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At 10:55 a.m., one hour and thirty-nine minutes after they left the courtroom, Judge Mathers came into a filling courtroom and stepped in front of his black chair at the bench.
“Ms. Archibald, do you have any motion to present?”
“Yes, I do, Your Honor, have a motion to present. I move for a motion for a mistrial on two grounds:
- One, that my client has not had a fair trial
- Second, your perception that I have been ineffective counsel on his behalf
It is on that basis I move for a mistrial, Your Honor.”
Bea did not expect the motion to be allowed as orally drafted, but she wanted the position most in Bill’s favor to be part of the record. Behind-the-scenes negotiations are one thing, but the record is another. She had to protect her client’s interests on the record in case anything went awry.
“Your Honor, may I be heard on that?” Cooke requested. “I would say to the Court—and I apologize for not providing this to the Court—I did some quick research on defendant’s motion. The basis counsel has just presented would not be a proper basis for a mistrial. The defendant’s motion falls right into an area where a mistrial would, in fact, be prejudicial to the Commonwealth if it was granted on those bases.”
Of course it’s prejudicial to the Commonwealth, Bea thought. I wouldn’t make a motion that’d be prejudicial to Bill.
Cooke continued. “My research made it very clear that if the defendant was given the option of a mistrial, such as Your Honor has provided to the defendant in this case... if the defendant wanted to avail himself of a mistrial solely because he wanted that to happen, because he felt it was the right thing to happen, and it was in his best interest and not based upon any findings by Your Honor, then the mistrial would be granted.
“But the grounds that counsel has cited, I would say, cause some severe problems to the government, and I object to it being allowed on the basis counsel has cited: namely, that he has not received a fair trial or that there is a perception his counsel is ineffective. If the court were responsible for the mistrial, retrial is barred, the charges are dismissed, and the defendant goes free.”
Cooke continued at considerable length to argue the legal ramifications of the case she’d found, but her argument was as clear as mud. The case she had found didn’t support her position at all. She was trying to squeeze a size 20 into a size 10.
To an on-looker, it might have appeared that as a result of Cooke’s faulty argument, Mathers did not engage her in a discussion of the law.
But to Bea and Bill, who knew the deal they had been negotiating, Mathers was putting the court’s position on the record. As Bea had to protect Bill’s interests on the record, so did Mathers have to protect his interest. Bea saw Mathers’ interest to be different than the court’s. The court is supposed to be neutral. Mathers was not.
Whether Cooke knew anything of the deal was unknown to Bea, although Bea suspected that Cooke did her research on Mathers’ behalf.
Mathers spoke directly to Bea. “I am concerned about allowing the motion that you have made in that form, Ms. Archibald. I will say this. If I have a motion either presented by you on behalf of this defendant or your withdrawal as counsel at this time, and the defendant’s presentation of a motion himself for a mistrial based upon ineffective assistance of counsel, I will allow such a motion provided the defendant understands clearly that he may be, under those circumstances, retried. Do you follow what I have said?”
“Yes, I believe I have, Your Honor. And I have to discuss it with the defendant. If I may have a few moments to do that?”
“Yes.” There was a slight pause.
Bea whispered, “Are you still sure you want to go ahead as we planned?”
“Go for it,” Bill whispered back.
“Your Honor, I seek some guidance here so that I have absolutely no problem in withdrawing. My client, not being a lawyer, has no idea whether I have been effective or ineffective. And because I am so subjectively involved in this now, I have no idea whether I’ve been ineffective. I am also not in a position even to judge my own performance without seeing a transcript.
“Certainly my client is not in a position to make that judgment. That’s a judicial determination. So for him to make a motion on that would be bizarre.
“I suppose if I withdraw, he can move for mistrial because his attorney has withdrawn. And if I withdraw, Bill Abernathy obviously cannot go forward without counsel. He will absolutely have to retain new counsel.
“That would be the basis, and he will gladly put it on the record.
“We’re not trying to do a double jeopardy routine on anybody. He’s making that part of the record now. We discussed that. So the Commonwealth does not have to be concerned with that kind of an argument.”
Now it was time for Bea and Bill to stand while Mathers said his piece. Bea had said hers, artfully or not.
