The Substitution Order, page 26
“Why would you give her anything?” Blaine demands. “She’s in the wrong. You’re throwing us under the bus.”
Luther smiles. “Ask Kevin how much he charges me an hour for lawyer work, even when I’m in the right. If I can end this misunderstandin’ and have her put something in writin’ releasing me for the price of a couple subs, I damn well plan to do it. And you keep a polite tongue when they come in for the free food, you hear?”
“We will,” I answer for Blaine, who’s glowering at Luther. “You want us to see about a red carpet and a cocktail band for their dinner?”
“Another question,” Luther says. “You hearin’ any noise about a new restaurant opening in Stuart?”
“Nope,” I reply. “But I don’t hear much of anything. I’m either behind this counter or at home.”
“No, me neither,” Blaine says. “Why’re you asking us?”
Luther jabs his thumb in the direction of the highway. “Who’s the shrewdest bidnessman in this county?”
“Melvin Harrell?” I reply.
“He don’t count,” Luther answers. “He stays in Florida.”
“Evidently, Destiny Sutphin,” Blaine gripes. “Seems she’s earning about twenty-five bucks for three minutes of bad acting and a phone call. That’s five hundred an hour.”
“Larry Hutchens,” Luther declares. “He owns that old dry-cleaning building across the road. It’s empty and I know he’s been anxious to rent it. I’ve heard Burger King and Jimmy John’s are possibilities. And them Chinese guys who run the restaurant in Eden have been pokin’ around here, thinkin’ about opening a place. My cousin, Lonnie, who lives in Critz, said he’d seen a truck at the cleaners and a man in and out. Activity.”
“Yeah, I’ve noticed a white service truck there a few times,” Blaine says.
“Me too,” I say. “Doesn’t mean much, though. Certainly doesn’t mean a new restaurant’s coming down the pike.”
Luther’s tone grows more pleasant. “Well, competition across the highway is the last thing we need—right, fellows?”
“We’ll send up the Bat Signal if we discover any kinda plot, Luther,” Blaine suggests.
“I’ll tell you how clever ol’ Hutchens is—this might be a rouge. It’s possible he’s running one of his regular workers in and out, kickin’ up dust, drawin’ attention and spreading rumors about tenants just so he can sucker me into buying the place. Keep your ears to the ground, okay? Maybe mosey over and ask whoever’s there what’s happenin’ next time you see the truck. Or see anybody.”
“Ruse,” Blaine says. “The word is ruse. Amazing that you and I will have the same college degree.”
“Are we done?” I ask again.
“Yeah, sure. And, guys, hey, I’m sorry if I came in on y’all a little hot and bothered. Runnin’ a public bidness ain’t as easy as it used to be. I appreciate both of you, you especially, Kevin. Thanks for every damn thing you do. I’m behind you a hundred and ten percent.”
* * *
“Perfect,” I say when I get home that evening, open the car door, step into an unexpected chilly mist and catch a whiff of Nelson, who’s been sprayed by a skunk and stinks so bad that I can smell him from thirty feet away. At least the screen door is repaired, thanks to Arthur McPeak, and I found an odd-lot cushion on eBay that matches the one Nelson destroyed. Seventy-nine bucks it cost me, but it’s due to arrive soon via UPS.
Nelson halts before he makes it to me and rolls and wallows in the grass. He stands on all fours, shakes, then sits on his haunches and rakes his snout and eyes with a paw. I have a good idea how he must feel.
* * *
Monday, September 26, I’m scheduled to be in Martinsville for my motions hearing with Judge Williams, so I have some electronic-monitoring leeway, and I take advantage of the flexibility to meet Lilly for breakfast, our first time seeing each other since her sick night at the guesthouse. We’ve occasionally e-mailed and twice chatted on the phone, but she’s been tepid and hard to pin down. Still, when I e-mailed her on Friday and inquired about a “five-star morning date at Mabry Mill,” she agreed immediately, replied from her phone and included a smiling yellow emoji.
We’re supposed to meet at 7:30 a.m., and I’m there ten minutes early. It’s brisk enough that I’m wearing a fleece jacket. I wait for Lilly in the parking lot, and she arrives soon after I do.
