A Legal Matter

[mlm828]

A Legal Matter

Part One

“Jimmy, are you here?” I called as I hung up my coat in the entry hall.

“Yeah, over here,” his voice came from the living room. He was sitting at the desk, doing something on his new laptop. It had screen-reading software, and he had started to learn the commands that would enable him to use a computer without a mouse. I went over and kissed him.

“What did they have you doing today?” I asked.

“Cooking,” he said, grinning.

“Cooking? You?”

“That’s right,” he confirmed.

“You never cooked when you could see. Why do they have you doing it now?”

“It’s all about being self-sufficient, I guess.”

“I’ll believe it when I see it.”

“Me, too,” he said, dryly.

I laughed and headed for the bedroom to change out of my work clothes, relieved that this seemed to be one of Jimmy’s good days. As he learned how to live without sight, he’d gradually emerged from the depression that had immobilized him for the first month after he’d come home from the hospital. But he still had days when the feelings of hopelessness returned, and he withdrew into himself. When that occurred, he often spent much of the evening brooding and bouncing a ball against the living room wall. The ball made a jingling sound as it bounced. I’d come to hate that sound, but I didn’t think I’d be hearing it this evening.

“Hey,” I asked him after dinner, “How about going for a walk?”

“Okay,” he agreed.

He picked up his cane from its designated place on the table in the entry hall and unfolded it. In the month since he’d begun independence training, he’d mastered many of the basics of cane travel. Although he was still learning how to navigate independently in unfamiliar locations, he moved confidently in the familiar areas around our apartment building.

“Lead on,” I told him, “You decide where we’re going to go, and take us there.”

“How about the park?” he suggested.

“Sounds good to me.”

We made our way down the hall, into the elevator, and out the building’s front entrance. Leading the way, Jimmy turned right, toward the park. I followed, keeping an eye out for unexpected hazards, but letting him find the way on his own. We walked along the riverfront walk until we reached the park. It was a beautiful evening. I wondered whether I should mention it and describe the city and bridge lights reflected in the water, but I still wasn’t sure how Jimmy would react to such a reminder of what he was missing. I decided not to say anything unless he asked. Jimmy led us to our usual bench, and we sat down.

“You did great,” I told him, “All I had to do was follow you.”

“Yeah," he agreed. He fell silent and brought his hand up to his mouth.

After a few moments, I spoke up. “Something on your mind?”

“Yeah, I’ve been doing some thinking, and . . . I’ve decided to go back on the job.”

I gasped involuntarily. “What?”

He turned toward me. “You heard me.”

“You’re going back to your old job?”

“Yeah, that’s what I do. I need to do this, Christie. I can’t just collect my pension and spend the rest of my life doing nothing.”

“I know that, but do you really think you can do it?”

“Yes, I do. In the past month, I’ve learned what I can do, and I know I can do it.”

“But . . . . are you sure you aren’t being over-confident? You’ve only had a month of training.”

“I don’t need you doubting me. I can still do my job.”

“I don’t doubt you. It’s just . . .”

“Think about it,” he interrupted. “I’m a detective, not a patrol officer. I spend most of my time doing interviews, bouncing ideas off my partner, and reading and writing reports. I don’t need my sight to do that.”

“I know, but . . . how are you going to convince the department to let you come back?”

“I don’t know. But I will. Believe it.”

I was stunned. Ever since I’d learned that Jimmy was blind, I’d believed his career as a cop was over. I knew it would be hard for him to accept, but secretly I was relieved. I had experienced every cop’s wife’s worst nightmare. At least, I’d thought, I wouldn’t have to worry about that any longer. I knew the department would never allow Jimmy back on the job. Even if Jimmy could do the job blind, they would never believe he could do it. But now a new worry surfaced. How would Jimmy handle it when, inevitably, the department refused to let him come back on the job? I didn’t want him to get his hopes up, only to be disappointed. He could still slip back into depression.

* * * *

It was almost 8 p.m. when I hurried into the apartment the next evening. “Jimmy?” I called. “I’m sorry I’m so late, but you know how crazy things get when we’re on deadline.”

“Over here,” his voice came from the far side of the living room. He was sitting in a chair, facing the wall, and I knew he’d been bouncing that ball against the wall again. I went over to him and patted his shoulder, wanting to establish a connection.

“How was your day?” I asked. “More cooking?”

“Yeah,” he said, not bothering to turn to face me.

“You seem kind of down. Is something wrong?”

“No, not really.”

“Jimmy . . . .” I chided him.

“I called Lt. McConnell today about going back on the job.”

When he didn’t continue, I prompted him, “And?”

