A Different Game 2 d:

Wilson Avery sat in his conference room surrounded by trial notebooks and stacks of discovery documents detailing the evidence of the state and the defense case. He looked at photographs of his client Tim Drake -- photos of Tim with his parents before his mother's death, photos of Tim at school, photos of Tim and Dick Grayson, and a photo of a very young Tim Drake and a very young Dick Grayson at Haley's Circus -- that was their first meeting. Had fate known then how these two boys would be brought together?

Avery wondered if he knew exactly what the boys relationship was? He doubted it. So did Jon Walters. He and Walters had discussed it. Discussed how they both felt their clients were holding something back from them -- something very important. Yet, neither of the attorneys felt the boys were lying about the murder. In their many years of practicing law, they had represented many guilty clients and their guts said their current clients were innocent, regardless of the mountain of evidence that indicated the contrary.

When he heard the door open, Avery looked up to see Jack and Dana Drake walk in.

"Come in. Sit down." He greeted them, noticing the haggard looks on both their faces and the dark circles around their eyes. He was sure neither were sleeping well. Any case like this takes a toll on a family -- but more so when a child was involved. Jack and Dana sat at the conference table.

"So, the trial's next week," Jack asked hoarsely.

"Yes. We've been working very hard the last two weeks and will continue to, I want you to know that. Tim's case is getting my undivided attention."

"Thank you," Dana added.

Jack sighed and looked directly at Wilson, "How does it look for Tim?"

Avery tapped his pen on his legal pad as he looked into this father's face. "Not good. There's so much evidence against them. They look guilty. And they're both holding something back. I don't know what."

"Is he guilty?" Jack asked.

"Mr. Drake, I can't tell you that. I don't know the answer, but I don't feel he is."

"So you think he's innocent, but it doesn't look good. Why? I don't understand," Jack asked as Dana gently took his hand.

"My gut says he's a good kid. The evidence makes him look like a murderer."

"So, you think he's going to be convicted?" Dana asked softly, a single tear rolling down her cheek.

Wilson Avery closed his eyes and nodded his head. "But I'm going to do everything in my power to keep that from happening. But I have to be honest with you about this."

"What about ..." Jack started to ask but choked -- a lump in his throat. Waiting a moment, he continued. "What about the sentence?" Jack felt a gnawing knot growing in his stomach.

"I think Tim's got a better chance there than Dick does. the state only has three aggravating factors to ask for the death penalty for Tim, they have seven against Dick. I've come up with eight mitigating factors for Tim, especially his age. I think even with a guilty verdict, we've got a very good case for a life sentence."

"Aggravating and mitigating factors," Jack said shaking his head, "I don't understand."

"Aggravating factors are what the state argues makes this case worse than an ordinary murder. I know, no murder's ordinary. But the state has certain factors -- eleven to be exact -- which, if they're present, make a case eligible for the death penalty. We, the defense, have to counter these aggravating factors with mitigating factors. Anything we can come up with which lessen or diminish the defendant's culpability in the crime. We use anything we can to gain sympathy from the jury. It's like trying two cases -- the guilt innocence phase and the penalty phase."

Dana reached across the table taking a tissue from the box and using it to wipe her tears. Jack stood up and walked toward the window looking out on the Gotham skyline.

"I can't believe this. He's only sixteen years old. I can't believe that these are the only choices for the rest of my son's life," Jack said with tears in his eyes. "I'm such a bad father. How could I let this happen?"

Dana moved to her husband, placing comforting hands on his shoulders. "No, you're not."

"Yes I am. If I were a good father, Tim wouldn't ... he wouldn't be -- I don't even know my own son. I have to ask if he's guilty or not. I've thought he was guilty. What kind of man am I, to think that about my own son?"

"Jack," Wilson Avery started, "no one's perfect. But you love your son. That's the most important thing. And you're here for him."

"How can I help him?"

"Just support him, that's all you can do right now. Let me do the rest."



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Tim walked through the cafeteria carrying a metal tray. He sat it down on the table at the far side of the cafeteria, taking a seat beside of Dick Grayson, their backs against the wall. He started forking through his food, never quiet taking the food to his mouth.

"Not exactly Alfred's cooking, is it?" Dick asked.

"Not even your cooking," Tim responded.

"Well, hopefully, we've only got two more weeks of this," Dick said.

"Yeah, I can't wait to get home."

"I can't wait to get out of here and find out what happened to Bruce."

"Yeah," Tim agreed.

Two large prisoners, gang members by their tattoos, came and joined them at the table. Dick and Tim started eating their food.

"You two those rich boys, ain't'cha?"

Dick looked across the table but kept eating his food.

"Yeah, this is them," the other prisoner said. "So, you killed your old man?"

Dick's blue eyes glared at the man in front of him as he quietly responded, "No."

Tim turned toward Dick, unsure of what to do.

"Hey, no worries 'bout us man, we ain't no jail house snitches. Youse the celebrities here -- all on TV and stuff."

"Glad we're entertaining," Dick responded as he took a bite of his food.

"So, youse saying you didn't do nuthin'?"

"Yep," Tim added.

"Sure man, we know. We didn't do nuthin' either," they laughed.

Tim turned to Dick. Their eyes met. Hopefully, the jury would be more understanding.



