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  “I never shot a gun my whole life.”

  Gomez stood up and walked out of the room, slamming the door behind him. Rafael flinched at the sound, then shook his head, disappointed with himself for showing weakness. He knew Jaworski was studying him for just such signs.

  “This is really it,” Jaworski said quietly. “You make a statement right now, we write it up that you cooperated, that you came forward and admitted what you did. You might even be able to plead down to man one. Once we get a residue hit, you can still help yourself, but it won’t mean the same thing. You’ll be looking at murder two at best. That white security guard was hassling you, throwing your grandmother out of her home, all that fuss over you smoking a blunt. I understand, son. I do.”

  “You don’t got the right to call me son,” Rafael said, glaring back at Jaworski, the two men locked into a staring contest broken only by Gomez’s return.

  “What’re you gonna have to say for yourself now?” Gomez said. “Your hand tested positive for gunshot residue.”

  “You lying to me,” Rafael said. “I know you all are allowed to lie. I haven’t shot a gun, not tonight, not never.”

  “I guess we’ll just have to see who a jury believes, your lying ass or forensic science.”

  “I’m done talking to you. Get me my lawyer.”

  “You agreed to speak with us, Rafael,” Jaworski said quickly.

  “You hear me? What I say? Lawyer. I want my lawyer.”

  a cognizant v5 original release september 18 2010

  6

  THIS IS all fucked up,” Duncan said.

  “Don’t shoot the messenger,” Lily Vaughan, the other senior associate on the Aurora case, replied.

  It was around ten in the morning, the two of them surveying a conference room in their office. It was their team war room for both the wrongful-death suit and the DA’s subpoena, the entire room filled with boxes and binders of documents.

  “How did this get so fucked up?”

  “We left it in the hands of first-years. First-years don’t know what the fuck they’re doing.”

  “And so they fucked it up,” Duncan said. “And now we’re supposed to fix it?”

  “If not us, who?” Lily said, looking over at Duncan with a slight smile. “If not now, when?”

  “Somebody else and later?”

  “That would be nice, yes. But no.”

  Duncan wondered if he and Lily were flirting, something they still occasionally fell into doing, though their relationship had ended some time back. Lily had lateraled over from Paul Weiss a little more than two years ago. She’d been personally recruited by Blake after he’d defended a deposition she’d taken. Duncan had tried not to feel threatened, though at the time he’d been Blake’s sole lieutenant, the two before him having both made partner the year before.

  He had found Lily attractive but hadn’t acted on it, wary of a workplace involvement. But then a few months after Lily had started, the two of them had spent a long week in Denver interviewing the sales force of a pharmaceutical company as part of an internal investigation into allegations of off-brand marketing of a prescription drug. Their third night they’d ended up emptying the minibar in Lily’s room, trading stories of the various lies they were being told, and one thing had led to another.

  Their relationship had officially lasted less than nine months, although they’d continued to occasionally sleep together for nearly a full year after breaking up. They’d finally put a stop to that a few months ago—Lily’s idea—and were still negotiating where exactly that left them.

  Things between them had been complicated from the start, and not just because they were coworkers. There was also that they were both biracial: Duncan the son of a white mother and a black father, Lily the daughter of a Japanese mother and a white father. The roll of the genetic dice had played out very differently for them, however: Duncan appeared Caucasian, while Lily looked conventionally Japanese, at least to American eyes. While their racial backgrounds had been part of what had brought them together, the differences in how it had played out for them—the way appearance had formed their respective identities—had a major role in breaking them apart.

  Navigating their breakup was made considerably more complicated by the intricacies of their professional relationship. They were both Blake protégés, so they worked closely together, but they were also competitors. They’d each be up for partnership in about six months, and there was always the chance the firm’s partners would decide they had room for only one of them. Or, for that matter, neither.

  There’d be a few other associates up for partner at the same time, but Duncan and Lily were widely acknowledged as leading the pack, and not just because they had the firm’s most powerful partner in their corner. They were both gifted strategists, able to predict what the other side of a case was going to do and counter moves before they’d even been made. Lily was small—barely over five feet—and quiet—the rare lawyer who listened more than she talked. As a result she was regularly underestimated by people who let her physical presence and demeanor blind them to the fierceness of her will and the depths of her intelligence, which processed information at a speed even Duncan couldn’t match.

  As a smaller, newer, and less stuffy firm, Blake and Wolcott tended to attract associates who were less rigidly conventional than those who flocked to the more established white-shoe firms, although it was every bit as selective. Perhaps that was why Duncan and Lily had ended up there. They were members of the new multicultural meritocracy that was increasingly replacing the mainline WASP establishment that had traditionally dominated the city’s elite law firms.

  Duncan and Lily were supervising both the discovery in the wrongful-death civil case and the response to the DA’s subpoena. The overlapping document productions were a massive undertaking: there were hundreds of thousands of pages to sift through, an attorney having to look over each page before they’d turn it over. Such document review was, if not the absolute worst part of big-firm practice, a pretty serious contender for the title.

