The Touch of Treason (11 page)

There was a sharp knock on the door. “Sorry, folks,” the court sergeant said, “the judge is ready.”

“We’ll be out in a second,” Thomassy said. When the door closed again, he said, “Porter, your job in there is to look respectable, serious, and responsible to somebody who doesn’t associate that with the blue jeans you’re wearing. At least let your face look like you’re applying to get into Amherst.”

“I taught at Amherst for a year.”

“Terrific. But remember, in there it’s only appearance. The rest is
street fighting. That’s my job. Don’t fuck it up just because you have a brain.”

*

In arraignments like this Thomassy had two choices. He could do what other lawyers did, listen to the affidavit of complaint, plead for low bail for his client because he had strong roots in the community, watch him getting fingerprinted and mugged, and wait for a preliminary hearing to rip into Cooper’s belly. Or he could try what he thought of as his short-order-cook routine. When he saw the Washington people in the courtroom, he remembered what Widmer had said. This isn’t a two-ounce marijuana case. He decided on the fast route.

Just before things started Widmer got close enough to whisper to Thomassy, “When it comes to making bail, I’ll be pleased to guarantee it if it’s necessary.”

Thomassy patted Widmer on the shoulder, a patient acknowledgment of ignorance. “A lawyer can’t make bail in New York State, Ned, have you forgotten?”

Widmer’s blush showed. “I thought, that is, I thought Priscilla might supply the funds.”

“Sure,” Thomassy said. He had to keep remembering that, one, Widmer was well-meaning, and, two, that he was Francine’s father.

The judge looked down at Porter. “Do you have your lawyer here?”

Porter nodded and pointed at Thomassy.

“Use your vocal cords,” the judge said. “The court reporter can’t hear nods.” The judge glanced at the papers before him, “You’ve been charged with possession of two ounces of marijuana.” He said it as if possession of two ounces of a controlled substance was getting to be like groceries.

“Your Honor,” Thomassy said, “is that Detective Cooper’s affidavit?”

“It is.”

“Since Detective Cooper is present I’d like to move for an immediate preliminary hearing to determine if there is probable cause.”

That woke the judge up. It was a good way to get rid of cases, but most defense lawyers weren’t prepared to do anything but try to keep their client’s bail low and get it posted. “Are you prepared?” he asked Thomassy.

Like a boy scout with a condom in his pocket.
“Yes, Your Honor,” he said.

The judge turned to Cooper. “Will the arresting officer please take the stand and be sworn.”

Cooper was surprised. He didn’t expect to have to do anything.

Thomassy noticed that when Cooper placed his right hand on the court clerk’s Bible, he closed his eyes while saying “I will.” Maybe the closed-eye routine was Cooper’s private absolution before the fact.

“Your Honor,” Thomassy interrupted, “I wonder if the witness might be requested to repeat his affirmation of the oath with his eyes open.”

The judge said, “If your concern, counselor, is for the dignity of the court—”

“That, too, Your Honor, but my greatest concern is that you and I both have to judge the reliability of the witness’s responses by his demeanor on the stand, or his testimony may have no greater value than his affidavit. I need to see a man’s eyes when he is answering questions or taking an oath.”

The judge made the clerk and Detective Cooper do it all over again. Randall and Perry, sitting way back in the small room, were amused.

Cooper was not. It showed in his voice as he answered the police sergeant’s questions and described the events that led to the charge. When he was through, the judge nodded to Thomassy. “Does counsel wish to cross-examine?”

“Counsel wishes,” Thomassy said, unraveling his body from the chair. “Your Honor, this issue here is not just probable cause. Two ounces of marijuana found in my home or your home, I mean anybody’s home of course, raises the question as to whom did the proscribed substance belong, and how did it get there. Did it belong to you or me or to a guest of ours or a previous guest who’d left it are all questions of fact. And whether the marijuana got there by means of the host, or the guest, or a previous guest or were introduced, as is unfortunately sometimes true, by a police officer, these are all—”

“Counselor,” the judge interrupted, “the police officer is waiting for your cross-examination.”

“Of course.” Thomassy walked toward the stand until his face was less than two feet from Cooper’s. Cooper was trying to control the fire Thomassy had lit in his chest.

“Mr. Cooper,” Thomassy said, “did you have a search warrant when you entered the residence of Professor and Mrs. Fuller?”

“I didn’t come to the Fuller place to—”

“Your Honor, Mr. Cooper is an experienced witness. Perhaps he could be reminded that his role here is to answer questions yes or no. He can elaborate on his answer, but we have to have the answer before the elaboration.”

The judge nodded.

“Will the court reporter please repeat the question.”

Cooper said, “No, I didn’t have a warrant.”

Thomassy said, “Do you know whether the defendant lived in the Fuller house?”

“I was told he stayed overnight.”

“Mr. Cooper,” Thomassy said, “that’s hearsay, which may be admissible in federal court but has no place here. I asked you whether you knew whether the defendant lived in the Fuller house. Is the answer no?”

“Yes.”

“Your yes means that your answer is no, is that correct?”

There was a titter in the room.

“Mr. Cooper, as an experienced police officer, do you know whether the defendant, whether he was a guest in the house or a resident in the house, had a reasonable expectation of privacy when he decided to stay the night?”

“Yes.”

“Did you in fact deny him his reasonable expectation of privacy by going into his room twice without invitation by him in order to interrogate him about various matters?”

“Yes. I believe—”

“Mr. Cooper, the court is interested in your answers, not in your beliefs. Your Honor, I’d like to save time by stipulating that Mr. Cooper as a detective investigating a serious matter had a right to interrogate possible witnesses. Now Mr. Cooper, may I ask if your interrogation of the defendant involved asking him numerous questions?”