“Well, he was too polite to laugh out loud when I told him I wanted to come back on the job, but he said he didn’t see how it would be possible. He did say he wished I could come back, because their clearance rate has gone down since I’ve been gone. But there’s no way the department would agree to it.”

I wasn’t surprised. Jimmy’s lieutenant, Jack McConnell, was an old school, by-the-book type. He wasn’t likely to take on the NYPD brass, even for his best detective.

“That sounds like him,” I commented. “What are you going to do now?”

He shook his head. “I’m not sure. There has to be a way . . .” He turned his head in my direction, seeming to look past me. “You know, I’ve lost so much already, I can’t lose this, too.”

I didn’t want to think about how much Jimmy had lost. And if it was too painful for me to think about, it had to be even more painful for him to speak of it. As much as I worried about what might happen if he went back on the job, I knew how important being a cop was to him. Jimmy was right. It would be too much if he had to give that up, too. Setting my misgivings aside, I told him, “I know. We’ll find a way.”

* * * *

Two weeks later, we were sitting in the reception room of the Law Offices of Geoffrey Miller. After Jimmy’s discouraging phone conversation with Jack McConnell, we had talked into the night, trying to come up with some way to persuade the department to allow him to come back on the job. Eventually, we realized Jack was correct: the department would never do it voluntarily. We would have to force them to do it, and that meant legal action.

A young woman entered the reception area. “Mr. and Mrs. Dunbar? Please come with me.”

Jimmy took my arm, and we followed her to Miller’s corner office. I took in the large, professionally-decorated space, obviously designed to impress prospective clients. Well, that wouldn’t work with Jimmy, I thought. The man sitting at the desk stood to greet us. He was slightly-built, about Jimmy’s height, with dark hair and sharp features. He wore a beautifully-made Italian suit.

“Detective Dunbar, Mrs. Dunbar, Geoff Miller. Good to meet you.” He walked around the desk to shake Jimmy’s extended hand, then took my hand. “Please have a seat.”

I guided Jimmy to one of the client chairs and placed his hand on top of the chair back, then sat in the chair next to him.

“Let me get one preliminary matter out of the way,” Miller began. “Regardless of whether you decide to proceed, everything we talk about here today is privileged and confidential. I have an ethical obligation to keep our discussions confidential, and I take that obligation very seriously.”

“That sounds good,” Jimmy replied. He took off his dark glasses, found Miller’s desk, and put them down.

“What do you think I can do for you?” Miller asked.

“I want my job back.”

“That’s it? You’re not looking for a monetary award?”

“I want my job back,” Jimmy repeated.

“Okay. As I understand it, before you lost your sight, you were a homicide detective with the NYPD. You lost your sight as a result of a gunshot wound sustained on the job.”

“That’s right,” Jimmy agreed.

“How severe is your visual impairment?”

“I’m totally blind.”

Miller seemed taken aback but regrouped quickly. Then he asked, “How long has it been since you lost your sight?”

“About three months.”

“Where are you in your rehabilitation? Realistically, are you ready to go back to work?”

“I’ve mastered a lot of the basics, but I still need to improve my mobility. Ideally, I’d like to get a guide dog before going back on the job. I’m also planning to get some self-defense training.”

As Miller asked Jimmy about the details of his job as a detective and the accommodations he would need to do his job, I tuned them out and pondered what we were doing. So far, Miller had favorably impressed me. He didn’t seem uncomfortable with the blindness, and I liked the matter-of-fact way he spoke to Jimmy. I was less certain about the idea of suing the department. If he did it, Jimmy would be burning his bridges. Even if, by some miracle, he managed to get his job back, he could end up alienating the very people he would have to work with, and whose support he would need to do his job.

When I started paying attention again, Miller was asking, “Have you had any contact with anyone in the department about going back to work?”

“I talked to my lieutenant on the phone. He wasn’t encouraging.”

“Anyone else?”

“No.”

“I’m going to be frank with you, Detective . . .”

“That sounds good. And it’s ‘Jim’.”

“Okay, Jim, what you’re trying to do is unprecedented, as far as I can tell.”

“There’s always a first time,” Jimmy asserted.

“Yes. But you need to recognize that you’re facing an uphill battle. I know of a few cases of visually-impaired cops returning to limited duty, basically desk jobs, but none who’ve gone back to field work. And the courts tend to give law enforcement some leeway when it comes to reinstatement of disabled officers.”

“Are you telling me I don’t have a case?”

“No, I’m telling you it isn’t a sure thing. There has been a lot of progress since the Americans with Disabilities Act went into effect, but there’s still a long way to go. And the department can still claim you can’t do the job, even with reasonable accommodation, or that there would be a threat to your fellow officers’ safety if you were reinstated.”