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Clark walked over to the table in the cafe with two steaming cups of coffee in his hands. Setting the cups down on the table, he slid into the booth across from Jim Gordon. In the weeks since Dick's arrest, they had been working with the attorneys. Acting as investigators. Helping however they could.

"Thanks for the coffee," Jim said.

"No problem," Clark responded as he opened his file. "I finally spoke with the medical examiner."

"Anything we can use?"

"Unfortunately, no. The DNA test seems to be right. Cause of death was multiple stab wounds."

"That coincides with information I received from Bullock. He spoke with Jacobs, the theory is that the boys stabbed Bruce in the den. Looks like the state has a good case."

"Yeah," Clark responded as he took a sip of his coffee and they prepared to dig into their work.



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Dinah and Cassandra were boxing up Nightwing's equipment in "Doctor Fleudermaus'" apartment and moved the boxes through the secret entrance into Dick's apartment. Dinah left Cassie in the adjoining apartment and walked into Dick's bedroom. She opened his closet door and stared at his clothes. Then she moved to his bedside table and opened the communications link to Oracle.

Barbara Gordon's face appeared on the screen. "What's up Dinah?"

"I started going through his clothes, are you sure you want me to do this -- I mean, wouldn't you rather come down here and pick out what he needs for court next week. Or send Alfred, he's good at dressing these guys."

Barbara gave her a weak smile, "If you really want me to, I'll send Alfred."

"Yeah do that. Cassie and me, we've got the equipment under control, but I'm not too good at dressing your Ken doll, Barbie."

"Will do. Hey will you check Dick's mail for me? See if there's anything important."

"You got it boss lady. Hang on." Dinah headed toward the living room where she had dropped the mail on the coffee table. She returned to the bedroom going through the stacks of letters, "Bill, bill, pre-approved credit card application, bill, free vacation special -- he'll need that when he gets home -- uh oh."

Barbara arched an eyebrow, "Uh oh what?"

"He's got a letter from the BPD."

"Open it," Barbara said.

Dinah complied and quickly scanned the letter, a scowl forming on her face.

"What?"

"They've fired him."

"What!"

"'Officer Grayson, we regret to inform you that your position's been terminated because of violating' yadda yadda yadda 'resulting in your arrest for a felony during your ninety day probationary period' yadda yadda yadda. Fired."

Barbara raised her hand to her forehead and let out a groan, "That's the last thing he needed."

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"Gin!"

"What? You cheat!"

"I do not."

"Do too."

"Do not," Tim replied sticking his tongue out at Dick.

"Then let me deal," Dick said grabbing the cards from Tim. He started shuffling the deck and tossing the cards across the cell floor to Tim. He had finished dealing when the cell door opened.

Detective Jacobs walked into the cell. "You two seem to be enjoying yourselves."

Dick and Tim turned toward Jacobs, their blue eyes glaring at him.

"What do you want?" Dick asked coldly.

"Got a present for you Grayson."

Dick stood up, quickly followed by Tim. Jacobs approached them as a guard stood by the door. Jacobs handed a blue form to Dick.

"What's this?" Dick asked.

"Since you're already in jail, I don't have to rearrest you. Just served you with another charge."

Dick shook his head in disbelief, "What now?"

"Contributing to the delinquency of a minor," Jacobs smiled at him. "Have fun boys. I'll see you next week."



To be continued ...

***AUTHOR'S NOTE***

In case anyone's interested in the factors Tim's attorney was discussing with the Drake's, here they are. I sat down one Saturday with the statute books and said to my self, If Dick and Tim were my clients what would they be looking at -- and I did the chart of the factors. This is how it broke down when I did it: WARNING LEGALESE TO FOLLOW:

AGGRAVATING FACTORS:

FOR DICK:

1. The Defendant induced others to participate in the crime or occupied a position of leadership or dominance over the other participants;

2. The offense was especially heinous, atrocious and cruel;

3. The Defendant was armed or used a deadly weapon;

4. The Defendant involved a minor in the commission of the crime;

5. The Defendant took advantage of a position of trust or confidence to commit the offense;

6. The offense violated the parent child relationship;

7. The offense was committed for pecuniary gain

FOR TIM:

1. The offense was especially heinous, atrocious and cruel;

2. The Defendant was armed or used a deadly weapon;

3. The Defendant took advantage of a position of trust or confidence to commit the offense;

MITIGATING FACTORS:

FOR DICK:

Statutory

1. The Defendant has been a person of good character or reputation in the community where he lives;

2. The Defendant has a support system in the community;

3. The Defendant has a positive employment history or is gainfully employed;

4. The Defendant has no significant history of prior criminal activities

Additional

5. The Defendant's parents were killed when he was 12, leaving him an orphan

FOR TIM:

Statutory

1. The Defendant has been a person of good character or reputation in the community where he lives;

2. The Defendant has a support system in the community;

3. The Defendant was an accomplice or accessory and his participation in the crime was relatively minor;

4. The Defendant has no significant history of prior criminal activities;

5. The Defendant committed the offense under the duress, coercion, threat or compulsion which while not a defense, reduces the defendant's culpability;

6. The Defendant's age and immaturity at the time of the crime reduces the defendant's culpability;

7. The Defendant is a minor;

Additional

8. The Defendant's mother is deceased.

It's up to the jury to decide what factors exist and, as to the mitigators even if they exist the jury can decide they don't have any mitigating value. Aggravating factors have to be found unanimously while mitigators can be found by only one juror.