The 3rd Victim

by Sydney Bauer

  And the foreign sound – in this land where everything was foreign bar the life strong enough to bear living here – gave her the most awful start. Her mobile was in her pocket so she pulled it out quickly to see if the caller's number lit up on the pale green screen. It didn't. It said ‘private number’, which normally meant it could be anyone calling from anywhere, but not in this case given so few people actually had access to this mobile's number.

  She was tempted to answer it of course, but she knew that could prove her undoing. So she simply held the phone in her palm and watched the green light glow as the rings continued until they ran out off puff and the world fell silent once again.

  And then she went to the ‘missed calls’ section of the menu and saw that, unfortunately, it had not recorded a number. So without further adieu she made a call herself, to an old friend in London – someone who knew a thing or two about mobile phones and how to work out what was what. And she was pleased to note that the call was answered within seconds, the voice on the other end of it, delighted to hear her voice once again.

  59

  ‘He's not the father.’

  Dr Lucas Cole was young and good-looking in that unshaven, overworked doctor sort of way. When David had met him a few weeks ago the first question that occurred to him was why his younger sister Lisa had not mentioned Cole before, but then he figured Cole must be married or dating someone else which would have resulted in his being struck off Lisa's ever updating list of eligible bachelors.

  David was disappointed, but not surprised by Cole's announcement.

  ‘It was a long shot,’ said David, looking across the hospital's main cafeteria – the Eat Street Café. He was eating something from the cafeteria's ‘BeFit’ menu – a big-grained muesli with yoghurt and fruit – which he was attempting to wash down with a too hot espresso.

  Sara wasn't eating. She was on her third coffee and it was only 8 am. She hadn't been sleeping, despite the fact that Lauren was now sleeping through. She looked how David felt – tired and frustrated – at their not being able to crack this case. Jury selection started tomorrow, which meant it was only a matter of days until trial, and when it came down to it, they still had nothing – Dr Cole's latest piece of information not helping in any way whatsoever.

  ‘I'm sorry,’ said Cole, cupping a hot black of his own. Lisa sat next to him, an overcrowded plate of eggs with the lot disappearing at lightning speed before her.

  ‘It's okay,’ said Sara before turning to David. ‘It was a good idea regardless.’

  David managed a nod. The idea had come to him while he had been speaking in private with Davenport at the Four Seasons. David had half expected Davenport to reiterate Hunt's murder-suicide theory in yet another attempt to persuade David and Sara to drop Sienna's case. But Davenport made no mention of the theory – in fact no mention of anything of any relevance to their progress of their case.

  He had been full of shit. The man had invited them there and literally told David nothing. David had stood in that corner in a too-tight huddle listening to the slimy Dr Dick go on and on about how sorry he was that things had turned out the way that they had, how he ‘wished he could help more’, but how he obviously could not ‘jeopardise his professional or personal sense of morality’ by ‘lying on the stand’ when Roger Katz called him, which Davenport confirmed that he would.

  Davenport reiterated how, in his professional opinion, Sienna ‘did not suffer from PPD’ and that her motives for killing her daughter were still a ‘sad and disturbing’ mystery to him, and how he often lay awake at night wishing he and Daniel had got to her place sooner, that if they had they might have been able to prevent ‘this unfathomable tragedy’ from ever occurring in the first place.

  And that had been when David had noted the crystal whisky glass in his hand, and how, as Davenport sipped away, the idea had first come to him. As he had told Sienna, David was sure that Eliza Walker was killed because she carried, inside her genes, markers that identified her biological father. He knew that Davenport and Hunt would have teamed Sienna with someone they regarded as equally genetically ‘spectacular’, that Davenport was egotistical enough to consider himself this candidate, and that both he and Hunt were mercenary enough to kill to get rid of the ‘evidence’.

  So he had waited until Davenport put the glass down on a table, and then he'd swooped in and picked it up using a napkin from a nearby waiter's tray. And then he had given the glass to Lisa, who gave the glass to Cole. But in the end this had also come to nothing, for as Lucas Cole had just told them, the paternity test had come up negative, which left him with one last card to play – and no idea how to play it.

