Dead Man's Rule (22 page)

“We don’t have any more evidence to offer right now, but we may later today. I had expected to receive some documents this morning, but they haven’t arrived yet. I would ask the Court for a brief recess, probably not past the end of the day.”

“What are these documents?”

“Even though the defense has been unable or unwilling to produce Mr. Fedorov—despite repeated court orders—we have managed to obtain a number of documents from him regarding the Brothers.”

“You were able to find Mr. Fedorov?” asked the judge in surprise.

“No, Your Honor, just his documents.”

“Are any of them relevant to this case?”

“I don’t know yet,” admitted Ben. “I need to go through them first.”

“And you need to get them before you can go through them,” observed the judge, shaking his head. “This is a trial, Mr. Corbin, not some open-ended truth-seeking investigation. When you’re done putting on the evidence you have right now, you’re done. I’m not going to recess this trial so you can go looking for more. That all has to happen before trial. Now, do you have any more evidence to put in the record, or do you rest?”

Ben stood for several seconds trying to think of some way to buy time, but he couldn’t come up with anything. Hopefully, he’d be able to track down Sergei in time to introduce any new documents as rebuttal evidence after Simeon put on his case. “Your Honor, the plaintiff rests.”

“The defense moves for judgment as a matter of law, Your Honor,” Anthony Simeon said, handing up a stack of papers.

Ben wasn’t happy, but he wasn’t surprised. The defense always has the option of moving for judgment as a matter of law at the end of the plaintiff’s case in chief. If the plaintiff fails to put on any evidence in support of a necessary element of his case, the defendant can ask the judge to end the trial because there’s no need to put on the defense case—the plaintiff’s case is fatally defective no matter what evidence the defendant presents.

“We can have our response on file in forty-eight hours, Your Honor,” Ben said as he leafed through the copy Simeon had given him. It appeared to make essentially the same points as the summary judgment motion the defense had filed earlier in the case.

“No,” the judge said. “The whole point of this motion is that none of us should have to sit through the defense case if your client can’t win. If I give you a briefing schedule on this, then Mr. Simeon has to put on his case anyway—and that defeats the purpose of a motion like this, doesn’t it?”

“You could recess the trial for long enough for this motion to be briefed and argued,” suggested Ben.

“I wasn’t willing to give you a one-day recess five minutes ago. I certainly won’t give you a two- or three-day recess now. Mr. Simeon, are you ready to argue this?”

“Yes, Your Honor.”

“Proceed.”

“Thank you. The very first fact that any plaintiff in a breach-of-contract case must prove is, of course, the existence of a contract. The plaintiff here has not done that. There is no evidence in the record of any contract between Mr. Zinoviev and the plaintiff.

“First, let’s look at the testimonial evidence. Every time Mr. Corbin has asked a witness if such a contract exists, he has received denials. He may not believe those denials, but as the Court just explained, a collection of unbelievable denials does not add up to an admission. No witness has admitted the existence of the alleged contract.

“Second, the documentary evidence. The only contract in evidence is the agreement between Mr. Zinoviev and the Brothers LLC—a contract that covers the same items that the plaintiff allegedly bought and is therefore
completely
inconsistent with the plaintiff’s theory of the case. What else does the record contain? Mr. Brodsky’s signature, some bank statements, and a resolution authorizing the creation of bank accounts in various locations. None of that proves the existence of a contract between the parties to this case.

“It’s also worth noting what the record does
not
contain.” He pointed to the minutes that had just been excluded from evidence. “It does not contain the one document on which Mr. Corbin has founded his whole case. The Court once entered judgment against the plaintiff in the absence of that document, a judgment that was only reversed when Mr. Corbin promised that he would be able to produce a witness to authenticate it. He has not done so. He has produced no evidence that the meeting referenced in that document took place or that Mr. Zinoviev made the statements attributed to him. He cannot even tell you who wrote that document. We move the Court to enter judgment in favor of the defendant.”

The judge nodded. “Mr. Corbin?”

“Yes, Your Honor. I have already gone over the unbelievable testimony offered by the defense witnesses, all of which points to the existence of a contract between Mr. Zinoviev and Dr. Ivanovsky. If there is no contract to hide, then why were they lying?”

