martin to relax. "Basically, Colmar's mad. He said something about our side creaming them and how Rankin was incompetent. Oh yeah, he cussed Ray Henry for hiring our firm out from under him."

Dan snorted. "I'd have turned him down if he’d asked. I have enough business without ruining my name with this case."

Martin kept his eyes on Mary who raised her eyebrows fractionally. He wasn't the only one surprised by the statement.

"Well, Rankin didn't take to being insulted in public. He reminded Colmar that he’d told them their case was extremely weak. Said he warned them about the risks of a trial and that everything depending on Jordan being able to convince the Jury everyone else was lying, but him."

"Which is what we've been saying all along," Belle said, drawing a look from his sergeant.

"Colmar said something about, for what he paid he expected results not excuses and he'd have Rankin's license if Jordan went to jail." Alan shrugged, rolling up his sleeves. "That's when the lunch guy came and I had to go."

"Guess you better get your cross examination suit out, Martin." Dan flashed him a grin. "Tomorrow sounds like it’s going to be fun."

A loud knock made him look up. Deputy Freeman stood at attention in the doorway.

"Come in, Deputy." Martin waved at him with the water bottle in his hand. "Would you like something to drink?"

Eyes darting to the bottle, he shook his head. "No thank you, sir, I'm fine."

Martin nodded. "What brings you here? Did Colmar make another empty threat after we left?"

Freeman's brow wrinkled as he shook his head. "Nothing like that, Sir. Sheriff Ghegahn asked me to let you know, Warren Berimen will be in the cell block first thing tomorrow. If you need us to bring him up here, just let us know."

"Berimen?" He turned to Mary who shrugged. "We didn't ask that he be brought in."

"Son of a bitch." Dan's voice drew all eyes to him. "He turned the kid."

"What?"

"Think about it, Martin." Dan grabbed a note pad from his file. "Berimen got twice what you agreed to ask for at sentencing."

He nodded, but his mind was going in a dozen directions. "Mary, pull the transcript from the plea hearing. Also call whatever prisons Berimen's been in since his plea and ask to pull Berimen's phone and mail logs. Specify we're looking to see if Rankin, his associates or any of the Colmars had contact with him. Pull whoever's free and willing to help, to work on this with you."

When Mary walked out, he noticed Freeman still in the doorway. "Thank you, Deputy. Will you tell Sheriff Ghegahn I'll need him brought up first thing tomorrow morning?"

The man smiled, nodded twice, spun on his heel and was gone.

"Ghegahn must really hate the Colmars." He shook his head, staring at the empty door.

"Of course, but what makes you say that now?" Dan asked.

"Ghegahn knows full well my office didn't do a come up for Berimen. The man's a stickler for details. This was his way of telling me about their surprise witness."

Dan raised a bushy eyebrow. "Does he do this often?"

Remembering Dan was a defense lawyer, he chose his words carefully. "He's law enforcement, just like us. Unless he's handling confidential matters, he passes along information all the time."

"And you don't think who the defense speaks to is confidential?"

"Dan," He stopped before getting angry. "Witness lists are supposed to be turned over. Assuming the defense complied with the rules, Ghegahn wasn't divulging anything confidential. All he did was let me know when the kid would be here if I wanted to speak to him and making sure the defense followed the rules."

Dan's expression relaxed. "Fair point."

"Glad we agree. Now, to deal with this problem."

"You think Rankin turned him?" Dan asked.

"Not sure yet." Squeezing the orange sponge ball several times, he made eye contact with Dan. "Do you still have access to that very expensive, but thorough, private investigator?"

"Yeah, why?"

"And do you still have any money left over on the retainer Raymond Henry paid you?"

"There's no set retainer, he just pays the bill every month." Dan's face wrinkled as his eyes narrowed. "What's going on in your head?"

Ignoring the look, he kept up his questions. "You said at the start you had some interesting information about Colmar's dealings. Do you have a copy of his bank records?"

"Damn it, Martin, don't cross examine me. Either tell me what you're thinking or let it go."

"Sorry, just thinking out loud mainly." Staring at the ball in his hand, he placed it on the desk. He needed to calm down and think clearly. "My guess is they, the Colmars, had to make this worthwhile to Berimen. If I'm right, there will have been a payment from them to Berimen already. Why else would Berimen risk perjury charges? Sure the penalty for perjury isn't much compared to what he got, but still. What's the benefit of any more time?"

"Maybe he feels he's getting back at 'the man'." Alan suggested.

