Steve had told Hamilton today’s meeting was so they could go over any final questions before their preliminary hearing at 1:30 p.m. before Judge McCuan. But Steve’s real plan was to present Hamilton with the new evidence and see if Hamilton would fess up. At this point, Steve knew that Hamilton’s best option was to plea; however, that would never happen as long as the man kept denying his guilt.
Hamilton arrived on time, and Carol showed him to the conference room in the back. After leaving him with a soda, she went into Steve’s office.
“Hey, Mr. Death Penalty, your embezzler is here to see you. I put him in Conference Room B—assuming you still have time for your other clients.”
Steve said, “Thanks, Carol,” before shaking his head and muttering something under his breath as he got up. He walked to the conference room, and the two men exchanged pleasantries before Steve got down to business. Steve sat at the end of the long wooden table near Hamilton who had been placed in the first seat along the side earlier by Carol.
“Okay, we are set for your preliminary hearing this afternoon. Before we go forward with that, I want to make sure you understand all of your options. Most importantly, I want to make sure
I have answered any questions you have.”
“Sounds good,” replied Hamilton. “My first question is: What exactly is a preliminary hearing?”
“A preliminary hearing is a gate-keeping procedure wherein the state must prove that there is probable cause to believe a crime has been committed and probable cause to believe you are the one who committed that crime,” said Steve. “If the state is unable to meet that burden, then the case is dismissed. However, you should understand that, at this point, they only have to show probable cause, not proof beyond a reasonable doubt as they will at the final jury trial.”
“I’m not sure I understand. What is the difference between probable cause and beyond a reasonable doubt?”
“Probable cause simply means the evidence shows it probably happened. Beyond a reasonable doubt means there is almost no doubt in the jury’s mind you committed the crime charged. A simple analogy would be to think about two children playing in the other room, and a lamp falls over and crashes. The mother could meet the burden of probable cause against both children because she was in the room next door, heard the crash, and immediately came in to see the broken lamp. But she would only have proof beyond a reasonable doubt against either child if one of the two confessed, and the other agreed. Without the confession, she does not have proof beyond a reasonable doubt against either of them,” Steve explained.
“So, the state could win a preliminary hearing against both children, but couldn’t win a jury trial against either?”
“Correct, unless they got more evidence against one of them, like a confession, or maybe the dad saw what happened from outside or whatever.”
Hamilton frowned. “It sounds like it doesn’t take much evidence for them to show probable cause.”
“Correct again, the state wins probably 90 percent of all preliminary hearings because, if the prosecutor knows he or she can’t meet the burden, they usually dismiss the case without wasting time having a hearing. But if they think they have enough evidence to get past the low burden of probable cause, they proceed.
“Also, the law in Oklahoma assumes that the prosecution will continue to gather more evidence after the hearing and make their case even stronger before trial. So, yes, it is a very low burden, and they almost always win at this stage. You should understand that most defense attorneys never put any evidence on for the defense at these hearings, and I don’t plan on putting on any evidence today myself.”
“Why not? Shouldn’t we prove my innocence now?”
“No. The main purpose of this hearing, from our perspective, is not to win the hearing, but to hear the testimony and evidence the state has available so that we can begin to come up with a strategy to defeat them at trial. They are basically forced to show their cards while we are able to keep ours tight. If we put on evidence, we would give them an idea of our strategy. Make sense?” “Yeah, your plan sounds good to me,” Hamilton said.
“However,” Steve continued, “we have another option. We can waive this hearing, should you choose to do that.”
“Why would I waive the chance to see their evidence?”
“Well, the first reason is that I already know what evidence they plan on producing. They are required to show me the police reports and other documentation they have gathered. I just haven’t been able to ask questions of any officers involved or cross-examine them about their actions, which, in your case, wouldn’t truly produce much more information. Your case is not like a traffic stop or something similar where the officer is a key witness. In those cases, we might be able to catch the officer lying or admitting to doing something wrong that would let us keep evidence out of the hearing.”
“And what’s the second reason?” Hamilton asked.
“The second reason is that Ms. Turner, who is the prosecutor in your case, tends to look kindly upon defendants who do not force her to put on a hearing that we all know she will win. At this point, she has made us an offer for a plea deal that would let you stay out of prison as long as you pay the money back. I think—”
“I’m not taking a plea deal!” interrupted Hamilton. “I didn’t do anything. I didn’t take any money.”
