Fox is Framed

by Lachlan Smith

  Moonlight shone on the breakers. The stark shadows heightened the effect of the house perched all by itself at the very edge of land, separated by a sweep of empty pasture from the road. I drove up the long drive and parked. The big two-story dwelling appeared shut up and dark.

  On the front porch she bent, felt behind a flower pot with dead flowers, and produced a key. She opened the door. Inside, she punched numbers into a keypad. A light flashed green and a tone sounded. “I didn’t steal the code,” she said. “It’s just that I’ve got a visual memory. I can see it now like he’s standing right here, what his hand did. Don’t worry. The guy that owns the place is in China for the year. At least that’s what Eric said.”

  Teddy, visibly uncomfortable, told me that he’d keep watch outside.

  The front hall was wood floored, opening into a large living room with a stone hearth and chimney like a pillar. The sky was visible through the windows thirty feet overhead. A balcony edged by a railing of gnarled pine ran the perimeter of the second floor. The doors of the rooms along the balcony were closed. A wall of windows looked out on a spacious deck that at least from the inside appeared to jut out into emptiness with only the vast ocean beneath.

  I passed through the echoing living room, went through a sliding door, and stepped outside. At the railing, with the salt wind in my face, I looked down and saw waves breaking white and small far below. I felt suddenly that I was toppling and turned back to face the house. It appeared to be the same balcony from the picture. “What happened?”

  The woman spoke out of the darkness beside me. “She fell. She’s probably still out there somewhere. They say it can take months for a body to come ashore. Sometimes people drown and they never get found. Maybe the sharks get them, or maybe they just sink to the bottom and they never float up.”

  “You mean Russell pushed her.”

  “We were partying, the four of us. Russell wanted to use Lucy to get to Eric. You know the backstory,” she said, glancing at my face. “Everyone does. Well, as soon as he got out of prison, he found her again, and there was no one to protect her. No one would have believed her. She was a whore and he was a john. That’s how it went down. Try telling the police any different. She told me all this the night she died. She told me everything.

  “It was a sick fucking tragedy. Once he’d had her again, it was like she was back there all the way back in the beginning, with a sack over her head and her hands and feet tied. There was going to be a lot of money in it for both of us, he said. But Lucy wasn’t in it for the money. She wasn’t in it for anything. She told me she knew now she could never escape, and no matter how far she ran, he’d find her. She was a walking dead person, a zombie. Whenever he came into the room, she’d hold her breath. He’d killed whatever he’d left alive the first time.

  “Once I realized who he was, and what he’d done to her, I tried to get her to leave with me, but she wouldn’t go. We were on this deck, with a fire going. Russell was pushing all kinds of stuff on Eric and Lucy. He kept daring her to do reckless things, and she’d do it just because he said. Like walk on the railing. When Eric passed out in a chair, I thought Russell would stop egging her on.

  “I went to the bathroom, and when I came back she was up there again. Standing in space, high as a kite, like she might fly straight to the moon. Russell gave me a look, then he grabbed her ankle and all of a sudden yanked her foot up and made her fall headfirst. Like picking a flower. She didn’t even have time to scream, she was just here one moment and gone the next. But she didn’t die that day. She’d died weeks before, the day she first saw him again.

  “I screamed. I tried to run, but he pushed me down and raped me. Like it was a turn-on for him to kill my friend. Afterward, he told me to say Eric pushed her. That he’d been drunk and she’d climbed up there, and he pushed her. Eric wouldn’t remember anything, Russell said. If I went along, I’d get more money than I ever dreamed. If I went against him, he’d kill me.

  “We were two feet from the ledge. He could have picked me up easy and tossed me over. For a moment I thought that’s what he was going to do, even after I agreed. I was sure that he’d see I was lying. But finally he got up and went in to use the phone. ‘Jackson Gainer will be here in an hour,’ he told me when he came back. ‘He doesn’t want me to call the police. That means we’re golden. Now you just have to do your part. Eric pushed her. Just keep saying that.’

