Page 60 of The Right to Remain

“Iasked you a question, Mr. Swyteck, which makes itmyconcern.”

“Yes, Your Honor. My client invoked his Fifth Amendment right during his testimony to the grand jury. We spoke for a short time in a meeting after he testified. Since then, he has unfortunately not spoken to me.”

“Does he refuse to meet with you?” the judge asked.

“He meets with me in person. He sits and listens while I talk. But he does not respond.”

“Does he shake his head or nod? Write down his answer on a piece of paper?”

“There’s no response, verbal or nonverbal. It’s a one-way conversation that ends when I’m finished talking.”

The judge’s expression soured, and then he addressed the prosecutor.

“It sounds like Mr. Swyteck has a pain-in-the-you-know-what for a client. But he also has a point: Why is this your problem, Ms. Weller?”

“Here’s why,” she said. “This is not a client being a pain. It’s a clever strategic move by a defendant who knows he is going to be convicted by a jury. He’s already setting up his appeal.”

“An appeal on what grounds?” the judge asked.

“The U.S. Supreme Court has held that the constitutional right to counsel means a right toeffectiveassistance of counsel. I can already hear Mr. Stafford’s appellate lawyer arguing that Mr. Swyteck was unable to provide ‘effective assistance’ because of a lack of communication with his client.”

The judge scratched his head. “I don’t think that argument holds water where the lack of communication is the defendant’s own doing. But even if it did, what do you want this court to do at this juncture?”

“I want a clear statement on the record from Mr. Swyteck confirming that he believes he can provide effective assistance to his client even though his client refuses to speak to him.”

“Judge, I object,” said Jack.

“Hold on,” said the judge. “Ms. Weller, if he won’t make such a statement? What then?”

“Then the State of Florida asks that the court order replacement counsel.”

“Do you have someone in mind?” asked the judge.

“We have very talented public defenders right in this building. Every day, they meet their clients for the first time out in the hallway, have a ten-minute conversation, and then strike a plea bargain with prosecutors from my office. The law does not require a ‘meaningful relationship’ between defense counsel and their clients. It requires only that the attorney explain vital rights and the meaning of the most important decisions. If Mr. Swyteck isn’t comfortable working under these circumstances, let him say so now. And let’s get a PD assigned to this case who can do an effective job.”

Judge Garrison checked the clock on the wall. “Mr. Swyteck, you’ve got sixty seconds. I don’t necessarily agree with Ms. Weller that your client is dumb like a fox—pun intended—and is already setting up his grounds for an appeal. But it does seem that he’s playing games. So, let’s hear from you, yes or no: Can you provide effective assistance of counsel under these circumstances?”

Jack had represented men on death row with IQs below 50, clients so strung-out on drugs they couldn’t remember their own name, and gangbangers who would have sooner stabbed him than followed his advice.

“Judge, the short answer is yes, I can be an effective advocate for my client. However, I disagree with the suggestion that my client is playing games. My investigation is just getting underway, but I have a good-faith basis to believe that my client has been intimidated into silence.”

The prosecutor threw him a nasty look. “Intimidated by whom?”

Technically, all Jack had to go on was his own instincts, triggered by Elliott’s barely discernible reaction to his mention of a threat at the end of their last meeting, and a gun destruction business that seemed tobe about something other than the destruction of guns—none of which would have sounded like much to Judge Garrison.

“I’m not prepared to make specific accusations at this time,” said Jack.

“And we’re out of time anyway,” said the judge. “Ms. Weller, you got what you asked for, and a little extra something you didn’t want. That’s the way these things go. Maybe you’ll do better at the Arthur hearing. For now, this court is adjourned.”

With a bang of the gavel, and on the bailiff’s command, everyone rose. As the judge exited through the side door to his chambers, Jack made his way to the prosecutor’s table.

“We really don’t have to do things this way, Julianna,” he said in a conciliatory tone.

“What way?” she asked, as she packed up her trial bag.

“Ambushing each other with pointless motions.”

She slung the bag over her shoulder and looked Jack in the eye. “Your client murdered a retired FBI agent. This vow-of-silence malarky that the two of you cooked up isn’t going to get you anywhere.”