Exchange Of Hearts

November 24, 2002

Disclaimer and Author Notes: JAG and its characters belong to you know who. I'm only going to borrow them for a little while, but I promise to put them back when I'm done. (At least until I want to play with them again). It should be obvious that no profit is being made from this.

Feedback is always welcome at dcamp@wheelerlegal.com

"I still don't see what the big rush is," Mac grumbled as she fastened her seatbelt in the passenger's seat. She said this despite the fact that she DID know what the rush was.

Ensign Frank Mickewich had been arrested by Baltimore Police on a charge of attempted murder. On leave with other members of the crew of the USS Brunswick, Mickewich had gotten drunk in a local bar. A fight between Mickewich and fellow seaman Thomas Fernald left both men bleeding. Mickewich was heard loudly threatening Fernald's life before being dragged from the bar by others. A half hour later, Fernald left the bar. He was pulled into an alley two blocks from the bar and stabbed three times with a three-inch switchblade. He was left to die in the alley. He was found a short time later by a passing resident, who called an ambulance. Currently, Ensign Fernald was holding onto life by a thin thread.

The Navy likes to prosecute its own, which was the reason for the haste in dispatching the JAG team to investigate. The longer Baltimore PD held onto him, the harder it would be to get him back.

While Mac understood this, she was miffed for several reasons. First, she'd had a date scheduled with Mic tonight. He hadn't been very happy when she'd called to cancel. He hadn't asked about her traveling companion, which was a good thing because the words they'd had would have been harsher if he'd known. Secondly, a severe winter storm was moving up the coast which was expected to drop as much as fifteen inches of snow on the upper half of the eastern seaboard in a relatively short period of time. Finally, she was not looking forward to spending several hours in a closed automobile with Harmon Rabb.

Harm hadn't been exactly looking forward to this trip either. His relationship with Mac was tense and uncomfortable. Gone were the days when they enjoyed each other's company and bantered cheerfully back and forth. They'd both made choices, and they were both living with the fall-out from those choices.

He, too, had had words with Renee when he'd called to tell her he was going out of town. She HAD asked who he was traveling with. Harm had asked her what difference it made, which was all the answer she'd needed. He wasn't worried about the storm, though. His SUV could handle anything.

They rode for a while in silence. The going was slow. The snow had already accumulated to three inches.

"Why are you driving anyway?" Mac grumbled. She seemed to be itching for a fight.

"Because it's my vehicle," Harm said matter-of-factly. "We could have taken your ‘vette."

They both knew that was a terrible idea. Neither spoke again for some time.

Road conditions were getting treacherous. Snow continued to fall, reducing visibility dramatically. The few cars on the road were forced to a crawl.

Harm rounded a curve to find police car lights flashing, blocking the highway. Despite the fact that he had been traveling less than thirty-five miles per hour, it was some time before his vehicle came to a stop.

A policeman approached the car. "Where you headed?" he asked.

"Baltimore," Harm said. "Is there a problem?"

"Tractor trailer jack-knifed half a mile up the highway. Road's closed and probably will be for a few hours. I'd suggest you either turn back or find someplace to wait it out."

Turning back wasn't an option. "Are there any hotels nearby?" Harm asked. Mac glared at him.

"Take this exit," the officer directed, pointing. "There's a little place about a half mile up on the right."
"Thanks," Harm said. He put the window back up and started toward the exit.

"You could have consulted me first," Mac complained.

"What other option do we have, Mac?"

She didn't respond. At least she wouldn't have to be in this car with him anymore.

This was not going well. Because of the weather and the proximity of the tractor trailer accident, the normally sleepy motel was nearly filled to capacity. Mac and Harm got the last room, and neither was very pleased to be sharing it.

The room was good-sized, although it only had one double bed. Harm offered it to her.

"No, you take it," she said. "I won't be able to sleep anyway."

Harm thought about arguing with her, but decided against it. He sensed her combative mood and really didn't feel like fueling her anger. He stripped to his boxers and climbed between the sheets.

"Jeez, he could have argued a little!" Mac thought to herself. She sighed loudly and threw herself into the room's only chair. This was going to be a long night.

Harm woke up shivering in the darkness. He sat up. Once his eyes adjusted, he could make out Mac's silhouette as she sat in the chair across the room. "Mac?" he mumbled. "What time is it? And why is it so cold?"

"It's three ten," she said. "The power went out an hour and eighteen minutes ago."

