Defending the Truth, page 17
Edgar and Joshua walked up to the table.
“Nice t’ see ya, Bernie,” Edgar said.
The judge looked up, startled, and closed the book. The three men shook hands.
“Studying up on some criminal investigation techniques, Judge?” Joshua asked.
“I wish they were all so easy to solve,” Velasco answered and laughed. “So what brings you boys all the way downtown on a boiling hot day like today?”
“Well, Josh here has a little matter that’s gnawin’ at him.”
Velasco looked quizzically at Joshua.
“If you’re uncomfortable, Judge, we’ll have a seat in there.” Joshua nodded toward the main dining room.
“Naw, hell no. This is lunch, not the courthouse. Have a seat.”
Edgar and Joshua sat down, and Joshua handed Velasco the two lawsuits.
Velasco read them, quickly at first, then intently. He breathed deeply and wrinkled his brow. “Rough sons of bitches,” he drawled. “Out to fuck you pretty good, and it looks like they got these low life scumbags Wing and Coxon on the payroll to hold you down while they do it.”
Joshua said nothing.
“When’s the writ of prohibition hearing set here?” Velasco asked.
“Monday at nine, same time as Judge Wing set the OSC up in Phoenix.”
Velasco’s face was drawn. “Figures,” he mumbled.
The waiter came to the table, and they ordered.
“They don’t have a whole lot of respect for me either, do they?” Velasco said.
Joshua didn’t reply, letting his silence be assent.
“I guess they figure that I’ll reinstate Livinsky at the same time Wing is transferring the hearing to Phoenix and divesting me of jurisdiction. That’ll create a nasty little snafu, and everyone will be appealing on technical jurisdictional grounds. The whole mess will be in limbo for at least three or four years till the appeals courts sort it out.” He shook his head disgustedly.
Again Joshua offered no comment. The waiter brought their lunches, and they ate quietly. Velasco was deeply absorbed in thought. His black eyes were squinted almost shut, his thick mustache working up and down methodically with each chew. He sat back after a few moments and wiped his mustache carefully with the cloth napkin.
“If the reinstatement hearing is Monday,” he said, “their written objection to it had to be filed yesterday, right?”
Joshua nodded. “But they didn’t file anything.”
“To change venue, they can’t file a separate OSC, can they? Don’t they have to file a motion in my court?”
“That’s what the statute says.”
“They’re just figuring that the OSC in Phoenix will cure everything. They don’t even have to bother showing up in my court. I’m just a greaser piece of shit.”
Joshua remained silent.
Bernie Velasco sat back in his chair and wiped his lips with the napkin. “Did I ever tell you what the good Judge Wing did?”
Both Joshua and Edgar shook their heads.
“Well, last year the annual judges’ convention was held up in Phoenix. Wing was the guy chosen the year before to set it up and coordinate it all. The year before, it was held at the Safari in Scottsdale, real nice, took my wife and kids and we all had a good time. But Wing’s a member of the Phoenix Country Club and decides it would be nice to have a little golf tournament among the judges as part of the convention, so he sets up the convention at the Phoenix Country Club.” Velasco rubbed his chin and his left eyebrow twitched slightly.
“So I get up there with my wife and kids, and I go to register at the convention center in the clubhouse, and I can’t get past the club manager. He stops me in the lobby and tells me no greasers, niggers, or kikes allowed. So I’m steamed, really fuming. My wife’s got to hold my arm so I don’t pop the bastard in the chops. I tell him to get Jason Wing over here, and about a half hour later—me and my family cooling our heels waiting—Wing comes in off the golf course. He’s got Coxon and Harry Franklin and Tom Moore with him, I guess his whole foursome, and he asks me what’s the problem, and I tell him this manager says I can’t attend the convention because I’m a greaser. And Wing says to the manager, real innocent, gosh, I didn’t know you had a restrictive policy, and the manager just shrugs. And Wing tells me that he can’t do a thing about it, it’s legal to have restrictions in private clubs, and all four of them just turn their asses to me and my wife and kids and walk back out of the clubhouse to the golf course.”
