by David Staats
“Not that I am aware of.”
“Do you know her password or unlock key?”
Houlihan frowned and shook his head.
“For any of her accounts? Facebook? Bank account?”
Houlihan looked at Dure with anxiety in his eyes. “No.”
Dure got from Houlihan his wife’s birth date, maiden name, as many favorites as Houlihan could think of, movie, color, etc., name of high school, whatever might possibly serve as a password.
Who knew what might be on the victim’s cell phone? It could just as easily be incriminating as exculpatory. Yet faced with the imperative to find the real murderer, Dure had to take risks. He wanted to look into the phone some more.
7.
Dure called Kurt Kniffe and gave him the meager information which Dure had gotten from Houlihan. He wondered, by the bye, whether Kniffe had checked with his police contacts.
“The police are not investigating this case,” said Kniffe. “The word is, Preston thinks this case is on ice. They’ve got a confession and that’s enough.”
“That’s odd,” said Dure. “Last I heard, they didn’t have the murder weapon, and they didn’t have the head. I would think they’d keep looking for those.”
“It’s been four years since I was on the force, but Lieutenant Gittleson is still there, and if the County Attorney says he’s got enough, Gittleson won’t go further. Besides, they’re busy with the other beheading case.”
“What did you find out about that?”
“Let me defer my report until Monday. The weekends are usually very productive for us.”
They set an appointment for three o’clock Monday afternoon.
Since it was the day of Frige, as Dure sometimes jocularly referred to Friday, Dure closed his office earlier than the usual hour and bestowed on Ralph and Kara early freedom from their weekly labors. He himself began a long constitutional, proceeding down Court Street, enjoying the pleasantly warm June weather. At Polmar Street, he turned left and walked past stores and offices until he reached a well-kept up, neat, leafy residential quarter through which he ambled at leisure. After strolling sufficiently to satiate his low-grade wanderlust, he gradually, almost unconsciously, made his way back toward the business district, returning via Oldbridge Street. It was about six o’clock when he entered Felicia’s, a favorite restaurant. He enjoyed not only a fine repast, but also cheerful service by the waitress, who knew that she could expect a good tip.
Kurt Kniffe, after his telephone call with Dure, made quick plans. He directed his inside researcher, who was an internet wonder, on some things to look for. He talked to one of his operatives who would do shoe-leather investigation. He then left the office, intent on bumping into one or more of his former colleagues on the police force.
On leaving Felicia’s, Dure walked with the energetic but relaxed gait of one who has enjoyed good food in moderation, strolling the few blocks to the garage where his automobile awaited him in his reserved parking space.
Kniffe turned on his police scanner as he drove to the coffee shop. No cops there. He was in and out. He didn’t even order a to-go coffee.
Dure drove home and there, in his living room, listened to recordings of Beethoven’s late string quartets (he listened to the Cavatina of Opus 130 twice) until eleven o’clock, when he went to bed.
It was a late night for Kniffe. Talks with cops. Calls with his ops. Notes and follow-ups.
Saturday morning Dure spent a few quiet hours in the office. Sunday he did not go in at all.
Kniffe’s Saturday and Sunday were busy with work and waiting, for himself and his staff.
* * *
Monday afternoon at 2:55: Kurt Kniffe finished reviewing a small sheaf of papers, squared them up, and slid them into a manila folder. He put on his suit jacket, took up the folder, and made his way across the building, out of his suite and into Walter Dure’s suite. Somehow, when Kniffe trod the old, creaking hallways in that many-times-remodeled building, the floor made no noise. He nodded to Kara, who returned his nod with a smile, which, in the course of their frequent interactions meant, ‘go on back.’ Kniffe knew the way and walked back to Dure’s office. The door was open; Dure was at his desk, apparently lost in concentration in reading a law book. Perhaps out of professional habit, Kniffe paused at the threshold, observing Dure while he considered himself unobserved. The office reminded him of a dingy aquarium, or of a shadowed reef, where a careful observer might notice the tip of a barracuda’s snout slightly protruding from a crevice.
