“About forty-five minutes. He couldn’t believe it.”
Tressel nods. “That’s understandable. So with your later conversations, you put in about two hours’ work for your ten thousand dollars?”
“Right.”
“Did Mr. Hennessey report you to any authorities for this? Did he try and get you in trouble?”
“No.”
“Because you did nothing wrong, correct?”
“Correct.”
“Then why didn’t Mr. Barnett just talk to him himself and save the ten grand?”
“I don’t know,” he says, as I object on the grounds that he couldn’t know.
“But you are willing to say things for money?” Tressel asks.
“Depends on the things and depends on the money.”
“Mr. Calderone, do you have any proof, any evidence, to demonstrate that all of this happened as you say? That you were put up to it by Mr. Barnett?”
“No.”
“Any proof you talked Mr. Hennessey into filing the complaint?”
“No.”
“Thank you. No further questions.”
Chambers adjourns for the lunch break as Hike comes back into the courtroom. I don’t like the look on his face. “What’s the matter?” I ask.
“Barnett never showed up.”
At the moment there is nothing of consequence that I can do.
I ask the court staff if they’ve heard from Barnett today, perhaps to give an excuse for his nonattendance. None of them have.
Hike contacts the process server who served the subpoena on Barnett, compelling his testimony today. The man is going to go back out to Barnett’s house, but it will be a while before he reports back.
We wait out the lunch break, but still no Barnett. When Judge Chambers starts the afternoon session, I ask that we discuss an issue before the jury is brought back in.
“Judge, our next witness is David Barnett. As you know, he was subject to recall, and we served him with a lawful subpoena compelling his appearance in court at this time.”
I give Chambers a copy of the subpoena and then continue. “He has failed to appear, and efforts to reach him have so far been unsuccessful. As you can imagine, this testimony is the linchpin to our case; we believe that Mr. Barnett is culpable for these murders. I am speculating now, but that could be the reason for his fleeing, if that is in fact what he has done.”
“What are you requesting of the court?” Chambers asks.
“A continuance, at least until we can determine what has happened here.”
“Mr. Tressel?”
Tressel stands to respond. There is slightly more than a 100 percent chance that he will be opposed to the request. “Your Honor, I don’t see why Mr. Carpenter can’t call a different witness now and put Mr. Barnett on the stand when he is found.”
I shake my head. “That doesn’t work for two reasons. First, there is a momentum to the case. I would have thought Mr. Tressel would be aware of this, but the order in which witnesses testify is not scattershot; it is strategic. But more important, I was planning to question Mr. Barnett for the rest of the day. I have no other witnesses here today.”
Chambers’s hands are effectively tied. He can’t force me to call a witness if there are none here, and he can’t penalize me for Barnett not showing up. I went through the proper procedure to get him here.
“I’ll grant the continuance until nine o’clock tomorrow.”
“Your Honor, can you also instruct law enforcement to join the effort to find Mr. Barnett?”
He nods. “I will certainly do that.”
Judge Chambers adjourns the session but directs that the lawyers remain within the vicinity of the courthouse, so we can reconvene quickly if Barnett shows up. I don’t think that is going to happen. Barnett struck me as a pretty buttoned-down guy; I can see him not showing up at all more easily than I can see him just wandering in late. He’s also smart enough to know that a subpoena is not something to be trifled with.
Three hours go by, and Hike and I just sit there and wait. I’ve got a lot of reasons to despise Barnett; I think he caused the murder of three people and put Pups in the awful situation she’s in. But taking its place at the top of the list is his causing me to spend three hours alone with Hike.
The word finally comes down that we are to meet in private session with Judge Chambers. It’s just lead counsel, which means me, Tressel, Chambers, and a court reporter. But there is another person there when I arrive, Detective Nicholas Summers, who, I assume, is there to report on the brief search that has been conducted for Barnett.
I’ve had some dealings with Summers in the past. He’s smart and fair, like most detectives I’ve met, and he dislikes me, like all detectives I’ve met.
Summers reports that Barnett is indeed nowhere to be found but that there are signs that he left his house hurriedly and carelessly. The front door of the house was ajar, and a flame was still lit on the stove under what might have been a pot of boiling water.
Significantly, his two cars remain in his garage, giving the impression that, when he left, he did not leave alone. “Of course,” Summers says, “there is no way at this point to know if the other person was aiding him or was an adversary.”
“What’s your best guess?” I ask.
“An adversary. I’m going on very little information here, but my hunch is that he was abducted. It’s a strong enough hunch for me to have labeled this a missing persons case, even though he has not been gone long enough for such a designation to usually kick in.”
Chambers asks, “Do we know when he went missing?”
Summers shakes his head. “No, although no neighbors saw him yesterday. They said that when he is home on a Sunday, he’s always out to some degree, usually walking. Also, the Sunday newspapers had not been brought in, and no phone calls were made from his landline either. So the working theory is Saturday night, though that’s just informed speculation at this point.”
I turn to Chambers. “Your Honor, the jury needs to be instructed that they can draw a negative inference from this if they wish.”