"Possible, but my gut says there's more."

Shaking his head, Dan paced around the small open space. "Even if we find a payment that fits what we're looking for: what then? We'll need the keeper of records from Colmar's bank, another from Berimen's bank, and a nexus between the payment and the testimony. Just because it's suspicious, doesn't make it admissible."

"We'll deal with that if we get that far. Just get me something tangible."

Staring again, Dan put his hands on the desk. "What are you planning?"

A wicked grin crossed his face. "What do you think Warren Berimen will do if we confront him with evidence he's been paid by the Colmars?"

Dan's eyes grew wider. "You're not seriously thinking of threatening him are you? Martin, you tamper with their witness and you'll be disbarred for sure."

"First of all, I'm not tampering. I have a right to speak to him. If I point out things I'm going to ask him on cross, how's that unethical? I'd like to know the answers before I ask the witness questions on the stand. Second, if he's going to testify to something other than the insulating statement he gave at his plea hearing, I see nothing wrong with going over point by point those differences and asking him if he understands what perjury means."

"You're dancing on the edge of a very sharp knife." Dan frowned. "Even if you don't fall off, you're still likely to get cut."

"So's Rankin." He rubbed the back of his head, running his fingers over the close cropped hairs. "How do you think Milton is going to react when he finds out that Rankin is planning to call a witness he gave us no notice about? In the middle of trial? This was a calculated move by the defense.

"IF Milton bars the witness, any conviction we get might get tossed out. Rankin could be found ineffective on appeal…."

"That's a huge gamble to take by the defense," Dan cut in. "You can never be sure what the Superior Court will decide on appeal."

"True, but you can bet the Judge isn't going to risk a retrial years from now. He'll likely allow it with conditions."

"Conditions?"

"Dan, the problem you're having is you don't set out to break the rules." He held up both hands and shrugged. Tossing the ball to his colleague, he shrugged again. "Many defense lawyers push the bar as far as they can without getting hurt. We have to be creative to ensure we aren't put at a disadvantage when the judge invariably lets the defense do what it wants."

The snort of disgust brought a small smile to Martin's face. "Okay, what conditions are you thinking about?"

"Time mostly." Catching the ball Dan returned to him, he stuffed it in his draw. "Milton won't be happy, but he also isn't going to let Rankin win this round. I'll ask for the weekend before he calls Berimen."

"That won't sit well with the old guy."

Old guy? Dan was older than Milton. Keeping his smile in check, he shrugged again. "Probably not, but his venom will be directed at Rankin, not me."

*********

"Your Honor, the Defense would like to call Warren Berimen."

Martin flew to his feet for show. Why let Rankin know he knew about the 'surprise' witness? "Objection, Your Honor."

Milton arched an eyebrow at him. "What's your objection, Mr. Pratner?"

Avoiding the jury, he noted a smirk on Rankin's face. This should be fun. "Maybe it would be best to dismiss the jury first, Your Honor?"

Another quizzical look from Milton. "Counsel approach."

Buttoning his jacket, he strode around counsel table. Rankin seemed a bit less pleased than he had been a moment ago.

"What's the problem, Pratner? Dismissing the jury before we begin? Are you trying to upset me before we start?"

"No, Your Honor, it's just this witness was not disclosed to us. This is the first we're hearing they intend to call Warren Berimen." He avoided Dan's eyes. Sure he knew the defense brought Berimen to court and provided him with a suit and tie, but they never officially told him they intended to call Berimen.

Milton's face tightened so much Martin waited to hear his teeth grind. "You had me sign the order to bring up a witness you never disclosed to the government?"

"Your Honor…."

"Return to you seats." His glare defied anyone to argue. Milton stiffened in his chair as the attorneys backed away.

Stealing a glance at the jury, Martin noted most were looking at the judge as he stared at Rankin's retreating figure.

"Ladies and Gentlemen of the jury." The judge seemed more composed and managed what looked like a genuine smile. "An issue has come up that will take a bit of time to resolve. I apologize for the delay, but I'm going to dismiss you for half an hour. That way you aren't stuck in the jury room. Please be back in the room by 9:45."

The door barely closed on the last juror when Milton turned to the defense. The man's eyes scanned the courtroom before he shut his mouth. "We'll take this to my robing room."

No one sat as Milton eyes went from face to face, waiting for the door to close. "Surprise witness, Mr. Rankin? Are you kidding me?"

"I'm sorry, Your Honor, it appears it slipped my mind to notify the government." Rankin's practiced response almost made Martin snort.