“So I should just give up?”

“That’s not what I’m saying. But it could go either way. You need to understand that.”

“I do.”

Miller leaned back in his chair, apparently considering his next question. Then he asked, “Why is it so important to you to get back on the job?”

“Why do you ask?”

“I need to know how committed you are to this.”

Jimmy bit his lip, looking uncomfortable with Miller’s question. Finally, he said, “I’m a cop. That’s what I do. I’m not going to give that up, when I know I can still do the job.”

“Okay. There’s something else we need to address. Jim, you’re probably familiar with how things work in the criminal courts, but do you have any experience with civil litigation?”

“No.”

“The first thing you need to know is that it’s a marathon, not a sprint. That’s why I asked how committed you are to this. You can’t expect results in two months, maybe not even in two years. And I know the lawyers the department will hire to defend the case. They’ll use every possible delaying tactic, to try to drag things out and wear you down. Plus, they play hardball. They will treat you respectfully to your face – you’re a hero, after all. But behind your back, they will be looking for anything they can use against you. You need to be prepared for that.”

Jimmy nodded. “I understand.”

“I need to know upfront. Is there anything in your record they can use against you? Any officer-involved shootings? Other than the bank robbery, of course. I don’t think we have to worry about them bringing that up.”

Jimmy grinned. “You’ve got that right. No, no others.”

“What about disciplinary action? Any complaints from suspects who claim you roughed them up? Anything like that?”

“No, no disciplinary action or complaints. I’m not saying I never got physical with a perp, but none of them ever complained.”

“Okay. What about your personal life? Is there anything I need to know about?”

I drew in a breath, and Miller looked over at me. He turned to Jimmy.

“Jim?”

Jimmy bowed his head, pressing his lips together. “I had a brief affair with a woman I met on the job. It ended shortly before I was shot.”

“Who knows about this?”

“No one except her, me, and Christie.”

“Are you sure about that?”

“Yes.”

“That shouldn’t be admissible in evidence in this type of case,” Miller observed, “but that won’t keep them from trying to use it against you if they find out. We’ll have to make sure they don’t. One other thing. Is there anyone in the department, any friend or colleague, who might support you in this?”

Jimmy brought a hand up to his mouth, thinking. “Maybe Walter Clark,” he finally said. “He was kind of a mentor to me, when I was coming up, and he’s close to retirement, so . . .”

“What about your partner – what’s his name, Terry Jansen?” Miller asked.

“I don’t want him involved in this,” Jimmy replied, sharply.

Miller looked a question at me. I looked over at Jimmy. As was usual when Terry was mentioned, the color had drained from his face. I knew he wasn’t going to explain, so I did. “At the bank, when Jim was shot, Terry froze up. He didn’t shoot the bank robber when he had the chance, and Jim had to do it.”

“I see. I’ll cross him off the list. One last thing. Cases like this are expensive. If we prevail, it’s likely the court will order the department to pay your attorney’s fees, but there’s no guarantee of that.”

Jimmy nodded. “I understand.”

Miller turned to me. “You’ve been pretty quiet, Mrs. Dunbar. How are you with all this? Do you support Jim’s decision to go back on the job?”

I nodded, then said firmly, “Yes, I do.”

“All right. I know I’ve thrown a lot of information at you. I’ve had a retainer agreement prepared, but I don’t want you to sign it now. Take it home with you and sleep on it, then let me know your decision. Feel free to call me if you have any questions.”

When we got home, Jimmy headed to the fridge for a beer. I followed and poured myself a glass of wine. When we were settled on the couch, I said, “He didn’t exactly sugar-coat things, did he?”

“No,” Jimmy agreed, “but I’d rather know upfront what we’re facing.”

“Still, suing the department is a big step. If you do it, there’s no going back.” I paused, then added, “There’s one thing that worries me . . .”

“What’s that?” He turned toward me.

“If – when – you go back on the job, there are people in the department who will make your life hell.”

Jimmy nodded. “I know. But what choice do I have? You know I need to do this.”

I sighed. I knew Jimmy was right. I’d told Miller I supported Jimmy’s decision to go back on the job, and I would support him. But I couldn’t shake off my lingering doubts and worries.

[mlm828]

A Legal Matter

Part Two

On a Wednesday afternoon, I left work early with a headache and went home. As I walked in the door, the phone rang.

“Mrs. Dunbar?” an unfamiliar voice asked.

“Yes,” I answered guardedly, thinking it was a telemarketer.

“Peter Martinson, New York Times. We’re doing an in-depth article on your husband’s case against the NYPD. I’d like to get his comments.”