  In addition to checking for relevance and privilege, the other purpose of the review was to try to uncover whatever documents would actually tell any kind of useful story from their client’s perspective. The goal was to assemble a collection that would fully exonerate Roth Properties from any knowledge of, or complicity with, safety shortcuts at the Aurora; failing that, to establish that the company’s files were simply a dead end in terms of understanding the accident’s cause.

  This task, along with the rest of the document scut work, had been left to a couple of first-year associates, along with a handful of contract attorneys—temps who made their living floating around the big firms, assisting with the most mundane aspects of discovery. But instead of an organized collection of helpful documents, what they had was a sprawling mess of disorganized papers, veering between the irrelevant and the unhelpful. Neither Duncan nor Lily had been paying much attention to the document review, so it wasn’t until this morning that Lily had popped over to check in. She’d called Duncan five minutes later.

  “I thought Neil was your golden boy, Dunk,” Lily said. Duncan had every confidence in Neil’s intelligence, but clearly something had gone wrong here.

  “Don’t call me Dunk. I’ll talk to Neil.”

  “Do we need to tell the Blake?”

  “Let’s fix it first, then worry about the Blake,” Duncan replied as the phone in the conference room rang. “Expecting anyone?” Duncan asked.

  “I’m sure it’s good news,” Lily said dryly. Duncan nodded as he made his way over to the phone: nobody would have tracked them down here unless there was a problem.

  Duncan saw on the caller ID that it was Joan, his secretary. “Your pro bono client is calling for you,” she said after he’d picked up. “I told him you weren’t available, but he claimed to be under arrest.”

  Duncan snapped to full attention. “Under arrest?” he said. “What for?”

  “I wasn’t par
ticularly able to understand him,” Joan said. “But he seemed to be saying it had something to do with a murder.”

  Duncan was at a loss as to what could possibly be happening. “Okay,” he said after a moment. “When you say it had something to do with a murder, do you mean that he’s under arrest for murder?”

  “I really don’t know,” Joan said. “Shall I transfer him?”

  ALTHOUGH HE’D worked on a number of white-collar cases, Duncan by no means considered himself a criminal defense lawyer. The criminal defendants the firm represented were either corporations or their senior executives: Ivy League–educated blue bloods who were worth millions of dollars. The cases were often regulatory in nature, brought by an agency such as the SEC, rather than the district attorney’s office, which handled more blue-collar crime. Defending such cases had as much to do with defending a murder as brain surgery did with oral surgery. Duncan had never even been to the city’s criminal courthouse on Centre Street before, which was far dirtier and more run-down than the federal courthouses where most of his cases were housed.

  Duncan’s main exposure to conventional criminal law had come almost five years ago, when his half brother, Antoine, had been arrested for armed robbery in Detroit. Duncan hadn’t been directly involved in the defense, but he’d ended up as his family’s unofficial liaison with the criminal lawyer they’d hired. Duncan had gotten a copy of the file, done his best to keep as close an eye on the case as he could from New York, but in the end he’d agreed with the lawyer’s recommendation that Antoine take a plea.

  Antoine had gotten out of jail just a few months ago. Duncan hadn’t seen his half brother since his release, had visited him only once in prison, and that over two years ago. They’d never been close, never lived together, but Duncan still felt guilty that he hadn’t been able to do more to help Antoine.

  It took Duncan a while to navigate his way to Rafael. Finally he was shown to a small row of stalls in back of one of the arraignment courtrooms. Duncan entered the tiny room, which barely had enough space for its lone chair, closing the door behind him. In front of him was a metal grille separating him from where his client would be.

  Rafael was brought in through the opposite door a few minutes later, looking both frail and angry. All of this was as foreign to him as it was to Duncan: other than the disorderly conduct charge coming out of the pot bust, Rafael hadn’t had any run-ins with the law. Yet here he was, suddenly in the major leagues.

  “Let’s start at the beginning, Rafael,” Duncan said, doing his best to ignore their surroundings. “They’ve really got you here on a murder charge?”

  “That’s what they say,” Rafael said.

  “Who are they claiming you killed?”

  “Sean Fowler.”

  “Fowler,” Duncan said, surprised. “The security guard who busted you?”

  “He didn’t bust me doing nothing,” Rafael said angrily. “I told you that’s just some bullshit.”

  That the victim was Sean Fowler was not good news, Duncan thought. Rafael had an obvious motive for killing the man who was directly responsible for the fact that he and his grandmother were facing eviction.

  “You got to get me out of here,” Rafael continued. “They’ve had me here since last night. I haven’t been to sleep.”

  While Duncan wasn’t sure what all might happen next, he was confident that Rafael’s just getting to go home was not among the possibilities. “We’ll see if the judge agrees to set bail at the arraignment. But even if he does, it’s likely to be a lot of money—I don’t think you should assume you’ll be going home today.”

  “They’re just making all this shit up,” Rafael protested. “How they gonna have somebody say they saw me do something I didn’t do? How they gonna say they found gunpowder on my hand when I didn’t shoot a gun?”

  Duncan was not keeping up, but was getting a sinking feeling nevertheless: any hope that the police had picked up Rafael only because he had a motive for shooting Fowler was out the window. This looked like a real case, with solid evidence. “You’ve got to back up for me here,” he said. “Tell me everything that happened.”

