The Racketeer (10 page)

He sat next to Victor Westlake, an old friend, and they munched on doughnuts as a senior investigator gave a windy summary of the latest, which wasn’t much at all. McTavey didn’t need to be briefed in person. Since the murder, he’d been talking to Westlake at least twice a day.

“Let’s talk about this Bannister fellow,” McTavey said after half an hour of a dull narrative that was going nowhere. Another report was quickly passed around the table. “This is the latest,” Westlake said. “We started with high school classmates, then moved on to college and law school, and there are no viable suspects. No record of any friends or close acquaintances, of no one, really, who ever crossed paths with Judge Fawcett. No gang members or drug dealers or serious criminals. Next we tracked down as many of his former clients as possible, though this was difficult because we can’t get access to a lot of his old files. Again, no one of interest there. He did the small-town-lawyer gig for about ten years, with two older African-American lawyers, and it was a squeaky-clean operation.”

“Did he do business in Judge Fawcett’s court?” McTavey asked.

“There’s no record of him handling a case there. He didn’t do
much federal work, and besides he was in the Northern District of Virginia. It’s fair to say that Mr. Bannister was not a widely sought-after trial lawyer.”

“So you believe that whoever killed Fawcett is someone Mr. Bannister met in prison, assuming, of course, we believe he knows the truth.”

“Correct. He served the first twenty-two months of his sentence in Louisville, Kentucky, a medium-security facility with two thousand inmates. He had three different cell mates, and he worked in the laundry and the kitchen. He also developed his skills as a jailhouse lawyer and actually helped at least five inmates get out of prison. We have a list of about fifty men he probably knew fairly well, but frankly it’s impossible to know everyone he came into contact with at Louisville. And the same at Frostburg. He’s been there for the past three years and has served time with a thousand men.”

“How long is your list?” McTavey asked.

“We have about 110 names, give or take, but we don’t feel too confident about most of these guys.”

“How many were sentenced by Fawcett?”

“Six.”

“So there’s no clear suspect in Bannister’s prison history?”

“Not yet, but we’re still digging. Bear in mind, this is our second theory, the one that assumes whoever killed the judge was carrying a grudge because of a bad outcome in his court. Our first theory is that it was an old-fashioned murder-robbery.”

“Do you have a third theory?” McTavey asked.

“The jealous ex-husband of the dead secretary,” Westlake replied.

“That’s not credible, right?”

“Right.”

“Do you have a fourth theory?”

“No, not at this time.”

Director McTavey sipped his coffee and said, “This is really
bad coffee.” Two flunkies at the far end of the room bolted to attention and disappeared in search of something better.

“Sorry,” Westlake said. It was widely known that the Director was a serious coffee man and to provide a brew that didn’t measure up was an embarrassment.

“And Bannister’s background again?” he asked.

“Ten years, RICO, got caught up in the Barry Rafko mess a few years back, though he wasn’t a big player. He had handled some land deals for Barry and got himself convicted.”

“So he was not in bed with sixteen-year-old girls?”

“Oh no, that was just our congressmen. Bannister appears to be a good guy, former Marine and all, just picked the wrong client.”

“Well, was he guilty?”

“The jury felt so. As did the judge. You don’t get ten years unless you’ve screwed up somewhere.”

Another cup of coffee was placed in front of the Director, who sniffed it, then finally took a sip as everyone stopped breathing. Then another sip, and everyone exhaled.

“Why do we believe Bannister?” McTavey asked.

Westlake quickly passed the buck. “Hanski.”

Agent Chris Hanski was sitting on go. He cleared his throat and dove in. “Well, I’m not sure we believe Bannister, but he makes a good impression. I’ve interviewed him twice, watched him carefully, and I’ve seen no signs of deception. He’s bright, shrewd, and has nothing to gain by lying to us. After five years in prison, it’s quite possible he bumped into someone who wanted to knock off Judge Fawcett or to rob him.”

“And we really have no idea who this person might be, right?”

Hanski looked at Victor Westlake, who said, “As of today, that’s right. But we’re still digging.”

“I don’t like our chances of discovering the identity of the killer based on who Mr. Bannister may have bumped into in prison,” McTavey said, sounding perfectly logical. “We could be chasing dead ends for the next ten years. What’s the downside
of cutting a deal with Bannister? Look, the guy is a white-collar crook who has already served five years for criminal activity that seems rather harmless in the scheme of things. Don’t you think so, Vic?”

Vic was nodding gravely.

McTavey pressed on: “So the guy gets out of prison. It’s not as though we’re releasing a serial killer or a sexual predator. If the guy is right, then this case is solved and we can go home. If the guy is conning us, what’s the big deal?”

At that moment, no one around the table could envision a big deal.

“Who will object to it?” McTavey asked.

“The U.S. Attorney’s Office is not on board,” Westlake said.

“No surprise there,” McTavey said. “I’m meeting with the Attorney General tomorrow afternoon. I can neutralize the U.S. Attorney. Any other problems?”

Hanski cleared his throat again. “Well, sir, Mr. Bannister insists he will not give us the name until a federal judge signs an order of commutation. I’m not sure how this will work, but the commuting of his sentence will become automatic when the grand jury indicts our mystery guy.”

McTavey brushed him off. “We got lawyers to handle all that. Does Bannister have one?”

“Not that I know of.”

“Does he need one?”

“I’ll be happy to ask him,” Hanski said.

“Let’s get this deal done, okay?” McTavey said impatiently. “There’s a big upside and a small downside. Based on our progress so far, we’re due for a break.”