“While I understand that is your position right now,” Steve said in an understanding manner, “I have to tell you that the evidence against you is quite substantial. Their star witness is a woman named Dr. Emily Babbage. She is a computer forensics expert. What that means is that she knows how to search the hard drive of a computer and find files and information that the person who owned the computer had previously deleted. You see, nothing deleted from a computer is truly gone unless you wash the entire hard drive. If a person simply removes items by clicking delete or dragging them to the trash, it doesn’t completely erase them. They will still be somewhere on your computer, and Dr. Babbage is trained in finding those files.”
Hamilton began to shift in his chair, looking very uncomfortable as Steve continued.
“Dr. Babbage took your computer and searched it for deleted files. The United States Constitution requires the prosecution in every case to provide defense counsel with all of the evidence the state has procured against a defendant. This is because the courts want transparency in prosecutions so that no defendant is ambushed at trial with a bunch of evidence they knew nothing about. Plus, the defense should always be given an opportunity to rebut with evidence of their own.”
Steve opened the box of documents he had printed from the zip drive provided by the state. He began pulling certain marked pages out from the stacks of paper.
“When Dr. Babbage went through your computer, she found all of these documents that you thought were deleted. There are a few specific ones I would like to ask you about. This one, for instance, shows a transfer of money from the corporate account of Phillips Industries to an unknown account on April 23 of last year. Here is another from April 27 and a third from May 8. There are several more of these. Can you tell me how they got onto your computer?”
“I have no idea… I promise I did not take that money,” Hamilton responded, his voice quivering.
“Did anyone else have access to your home computer?” asked Steve.
“No.”
“Let me show you a few more documents she recovered from your computer. These are spreadsheets showing your accounting ledgers. This page shows the ledger that you turned into the company, and this page shows all the changes that were made to that document from the time it was first created and all the way through to the final version you submitted. Here you can even see where you misspelled the word ‘account’ and went back and added the second ‘c.’ Here the ledger shows that $2,689 was originally transferred to the same unknown account as all the other transfers. Plus, on this one, your name is listed as the recipient, and then, in the document turned into the company, your name is replaced with one of Phillips Industry’s suppliers to make it appear as a legitimate expenditure. It seems when you first made transfers, you put your name on it so you would know how much and when the transfers were made. Later, you went in and changed those transfers to names you thought no one would notice when reviewing your ledgers.”
Hamilton’s head slowly drooped as he continued to listen to Steve.
“I should also let you know, although they haven’t tracked down the information yet, Ms. Turner has requested the judge allow the state to send a subpoena to the bank where the unknown account is located. They will get all of the bank’s records relating to this account, including the name of its owner.” Steve paused, laying the stack of evidence on the table.
“Now, this is what my mentor, Frank Ackerman, would call a ‘come to Jesus’ moment. All this information is pointing directly to you, so if your name is going to appear as the owner of that bank account, I need to know that right now in order to best represent you in this case.”
At this point, tears were beginning to form in the corners of Hamilton’s eyes.
“Is your name going to be listed on the account? Is your signature going to be on the enrollment documents for this account?”
Finally, Hamilton cracked. “I’m sorry… I’m so very sorry… I never meant for it to get this far. I just borrowed a little that first time and was planning on paying it back. There is something I haven’t told you, and it is a big reason for my divorce as well. I have a serious gambling problem. I simply love playing slot machines at the casinos around town. The Osage Casino north of town is my favorite. The excitement I feel in my bones when I hit a bonus on those machines is the most exhilarating feeling to me. When they spin red. The biggest problem was that I actually won a lot of the time. That was how I paid your retainer; I came in right after winning over ten thousand dollars on one spin. It makes me think I’ll win every time I go play. So, when I didn’t win, I just kept putting more and more money into those damn machines, thinking I would eventually win. When I won five hundred, I thought I could get one thousand. When I won a thousand, I thought I could get two thousand. No matter how much I won, it was never enough, so I’d keep trying to win more until I checked my pockets, and there was nothing left. Not the one thousand I’d won, not the five hundred I’d won, not even the money I’d originally brought with me. I would realize I’d given it all back to them. Then this awful feeling would start in my stomach, and I’d sometimes want to kill myself.”
The tears slowly tumbled out of Hamilton’s eyes; Steve removed a tissue from the box sitting on the table and offered it to Hamilton as he continued, “Afterward, I’d go home and fight with my wife because I was so mad at myself that I wanted to yell at someone.
She became my victim…” He paused, looking wracked with guilt.