“Hey, Kevin,” she says as she’s exiting the Range Rover, dressed in her nurse clothes and a stylish coat. “What happened to our swimming weather?”
“It’s fall on the mountain,” I reply, walking toward her. I take her hand and kiss her cheek, and she doesn’t seem to mind.
The mill’s restaurant and gift shop are WPA, often-patched-or-repaired-but-never-remodeled, federal-government rustic: pine paneling, exposed rafters, uneven board floors and a dining section that’s on an enclosed porch. The porch borders a thick patch of mountain laurel, and it’s usually drafty in the fall—the sills and windows aren’t airtight, and there’s no ductwork in the dining area itself.
We’re seated quickly, and the whole setting couldn’t be better. We can smell coffee brewing and food on the grill. From our table, we can see a spread of coloring hardwoods, a high mosaic of reds, yellows and fire oranges tucked into a green backdrop. The waitress is full of honeys and sweeties, and we’re not cold or uncomfortable, and we take our jackets off and drape them over empty chairs. It’s as if we’re being served homemade biscuits and a textbook breakfast on a plush 1950s camping trip.
“This is great,” Lilly remarks midway through her meal. “I’ve never been here before. Good choice.”
“Thanks. My landlord, Melvin, introduced me to the place years ago.”
We talk about her job and a patient who’s made a nice recovery, and Blu’s new Jeep, and the dismal candidates running for president, and her spotty Internet service, and I tell her a funny lawyer story, and I brag on Nelson, how he’s mastered his new fetch trick and recognizes ball, wallet and keys and is learning to bring my shoes from the closet to the recliner. We drink more coffee and then just sit quiet for a while, content with the silence, past the point where we feel constrained to keep the conversation unbroken, a small milestone.
At the register, I buy her a postcard from a wire rack, a picture of the pond, split-rail fence and gristmill with its wooden waterwheel. “Making memories,” I say. “What good is a romantic breakfast without a keepsake?”
“This treasure’s going straight into my scrapbook.” She grins at me.
“Let’s aim for a fridge magnet next visit.”
“Thanks for inviting me,” she says once we’re outside and walking toward her vehicle. “I’ve been feeling drab and cooped up. This was perfect. And thanks for paying. You didn’t have to.”
“Well, thank you for coming. I know a little bit about being cooped up.”
“So how’s that going?” she asks. “Your cases?”
“Well, I have an important hearing this afternoon, and a big deposition on September twenty-ninth. I guess we’ll learn in a few days whether or not I can be a proper boyfriend anytime soon.”
We’re almost at her car door, and she stops and turns to face me. “I hope you get the chance. I have no idea if we’d have anything in common long-term, there’s no way to know, but maybe I’d at least like to have the possibility. This mess, the drug charges and strange lawsuits, sneaking a breakfast with me, no sane person would ever want to buy into that. I hope it all disappears. Hope you win.”
“I’ll call in a few days, after the criminal charges are dismissed and the ankle bracelet’s gone, and we’ll celebrate. Then I’ll just be a regular ol’ broke dude stacking sandwiches. Date?”
“Date,” she says, and I kiss her again, this time for real, and she pushes flush against me—thighs, stomach, breasts. She shifts away after a few seconds, but I’m so smitten and happy that I replay the kiss over and over, become sidetracked by the recollection six hours later when Ward and I are meeting in his office to prepare for court.
CHAPTER SIXTEEN
A TRAIN BUFF, Ward has an original, signed O. Winston Link photograph hung on his office wall, and even at one-thirty on a mediocre September day, and even in a room arranged to favor diplomas, awards, newspaper clippings and an antique Lady Justice statue, the black-and-white picture of a steaming locomotive above the Hawksbill Creek swimming hole—the train, water, bridge and people all storybook lit—is something to behold, commanding. I focus on the scene, and the framed water sets me to thinking about the Mabry Mill postcard, and that chutes me to Lilly Heath and our morning walk to her car. Again.
“Am I boring you, Kevin?” Ward asks.
“Huh?”
“I apologize if this is tedious for you. I might as well be talking to the door.”