“Let me make this representation for the defendant’s benefit in open court,” Mathers began. “As a result of the proceedings that have occurred up to this point in the case, I find there is a manifest necessity for a mistrial, based upon the fact that the performance of defense counsel in this case has fallen measurably below that which might be expected of ordinary, fallible lawyers. For the benefit of the defendant, that is a finding that there has been inadequate representation here, ineffective assistance of counsel.”
When Bea heard the words “manifest necessity,” she knew the judge was going to declare a mistrial sua sponte, that is, on his own and without Bill’s consent.
Manifest necessity is something the judge must declare to cover his ass, to show there was no judicial overreaching, bad faith, or intentional manipulation of events at trial to Bill’s detriment. If these existed, reprosecution would be barred.
Bea thought, Good. That leaves room for a double jeopardy argument later on.
To find manifest necessity on the grounds of ineffective counsel, the judge had to find Bea’s performance fell measurably below that expected of ordinary, fallible lawyers. That language is mandatory. It is the definition of an ineffective counsel and Bea anticipated hearing it.
“If your counsel withdraws so that you are not represented by her and if you move at this time, Mr. Abernathy, for a mistrial based upon ineffective assistance of counsel, I will allow such a motion.
However, before doing so, I will request the district attorney to advise me whether it would be her intention to retry you and I presume she will answer that in the affirmative. Do you follow what I have said now?”
William Abernathy said, “Yes.”
“Have you followed what I’ve had to say, Ms. Archibald?”
“Yes, I believe I have, Your Honor.” Bea disagreed that Bill had to move for a mistrial because the judge had already found there was a manifest necessity for one. But to avoid further conflict, she didn’t pick him up on it.
As far as she was concerned, Bill could move for a mistrial not on the basis of ineffective assistance of counsel but on the basis that he’d be left without counsel. Without counsel, he would have been goaded into moving for a mistrial. That should bar retrial, although it was unlikely in these circumstances.
Because the order of the various declarations and motions was critical, at least to Bea, she continued.
“What I would like to ask on his behalf, in the meantime, is, Has my ineffective assistance of counsel been such that it has prejudiced you, and if so, that it would now be appropriate for you to recuse yourself from a retrial of this matter?”
This was the essence of the messages carried back and forth by the clerk: Mathers had to recuse himself before Bea would withdraw. Bill and Bea would do nothing until Mathers recused himself.
“I will recuse myself from the retrial of this matter.”
“Thank you very much, Your Honor. In that case I shall enter my withdrawal.” Bravo. Mathers has admitted his own prejudice.
“The motion to withdraw is allowed.”
Bea, of course, had never “moved” to withdraw—she had been, in so many chess-like moves, essentially ordered to enter her withdrawal—but she’d not quibble with Mathers now. The record would show she never so moved. He knew that, but he needed to put the cause of the mistrial onto the defendant so that the Commonwealth could retry Bill if it wanted to.
Whereupon Cooke moved her chess piece: “For the record, Your Honor, the Commonwealth would intend to retry this defendant as soon as counsel has been secured and is able to prepare for trial.”
“Mr. Abernathy, you are now pro se,” Mathers said. “You are representing yourself in this matter.
The district attorney has indicated her intention to retry this case, and as I have indicated, it will not be retried before me. It will be retried before some other judge. Do you now move that I grant a mistrial in this case based upon ineffective assistance of counsel in your behalf?”
“Yes, I do,” Bill said. At that moment, Bea realized Bill might not have noticed Mathers’ substitution of the basis for the motion: the substitution of “ineffective assistance of counsel” for “being without counsel.”
“Do you understand completely what you are doing?”
“Yes, I do.”
Mathers then asked Bill his education to be sure he understood what had taken place. After Bill told him, Mathers said: “I will allow your motion and declare this case mistried.” Of course, Bill had made no motion. It was Mathers.
Bill said, “Thank you very much, Your Honor,” but once outside the courtroom, he asked Bea, “Do you think I’ll have to go through another trial?”
Bea was saved from having to explain to him all over again about double jeopardy by a reporter who approached them.
Grateful
Feeling freer than she had in a long while, Bea bounded up the ramp onto Costaki II.
After dropping her briefcase near her desk, she went to the refrigerator to check the ice trays for Hugh. As she opened the door, she came to a sudden stop. Hugh won’t be coming tonight. She slammed the door. At least I won’t have a row with him.
She fell onto the sofa, looked at the safari pillows, punched the frolicking tiger, and let out a sigh.
She laid her head back, relieved that the responsibility for Bill’s liberty would fall to someone else.