“I remember their testimony,” interjected Judge Harris, “but you’ll need more than that to defeat Mr. Simeon’s motion.”

Ben launched into his last argument, which had only occurred to him that morning while he was waiting for Sergei. “Well, Your Honor, even more significant than the testimony of those witnesses who
did
take the stand is the probable testimony of one who
didn’t
. I believe Josef Fedorov is the man who called me that night, and he indicated to us that he would be willing to testify. We subpoenaed him, but he did not come to court. Your Honor held him in contempt, but he still did not come to court. Your Honor issued a bench warrant for his arrest, but even then he did not come to court.

“Mr. Fedorov is a missing witness within the meaning of
Neal v. Nimmagadda
. He satisfies all of the
Neal
factors.” Ben ticked them off on his fingers. “First, he was under the defense’s control and they could have produced him in court, but they didn’t. In fact, it appears that they actively prevented him from testifying. Second, he was not equally available to us. Third, you can bet that if he were going to testify favorably to them, he would have been here. And finally, they’ve offered no excuse for failing to produce him. We therefore ask that Mr. Fedorov’s likely testimony be construed against them.”

“Your Honor,” rejoined Simeon, “the missing-witness presumption only applies to witnesses controlled by a
party
to a lawsuit. Aside from Mr. Corbin’s client, the only party to this lawsuit is the estate of Mr. Zinoviev. There is no evidence whatsoever that the estate controls Mr. Fedorov or is preventing him from testifying. If Mr. Corbin is to be believed, the Brothers—who are
not
parties to this case—are doing that.”

The judge nodded. “That’s my understanding of the law as well. I appreciate your creativity and tenacity, Mr. Corbin, but I’m going to have to grant Mr. Simeon’s motion. There is simply no evidence from which I can conclude that the contract in question exists. Judgment is hereby entered in favor of the defendant. Mr. Simeon, please draw up an order.”

So that was it. Ben stood numb, still rooted in front of the lectern. The case was over, and he had lost. Intellectually, he had always known defeat was a possibility, but he had never really believed it in his gut. Now it was a reality, and it struck him like a shot to the solar plexus.

As required by courtroom etiquette, both lawyers thanked the judge. Ben turned around and started walking back to his seat, avoiding Dr. Ivanovsky’s eyes. Instead, he looked at the blowup of the minutes, absently reading its familiar words. Then he stopped and read them again, remembering something Simeon had just said. His heart began to pound as he read it a third time with growing conviction that his hunch was right.

He turned to face the judge. “Your Honor, the plaintiff requests leave to call one more witness.”

C
HAPTER
T
WELVE

I
N THE
C
HAIR

Sergei awoke to find himself sitting in an unpainted metal chair, a bright light shining in his eyes. He groggily tried to raise his hand to shade his eyes, but he couldn’t—his arms and legs were tied securely to the chair.

A light breeze chilled him, and he noticed that he was wearing only his underwear. He looked down at the floor and another sort of chill ran through him—he saw a wire crudely soldered to one leg of the chair. It snaked across the floor and up to a surge protector sitting on a worn wooden table. The table also held a pair of pliers, a syringe, and a gun.

A small, almost polite cough alerted Sergei to the presence of someone else in the room, hiding behind the glare of the light. “Let me guess,” said Sergei. “The wire and the pliers are to make me talk. The syringe is full of thiopental sodium in case the wire and pliers don’t work. And the gun is the final threat in case the truth serum doesn’t work.”

A hand reached out from the blinding glare and flipped the switch on the surge protector. Electricity coursed through Sergei’s body, seizing his muscles and pulling his face into a rictus of agony. His back arched and he clenched his jaws as he tried not to scream.

After a few seconds, the hand switched the current off. Sergei collapsed back into the chair, breathing heavily.

