The Ophelia Cut

by John Lescroart

  For all intents and purposes, Tony Solaia was gone.

  When they got back to court, and no doubt in response to Sergeant Brito’s testimony regarding the shillelagh, Stier called David Wickers.

  The drunk from the Shamrock shambled nervously up through the bar rail. His collar-length hair, today combed straight back and tied into a ponytail, retained a trace of its natural blond, which went with his eyebrows and his powder-blue eyes. He wore Sperry Top-Siders, no socks, tan Dockers, a purple shirt with a black leather tie, and a tan corduroy sport coat.

  Stier didn’t waste any time. “Mr. Wickers,” he began, “would you call yourself a regular customer at the Little Shamrock bar, owned by the defendant on trial here, Moses McGuire?”

  “I guess I would. I’m there most days.”

  “How long have you been a regular there?”

  A little laugh. “At least as long as I can remember.” He turned to the jury, chuckled again. “Which is about yesterday.”

  Gomez gaveled away the courtroom’s response. “Mr. Wickers,” she said, “this is no place for jokes. This is a court of law, not a barroom.”

  Dave’s head went down in contrition. “Sorry. I guess I’m a little nervous.”

  “Fine. But please answer Mr. Stier’s questions seriously. Understood?”

  “Yes, ma’am. Sorry.”

  “Do you remember the question, Mr. Wickers?” Stier asked.

  “Not exactly.”

  Another wave of laughter.

  “I’ll repeat it. How long have you been a regular at the Little Shamrock?”

  “I’d say seven or eight years.”

  “On average, how many days of the week do you find yourself there?”

  Frowning in concentration, Dave pulled at his collar and tie. “Pretty much every day, if I’m not sick. And sometimes then.”

  “So nearly every day, is that right?”

  “I’d say so, yeah.”

  “And during your many days there, did you have occasion to notice a club, sometimes called a shillelagh, that the defendant kept there?”

  “Sure. It was always there, hanging under the bar.”

  Dave described the shillelagh with great accuracy and identified it as the club or weapon held by McGuire in People’s #15. “Have you ever held that shillelagh?” Stier asked him.

  “No.”

  “Nevertheless, from your observations of Mr. McGuire’s handling of it, could you estimate its weight for the jury?”

  “I don’t know. Heavy for its size. Maybe three or four pounds.”

  Stier paused for a lengthy moment and then, realizing that he’d gotten about all from Mr. Wickers that he was likely to, turned him over to Hardy. Who, because he knew something Stier could not know, bounded up out of his chair like a much younger man.

  “Mr. Wickers,” Hardy began, “when you say you are a regular at the Little Shamrock, do you have a regular seat where you usually sit?”

  “I sure do, and everybody knows it.”

  “And where is that?”

  “The stool at the front corner of the bar, by the window.”

  “And the bar is L-shaped, is that right?”

  “Yeah.”

  “And you sit at the corner on the short side, facing the long side of the L, right where it turns?”

  “Right.”

  “So, just to get this clear; if you’re sitting in your regular seat, you’re looking straight down the long line of the L along the top of the bar, is that right?”

  Dave closed his eyes, making sure, then nodded. “Right.”

  Hardy paused to let the positioning sink in. He crossed back to his table and picked up his legal pad, which, for once, he was going to use. “Now, you’ve testified that the shillelagh was, and this is a quote, ‘always there, hanging under the bar.’ Is that correct?”

  “Sounds like it. That’s where it was.”

  “Under the bar? It was under the bar?”

  “Yeah, down under by the beer spigots.”

  “And those beer spigots are on the long L of the bar, too, are they not?”

  “Of course.”

  “The bartender doesn’t have to turn around to pull a beer, in other words?”

  “Right.”

  “The shillelagh is under the bar, by these spigots? You’re sure?”

  Dave rolled his eyes. “Come on, already. How many times do I got to say it?”

  “Is that a ‘yes’? The shillelagh is under the bar by the spigots?”