“Sorry,” I say. “I was caught up in your train picture.” I give him my full attention. “And we’ve been over this a hundred times.”
“I just want to make sure we’re in total agreement and have covered every base. Lawyers can famously make for difficult clients. Lots of second-guessing.” He maneuvers his chair closer to his desk. “By the way—and not that it changes anything—the sample Kelly Napier sent to the state lab also tested as synthetic urine. No surprise.”
“We’re agreed,” I assure him. “But speaking of bases, I thought of another argument that I believe we should raise.”
“Really?” He sounds skeptical. “And when did this revelation drop from the clouds and land in Meadows of Dan?”
“Lucky for me, last night.”
“Last night, huh?”
I open my briefcase and hand him a typed motion and memo. “Here you go. Barrel number two.”
Ward reads the papers. “Last night,” he repeats when he finishes and flips the stapled pages back to the beginning. “Lucky indeed. Randy Clay will have a stroke…uh, shit, sorry…Clay will hit the roof if I submit this today with no notice. And you want me to tell him and Judge Williams that this defense suddenly came to you last night and that you miraculously pulled this kind of effort together in a few hours?”
“Well,” I say and grin, “you can tell them I worked on it last night and printed it out this morning.”
“It’s a damn clever card to play, Kevin, but you have to—”
“I understand Clay’ll bitch, and the judge will realize that the filing’s an ambush, but I’m a fan of making my point strong and first, and putting the other side on defense.”
“Of course, Judge Williams will allow the commonwealth time to respond. He won’t be thrilled with this eleventh-hour surprise either.”
“Sure,” I agree, “but we’ll have the stage to ourselves today, and Clay will be chasing us from the get-go.”
“Not to mention the grief I’ll catch,” Ward complains, but his tone conveys that he’ll accept the fallout, part of a quality attorney doing his job. “I have to deal with these folks long after your case is over.”
“First, you can blame it on me. It’s my fault. Hell, I want to argue the motion myself, and I plan to, if Judge Williams will let me. Second, as selfish as it sounds, I don’t give a rat’s ass. I’m more concerned about avoiding jail than I am about legal etiquette and Clay not sending you a Christmas card.” I focus on the train photo again. “What was Caleb Opportunity’s taunt: You want to ride on the train or have it run over you? I don’t give a damn how much this pisses off Randy Clay if it’ll help me beat these bullshit charges. The system’s been really fair and mannerly with me so far, right?”
“Yeah, yeah, yeah, yeah,” Ward drones. “I’ll fall on the sword. It’s why I make the big bucks.”
* * *
Judge David Williams does put me in mind of an older Burt Reynolds, if Reynolds were hale and healthy instead of a brittle, toupeed skeleton. Williams begins court on time, welcomes the lawyers and wishes me a good afternoon. I’ve practiced law since 1998, and you can size up most judges within the first few minutes. My early impression is consistent with what Ward has told me—Williams is intelligent, he knows his gig, and he’ll be prepared.
“So,” Williams says, “Mr. Moore is charged with methamphetamine distribution and also possession of a firearm while selling the meth. Mr. Armstrong, you’ve filed a motion to suppress the gun and drugs allegedly discovered in your client’s vehicle when he visited his probation officer. Is that where we are?” His tone is studied and neutral.
“Yes sir,” Ward answers.
I’ve listened to judges intone the particulars of motions and indictments on hundreds of occasions, but hearing my name attached to these flimflam cases makes me so angry and frustrated that—without thinking about it—I stomp the carpeted floor underneath the table. Ward hears the noise and frowns, but fortunately, the leather-against-rug thump stays close and doesn’t carry to the bench.
“Correct,” Randy Clay agrees. He waits for Williams to glance at the file and shakes his head at Ward, miffed because he’s had to spend hours writing a reply brief, interviewing witnesses and preparing for this hearing, valuable time wasted to defend a legitimate search against fanciful, straw-grasping claims by a doper lawyer, a lawyer who should be taking his lumps and apologizing to the profession. “The motion is the result of Mr. Moore’s incredible conspiracy fairy tale.”