She would be free to fight the system all she wanted. Would anyone care, or would she fight in a vacuum?
As she asked herself these questions and had no one nearby to answer her, she could have used some of that solace.
Badge of Courage
“Mistrial Declared in Rape Case; Judge Blames Lawyer,” Bill read to Bea from his local newspaper.
“‘A mistrial was declared in the trial of a man accused of raping a nine year old girl, after Judge Cortland A. Mathers ruled that the defendant was getting “inadequate representation” from his attorney.’
“‘The attorney charged later that “the judge didn’t want justice” and that her client had been denied “a fair trial and due process.”’
“‘Mathers abruptly called a halt to the trial as Archibald was cross-examining a social worker who had discussed the alleged assaults with the child, using anatomically correct dolls.’
“Then the article repeated some of what Mathers said. You know, that stuff about you falling below what is expected of a fallible lawyer. Hey, apparently, the reporter tried to get Mathers to comment, but he wouldn’t ‘comment further.’
“‘At the request of Attorney Archibald, Mathers then said he would excuse himself from hearing the retrial.’”
“Isn’t that wonderful? Bill, you’d be in jail now if there hadn’t been a mistrial. And if he were sitting on the next trial—if there is one—you’d go to jail then. What a close call!”
Bea heard Bill’s nervous laughter.
“Bea, there’s more.”
“Shoot.”
“It says you told the reporter that you ‘and the judge disagreed on what the defendant would offer as evidence to show bias against him.’”
“Who me? Would I do that?”
“The article sort of repeats itself a bit. Then it says, ‘Mathers excluded a line of questioning by Archibald during the cross-examination of the child’s mother that was designed to show bias on her part.”
“She got that right. What was her name? The reporter’s name?”
Bill told her.
“Got to write that down. Well, you’ll send me a copy of the article for my records.”
“Yeah, I will.”
“Anything else?”
“Just says that during the pretrial Mathers denied the motion to show the mother’s bias and how she had allegedly influenced the child. Oh, there’s something new at the end!”
“What’s that?”
“‘Archibald further charged that Mathers hurt her case when he ordered portions of a defense exhibit to be blacked out with stickers so the jury could not read certain statements. The exhibit was a restraining order—”
“It was Denise’s affidavit. See, the reporter didn’t know the difference.”
“‘That had been taken out against the defendant by the child’s mother after she learned of the rape allegations. The attorney said Mathers “rewrote history” by altering the exhibit.’”
“Sure as hell did. It drives me wild when a court does that. Throw the truth out the window. Who will really care? I can understand keeping hearsay out, but a document, a sworn affidavit filed under the pains and penalties of perjury with the court to get an order to issue? Give me a bloomin’ break!”
The tension and the anger built up in Bea’s voice. She lit up.
“‘She,’ meaning you, ‘also charged that Mathers showed the jury his displeasure with her by “the rolling of his eyes and his body demeanor.”’”
“Right, remember how he complained that I slumped and sighed when he sustained Cooke’s objection? M’god, it was almost 97 degrees—Isn’t that what he said it was?—in that damn courtroom. I had to be as red as a lobster in a pot. At least it felt that way. That bastard! Sorry, Bill. I swear.”
“That’s okay, Bea. Let’s see, where was I? Oh, yeah.” Bill read the last paragraph. “‘Archibald, noting that she has walked in women’s rights demonstrations carrying signs, declared it was “her badge of courage” that she speak out against Mathers. “The judge didn’t want justice.”’”
Bea guffawed. “She bit. She used my sound bite to end with. Great!” She inhaled. “Imagine, she opened and closed with it. Sonofagun.” Excited, she couldn’t stop talking. “Bill, the real problem is that Mathers has been on the bench too long. He’s cynical. He’s seen so much horrendous stuff day after day and year after year, one scumbum after another, that all defendants look alike to him. He can’t differentiate anymore. He’s got his own vendetta going against the underbelly of society, so he automatically takes it out against any defendant who comes in front of him.
“Who knows? Maybe he has someone in his own family who’s been raped. Who knows? But there’s got to be a better system. They shouldn’t be allowed to sit so long. Maybe, reconfirmation elections.
Some psychological exam after a certain number of years. Some review process. Something like getting your eyes retested before you get your license renewed. Something, something is necessary.”
Look for Part 37 of 41 on Saturday, Septenber 27th
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