Judgement Calls

by Alafair Burke

  The jurors looked exhausted by the time I was done. An elderly woman

  across the table raised her hand. She gestured to her notes with her

  pen while she spoke. "Um, maybe I'm confused or something," she said,

  "but it sounds like whoever wrote these letters killed Jamie and the

  other women and also raped that poor little girl. And you're saying

  that you don't see how these other people Margaret Landry, Jesse

  Taylor, and Frank Derringer could have written the letters, so it

  sounds like they're all innocent. Have you told us anything about

  Derrick Derringer yet?"

  "Not yet. The evidence I have just summarized for you is the

  background of a larger investigation that relates to the case against

  Mr. Derringer. What you've heard so far suggests exactly what you've

  stated. Like I said, you may find it difficult to reconcile all that

  information with the evidence you will hear today. So I want you to

  consider the remaining evidence in light of the background I've given

  you and then decide whether to issue the indictment."

  There were no more questions, so I called my first witness, Haley

  Jameson.

  Haley walked in with an attitude. I would've been disappointed in her

  if she hadn't. She slumped down into the witness chair at the center

  of the room and looked up at the ceiling as I had her spell her name

  and take her witness oath.

  "Where do you live, Haley?" I asked.

  "Varies day to day. I been in a bunch of foster homes, but mostly I

  just crash with friends. Stay at a place in Old Town called the

  Hamilton."

  "And how do you pay for things like your hotel room at the Hamilton,

  food, things like that?"

  "I got immunity, right?"

  "Right. As we've discussed, you're testifying today with my promise

  that nothing you say will be used against you."

  "Mostly I date," she said. "Sometimes I'll sell some pot to friends or

  something to pick up a few extra bucks."

  "When you say that you date for money, are you referring to

  prostitution?"

  She rolled her eyes and sank into her chair a little deeper. I was

  starting to worry she might slide right off.

  "You need to reply to my questions with a verbal answer, Haley. The

  court reporter is transcribing everything."

  "Yeah. I meant prostitution," she said.

  "How long have you been working in prostitution?" I asked.

  " "Bout three years," she answered.

  "And how old are you now?"

  "Sixteen."

  A couple of the grand jurors shifted uncomfortably in their seats as

  they worked out the math.

  "Do you know Frank and Derrick Derringer?" I asked.

  "Unfortunately," she said. "Can't be on the street as long as I have

  without running into them."

  I had made the connection when I reviewed the file at Kendra's. I had

  printed out Derrick Derringer's PPDS record so I could cross-examine

  him about his prior convictions, but I'd never seen the need to pay any

  attention to the basic identifying information, like hair and eye

  color, height, and, most importantly, tattoos.

  I pulled out one of the photographs that Kendra had given me the first

  time I met her, the one showing Haley and a couple of girls with a man

  whose face wasn't shown but whose tattoo was. I'd retrieved the

  photographs from Tommy Garcia before I'd gone looking for Haley.

  "Haley, I'm handing you a photograph that appears to show you with a

  man and two other girls. Will you please tell the grand jurors what's

  going on in that picture?"

  "Uh, it's pretty obvious, isn't it?"

  "Humor us," I said.

  "Well," she said, looking at the picture, "a few of us were partying

  with a guy, and someone saw a disposable camera lying around and

  started taking pictures."

  "Whose camera was it?"

  "Kendra's," she said.

  "Kendra Martin?" I clarified.

  "Yeah. Kendra wasn't actually there. She'd been in my room earlier,

  hanging out, and left it behind."

  "Are the other girls in the picture also from the Hamilton?"

  "Yeah, on and off, like me," she said.

  "Who's the man in the picture, the one with the tattoo of the Tasmanian

  Devil?"

  "That's Derrick Derringer."

  "How do you know him?" I asked.

  "Like I said, hard not to know him," she said. "Him and his brother

  cut in on a lot of the girls' business out there. They take a share

  from you, or all of a sudden bad things start happening to you."

  "Do you give any money to Frank and Derrick Derringer?"

  "Yeah, I got to give 'em half of what I make. For a long time, they

  were leaving us younger girls alone as long as we'd do other stuff for

  'em. Now they want both. Like that night we took the picture, we did

  the group thing for him, but then I had to keep giving him money on top

  of it."

  "So you have had sexual intercourse with Derrick Derringer?"

  "Duh," she said.

  "The court reporter, Haley," I reminded her.

  "Yes. I've had sexual intercourse with him."

  "To your knowledge, did Kendra Martin pay any of the money that she

  earned to Frank and Derrick Derringer?" I asked.

