Judgement Calls

by Alafair Burke

  cross.

  "Isn't it true, Mr. Derringer, that you've had some run-ins with the

  law yourself?"

  "Yes, ma'am, I have."

  "Now, do I have this right? You have three felony convictions in the

  last ten years?"

  "I believe that's correct, ma'am."

  Lisa had done a good job of warning Derrick not to get defensive about

  his criminal history. When a witness with a problematic background

  owns up to his problems, some jurors will actually give him points for

  it. I hoped Derringer's brother's record was bad enough to speak for

  itself whether he admitted the convictions or not.

  I asked him about his felony record, and he conceded that he'd been

  convicted of armed robbery and then of two separate incidents of

  forgery in the first degree. In a perfect world, the guy would still

  be in the pen for the robbery alone. He walked into a Subway sandwich

  shop just before closing and left with just $67 from the cash register.

  The cashier was a sixteen-year-old kid who'd started working at the

  shop a few days earlier. After Derringer discovered that there were

  only small bills in the register and that the cashier had no access to

  the safe, he made the kid get on his hands and knees on the floor in

  front of the safe. He stuck a gun in the kid's mouth, forced him to

  make three tries at opening the safe despite his protestations that he

  didn't know the combination, and then dry fired the gun when the safe

  didn't open.

  After the kid pissed his pants, Derringer got down on his knees in

  front of him, grabbed him by the hair, and mocked him while he cried.

  As he grabbed the small bills from the register, Derringer told the

  kid, "Hey, just be glad you're not a chick, man, or you'd really be

  having a bad day."

  Unfortunately, the Rules of Evidence being what they are, all the jury

  got to hear was that Derrick Derringer had been convicted of armed

  robbery. Just doesn't have the same effect.

  When I finished asking about his felony convictions, I got to the good

  stuff.

  I pulled out a thick case file from my leather legal briefcase, opened

  it, and asked him, "You've offered in the past to testify on your

  brother's behalf, haven't you?"

  He took the bait and tried to avoid what he knew to be the issue. "I'm

  not sure what you're referring to specifically, ma'am, but I have been

  saying since this unfortunate event occurred that I'm willing to tell

  the truth about what happened to establish my brother's innocence."

  What a fucking idiot.

  "I'm aware that you've been what you call 'willing' to testify for your

  brother in this trial, but I was referring to a trial two years ago in

  Clackamas County where your brother also was the defendant. Do you

  recall that, Mr. Derringer?"

  Of course he recalled it, he said.

  "And in that trial, Mr. Derringer, didn't you offer to testify that

  your brother had been with you when the crime of which he was accused

  occurred?"

  He had to admit that one, too.

  "Did you eventually testify in that trial?"

  "No, I did not," he said.

  "Were you in the courtroom when your brother testified in that

  trial?"

  Derringer looked surprised. I think Lisa expected me to get this

  evidence in through a DA or a cop instead of through her own witness. I

  guess she and Derrick Derringer didn't know that the DA who tried that

  case must've gotten bored during Frank Derringer's testimony. The

  prosecuting attorney had made a note in the file that Derrick Derringer

  was in the courtroom during his brother's testimony and looked

  irritated when his brother admitted having sex with the victim but said

  that it was consensual. Clackamas County had happily made the file

  available for me to use.

  "I'm not sure whether I was there for the entirety of his testimony,

  ma'am."

  "Well, let me ask you this. You were there when your brother admitted

  under oath that he was present at the scene of the incident that was

  the subject of that trial, right?"

  He finally gave up what I was looking for and conceded that he'd heard

  his brother admit to being at the scene of the crime.

  "And, let me get this right, before your brother testified under oath

  that he had been at the scene of the crime, you had been willing to

  testify also under oath that your brother had been with you on the same

  day and at the same time as the crime occurred?" This was the stuff

  that made being a trial lawyer fun. Yes, ma am.

  "And in this trial, you're saying that your brother was with you at the

  same time and on the same day as this crime occurred, is that right?"

  "Yes, ma'am, but "

  I cut him off. "No further questions, your honor."

  Lisa tried to rehabilitate him as a witness, but what could he say? He

  claimed he was confused in the previous trial about the night in

  question, which might be better than admitting to an offer to perjure.

  I was pretty sure the jurors saw him for what he was, though.

  Considering the crap Lisa had pulled, I got through the afternoon

  pretty well.

