32

"U.S. Airways announces the departure of flight 3709 to Martha's Vineyard. Boarding will begin in approximately ten minutes, through Gate Five."

I paused while the gate agent repeated the information, trying to control my temper.

"What the hell were you thinking, Will? Shadow counsel? How dare you jeopardize a homicide investigation with that kind of idea?"

"I read the leading case, Alex. People Against Stewart. I'm pretty sure-"

"Don't cite cases to me," I said, trying to keep my voice down as it resonated through the terminal's seating area. " Stewartonly speaks to the dismissal of the indictment. The court never reached the issue of the propriety of shadow counsel. If you had bothered to read the dissent, Will, you would have seen that one of the jurists not only called the concept distasteful, but in violation of all ethical prosecutorial considerations."

Will Nedim was getting defensive. "Well, I'm sorry to disagree with you, Alex, but the appellate courts haven't-"

"This is no time to argue. That kind of ruse is not proper and it's not fair. I'd never think of doing anything like it."

"You weren't exactly available to check with and-"

"I've got to catch my plane now, and you've got to undo this. Where will you be tonight? I'll call you when I settle in at my house in a couple of hours, okay? I want to know who Tiffany Gatts claimed to be afraid of and everything else you told the judge to allow this sham to happen."

I scribbled his home number on the back of my ticket and trudged down the steps, out onto the tarmac, and up the steps of the small plane.

This was one more critical thing that Mike and Mercer would have to attend to. Who was funding Tiffany Gatts's defense? If her mother wasn't paying the bills, and if indeed she was fearful of letting her lawyer know her intentions, then we had to find out who was pulling the strings on this puppet.

I ducked my head to get through the entrance, which was several inches shorter than I was. I waited while the woman in front of me stowed her tennis racket in the overhead compartment, and then I sat in the second row, making notes about what I needed to do in response to Nedim's phone call.

"You writing a brief, Alex?"

I looked up and saw a familiar face. Justin Feldman, a prominent litigator in the city who also had a home on the Vineyard, sat opposite me across the narrow aisle.

"No, only a list," I answered. "I'm just letting off steam. I'm afraid I unloaded on one of the young lawyers in the office. Now I'm trying to repair the damage."

"Nothing terminal, I hope."

I respected Justin and had sought his advice in the past, especially on situations that involved ethical considerations, since he had chaired the bar association's prestigious committee. "Depends on your point of view. You know anything about shadow counsel?" I asked.

"Never heard the term."

"That's because you practice in a better place," I said, referring to the federal courts, where judges rarely tolerated the shenanigans that were commonplace stateside. "I'm only aware of one decision on point."

"What jurisdiction?" Justin asked.

"A Manhattan case a few years back. The perp was incarcerated, pending trial or plea. One day, he calls the prosecutor out of the blue. Claims he's ready to cooperate and give up his codefendants, but his lawyer has refused to let him do it."

"What was the lawyer's beef?"

"Turns out the defendant claims his lawyer was hired and paid for by somebody else-a major drug kingpin. When the defendant decides to accept the prosecutor's deal, he tells the judge that his lawyer actually said that the head of the drug ring would have him killed if he cooperated. That word would go back through the lawyer."

"What did the judge do?" Justin asked again.

"Set up this charade, this complete fiction. He made the defendant create a record in court saying that he feared for his life if he fired his lawyer and played ball with the prosecution. So the case actually went forward with two defense attorneys."

"Two? And the first one never knew the second one existed?"

"Exactly," I said. "There was the original lawyer, who was being paid by the kingpin and who told her own client that his life and the life of his family were in danger. The judge kept her on the case, but completely in the dark about the truth of the transactions. Then he went ahead and assigned someone new to do the deal with the prosecution."

"The so-called shadow counsel?"

"Yes. The judge used the lawyer he appointed to take the real plea, which was a deal with cooperation, all the while continuing to pretend that what happened in the presence of lawyer number one-a mock plea allocution, a sentence, and a resentence-was true."

"Creating a complete illusion. Violating all your disclosure obligations, derogating your ethical responsibilities, communicating with the court ex parte to set this up, and falsifying the judicial process all along the way." Justin ticked off every repugnant feature of the arrangement.

"I'm not totally crazy, am I, to tell my colleague I won't go along with something like that?" I asked, as the pilot started up the starboard engine.

"You'd be insane to do it," Justin said, shaking his head back and forth. "I wonder where some of these lawyers lose their senses," he said. "You know Marty London, don't you?"

He was referring to another giant of the New York bar. "Sure."

"I had lunch with him today. The very same kind of conversation about a bright young lawyer came up. Marty's representing a guy who's in over his head-runs the corporate department at a white-shoe law firm. Kept telling his partners that to keep high-rolling clients happy, he was making contributions to their favorite charities. Big bucks."

"Some kind of scam?"

"That's putting it mildly. He'd tell the managing partner he'd written a personal check for, say, fifty thousand dollars to some tug-at-your-heartstrings cause. Say it's children of some war-torn part of the world. Or a struggling dance company. Or an inner-city art museum. Had to be a personal check, so he'd get credit with the client for being a mensch. Who'd second-guess him for a good deed like that? Then, he asked the firm to reimburse him-and they did."

"I think I see this one coming," I said. "He never wrote the check to any such charity."

"How about that the charity never existed in the first place?" Justin said, shaking his head in disbelief. "Battaglia's going to make mincemeat out of this guy when he gets his hands on this case. Fifty thousand dollars of the firm's money in his own pocket every couple of months, on top of his draw of a few million a year. I don't understand these people, Alex."

Both propellers were geared up now, and it was impossible to hear over the din. He settled in with his newspaper and I continued making lists of things to do.

The small aircraft lifted up from the runway. Within minutes, we had flown into the enormous billow of cloud cover that had settled over the New York area. I pulled my seat belt tighter around my waist as the plane bucked in the rough currents. I tried to concentrate on organizing my evening calls, but the severe weather made any work effort impossible.

I stuck my pen in my pocket and stared out the window at the inner lining of the storm cloud. There were only five passengers on the flight, and all looked as gloomy as the skies around us. I watched as the woman in front of Justin's seat fumbled for the airsickness bag, hoping that she would not need to use it in the close confines of the still cabin.

The pilot broke in with a short message. "Sorry about the bumps in the road, ladies and gents. We've got that hurricane blowing in behind us, so we'll rock and roll like this all the way to the Vineyard. Be another thirty-five minutes till touchdown. Thanks for flying with us tonight."