The Mourning Sexton (12 page)

“First things first,” Rosenbloom said. “You have to find the computer. She's been gone for more than three years. That means her computer has long since been reassigned to someone else in the courthouse.”

“Most likely to the next law clerk to occupy her office,” Hirsch said.

“Even so,” Dulcie said, “you'll need to get access to it to find out what's on the hard drive.”

“How are you going to do that?” Rosenbloom asked.

“Russ Jefferson,” Hirsch said.

Rosenbloom said, “You really think Jefferson is going to stick his neck out like that for you? That guy is strictly by the book.”

“He might,” Hirsch said. “We used to work together.”

“That was a long time ago.”

Hirsch shrugged. “It's worth a shot.”

CHAPTER 17

W
hen he'd arrived, he paused to stare at the legend over the entrance:

OFFICE OF THE UNITED STATES ATTORNEY
EASTERN DISTRICT OF MISSOURI

RUSSELL T. JEFFERSON
UNITED STATES ATTORNEY

United States Attorney.

To call it ironic didn't capture the embarrassment and the remorse. Of course, Russ Jefferson was hardly the first person to trigger that brew of emotions, a recurrent feature of his postincarceration life.

And now, as he sat in Russ Jefferson's large office and watched his former colleague page through the documents he'd given him, he couldn't help think how improbable this meeting would have seemed to both of them back in their days together as assistant U.S. attorneys. They'd joined the same day in June twenty-six years ago. There'd been four rookie AUSAs that year—Hirsch, Jefferson, Gloria Dowd, and the big ex-jock from Mizzou named Brendan McCormick.

Although none of them had much in common, the contrast between Hirsch and Jefferson had been the most striking. Hirsch the hotshot Harvard grad, Jefferson the unassuming black man who'd gone to night law school at St. Louis University while working days as a claims adjuster for an auto insurer. One smooth and assured, the other awkward; one quick, the other a plodder; one treating the job as a mere stepping-stone, the other as a calling; one taking every opportunity to schmooze his superiors for high-profile cases, the other working late hours on the dregs of the office's criminal docket.

Back then, Hirsch thought of Jefferson, if he thought of him at all, as a drudge. During the years they worked together in that office, he spoke to Jefferson no more than a dozen times, and rarely longer than a stop at the water-cooler or a ride in the elevator. They had lunch maybe once. It wasn't that he snubbed the black attorney. It was just that Jefferson wasn't relevant to Hirsch's ambitions.

Russell Jefferson's contemporaries left the U.S. Attorney's Office one by one for lucrative jobs in the private sector or prestigious jobs in government. Hirsch left for a prosecutor gig in the Justice Department's elite antitrust division in Washington, D.C. McCormick left to become county prosecutor. Gloria Dowd left to join the litigation department of Chicago's Kirkland & Ellis. But Jefferson continued to plug away. Gradually, he came to be recognized—first by the other AUSAs, eventually by each succeeding U.S. attorney—as
the
indispensable member of the staff. Three years ago, the new president opted for merit over politics and appointed Jefferson to the top job.

And thus, as the farce of Hirsch's life continued unfurling, the man he'd once considered irrelevant was now his best hope. And despite their nonrelationship in the past, and despite whatever snubs Jefferson may have felt from him, Hirsch knew that Jefferson would give him a fair shake. He was, as Hirsch's grandfather would have said, a real
mensch
.

Jefferson shook his head. “I have to tell you, David, you have not given this office much to go on.”

“I'm not asking for a search warrant, Russ. You don't need probable cause to find out who has her computer.”

“But you want access to that computer as well.”

“Not to any current files. I'm just looking for data on the hard drive that goes back to when she was alive. You could probably have one of your computer guys download that stuff in an hour. Nothing current. Nothing created by anyone else. Just her stuff.”

“On what grounds, David? On the basis of a conversation with a retired pathologist who raised a question about the medical examiner's determination of cause of death? I am supposed to seek authority for a search and seizure on that ground?”

“Not a search and seizure. Forget that aspect. Forget the entire criminal element. Pretend I never mentioned it. Let's assume that this is just an ordinary wrongful death case. And who knows? Maybe that's all it will turn out to be. I still need to give the jury a sense of Judith Shifrin in her final days, if for no other reason than to let them know what she was like. I can't do that by myself. I didn't know her, and what little her father may have known is fading fast. But she happened to be someone who used her computer to keep in touch with friends and loved ones. Access to those files might just give me access to the Judith I need to show the jury.”