  ‘You want me to test someone else?’ asked Cole. The man was a godsend. Lisa had given him the rawest of details when it came to their motives for asking him to do some analysis under the radar. And Cole had agreed, mainly, David knew, because he was a decent guy who hated to see an innocent child being disposed of as ‘collateral damage’, and perhaps, David sensed, that despite whatever his relationship status may have been, he held a candle for his sister, who was currently oblivious, shovelling sausages in her mouth.

  ‘It's a kind offer, Dr Cole,’ said David.

  ‘Hey, it's Lucas.’

  David nodded in gratitude. ‘Actually, there is someone else we'd love you to test but getting access to his DNA is going to be difficult.’ He looked at Sara.

  ‘I should have nabbed his drink that night at the Liberty,’ she said.

  ‘We didn't know then what we know now,’ said David.

  ‘So can't you set up the opportunity again?’ suggested Lisa, in between swallows.

  Sara turned to David. ‘You know, she's right and you know I can do it. He's not going to turn down a drink with me, David.’

  David met her eye.

  ‘Jeez, David, I didn't mean it that way. What I meant was, it's been over a month since our last conversation, Hunt must be dying to find out where we're at. So I set up drinks. I pretend I need his help with something. Then I bag his glass and get Lucas to test his saliva – worst case scenario, we are not better off than we are now, and best, a positive on his DNA. At this point in time, it could be the one piece of evidence we need to turn this case around before trial.’

  She was right – about pretty much everything, especially the part about them running out of time.

  Their initial excitement at Sara's chance meeting with Madonna had soon dissipated when their resultant efforts came to nothing. They knew Sara's attempts to get Wallace to call her had a less than slim chance of coming through, and worse still, Joe's attempts to track the elderly secretary through the surgery's incoming calls logs had boiled down to nothing bar an unregistered, unanswered cell. They had hoped that sophisticated cell tower tracking technology might at least have given them a location for the cell they narrowed down as belonging to Wallace, but even this hit a roadblock when Joe's techs told him that (a) it was ‘close to impossible to locate tower transfiguration unless the cell was answered’ and (b) the number that Joe had lifted from the logs was not listed with any telephony company in the greater developed world.

  ‘David,’ pressed Sara, ‘we're running out of time.’

  David looked from Sara to Cole and to his sister Lisa, who gave him a look that said ‘get over it’, before placing her cutlery on her plate.

  ‘Okay,’ he nodded. ‘But you need to meet him somewhere open, where there are lots of people around.’

  Sara nodded before squeezing his hand under the table. ‘Let's keep this between us for now. I know we decided not to tell Sienna that we were testing Davenport, so as not to get her hopes up, and I don't think we should tell her we intend to test Hunt either, and not only because of her hopes. Just the thought that her daughter might have been fathered by that man could be enough to tip her over the edge, David, and she is slipping, I can see it in her eyes.’

  David knew what Sara meant. Their client was doing it hard, especially after her bashing
in the County Jail shower. ‘Okay,’ he agreed, just as Lucas Cole's pager began to beep.

  ‘I gotta go,’ said Cole, getting to his feet.

  David stood and shook his hand. ‘Thanks for your help, Lucas.’

  ‘Whatever I can do,’ he offered. ‘Let me know when you have that second sample,’ he nodded at Sara before turning to Lisa. ‘You score a double shift?’

  ‘Why do you think I'm stuffing my face now?’ she said, barely glancing up.

  ‘Coffee later?’ asked Cole.

  ‘Okay,’ she said. As Lucas smiled and walked away, her green eyes fell on David's. ‘What?’ she asked.

  ‘Nothing,’ he smiled before glancing at Sara.

  Sara started laughing, and David found himself laughing too. Lisa rolled her eyes as the pair fell into hysterics, and in that second, just for that second, they forgot what they were doing here, and it felt good.