"Have you slept at all?" he asked.

"Off and on," she lied. She hadn't slept at all.

Harm got out of bed and went into the bathroom to relieve himself. When he returned, he asked, "Want the bed for a while?"

"Nah, you go ahead," she said.

"Are you all right?" he asked. "On the way down, you seemed sorta edgy."

"I'm fine," she said into the darkness. "Mic's getting a little tired of all the away trips."

"Renee doesn't like them much either," Harm said quietly.

"We're a pair, aren't we?" Mac mused. "Sitting around in our underwear in the middle of the night talking about relationships."

"Are you in your underwear?" Harm joked.

Mac smiled, then sighed. Why did he always joke when the conversation got anywhere near serious? It wouldn't make any difference if I was sitting here naked, she thought.

"Better get some more sleep," she advised. "It's going to be a long day."

Harm quietly got back into bed. He'd sensed her mood shift. Why couldn't it be like it used to be between them? he wondered. He'd like to have their easy friendship back. He didn't realize that because of what he'd said on the ferry, for Mac it could never be the same.

After some wrangling and a lot of negotiation, they finally convinced Baltimore PD to release Ensign Mickewich to the Navy's custody. It didn't take much of an investigation to conclude that there was enough evidence to charge Mickewich: a barfull of people had heard him threaten Ensign Fernald; Mickewich's buddies had left him shortly after dragging him out of the bar, thereby depriving him of an alibi; and finally, most damningly, Mickewich's fingerprints were on the knife, which had been carelessly tossed into the alley beside Fernald.

Admiral Chegwidden ordered Mac to prosecute Mickewich and Harm to defend. Mickewich was loudly proclaiming his innocence and refused to consider anything but a plea of not guilty to all charges. Three days after the assault, Ensign Fernald died of his injuries, and the charges were upgraded to murder.

Harm was having a difficult time believing his client's protestations of innocence. He had no credible explanation for where he was at the time of the assault. He said only that he'd been out walking and that he didn't remember seeing anyone who could confirm that. He had absolutely no explanation for how his fingerprints could have been on the murder weapon and denied ever having seen the knife.

Harm had tried to get Mac to offer a lesser charge in exchange for a guilty plead, but he had two problems. First, his client adamantly refused to even consider pleading guilty to anything despite his counsel's warning that the deck was stacked against him.

Secondly, Mac refused to consider anything less than the murder charge. She knew she had Mickewich cold, and there was no way she was going to let him off. Harm didn't blame her. She had a great case, and he wouldn't have considered a lesser plea had he been in her shoes.

Mickewich was confident because he thought he had a card to play. Unfortunately for him, he overestimated the value of his trump card, and he underestimated his opponent.

Mac's first witness was one of three she intended to call to testify regarding the fight in the bar. It had taken many interviews before she'd found the relatively few individuals in the bar who hadn't been drinking, but she'd finally found three.

"State your name for the record, please."

"Adrian Cummings," the witness stated.

"And how old are you, Mr. Cummings?" Mac asked.

"Forty-two."

"Where are you employed?"

"I work at the Boyle Street Pub as a bartender."

"Were you working the night of July fifth?"

"Yes."

"Why do you remember that date, Mr. Cummings?"

"There was a fight at the bar that night."

"Surely you must see lots of bar fights," Mac noted.

"Sure, but usually one guy doesn't kill the other."

"Objection!" Harm interrupted. "States a conclusion."

"Sustained," the judge ruled. "Just answer the questions, Mr. Cummings."

The witness nodded. Mac permitted herself a small smile. She hadn't asked a question. "Was anyone in the courtroom a participant in the fight on that evening?"

"That guy there," Cummings said, pointing at the accused.

"Let the record show that the witness has identified the accused, Ensign Mickewich," Mac said. She handed the witness a photo. "Is this the individual that Ensign Mickewich fought with?"

"Yup, that's him."

"I'd like to introduce prosecution exhibit one, which is a photo of the deceased." Mac handed the photo to the judge. Harm had already seen the photo and indicated with a nod that he had no objection to its being admitted into evidence.

"Would you tell us about the fight, please, Mr. Cummings."

"Well, that guy," again Cummings pointed at Mickewich, "and the dead guy were in each other's faces, yelling. I couldn't make out what they were saying. Suddenly, they started swinging. They both connected a couple of times before two guys hauled him out the door. As he was being carried out, he yelled, ‘I'll kill you, you bastard!' or something like that."

