"Court's in session," Judge Hamilton announced, rapping his gavel.

The deputy moved forward and presented a copy of the message Angus brought to Wes during the lunch break. The judge put his glasses on after beginning to read it without them. He obviously went over every word, looking at Wes as he contemplated the page he held.

"Sidebar," the judge said sternly, removing his glasses to watch Wes approach him.

Ben Green was in the dark, but Wes knew what was coming. The judge sat silent, leaning back in his chair. It was obvious he hadn't made up his mind about the note yet.

"You know what this note says?" he asked Wes, staring into his face without showing any emotion.

"Yes, sir. I've got corroboration, but until we found someone that would verify our suspicion, I didn't ask you to look at it. I think it might explain things more thoroughly if you looked at it now."

"Can I get in on whatever is going on?" Ben said.

The judge leaned to hand the page to Ben Green.

"I made a copy for him," Wes said. "Sorry, it's no fun for me, Ben."

Wes handed the extra copy to the opposition.

"If you're blowing smoke up my ass, Mr. Mathews, we're going to have a regular donnybrook, you and I. You were making good points. There was every chance you were going to get your handsome doctor off the hook. Why do this?"

"Your Honor, we've been stymied at every turn. Every witness has been tampered with. We've fought an uphill battle to get this far. You've seen the irregularities I've pointed out to you. I don't create drama when I'm living one. This needs to be addressed and if, in the end you feel I'm blowing smoke, I'd expect you to take action against me."

"You can bet on it," the judge said, rapping his gavel. "Short recess. We'll be right back. In my chambers, gentlemen."

Once again the three men sat facing each other. This time Ben Green and Judge Hamilton held a single sheet of paper.

"What's this mean? What's going on, Your Honor?"

"There is some question as to whether or not this case has been tampered with. You certainly haven't missed it, Ben."

"By whom? Tampered with?" Ben said horrified.

Wes opened his briefcase withdrawing copies of the articles documenting Dr. Parsons opposing Wendell Clark at trial."

"These are the two cases in question. This is the motive," Wes said, shoving the article about Wendell Clark withdrawing from the district attorney's race, after losing at trial. Vince's expert testimony credited for making the difference. "I have copies of the transcripts from the trial for you, Your Honor. They're right from Ben's office."

Wes stood up and handed the same articles to Ben Green, who looked at them cautiously. Only Judge Hamilton got the transcripts.

"What does any of this prove?" Ben Green growled, as Judge Hamilton read each article with care, shuffling each page, reading it and shuffling another page to the top. He was obviously interested in the information.

Once he'd read the articles, Judge Hamilton stared at Wes, drumming his fingers on the table. He looked at the third article and compared the date to the second article. He picked up the sheet of paper with Donald Rhodes intended testimony, reading it anew.

"I want to call Ben," Wes said.

"Wes, you can't call Ben. Not in my courtroom. You think you're Perry Mason?"

"I beg your pardon," Ben objected. "You aren't calling me. This is irrelevant. It has nothing to do with the facts in this trial."

"I want him under oath. I want to ask him the question," Wes said, and Judge Hamilton drummed his fingers, reading the pages all over again. "If Wendell Clark tampered with Donald Rhodes, why am I supposed to accept that he didn't instruct Ben Green?"

"You're going to end up with a mistrial, Wes. We'll end up right back here in six months, because I'm not missing a rematch between you two. You're more fun than a barrel of monkeys, but don't try to make a monkey out of me.

"I see the connection you're trying to make and a former prosecutor testifying that Wendell Clark told him to refuse to deal with you is tampering, not as if it isn't done routinely. Without the other half dozen irregularities I'm aware of, this case should have been pleaded out before prelim. All three of us know it's the normal course in such cases. Make me an offer I can't refuse, and I won't refuse it.

