Judgement Calls

by Alafair Burke

  of train tracks. There's the Max, a light rail that's part of the

  city's public transportation. It runs east to west across the entire

  county on a single track. Then there are the rail car tracks. The

  east-west tracks are close to the Max rails along Interstate 84. The

  north-south tracks are roughly adjacent to Highway 99. "Like a Max

  train or a big train?"

  "Louder than the Max. A big train."

  The east-west train tracks didn't seem likely. They were on the north

  side of the city. I didn't think Kendra would confuse any neighborhood

  along the tracks with southeast Portland. But the north-south tracks

  ran right through close-in southeast Portland, just a half a mile or so

  west of Reed. There were a few neighborhood parks within earshot of

  the tracks.

  I drove past Reed College and headed to the Rhododendron Gardens. The

  front parking lot and small information booth fit Kendra's description

  at least roughly. When I pulled into the lot, she said, "No, this

  isn't it. It was a bigger lot, and there wasn't a fence like this. It

  just went right into the park area and then there was a bigger

  building."

  Westmoreland Park had a larger parking lot without a fence, but I

  didn't recall any kind of building, and sure enough there wasn't one.

  "Does this even look like the same neighborhood?" I asked.

  "Yeah, it does. I don't think I've ever been here or anything. But,

  yeah, it was like this. Like with a lot of trees and stuff. And when

  we passed houses, they were big like these."

  We were in the middle of a pocket of upscale houses in southeast

  Portland. The Sellwood-Moreland neighborhood, like my own in Alameda,

  was made up of turn-of-the-century homes. It was the most recent

  central neighborhood to have been taken over and colonized by yuppies.

  Considered a hippie enclave when I was a kid, the place was now overrun

  by coffee shops, chichi bakeries, and antiques stores. Area residents

  now actually golfed at Eastmoreland, a municipal course that rivals

  many private country clubs.

  Sometimes my disjointed pattern of thought actually pays off. It

  suddenly dawned on me that the last time I went to Eastmoreland to use

  its covered driving range, I sliced the hell out of a ball because a

  train had come barreling by at the top of my backswing. The parking

  lot is enormous and surrounded by thick hedges on two sides and the

  golf course on the others.

  I felt a rush, but I tried to hide my excitement. I didn't want to

  coach Kendra into a specific answer. I took a few side streets through

  Westmoreland and then turned into the Eastmoreland lot.

  Kendra knew immediately. If her ID of Derringer had been this solid, I

  could see why she'd earned Walker's and Johnson's confidence.

  "Samantha, this is it. I remember, I remember! That's the big

  building, and over there's the park. Are we near train tracks? This

  is totally it. They drove me right over there, around the side of the

  building."

  I knew that around the corner from the clubhouse, a strip of asphalt

  led to the driving range. I parked there whenever I came to hit balls,

  but it had never dawned on me how dangerously isolated the area would

  be when the course was closed. Acres of greens surrounded the lot on

  the north, east, and south. To the west, thick hedges, train tracks,

  and a six-lane freeway separated the parking lot from the nearest

  house.

  From the backseat, Chuck patted Kendra on the shoulder.

  "Good memory, kiddo. Good job, Kincaid, for thinking of this place.

  You two didn't even need me here."

  I knew he was attempting to hide his disappointment. The odds of

  finding a witness were slim. He would check with the golf course in

  the morning, but he wouldn't find anything.

  I tried to look on the bright side. At least I could prove that the

  crime had taken place in Multnomah County, so Derringer couldn't weasel

  out on a technical argument over jurisdiction. Also, the golf course

  was only a few minutes from Derringer's house, which at least added a

  piece of circumstantial evidence. At this point, anything helped.

  I decided to drive by Derringer's apartment before heading back to

  Rockwood. It would be nice to know the exact distance for trial, and I

  might as well get it while I was down here.

  I took a right onto Milwaukee Avenue and made a note of my odometer

  reading. Milwaukee is the primary commercial road running through

  Sellwood. It was also one of the only places where you'd find

  low-rent, high-crime apartments in this pocket of southeast Portland.

  Frank Derringer's apartment building was on Milwaukee and Powell, which

  I learned was exactly 1.7 miles from the Eastmoreland Golf Club. I

  pulled into the small parking lot in front of the building, turned on

  my overhead light, and jotted down the odometer reading on a legal pad

  I pulled from my briefcase.

  "Sorry for the stop, guys, but I wanted to make sure I made a note in

  the file about our find at the golf club while it was still fresh in my

  mind."