  "Nope. She hadn't been working long enough to really know who they

  were yet. She seemed to think she was too good for a lot of it and was

  real careful to stay on her own."

  "What did the Derringers think of that?" I asked.

  Haley and I had gone over her testimony carefully before I'd given her

  the immunity deal. I was still worried, though, that she'd back out on

  me.

  "They were pissed. All the girls knew Kendra was out on her own. A

  couple times, we told her to come around when we knew Frank or Derrick

  were coming by. You know, we'd say we knew these guys and we wouldn't

  be getting paid but needed to do it anyway. I figured she knew the

  score, but she kept blowing us off while we were still getting stuck

  with them. It was pissing a bunch of the girls off too, and they

  started telling Frank and Derrick that they weren't going to go along

  if Kendra wasn't."

  "How did the Derringers react to that?"

  Haley looked at me and then the door. For a second, it seemed like she

  considered bailing, but she stayed put. She was going to need some

  prodding.

  "Haley, I asked you how the Derringers reacted to that."

  "All I know is, I saw Derrick the day after Kendra got messed up. He

  said that me and the other girls should take a lesson from her, that

  that's what happened to girls who didn't have someone watching out for

  them."

  "Did he ever tell you directly that he or his brother was involved in

  the attack on Kendra?" I asked.

  "No, just that we should take a lesson from it."

  "Did you say anything in response to that?" I asked. I could tell she

  was considering clamming up again, but then she gave up.

  "Yeah. I was pretty messed up at the time and mouthed off to him. I

  told him he'd better be careful because Kendra had a picture of him."

  "Are you referring to the photograph that we just discussed?"

  "Yeah. I saw t
he pictures after Kendra got them developed. Derrick

  freaked when I told him and started shaking me to find out what I was

  talking about. I told him I was just fucking with him, that the

  picture didn't show his face or anything. But then he made me tell him

  where Kendra's mom lived at so he could try to get the picture back."

  I paused to tell the grand jurors about the key missing from Kendra's

  purse and Andrea Martin's suspicion that some items were out of place

  in the Martin home. I also showed them reports documenting the

  break-in at my house, explaining that the photographs had been in Tommy

  Garcia's possession until a few days ago.

  "After you gave him Kendra Martin's address, did you ever talk to

  Derrick Derringer again about the photograph?"

  "Yeah. He told me I better get that picture back from Kendra. I've

  been calling Kendra trying to do it, but Kendra will only talk on the

  phone with me. She won't meet me anywhere, so I've been trying to

  avoid Derrick." I mentally apologized to Kendra for doubting her.

  "Haley, I want to show you another photograph now." I handed her the

  DMV photo I had pulled of Travis Culver and reminded the grand jurors

  that Culver was the owner of the Collision Clinic who had testified at

  Frank Derringer's trial. "Do you recognize this man?"

  "Sure, that's Travis," she replied.

  "Do you know his last name?"

  "Not before you told me. Street don't really care about last names,"

  she said.

  "How do you know Travis?" I asked.

  "Regular out there on the street. Dates. You know."

  "You mean he picks up prostitutes?"

  "Yeah. The younger the better, it seems. I used to see him a lot more

  about a year and a half ago. Guess I got too old for him and he moved

  on."

  "Have you seen him at all since Kendra Martin was attacked?" I

  asked.

  "Nope," she said. "Seems like he stopped coming around about that

  time."

  The grand jurors didn't have any questions, so I thanked Haley for her

  testimony and excused her.

  Next up was Travis Culver. I'd slapped the subpoena on him the day

  before and received a call from an attorney within the hour. Lucky for

  me, Culver had called the attorney he uses for the auto shop, a guy

  named Henry Lee Babbitt who hung a shingle outside of his house and

  called it a law office.

  Since Henry Lee's usual fare was wills and uncontested divorces, he was

  useless as a criminal defense lawyer. To begin with, I had to walk him

  through the way grand jury subpoenas work. Culver'd be subject to

  arrest if he failed to appear. Although he had the right to refuse to

  respond to questions if he believed that the answers might incriminate

  him, he had to show up, and he did not have the right to an attorney

  during the grand jury proceedings. At most, Henry Lee could wait in

  the hall outside the hearing room; Culver could ask for breaks if he

  wanted to consult with his attorney at any time. You can see why the

  defense bar says that grand jury proceedings are a prosecutor's best

  weapon.