"Yes, technically Dr. Parsons is guilty of driving under the influence, but I have some question about his reasoning behind his refusal to take the breathalyzer. I held out the three different copies of the arrest records and the jury won't see them, but I've seen them, and I'm not stupid. They're troubling without corroborating evidence of tampering. Now Wes brings me this to further complicate what's already a nightmare. I don't need to tell either of you, I'm not happy.

"The paperwork at the jail was a gift to Clark. Once they missed giving Dr. Parsons the blood test, Wendell had an open field. He should have stayed as far away from this case as he could, but he decided to try to direct the verdict he wanted. I have no fondness for Wendell. I've never liked him, but it gives me no joy to know he may well be on his way to destroying his career with his vindictiveness.

"The case was overcharged and my instructions are clear enough that the jury would skip past negligence and go right to the DUI charge. It could have been plea bargained away.

"Our being here seems to be Wendell Clark's doing. We've got a DUI case to try and when all is said and done, that's the case the jury is going to get. I'm telling you this, Ben, because I don't blindside prosecutors, but you've chosen to put yourself here. I'm fair and I'm not a fool. Don't treat me as if I am one.

"At the moment, in my opinion, we're talking probation for two years and I give him a good scolding, make him do a hundred hours of community service, shall we say, St. Vincent DePaul. He'll need to give up his driver's license for the sake of political expedience. We can't show favoritism and I don't see how you prove he wasn't over the legal limit, Wes. It was up to him to see to it the blood test was taken, since he refused the other test. It seems fair," Judge Hamilton said proudly to Wes, thinking this would make the rest of it go away. "The rest of this is going to be litigated somewhere else at another time. I'll see to it Wendell Clark answers for whatever of his improprieties that can be proved. I think that's fair."

"To whom?" Ben Green asked.

"It's not good enough, Your Honor. If you want to call a mistrial, that's not my intention. All I want is to get it on record we've been screwed by the prosecution from the beginning. The jury isn't going to understand what it means but there will be an investigation and Wendell will need to answer for his activities.

"If I lose at trial, I'll appeal, using this as grounds. We finish the trial and if my client is found not guilty, the court and the bar can take a look at the DA's transgressions. That's all I want. That and my client's life back. We can't wait to give him his life back if we can get it done at trial."

Judge Hamilton drummed and stared. He looked from Wes to Ben Green and back.

"Clear the courtroom. You, me, Ben, and the court recorder. Let me ask him the question. It goes into the record. Then you've got to do something about it. It doesn't matter what happens to the case now, it's not going to stand, unless my client is found innocent and we walk away knowing justice was done."

"That's your story, Wes," Ben Green said. "Your client is guilty from where I sit. I plan to prove it."

"I can't let you call him. It goes against my better judgment, not to mention it is highly irregular. …He'd have to agree to the terms you set forth, only we'd need the deputy to swear him," Judge Hamilton explained. "I won't put the prosecution on the stand, unless he agrees to it with whatever stipulations that make it possible for him to do it."

"Ben?" Wes said.

Ben Green held tight to his briefcase and he was the one staring now. He looked at the sheet of paper with Donald Rhodes' statement, reading it for the first time, taking his time before speaking.

"Under the circumstances Wes described. Clear the court. I'll answer the question to get it on the record. I may be ruthless, but I won't be party to a felony. I had no knowledge of what Wendell Clark had in mind during my discussions with him, when he invited me to take this case. I've got no reason to conceal anything he said.

"The case continues, once I answer his question. I want a crack at your doctor's, 'I only had a sip of port defense.' Those are my terms."

"It's going to be dinner time before we finish playing around," Judge Hamilton said. "We need to do it now, before we resume the trial this afternoon. It'll be easy enough to find in the transcript. Right after halftime Friday. "We'll be here until eight o'clock tonight. Let's do it before I realize I can't or shouldn't."

"Whose courtroom is it if not yours, Your Honor," Ben Green said. "You can do anything you want. I plan to do that when I'm a judge."

Judge Hamilton may or may not have heard Ben's comment. He stood up and fastened his robe, sending the two attorneys out to be seated before he made his entrance.