  Chuck realized where we were but didn't say anything. He apparently

  agreed there was no need to inform Kendra that we were sitting just a

  few feet from her assailant's home. She didn't seem like the

  pipe-bomb-building type, but you never can tell.

  I added a short note for the file, summarizing Kendra's statement at

  the golf course. As I was returning the pad to my briefcase, Kendra

  opened her car door, got out, and began walking across the street.

  "Where the hell's she "

  Before I could finish the question, Chuck was out of the car too. It

  wasn't hard for him to catch up. Kendra stopped by an old tan Buick on

  the corner across the street from the complex. When I got to where she

  and Chuck stood, Chuck was saying, "What? What is it? Kendra?"

  Kendra was ignoring him, entranced by this remarkably unexceptional

  car. Then she said, "He must've painted it."

  "Who? Who painted what?"

  Kendra spoke as if thinking aloud. "The car. He must've painted it.

  It was dark before. Now it's tan."

  "Kendra, what are you saying?"

  "I'm saying that this is the car. This is the car they pulled me into.

  I remember it. But it was dark before."

  Chuck and I traded skeptical looks. This wasn't good. Witnesses were

  notoriously bad at identifying cars, especially when, like Kendra, they

  knew nothing about them. And this particular identification seemed

  especially suspect, given that the car was an entirely different color

  from what Kendra had described after the attack.

  The viability of the case against Derringer rose or fell on Kendra

  Martin's credibility. Not just her honesty but also her memory would

  be the key to convincing a jury to believe her testimony. If Kendra

  made an assertion of fact that we later determined to be incorrect, I

  would have an ethical obligation to tell Lisa Lopez about the mistake.

  The case would be over.

  A couple of years ago, I had a robbery case where the clerk described

  the robber with as much d
etail as if he had been looking right at him.

  The cops picked up the defendant just a few blocks away, sitting at a

  bus stop where someone happened to have stuffed a sack full of marked

  bills behind a nearby bush. The man matched the teller's description

  in every way, except his tie was blue and not green.

  A lazy cop could have written a report saying the teller gave a verbal

  description, the defendant fit that description, and the teller then

  ID'd the guy in a line-up. Open and shut. But the rookie on the

  robbery had been fastidious, submitting a detailed fifteen-page report.

  The defense lawyer cross-examined the teller for four hours, and three

  jurors eventually voted not guilty, leaving me with a hung jury. My

  guess is that the eager officer now has a habit of glossing over

  certain facts in his reports.

  How much Chuck Forbes lets slide in his reports I didn't know, but the

  point was moot. I was standing right here, falling into the hole that

  Kendra Martin was digging deeper with her every word. The line between

  changing her statement and leading the investigation would be thin.

  Chuck and I needed to be sure to stay on the right side of it.

  He spoke first. "Kendra, if you're not sure, why don't we come back in

  the morning when it's light out and you've had the chance to sleep on

  things." We both looked at her, hoping the message might translate.

  But thirteen-year-old ears are deaf to subtlety. "I don't need to come

  back. This is the car. It's just not the right color."

  It was my turn to try. "So, are you saying that this is a similar kind

  of car to the one they had, but that the one they were driving was a

  different color?"

  "No. I mean, this is the car they had. Someone must have painted

  it."

  Struggling to hide my frustration, I said, "Kendra, a lot of cars look

  like this one. You're too young to remember, but when Chuck and I were

  your age, almost every car made in America looked just like this. Sad,

  isn't it?" She wasn't laughing. "Maybe it's better if we take Chuck's

  advice and come back and look at it when it's light out before you make

  up your mind for sure."

  "I don't want to come back tomorrow. What if it's gone? I don't need

  to see it again anyway. I'm sure this is the one. I couldn't remember

  it enough to, like, describe it out loud at the hospital, but now that

  I see it, I recognize everything about it. See, it's got a ding in the

  door over here where the driver sits. And the front hubcap is

  different than the back hubcap. Then I ran over here to look at it

  better. When I looked inside, I remembered it too. The dash is all

  freaky, like a spaceship. I don't know how to say it. It's just the

  same. But it looks like they did stuff to it. It's like way cleaner

  inside and it's a different color."

  It was possible. The car was, after all, parked outside of Derringer's

  building, and people have been known to paint their cars.

  Chuck was busy taking a closer look at the Buick. "She might be on to

  something, Kincaid. For such a piece of ... um, junk, this baby's

  paint's looking real good. So's the interior."

  It made sense. We knew already that Derringer was willing to go the

  extra mile to hide physical evidence. If he'd shave his body to avoid

  leaving hair samples, he might rework his car to dispose of any

  incriminating evidence.