  A weary sigh. “Yes. All right. Yes.”

  “Well, then, Mr. Wickers, tell me this. How do you see the shillelagh under the bar from where you’re sitting on your stool?”

  For an instant, Hardy thought Wickers looked uncannily like an intelligent dog, trying to work out the meaning of some obscure phrase like “get the ball.” Finally, he said, “I’m not sure what you mean.”

  “I mean you’re sitting at the end of the L, looking down the length of the bar along the top of the L. How do you see what’s under the L?”

  “Well, it’s always been there.”

  “It’s not there now, Mr. Wickers, is it?”

  “I don’t know. I don’t think so. We were talking about it being gone.”

  “So when was the last time you saw the shillelagh hanging under the beer spigots? A couple of months ago? A year ago?”

  “I don’t think it was that long.”

  “When was the last time you specifically remember actually seeing the shillelagh hanging under the bar or in the bar at all?”

  Wickers closed his eyes again, took a few breaths, pulled at his collar and tie, then opened his eyes and shrugged. “Sorry, but I just can’t say. I don’t remember.”

  Stier’s next witness established that when police searched the bar, the shillelagh was nowhere to be found.

  AFTER GOMEZ CALLED the afternoon recess, Amy leaned over in front of Moses and said to Hardy, “What did you put in your cereal this morning? You’re tearing it up in here today.”

  Hardy looked around behind them and whispered to her. “With Dave, it’s almost cheating.”

  “You know what’s really pathetic?” McGuire put in. “I’ve talked to that guy like two hours every day, five days a week, for the last five years.”

  “That’s a long five years,” Hardy said.

  “That’s a long first two hours,” Amy replied. “Five times a week for five years. If I knew that guy was coming in every day—no, never mind.”

  “I’m trying to remember one single thing we talked about.”

  “I don’t think that’ll turn out to be a productive use of your time, Moses.” Amy was all business. “Who’s up next, you think?” she asked.

  Moses asked, “Doesn’t recess mean we take a break from talking about the trial for a few minutes? I mean, we were almost having some fun there with Dave for a second or two.”

  “Fun?” Hardy deadpanned to Amy. “He’s joking, right?”

  NEXT UP WAS Inspector Sergeant Lee Sher.

  Crisp and professional in her uniform, she took the stand and sat with an air of expectation as Stier introduced into evidence both an original tape recording and the transcript that Sher had vetted.

  Hardy had read the transcript in his discovery papers, and it had led to his biggest fight with Moses of the entire ordeal. Because, contrary to Hardy’s explicit orders, and more than a little drunk, the client had made the decision to basically spill his guts to his two arresting officers, who’d had the good sense to place a recording device under the backseat of the police car.

  That disastrous decision, Hardy knew without a doubt, would be coming back to bite them.

  “Inspector Sher,” Stier began, “please tell the court how you are connected to this case.”

  “When Richard Jessup’s death got called in to the Homicide Department, my partner, Paul Brady, and I were assigned to investigate. Over the course of the next few days, we identified the suspect and eventually arrested him for Mr. Jessup
’s murder.”

  “Where did this arrest take place?”

  “At the defendant’s bar, the Little Shamrock, on Lincoln Way near Ninth Avenue.”

  “And what is your procedure when you arrest a suspect, Inspector?”

  “The first thing we do is inform the suspect that he is under arrest, and then we read him his Miranda rights warning.”

  “And what is that?”

  “It basically informs the suspect that he is under arrest, he has the right to an attorney and the right to remain silent, although if he does choose to speak, anything he says can and will be used against him.”

  “And did you read Defendant McGuire his Miranda rights upon his arrest?”

  “We did, yes.”

  “And what do you do next?”

  “Well, if there is no resistance from the suspect or medical issues to deal with, we handcuff the suspect and put him in the back of a police car, after which we drive him downtown to the Hall of Justice for booking and processing.”