CHAPTER 10

A
month has passed since the murders of Judge Fawcett and Naomi Clary. Newspaper reports of the investigation have become shorter and less frequent. The FBI had no comment in the beginning, and after a month of frantic work with nothing to show for it, the task force seems to have vanished now. In the past month, an earthquake in Bolivia, a school-yard shooting in Kansas, the overdose of one rap star and the detoxification of another have all conspired to divert our attention to more important matters.

This is all good news for me. The investigation may appear quiet on the surface, but internally the pressure grows. My worst nightmare is a bold headline announcing the arrest of someone, but that appears less and less likely. The days pass, and I wait patiently.

I see clients by appointment only. I meet them at my cubicle in the library. They haul in their legal papers, a stack of assorted pleadings, orders, motions, and rulings that as inmates we have the right to keep in our cells. The COs cannot touch our legal papers.

For most of my clients, two appointments will suffice to convince them that there is nothing to be done with their cases. During the first appointment, we review the basics, and I go through their papers. Then I’ll spend a few hours doing research. During the second appointment, I usually deliver the bad news that they’re out of luck. There’s no loophole to save them.

In five years, I have helped six inmates gain early release from prison. Needless to say, this adds mightily to my reputation as a masterful jailhouse lawyer, but I caution every new client that the odds are stacked heavily against him.

This is what I explain to young Otis Carter, a twenty-three-year-old father of two who’ll spend the next fourteen months here at Frostburg for a crime that should not have been a crime. Otis is a country boy, a Baptist with a deep faith, a happily married electrician who still cannot believe he’s in a federal prison. He and his grandfather were indicted and charged with violating the Civil War Battlefield and Artifact Preservation Act of 1979 (as amended in 1983, 1989, 1997, 2002, 2008, and 2010). His grandfather, aged seventy-four and suffering from emphysema, is in a Federal Medical Center in Tennessee, also serving fourteen months. Because of his medical condition, he will cost the taxpayers about $25,000 a month.

The Carters were hunting for artifacts on their two-hundred-acre farm adjacent to the New Market Battlefield State Historical Park, in the Shenandoah Valley, less than an hour from my hometown of Winchester. The farm has been in the family for over a hundred years, and from the time he could walk, Otis accompanied his grandfather as he “went digging” for Civil War relics and souvenirs. Over the decades, his family assembled an impressive collection of minié balls, cannonballs, canteens, brass buttons, pieces of uniforms, a couple of battle flags, and several dozen guns of all varieties. This they had done legally. It is illegal to remove artifacts and relics from a National Historic Landmark,
which is federal land, and the Carters were well aware of this law. Their private little museum, in a converted hay barn, was stocked with items they had found on their own property.

However, in 2010, the Civil War Battlefield and Artifact Preservation Act was amended again. In response to efforts by preservationists to restrict development near battlefields, some last-minute language was added to a one-hundred-page amendment. It became illegal to dig for relics “within two miles” of the borders of a National Historic Landmark, regardless of whose land one happened to be digging on. The Carters were not informed of the new rules; indeed, the language was buried so deep in the amendment virtually no one knew about it.

Over the years, the federal agents had harassed Otis’s grandfather and accused him of digging on protected land. They periodically stopped by his home and demanded to see his museum. When the law changed, they waited patiently until they caught Otis and his grandfather scouring a wooded area of Carter property with metal detectors. The Carters hired a lawyer who advised them to plead guilty. Criminal intent is no longer required for many federal crimes. Lack of knowledge is no defense.

As the victim of the Racketeer Influenced and Corrupt Organizations Act (RICO), an often misguided and famously flexible federal law, I am keenly interested in the proliferation of the federal criminal code, now at twenty-seven thousand pages and counting. The Constitution names only three federal offenses: treason, piracy, and counterfeiting. Today there are over forty-five hundred federal crimes, and the number continues to grow as Congress gets tougher on crime and federal prosecutors become more creative in finding ways to apply all their new laws.

Otis could possibly attack the constitutionality of the amended law. This would take several years of litigation and would drag on long after he’s paroled and back home with his family. As I explain this to him during our second meeting, he seems to lose
interest. If he can’t get out right now, why bother? But the case intrigues me. We decide to discuss it later.

If my grand scheme falls flat, I might take Otis’s case and fight all the way to the Supreme Court. That will keep me busy for the next five years.

The Supreme Court has twice refused to consider my case. Though we couldn’t prove it, there was a strong feeling that my appeals were hurried through the system because of the government’s enthusiasm in putting away Barry Rafko and his confederates, me included.

I was convicted in November 2005 and sentenced two months later to ten years. At my sentencing I was “remanded,” which meant I was taken into custody. A few lucky federal felons are allowed to “self-surrender,” or remain free until ordered to report to a facility. They have time to prepare, but most are not given this luxury.

My lawyer thought I would get five or six years. Barry the Backhander, the star defendant, the target, the colorful villain everyone enjoyed hating, got twelve years. Surely I deserved less than half the time of that slimeball. Dionne, my beautiful and loving and fiercely supportive wife, was in the courtroom, sitting bravely next to my humiliated father. I was the only one of the eight sentenced that day, and as I stood before Judge Slater, with my lawyer to my right, I had trouble breathing. This cannot be happening, I said to myself, over and over, as I took in the blurred images around me. I don’t deserve this. I can explain. I am not guilty. Slater scolded and preached and played for the press, and I felt like a battered heavyweight in the fifteenth round, sagging on the ropes, covering my face, waiting for the next shot to the face. My knees were putty. I was sweating.