“Come in,” said Dure, without looking up,
Startled, Kniffe rapped lightly on the door and entered.
Dure wrote a few more words on the legal pad in front of him, put the pad on the open book he had been consulting and closed the book so that the pad became an outsized bookmark. “What do we know about Mrs. Houlihan?” he asked.
Kniffe slid into the chair in front of Dure’s desk. He put the manila folder he had brought with him on the floor. “The basic statistics, DOB, SSN, marital status, physical description, address, and so forth I have for you on a summary sheet. As to her co-workers: I have an organizational chart of the County Library Services Department. I also have a list of the people who worked on the same floor with her in the County Services Building.
“The subject was very active politically. She was the immediate past Vice-Chair of the Essex County Reform Party. In one sense, then, everybody in the Greenback Party could have been her enemy. My investigator who talked to people in the County Services Building this morning reports that about a week before she was killed, one Bruno Snodhuis came to her office and had a loud argument with her, apparently about politics. We are in the process of checking this Snodhuis out. Otherwise, on this early-stage investigation, we do not find any specific political enemies.” Kniffe paused. His wrists were resting on his thighs, and he lightly pressed the fingertips of one hand against the fingertips of the other. He bowed his head for a moment then looked up.
“As opposed to enemies, however, there is some as yet inconclusive information that she had more-than-friendly relations with a man in her own Reform Party, one Rhys Parker. If you like, we will further develop this information.”
“This might lead to the discovery of someone who might wish to harm Mrs. Houlihan?” asked Dure.
Kniffe shrugged. “The betrayed wife, the betrayed husband,” he said.
Dure nodded. “Give it another three, four hours.”
“The betrayed husband, as in the man who has already made a confession,” said Kniffe.
“I get the point,” said Dure, in an ironical tone of voice. “What else?”
“Social media: No Facebook account that we can find. She had a Twitter account, mostly political stuff, at least based on what’s publicly available. We obviously don’t have her sign-in info. She had a smart phone. It’s now in the possession of the police.
“We found in the Family Court docket a case Houlihan v. Houlihan. Not much there, but there was a docket entry for a restraining order.”
“Can you get the order?” asked Dure.
“The case is more than ten years old, and as you know, the actual documents are not available to the public – just the docket item listing.”
“Okay, I’ll follow up on that,” said Dure. “Since my client presumably was a party, he should be able to get a copy. Anything else? – any information that she used drugs?”
“Nothing on that. Last thing: you asked me to look into the al-Metoosi case further. It appears that he is your standard-issue jihadi. We didn’t find any connection between him and our subject.”
“Did she post any anti-Muslim sentiments on her Twitter account?” asked Dure.
“None that we saw.”
“Thank you for this information,” said Dure. “I will follow up on the restraining order and the cell phone. Please find out exactly what was the relationship between Mrs. Houlihan and Mr. Parker.”
Kniffe’s face was entirely deadpan. He nodde
d once, stood and silently left the office.
* * *
Dure visited the jail again, Kara with him.
“You are certain that there could be nothing incriminating on your wife’s cell phone,” he said to Houlihan.
“No, no,” replied Houlihan, in a loud voice. “I’m sure I sent nothing. Just what I told you before.”
“The bologna?” said Dure.
Houlihan nodded.
“You did not send her a text message or leave a voicemail that implied anger, or violence – or that someone could twist into having such a meaning?”
Houlihan denied it. “You can check my phone. It has all the text messages I sent.”
“The prosecution has your cell phone – and your wife’s cell phone. If I can get access to them, I assume you can open your own?”
“I should be able to.”
“And if I can get access to your wife’s phone, could you give me the unlock key, the password, to open it?”
“I don’t know about that.”
“Do you know any passwords that your wife used?”
Houlihan was slow in answering. “I told you all I know before.”