Jefferson tugged at the edge of his thin mustache as he listened. Except for the bald spot on top and the deep lines in his face, he looked the same as he had back in their AUSA days together, right down to his outfit. Jefferson was the antithesis of funky and cool. Hirsch had never seen him in jeans or even khakis. He'd always projected the look of the hardworking, sober African-American prosecutor: close-cropped hair, no sideburns, pencil-thin mustache, starched white shirt, thin tie, dark suit, shiny black wingtips.

Jefferson drummed the fingers of his right hand on the top of his desk as he studied Hirsch.

“This is highly irregular, David.”

“But legal.”

“Perhaps.”

Hirsch smiled. “Does that mean you'll do it?”

“It means that I shall take this one small step at a time. I shall speak with the court administrator. His office should have a record of the whereabouts of the computer in question. Once I obtain that information, I will consider allowing a review of the files contained therein. The older files, that is. Nothing since the time of the young lady's passing.”

“I really appreciate that, Russ. And if I happen to find anything of interest to your office in those files, I will—”

“No.” Jefferson held up his hand. “There can be no quid pro quo here, David. You are an officer of the court. If there are materials in those files of a potentially incriminating nature, I shall assume that you will fulfill your professional responsibilities in connection therewith.”

“Your assumption is correct.”

Jefferson nodded. “Then I shall be in touch once we locate the computer.”

Hirsch stood and extended his hand. “Thank you, Russ.”

Jefferson stood and shook his hand. “Miss Shifrin was a fine young lady, David. Diligent and hardworking. Respectful of the office and of her role therein. Although I only had a few occasions to deal with her, I was impressed. I had even mentioned to her that she should consider our office after the conclusion of her clerkship. If anything untoward occurred, well . . .” He paused. “But first things first. Good to see you, David.”

CHAPTER 18

T
wo sentences into the argument, Jack Bellows had revved himself up to Full Smug Mode—face flushed, bushy eyebrows arched, almost sneering as he presented his position to Judge Kalnitz, who was rubbing his goatee while he listened to the argument.

“Your Honor,” Bellows said, shaking his head in disgust, “Mr. Hirsch's motion is merely another example of his utter disrespect for the rule of law. Even if we assume that this database Mr. Hirsch so ardently seeks is somehow relevant to this lawsuit, which it surely is not, the court that is in charge of that database has entered a protective order stating that no one else can have access to it. My client, the Ford Motor Company, is a party to that case and is bound by the terms of that order. We understand the rule of law, Your Honor, and we respect the rule of law. If Mr. Hirsch did as well, he wouldn't dare attempt this end run around that court's jurisdiction. Instead, he'd go up there and try to present his meritless motion to the court in charge of that database. Instead, he's trying to sneak those documents out through the back door.”

“That's the Enlow case?” Judge Kalnitz asked, looking through the file.

“Correct, Your Honor,” Bellows answered. “That was a class action against my client and General Motors in Springfield, Massachusetts. I have a copy of the protective order entered in that case right here.”

Bellows handed the judge a copy of the four-page order and glanced toward Hirsch with a smirk.

They were in court this morning on Hirsch's motion to compel Bellows's client to produce an elaborate computer file of information compiled by the plaintiff's expert witness in the
Enlow
class action. He'd learned of the file through one of the Web sites maintained by plaintiffs' personal injury lawyers specializing in SUV crash cases. Indeed, he'd learned far more about the
Enlow
case and the protective order than Bellows apparently suspected.

Standing at the podium with Hirsch and Bellows were Beth Purcell, one of the attorneys for OLM, Inc., the air bag manufacturer, and Marvin Guttner. The four of them waited for Judge Kalnitz to finish reading through the protective order.

Hirsch had been surprised to see Guttner. He rarely appeared in court, preferring, as he told Hirsch at their private lunch, to have his minions handle the “procedural minutiae” of his cases. This motion to compel would seem to qualify as procedural minutia. It was just one of the scores of motions in various cases set for hearing that morning as part of the motion docket in Division One.

There were close to a hundred lawyers scattered throughout the large courtroom. Some were reading newspapers or reviewing court papers or chatting quietly as they waited for the clerk to call their motions. The low hum of voices had ceased during Bellows's bombastic presentation. Many in the crowd were watching now, mildly interested in the proceeding.

