When Jerome left Bartlette County thirteen months earlier he had hoped not to return. That hope was dashed when he was contacted by Jeff Sanger's private investigator and a week later served a subpoena. Now he was back at Saint Berlinda's rectory spending another sleepless night in the tiny guest bedroom.
He was the key witness for the defense in a pretrial hearing and then he would have to stay to testify if there was an actual trial. The investigator who came all the way out to Accomack County to interview him got excited when Jerome told him that he had a written agreement from the government not to pursue the death penalty. When Gil Pinsky, the attorney for Mister Sanger, called Jerome at Saint Margaret Ward two days later he was more guarded, but also very interested. The next thing Jerome knew an Accomack County deputy was handing him a subpoena requiring him to be in Bartlette County. Tomorrow, the defense attorney would call him to the stand to introduce the letter to the Commonwealth Attorney and judge. Once the case was reduced from a capital case to a life in prison case Jerome hoped a plea agreement would be reached so that his involvement in these murders would finally end.
Brad looked over the piece of paper Gil Pinsky had just given him. It was two days before the actual jury trial began and the priest was back in town on the witness stand. The defense subpoenaed Tolton to court a couple weeks back and filed a “Motion to Quash Indictment and Dismiss Case.” It was one of about fifty motions the defense filed in a two week period, the majority of which asked the judge to throw the charge out for one reason or another. Wading through that muck made it harder for Brad to see which of the motions were dangerous. Nevertheless, it eventually became clear that only two of them had any teeth.
Earlier this morning, Judge Isom rejected the “Motion to Recuse or Continue” in which the defense tried to remove Brad from the case or set the case for after Habib took office. The judge ruled that the date of the trial had been set for the first of December well before the election and that election results were not a valid reason to remove a prosecutor from a case prior to the date the office switched hands. The judge even stated that if the case were moved to a date after Brad was no longer the commonwealth attorney he “would most likely have to appoint Mister Dollerby as special prosecutor because of the large amount of preparation already done by him. The Court is not be willing to wait another six months while a new commonwealth attorney tries to get up to speed.”
The current motion was trickier. Father Tolton had negotiated in good faith with a federal prosecutor to get a promise that the death penalty would not be pursued. The federal prosecutor, in bad faith, had made the promise. She knew full well - as did anyone who had gone to law school - that the “separate sovereignties” constitutional doctrine kept a federal prosecutor from being able to bind a state prosecutor. Brad understood why she had done it. The information the priest gave the feds helped break open the drug conspiracy and probably saved lives - most likely even the priest’s. Still, it made the current motion inevitable and he could already see the headlines proclaiming him as the person stabbing the priest in the back - not that it mattered much since he has already lost the election.
He handed the paper back to the defense attorney who gave it to the judge. Then Pinsky returned to the podium and resumed questioning Tolton.
"Now, Jerome, when you entered into the contract I just handed the judge - the contract with the federal prosecutor - what was your intent?"
"To keep the government from killing anyone."
Brad watched the priest's body language. Pinsky calling him by his name, without any honorific clearly bothered Father Tolton and the defense attorney didn’t even notice - or at least he didn’t care. No surprise there. Gil Pinsky had deigned to come down from D.C. with his Yale law degree and he had been an ironclad son of bitch from day one. Brad wasn't sure that lawyer had the capacity to respect anyone - priest, prosecutor, or judge. Not for the first time he wondered if there would be some sort of magical transformation once the jury came into the room. No one could be that clueless and full of himself in front of a jury without getting eaten alive.
Pinsky finished questioning the priest and sat down. He didn’t do any of the usual courtesies like telling the witness to answer the questions of the other attorney or even telling the judge he was done. He just sat down. After about a minute of silence, Judge Isom finally asked if he had any further questions. The defense attorney didn’t look up from the papers he was reading as he waved his hand and allowed that the prosecution could ask any questions it had.
Brad didn’t push Father Tolton too much. Basically, he got the priest to confirm that no one representing the Commonwealth of Virginia had been present when the deal was negotiated or had agreed to its terms. It took all of four questions to get that information and when Brad sat back down the priest look puzzled.
Jerome sat in the front row of the courtroom watching the lawyers argue. The argument was well past the ninety minute mark and not at all congenial. Gil Pinsky was rude, condescending, and very, very smart. He kept citing all sorts of court decisions from all over the country. Each decision presented a different reason that the prosecution could not pursue the death penalty because of the agreement between Jerome and the federal prosecutor. Most of them were based on legal ethics, the rules of evidence, or constitutional law.
In comparison, Brad Dollerby seemed to plod along. His arguments weren’t complex or particularly nuanced and he only referred the judge to five or six previous Supreme Court decisions. Of course, he had no reason to cite any other decisions because the ones he referred to were all bedrock solid. They all stated that under the separate sovereignties rule all fifty states were sovereign unto themselves and the federal government was a separate sovereignty as well. None of them could bind each other in criminal matters and the federal government could not forbid a state from pursuing the death penalty.
When he first heard the argument Jerome had been shocked. As the argument went on, he racked his brain and finally remembered separate sovereignty being discussed in his constitutional law class back at Boston College, but it had been presented as something of an oddity relating to civil rights. Back when the Klan was running amok, local prosecutors were trying white men for killing black men and, with a wink at the jury, getting them acquitted. The federal government stepped in and started prosecuting these murderers for violating the civil rights of the people they killed. Unsurprisingly, the murderers took the position that they had a constitutional right not to be tried twice. However, the federal courts decided that the states and the federal governments were different and separate governments - separate sovereigns - and while any particular government was forbidden from trying the same man twice, each and every separate government could try the man once.
Professor Benfry had lectured for most of an hour about how this made no sense. He pointed out that the Constitution just said a person could not be prosecuted twice for the same offense and there was nothing in it at all which said “unless a state gets a result the federal government disagrees with.” Jerome and his classmates had rolled their collective eyes and waited for the professor to move on to something relevant. The man was a dinosaur who prattled on and on about original intent and textual interpretation; everyone had to take his constitutional law class, but nobody took him seriously. Besides, even if the courts did bend the law it was to allow the federal government to punish murderers whom the state government could not or would not punish. Full of the smug certitude of youth, they knew that getting the right result was a good thing.
Now, Jerome was watching that good thing be turned to an evil purpose.
What a bunch of clowns.
Gil fought to keep from smiling as he walked out of the courthouse. Any judge from a real court would have cut that argument off after fifteen minutes. The judge here was too scared to stop it at all. Gil knew he was going to lose the argument when he walked in this morning, but made sure that he spent as much time as he could pointing out that the prosecutor was exploiting a loophole and mistreating a clergyman in order to try to kill the defendant. By the time the argument ended they had spent well over two hours arguing back and forth. As soon as the prosecutor stopped speaking Gil would spring up and start arguing again - another thing he would never be allowed to do in a real court. They just kept going round and round until the prosecutor finally waved his hand without rising to argue any further.
Judge Isom went back in his chambers for over an hour while the attorneys waited outside. When he came back out he made noises about how well argued the point had been. It wasn’t true. Gil’s argument had been magnificent. The local-yokel prosecutor had barely argued anything more than a couple Supreme Court cases. All the hack did was repeat the same points and quotes over and over again. In any event, after the meaningless niceties, the judge ruled against Gil. Gil then stood and spent another half hour objecting to the ruling and stating his arguments one last time. Between the two arguments, by the time he finally left the courtroom he had been beating on the locals for over five hours.
After he got in his A8 for the drive back to the motel, Gil finally allowed himself to smile. This was just a skirmish. These hillbillies had no idea what he was going to do to them in the actual trial.