  "I don't think we can get a warrant with what we've got. Kendra says

  it's the same car, but the fact that it's a different color's going to

  kill us. Is there some way to tell for sure if the paint is new?"

  "Sure. I'll just chip a little bit off." He reached in his pocket for

  his keys.

  "No! Stop. Don't touch the car."

  Chuck held his hands up by his face. "I wasn't going to open it or

  anything."

  "It doesn't matter that you weren't going to open it. Looking beneath

  the paint still constitutes a search. If you chip that paint off,

  whatever you see underneath will be inadmissible. And if we get a

  warrant based on what you see, anything we find as a result of the

  warrant will also be thrown out. Is there some way to tell if the

  paint's new without touching the car?"

  "Depends how good a job they did. If it was a quickie, they might not

  have gotten beneath the bumper and the lights. The cheap way to do it

  is to tape those areas off and paint around them. If he got it done

  after Saturday night, I doubt they did a thorough job. Problem is, I

  can't tell anything in this light."

  "I've got a flashlight in my trunk. I'll go get it."

  When I got back, Kendra said, "How come he can use a flashlight but

  can't chip some of the paint off?"

  "He's allowed to look at anything in open view. Flashlights are fine.

  Some courts even let you use stuff like night vision goggles without

  getting a warrant."

  "Hey, I've got something here."

  Chuck waved us over. He was crouched down by the back bumper,

  supporting his weight with one hand and aiming the light with the

  other.

  "It looks like this light tan stops right here at the edge of the

  bumper." He was talking slowly, the way people always seem to do when

  they're squinting. "Hard to tell exactly what color's behind there.

  Dark brown, maybe. But it's definitely a lot darker than the new

  stuff. Look over at the edge over here. It looks like they were kind

  of sloppy taping the bumper here. There's a thin line of paint on the

  metal right at the lip there. Can you see it?"

  "Barely, but it's enough. So the paint job must've been done

  recently."

  "Definitely. Even if no one ever washes the thing, normal wear and

  tear from the weather would at least break down that line a little bit.

  That's real new paint, with a clear edge left from the tape."

  That was enough for me. "Alright, we need to run the plates and make

  sure it doesn't belong to some priest down the street. Assuming we

  don't get something on the plate that changes our minds, let's order a

  tow and get paper on it." The law permits police to tow a vehicle and

  secure it while they apply for a search warrant. I asked Chuck,

  "What's the best way to do this?"

  "I don't have my phone with me. It's back in my car."

  He was looking at me like I could change that. I'd proudly avoided

  buying a cell phone for years. "You know I don't have one of those

  things."

  "Let's drive up the street to the gas station, and I'll call Southeast

  Precinct to have a patrol officer come out and sit with the car until a

  tow comes. What'll work best is if you drop me off at the Justice

  Center. I'll start the warrant application while you drive Kendra

  home, then you can swing back by Central to review the warrant. Up to

  you whether you want to stick around for the search."

  It must've been a slow night for crime. It only took a few minutes for

  a patrol officer to meet us at Derringer's. Kendra and I dropped Chuck

  off at the Justice Center, where Central Precinct is located. Then I

  hopped onto 1-84 and headed back out to Rockwood.

  I walked Kendra to
the front door, then remembered Chuck's contraption.

  We went around back, and I pushed on the back door hard enough to pull

  off the tape, holding the knob tightly so the door wouldn't swing open.

  Reaching my hand in at the bottom of the crack, I pulled out the glass

  of water. It was still full.

  "Are you going to be OK here by yourself, Kendra?"

  She nodded. "Uh-huh. I'm used to it since Mom started working

  nights."

  "What time does she normally get home?"

  "A little bit after eleven."

  I looked at my watch. Kendra would only be alone for about an hour.

  "OK. Make sure you tell her that's Chuck's car out front. He'll

  probably have a patrol car drop him off so he can pick it up, so don't

  get scared if you hear him leaving in the middle of the night."

  "Alright."

  "It was really nice meeting you, Kendra. You're a very strong girl to

  be doing so well after what happened to you. I want you to know that

  all of the police and I are extremely impressed and very proud of

  you."

  She was smiling with her lips together, which I suspected was as close

  to beaming as Kendra got. "Thanks."

  "One of the MCT detectives will come by Friday morning and pick you up

  for grand jury, but I want you to know you can call me before that if

  you want." I wrote my direct line on the back of one of my business

  cards for her and then waited at the back door until I heard her lock