“Counsel,” Judge Kalnitz said to Hirsch, peering over his reading glasses, “this order seems fairly clear to me. It says the contents of that database are strictly confidential and can be disclosed to no one other than the attorneys in that case. It further states that all motions to modify that order must be brought before that court.” He looked at Bellows. “Is that accurate?”

“One hundred and ten percent.” Bellows grinned and ran his fingers through his shock of reddish-gray hair.

Kalnitz looked back at Hirsch. “Well, Counsel?”

“Your Honor,” Hirsch said, “I believe Mr. Bellows stated that his client intends to abide by the orders of the
Enlow
court.” He turned to Bellows. “Is that accurate?”

Bellows frowned slightly. “Certainly.”

“One hundred and ten percent, right?” Hirsch asked him.

There were a few chuckles from the gallery.

Bellows stiffened. “I informed His Honor that my client was a party to the
Enlow
case and was bound by orders entered in that case.”

Hirsch turned to the judge. “The protective order that Mr. Bellows provided the Court was entered in that case two years ago. On April third, I believe.”

He waited for the judge to flip to the back page to confirm the date. “Yes. April third.”

“As the Court knows, the database compiled in that lawsuit contains a variety of information on more than two hundred traffic accidents involving sport-utility vehicles on icy roads. This is also an accident case involving a sport-utility vehicle on an icy road. There's no question that the information is relevant. The only issue is whether we can have access to it. What Mr. Bellows has failed to disclose to this court is that courts in at least fifteen other cases around the country involving SUV accidents on icy roads have already faced the issue before the court today. The plaintiffs in the first three of those fifteen cases filed their motions with the
Enlow
court in Massachusetts asking for access to the database. The
Enlow
court granted all three of those motions and allowed those plaintiffs access to the database. I've obtained certified copies of those three court orders.”

He handed the originals to the judge and copies to Bellows and the other lawyers.

“This simply proves my point, Judge,” Bellows announced, waving his copies of the orders. “If Mr. Hirsch thinks he's entitled to this database, let him hop on a plane and make his pitch to the judge in Massachusetts who entered the order sealing that evidence.”

Hirsch said, “That is precisely what the fourth plaintiff did, Your Honor.” He turned to Bellows. “Would you care to tell the Court what happened that time?”

Bellows's eyes narrowed. “I'm not an attorney in that case,” he snapped.

“But your client is a party in that case.”

Hirsch turned back to the judge. “The
Enlow
judge did more than simply grant that fourth motion, Your Honor. He entered an order modifying his protective order—the one that Mr. Bellows handed you earlier. Curiously, Mr. Bellows decided not to provide you with a copy of the second order, or even tell you about it. Fortunately, I have a certified copy of it here. As you will see, it specifically refers to the protective order that Mr. Bellows handed to you.”

He handed the judge the two-page order and passed out copies to the other attorneys.

“In this order,” he continued, “the judge in the
Enlow
case specifically empowered
every other judge
in the country to allow parties in accident cases before them to have access to that database so long as those parties are bound by the same confidentiality terms of the protective order in the
Enlow
case.”

He waited until the judge finished reading and looked up.

“Therefore,” he said, “I don't need to hop on a plane to Massachusetts, and I don't need to present this motion to the
Enlow
court. Instead, I can present that motion to this Court, just as each of the other eleven plaintiffs in similar SUV accident cases have presented their motions to compel to their courts. I have copies of all of those orders granting those motions to compel if this Court would like to see them. As the
Enlow
court stated in its order modifying the protective order, and I quote, ‘There is no reason to prevent victims of similar accidents from having access to this database so long as they agree to abide by the confidentiality restrictions.' Your Honor, I can assure the Court that we agree to abide by those restrictions. Surely, Mr. Bellows has no problem with that. As he told this Court in no uncertain terms, his client intends to abide by the orders of the
Enlow
court.” He turned to Bellows. “I assume that is still one hundred-and-ten-percent accurate?”

A few more chuckles from the gallery. Bellows glared back at him.

“I've heard quite enough, gentlemen,” Judge Kalnitz said. He peered over his reading glasses at Bellows for a long moment and then shook his head.

“Motion granted. Mr. Hirsch, prepare an order for me to sign.” He turned to his clerk. “Call the next case.”