  “And is that what you did with the defendant in this case?”

  “Yes.”

  “Thank you.” Stier walked over to the evidence table. “Sergeant, I’m going to play a tape recording for you, and at the end, I’m going to ask if that was a full and accurate recording of what the defendant had to say on the way to the station after he’d been arrested.”

  Hardy spent an excruciating half hour trying to show no reaction while listening to an obviously drunk McGuire do exactly what Hardy had told him not to do.

  When the tape was finished, Stier asked Sher, “Did you tell the defendant he was being taped?”

  “No.”

  “Were you or Inspector Brady asking any questions?”

  “No. We just let him talk.”

  “So, during the ride to the station, Mr. McGuire said, ‘He needed killing, and I’m glad he’s dead.’ ”

  In his ongoing plan to stay on the good side of the judge, Hardy had been trying to limit his objections, but this was too much. He rose to his feet. “The tape speaks for itself, Your Honor, and is in evidence. It is inappropriate to ask the witness to repeat bits and pieces of it out of context.”

  “Sustained, Mr. Stier. The jury has heard the tape, and they’ll have it in the evidence room if they need to hear it again.”

  That was small comfort to Hardy. Gomez was exactly right. The jury had already heard, and would certainly hear again, his client’s drunken rave: “Either of you have kids? No? What do you think you’d do if you had a daughter and found out some little punk had first beat her and then raped her? You think you’d sit around wringing your hands? C’mon, you guys are cops. You’d go and handle things, wouldn’t you? Tell me you wouldn’t. Because sometimes the law doesn’t get it right.”

  Hardy decided to let Sher go.

  After she had left the courtroom, the judge said, “Mr. Stier, your next witness?”

  Stier replied, “Your Honor, the People rest.”

  PART

  FIVE

  40

  HARDY SPENT A great deal of the weekend at his office in the company of Amy Wu and Gina Roake. At issue was their SODDIT defense, upon which they were basing most of their hopes. They were there to draft a response to a motion that Stier had served on them and filed with the court late on Friday afternoon. It was entitled “People’s Motion to Exclude Speculative Evidence Regarding Possible Third-Party Culpability.”

  Upon the first quick read-through, Hardy thought it sounded a death knell to their hopes. Stier, no fool at all, had seen where Hardy planned to go with his witnesses and had moved to head him off at the pass.

  Both Goodman and Lo had been subpoenaed and were on the witness list and would be available to the court on Monday morning. Both had reason to dislike or even hate Rick Jessup and feel either a threat from him (Goodman) or a passionate urge to punish him (Lo), so both had an arguable motive to want him dead. Similarly, six of Lo’s women had been assaulted by Jessup and possibly subjected to who knew what other humiliations; either they or their protectors might be assumed to have a motive to kill the victim as well.

  On an entirely different level, the disappearance of Tony Solaia might be played into a major issue. Viewed starkly, Tony was perhaps the best alternative suspect Hardy could present to the jury, assuming the judge allowed it. Tony had, after all, been the first person to hear about the rape. He was Brittany’s boyfriend, at least, if not lover. He’d had access to the shillelagh on Saturday night, and he had no alibi for any part of the next day. Add to that the stunning revelation that he was already in the witness protection program—someone who had turned against his former comrades in crime and would provide evidence against them in return for the government dropping charges against him, charges that apparently included murder for hire—and Tony Solaia should certainly be a person of interest in the murder of Rick Jessup.

  But there was huge disagreement among his team over how to play the card. Amy and Gina were convinced that they should ask for a dismissal but settle for a mistrial. Clearly, the prosecution had failed to turn over exculpatory evidence: one of their principal witnesses was a murderer being protected by, and getting money from, the feds. Even if Stier didn’t personally know this—and Hardy had no way to find out—they would argue that he should have. The bottom line was that even if Gomez wasn’t inclined to find it was anybody’s fault, a badly tainted witness had testified, and the defense hadn’t had the opportunity to confront him about all the dirt in his past. It was simply unfair.