"And when you say ‘that guy' and ‘he', you're referring to the accused?"

"Yes, ma'am."

"Thank you, Mr. Cummings. I have nothing further." Mac sat down.

Harm stood up. "Mr. Cummings, did you see Ensign Fernald leave the bar after the fight?" he asked.

"No. I was too busy."

"So you don't know when he left?"

"Nope."

"And you have no idea what happened to him after he left the bar, do you?"

"Nope," the witness readily admitted. Mac had prepared him well and told him not to worry about what he didn't know.

"No further questions." Harm sat down feeling like he hadn't done much to lessen the damage this witness had done.

Mac next called Keith Payson, who testified he was a 29-year old mechanic. He said he'd been at the bar the night of the fight with friends. His version of the fight was nearly identical to Cummings'.

"Mr. Payson, how much had you had to drink that night?" Harm asked.

"Nothing."

"Nothing?" Harm asked, clearly disbelieving the witness.

"No, sir. I was the designated driver. My buddies and I all take turns. That night was my turn."

Mac had known the answer to that question and had contemplated asking Payson herself to get it out in the open right away. She'd decided to let Harm ask, knowing that he would. She calculated it would take a little wind out of Harm's sails this way, and she thought now she'd been right. Harm finished up by asking Payson if he'd seen Fernald after he'd left the bar. Payson had not.

Mac's third witness was Anthony Wainer, a 24-year old milk delivery truck driver. His testimony was similar in all respects to the two who had come before him.

After his testimony, they broke for lunch. When the courtroom had been cleared and his client taken to his holding cell, Harm and Mac were alone at their respective counsel tables.

"Did you find everybody in that place who hadn't been drinking?" he asked jokingly.

"I believe I did," Mac confirmed. "Pretty effective, don't you think?"

Harm smiled grimly in response. "Lunch?"

"No, thanks. I'm gonna stay here and work."

After lunch, Mac called Ensign Jason Quigley to the stand. Quigley was stationed aboard the Brunswick and had accompanied Mickewich and one other fellow seaman to the bar that night.

"Do you know what started the fight, Ensign Quigley?" Mac asked.

"No, ma'am. Frank had gone up to the bar for a refill, and he got into the fight on his way back. By the time I realized what was happening, they'd started swinging at each other. Glenn and I jumped on Frank and hauled him out of there."

"Ensign Quigley, do you consider Frank Mickewich to be a friend?"

Quigley looked uncomfortably at the accused and said, "Yes."

"Your friend gets into a fight, and you jump on him, rather than the other guy? That's a little unusual, isn't it?"

"Objection," Harm said. "This witness can only testify as to what he did."

"Overruled."

"I thought it was best, ma'am," Quigley said.

"And why is that, Ensign?"

"Frank has a temper, ma'am. I was afraid of what he might do."

"Frank has a temper," Mac repeated. "And you were afraid of what he might do." She let that statement linger in the quiet courtroom.

"Your honor," Harm said into the silence. "Is counsel going to ask a question?"

"Nope, I'm done," Mac said, smiling brightly.

Harm was surprised. She hadn't taken Quigley through what happened after they'd left the bar with him. Then he realized that she wanted him to do that himself. That obviously would only hurt his case, and he'd be damned if he'd give her the satisfaction of nailing his own client to the wall for her. There was nothing he needed this witness for, and he informed the court that he had no questions.

Mac smiled because he hadn't taken the bait. It didn't matter. She had another witness to establish what she needed.

Ensign Glenn Kershner was the third person in Mickewich's group that night. Mac had him testify regarding the fight, Mickewich's temper, and how he and Quigley had dragged the enraged man out of the bar.

"How would you describe Ensign Mickewich after you dragged him out of the bar?"

"I'd say he was enraged, ma'am."

"Did he make any further threats against the victim?"

"Objection, your honor," Harm said. "The prosecution hasn't established that Ensign Fernald was a victim."

"Your honor, I'd say it's obvious that Thomas Fernald was a victim. He's dead."

"Be that as it may, Colonel," the judge admonished. "You must still prove a connection."

"All right. I'll rephrase the question. Did Ensign Mickewich make any further threats against Ensign Fernald after you took him out of the bar?"

"A couple of times," Kershner admitted. "He told us to let him go so he could go back in there and kill the bastard."