Ward fires right back: “There’s nothing incredible about our position other than an incredible and obvious Constitutional violation by the commonwealth.”
“It’s your motion, Mr. Armstrong,” Williams says. “How do you want to proceed? I’ve read your brief.”
“Judge, this is the commonwealth’s little red wagon. There’s no warrant. None. Therefore, it’s their burden to demonstrate that the search is allowable, owing either to consent or some recognized exception. We’ve formally objected for the record. It’s now Mr. Clay’s responsibility to explain how the warrantless intrusion into my client’s car was legal.”
Williams removes his reading glasses and jiggles them against the court file. “Well, it’s not quite so cut and dried, is it, Mr. Armstrong? We have a speedbump, don’t we?”
“Judge,” Clay responds, “it’s more than a bump. It’s a mountain the defendant can’t climb. We have a valid court order, not objected to by the defendant when Judge Morris signed it, that allows the search. Better, even if we didn’t, we have the defendant’s consent, and on top of those two commonwealth winners, we have probable cause.”
“Well,” Williams says, returning the glasses to the bridge of his nose, “Mr. Armstrong, do you stipulate to the sentencing order that Judge Morris entered in the possession case? The case he took under advisement in Roanoke?”
Ward slides a step away from the counsel table. “Yes, Judge, we do. I’ve spoken to Mr. Clay. We agree that an order was entered by Judge Morris. We agree that this court may consider it, and we agree that Mr. Clay has submitted an accurate copy with his brief. We do not agree, however, that it would give Mr. Flanagan, the probation officer, the right to search.”
Williams holds a yellow legal sheet so we all can see it. He studies the paper. “Well, my work’s already been done for me, hasn’t it? United States Supreme Court in Knights, our own Supreme Court in Murry? Justice Kinser wrote Murry; she’s as good a judge as ever put on a black robe. Virginia law is settled on this: If the defendant objects to the court-ordered language modifying his search-and-seizure protections when it’s originally added, all the commonwealth has to prove is reasonable suspicion to search, not even probable cause. If there’s no objection at the time the order is entered, or if it’s part of a plea deal”—Williams pauses to arch his eyebrows at Ward—“then it’s a valid waiver and the commonwealth can search his home, car, belongings and so forth whenever and whyever, no justification required. They can do it for no reason. On a whim. The Anderson case establishes that rule.”
Clay barely waits for the judge to finish. “And there was no objection when Judge Morris entered the order last year. None. In fact, I checked with the special prosecutor, Jane Klein, and I also had a transcript prepared—more wasted time for my office and more wasted money for the taxpayers—and Mr. Moore’s under-advisement status on the cocaine charge was part of an agreement and recommendation. Judge, Mr. Moore agreed to this, accepted the loss of the right as part of receiving a significant break, and now he suddenly wants to cherry-pick from the deal he made.”
“Did you object, Mr. Armstrong?” Williams peers over the reading glasses at Ward. “Did you protest the provision in the Morris order granting a probation officer the right to search Mr. Moore’s person, computer, home or vehicle?”
“We didn’t affirmatively agree to it, and it wasn’t a part of our initial understanding with the prosecutor.” I feel sorry for Ward. The weak deflection is the best he can do for me.
Clay snorts. He looks skyward. He tosses his pen on the table, and it rolls until it stops against a black Virginia Code volume. “Come on, Ward.”
Williams’s demeanor doesn’t change; he’s seen plenty of lawyer theater before. “Did you ever object to the language in the order?” he asks a second time. “Did you say, ‘Hey, Judge Morris, please don’t add that as part of the sentence’?”
Ward’s smart enough not to try the judge’s patience. “Sir, we did not.”
“Thank you,” Williams responds. “So either the commonwealth wins automatically based on the order, or Mr. Clay has to show, at most, some reasonable suspicion for the search.”
“And we can prove reasonable suspicion,” Clay asserts. “In spades. Mr. Moore was dirty for meth minutes before the search, then denied using. What better reason could we have to investigate his car, a location where—by law—he already has a lesser privacy interest? Once he claimed the test was wrong, the probation officer was entitled to take reasonable measures to verify the results.”