"Mr. Rankin, we've already established I'm not a bumbling idiot." Civility was becoming scarce as the trial continued. "If you continue to treat me like one, I assure you, I will demonstrate how much of a mistake you've made."

Rankin didn't appear upset by the rebuke. "Your Honor, Mr. Berimen was only identified as a witness late last week. As you can imagine, we had a number of things to prepare so we could be ready for the start of trial. Having answered the original request for our witness list months ago, we must have inadvertently forgotten to notify the government of the change."

Plausible, and impossible to refute. Rankin would get to call his witness, but hopefully not as he intended.

"Your Honor?" Martin waited until given a small nod to proceed. "Given how much my colleagues and I had to do last minute, it is not beyond belief that something like this could have escaped Mr. Rankin's attention." The sarcasm was held to a minimum; he knew he'd made his point. "However, this puts the government at a disadvantage."

"You want me to deny them the right to call the witness?"

Milton played his part beautifully, even if he didn't know he was part of Martin's game. "No sir, but I would ask for a few conditions."

"Conditions?" Rankin sputtered. "How can the government put conditions on the defense case?"

"Last I checked, Mr. Rankin, the government was asking me to impose conditions. That's how it works around here. The parties ask the judge to rule." Milton wasn't in a good mood and Rankin was bearing the brunt of it. Good. "What conditions are you seeking, Mr. Pratner?"

"We'd ask this witness not be called until Monday. That way we can have the weekend to prepare." He couldn't read any reaction from the judge. "In the meantime, the defense can put on the rest of their case today, and tomorrow if necessary, and we can wrap up the defense case on Monday."

Given there were no other witnesses on the defense 'witness list', he knew the only potential witness was Jordan Colmar. Let's see if Rankin took the bait and if he did, Milton responded as hoped.

"Sounds like a fair request." Milton nodded, waiting for Rankin to respond.

"Your Honor, other than Mr. Berimen, the defense only has one other potential witness."

"Fine, call that witness today." Milton began to stand.

"I'm not sure if we're going to call him." The words came out slow, unsure.

"By 'him,' you mean your client." Milton settled back in his chair.

"Correct, Your Honor."

"Then find out if he wants to testify." This time he stood up. "I'll rule on whether to allow your surprise witness once I know what your client plans to do."

Rankin's face went slack, forcing Martin to turn away. When would he stop underestimating Milton? Did he really think no one had tried this tactic before? Then again, maybe it worked in Philadelphia.

"Your Honor…"

"Is there a problem, Mr. Rankin?" Looking slightly amused, the judge kept his eyes on defense counsel.

"I…it will be impossible to decide what to do until we know whether you're going to allow the witness."

"Mr Rankin," the judge's face lost any hint of humor. "While I fully understand the gamesmanship you are trying to engage in with Mr. Pratner, I'm not part of it. You failed to disclose a witness to the government. And not just any witness, but a co-defendant who pled guilty and gave a statement at his guilty plea involving your client in the crime for which he's charged. Said co-defendant is now ready to testify on behalf of your client and you forgot to let the government know in a timely manner. Isn't that convenient?

"But for the sake of argument let's say I believe it was accidental. Doesn't matter why or how it happened, it's disrupting my courtroom. Not your courtroom or Partner's or even your client's, but mine. Now I like to be fair so IF I let you call this witness, I'm going to give the Commonwealth a couple days to prepare. Far less than they are entitled to, but we all make sacrifices in the interest of judicial economy.

"That said, let's pretend I'm a yokel and you're way too smart for me. If your client doesn't want to testify, then I don't see why I should let Berimen testify at all. He's going to get on the stand and say your client is innocent. But of course he'll be seriously impeached by his statement under oath from his plea. I'm willing to risk the Superior Court won't overturn a conviction on appeal based on your failure to timely disclose this witness because his testimony would lack credibility.

"Now should your client decide to take the stand and say, 'I never did any of the things they're accusing me of,' well suddenly Berimen's testimony isn't an island unto itself, even if he is impeached. Coupled with Colmar's testimony, the jury could buy your argument that Berimen lied at the plea hoping to get a better deal. But without your client's testimony, well that just seems too nebulous to a hayseed like me, and I won't permit you to call a witness you failed to timely disclose."

Crossing his arms over his black robe, Milton stared at Rankin for a moment. "Do you still think it's impossible to decide if you're going to call your client until I rule? Or would you like to use my robing room to speak to Colmar? I can go back to my chamber and read the funny pages while you talk."