“It did.”

“Did it also involve opening closet doors, dresser drawers, and a night-table drawer in which you found a user’s quantity of marijuana?”

“I saw it.”

“You are not answering my question again, Mr. Cooper. Are you familiar with the plain-sight doctrine?”

“Yes, sir.”

“And was the marijuana in plain sight before you opened the drawer?”

Cooper was silent.

“Mr. Cooper,” Thomassy said, “I could interpret your silence in one of three ways. Two of them would not be a credit to your profession or responsive to the oath you took. Was the marijuana in plain sight?”

“It was in the drawer.”

“Did you order Mr. Porter to open the drawer?”

“I did and he refused.”

“Did you then open the drawer?”

“Of course I didn’t. I insisted he open it.”

“Your Honor,” Thomassy said, “It doesn’t matter who opened the drawer. I would like to suggest that when a police officer asks a citizen to do something, that the citizen takes that as an order, not knowing the law, and that in the absence of a search warrant, and in reliance on a guest of a reasonable expectation of privacy, and the plain-sight doctrine, that the investigating officer, investigating an entirely unrelated matter, was clearly in violation of the defendant’s constitutional rights as much as if he had searched his pockets without reason, and unless every single person in this room—” Thomassy turned to take in the spectators as well as the police sergeant and the judge—“is ready to turn his pockets inside out at this moment or at any moment on demand by a police officer without the right to do so, then we have a clear instance of one choice and one choice only. Your Honor, we either throw out statutory and constitutional protections afforded all citizens or we find no probable cause and throw out this unmeritorious case and discharge the accused.”

*

Ed Porter was fulsome in his gratitude. “I don’t want your gratitude,” Thomassy said. “I want your address so I can send you a bill for my time.”

*

It was almost midnight when Thomassy got home. He found Francine scrunched up on the window seat in the living room reading.

“Wouldn’t you find a chair more comfortable?”

“I’d go to sleep in a chair. I wanted to finish this. That’s not true. I was waiting up for you.”

He kissed her lightly, lips on lips, a touch of sweetness, someone else’s warmth.
Domesticity
was the word that hovered in Thomassy’s head.

“It went well,” he said.

“I know. Dad called.”

“I thought you don’t like to answer the phone in my place.”

“I thought it might be you. It doesn’t matter, does it?”

“Not anymore.”

“He said, among other things, that what one needed in life besides a passion for one’s work, was a good doctor, a good lawyer, and a good man. In my case he said he thought that perhaps all I still needed was a good doctor.”

“He’s condoning us.”

“Slightly.”

They slid, eventually, into their respective sides of the large bed in the hope of sleep. Francine was about to turn off her bedside lamp when Thomassy said, “Do you own a copy of Fuller’s book? The famous one, whatever it’s called?”

“Sure.”

“I’d like to borrow it.”

“To prop up something?”

He pinched her nose closed till she gasped for air, her mouth wide open.

“Aren’t you,” she said, “a bit advanced in years to beg a political education?”

He ignored her crack. “I’d like to know everything you know about his work.”

“Did you ever defend a cocaine dealer?”

“Sure.”

“Did you study up on the pharmacology of cocaine?”

“This is different. I have a feeling that everything that happens to us—taxes, wars in the Middle East or Latin America, line-ups for gas, nuke fear, all of it—oozes out of the basic confrontation. Them and us. I know something about us. Fuller knew about them.”

“Right.”

“The government wanted Fuller’s manuscript the way my broker would like to have Big Board numbers for December thirty-first.” He glanced at her face. Why did she look so happy? “Get me some stuff to read,” he said brusquely.

She hadn’t expected the wave of satisfaction from thinking about the photocopies she could make from journals and other people’s books. Once upon a time people had farms, divided up the chores, helped each other.

Thomassy’s voice interrupted her thought. “How long has your father been connected to the government?”

“I didn’t know he was connected. He’s been a partner in that law firm for thirty years, and he was an associate there straight out of law school.”

“I didn’t mean he was on the government payroll or anything. Just a connection.”

“Some of his school friends ended up in government.”

“Intelligence?”

“I don’t know,” she said.

“Maybe,” he said, turning out his bedside lamp, “we’ve both got an education coming.”

CHAPTER EIGHT

Before visiting the Fullers at home for the first time, Ed had wondered about what kind of woman Leona Fuller would turn out to be. She had to be smart—Fuller was so quickly bored by anyone of either sex whose mind didn’t bubble like a percolator. What Ed hadn’t expected was her directness. She said, “Martin has told me about your talent. Why don’t
you
tell me about your anger?”

How could he deal with a question like that? His anger got worse whenever he went home for a visit so he stopped going home. It wasn’t like a suitcase. He couldn’t leave it in a locker or get another. It went around with him like a boil ready to burst.

“You don’t have to answer me,” Leona Fuller said. “Perhaps some other time.”

Ed could see that her question was meant solicitously, but he knew that if she had had a son of her own she wouldn’t ask recent acquaintances questions like that.

Ed had to say something. “Inequities,” he said. “Inequities make me angry.”

“Well,” she said, “be prepared for a lifetime of anger. Inequities abound because God is smarter than we are. He demands variety of His creations. And from variety, inequity.”

Ed was accustomed to women being like his mother, shutting up even if they were smart. Leona Fuller was a new experience.

“What I just said,” she went on, “aroused a touch of anger in you.”

He hated that it showed. He valued control.