  Henry Lee's request for an immunity deal was further proof of his

  abject ignorance of criminal procedure. A good defense lawyer will

  find out what the prosecution knows before even considering the

  possibility of a deal. To do otherwise tips your hand. Henry Lee had

  tipped his for good. I had told him only that I wanted to talk to

  Culver about his testimony in the Derringer trial. In return, Henry

  Lee had given up his client in the form of a hypothetical.

  "Let's say hypothetically that I had a client who got wrapped up by

  some bad guys into an ugly sexual incident, thinking the whole thing

  was consensual?" he said. "And then what if, hypothetically, when it

  turned out that the young woman hadn't in fact consented to this little

  encounter, the client got blackmailed by the bad guys into a

  cover-up?"

  Henry Lee had watched way too many bad TV shows, and now I had even

  better questions for Travis Culver.

  Culver looked terrified as he took the chair in the middle of the grand

  jury room. He was sleep-deprived and disheveled, and I could smell the

  fear in his sweat as he passed.

  At least Henry Lee had given him one piece of good advice; Culver

  invoked his rights as soon as we got past his name and address.

  "Do you know Frank or Derrick Derringer? Isn't it true that you

  overhauled Frank Derringer's car on a Sunday, on short notice, to get

  rid of physical evidence? Do you use the services of teenage

  prostitutes? Did you and Frank Derringer rape and beat Kendra Martin

  and then leave her to die in the Gorge?" That last one was what you

  call a compound question, but no one was there to object to it, and

  Culver wasn't going to answer anyway, so what the hell?

  I kept going. "Isn't it true that you paid Derrick and Frank Derringer

  to stage a sexual assault upon a young girl for your pleasure? And

  that when, unbeknownst to you, the violence turned out to be real, they

  threatened to reveal your identity unless you cleaned out the car and

  offered false testimony in Frank Derringer's defense?" Another

  horrendously compound question, but it worked. Culver was clearly

  thrown off. I wish there was a way for the court reporter to

  transcribe the look on a witness's face. This one said, How the hell

  do you know all that? I wanted to respond, Your stupid attorney pretty

  much told me, but I didn't.

  Culver looked like he was thinking about answering the question but

  then gave me the standard response. "On the advice of counsel, I

  refuse to answer on the ground that it might incriminate me."

  When I thought the grand jury had the gist, I excused Culver and

  brought in my final witness, Lisa Lopez.

  "On behalf of the grand jurors and myself, thank you for coming, Ms.

  Lopez. I know how busy you are. You were the public defender assigned

  to represent Frank Derringer, is that correct?"

  "Yes. As you and I have discussed, it is highly unusual and extremely

  questionable that you have brought me here by subpoena, and I have

  appeared only on your assurances that you are seeking an indictment

  against Derrick Derringer, and that my testimony will not be used to

  secure new charges against my client, Frank Derringer."

  Securing Lisa's presence here at all had required substantial

  maneuvering. When I had explained the situation to her at her office,

  after hours, she had immediately balked, citing attorney-client

  privilege, work-product privilege, the duty of loyalty, and the duty of

  zealous representation. She seemed offended when I responded, "Ethics,

  schmethics," so ultimately I'd had to convince her that helping me out

  was both ethically permissible and morally required. After lengthy

  negotiations, she finally accepted service of the subpoena and promised

  not to rat me out to my boss. The deal was that I'd ask only a few

  questions, which we agreed upon beforehand. In response, she would

  provide the exact answers we'd rehearsed in advance, including the

  long-winded caveat she'd just
provided as an introduction to her

  testimony.

  I continued the questioning as planned. "In your defense of Frank

  Derringer, one theory you presented at trial was that the crimes

  against Kendra Martin were committed by whoever killed Jamie Zimmerman,

  is that right?"

  "Yes, that's correct."

  "Ms. Lopez, I'm handing you a transcript of your opening statement in

  the Derringer trial. Please read for the grand jurors the highlighted

  passage."

  She read from the transcript:

  "The wrongdoing that has brought Kendra Martin, Frank Derringer, and

  all of us together began about four years ago. Four years ago,

  Portland police officers found the body of another troubled young girl

  named Jamie Zimmerman in the Columbia Gorge. Jamie wasn't as lucky as

  Kendra. She was murdered strangled after being raped and beaten. Like

  Miss Martin, Jamie was a drug addict who supported her habit through

  occasional prostitution. Like Miss Martin, she was raped and

  sodomized. Police found Jamie's badly decomposed body less than a mile

  from where Kendra Martin was located. Ms. Kincaid mentioned that

  whoever committed this crime took Kendra's purse. Well, guess what,

  ladies and gentlemen? Whoever killed Jamie Zimmerman took her purse