“He’s not available at the moment. And if you need information about the case, you really should talk to our lawyer, Geoff Miller.”

“I will. What about you, Mrs. Dunbar? What has it been like for you? Do you support your husband’s effort to return to work as a detective?”

“Yes, of course.”

“You’re not worried about him going back to work in the field?”

“Listen, as I told you before, if you want to know about the case, you need to talk to Geoff Miller. I really don’t have anything to say to the press.”

“Mrs. Dunbar . . . ,” he persisted.

“Talk to Geoff Miller,” I repeated, and hung up.

I sank down on the couch, wondering what use Martinson would make of my few words, and how they would be twisted or taken out of context in his article. I realized I’d better call Geoff and alert him, in case he hadn’t already received a call from Martinson. Geoff was in court, but his associate, Linda Mayer, assured me I hadn’t said anything damaging.

There was no news about the case. It was hard to believe it had already dragged on for six months. There were legal hoops we’d had to jump through before Geoff could even file suit. Once he’d finally been able to file suit, the case had bogged down because of several delaying motions brought by the NYPD’s lawyers. In spite of Geoff’s detailed explanations, all I really knew was that they involved technical legal issues, and it would probably be another couple of months before all of them were finally decided. In the meantime, there had been endless wrangling about what Geoff called “discovery,” centering mainly on his efforts to get the department to turn over documents and records he thought would help our case. Even though Geoff had warned us these kinds of things would happen, Jimmy was becoming increasingly frustrated and impatient with the delays.

Two weeks before, Jimmy had undergone the first of what promised to be several days of grueling questioning by the department’s lawyer, in a pre-trial deposition. The morning session went smoothly, but things turned nasty after the lunch break. The department’s lawyer went after Jimmy, asking him a series of questions which were obviously intended to embarrass him and get him to admit there were things he couldn’t do. At one point, the lawyer pretended to “forget” Jimmy was blind and handed him a document he wanted to ask him about. Jimmy just looked impassive and asked, “And what am I supposed to do with this?” but Geoff was so angry I thought he was going to ask the other lawyer to “step outside.” The department’s lawyer only backed off when Geoff threatened to walk out of the deposition and inform the judge that Jimmy was being harassed.

Jimmy managed to keep his cool through all this, but I could tell, from his clenched fist under the conference room table and his curt answers, that the questions were getting to him. Fortunately, Geoff had warned him to expect this kind of thing. Besides, as I realized later, Jimmy had had a lot of practice in exercising self-control since losing his sight. When I commented on it that evening, he just shrugged and said it was good practice for when he went back on the job. Still, I wasn’t looking forward to the next session of his deposition. And my own deposition was coming up in a couple of weeks.

I took a couple of Tylenol and went to lie down. Thinking about the case had made my headache worse. When Jimmy got home, I told him about the call from the Times reporter. He looked thoughtful, but just said he’d talk to Geoff in the morning.

* * * *

When I got home from work the next day, I asked Jimmy, “So, did you talk to Geoff? What did he have to say?”

Jimmy nodded. “Yes, I did. Geoff thinks we should cooperate with Martinson.”

I couldn’t believe it. “You can’t be serious,” I told him, not bothering to keep the disbelief out of my voice.

“Yes, I am. Geoff talked to Martinson and checked him out. He thinks the story Martinson plans to do is ‘NYPD Gives Blind Hero the Shaft,’ and this will put pressure on the department to put me back on the job. Apparently, Martinson considers himself some kind of disability-rights advocate. Geoff found out his sister had a spinal cord injury as a teenager, before the ADA, and the family had to fight for her just to be allowed to finish high school.” He shrugged. “He’s going to write the story, either way. This way, at least we can have some input into what he writes.”

“But, Jimmy,” I protested, “it won’t be just Martinson. The rest of the press will be all over the story. You know what they’re like. Our lives won’t be our own any more. Besides, I’m sure the department has friends in the press, and they’ll stop at nothing to dig up dirt on you.”

“So, what’s the prob—?” I could see the guilt on his face, as he realized there was a problem.

“Yes, Jimmy, there is a problem. What if they find out about that?”

“I’ll handle it.”

“You’ll handle it?” I threw back at him. “That’s big of you. You’re not the one who’ll be publicly humiliated.”

“Christie, please, don’t fight me on this. I need to do this to get back on the job. No one will find out.”

“Oh, so that makes it okay – you need to do this, and that’s the end of it? You know, Jimmy, it’s not only about you.”

“Christie, please, just stop and think for a minute . . .”

I cut him off. “‘Stop and think?’ You sure didn’t stop and think, before you slept with that woman.”

