Chapter 12
The air-conditioning repairman left around lunchtime, and by midafternoon, Jack’s office was finally cooling down. Bonnie
interrupted him with a light rap on the door frame. Jack looked up from his desk.
“Elliott Stafford is here,” she said.
“Does he have an appointment?”
“No. But he says it’s important.”
“Then he should have answered my texts and phone calls, which he hasn’t done for the last two days.”
“Do you want me to tell him he’s no longer your client, or should I show him in?”
It took a lot to justify firing a client on the brink of a grand jury appearance. “I’ll see him.”
Jack moved to the armchair in the sitting area. Bonnie returned with his client, showed him to the other chair, and left them
alone. Jack didn’t rise to greet him or say a word. He waited for Elliott to explain his strange behavior since Jack’s meeting
with the state attorney.
“I see you fixed your AC problem,” said Elliott.
“Lucky for you, if you’re going to insist on wearing a suit and tie every time you visit.”
“It’s my look,” said Elliott.
“Really? The last few days, I would have guessed you were more of a ‘cloak of invisibility’ kind of guy.”
“I’m very sorry about that. It wasn’t my intent to ignore you.”
“I don’t think it’s possible to ignore someone without intent.”
“If I was ignoring you, it was more out of fear.”
“It’s normal to be afraid of testifying before a grand jury.”
“There’s more to it than that.”
Jack appreciated the honesty—finally. “My meeting with the prosecutors did not go well. But it sounds like you knew that much
without me having to tell you.”
“I know the system is stacked against me.”
“The system? Or the facts?”
“Which facts?”
“Let’s start with all the facts you neglected to tell me. The fact that you were convicted of a class-one felony as a juvenile.
The fact that Elliott Stafford is a new name.” Jack waited, but Elliott said nothing. “I don’t hear a denial,” said Jack.
“Those are true statements,” Elliott said softly.
“Okay, what do you say we reintroduce ourselves. Hi, I’m Jack.”
“I’m Elliott.”
“I meant your other name.”
“That name is dead to me.”
“That doesn’t make it nonexistent.”
“In the eyes of the law it does.”
“No, a name change ‘under seal’ doesn’t mean your old name ceased to exist. It means no one can see it without a court order.
Your criminal conviction, on the other hand, has been expunged. That’s something entirely different. Expunged means it’s as if the conviction never happened.”
“To me, it’s all the same. That name, that time in my life—that person—is dead to me.”
“I take it you have no intention of telling me about the crime you committed or what your name was at the time.”
“That’s exactly right.”
Jack rose. “Then I’m afraid I can’t be your lawyer.”
Elliott’s mouth was agape. “You can’t fire me. I paid you.”
“Bonnie will write you a check before you leave.”
It was a tough stance, but it wasn’t the first time Jack had found it necessary to scare a client into telling him the truth.
“I have to testify before a grand jury on Friday. I need you.”
“Yes, you do. And I need you to be honest with me.”
Elliott took a moment, thinking. “All right.”
Jack settled back into his chair. “No more secrets?”
“No more lies,” said Elliott.
Jack saw a distinction, but he let it go for the moment. “That’s a good start.”
Elliott took a breath, then asked, “Do you mind if I take off my tie?”
“No problem. I don’t mean to kill your fashion statement, but outside the courthouse, I don’t know anyone who wears them anymore.
The pandemic did for neckties what JFK’s inauguration did for top hats.”
“Who?”
Once upon a time, it had been common knowledge that John F. Kennedy’s refusal to wear a top hat to his presidential inauguration
had put an end to that fashion accessory. Elliott’s reaction was yet another reminder that Jack wasn’t getting any younger.
“Never mind. Yes, by all means, lose the tie.”
Elliott raised his chin, unfurled the silk knot, and slid off his tie. As he slowly unbuttoned his shirt collar, he locked
eyes with Jack, as if to make sure that Jack was watching closely. Then he removed a small packet from his coat pocket, tore
it open, and unfolded a wet wipe. He applied it to his throat and cleaned away the makeup.
“A little shadow right above the Windsor knot gives the illusion of an Adam’s apple,” said Elliott.
It suddenly occurred to Jack that the only time he’d seen Elliott without a necktie was the time he’d worn a lacrosse uniform,
including pads and headgear, to C. J. Vandermeer’s demonstration.
He turned to show Jack his profile, the smoothness of his neck.
“Eventually, I may opt for a more permanent solution,” said Elliott. “For now, the necktie and the makeup do the trick.”
“You’re trans?”
“Duh.”
“Your old name—that was from when you were a woman?”
“My dead name. Yes.”
“Do people know you’re a trans man?”
“Some people figure it out. But as far as I’m concerned it’s nobody’s business. Except for my girlfriend, Sheila, who you
met.”
Jack had guessed they were more than just friends. “Who else knows?”
“No one at VanPoll Enterprises. Maybe a few people suspect. But no one has said anything.”
“Does Patricia Dubrow know?”
“She’s one of those who figured it out. When she made the referral, she said it was up to me to decide whether to tell you.
But she did warn me that you might be transphobic. So, I was waiting for the right time.”
“Wait a minute,” said Jack, wounded. “Patricia told you I might be transphobic?”
“Well, what she actually said was that your father was no friend to the LGBTQ community as governor. A staunch opponent of
gay marriage.”
“That’s my father, not me. I’m not transphobic, homophobic, or anything of the sort.”
“No need to explain. It’s actually okay if you’re transphobic. Really. Patricia said that would make us the twenty-first-century
version of Tom Hanks and Denzel Washington.”
Jack didn’t make the connection at first. “Are you talking about Philadelphia—the movie?”
