Judge Gould eases into the chair at his desk and reaches under his robe to loosen his tie. “Ms. Schilling,” he says, “this is not a matter the court takes lightly.”
I slip into a seat in front of the desk and Geraldine perches on the edge of the chair next to mine. She’s suddenly silent, a rare phenomenon.
“Assuming the best,” the judge continues, “that it was an honest mistake, your office’s failure to disclose the missing monstrance to the defense is a problem. A real one.”
“We kept it quiet initially,” Geraldine says, “as an investigative tool. Frankly, by the time we were preparing for trial, I’d forgotten all about it. We never intended to withhold its disappearance from the defense.”
The judge shakes his head, looking like he’s about to tell her that good intentions don’t make a whit of difference, but Clarence pipes up first. “It’s my fault,” he says. “I dropped the ball.”
He’s leaning against the side wall and he’s visibly distraught. He’s also correct. This is the kind of omission he should have caught. It’s his job to worry about the details—especially the technical ones—while Geraldine focuses on the big picture. He’s a decent sort, Clarence, but as Harry’s fond of saying, he’s about two oysters shy of a bushel.
Harry feels sorry for Clarence now, though; I can see it in his eyes. We’ve all made plenty of mistakes in this heavily detailed business. And we all feel guilty as hell when we do. But in the early years, when you’re new to the practice, each misstep seems like the end of the world.
Geraldine shuts Clarence down with one raised hand, not turning to look at him. She’ll probably chew him up and spit him out later, in the privacy of her office, but she won’t let him take the blame here. “Okay,” she says to the judge. “My error. But what difference does it make? It’s not as if Holliston ever claimed he didn’t kill the priest. He admitted that much from the get-go. The missing monstrance doesn’t change anything.”
She’s right. It doesn’t. But as every criminal defense lawyer learns in the first week or so of practice, a prosecutorial error—even one that has no real bearing on the substance of the proceedings—is a rare gift. We’ll milk it now, worry about whether it’s worth anything later.
“You’re wrong,” Harry says to her. “It changes a lot. It’s one more item that wasn’t in Derrick Holliston’s possession when he was picked up, one more item that wasn’t found in his apartment—or anywhere else, for that matter—when he was taken into custody. It’s one more piece of evidence that tends to prove his version of events, or—at the very least—disprove yours.”
He’s good, Harry Madigan. If I didn’t know better, I’d think he believes what he’s saying.
Geraldine throws her hands in the air. “Go ahead,” she says. “Take your mistrial.” She checks her watch. “I’ll refile before the day is out.”
She’s calling our bluff, of course. We don’t really want a new trial and she knows it. We’ll never get another opportunity like this one.
“We’ll settle for an instruction,” Harry says. His expression suggests he’s less than satisfied with that solution, but everyone in the room knows he’s not. This is a break few criminal defendants get. The judge will tell the jurors that the District Attorney’s office misbehaved, failed to play by the rules. And from that moment on, our case will be about the DA’s misconduct, not Holliston’s.
“All right, then,” the judge says as he stands, “let’s get on with it. I’ll give the instruction and we’ll wrap it up with this witness. I’m sorry,” he says to Geraldine from the doorway, “but you’ll have to bring your pastor back tomorrow.”
She nods, then follows him out of the room without a word. Rescheduling the pastor is the least of her problems at the moment. Clarence slinks out behind her. Harry and I follow.
Holliston’s angry eyes bore into us as we approach the defense table, his glare saying he’s certain we did a less than adequate job for him behind closed doors. “I dint take no monster,” he says as soon as we sit. “I hope you told them people that.”
Neither of us answers. Instead, we focus on Judge Gould, who’s already settled on the bench, poised to give the instruction. “Ladies and gentlemen,” he says to the panel, “it has come to the court’s attention that certain material evidence known to the District Attorney’s office has not heretofore been disclosed to the defense.”
The jurors’ gazes move from the judge to Geraldine. Their expressions are serious, concerned.
“In the Commonwealth of Massachusetts,” Judge Gould continues, “the prosecuting attorney bears a burden of full disclosure. In other words, it is incumbent upon the prosecutor to disclose all material facts to the defendant and his lawyers prior to trial. In the case before us, the prosecutor failed to do so.”
Again, the jurors turn their attention to Geraldine. She stares straight ahead.
“In particular,” the judge says, “the District Attorney’s office failed to inform the defense that an item of value, a solid gold monstrance, was taken from St. Veronica’s Chapel on the night of Father McMahon’s death.”
Holliston bolts upright. He looks indignant.
“The prosecution’s failure to disclose is particularly troubling when the evidence is exculpatory, as it is here. Like the collection proceeds, the monstrance has never been recovered. It was not in the defendant’s possession at the time of his arrest. It has not been linked to him in any way.”
The jurors’ eyes move to our table now. I hope Holliston has his face under control, but I don’t dare look.
“Our Supreme Judicial Court has recently held that judges should begin instructing juries in criminal trials to be ‘skeptical’ when either police officers or prosecutors fail to abide by the rules. The court also held we should instruct juries to weigh the Commonwealth’s case ‘with great care and caution’ whenever proper procedures are not followed.”
Holliston’s timing couldn’t be much better. The high court issued that ruling less than a year ago.
“Mr. Holliston is entitled to every reasonable inference you may draw from the missing monstrance. He’s also entitled to every reasonable inference you may draw from the District Attorney’s failure to disclose that fact.”
With that, the judge faces front and stares at Geraldine. The jurors study her too, all of them, and more than a few look troubled.
Harry leans back in his chair and snaps a chewed-up pencil in two. “How many times in the past twenty-three years have I wished Geraldine Schilling would screw up?” he says. “Why the hell did she do it now?”
Chapter 19
The T intersection outside our 1840 farmhouse–turned–law office is the gateway to Chatham. Back roads into town exist, of course, but anyone wanting to stay on main thoroughfares will pass through this juncture en route to our charming village center. The antique Cape next to our building houses the Chatham Chamber of Commerce, where volunteers and merchants welcome weekly renters and day-trippers throughout the summer, recommending breakfast joints, fish markets, and seal-watch cruises; handing out menus, maps, and brochures. More than once each season, some confused out-of-towner wanders into our front office looking for directions to the Friday-night band concert. Harry patiently points every one of them toward the gazebo in Kate Gould Park, always with a plug for the PTA’s cotton candy machine.
During the season, traffic is perpetually heavy here, both two-lane roads constantly clogged with carloads of tourists headed for beaches, shops, and restaurants. After Labor Day, the stream of visiting vehicles thins, the whole area growing markedly quieter overnight. By this time of year it’s normally downright desolate, the roads clogged only with snowbanks left behind by the town’s plows. Not today, though.