Chapter 11

I arrived for my initial meeting with The Honorable Leo Tagliotti with plenty of time to spare. In fact, it appeared I had so much time to spare that his administrator left to me stand in front of her desk for several minutes while she conducted a series of personal telephone calls.

Midway through the conversations, Jane Cummings joined me. We stood together for several seconds, glancing at one another. I had little dealings with the judges who heard criminal trials, so the woman's actions might have been standard for that branch of the judiciary. The civil jurists I had been summoned before had more professional administrators – but then again, most of theirs didn't look nearly as nice as this woman did.

It was a full seven minutes before the woman deigned to put away her cell phone and usher us into the judge's chambers.

"You're late!" the judge barked as soon as the door closed.

"In fact, we were early," I shot back. "In fact, we've both been standing outside for several minutes waiting for your clerk to conclude her personal business."

The man glared at me.

"Mr. Wallace, I do not accept excuses," he said sternly.

"You've accepted a poor excuse for an administrator, Your Honor," I shot back. I was not going to be this man's whipping boy and I was irked at the unprofessional nature of his court clerk. This was the biggest trial our county had seen in a dozen years and I wasn't going to let it be derailed by some airhead who sat outside a judge's office.

"Mr. Wallace," the judge began.

"Your Honor," Jane cut in, "Mr. Wallace and I have been here for nearly 10 minutes. Your clerk sat out there on her cell phone and refused to even acknowledge our presence. This trial will require the highest level of professionalism from all parties. If this office and its staff cannot uphold that level of professionalism, I'm positive Mr. Wallace and I will join in a dual motion for you to remove yourself from the trial. I cannot take the chance that a motion or a writ will be denied simply because your clerk was too busy filing her nails to date it or time-stamp it properly."

"My staff is my responsibility," the judge said with a glare at each of us. "I will hear no more insults about the way my clerk does her job because you two can't manage to be somewhere where I tell you to be there. Am I clear?"

"Perfectly, Your Honor," I said, standing. "Ms. Cummings, I'll have my paralegal draft the motion for recusal. This trial will have too many nuances for us to deal with a bubblehead."

Jane nodded and started to rise.

"Mr. Wallace, sit down!" Judge Tagliotti roared.

"Your Honor, time is of the essence in the case," I said, still standing. "If you doubt our veracity about something we agree upon – such as why we arrived to your chambers later than we should have – then there is little hope of you reaching a decision about something we disagree about. I believe we should simply cut our losses at this point. I'll speak to Judge Valasik about rescheduling the docket and we'll all move on."

"Mr. Wallace," the judge said in a more moderated voice, "I said for you to sit down."

"I heard you, Your Honor," I replied. I still stood and I noticed Jane had taken the opportunity to arise, as well.

The judge glanced at his door and frowned.

"Very well, Mr. Wallace, Ms. Cummings, it appears an apology is in order," he said. "I will speak to my administrator and ensure you have access regardless of what other task she is assigned by this Court. Will that satisfy you?"

I glanced at Jane. She shrugged. She didn't know this man any better than I did.

"We do not require she stop tasks ordered by Your Honor," I corrected. "We do require that she put aside personal endeavors during working hours. I don't think that is too much to ask given the magnitude of what is at stake."

The judge nodded and glanced at the door again. Jane and I took our seats. I had filed the discovery motion with the County Clerk since Judge Tagliotti had not officially been handed the case. I slid a copy of the motion across to him, along with the typical writs and motions filed on all defendants' behalf.

"Well, it seems we're up to date," the judge said, glancing through the documents. "Ms. Cummings, you will be able to meet the requirements of the discovery motion?"

"Yes, Your Honor," Jane answered. She still looked as though the thought of a smile would cause her face to crack. "I have my staff gathering the items as we speak. I should be able to turn them over to Mr. Wallace by Monday."

"Excellent," Tagliotti declared. "OK, then let's set the trial date."

He pushed an intercom button and the vacuous woman who sat outside his door came in.

"I will need my trial calendar," he said. The woman pursed her lips, sighed and retreated to her desk. She appeared a moment later with a laptop computer and took a seat beside the court recorder, who was recording the meeting. I wasn't sure Judge Tagliotti was aware that the stenographer had been typing away, but I could see that Jane was.

"What are we looking at?" the judge asked us. "A year to prepare, you think."

"We're not waiving time, Your Honor," I stated flatly.