***

An hour and a half? How much longer would Rankin subject a bored court room to Jordan's mindless drivel? From his bar mitzvah, to high school and college, he was the nicest kid, who never drank, smoked or cursed and who helped old women to the synagogue.

Part of him suspected it was a ploy by Rankin to bore him to death before he could cross Jordan.

Focus. Daydreaming was exactly what Rankin wanted.

As expected, everyone was lying except poor precious Jordan. He didn't plan the fight, he tried to stop it from happening. Yes he outed Jason, but he was angry at the time and regretted it immediately. So much so he tried to apologize, but Jason was too angry to listen. Peter must have heard someone else's voice, because he never said those awful things.

Fine, the kid was a great liar; coached perfectly. This was probably the best rehearsed witness testimony Martin could remember. At least Rankin gave Hank Colmar his money's worth on this part of the case.

"No further questions for Jordan, Your Honor."

Judge Milton's head snapped up. "Cross examination, Mr. Pratner?"

Twisting his cufflinks, he buttoned the top jacket button as he stood. "Thank you, Your Honor."

Stepping around the table, he noticed Dan putting the note pad on the corner so it was in easy reach. Jordan sat, looking relaxed and confident. He was a good liar, Martin had to give him that much.

"Mr. Colmar, on October 7, 2009, you were on the scene when Peter Gregory was beaten, correct?"

"Yes, Sir. And you can call me Jordan."

Smug little prick, did he think he was the first person to try this? "Thank you, Mr. Colmar, but I prefer to keep things formal unless I'm addressing friends."

Jordan's smile ebbed for an instant, but was quickly plastered back onto his face.

"Mr. Colmar, you would agree that Officer Bennett correctly identified you in the video, wouldn't you?"

"Yes, Sir."

A bit more relaxed. Too bad. "And you'd also agree that you were standing very close to Peter Gregory at the time, right?"

"I was trying to help him."

"You didn't bend down, did you?"

"No."

"Didn't push any of your fraternity brothers away, did you?"

"No."

"Never tried to cover Peter's body with yours, did you?"

"No."

"You said you immediately regretted outing Jason, isn't that right?"

"Yes, Sir. If I could…"

"Your Honor, if you could, the witness is non-responsive." He made sure his voice drowned out Jordan's.

"… I would."

"Mr. Colmar, Mr. Pratner sought clarification on your prior testimony." Martin was pleased to see Judge Milton's tone and demeanor seemed exactly like it was with Jason or Peter. "When he asks those questions, unless he mischaracterizes your testimony, you don't get to explain or add more. If you would, just stick to the questions asked. Can you do that, Sir?"

"Sorry, Your Honor. I can do that."

"Thank you." He turned back to Martin. "You may continue."

"Thank you." He'd used the time Milton was speaking to Jordan to get his note pad. "Mr. Colmar, you played soccer in high school, correct?"

"Yes, Sir.

"Coach Williams was the head coach when you were playing, isn't that right?"

"Yes, Sir."

"And as far as you know he's still the head soccer coach."

"That's correct."

"Isn't it also true that in May of 2009, you sought out Coach Williams and specifically told him Jason Tellerman was gay?"

Jordan's face lost some of its color, and his eyes moved to his attorney. Rankin was scribbling a note when Martin turned to look where Jordan stared.

"I'm sorry Mr. Colmar, is the answer to that question somewhere over there?"

Rankin flew to his feet nearly knocking the chair over. "Objection."

"Sustained," Milton shook his head. "Mr. Pratner, there is no need to be cute."

"My apologies, Your Honor, I just wanted an answer to my question."

"Can you repeat the question, please?" Jordan asked.

"Certainly."

***

Martin remained standing as the jurors filed out. The door was barely shut when Rankin started to speak.

"Your Honor, may I address an issue before we break?"

"What's the issue?" Martin glanced to Dan. Everyone knew you didn't stop Milton from getting lunch.

"Your Honor, the government mentioned some names during his cross of Jordan. We assume they plan to complete the impeachment by calling those people as witnesses." Rankin slid Martin a glance he ignored.

"I assume so, too." Milton pulled the zipper down on his robe. "That's how one completes impeachment in my courtroom."

"Understood, sir, but those names were not on the government's witness list."

"I wouldn't expect them to be." Tucking the chair under the bench, the Judge leaned forward. "What's the issue?"