“In this room, there are two rules,” said a gentle, even voice with a Chechen accent. “First, you will speak only the truth. Second, you will speak only when spoken to. You broke both of those rules. You were wrong about the syringe and the gun. The gun is your reward if you follow the rules. After you have spoken the truth in answering all of my questions, you will die instantly with a bullet through your head. The syringe is your punishment if you break the rules. It is filled with diluted battery acid, not thiopental sodium. It will take hours, maybe days, to kill you. Now I will ask the first question. What is your name?”

The SWAT team made a tight wedge around a battering ram. They waited outside the door of the small two-story house. Each member wore body armor and held an assault rifle or a shotgun. Elena Kamenev stood behind them, her shotgun ready. She wiped nervous sweat off her palms as she waited for the operation to start. According to the Department of Motor Vehicles, this was the address of the owner of the car driven by Sergei’s tail. She dreaded what might lie behind the door.

The commander of the team nodded. The ram sprang forward, smashing in the door. The lead men burst through behind the ram. “Police! Hands in the air!”

The crowd of armed men blocked Elena’s view, but she heard a woman shriek, “It’s the cops, Earl! Cops!”

A confused sound of running feet and slamming doors came from somewhere farther away as Elena waited tensely outside, watching the corners of the building for fugitives. She heard one of the officers yell, “Freeze!” as teams of police ran through the house, looking for more occupants.

After about two minutes, the commander emerged. “All right, ma’am. The building is secure. No sign of Mr. Spassky or the suspect you described.”

She nodded, both relieved and disappointed. “Any sign of criminal activity?”

He chuckled. “Only in the vegetable garden.”

Curious, Elena slung her shotgun over her shoulder and cautiously walked through the door. She found a very ordinary, if slightly tacky, living room, complete with an overstuffed sofa protected by a plastic slipcover. A terrified woman of about fifty-five sat in a chair under the watchful eyes of two policemen as a third questioned her. A simple hair band held her long, straight gray hair away from her anxious face. She wore a rainbow-colored dress that would have been the height of fashion forty-five years ago in San Francisco.

An open door led to a tidy kitchen with pink wallpaper and Formica counters. The water was running in the sink, partially muffling the voices Elena heard through the open window. She found the back door and went out, squinting in the unseasonably warm sun.

The backyard of the house was not large, but it held an impressive vegetable garden and a picnic area. It also had a high privacy fence for reasons that became plain to Elena as soon as she took a close look at the table. It was covered with piles of cured marijuana leaves, some loose and some in plastic bags. It also held a food scale for weighing the crop. A handcuffed man—presumably named Earl—with shoulder-length gray hair and a full beard was arguing with a couple of SWAT team members, or at least trying to. One officer was methodically cataloguing and gathering evidence while a second guarded the prisoner. A third patiently questioned Earl, ignoring his angry outbursts but getting little useful information.

Elena went back inside to see if they were having better luck with the woman. They were. “Here’s the receipt,” she said in a rapid, edgy voice as she handed a piece of paper to her interrogator. “See? Thirty-two hundred in cash. And it’s dated October thirty. It’s just like I told you—we haven’t seen that car since the day before Halloween. That sticks in my mind because we were worried some kids would egg it or something and we wouldn’t get as much for it. So we were really happy when those guys said they wanted to buy it.” She laughed nervously. “I guess we shouldn’t have been so happy.”

The policeman examined the bank receipt carefully and placed it in an evidence bag. “If you sold the car, why is the title still in your name?”

“They said they were going to take care of all the paperwork, but they must not have.” She looked anxiously at the officer as he took notes.

Elena stepped forward and held out the drawing of Elbek Shishani. “Is this the man you sold your car to?”

The woman glanced down at the sketch, her hands fidgeting in her lap. “That’s one of them. He did most of the talking. There was another guy who was taller and younger. He had a real strong accent, and I don’t think his English was too good.” She glanced around the room, and it suddenly dawned on her that the small army of heavily armed and armored urban warriors had not come for her and Earl. “Who are these guys?”

“What is your name?” asked the voice for the hundredth time.

For the hundredth time, Sergei said nothing, and another jolt of electricity wrenched him. It passed and he sagged back into the chair, dazed and only half-conscious. He felt the residual tingling in his limbs and absently wondered what the repeated shocks were doing to his nervous system, but he couldn’t summon the energy to care. He was going to die in this chair, so what did it matter?