  “I waited until I heard Jackson pulling up. I pretended I had to go to the bathroom. I went through the window, dropped out onto the lawn, and ran. It was so far. I thought for sure they’d see me before I got to the end of the driveway, that they’d come roaring out and that would be the end. I was barefoot. I just kept going up that mountain until my legs wouldn’t carry me anymore. I stayed there for most of the next day. From where I was, I could watch the house. I saw them coming and going, looking for me. Finally I came down and hitched a ride back to the city. If Jackson finds me, he’ll kill me. What else can he do? He covered up one murder already.”

  She turned toward me and the space between our bodies melted, and I felt the moist heat of tears on my cheek, the warm swell of her breast, every inch of me responding to her. In my arms she made herself seem small and vulnerable. Her lips made a small movement at my neck, and I shuddered.

  The deck lights flooded on like the lights in a stadium. She ducked out of my arms, shielding her eyes. I turned, squinting. It was Teddy. I nodded to my brother in thanks for what he might have prevented from happening. “Let’s get out of here,” he said, and we went back out through the house.

  “You haven’t asked how I found that picture,” I said when we were driving again.

  “I’m not like most people,” she said, settling against the door, the crumpled bag of donut holes once more clutched in her lap. “I don’t ask a question if the answer’s obvious. The picture was on the web for anyone to find. I put it there.”

  “Why put it on the web?”

  “Look, I got out of there. I ran. I saved my ass. I wasn’t about to bring it to the police. You think they’d have believed me? But not wanting to go to the cops doesn’t mean I wanted to let them get away with it.”

  “But how could you hope to get away with blackmailing Eric Gainer?”

  She didn’t respond immediately. Then she said, “Get a life, someone told me once. The trick is finding someone who doesn’t want theirs.”

  “Like Lucy.”

  “Why shouldn’t he pay?”

  “Maybe because he isn’t guilty, from what you said.”

  “But he thinks he killed her, and he let Jackson cover it up. And what does he think happened to me, the only witness? No, I don’t feel bad about sweating him for cash. Because of Eric Gainer, I’ve got to start over. He has the money to do that and I don’t.”

  Teddy said, “I’d lend you my life, sweetheart, but if you haven’t been shot in the head you probably wouldn’t want it.”

  “They’ll wish they’d shot me by the time I’m through.”

  Chapter 14

  “We have a number of matters to take up before jury selection,” Judge Liu said. “Let’s start with the defendant’s motion to exclude the confession. Is the state prepared to present whatever evidence it has that the defendant procured Bell’s murder in order to prevent him from testifying in this trial?”

  Crowder stood. “We are. Detective Shanahan is here at counsel table. He’s ready to take the stand. We have a number of exhibits.”

  “What about the defense?”

  “Your Honor, we’d like to offer a stipulation.” This referred to a formal agreement as to what evidence would be admissible and what would not. Nina distributed copies to the judge and the DA, the language firmed over several evenings of drafting and redrafting. “Mr. Maxwell offers to waive his right to cross-examine Russell Bell. In return, the state can introduce the confession itself but not the fact of
Bell’s death.”

  With a thoughtful look, Liu turned to Crowder. “You still haven’t charged him. I’m not going to let you come into my court and prosecute a defendant for a crime he’s not on trial for.”

  “We still fully expect that he will be charged.”

  “When? After the jury acquits him here? Wait a minute,” Liu said, holding up a hand to keep Crowder from interrupting. “I think the defense’s suggestion is an excellent solution to our problem. I’m going to approve the stipulation, deny the motion to exclude the confession, and order that any mention of Russell Bell’s death be kept from the jury.”

  “But the state has to be allowed to explain the reason Bell isn’t here to testify,” Crowder protested. “Otherwise the jurors will blame the prosecution for failing to produce this witness. If we’re not allowed to talk about Bell’s death, the jurors will hold his absence against us.”

  “Think about it. We instruct jurors every day not to draw any unfavorable inferences from the defendant’s decision not to testify. I can give a similar instruction here telling the jurors not to draw any conclusions from the fact that Bell won’t be taking the stand.”