He looked around at Joshua and Edgar. Both men had stopped eating and were watching him intently.
“Helluva group a guys,” Edgar said.
Velasco nodded. “Well, why don’t we just unfuck the situation the best we can,” he said. “When I get back to my office, I’ll issue an order moving the hearing up to tomorrow morning at eight o’clock. I guess if my secretary calls Maitland’s lawyer in Phoenix at about three minutes to five this afternoon and notifies him of the change, it’ll be too late for them to get Wing to do anything. Anyway, since they didn’t file an opposition, I could rule ex parte without even holding a hearing. But I’m going to be a gent and give them every consideration.”
At two minutes after eight the next morning, Judge Bernardo Velasco climbed the bench in his courtroom. The bailiff rapped the gavel and announced, “Come to order, please.”
“This is the time set for the hearing on the application for a writ of prohibition,” the judge said. “Make your appearances, gentlemen.”
“Joshua Rabb for Professor Mischa Livinsky, Your Honor.”
The other lawyer looked as though he had been bitten by a wasp on the tip of his thin nose. It was bright red, the rest of his hatchet face was squeezed white. He was tall and thin, had a full head of carefully slicked-back blond hair, and was dressed in an obviously expensive white linen suit.
“May it please the court,” he said, standing stiffly at the defendant’s table, “I am Harrison Dix from Snell and Wilmer in Phoenix, representing the Board of Regents of the University of Arizona on special appointment by the attorney general of Arizona. I respectfully object to the acceleration of this hearing. I received improper notice of the change and was unable to file a timely objection with the court.”
“You didn’t file a response to Mr. Rabb’s application for a writ, did you, Mr. Dix?” Judge Velasco asked, looking blandly at him.
The Phoenix lawyer swallowed. He was unaccustomed to being upbraded by judges. His law firm was Arizona’s largest, and one of its senior partners had been instrumental in guiding Barry Goldwater’s campaign for the United States Senate. Mere judges did not fuck with lawyers from Snell and Wilmer.
“I have brought it with me, Your Honor,” he said, pulling a sheaf of papers from his briefcase. He walked to the court clerk’s desk and handed it to her. She handed it to Judge Velasco. Velasco put on a pair of half glasses and read it carefully.
He took off his glasses and spoke softly. “Let the record reflect that despite the fact that the memorandum in opposition by the defendant was untimely filed, the court has fully considered it. The court, having considered the application for writ as well as the opposing memorandum filed on behalf of the Board of Regents this morning, hereby orders that Professor Mischa Livinsky be reinstated to his position as tenured professor at the University of Arizona in accordance with the contractual provision of his employment contract. Anything further, gentlemen?”
“Your Honor,” said Harrison Dix, standing quickly, “I most strenuously object to your decision under the circumstances. An OSC has been filed in Phoenix which divests you of jurisdiction in this matter.”
Velasco opened a book on the bench in front of him. “I’m looking at section 21-102, Code of 1939, which says that even if venue for a lawsuit is improper, the original judge has preemptive jurisdiction to hear all matters unless the defendant files an affidavit with him requesting that the lawsuit be transferred. I did not find any such affidavit in the file, Mr. Dix. Am I in error? Did you file an affidavit before this hearing?”
Dix didn’t answer the question. “Surely this court does not arrogate to itself the power to make any definitive ruling until there has been a formal determination by an appellate court to determine whether you have jurisdiction?”
“Do you have a case or a statute that requires me at this time to give up my jurisdiction over this case?”
Dix stood rigidly, making no response.
Judge Velasco closed the book in front of him. “I have just exercised my lawful jurisdiction pursuant to section 21-102 and rendered my decision in this matter. Mr. Rabb will prepare a formal order for the court’s signature.”
The bailiff rapped the gavel and the judge left the courtroom through his chambers door.
By the time he got off the telephone, Tim Essert’s left ear actually hurt. He had pressed the receiver against it so hard that it was sore. He rubbed it gently.
“Two Commie Jew bastards,” Horton Landers had said to him. “Scum like that making Senator Maitland look like an asshole, and all you can say is Tm sorry’?”