“What is your name?” asked the patient voice again, and again Sergei refused to answer. This time the expected shock did not come.

The voice sighed. “You suffer needlessly, Sergei Spassky.” Sergei looked up at the sound of his name. “You are surprised that I know your name? I know many things about you, so there is no harm in telling me. All that will happen is that I will not have to hurt you. Now, what is your name?”

Sergei felt an overwhelming urge to answer, to just give in and stop the pain. It would be so easy. And it would be harmless, just like the voice said. He opened his mouth and was about to speak when he realized that it would
not
be harmless. If he answered this question, it would be much harder not to answer the next “harmless” question. The one after that would be harder still to resist—whether it was harmless or not. The soft-voiced interrogator knew that, and that was why he was asking Sergei these questions.

For the first time in his life, Sergei faced a moment that he could not escape with his glib tongue or his deadly gunplay. He was stripped not only of his clothing but of all his defenses. There was no escape, no ducking and weaving. He either had the strength to resist or he didn’t.

He sat perfectly still for a moment, balanced on the edge of a knife. Then he slowly closed his mouth and stared straight ahead with his back straight and his head up, waiting for the next shock.
They’ll probably kill me,
he thought with bleak resolve,
but they’ll never break me
.

The torturer sighed again, and Sergei saw a hand reach out toward the table from the shadows. He steeled himself, but the hand did not touch the surge protector. Instead, it picked up the syringe. “I am truly sorry that we did not have more time together, Sergei. Things might have turned out differently. I must go shortly, and I cannot leave you here. But before I depart, I will give you one last chance. What is your name?”

The syringe and the gloved hand hovered at the edge of the shadows. Sergei stared at them, unable to tear his eyes away. His heart pounded at the terror of imminent excruciating death and a fog of fear shrouded his mind.

Running feet and voices broke the agonizing silence. A door flew open and Sergei glimpsed a figure sprinting past him. A tense, low conversation in Chechen followed. Then the light went out, and two sets of footsteps walked quickly past him. A door opened and shut, and Sergei was alone in the darkness.

Judge Harris gave Ben a jaundiced look. “Who is this new witness you want to call?”

“Anthony Simeon, Your Honor.”

Judge Harris stared at Ben in surprise. Whispers filled the gallery behind Ben’s back. Anthony Simeon stopped writing the directed verdict order and looked at Ben with faint amusement in his eyes.

Janet Anderson, however, was not amused. She bolted from her chair. “Your Honor, we object strenuously. Mr. Simeon was never disclosed as a witness. And it’s highly improper to call a party’s attorney as a witness.”

Ben was not about to back down. “
Unless
the attorney personally knows information that can’t be obtained from other witnesses. I just realized that Mr. Simeon might have such knowledge, Your Honor. This will take less than five minutes, I promise.”

“I can’t see what unique factual knowledge he could possibly have about this case,” said Judge Harris, “but I expect you intend to enlighten me about that shortly.” He looked over at Simeon. “Are you willing to spend five minutes on the stand?”

“I suppose,” Simeon said in resignation. “We’ll spend more time than that arguing about this.”

“Thank you,” said the judge. “All right. You have
five
minutes, Mr. Corbin.” He took off his watch and placed it on the bench in front of him.

The lead counsel for the defense walked up to the witness stand, was sworn, and sat in the witness chair. It was not a comfortable chair, but he looked comfortable in it.

Standing at the lectern, Ben was anything but comfortable. “Mr. Simeon, when did you first see Plaintiff’s One?” he asked, gesturing to the blowup of the minutes.

“When I wrote them, which was probably on October ten or eleven,” Simeon said nonchalantly.

The courtroom became utterly silent. Ben stood frozen for several seconds, unable to believe his ears. “I, uh, thank you. Um, did you attend—? Strike that. Under what circumstances did you write that document?”

“I am the attorney for the Brothers LLC. In that capacity, I attend certain of their corporate meetings and draft minutes memorializing them. I wrote these minutes after attending a meeting held on October nine.”