  By the time we were done with Derrick Derringer, it was a little past

  five, so Lesh was more than ready to call it a day. Lesh is one of the

  hardest working judges in the courtroom, so you can usually count on

  him to have trial every day, even Fridays, which most judges view as

  golf day. But this evening he announced that he had a funeral to

  attend the next day and that we would not reconvene until Monday. The

  delay would give me some extra time to file whatever papers I planned

  to submit in support of my motion to exclude the evidence of the

  Zimmerman case.

  When I reached the eighth floor, I went straight to O'Donnell's office.

  Luckily he was still in.

  "Thank God you're here. Did Alice tell you what's happening in Lesh's

  courtroom?"

  "Yeah. I figured you'd want to talk as soon as possible, so I told the

  guys to go running without me."

  I was glad enough not to hear him say I told you so. But missing an

  opportunity to run on a sunny day in Portland is huge around the DA's

  office, where running is essentially our religion. I suspect I got my

  job more for my mile times than my educational pedigree. "Thanks. I

  need the help. I know close to nothing about the Zimmerman case, and

  Lopez is dumping it with no notice right in the middle of the Derringer

  trial."

  He looked at his watch. "Unfortunately, the Zimmerman case was pretty

  fucked up, and this anonymous letter just makes it look worse. It'll

  take awhile for you to get up to speed, and I don't have long."

  A date, no doubt. Good to know the head of the major crimes unit had

  his priorities straight. "Well, start by giving me what my detectives

  can say and where they might be weak. The only good thing about Lopez

  springing this thing on me is that she boxed herself in on witnesses.

  She's basically got to get the defense in through my witnesses. I've

  got Walker, Johnson, and Forbes. They were all involved in Zimmerman,
<
br />   right?"

  "Yeah. I can tell you right now that, if you've got a problem, it'll

  be Forbes. Let me give you some background." He explained what I

  already knew, that Forbes got involved in the case by happenstance when

  Taylor's probation officer, Bernie Edwards, called him in to follow up

  on Landry's reported suspicions.

  He then filled in the details leading up to Landry's confession. "You

  got to understand that when Edwards and Forbes went out to Landry's,

  they were already pretty sure she was full of shit. It was basically a

  CYA house visit in the event Landry actually knew something. It was

  about a month after Zimmerman's body was found, and the Oregonian

  printed a short Crime Watchers column with a picture of the vie and a

  bare-bones description of the crime, asking people to call in if they

  knew anything. Landry told Edwards and Forbes that she read it and

  started thinking that maybe Taylor had something to do with the

  murder.

  "She said she remembered Taylor coming home drunk unusually late around

  the time of the crime and taking a shower, which was not typical for

  him at night. When she woke up in the morning, he was doing a load of

  laundry already, which was also strange. She said that about a week

  later she overheard Taylor talking on the phone, saying something about

  how someone named Jamie had flipped out on him. She assumed Jamie was

  a guy at the time, so didn't think too much of it. But, according to

  her, she put all this together when she read the article and then

  called Edwards."

  I took a second to process the information. "Huh? Even if she was

  telling the truth at that point, why would she connect Taylor to a

  murder based on that?"

  "I know. It didn't make sense to Edwards or Forbes either. They

  shined her on a little bit and then left. But then Margaret figures

  out that they're blowing her off, so she calls Edwards the next day and

  tells him she was poking around in Taylor's stuff and found a matchbook

  from Tommy Z's that said Jamie Z with a telephone number on it. Edwards

  runs a reverse trace on the number and it comes back to Jamie

  Zimmerman's mother's house."

  "Did Jamie live with her mother?" I asked.

  "As much as she lived anywhere for any substantial period of time, I

  guess. Before she was killed, she'd been out of her mom's house for

  about six months. Hey, I know what you're thinking, and, trust me,

  Edwards and Forbes thought it too. They figured she looked the number

  up in the book or something. But Jamie's mom had a different last name

  I can't remember what it is now and the paper never printed it. That

  phone number was a big piece of evidence for us down the road, when

  Margaret was backing out of her confession. We looked at the case up

  and down, and we just couldn't figure out how she could've come up with

  that number other than through direct contact with Jamie."

  "So what happened after Landry came forward with this name and phone

  number?" I asked.

  "Like I said, Edwards does the reverse trace and figures out it's

  Jamie's mother's number. My recollection is that Forbes contacted MCT

  at that point to let them know what he and Edwards had and to see

  whether Margaret could've gotten the number from the paper somehow. The

  case was getting cold, so MCT had cut the investigation down to one

  team Johnson and Walker and they weren't working it very actively. In

  any event, they decided the Landry lead was worth following up on, so

  they went out and interviewed Taylor and confronted him with the Jamie

  Z matchbook.