Dure said to Kara, “Give him some paper and a pen,” and as she pushed a pad of paper diagonally across the dented metal table top, Dure said to Houlihan, “Do it again. Write down all the possibilities that you can think of that might be passwords your wife used.”
While Houlihan wrote and pondered, pondered and wrote, Dure scraped his chair back, stood, and began to pace. With his head bent forward, his chin supported by his left hand, he walked back and forth. His fingers now massaged his chin, now toyed with his lips. At length he returned to his chair and sat down.
“Done?” he said.
Houlihan nodded.
Dure told Kara to give Houlihan three documents which she had prepared back at the office. He instructed Houlihan to sign them. Houlihan glanced at the first document, then signed it. He read the second document, and signed it. After looking at the third document for a moment, he raised his eyes to Dure. “You need this?” he asked.
“I do.”
“Okay,” said Houlihan, and he scratched his signature on it as well.
* * *
Dure asked prosecutor Roderick Preston to give him Mrs. Houlihan’s phone, claiming that it constituted exculpatory evidence which the prosecution was bound to turn over under the Brady rule. Preston was intransigent in his refusal, so Dure filed a motion with the court.
Preston filed a counter-motion, demanding that the defense give the prosecution the unlock code so that the prosecution could open Mr. Houlihan’s phone.
They argued the motions before Judge Aburnathy, whose manner on the bench was one of cynical nonchalance. The judge was being harangued by Preston:
“The Commonwealth is only required to turn over to the defense exculpatory materials, and only copies at that. Dure has not established that anything on Mrs. Houlihan’s phone would be exculpatory, and in any event, there is no way to copy the phone. The Commonwealth certainly is not going to just surrender it to the defense for them to tamper with any way they see fit.”
The judge took off his glasses, let them fall on the bench, and rubbed his eyes. Without his glasses, his puffy eyes made him appear hard of seeing, so to speak. He propped his elbows on the bench and intertwined his fingers. He smiled. “Continue, counsel,” he said.
“As for Mister Houlihan’s phone, I have provided Your Honor with an affidavit of probable cause. The physical phone is in the possession of the prosecution, but without the unlock code, we cannot access the probative evidence which the phone may contain. The Court should order the defense to provide the unlock code for Mr. Houlihan’s phone.”
“Mr. Dure?” said the judge, turning in Dure’s direction, but still not replacing his glasses.
“Your Honor, as to the prosecution’s request for Mr. Houlihan’s unlock code, the defendant cannot be compelled to testify against himself. That includes any information which might tend to incriminate him. If the prosecution can guess the code or run some program to discover it, that’s the prosecution’s business. But the prosecution cannot compel my client to testify.”
“As for Mrs. Houlihan’s phone, justice requires the state, with all its superior investigative resources, to make available to the defense any information which may tend to exculpate the defendant. In theory at least, and it’s a theory to which the Supreme Court has subscribed in the Brady case, the prosecution’s job is to pursue justice, not simply win cases.”
Mr. Preston interrupted. “The defense has not established that there is anything exculpatory on Mrs. Houlihan’s phone. In fact, nobody knows what may be on that phone. The prosecution is not obliged to hand over evidence on the basis of mere speculation that it might be exculpatory.”
“It seems to me,” said the judge, putting on his glasses, “that a so-called smart phone, such as is at issue here, is like a document. It is well established that a defendant must surrender documents in response to a search warrant, and that doing so does not violate his right not to testify, with the caveat, that the defendant cannot be compelled to authenticate the documents. There is nothing incriminating in an unlock code per se, and so it seems to me that I could order the defendant to provide it to the prosecution, providing that it is done through counsel and that such provision not be used by the prosecution as authentication. However,” said the judge, turning to Preston, “I believe you have a confession in this case?”
“We do Your Honor.”
“Then,” said the judge, “the phone is not a critical piece of evidence, especially since your affidavit of probable cause is rather weak.”