Rapping his gavel as soon as he sat down, he revealed the plan.

"Ladies and gentlemen of the jury and those present in the courtroom, I need to clear the court for about five minutes. It's a technical situation that won't take long. Please leave now and you'll be told when to return," he said, rapping his gavel authoritatively. "The deputy and court reporter stay. Everyone else can leave."

After the court was cleared, Judge Hamilton called the court to come to order. He called Ben Green to take the stand. The deputy swore him in as Wes stood in front of the witness stand.

"Your show, Wes. Ask the question," Judge Hamilton said.

"Your name is Ben Green and you are prosecuting this case?"

"I am Ben Green and I am prosecuting this case."

"Ben, did Wendell Clark attempt to tamper with this case?"

"I want to qualify my answer. Wendell Clark came to me and asked me to prosecute this case. He asked me to refuse any discussion of a plea arrangement and object to any reduction in charges. He, in particular, wanted to keep the negligence charge because it was most likely to lead to the doctor losing his license to practice medicine. My impression was that he wanted the doctor unable to ply his trade. This was fine with me and they came in the form of requests, not orders."

"Ben," Judge Hamilton said. "Do you regard that as tampering?"

"I might not ordinarily, but what Rhodes had to say is strikingly similar to the conversation he had with me. I won't volunteer anything more, Wes, but you probably need to probe deeper. I mean that's what I'd do if I had you on the stand. Maybe ask what else he had to say."

Wes lit up at Ben Green's candor.

"Did Wendell Clark, District Attorney of San Diego, say anything you regard as relevant to this case?"

"Another qualifier. Wendell knows I'm ruthless," Ben Green said, smiling, almost embarrassed by his admission. "I'll do anything to put the dirt bags in jail. I like to win. What Wendell said to me wasn't anything I wouldn't say. In fact, I've said it, but it was the way he said it that bothered even a hardass like me. I didn't give it a second thought, until I read the statement by Mr. Rhodes. The difference between when I say, 'I'm going to get that son-of-a-bitch,' and when Wendell said it about Dr. Parsons, it was personal when Wendell said it. I didn't know it then, but it's obvious to me now.

"I want you to know, if I knew they had a history, which I didn't, I'd never have taken the case. He wanted me at trial because I am ruthless. Once I'd agreed to try the case, he explained, 'even if we can't prove negligence at trial, defending against it will break him.' Once again, I regarded this as his brand of ruthlessness. I didn't mind that.

"I never liked Wendell, but I don't like anyone. For me it's never personal, I figure everyone's guilty and I want them all in jail.

"His final comment the last time we spoke was, 'I've got that son-of-a-bitch and I'm not letting him slip away.'"

Ben Green smiled the same embarrassed smile, agreeing completely with the sentiment.

"You think he's vindictive enough to do this to someone, Ben?" Judge Hamilton asked. "Malicious prosecution is what it's called?"

"He's doing it, Your Honor, and you've still got nothing to prove Dr. Parsons isn't guilty of the charges. I intend to get him, but I won't protect a guy that's using me to get him. He wants to convict Dr. Parsons for personal reasons. For me it's business. It's what I do. If the trial continues I'll do all I within my power to put your handsome young doctor behind bars."

"I would expect no less," Judge Hamilton said.

"After I put the doctor in jail, who knows, I might run for District Attorney of San Diego. I got a feeling the job is coming open soon," Ben Green said, smiling. "Then I might run for judge."

"Okay, let's go back to work. It's in the record, Wes. Does that give you what you need? Ben wants to finish and if you say it's a go, we'll pick up where we left off. After trial, I'll get the transcript in the hands of the proper authorities," Judge Hamilton said.

"Yes, I want to continue. Dr. Parsons deserves a chance to get his life back now, not in six months, or six years. Thank you, Ben. Thank you, Your Honor."


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"Benz" Copyright © 1 February 2012 OLYMPIA50. All rights reserved.
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