  "Now, you got to understand, Jesse Taylor is an absolute freak. Tell

  you the truth, I don't know how a guy like that even lives to be

  thirty-five. Unless his whole presence is an act, the guy doesn't know

  which end is up. Never knows what's going on. Talks in circles, non

  sequiturs. Drinks himself into a blackout about every day. Basically

  a gigantic human id."

  "But a court found him competent for trial?"

  "Don't they always?" O'Donnell's smirk was irritating, but I tolerated

  it for the sake of the briefing. "So, when Walker and Johnson do the

  interview, they assume Taylor's playing dumb, because they can't

  imagine that someone's actually as stupid as this guy really is. Taylor

  denies anything having to do with the murder. But then Walker and

  Johnson confront him with the matchbook. He says that for all he

  knows, he might've met Jamie Zimmerman and gotten her number. He can't

  really say because he can't remember anything that happens from one day

  to the next."

  "Sounds like a real winner."

  "Hey, who the hell else would be shacked up with some

  sixty-five-year-old cow? Old Margaret's not exactly a looker." He

  could tell from my stare that I didn't have time for this right now, so

  he resumed his summary. "Based on Margaret's info and Taylor's

  wishy-washy statement, we got a warrant for his house and his car."

  "I thought you said he shared a house with Landry. She wouldn't just

  consent to the search?"

  I should've known not to let my guard down and ask a question of

  O'Donnell. Predictably, he used it as a chance to belittle me and make

  himself look knowledgeable. "You know how it goes," he said, even

  though I obviously didn't. "Court says a roommate can only consent to

  a search of the parts of the house they actually share. You and I know

  that a couple living together and banging each other shares every part

  of the house. But come trial, wives and girlfriends who consent to

  searches have a tendency to say, "Oh, by the way, Judge, that cupboard

  where they found the murder weapon? That's his cupboard; I'm not

  allowed to go in there." Result? Weapon is gone. Maybe in the dope

  unit, you guys don't give a shit about that stuff, but we don't risk it

  on major cases. We go for the warrant."

  I ignored the comment. As long as O'Donnell was giving me helpful

  information, I didn't care about the insults. "Did they find anything

  useful?"

  "Depends on what you call useful. For a second, they thought they'd

  hit the jackpot. See, as far as the police could tell, Jamie was

  wearing these gold hoop earrings that her friends said she always wore.

  Dead girl turns up without her earrings, you don't really know what

  that means. Could've fallen out; she might've taken them out, who

  knows? But it was definitely something the police were keeping their

  eyes out for during the search. So what do they find in Jesse Taylor's

  toolbox but a pair of gold hoop earrings, about two and a half inches

  in diameter, just like the ones Jamie was always wearing.

  "Problem was, Jamie's mom sees them and says there's no way they're the

  same ones. Seems Jamie got the earrings from her dirtbag father a

  couple years earlier one of his only visits to her, according to the

  mom. Anyway, he told Jamie the earrings were fourteen-karat gold,

  trying to push himself off as a big spender. So Mom, to prove a point

  and bust any hope Jamie had that her dad was a mensch, dragged her into

  one of th
e jewelry stores at the mall one day to prove the earrings

  were fake. Turned out they actually were solid gold. The mom figured

  Jamie's dad must've ripped 'em off from somewhere. The earrings the

  cops pulled out of Taylor's toolbox were fake."

  I was thinking out loud. "So Landry read about the earrings in the

  paper, bought some like them, and planted them in Taylor's toolbox?"

  "No way. We never released the information on the earrings, just in

  case the perp took them as a souvenir. Johnson went back and read

  every article and watched every newsreel on the case, and there was

  nothing about the earrings. So, yeah, the theory was that Landry was

  planting evidence, but she was planting it on a guilty person. Happens,

  you know look at Mark Fuhrman and O.J."s bloody glove. We figured

  Taylor had to be involved at that point, because how else could Landry

  know about the earrings?"

  "What did Landry say about the earrings?" I asked.

  "That was one thing about Margaret. All the way up until she was

  indicted, she was quick to admit her lies. She'd say, real

  matter-of-fact, "Oh, that. Well, yes, you're right, I wasn't exactly

  honest with you on that one." She always replaced it with some other

  lie, but each time she dug herself a little deeper, giving us a little

  more of the truth." O'Donnell smiled and shook his head, recalling the

  case, then suddenly seemed to remember he'd been talking about the

  earrings. "Same thing applied with the earrings. She admitted

  planting them right away once she was confronted."

  "Did she say how she knew Jamie wore earrings like that?"