“Yes. Patricia told me to watch it. Tom Hanks won an Academy Award playing the gay client dying of AIDS. He hired a homophobic lawyer
played by Denzel Washington to sue his employer for discrimination. And he won, even though his lawyer was antigay.”
The labels were starting to irritate Jack. “I need you to stop it,” he said.
“Stop what?”
“Stop trying to turn this conversation into a pity party for poor Elliott, whose lawyer is mean to him because he’s trans.
It doesn’t matter to me that you’re trans, any more than it matters if one of my clients goes under the knife for a facelift and a tummy tuck, has a standing appointment for Botox injections, or smears on Brazilian bum-bum cream every morning.
But if my client had a name change or is a convicted felon, I need to know. Am I clear?”
“Yes, and I’m sorry,” said Elliott. “The most important thing Patricia told me was that I couldn’t find a better lawyer than
Jack Swyteck. I don’t want to lose you.”
Jack appreciated the contrition but remained firm. “If I decide not to represent you, it’s not because you’re trans. It’s
because I can’t trust you to tell me the truth.”
“I already promised not to lie to you.”
“Good. Let’s start with your felony conviction, and I’ll make this as easy as I can for you. If I, as your lawyer and someone
you can trust, in the privacy of this office, asked you what the conviction was for, your answer would be—”
Jack paused, waiting for Elliott to fill in the blank.
Elliott looked away, then back. “Let me explain why that question bugs me. Do you mind?”
“Not at all. Communication is a good thing.”
“As a criminal defense lawyer, would you refuse to represent someone accused of a very serious crime—murder, let’s say—if
they refused to tell you if they were guilty or innocent?”
“No. I’d rather have a client who will neither ‘confirm nor deny’ than a client who lies to me.”
“That’s what I thought. Now, I haven’t even been charged with a crime. I’m telling you straight up that I had nothing to do
with Owen Pollard’s death. But for some reason, the sky is going to fall unless I tell you all about an unrelated crime I
committed as a juvenile, which was expunged from my record by the court, which I understand to mean that if the prosecutor
asks me about it, I can legally tell her under oath, ‘No, I’ve never been convicted of a crime.’ Am I right?”
“That is what expunged means,” said Jack.
“To me, that’s the end of it. It’s embarrassing and painful for me to talk about it, all right?”
Elliott seemed genuine about “embarrassing and painful,” and it was hard to see any relevance to Owen Pollard’s death. Jack
didn’t need to press it—at least not yet. “Let’s put a pin in that, for now,” he said. “Conviction or no conviction. Expunged
or not. I’m going to give you the same advice I’d give to anyone in your situation.”
“My situation being what?”
“You haven’t been charged with a crime, but you’re not just another witness the prosecutor has subpoenaed to testify. You’re
under suspicion.”
“But why?” he asked, exasperated. “I really don’t get it. Why am I under suspicion for anything?”
“At this point, I have no idea,” said Jack. “But I suspect it’s because there’s more you’re not telling me. Which only makes
me more firm in the advice I’m about to give you.”
“And your advice is what?”
“When the prosecutor calls you into the grand jury room to testify, I want you to state your name and address for the record
and give the following answer to any additional questions: ‘Under the advice of legal counsel, I decline to answer based on
my right to remain silent under the Fifth Amendment of the United States Constitution.’”
“That’s crazy. Why would I take the Fifth? I just told you I didn’t have anything to do with Owen Pollard’s death.”
“That’s not the point. Guilty or innocent, no one under suspicion of committing a crime wins a battle with a prosecutor in
a grand jury room. There’s no judge. There’s no defense lawyer to object to unfair questions. The prosecutor runs the show.
Take the Fifth.”
Again, Elliott paused to think. “I can’t do that.”
“Why not?”
Elliott took a deep breath. “How many people are on this grand jury?”
“Twenty-three.”
“Hypothetically, let’s say we pull twenty-three people off the street at random. A true cross section of society. What do
you think the odds are that at least one of those people would think I’m a criminal just because I’m trans?”
Jack took his point. “Prejudice is very real.”
“Yes, I can tell you firsthand that it is. And now you want me to reinforce that prejudice by asserting my right against self-incrimination.”
“Taking the Fifth is not an admission of guilt. The right to remain silent goes hand-in-glove with the government’s burden
to prove guilt beyond a reasonable doubt.”
“Oh, come on. Anyone who has ever watched an episode of Law & Order knows that when witnesses take the Fifth, it’s because the answer could incriminate them. Look, I don’t go around telling everyone I’m a trans man. I’ve told people to their face it’s none of their business.
But if someone asks if I’m trans, I have never—and will never—respond by saying, ‘I refuse to answer on grounds that I might incriminate myself.’”
Jack would have liked to give Elliott the assurance that the prosecutor would never ask such a personal and irrelevant question,
but there were very few guardrails on what a prosecutor could ask in a grand jury room.
“Elliott, I respect what you’re saying. But testifying before a grand jury is a stressful situation, and the prosecutor has
total control. It’s impossible for anyone to proceed on a question-by-question basis and parse out when you might incriminate
yourself by answering and when you won’t. Do yourself a favor. Embrace your constitutional rights and take the Fifth to everything.”
“I have a better plan. I’ve done nothing wrong. I say I take the Fifth to nothing.”
“That’s foolish and contrary to my best advice.”
“I understand your advice. I reject it. Where does that leave us?”
His decision seemed firm, and despite the risk, Jack respected that his client was standing on a principle that Jack had never encountered before, at least not in this context. “We have a lot of work to do before Friday,” said Jack.
“When do we start?”
Jack checked his calendar. “Let’s block out tomorrow morning. I need to figure something out before then.”
“Figure what out?”
Jack gave him a sobering look. “How to save you from yourself.”