  *

  That night David and Sara made love – long, slow, patient, unadulterated love. David considered their sex life healthy, especially given their heavy workloads and the fact that there was an almost-two year old in the next room, but it had been some time since they had made love as they did this night, with little concern for the day behind them and the one ahead.

  And when they had finished David held her close, his fingers tracing her arms, her body warm and smooth against his. And they said nothing until they finally drifted off to sleep, not stirring until daylight, when the sun cut through the window marking the start of the legal process that would decide their client's future – jury selection … Voir Dire.

  60

  In the Commonwealth of Massachusetts, taking a dive on jury duty was much harder than it was elsewhere in the US. In most states, grounds for exemption were broad – students, lawyers, journalists, judges, government officials, doctors, could take a pass simply because of their chosen professions or educational circumstances and the obligations that went with them. But in Massachusetts – in this case Suffolk County – the legal system went to great pains to provide jury pools that were truly representative of the community the defendant came from, preventing the usual erosion of the defendant's constitutional right to be judged by a jury of their peers.

  ‘There is no way that fucker isn't over seventy,’ said Phyllis Vecchio. The larger than life Phyl was dressed in the brightest of pink dresses, a pair of aqua blue pumps on her oversized feet. She was referring to the fact that two of the few groups that were exempt from jury duty in the Commonwealth were those aged over seventy and under eighteen.

  ‘He's sixty-eight, Phyl,’ said David, used to his jury selection expert's rantings. Phyl was as blunt as a hammer and had a mouth like a sewer but her heart was as big as a bus.

  ‘And I'm a virgin. He has no place being here and he knows it.’

  Phyl had a point. Prospective juror number twenty-one, a retired pilot named George Appleby, was taking so long to get to the witness stand, where he would be quizzed by Judge Isaac Stein, David and DA Katz, that the remaining sixty or so still left in the jury pool were either frowning in concern or rolling their eyes at the delay. By the time he took his seat behind the ornate wooden partition, he was sucking in air like there would be no tomorrow, his face red from the exertion, his eyes watering from the effort.

  ‘Are you all right, Mr Appleby?’ asked an obviously concerned Stein. The judge's thick eyebrows were arched, his thin frame leaning toward Appleby as if in readiness to reach out and hold him up if he began to slide off his chair.

  Appleby nodded. ‘I'm sorry, Judge. I'm a smoker.’

  Phyl leaned into David. ‘What the hell has he been smoking … Mount Saint Helen's?’

  David shushed his friend as Katz got to his feet, arrogant enough to completely disregard the old man in front of him. ‘Judge, the Commonwealth can see Mr Appleby is in medical distress and as such we ask you consider relieving him of his responsibilities.’

  Phyl was in David's ear again. ‘The Kat wants to bump him without having to use one of his strikes.’ Phyl was referring to the three peremptory strikes available to the prosecution, and to the defence, during the jury empanelment process.

  David looked at Appleby's file. There was no one better in the Commonwealth at preparing jury profiles than Phyl, but neither David nor Phyl had pegged Appleby as being a problem for the prosecution, which means Katz knew something about the elderly man that they did not.

  Judge Stein turned once again to Appleby. ‘In the event of you being empanelled, Mr Appleby, do you think your health would stand up to …?’

  ‘Why, apart from a little shortness of breath, I am as fit as an ox, sir,’ said the now offended Appleby.

  ‘I understand, Mr Appleby,’ replied Stein, ‘but we would not like to put any unnecessary pressure on –’

  ‘Nonsense,’ interrupted the cantankerous Appleby for a second time. ‘I'll have you know, sir, that I served in Vietnam – SAS – alongside my fellow countrymen.’

  A light went on in Phyl's eyes. ‘Appleby's a vet,’ she whispered to David.

  ‘We know that already.’

  ‘Yes, but what we didn't know was that he was SAS. Did you hear that slight accent in his voice? He may have been born here but he's also spent some time in Britain, or Australia, or perhaps even New Zealand. So maybe that's who he served with – the Poms, the Aussies, the Kiwis.’

  David saw it then. ‘Katz thinks he has a pro-UK bias.’