The reason for Guttner's presence became clear when the four of them stepped into the hallway outside Division One. Normally, they would have dispersed, the defendants' counsel talking among themselves as the lone plaintiff's counsel headed for the bank of elevators. Instead, Guttner turned to him with a smile as the other two lingered in the background, watching.

“David,” Guttner said, “I thought perhaps that the four of us could talk for a moment.”

“About what?”

“There is an empty jury room across the hall,” Guttner said. “Why don't we step in there and I can explain?”

The jury room seemed even older than the rest of the 1930s-era Civil Courts Building. The ceiling tiles were splotched with brown water stains, the long wood table was gouged and scarred and spotted black with cigarette burns, and the high-backed wooden chairs were rickety and uncomfortable. The wind rattled the tall window, which had a transom operated by a brass crank handle.

Guttner took the seat at the head of the table, his bulk making the chair creak ominously. He gestured to Hirsch to take the seat next to him. Beth Purcell, a prim woman in her thirties who dressed as if she were in her fifties, sat on the other side of the table two chairs from the head, apparently in deference to Jack Bellows. Bellows, though, stood by the far window and glared down at the park across the street.

“David,” Guttner began, “I am reminded of that wonderful aphorism attributed to Yogi Berra, who purportedly said that when you come to a fork in the road, you should take it. Well, sir, we have come to that fork. Two paths diverge before us, and each leads to a very different form of closure—one in a final judgment, the other in a settlement. Your motion today signals the start of discovery. If we take that fork, we will soon be generating substantial legal fees, and you, David, will soon be devoting large portions of your days and nights and resources to a case for which you may never be compensated. That is the discovery path. It will lead inexorably, and expensively, to final judgment. The other path leads to settlement. It is a much shorter journey, and a far different form of closure. That's the fork we've come to, David, and Mr. Berra advises that we take it.”

Bellows had turned to watch Guttner. The expression on his face suggested that he was unimpressed with his co-counsel's presentation.

“As you will recall, David,” Guttner continued, “just a little over a month ago we spoke in general terms of the possibility of an amicable resolution of your lawsuit. As I told you then, I believe that an attorney owes a duty to his client to explore settlement issues in earnest at an early point in the lawsuit. I hope by now that you have had an opportunity to raise the issue with your client. I have with mine, and I know that Ms. Purcell and Mr. Bellows have with theirs.”

Guttner paused.

Hirsch said nothing.

Guttner said, “My client is willing to consider a settlement upon reasonable terms. Ms. Purcell and Mr. Bellows advise that their respective clients are also open to discussion of an equitable resolution of the matter.” Guttner raised his eyebrows and smiled at Hirsch. “How does Mr. Shifrin view the possibility of settlement?”

“Guardedly,” Hirsch said.

“Why is that?” Guttner asked.

Hirsch allowed his gaze to shift to Purcell and then to Bellows, who stood by the window with his arms crossed over his chest.

Turning back to Guttner, Hirsch said, “My client dislikes lawyers, and he dislikes lawsuits. It took him almost three years to file this lawsuit. He filed it because he is haunted by his daughter's death. He filed it because he wants justice and believes he can find it in a courtroom. You may think him naive to seek justice there. You may think he's old enough to know better.” Hirsch shrugged. “But you're not him, and you're not haunted by the death of your daughter, and you're not the one determined to seek justice.”

They were silent. The only sound was the syncopated clang of the steam radiator.

Hirsch waited. He wasn't going to make it easy for them.

“But what about settlement, David?” Guttner finally said. “What does your client want?”

“He wants justice. He's afraid he won't get it in a settlement.”

Bellows snorted. “Cut the crap, David. Your guy may try to delude himself into believing he's filed an action for justice, but have him read his court papers. All he's filed is a civil lawsuit for money. I think it's a bullshit claim, and so does my client. I think you're going to lose, but I didn't call this meeting. Peterson Tire wants to talk settlement, so let's cut the crap here. How much money does he want?”

“I just told you, Jack. He wants justice.”

“Good for him. And I want a blow job from Julia Roberts, but how 'bout we talk some reality here?”

Beth Purcell flinched.

“Please, Jack,” Guttner said, holding up his hand and shaking his head in reproach.

He turned to Hirsch. “David, we are not engines of justice here. We are merely corporate defendants. All we can offer your client by way of settlement is money.”

“You can also give him an admission of liability,” Hirsch said.

Bellows burst into laughter. “Are you out of your fucking mind?”