“I might point out to the Court,” said Preston, “that the existence of a signed, written confession seems to be of no moment to Mr. Dure, who is defending with vigor, notwithstanding the defendant’s confession.”
The judge nodded. Turning to Dure, he said, “Your claim of exculpatory evidence with regard to Mrs. Houlihan’s phone is, if anything, even weaker than the prosecution’s affidavit of probable cause. What I think I’m going to do is deny both motions and leave the parties where they are – rather than get into what might be complex wrangling about possession and copying and monitoring what the other party is doing with these electronic devices. But it has been a pleasure to have you in my courtroom. Is the case proceeding on track for our trial date?”
Both counsel assented.
“And plea negotiations are ongoing as well?” asked the judge.
Dure looked at Preston, and Preston looked at Dure. There was some hesitation. Dure said, “As appropriate for this case. I have always found Mr. Preston to be amenable to discussions.”
“Thank you, counsel,” said the judge. “Next is Commonwealth vs. Plympton.”
* * *
The meeting which took place six days later had something of the air of a prisoner exchange. Prosecutor Preston and his associate, Jessica Tinder, Lieutenant Wisdom of the Canterbury police force, and a computer technician, all sat on one side of a large conference table in an ultra-modern conference room in the Justice Complex of Essex County. On the other side sat Dure, Ralph Hartley, Kara, and a free-lance computer technician whom Dure had retained through the good offices of Kurt Kniffe and Associates.
After their fruitless adventures in court, Dure and Preston had negotiated a deal: the prosecution would make Mrs. Houlihan’s phone available, and the defense would provide the unlock code. Both sides would then get to see whatever was on it.
It was a risky deal for Dure. If there was some incriminating evidence on the phone, he would be making a gift to the prosecution – a gift which might in fact kill his client. That is why one of the papers he had had Houlihan sign was a written assurance by Houlihan that there would be no incriminating evidence, and an instruction to Dure to pursue this evidence. The justification for running the risk was that with a confession in the case, Dure had to find out who, other than his client, ha
d murdered Mrs. Houlihan. Assuming that his client was telling the truth, the recent communications by Mrs. Houlihan before she had been murdered might provide a lead to the murderer.
The prosecutor, Roderick Preston, was a tall, patrician-appearing man. The extra ten pounds which he carried on his frame were well distributed and not excessive for a man in his fifties. Tortoise-shell glasses rested on his large nose, and his neat, combed hair was probably dyed. On the table in front of him was the three inch by six inch phone of Mrs. Houlihan.
Attorneys like to argue. Notwithstanding that they had agreed on this exchange, the two attorneys chewed up half an hour arguing; it became uncertain whether the exchange would actually take place.
After a curt exchange of pleasantries, Preston said, “Why don’t you write down the unlock key and give it to our computer tech, Shawn here, and he’ll unlock the phone.”
Dure replied, “What we have is a list of possible unlock codes from my client. They are naturally attorney-client privileged, and obviously, at most only one of them will work. So I can’t disclose all of them to you. I think a better way of proceeding will be for you to give the phone to my tech guy here, and he will try them out until one of them works.”
“Are you telling me you don’t have the unlock code?” said Preston. “What’s your game here?”
“Do you know the code to unlock your wife’s phone?” asked Dure.
“That’s neither here nor there,” said Preston.
“Exactly,” said Dure. “Mr. Houlihan has some educated guesses as to his wife’s unlock code, but he might be wrong. There’s nothing wrong with us trying them out.”
“I should point out,” interposed the prosecution’s computer expert, “that the way the operating system on that phone works is that repeated attempts to unlock the phone with incorrect codes lengthens the delay for you to enter another code. Otherwise, we would have cracked the code ourselves by now. After the fourth incorrect attempt, you have to wait a minute before you can try again. After the next incorrect guess, you have to wait five minutes. After the next one, ten minutes. After ten incorrect guesses, you have to wait an hour between each attempt. So, if you’ve got a lot of candidates to try out, we might be here a long time.”