Tressel jumps in, sensing disaster. “That’s absurd,” he says. “The police admit that everything is speculation at this point, but the jury is in a position to draw conclusions?”
“Mr. Tressel is missing the point, Your Honor,” I say. “The speculation the detective was talking about concerned whether Mr. Barnett has fled or been abducted. Either of those two choices is worthy of a negative inference being drawn.”
I continue. “We have just presented a witness that implicated Mr. Barnett in these crimes. If he suddenly decided to flee a lawful subpoena, that’s hardly a coincidence. If he were abducted, the same thing holds. He could well have been removed by accomplices concerned with being brought down by Mr. Barnett’s testimony.”
I continue. “The third possibility, that he suddenly took this moment to take a vacation, leaving boiling water behind, is too ridiculous to seriously consider.”
Tressel shakes his head. “We need to deal with facts, Your Honor. There could be a fourth or fifth possibility that we haven’t even thought about. It is dangerous and perhaps unprecedented to have the jury concocting scenarios in their own mind.”
Chambers says, “We’ll adjourn and reconvene at ten AM tomorrow morning, at which point, assuming Mr. Barnett hasn’t materialized, I will issue a directive to the jury. Detective, please provide me with an update no later than nine AM.”
Summers agrees, and we end our little get-together.
The day hadn’t gone quite as I expected.
Barnett’s absence might not be a disaster.
The key will be how clear I can make it to the jury that his unavailability is consistent with guilt. Much of that will be up to the judge, but if he gives me some leeway, I think I can be effective. When the jury hears that someone has run away, they will want to know the reason.
If I had to guess, I would think that Barnett is no longer among the living. His situation wa
s not so dire that a smart guy like him would have run; even getting Pups acquitted would be light-years away from getting him convicted.
I never saw him as the trigger man, anyway; I saw him as part of a financial conspiracy that hired the shooter to do their bidding. It seems likely that his partners decided that he represented a risk to them, that if he went down, he might bring them with him.
I head back to the office to pick up some files, and there is a message on my phone from Nolan Weisler. He identifies himself as the local attorney for Hank Boyer and wants to have a preliminary conversation before they file the civil suit accusing Pups of the wrongful death of her husband, Hank’s father.
I would rather have a heaping plate of steamed broccoli than talk to this guy, but I know I’m going to have to eventually, so I call him to get it behind me.
He gives me a pleasant enough hello and thanks me for calling, and then he says that he understands from Walter Tillman that I will be representing Martha Boyer in the civil case.
“That’s correct,” I say. “Have you filed your suit yet?”
“No. My client instructed me to pursue the possibility of a settlement. He doesn’t think a trial benefits anyone, especially with your client’s medical condition.”
“His concern brings tears to my eyes,” I say.
“No need to bring sarcasm into this discussion,” he says.
“Sarcasm for me is an annoyance reducer,” I say. “I’m using it in this case because your client is an annoyance.”
“From what I have been able to ascertain, he is an annoyance with a strong case. In any event, I don’t want to further irritate you. Are you interested in settlement talks or not? I have seen the estate as listed in Jake Boyer’s will, so I am prepared to make a fair offer.”
I want to tell him to shove his offer, because I know Pups will tell me to do the same, but I catch myself just in time. I want to see his offer, in the unlikely but possible event that he has found the hidden value I suspect is there.
“Yes, definitely make your offer. My client will give it every consideration.”
He thanks me and tells me that I will receive it by FedEx tomorrow. Since I have no witnesses to question, it will give me something to do.
In the meantime, I head down to Charlie’s, where I know Vince Sanders and Pete will be watching the Knicks game. Once they get over their surprise that I’m there and their relief that they won’t have to pay the check, I tell Vince that I have a scoop for him.
“I live for your scoops,” he says. “My whole life is planned around receiving your scoops. Talk to me at halftime.”
“Here’s your headline,” Pete says. “Carpenter’s client to be convicted, but Carpenter still collects fee.”
I ignore Pete and tell Vince, “I won’t be here at halftime. You want it or not? It will be front-page news; the four readers you have left will eat it up.”
“There may only be four,” Vince says, “but they’re loyal as hell. What have you got?”
I tell him about Barnett’s being missing, emphasizing that it’s the defense theory that he is either the murderer or part of the conspiracy.
“Missing?” Vince asks. “Meaning he skipped town?”
“Or something worse. The police are investigating, and there’s a chance they’ll find out the truth since Pete is not on the case.”
“Who’s on it?” Pete asks, interested enough to ignore my attack.
“Summers.”
Pete nods. “Good detective. Not in my class, but pretty damn good.”
Vince picks up his cell phone and calls in the story to his city desk, or wherever it is that editors call when they have breaking news. The way media works in this day and age, everybody else will have the story before the paper even hits the streets, or the Web site.
Jurors are told never to read about the cases they’re involved with, so I always assume that they voraciously devour every bit of news they can find. That is especially true in a situation like this, where the trial has been mysteriously put on hold, without anyone telling them why.
Having accomplished my goal, I tell the waitress to put the food and beverage charge on my tab, and I head home. I’ve been spending way less time than I’d like with Laurie and Ricky, and although Ricky will be in bed, it will be nice to see and talk to Laurie.