The judge was looking at his own personal calendar, I assume, but his eyes shot toward me.

"Ridiculous," he said. "This case can't go forward in six months. I'll not allow it."

"It's not your decision, Your Honor," I replied. "The pace of this trial is dictated solely by my client. He is refusing to waive time. It is his right as guaranteed by the United States Constitution and the statutes of this state."

I saw Tagliotti let out a long breath.

"Very well, Mr. Wallace," he said. "Miss Anderson, what is my schedule like for the month of April?"

The woman tapped some keys and looked up at the judge.

"It's clear as of now," she said.

"Your Honor," I interrupted. "She would need to check March. Mr. Huntley was arraigned six days ago. That started the clock since he was denied bail. His 180 days runs out April 2. That means we need to start the trail no later than the last week of March."

"We're on vacation in March," Miss Anderson said, more to me than to the judge. "This court will not resume until April Fifth."

"Then I suppose Miss Cummings will need to drop the charges and release my client," I said in my best "snarky" voice. I wasn't speaking to the Judge so I didn't feel the need to even feign politeness. "She will be free to refile them, of course – assuming my client doesn't abscond to the farthest reaches he can find as soon as he hits the jailhouse doors."

I saw Judge Taliotti close his eyes briefly. I wondered if I was going to wind up calling Elizabeth from a jail cell to let her know I would be spending the weekend there.

"Mr. Wallace, if you will waive time, we will set a court date as close to the limit as we can possibly make it," he said.

"I'm sorry, Your Honor," I replied. "This is not my choice to make. I informed my client of the ramifications of refusing to waive time. He is adamant. You, of course, have the option of releasing him on bond. That would perhaps cause him to rethink the decision."

"The State will strenuously object to any bail modification, Your Honor," Jane Cummings cut in. "Mr. Huntley is charged with capital murder. The statute is clear. So long as you find the charges to be reasonable, he cannot be granted bail."

"I'm aware of the statute," the judge intoned. "Very well, the trial date will be set for the last week in February. The trial will last no longer than four days. That will give the jury two days to deliberate."

"Your Honor!" Jane interjected. "The State can't possibly be ready to go to trial in only four-and-a-half months. I'm certain you are aware of the unusual circumstances in this case. I am unable to use anyone from the prosecutor's office to help. If you insist upon going forward in only four months, I'll have to ask the President Judge to provide more staff just so I can meet the mandated filing schedule. The State bears a huge burden in this case. We are required, again by state statute, to file numerous motions and to keep Mr. Wallace updated on all potential exculpatory claims. I'm not positive the court will be able to handle the flow of documents without the extra month to prepare."

"So I am expected to cancel my vacation?" he asked.

"Your Honor, it is obviously a scheduling problem we cannot reconcile," I said. "I'm positive if the President Judge was aware of your vacation schedule she would not have handed you this docket. Even if we waived time and you set an April trial date, there is no way this office could be closed for a month beforehand and expect to meet its obligations. The month before a capital case, from what I've heard, is filled with last-minute, time-sensitive filings – not only for the prosecution but for the defense. I am positive we will need you to be the arbiter of numerous things during that month – uncooperative witnesses who refuse to schedule depositions, rulings on contradictory points of law and disputed evidentiary claims, just to name a few. Again, Your Honor, perhaps it would be better for all concerned if you were to hand the docket back to be rescheduled. The last thing we would want is for your vacation schedule to present either the prosecution or the defense with 'reversible error.'"

Ah, reversible error. The words no judge likes to hear. It is the phrase the appellate courts use when a judge screwed up a trial so badly that it was unfair to one side or the other. The phrase encompasses many things – evidentiary admissions, unqualified witness testimony that wasn't stricken from the record, improper jury instructions. "Reversible error" was the quickest way for a criminal defendant to get a new trial in the United States. Well, that and "inadequate advice of counsel" – but we already had that one sewn up, I thought.

The judge narrowed his eyes.

"I will not cancel my vacation and I will not remove myself from this case," he stated. "We will schedule this case for late February and you will do whatever it is you have to do in order to prepare. Be warned, Mr. Wallace, there will be no continuances. So do not even bother to ask. They are denied."

I threw up my hands.