  ‘And he's probably right. If that's the case he may well be predisposed to feel a certain amount of sympathy toward our client and …’ Phyl took a breath, ‘… beggars can't be choosers, David, you need to hold on to him.’

  By this stage Stein had dismissed Katz's initial concerns and urged him to go on, which Katz did, spending a good five minutes trying desperately to get Appleby to express some sort of disqualification-worth opinion. But it was harder than the DA anticipated. Appleby was either very clever or incredibly daft because his answers were so simplistic that they could not be called as falling one way or the other.

  Eventually Katz, obviously having given great thought as to whether or not the old man warranted the use of one of his incredibly valuable peremptory strikes, must have decided that Appleby was ‘too far gone’ to be any sort of significant concern when it came to deliberation in the jury room, so he let him go, telling Stein he had no problem with the prospective juror, before returning to his seat.

  ‘Mr Cavanaugh,’ said Stein.

  ‘Thank you, Your Honor,’ said David, before standing and walking toward the white-haired Appleby.

  ‘Good morning, Mr Appleby, and thank you for being here this morning.’

  ‘Pleasure,’ said Appleby, sitting a little taller in his seat.

  ‘I'm sorry, sir, but I could not help but notice – you said you were SAS, and if my history serves me correctly, that means you served where, in the Vietnamese south-east?’

  ‘You're smart.’ Appleby smiled as he interrupted for a third time. ‘And your memory serves you correctly.’ It was the longest answer Appleby had given in minutes, and Katz was beginning to squirm.

  ‘Who did you serve with?’

  ‘The Australians mainly – and the Brits, at Phuoc Tuy, about 30 miles south-east of Saigon.’

  ‘You made some good friends.’

  ‘Not friends, brothers.’

  ‘So you know a thing or two about justice – about the value of life and death?’

  Appleby considered the question before looking at David once again. ‘I know that life is precious. I know people kill out of greed and out of survival. I don't judge anyone by their actions until I know all the facts of their circumstance. ‘Nam taught me that what you think happened and what really did happen are often poles apart, and it's that no-man's-land in between that interests me, Mr Cavanaugh,’ said the suddenly lucid Appleby. ‘For that's where the truth lies, not in the conjecture that surrounds it.’

  David smiled, all of a sudden grateful for the colourful and
, he guessed, incredibly astute gentleman before him. So far five jurors had been empanelled and most of them a frustrated Phyl had ruled as pro-prosecution. So Appleby was a shiny penny in the mix, and David had no intention of losing him.

  ‘I have to admit, Mr Appleby, you did seem a little tired earlier. Are you sure you would be fine to sit on a jury and play an active part in deliberations?’

  ‘Does a bear shit in the woods, Mr Cavanaugh?’ replied Appleby.

  ‘Your Honor –’ Katz was now on his feet and approaching the judge's bench. Katz was in a spot. He was now desperate to bump Appleby but could not risk appearing like the heartless ‘suit’ willing to cast aside a man who had obviously risked his life for his principles. The jury pool was watching this exchange – closely – and so David saw an opportunity he was not going to miss.

  ‘Do you have a problem with Mr Appleby, Roger?’ he asked.

  Katz's eyes flicked to the jury pool. ‘Your Honor,’ he said, choosing to ignore David, ‘I appreciate Mr Appleby's stoicism but it is clear the man is not in optimum health. The last thing we need, Judge, is for a juror to pull out mid – or, god forbid, late – in the trial.’

  ‘That's what we have alternates for, Roger.’ It was David again, speaking loud enough for the engrossed jury to hear.

  ‘That's enough, Mr Cavanaugh,’ said Stein with a half smile, obviously somewhat amused himself. Stein turned to Katz. ‘He's right though, Mr Katz, we're choosing two alternates – neither of whom will know they are actual alternates until the end of the trial.’

  This was true. According to Massachusetts law, criminal trials required the selection of fourteen jurors, with the two alternates unaware of their status. This was so that the two would listen just as well as the chosen twelve, once again assuring a jury that was both informed and dedicated to the process of deliberating on a verdict.