"Did you let him go?"

"Not at first, ma'am. He was too mad. After ten minutes or so, he calmed down. Jason and I left him then. He said he wanted to walk back to the ship."

"Did you see him again that night?"

"No, ma'am."

"Thank you, Ensign."

Again, there was nothing Harm could do, other than have Kershner confirm that after he'd left Mickewich, he had no idea where Mickewich had gone or what he'd done.

Mac's next witness was Ensign Stan Wilson. He and Fernald had gone to the bar together that night. Wilson hadn't seen what started the fight, and before he could intervene on his friend's behalf, others had pulled the combatants apart. Wilson had heard Mickewich's parting threat. Twenty minutes later, he testified, Fernald wanted to leave.

"I told him I was staying," Wilson said.

"Why, Ensign Wilson?" Mac asked gently. She knew how bad Ensign Wilson felt about letting his friend go alone.

"I'd met a girl, ma'am. I didn't want to leave because I'd met a girl."

"So Ensign Fernald left alone?"

"Yes, ma'am."

"Did you see him again that night?"

"Yes, ma'am. After I heard what happened, I went to the hospital. They let me see him for a minute. He was unconscious."

"Thank you, Ensign Wilson."

Mac sat down, and Harm got to his feet.

"So you let Ensign Fernald leave alone?"

"Yes, sir."

"If you'd left with him, do you think he'd be alive today?"

Mac was on her feet immediately. "Objection! Calls for speculation. Besides, Ensign Wilson isn't on trial here."

"Sustained."

"Did you see Ensign Mickewich leave the bar?"

"No, sir."

"So you have no idea where he went?"

"No, sir."

"Or what he did?"

"That's correct, sir."

"Or if he was anywhere near Thomas Fernald at the time he was attacked?"

"No, sir."

"I have nothing further," Harm said and sat down.

The judge looked at his watch. "Colonel, will your next witness take longer than twenty minutes?"

"Quite possibly he will, your honor."

"We'll recess until 0800 tomorrow then." He dismissed then with a bang of his gavel.

"Dinner?" Harm asked as he closed his briefcase.

"No, thanks. I've got work to do."

"More nails for the coffin?" Harm joked.

"Wouldn't you like to know?" she teased. "Not that it would help you if you knew."

Harm knew she was right. He also suspected she was avoiding him.

When court convened in the morning, Mac called Baltimore Police Detective Sean Lessard. He had handled the initial investigation before Mickewich had been turned over to the Navy. Mac took him through his credentials and then asked him to describe the crime scene.

"I arrived on the scene before paramedics had removed the injured man. I took some photographs while they were working on him."

Mac interrupted. "Are these the photographs?" she asked as she handed him a bunch of photos.

He looked at them before responding. "They are."

"Prosecution exhibit two, your honor."

"No objection," Harm said.

"Please continue," Mac directed.

"After the victim had been removed, we searched the alley. Along with a bunch of garbage, we found a three-inch switchblade knife. The blade was open, and there was blood on the blade."

Mac handed him a knife. "Is this the knife you found?"

The detective looked at it. "That's the mark I made, yes."

"And can you tell us if you found any fingerprints on the knife?"

"Objection, your honor," Harm said. "This witness isn't a fingerprint expert."

The judge turned to the witness. "Did you do the fingerprint testing yourself?"

"No, sir."

"Then I'll sustain the objection."

After admitting the knife into evidence, Mac went on. It didn't matter. The lab tech who did the fingerprint analysis was awaiting his turn to testify if needed. She had Detective Lessard describe how they'd identified Mickewich as a suspect and how he'd been arrested.

Harm asked the detective if he'd considered other suspects. The detective rather sarcastically told him after they knew the accused's fingerprints were on the murder weapon, they'd stopped looking for other suspects.

Mac's next witness was Sergeant Charles McManus. He testified regarding his analysis of the fingerprints on the knife and the fingerprints of the suspect. He concluded beyond any doubt that they were the same.