"Your Honor," I said much louder than was appropriate in a judge's chambers. "With whatever respect you are due, you're being ridiculous. You arbitrarily decide from the outset there will be no continuances? What if Ms. Cummings develops appendicitis the night before the trial? What if the prosecution or defense finds exculpatory evidence in mid-February? You are willing to abridge my client's fundamental right to a fair trial because it interferes with plans to take your family to the beach? This is unworkable, Your Honor. Given your adamancy to keep this trial, the appellate courts will send us back here to do this a dozen times before it is settled."

"He's correct, Your Honor," Jane Cummings put forth. I was surprised she was even joining in the fray. "Mr. Huntley is not required to waive time. This Court may not force him to do so. It is also highly problematic that you've already decided how long the jury can be out. Again, and I mean this with the utmost respect to your position on the bench, this Court has never tried a capital case. I understand that you might be unsure of exactly what time it will consume. You likely will see one or both of us in this office every day for the last two months prior to trial. We will need material witness warrants or search warrants. We will require you to sit in on potentially sensitive depositions. You will have to oversee myriad portions of this trial and each one will require time that it appears you will not have.

"I have tried a death case, Your Honor. In the last one I tried, the jury was out for 11 days before coming back with a verdict. That cannot be rushed. If you declare a mistrial because of your schedule, a host of issues will crop up on appeal. You're also forgetting about the penalty phase. That phase is required to start no later than seven days following the verdict. It must be before the same judge and with the same jury who heard the criminal phase. If a juror is ill, you must grant a continuance. Do you expect to declare a mistrial if Mr. Wallace is hit by a car in the middle of it? Do you plan to put the trial on hold for a month if it is still going on when March arrives?

"Your Honor, I realize that you expected this case to be scheduled for next summer. It is understandable that you expected Mr. Huntley to waive time. It is almost a foregone conclusion in capital cases but, again, it is not mandatory. In fact, given the limitations you've placed on my schedule, I can see where it is beneficial to the defense. If I miss one filing, the case gets thrown out. If I were to notify Mr. Wallace of a potential witness a day later than I should have, the case gets dismissed. Your Honor, I respectfully suggest you take a look at your calendar and ask yourself if either side can put forth a fair effort in light of the restrictions that calendar presents.

"As it stands, I'm afraid that no judge who hears our motion to have you removed will hesitate to do so. If you cannot rearrange your schedule to accommodate the time constraints this trial will present, I will have no choice but to seek redress from a higher court."

Jane's tones were modulated and calm throughout her speech. In contrast, mine had been harsh. Neither had any effect on Judge Tagliotti.

"Then Mr. Wallace should do you both a favor and waive time," the judge declared. "The Court has a long memory about lawyers who make things difficult."

I rolled my eyes, again, not something an attorney wants to do too frequently at a judge.

"Let's be frank, Your Honor," I said. "I'll never be in front of this Court again. I will go to whatever lengths I have to go to ensure that fact. Even if you move to the civil side, I'll use my prremptory exemption against you. Ms. Cummings does not practice law in this county. So that is an idle threat."

"To you, perhaps," the judge said casually. "To your wife, perhaps not."

I bit the inside of my lip and grasped the sides of the chair. The first was to keep from calling the man what I wanted to call him. The second was to keep me from going over his desk and strangling the stupid f•©ker.

"Your Honor," I replied once I had my temper under control for the most part, "to suggest you would hold my attitude toward you against another member of the Bar is, perhaps, the most egregious offense you've made today. Additionally, I would wager, if you were to attempt such actions against Ms. Vargas-Wallace, you would find yourself pitted against a woman who would make you regret it. I believe you should take note of how she handled the former prosecuting attorney, who, if I recollect, won with 70 percent of the vote. You were barely re-elected and you ran unopposed. What you suggest is not only stupid, it is actionable and I suggest strongly you rethink your desire to sit on this trial."

"This is my case," he declared. "We will run it on my schedule. And not a word of this to anyone. A gag order is officially in effect. If that's all you have for today, get out."

We got out.

I had not even cleared the doorway from the judge's outer office before my temper caught up to me again.

"Peckerhead," I said, probably louder than I should have – given that the judge's private office was right next to the wall I was standing beside.

"Yes," Jane said calmly. "Ben, if we have to take the time to get this idiot removed, there is no way we can go to trial in six months. It will take us 60 days to get in front of an appellate court – then another 10 or 20 days before we see their ruling. If I had all the resources of the prosecutor's office, I could handle it. But you couldn't."