The Associate Page 2

  But medical malpractice cases were a different beast. You had to get actuaries and economists and a team of doctors to testify. I tried to stay away from the doctors who were the usual suspects in these cases – the hired guns that have built a cottage industry out of testifying for every medical malpractice case that comes along. They were way too easy for the other side to pick off and show the jury how biased they are. That meant that I had to find other doctors to testify, doctors who aren’t hired guns for anyone and everyone with a medical malpractice case. These doctors typically charged even more than the hired guns, because they were going out of their way to give testimony.

  “Okay,” I said. “I won’t talk you out of your wrongful death case. If you believe in it, then, by all means, pursue it. I hope you know what you’re doing on it, though. I’ll help you as much as I can, but medical malpractice cases aren’t really my forte. I guess what I’m saying is that you killed this, you can eat it. I don’t really want to get too much involved.”

  He raised an eyebrow. “Your loss,” he said.

  “In the meantime,” I said, “you’re going to have to have actual income. Contingency cases like medical malpractice won’t pay off at least until you settle or it goes to trial, and if it goes to trial, it’s going to be nothing but a money sink for up to a year. The attorneys for the hospital are going to bury you with discovery requests, they’re going to be asking for you to pay their attorney’s fees if they win, and they’re going to do everything they can think of to make you quit this case. The only exception to that rule is if, somehow, someway, you find something that makes this case stand out. You find something that makes it likely that a jury will hand the hospital its ass in trial. Then you can settle. But if this case is at all marginal, and the hospital knows it, then good luck.”

  “Giving the kid a drug that he was allergic to – that’s not good enough to make them settle?”

  “No. Not if the kid was probably going to die anyway. I admit that it helps that he was so bright and that he had been accepted to Harvard and MIT. That he had ambitions to work for NASA. That does show his earning potential. But we have to get around the fact that he wasn’t in remission for his leukemia and that he was likely to die before he ever got the chance to fulfill his potential. You find a way around that, and we have a chance. But, from the facts, this case seems marginal enough that the hospital is going to turn the big guns on you to make you quit. It’s not like you have one of the big medical malpractice names in the city.” There were some attorneys in the city who tried lots of personal injury and medical malpractice cases, and they won more cases than they lost. If Damien had a name like Cullan and Cullan, who were licensed physicians and medical malpractice attorneys, or Fowler and Pickett, a large firm that tried lots of these cases, the hospital would probably back down. But Damien Harrington was a nobody. He just happened to get the case because he was in the waiting room with Austin’s mother.

  Damien shrugged. “Okay. Well, then I guess if you’re not in on this case, you’re not in. I’m going to need a partner to help me out, though. I’ll see if I can’t find an attorney in town who would be interested in trying this case with me.” He looked disappointed, and I felt guilty.

  “I’ll think about it,” I said. “Get some more discovery done on this case, find out what the weak spots are going to be, and I’ll think about getting in on this case with you. But I can’t help but think that the two of us on this case will be blind leading the blind. I have very little experience with medical malpractice, and you’ve been working with the Public Defender’s Office since you got out of school. You have trial work, but it’s all been criminal trial work. You have a steep learning curve on this case, and the hospital attorneys are going to eat you alive if they know that you’re a newbie.”

  “Think about it,” Damien said. “That’s all I can really ask. In the meantime, what do we know about Erik Gregorian’s case?”

  “I looked at the file that the prosecutor gave me. According to the Statement of Information, Erik knew Shelly McMason personally. Shelly had successfully infiltrated Erik’s organization. She had essentially become one of them. She was working as an undercover journalist for the Kansas City Star, and she was getting ready to publish a five-part story on Erik’s organization and the practice of white slavery in the Kansas City area. Shelly died in a car accident, but it turned out that her brake lines were cut. Erik definitely had motive to kill Shelly. He also had the means and the opportunity, as he was friendly with her and he often rode with her in her car several different times. Obviously, the best way to try this case would be a SODDI defense – show that somebody else could have killed her. Somebody else would have had motive to kill her. I’m going to have to find out who that somebody else might be.”

  “I don’t get it,” Damien said. “Why does the prosecutor’s office have such a hard-on for Erik? Yeah, he was the head of the organization that Shelly was going to report on. But that doesn’t mean that he killed her.”

  “Well, it doesn’t exactly look good, either. Even if he got one of his men to cut her brake line, it still means that Erik himself is going to get busted as a conspirator or as the instigator. As the leader of the local Armenian Power controlling the East Side of Kansas City, any kind of violent end met by somebody in the Power is going to implicate Erik. That’s the problem that we’re going to have with this case. We have to somehow show the jury that the person who killed Shelly was somebody who wasn’t involved in the Armenian Power at all. That’s going to be tricky.”

  “Tricky but not impossible,” Damien said. “We’ll just get Tom Garrett to do a thorough background investigation on Shelly, including all the other people who she was in the process of investigating, and show that it could be any number of people who might have wanted her dead. If she was an undercover journalist, it stands to reason that she probably pissed off a lot of people along the way. Seriously, we have a way to throw the jury off. Even if Erik did it. Which he probably did.”

