Custody of the State (15 page)

“Yeah, I think that was her name. I just went over all of this with her.”

“I hope you don't mind—I'd like you to share that information with me too.”

“I do have a meeting I've got to get to,” the agent replied, “so I don't have a lot of time—”

“I'll be quick. How long have you known Mary Sue Fellows?”

“I've known Joe and Mary Sue for a lot of years—going back to high school here in Delphi.”

“Who did you know better—Mary Sue or Joe?”

“Probably Mary Sue—I didn't know Joe that well in school. I mean, it was a small high school, so everybody knew everybody. He was a good football player. I'd watch him play. I had a few classes with him. That sort of thing.”

“And Mary Sue?”

“Well—everybody knew Mary Sue. Cheerleader. Lot of guys were always after her. A real cute girl, full of life, as smart as a tack. Mary Sue was definitely Miss Popularity.”

“Did you ever date her?”

“No, it was never like that. Not that I would've minded it. I always liked Mary Sue a lot, but—it was never really like that.”

“After high school, did you keep in touch with her?”

“Sure, I'd see her around Delphi. I'd run into her from time to time after high school. Back when she was dating Jason Bell Purdy.”

“Mary Sue dated Jason Bell Purdy?”

“Sure, not for long—I'm not certain why it ended. I think a lot of folks were surprised that they didn't stay together. Jason always liked Mary Sue. He went to a nearby rich, private high school of course. He officiated at the Rotary Club pancake breakfast the other day. We made him our Honorary Chairman because he's always been treated like a local Delphi boy.”

Will jotted down a few notes, including Jason Bell Purdy's name. He underlined it. “So about the insurance policy. I'm sure Ms. Bender asked you some questions about that?”

“I really can't remember what we talked about, but it was mainly about the policy, the amount, when it got issued—that sort of thing.”

“Do you remember the details of how you came to write up that policy for Mary Sue? Did she call you—did you call her? How did that happen?”

“You know,” Smiley said, thrusting his hands in his pockets, “I wonder where I put my car keys. I'm going to need my car for this meeting.” With that Smiley began looking vaguely around the room.

“So tell me, Mr. Smiley,” Will repeated, “why did you end up writing a policy on Joshua's life? Did you approach Mary Sue, or did she approach you?”

“Like I told Ms. Bender, I really don't remember a lot of the details. I write a lot of policies. Once they go into effect, I don't really spend a lot of my time thinking about what went on before they got written.”

“With all of the policies you write for folks—life, health, auto—I'm sure it's quite a task keeping all of the information straight and organized.”

“You bet. It's a major job indexing and keeping all of your files up-to-date.”

“There is just one file I'm interested in. I'd like you to pull the Mary Sue Fellows life-insurance file for me so I can take a look at it. Would you mind?”

“Hey—here they are!” Smiley exclaimed, walking over to one of the chairs in the anteroom, where his keys were resting.

“Would you mind if I took a look at that file?” Will said with a little more emphasis.

“I would like to help, but I'm going to be late for my Rotary Club meeting. Give me some time to hunt down that file and I'll get back to you.” Then Smiley pulled Will's card out of his pocket and asked, “Is this your number? Should I call you here?”

“Actually, I'm staying here in Delphi. Why don't I give you a call later today?”

“You know—I don't think that's going to work. I won't have enough time to look through my files. Why don't you call me tomorrow afternoon?”

Will studied Bob Smiley carefully and then reluctantly agreed.

They shook hands, and Will headed out of the little house with the big insurance sign out front.

Unfortunately, he was leaving his meeting with the agent with more questions than he had answers. More than that, Smiley's discomfort with the interview scored a magnitude of seven on the Richter scale. Of course, Will knew that few people enjoy being interviewed by a lawyer, particularly regarding a pending court case. And no one enjoys being dragged into litigation involving a former high-school friend accused of child abuse.

But what Will had to figure out was whether there was more than that lying under the surface. He had the distinct sensation that there were some tremors underfoot—and he could only wonder if he was getting close to a major fault line.

20

L
AW PROFESSOR
L
EN
R
EDGROVE
paused a few seconds on the other end of the line. Then he asked his next question.

“What constitutional arguments did you raise in your written brief to the court?”

“The Sixth Amendment—impairment of right to counsel,” Will answered.

“But Will,” Redgrove went on, “I thought you said this was a civil hearing brought by the Department of Social Services to take custody of the child based on alleged abuse? The Sixth Amendment is not implicated in noncriminal proceedings.”

“Exactly,” Will responded. “But there's still an outstanding criminal warrant for her—and criminal child-abuse charges have been filed. If and when they apprehend her—or she turns herself in—those criminal proceedings will kick in to full gear. And I represent her in both the civil child-abuse and the criminal child-abuse cases. So I think the Sixth Amendment does apply.”

“Good point. How about the Fourteenth Amendment—did you raise that also?”

“Absolutely. And in addition to the due-process argument, my position is that if the court forces an attorney—an attorney who has taken an oath to preserve the confidences of his client—to violate that oath and disclose the whereabouts of his client when his client has instructed him not to, that's the same as if the client was ‘compelled' to incriminate herself.”

“Alright. Let's go to the other prong of the Fifth Amendment test. Even if there is ‘compulsion' against a client, how is the disclosure of her whereabouts ‘incriminating' against her? How
does it create a reasonable apprehension that she could be found guilty of a criminal offense?”

“I think we've met that test as well, Len,” Will responded.