Ricky is sound asleep, so I sneak in and kiss him good night. Laurie is also in bed, our bed, so I speed up the Tara-Sebastian walk a little in order to more quickly join her. She’s reading a thriller by David Rosenfelt, one of the great writers of our time, but she puts it down when I get into bed.
“I finally got the definitive answer from Ricky about the last-name situation,” she says.
“Uh-oh. What did he say?”
“Well, Rubenstein is still his first choice, but I convinced him that it was a bad idea, that the teachers would get confused with two Rubensteins in the class.”
I nod. “That’s a very legitimate concern.”
“I thought you’d agree,” she says. “His second choice is Carpenter.”
I’ve got to be careful here and pretend to be a gracious winner. It’s not a role that comes naturally to me. “Ah,” I say, a meaningless sound if ever there was one.
She disregards it and continues. “So I’ve decided to disavow my entire life’s identity, my standing as a unique and separate individual, and become Carpenter as well. My son and I should have the same last name.”
I need some help here. Every possible response I’m coming up with is going to get me in trouble. “Are you sure about this?” I finally say. “You sound as if you have some slight reservations.”
“Wow,” she says. “You really are insightful. You see right through me. I feel naked.”
“That was my hope when I came in here.”
She ignores that and says, “So I’m going to be Laurie Collins-Carpenter, and our son will be Ricky Diaz-Carpenter. You should get started on legally changing the names.”
I nod. “And the whole naked thing?”
“No chance.”
Judge Chambers calls us in for a precourt session.
The players are the same: Tressel, Summers, me, the judge, and the court reporter. I’m quite sure that Summers has already given Chambers the update on the Barnett situation, and we have been brought in to hear it.
“OK, gentlemen, I’m going to make this short and sweet. Detective Summers informs me that Mr. Barnett remains missing and is unlikely to return. He has missed some scheduled meetings, in addition to his court appearance, and has failed to meet some other personal obligations. Detective Summers believes this to be an involuntary disappearance, but, whether voluntary or not, it seems certain that we will have to proceed without him.”
“Your Honor,” I start, but the judge cuts me off.
“I must say that I was distressed to see this issue in this morning’s newspaper. Which of you was responsible for that?”
“That was me, Your Honor,” I say. “I felt it was newsworthy, and my hope was that it would turn up information as to Barnett’s whereabouts. He is very important to my case.”
“He wanted the jury to see it,” Tressel says, accurately.
I shake my head. “The jury has been specifically instructed not to read, watch, or listen to anything related to this case.”
Chambers is not interested in this byplay, though I’m sure he knows that Tressel is right. He hadn’t prohibited contact with the media, so he can’t sanction me for it now. “See you in court, gentlemen. Mr. Carpenter, be prepared to call a witness.”
As for what the judge will tell the jury, we’re not going to know until we know. As we’re leaving, I pull Detective Summers aside and ask him if he can hang around for ten minutes. “What for?” he asks.
“It has to do with this case, and it’s important. That’s all I can say right now.” He looks dubious, so I add, “Just ten minutes. Please. Take a seat anywhere in the courtroom.”
We head into court and tak
e our seats, with the judge just moments behind us. He calls in the jury and speaks to them. “Ladies and gentlemen, the defense had at this time intended to call as their next witness Mr. Barnett, who you’ll remember testified in the prosecution case and was subject to recall. Mr. Barnett has failed to appear, and we have been unable to locate him at this time. Mr. Carpenter, call your next witness.”
That was completely unsatisfactory, and in my view so egregious that it might give me an opportunity for appeal. But I don’t want to appeal; I want to win. “Defense calls Detective Nicholas Summers.”
Tressel jumps out of his chair as if it caught fire. “Objection, Your Honor.”
Before he even gets a chance to state the reason for the objection, Chambers calls both of us up to a sidebar at the bench. “Let’s hear it, Mr. Carpenter.”
“Your Honor, Mr. Barnett is crucial to our case. The jury has seen him testify, and they have just heard from a witness whose testimony incriminated him. Detective Summers has information relevant to his situation and, therefore, relevant to this trial. I can refer you to appeals court decisions that are on point and favor our position.”
The last part was a through-my-teeth lie; I don’t have the slightest clue if an appeals court has ever addressed this issue. I just want Judge Chambers to think about and be worried about being overturned on appeal. Judges hate that.
Tressel won’t have it. “Judge, you obviously made a decision not to tell the jury that they can draw a negative inference from Barnett’s disappearance. This does exactly that.”
I shake my head. “Wrong again. They are not being told to draw an inference; they are being given facts, which they can weigh along with all the other facts that have made up this trial.”
I think I have the judge in a corner, but cornered judges can be dangerous. Fortunately, not this time. “He can testify,” Chambers says, and we go back to our seats.
Summers takes the stand, and I ask him why he has been searching for Barnett. “Because the judge asked for police involvement,” he says.
“Did Mr. Barnett fail to appear after being served a lawful subpoena?”
The Twelve Dogs of Christmas Page 16