“But we’ve been through this, Mr. Landers,” Tim had said. “If I get the grand jury to charge him with treason or conspiracy or something like that, I’m liable to get Judge Buchanan all over my ass.”
“If you don’t you’re going to get Joe McCarthy and Big Bill Maitland on your ass, and you can kiss your future good-bye. And don’t worry about Buchanan. Mike Brink will be calling you in a few minutes.”
Tim stood in front of the window of his office, staring at the courthouse across the street. “Shit!” he screamed at the window.
His secretary came through the door. “Did you want me, sir?”
“Get out!” he hollered.
She quickly closed the door behind her.
He sat down in his swivel chair and rubbed his eyes with balled fists. Then he sat back and breathed deeply, trying to control his anger and frustration. The telephone rang, he answered it quickly, and he and Mike Brink spoke for about five minutes. Tim hung up, feeling quite relieved, and pushed down the lever on his intercom.
“Yes, sir?” Her voice was thin and frightened.
“Let’s get the grand jury recalled for a special session on Wednesday morning.”
“Yes, sir. What time?”
“Make it nine o’clock. And call the Bureau in Washington, tell them I need Special Agents Holmes and Schlesinger back here that day.”
Tim again walked to the window and stared out. He began to smile, both pleasure and a sense of wonder scrubbing away his earlier gloom. McCarthy, Maitland, Gruver, Landers—these men really were the toughest bunch he’d ever seen. Real movers who knew how to get things done. One of them had just pulled off the best goddamn power move that Tim had ever seen.
Tim would manipulate his old cronies on the grand jury, and they would bring back an indictment against Joshua Rabb charging him with conspiracy to commit picketing and parading. Then, instead of having Rabb appear for arraignment and trial before his pinko pal Judge Buchanan down here, they’d arrest Rabb and take him up to Phoenix, arraign him, and have his trial in front of Judge Frederick Coxon.
It had never been done before, and maybe it would never be done again. But it was perfectly legal and brilliantly simple, an elegant fucking. You had to have real respect for men who had the power, influence, and courage to go to Coxon, the chief federal judge for all of Arizona, and pull off a coup like this one.
Chapter 13
Joshua was at the kitchen table eating breakfast when the FBI agents came. It was a little after seven o’clock Thursday morning. He answered the knock at the front door, and they took him by both arms and walked him up the stairs without a word. He had expected some kind of serious retaliation after the reinstatement of Livinsky, and he was not surprised to see J. Edgar Hoover’s hit squad at his front door.
“What are the charges?” he asked.
“Shut your mouth,” Holmes muttered.
They told him to take off his left arm, since it could be used as a weapon. Barbara was standing at the stove making some more flapjacks, and she rushed toward Joshua. Schlesinger blocked her way, and she stood stiffly, tears falling from her eyes, one hand clasped over her gaping mouth, the other on her bulging belly. Magdalena started to come out of her bedroom and stopped abruptly, frozen in the doorway.
Joshua took off his coat and tie and shirt and unbuckled the two-strap leather harness on his shoulder. Holmes took the arm and dropped it to the floor.
Joshua struggled back into his shirt and didn’t have time to button it before they handcuffed his right hand behind his back, by a three-foot chain, to his left ankle.
He had to shuffle with short steps and then hop carefully to keep from falling down the stairs. They placed him in the backseat of a gray Ford sedan, and he could see both Barbara and Magdalena standing close to the picture window, looking down at him. Barbara’s hands were on her belly, and Magdalena had her arm around Barbara’s shoulders.
Holmes drove to Stone Avenue and turned north. This was not the way to the federal building downtown.
“Where are we going?” Joshua asked.
“Shut up, asshole,” growled Schlesinger.
They reached Phoenix two and a half hours later and pulled into the parking lot of the federal building. They pushed Joshua ahead of them through the rear door of the building and into the elevator. On the second floor, they got out and walked to the double wood-doored courtroom with a large rosewood plaque on the lintel with engraved, gilded letters: HON. FREDERICK COXON, CHIEF JUDGE, DISTRICT OF ARIZONA.