Before he could respond, I turned and stomped angrily into the bedroom and slammed the door. I couldn’t believe what had just happened. After Jimmy was shot, I’d suppressed my hurt and anger at his betrayal, deciding to deal with those feelings later. But I hadn’t dealt with them. They were still festering. I knew I had to deal with them, but I couldn’t. Not now. Maybe later, after Jimmy went back on the job – if he got his job back, that is. I took a deep breath and vowed to bury my feelings again, hoping they would stay buried.

A knock on the bedroom door interrupted my thoughts. “Come in,” I said. Jimmy opened the door and stood in the doorway, a glass of wine in his hand. He had brought me a peace offering.

“Come sit next to me, I promise I won’t bite,” I told him.

“You sure about that?” he asked with a pained grin, but he walked over to the bed and sat next to me, setting the glass of wine carefully on the nightstand. He reached for my hand and kissed it. “I am so sorry about . . . .you know,” he said. “I promise you, it will never happen again.”

“I know you’re sorry, but I don’t want to talk about it now.”

“Maybe we should.”

“I can’t talk about it. Not now, Jimmy,” I said firmly.

“All right, but I should have thought about how going public would affect you.”

“Yes, you should have, but you’re too damn single-minded. When you set your mind to something, nothing else matters.” I reached out and rubbed his back. “I have a bad feeling about talking to that reporter,” I told him. “I hope I’m wrong.”

* * * *

Martinson’s article appeared in two parts, on the following Sunday and Monday. He had used a lot of the information Jimmy and Geoff had fed to him, including Jimmy’s military service in the first Gulf War, the guns he’d taken off the streets when he worked Anti-Crime, and the cases he’d cleared as a homicide detective. The response was immediate, and as I’d expected, we were soon under siege as the rest of the media picked up the story. By some miracle, Jimmy’s affair never became public knowledge. The Friday after Martinson’s story ran, Geoff called to let us know he’d heard from a source in the Mayor’s office that the publicity was working. Several pressure groups had begun clamoring for Jimmy’s reinstatement, and the Mayor was feeling the pressure.

Three weeks after Martinson’s story appeared, Jimmy and I were sitting in the reception area at the office of retired Judge Howard Weiss, who was serving as a mediator in an effort to negotiate a settlement in Jimmy’s case. Earlier that week, Geoff had called and told Jimmy the department’s attorneys had proposed going to mediation “to see if we can resolve the case.” When Jimmy called me at work to let me know, I could hear the excitement in his voice.

“What does this mean?” I’d asked.

“According to Geoff, it means they’re caving.” Jimmy went on to explain, “Geoff says asking to talk settlement doesn’t always mean the other side is serious about settling, but in this case, he thinks the pressure has gotten to them. He thinks the word came down to do whatever it takes to make the case go away. It’s not a done deal, obviously, but it’s looking good.”

“So you’re really going back on the job.”

“It looks like it.”

Now we were waiting while the lawyers and Judge Weiss hammered out the details of Jimmy’s reinstatement. As Geoff had predicted, the department’s lawyers had agreed to Jimmy’s going back on the job, but they had done so grudgingly, making it clear it wasn’t their decision.

Geoff came out of the conference room and walked with us to another conference room, where we could speak privately. “Here’s where we are. They’ve agreed to your reinstatement, at your old rank, pay rate, and seniority, and the department will pay your attorney’s fees and litigation costs. In return, they want you to agree to a sixty-day trial period and a psychological evaluation, give the department the right to select the precinct where you’ll be assigned, drop the lawsuit, and sign a full release.”

“I have no problem with that,” Jimmy responded.

“The only remaining issue,” Geoff continued, “is whether you carry a gun. The department’s lawyers want some more time to look into the ramifications of your carrying a gun. I’ve told them that doesn’t need to be decided today, as long as the decision on the gun doesn’t affect your reinstatement. Is that okay with you?”

“Not a problem,” Jimmy replied.

Geoff returned to the conference room and we returned to the reception area. Five minutes later, he came back out.

“We have a deal,” he announced. “Come on in to the conference room.”

We sat next to Geoff at the conference table as Judge Weiss summarized the terms of the agreement, and Jimmy and the department’s lawyers confirmed their acceptance. All that remained was to prepare the formal written agreement. Jimmy would be back on the job after he got his guide dog next month.

As we left Judge Weiss’s office to go for a celebratory drink, Geoff turned to Jimmy and said, “Congratulations, Detective Dunbar, you’re back on the job.” I was happy for Jimmy, but couldn’t help wondering if we had really “won,” or if the real battle was just beginning.