"We believe they should have been turned over." He reached for a sheet of paper his associate held out. "How can we be prepared to defend against these allegations if we weren't provided these names? The rules of evidence…."

"The rule requires both sides to turn over any witnesses they plan to use in their case in chief. Rebuttal witnesses are not required. Rebuttal witnesses to a defendant's testimony are especially not required because the defendant has an absolute right not to testify. He also has the right to testify and can make that decision at any time during the proceedings. Finally, because the defendant is the one witness the government may not interview once he invokes, there is no way the government can know what the defendant will say if he chooses to testify.

"Had your client answered yes to the government's questions, they wouldn't be calling witnesses. But I assume you didn't share his testimony in advance of trial, so how did Mr. Pratner know for sure what your client would say, if anything?"

Pushing off the chair, Milton stepped toward the exit. "The government may call whomever they want on rebuttal regardless if they are on the witness list provided." Pausing , he held the railing and faced the lawyers. "Besides, because you forgot to include a witness you intended to call in your case in chief, you now have the weekend to go interview these people. That's about the same amount of time the government has to research your surprise witness and they followed the rules. I'll see everyone after lunch."

Once Milton disappeared and the door shut, Martin collected his papers, watching Dan do the same. Alan already left to get lunch, so Mary finished organizing their files. "Leave it, Mary," he whispered. "I want to get back to the office."

"Why didn't you know?" Hank's voice carried across the room. "What the hell did I pay you for if you can't out lawyer some government bumpkin?"

"Keep your voice down," Rankin hissed. "Do you really want to have this conversation where everyone can hear you?"

Hank Colmar scanned the room, scowling at everyone. When the two deputies moved closer, Rebecca tugged at her husband's arm, trying to get him to leave. Jordan stayed back, avoiding his father's glare.

Martin watched them walk out before turning to the deputies. "We'll go out the back. I think that's going to get loud, and I don't want to hear it."

He noticed the smirk on Dan's face the entire walk back. They stuck to routine and didn't discuss the case until they were back in his office. Alan was waiting, setting out things on the small table they drafted into service.

"That was brilliant." Dan clapped him on the back. "I know you couldn't see it, but every time you followed the little shit's eyes toward his lawyer, the entire jury looked too. Even after Milton told you to stop, they jury kept doing it."

"If I'm so brilliant, why do I feel like I'm missing something?"

"Because you're never sure until you hear 'guilty' read by the foreperson," Mary said. "You drill it into us all the time; don't get overconfident. You, however, take it to extremes."

"Listen to her," Dan said before biting into his lunch. He had to chew and swallow twice before he could continue. "Jordan's face told me all I needed to know; you caught him. He didn't expect you to find out about what he said to Coach Williams. Why? I'm not sure, but he didn't. Rankin didn't know about it either, that much is certain. Guess his client wasn't very forthcoming."

He turned to Mary. "Are Belle and Dravek…."

"Out getting the witness?" She finished for him. "Yes. I got a text saying they picked up Williams and are on their way back."

"Good." He accepted a sandwich from Alan. Without checking to see the contents, he took a bite. "What about the Berimen information?"

Mary quickly turned a page on her pad. "Transcripts are done, Myra is making copies now. I told her ten, just so everyone can have their own and we have enough to give one to the judge and defense."

He nodded. "Good idea. What else?"

"Corrections said they'll get us the records by COB today, first thing tomorrow at the latest."

"Better than I had hoped." Taking another bite, he wondered if they had enough time to review them all. "Hopefully you don't have weekend plans."

"None I haven't cancelled already." Mary's tone made him regret his comment.

"Don't cancel them yet." Tapping his mouse, he brought his computer to life. "Let me see if I can get a volunteer or three before I commandeer your weekend."

"Martin.” She paused when he looked up. "Ask for volunteers, but if you're here, I'm here. Owen understands this is a big case. We'll figure something out."

"Just don't cancel anything yet. Who knows, tomorrow we may get lucky." Typing in the global address for the trial section, he tapped out a quick email asking for volunteers to work over the weekend.

"Dan," he said as he hit send. "Any word from that cracker-jack investigator of yours?"

A snort greeted his question. "I said he was good, not God."

"Just asking." Already he moved on to the next item on his mental ‘to do’ list. "If he needs help, let us know. Dravek and Belle can help and if necessary, I can call the State Police if we need help out of the county."

"I'll let him know."

"Great." Removing his cuff links, he put them in the box on his desk. "If everyone has their assignments, let's get to it."