The agents sat him in the jury box and Schlesinger stood behind his chair. Holmes walked through the chambers door marked PRIVATE. A few moments later, Assistant United States Attorney Mike Brink came into the courtroom and sat down at the prosecution table.
“Long time no see, Counselor,” he said, smiling pleasantly. He was in his early thirties, good-looking, with brown hair and gray eyes and an impish smile.
Joshua had run into him once before, when he had represented Meyer Lansky during a grand jury probe being conducted by Brink into alleged Mafia ties to the Flamingo Hotel in Las Vegas, and Lansky’s role in the ownership of it as well as his role in securing huge construction loans for it from the Valley National Bank in Phoenix. After fruitless hours in the grand jury room, Brink had learned nothing from Lansky, and he had shaken his finger at Joshua and said, “The worm turns, you bastard. The worm turns.”
The worm had turned.
Judge Coxon came through his chambers door and took the bench. Behind him came Holmes, the court clerk, and the court reporter.
“This is the arraignment in United States versus Joshua Rabb,” said the judge. “Please stand, Mr. Rabb.”
Joshua stood up in the jury box.
Judge Coxon read the indictment: “The United States of America accuses Joshua Rabb of the crime of conspiracy in that on or about the eighteenth day of June, 1951, he did conspire with Hanna Rabb and others known and unknown to the grand jury to commit the crime of picketing and parading, all in violation of Title 18, United States Code sections 372 and 1507. The penalties upon conviction are a fine of not more than five thousand dollars and not more than six years imprisonment. How do you plead?”
“Why am I being arraigned in Phoenix?” Joshua asked. “If any such crime was committed, it occurred in Tucson, and under Title Rule 18 of the Federal Rules of Criminal Procedure, the Tucson Division is the proper venue for the prosecution.”
“I’m afraid that’s just not so, Mr. Rabb,” the judge said mildly. “This isn’t a great big place like New York. The District of Arizona has no divisions, and Title 18 permits the prosecution to be anywhere in the district. As the chief judge, I designate the place of trial. How do you plead, Mr. Rabb?”
Joshua suddenly felt wobbly. “Not guilty.” His voice was weaker than he wanted it to be.
“The trial in this matter is set for Monday, October 22, 1951, at nine o’clock in the morning. Bail is set at five thousand dollars.” The judge slammed his gavel on the round piece of wood before him and left the bench.
“All rise,” intoned the bailiff.
By two o’clock, Hal Dubin had arrived in Phoenix with a certified check for five thousand dollars. He posted it with the federal clerk of court and waited for Joshua to be released from the holding cell in the basement. They drove back to Tucson in almost total silence, very uncharacteristic for Joshua’s usually voluble father-in-law. Hal dropped him off in front of his house without a word and drove rapidly away.
Upstairs in the kitchen, Joshua found a note taped to the refrigerator in Adam’s handwriting: “Taking Barbara to TMC. She’s bleeding, very sick.”
Joshua gasped and fought away a surge of nausea. He saw Barbara’s face in his mind’s eye, distorted with pain, standing at the picture window looking down at him.
He ran down the stairs and out of the house to his car. He sped down Speedway to Swan, turned left to Grant, and was at the emergency room of Tucson Medical Center Hospital in less than ten minutes. It only took him a moment to get her room number from the receptionist and run down the hallway to the obstetrics ward.
Adam was sitting stiffly in a straight-backed metal folding chair by the window of the three-bed room. All of the beds were unoccupied. He was staring vacantly at an orange tree whose branches were weighted down by hundreds of immature green oranges the size of golf balls. Magdalena was sitting beside the bed on a padded wooden chair holding her sleeping baby in her lap. She looked up at Joshua and smiled reassuringly.
“Barbara’s okay,” she said. “But we don’t know about the baby yet.”
“Where is she?”
“In the operating room.”
Joshua sank into an overstuffed armchair covered in dull green Naugahyde. It was warm from the heat in the room and clammy from the moist air of the noisy cooler. He stood up and walked to Adam, still staring out the window.
“You all right?”
“Yes. It was just seeing her like that.” He bit his lower lip and looked away.