  Rafael nodded and took a deep breath, his eyes wet, trying to collect himself. He ran Duncan through the police coming to his apartment and arresting him, telling him they had an eyewitness, their finding gunshot residue on his hand.

  “This doesn’t sound good,” Duncan said when his client was finished. He saw no reason to sugarcoat the obvious: Rafael was sunk deep into serious trouble, and it wasn’t going to just go away.

  “You really think I popped Fowler? I got you working on keeping my abuela in her home. You just won in court. We’re fighting it the right way.”

  “I know you are, Rafael.”

  “So what do we do now?”

  By training and personality, lawyers rarely admit when they don’t know what to do. Duncan didn’t feel particularly tempted to tell Rafael how little he understood about how a murder case would play out. He was also virtually certain he wouldn’t be around to find out: his firm had signed up for a straightforward eviction case, something that would presumably take up less than one hundred hours of Duncan’s time. Defending a murder was a different level of commitment by an order of magnitude. Plus it wasn’t exactly what the firm had in mind when launching a pro bono initiative. And even putting firm politics aside, defending a murder fell outside of Duncan’s skill set. “I can represent you at arraignment, see about bail. But I think it’s unlikely I’m going to be able to keep your case past today.”

  Rafael looked like he couldn’t believe what he was hearing. “What do you mean? You’re my lawyer.”

  “I’m your lawyer on the eviction. But this now is a murder charge. I’d be way over my head, Rafael.”

  “I’m not taking no public defender. That’s how come all this got so fucked up in the first place.”

  Perhaps because he needed to believe that his grandmother wouldn’t be evicted, Rafael had clearly put his full confidence in Duncan’s abilities from the first time they’d met. Duncan suspected that Rafael assumed that having a rich person’s lawyer would get him a rich person’s justice. There was some kernel of truth to that, Duncan supposed, but it didn’t mean he’d really be able to stop the eviction, let alone the murder charge. People often viewed a legal case in the same way they viewed a football game: there could be the occasional bad call or stroke of luck, but generally speaking the best team won. But Duncan knew the analogy didn’t really hold: the underlying facts and the relevant law were determined before the lawyers ever took the field, and often a case was virtually unwinnable or unloseable from the start. While a bad lawyer could always find a way to screw up, and a good lawyer could make it more difficult for his opponent to win, experience had taught Duncan that in most cases the outcome was not determined by anything the lawyers did, but was rather a largely inevitable application of the law to the facts. There was no magic bullet in Duncan’s arsenal.

  “I understand why you don’t want a public defender, but this isn’t what I do, Rafael. I wouldn’t have the first idea what I was doing in a murder case.”

  Rafael looked at him with a mix of pleading and anger. “But you got that hardcore firm you work for. You got connections. I get some lame-ass free lawyer, I know where that shit’s going to end—me in jail for the rest of my life.”

  Duncan was uncomfortable with letting Rafael down, but he didn’t think it was helpful to be unrealistic. “I hear you, man, I do,” he said. “But it’s not really going to be up to me. My firm would have to sign off on it, and I gotta tell you, I don’t really see that happening.”

  “You won’t even ask?”

  “I’ll ask,” Duncan said. “But you have to promise me you won’t be surprised when the answer I get back is no.”

  There was a knock on the door behind Rafael, which then opened before he had time to respond, two uniformed court officers in the doorway. “We’re ready to take your guy before the judge,” one said to D
uncan.

  Duncan had never done an arraignment before. He’d faked his way through plenty of things practicing law, but never an actual court proceeding. He didn’t get to stand up in court very often, so when he did he was always meticulously prepared. Here he was winging it, but he couldn’t back out: Rafael was his client, at least for now, and besides, Duncan had already identified himself as Rafael’s lawyer in order to get to see him. He made his way to the crowded courtroom, sitting in the front row, which was reserved for lawyers. The room was loud, people constantly shuffling in and out, a bored-looking judge spending no more than a couple of minutes on each case.

  Duncan waited a half hour for Rafael’s name to be called, spending the time studying the parade of other arraignments. They were all pretty straightforward, but then again, none of them were murders.

  Finally it was Rafael’s turn before the judge. The ADA, Andrew Bream, was young and blond, with a jock’s body and a frat boy’s smirk. He made his appearance, Duncan then doing the same, stating his name and that of his firm. The judge then turned back to the ADA. “People?”

  “The defendant is accused of killing a former New York City police officer,” Bream said. “An officer who was a witness against him in a prior criminal case. We have an eyewitness, another former police officer who ID’d the defendant the same night as the murder. The People seek remand.”

  “The victim was working as a private security guard, not as a policeman,” Duncan rejoined. “And the prior case was resolved with a disorderly conduct plea. My client lives in public housing. He has no resources to speak of. I’d ask that bail be set at one thousand dollars.”

  The judge appeared to find this funny. “On a first-degree murder charge? The defendant is remanded until trial.”

  And with that they were finished, the court officers set to take Rafael away. “My abuela,” Rafael said urgently.

  “I’ll go see her,” Duncan said, a little disoriented at the speed with which things were moving.