  As a second separate issue, Tony was still subject to recall by the defense, and they couldn’t call him because he’d gone away, probably with the assistance of the federal government. Again, direct governmental interference with the defendant’s right to a fair trial. Even if Gomez couldn’t blame Stier, Hardy had a powerful argument that they should get a do-over for this reason alone.

  Gina had told Hardy bluntly that she didn’t think the trial was going well. Brilliant tactician though Hardy might be, the Big Ugly was eating his lunch on every major issue with every single witness. In Gina’s opinion, it couldn’t get worse. It was time for a legal Hail Mary, whatever that might be. They’d had a chuckle over the possibilities. In fact, Amy had added, the issues supporting a mistrial were so clear and their arguments so strong that the court of appeal might very well find Hardy and Amy ineffective if they didn’t ask for one. Amy didn’t know about Hardy, but she planned to continue in the practice of law for quite some time, and it didn’t help bring in clients for a court of appeal to publicly label you incompetent.

  Hardy wasn’t sure a mistrial would be to their advantage. It wasn’t like Moses would get out on bail or the case would be dismissed; it just meant a do-over in sixty days, and as bad as the case was, he couldn’t think of anything likely to make it better.

  In the end, it was a moot point. Moses flat-out vetoed the idea. He wasn’t going to start over and endure more time in jail and more expense while his attorneys prepared for another trial. That wasn’t going to happen.

  Their last problem was with what was formally called the “third-party culpability” defense. All along, Hardy, Gina, and Amy had known the problem was substantial if not insurmountable: for any evidence related to another suspect to be admissible, it wasn’t enough to produce a possible motive, even a great motive. It wasn’t good enough to produce a motive and show opportunity. No. The defense not only had to produce a specific other person with motive and opportunity, they also had to show direct or circumstantial evidence linking the third person to the actual perpetration of the crime.

  This was a high hurdle, particularly in the cases of Goodman and Lo.

  Goodman had informed Hardy first thing Saturday morning that he was bringing his own lawyer to court on Monday morning and, if it came to it, he would dispute the admissibility of his testimony with the judge. Liam Goodman was not about to get on the stand and admit to unproved allegations that showed he had hated Jessup and defrauded the U.S.
government. Did Hardy think he was that naive? He could prove where he had been during every minute of the Sunday when Jessup was killed, beyond which there was no direct or circumstantial evidence linking him to the perpetration of the crime, words he actually used, which meant—no surprise, since he was a lawyer—that he was prepared.

  Lo, for his part, was in Los Angeles over that weekend, so actual perpetration of the crime was an impossibility for him, too. Whether or not Lo knew that, Gomez would, and if Hardy could not convince her otherwise, she wouldn’t admit the questioning of Lo.

  That again left Tony, whom Hardy had reserved the right to recall, if they found him. Hunt had done a fine job of tracing the U-Haul truck but had lost the trail in Salt Lake City, at which time Hardy called him off.

  So of their three “other dudes,” two might be ruled inadmissible by Gomez, and the third, also possibly inadmissible, could not be found.

  Hardy had argued third-party culpability before, and had prevailed, but this time out, he did not have a specific person to implicate in the actual crime, as he’d had with his previous successful arguments. Also, he had the feeling that his scattershot approach—proposing three alternative suspects instead of a single most likely one—might work against him.

  And if the jury wasn’t going to hear about other suspects, where did that leave his client? Had Hardy adequately refuted any of the prosecution’s claims?

  Motive? No. Means? No. Opportunity? No.

  By Sunday night, he was as close as he’d ever gotten to true panic. This was why you never wanted to let your client talk you into going to trial as soon as it could be calendared. Hardy, after finally discovering the motives of Goodman and Lo, had no time to connect motives to either of them or to any other specific person. He had no time to discover more details about the other case Tony was involved in. He had no time, period, for everything else that needed to be done.