He pressed on with his argument. “Suppose the client says to the attorney, ‘Well, here I am, in a grass hut on such-and-such a beach in Puerto Rico.' And she further verifies that she has the child with her in violation of the existing court order that she turn the child over to the Department of Social Services. And the lawyer divulges this to the court. That information sets her up for possible contempt-of-court citation. The court could conclude that she willfully violated the court order—and could impose a jail term upon her for her violation.”

“Was that the ex parte order that you told me about? No notice to you or the parents?”

“Yes,” Will said, “the court entertained that secret hearing without notice, on the grounds that there was an emergency in regard to the child's welfare.”

“Amazing,” Redgrove remarked. “But local judges have a tremendous amount of discretion in determining whether emergency circumstances warrant an ex parte hearing. My experience with that mostly involves injunctions, where one party is alleging there's going to be an imminent disaster to its rights if an immediate injunction is not issued. You know, a typical temporary restraining order for twenty-four hours or so.”

“But Len, here we have Mary Sue Fellows' rights as a
parent.
You can't get more fundamental or more important that that. Her rights are being trampled by a judge based entirely on circumstantial evidence, with no notice to
either
parent. Besides, Social Services had access to the medical records before—why didn't they intervene sooner if it was such an emergency?”

“Look, Will,” Redgrove said, “that's the advocate in you talking. I can respect that. You had the heart and mind of a trial lawyer when you were in my Constitutional Law class all those years ago. But one thing about being a law professor—it's like
being a judge. You have the luxury—if you can call it that—of being more objective.

“Let's assume you have a father who has been beating up a child—or you suspect it. And each time the child goes into the hospital he has more and more bruises. Finally one day the child shows up with an unexplained fracture. And you also have some evidence that the father has threatened, ‘If this kid spills his milk one more time I'm going to take a baseball bat to him and finish him off.' Now, what do you do as a judge? Do you say, ‘Let's wait for more evidence'? Or do you err on the other side—in other words, save the child and worry about legal niceties later?”

“I'm not saying it would have been an easy call,” Will continued, his voice rising in passion. “But what I am saying is this—I find it uncomfortably convenient for the court to have ended up on the side of issuing an order at the request of a local prosecutor based on flimsy circumstantial evidence without notice to the opposing party or her attorney. Doing the right thing in court becomes the most important when doing the right thing is the
hardest
. People need justice the most when the decisions are the toughest—not when they are the easiest.”

“I love to see that fire in your belly for justice,” Redgrove responded warmly. “Our legal system is a fragile thing. In a way it's like a fine instrument that has been properly calibrated so it can be operated adequately only by the hands of a skilled and conscientious artisan. The clumsy, the dishonest, the politically minded, or the tyrannical—once they lay their hands on the levers of justice, they can do a great deal of damage. That's the challenge you have, Will. Firmly but respectfully reminding the judge that the levers of this great machinery don't belong to him personally. They belong to everyone—including Mary Sue Fellows and little Joshua.”

“Thanks, Len,” Will said.

“Now, on a personal note, let me tell you this—you are in one tough spot. I hope you're prepared for the consequences. You know what I'm talking about.”

“I do,” Will affirmed. “I could end up doing jail time on a contempt-of-court citation.”

Both men paused, and then Redgrove spoke up again.

“One thing you and I haven't talked about. One option. You've probably thought about it. Your representation of Mary Sue Fellows—”

Will shot his response back immediately. “I'm not going to withdraw from representing her. I'm not walking away from this. That would do nothing except help preserve my own hide. I'm not throwing Mary Sue and her family to the wolves.”

“No,” Redgrove noted with a little resignation in his voice. “I didn't think you would. What time is your hearing tomorrow?”

“Nine o'clock in the morning.”

“Does Fiona know about all of this?”

“No…she and I have been playing phone tag for a while. She's in Nashville at a recording studio, working on her new CD. We've been missing each other, leaving messages. It's probably just as well. We're still making some adjustments.”

“Will,” Len Redgrove said in closing, “I am honored as usual that you wanted my advice on an issue. I wish I had some snappy, all-purpose answers. Some quick bright-line legal test you could argue. But the fact is, you've got one foot on firm ground and the other in quicksand. The next move you make is going to be critical.”

After Will hung up the phone, he pondered Redgrove's tone of voice. He knew it when he heard it. Real concern. It was the concern not just of an ex–law professor—or even a professional and spiritual mentor—but of a friend who cared deeply for Will.

In law school, Len Redgrove had recognized Will's potential as a trial advocate. He'd worked with him on law review, personally assigning complex issues for his research. He had coached Will on the moot-court team that went to the national finals.

Yet Will often thought back to one class in particular that Redgrove had taught. In his class on jurisprudence, the professor
had laid out the variety of legal philosophies that could serve as a basis for the idea of justice. But he was most eloquent when he discussed the Judeo–Christian roots of law—in the identity of a personal Lawgiver whose combined attributes of mercy and moral perfection created the only credible foundation for a consistent philosophy of law.

Will had kept in touch with Redgrove over the years of his practice. And he'd often spoken to him on a personal level. When Will's wife, Audra, had been murdered, aside from his uncle Bull Chambers—a retired North Carolina judge—Len Redgrove had been the only other person to whom Will had confided the terrible details of that day.

After Audra's death, Will's contact with Redgrove began to wane. But when Will had undergone his recent spiritual awakening, he'd rekindled his relationship with the law professor. Now they would discuss the Bible together, both theological issues and very personal ones as well.