  “I know. That’s the problem. I think that he did it, too. I think that Erik is good for this case, all day long. I hate that I have to get stuck with trying it. I really hate the fact that if I can’t win this case, I could very well be in danger. So will be my girls. This Sargis guy has way too much power. I wish that I had never met him.”

  “That’s what happens when you get tied up with these mafia types. You just won’t be able to quit them. He’s going to intimidate you for the rest of your career if you let him. So don’t let him. Hire a bodyguard and stand up to him. Show him that you can’t be pushed around.”

  I sighed. “Easier said than done.”

  Indeed.

  Chapter 2

  Damien

  I was grateful for the chance to join Harper’s firm. After the fucked-up life I had before I went to college and to law school, I pretty much have woken up every day grateful. Not that any of what happened to me was my fault. Well, that’s not exactly true – it was my fault and it wasn’t. It wasn’t my fault that I was born into a wretched situation – my mom never actually knew my dad. I think that he was one her johns. Why she wasn’t using birth control during her street-walker days, I’ll never know. Or maybe she was, but it didn’t take. Whatever. All that I know was that my mom was a prostitute, and then she had me, and I didn’t exactly fit into her plans. To say the least. She couldn’t work the streets anymore, because she had a squalling infant in her trailer home, so she got on welfare and depended upon a variety of men to support us.

  One of those men, Steven Harrington, actually stuck around for long enough that my mother gave me his last name. She married him and he adopted me. But he was a bastard. An abusive bastard. He beat on my mother and me on the regular, and it got so bad that I ended up running away. I ended up in a home for wayward boys, just like my idol, Steve McQueen. The Ozanam school was the place for troubled kids like me to go to. It provided therapy and schooling and it got me out of the house. It also introduced me to the ki
ds who became my lifelong friends, until all of us ended up in prison.

  Actually, I didn’t belong in prison. I truly didn’t. It was guilt by association at its finest. The others – Tommy Arcola, Nick Savante, Jack O’Brien and his brother Connor – actually did belong in prison. They were all involved in a robbery that went very wrong. Connor - at 16, he was the youngest out of the bunch – got trigger-happy with an armed security guard who happened to be at that liquor store getting cigarettes. The security guard pulled his gun on Connor, and Connor panicked and shot him in the leg. That wasn’t a kill shot, and Connor didn’t know much about firearms. He didn’t mean to kill the guy, of course – if he did mean to kill him, he would have shot him in the head or chest. And the security guard should have just been injured, but it was Connor’s luck that the guard, whose name was Emilio Garza, contracted the MRSA virus while he was in the hospital and died a month later from his infection.

  What that meant was that all four of the boys, who were my best friends from Ozanam, were put on trial for felony murder. Then, somehow, I got roped into the whole mess. I wasn’t anywhere near that liquor store, and the boys told their attorneys that as well. Yet, I was put into a lineup, and an eyewitness fingered me as the one who was driving the getaway car. Tommy was actually the one who was driving that getaway car. He does somewhat look like me – we both have dark curly hair, and, at the time, we both were wearing our hair long. To our shoulders.

  The five of us were tried separately, and we all were convicted for the murder of Emilio Garza. Connor was still only 16 when we were put on trial, but he was tried as an adult because of the nature of the crime. I was only 18, and so were Nick, Tommy and Jack. We were lucky that we didn’t get the death penalty. The jury opted for life in prison with the chance of parole for all of us, mainly because of our age and the fact that all of us came from really messed-up homes. We all were in the same school for troubled kids, and all of us had basically the same stories to tell the jury - chaotic and abusive parents, drug abuse and alcoholism in the home, etc. The same basic story that a lot of kids can tell. The same basic story that all of the kids in our school could tell. Most of them came from homes that never gave them a chance to have a normal life.

  So, the upshot was that I was 18 and in prison for a murder that I had nothing to do with. For that matter, Tommy, Nick and Jack didn’t really have anything to do with that murder, either. Especially Tommy – all he did was drive the getaway car. I personally have always thought that what happened was unfair to all of us. Yes, Connor was young and probably shouldn’t have been given a gun to start with, but he never meant to kill Emilio. And, really, in a different situation, Connor would have been able to claim self-defense. After all, Emilio was the first person to draw his weapon, and he pointed it right at Connor. It was basically kill or be killed in that situation. But the felony murder rule is very explicit – any killing that is done in the commission of a felony is considered to be murder. Period, end of story. Even if Connor would have gotten really stupid and accidentally shot one of the guys who were involved in the hold-up, the result would have been the same. Felony murder. And all the guys who were involved in the holdup would get the exact same charge, as they all were acting in concert. That was how it worked.

  But, with me…that was a different thing altogether. I had done some jacked-up shit in my youth – I used to steal cars and, more than once, I helped the guys burglarize businesses after they closed. I never got caught for those things except one of the cars that I stole. That theft was what landed me in Ozanam to begin with. That and the fact that my mother decided that she couldn’t control me and she told the judge in my car theft case that she was afraid of me. Whatever that meant. My mother’s testimony in my car theft case combined with the fact that I stole the car in the first place meant that I was going to be put into a special school where I could receive therapy for my anger issues, in addition to getting a decent education.