Mac's final witness was Dr. Christine Preston, medical examiner for the City of Baltimore. After establishing her qualifications, Mac had the doctor testify that Fernald had three deep stab wounds in his back, one of which penetrated into the right kidney. Fernald also had bruising on the front of his neck. On Mac's careful questioning, the doctor hypothesized that someone had stolen up behind Fernald, put an arm around his throat, and stabbed him fiercely with a sharp object. The knife found in the alley matched perfectly the wounds in the victim's body. Although the knife was only three inches long, some of the damage it had caused showed up more than three and a half inches into the body, suggesting that great force had been used when delivering the blows. Dr. Preston testified that she'd tested blood samples from both the accused and the victim for alcohol content. Fernald's was 1.1 and Mickewich's was 1.2. Finally, Dr. Preston testified that the blood on the knife matched Fernald's blood.

With that, Mac rested, confident that even Harmon Rabb couldn't pull this one out of the fire.

Harm knew he was in deep trouble. Mac had painted a circumstantial box around his client, and there was nothing he could do to get Mickewich out. His client had given him nothing to work with: not witnesses, no way to corroborate his claim that he was nowhere near the scene of the attack at the time it occurred, nothing. Harm hadn't even been able to find anyone who could provide testimony regarding Mickewich's good character. The man was universally disliked by most and tolerated by a few. Even those that tolerated him admitted what a fierce temper he had.

Harm was left with putting his client on the stand, and he had very mixed feelings about doing that. The only change they had was that the members would believe his story. Harm thought the chances of that were very slim. The chances were much greater that Mac would rip Mickewich to shreds on the stand. Ultimately, Harm put him on the stand because Mickewich insisted on it.

After a lunch break, Mickewich took his place in the witness box. Harm first had him describe his military service. He led him gently into the night in question and had him describe the fight. According to Mickewich, Fernald had called him derogatory names and goaded him into fighting.

"Did you threaten to kill him, Ensign Mickewich?"

Mickewich looked sheepish. "Yes, sir. I did. I was pretty mad."

"What did you do after your friends took you outside?"

"The guys stayed with me for a while. Then I started walking. I met up with an old buddy, and we spent the rest of the night catching up on old times. He's right back there," Mickewich said, pointing to a man in the back of the courtroom. "Ted Casselli."

Harm couldn't believe what he was hearing. Bells and whistles were sounding in his head, and he was too numbed to shut his client up. Finally, he came to his senses. "Your honor, I'd like to request a brief recess."

Mac stood up. "I object. We just had a break. And I also object to this other witness testifying. His name is not on the witness list, and if he was going to testify, he should have been sequestered."

"Counsel, approach, please," the judge ordered.

Harm and Mac approached the bench. Mac was ready to fight this tooth and nail.

"What's going on here, Commander Rabb?" the judge asked.

"I need some time to confer with my client," Harm begged.

"You just had an hour," Mac pointed out.

"Your client seems to have caught you by surprise," the judge noted. "I'll give you fifteen minutes, Commander."

"Sir, about this witness . . ." Mac started.

"I'll have him removed from the courtroom, Colonel," the judge interrupted. "If Commander Rabb wants to call him after his client testifies, you can renew your objection at that time. And I have to warn you, Commander, I'll probably sustain that objection." He motioned them away from the bench and banged his gavel. "We'll take a fifteen minute break. I apologize to the members for the inconvenience."

Grim-faced, Harm followed his client back to the conference room. "What in the hell are you doing?!" he exploded after the door had been closed.

"What do you mean?" Mickewich asked, taken aback. "I've got a witness who will say I was with him. How is that bad?"

"You can't really be this stupid, can you? Everybody in that room saw through that cheap ploy! And even if it was the truth, which I doubt, we can't use a witness we haven't identified. This isn't Perry Mason, Mickewich! It's real life! And you are really screwed!" Harm took a deep breath to calm himself. "Is that guy really willing to come in here and perjure himself?"

"It's only perjury if someone proves he's lying, right?" Mickewich challenged. "How could anyone prove he was lying?"

Harm sighed. "I can't put him on the stand if I know he's going to lie! Hell, I can't even put you back on the stand! Look, we've got only a few minutes to figure out what we're gonna do to save this. I think you should change your plea."

"No. I won't do that."

"If we rest with what we've got now, they're going to convict you."

"I'll take that chance."

"Changing your plea now could keep your sentence down. I can't promise you anything, but let me talk to the Colonel," Harm tried to reason.

"She's not gonna deal with you. That bitch has us right where she wants us."

"You watch yourself," Harm warned, pointing at Mickewich. "But you are right about one thing. She does have us where she wants us. You should change your plea."

"I won't do it."

"Then you leave me with no choice but to rest."

"So rest."

Harm did when they returned to the courtroom.