  I belonged in Ozanam. I’ll be the first to admit to that. But I didn’t belong in prison.

  Still, I tried to make the best of it. For five years, I made the best of it. I felt like my appellate attorney wasn’t doing anything for me, and I wanted a new trial. So, I went to the legal books in the prison library and I studied them. I found some sample appellate briefs and some sample writs of habeas corpuses, and I worked on writing them. I only had a certain amount of time to file my appellate brief, and I missed it. The notice of appeal could only be filed within 10 days of the judgment becoming final, and that judgment in my case became final when my motion for a new trial was overruled and my sentence was imposed. I missed that window of time. Or, rather, my lawyer missed that window. I then sought leave of court to file the notice of appeal late, but that was denied by the courts. I was out of luck as far as getting an appeal going. But I could file writs, and I did. I filed writ after writ, all of which were ignored by the courts.

  At some point, I gave up filing writs, but, by then, I knew the law backwards and forwards. I became a jailhouse lawyer. All of the other inmates were coming to me for legal help and help with writing their own appellate briefs and writs and other documents to try to get them out of prison. I was always very careful about timing issues, especially with the appellate briefs. I was always preparing motions for new trials and notice of appeals, and I often wrote entire appellate briefs for some of the inmates who couldn’t afford an appellate attorney. Which was all of them. Some of the guys inside got lucky and got a court-appointed appellate attorney, but most of them weren’t entitled to a special attorney and all of them wanted to try to get some kind of post-conviction relief. I wrote the briefs for them, they would get their chance for oral argument, and they would go in an argue on their own behalf. Once in awhile, one of my “clients” would win the argument and get a new trial, and that was always a cause to celebrate.

  When I was 23 years old I had given up hope that I ever would see the outside of a prison cell. As unjust as it was for me to be in prison, and as angry as I was about being wrongly convicted, I had made peace by that time. I had come to understand that I probably was going to spend the rest of my life in prison for something that I didn’t do, mainly because I happened to look like the guy who was driving the getaway car and the “eyewitness” couldn’t distinguish me from Tommy and decided that we both were involved in the robbery. Tommy felt awful about the mix-up, and he apologized to me every time we met in the prison yard, but I always told him that he had nothing to apologize for. All of the guys swore up and down that I wasn’t involved, and nobody would believe them. I knew that the guys weren’t at fault for what had happened to me – that stupid eyewitness was at fault. Not the guys. For that matter, the defense attorneys and the cops were also at fault, because they never listened to the guys when they protested that I was nowhere near the crime scene.

  Then, one day, I got a notice that the Innocence Project had taken up my case. As I understood it, the Innocence Project was dedicated to freeing the wrongly imprisoned. They specialized in using DNA evidence to get convictions overturned. They found out about my case when the Kansas City Star ran a story about my work behind bars helping other inmates get new trials and get cases overturned on appeal. I was interviewed for that article, and I emphasized that I was innocent of the crime for which I was convicted. I told the reporter for the Star all about what had happened – how my buddies were convicted for an armed robbery, how I wasn’t anywhere near the scene, how I was still put into a lineup and an eyewitness identified me, and how the guys told anyone who would listen that I wasn’t involved in the crime.

  There was a saving grace, one that I never even thought about – I was never in the car that was used in the robbery. That was a car that the guys had stolen and they used it specifically for the robbery. And the car was still available for DNA testing. That was one of the things that the reporter had asked me – if I had ever been in that car. I told her that I hadn’t. I had never been to that liquor store, either – I
hadn’t been there before the robbery and I hadn’t been there afterwards. That was the starting point for the Innocence Project. They managed to find the car that was used in the robbery – after we were convicted, the car was released as evidence, and it was sold at auction. My lawyer on the Innocence Project, Chuck Riegel, tracked down that car, got a court order, and tested it for DNA. The DNA for all the guys was all over that car. Mine wasn’t. They also went to the liquor store and tested the entire store for DNA. It was the same as the car – my DNA wasn’t anywhere on the premises.

  Chuck worked his ass off for little money, and he managed to get me a new trial. I was assigned a Public Defender for my new trial, and I couldn’t have been more impressed by my new attorney’s dedication. Her name was Colleen Sutton, and she looked like she had just walked off the boat from Ireland. Red curly hair, freckles, pale skin and big blue eyes. She was the first woman that I had seen in awhile, and I thought that she was the most beautiful female I had ever laid eyes on. She was a workhorse, and I found out that she wasn’t unusual in the Kansas City Public Defender’s Office. She turned over every stone and made sure that my case was adequately worked up. She tried the case and won it – the jury came back in less than an hour.

  I felt ashamed that I didn’t have faith in the Public Defender’s Office when I was a teenager. I didn’t want a Public Defender for my case because I had the impression that they were poor attorneys. That they only got a job with the PD’s office because they couldn’t get a better job. That they were the attorneys who graduated at the bottom of their class. That they were overworked and underpaid and that they would give my case short shrift.