  Liu turned his gaze to Nina. “The defense will not be allowed to seize the advantage. Any implication, any innuendo that the prosecution is somehow remiss in not bringing this witness into court, and the stipulation goes out the window. You even crack open that door, Ms. Schuyler, and I’m going to let them drive a truck through it.”

  “Yes, Your Honor.”

  “Don’t even think about asking for another delay so that you can gather more evidence and charge him,” Liu said to Crowder as she rose again. “We’ve got a hundred jurors waiting downstairs—this trial is going forward.” He consulted the papers in front of him. “Next motion is also the defendant’s, to prevent the state from arguing that the physical evidence concealed from the defense in the first trial would have showed that the defendant murdered his wife.”

  He looked up. “Now, Ms. Schuyler, do you really expect me to grant this?”

  “The point of our motion, Your Honor, is that we’d be able to do a DNA test if we still had the evidence. We’ve got the man who we think did this sitting there in Pelican Bay, and we could get a sample and make the comparison, except that the evidence we’d want to compare it to was lost and destroyed through no fault of the defense.”

  Liu didn’t even need to hear from Crowder. “The state can argue the facts their way, and you can argue the facts your way, and the jury can decide whether the state has proved its case beyond a reasonable doubt. Motion denied.”

  They went on to discuss other matters, including our motion to exclude mention of previous instances of violence in our parents’ marriage, which Liu denied, and the state’s motion to exclude mention of his reversed conviction and the misconduct of the government in the first case. This Liu denied as well, meaning that Nina would be allowed to harp on Gary Coles’s transgressions. I wondered again if she was making the right choice by letting the confession come in. It was a judgment call, and it would have been easy to second-guess her either way.

  At ten o’clock the deputies brought in the first group of potential jurors, known as a petit venire, and the lawyers began the process of selecting those who would serve. The courtroom deputy called the first fourteen names, and the unlucky chosen took their places in the jury box, most of them grim faced at the trap that had suddenly opened in their lives. Nina and Crowder took turns questioning the group as a whole, then followed up with questions to individual jurors regarding their ability to apply the burden of proof, their potential biases, and exposure to the media coverage. Picking twelve jurors and two alternates took the next day and a half.

  ~ ~ ~

  In the past two weeks, I’d spent more concentrated time with my father than at any other time since my childhood, drilling and redrilling him as the examination Nina had structured for us took shape. Fourteen-, then sixteen-hour days, taking the BART over with the early commuters and running to catch the last train home at night, with my own practice on the back burner. I’d spent most mornings preparing the testimony of Lawrence, my brother, and Car. The afternoons and evenings were given over to drafting and researching our motions and proposed jury instructions. My father, by contrast, seemed almost to have withdrawn from our preparations. Except for our practice sessions, he spent his time at Teddy and Tamara’s house, no longer making appearances at the office, eating his meals there and riding his motorcycle back to San Rafael in the evening. It was as if he were determined to wring all the life he could out of these few days and nights that might be all the freedom that remained to him.

  Late at night, when I’d become too tired to write, I’d pore over the files on the shooting of Russell Bell, looking for something the police might have missed or obscured, something Nina hadn’t noticed.

  I would be as prepared for this trial as I’d been for any trial in my life, if only it were mine to try. I’d felt like a second stringer on opening day, sitting in Nina’s office that morning watching her make her final preparations. I wanted to be helpful but the main thing now was staying out of her way. For the first time since I was a recent law graduate, I’d be riding the pine.

  ~ ~ ~

  Standing beside the podium rather than behind it, her notes lying before her, Crowder began her opening statement. “I want you to picture a scene. June twentieth, nineteen eighty-three. A child, Leo Maxwell, is walking home from school. Normally at this hour his mother is at work. He has his apartment key on a chain around his neck.” A detail I’d forgotten. “He’s used to letting himself in to the apartment, getting his snack, doing his homework or watching TV.

  “He climbs the stairs to the second floor, opens the door with his key. This is what he sees.” Crowder picked up a poster board blowup of the crime scene photo. Seeing it in the courtroom along with the crowd of spectators, it was hard to believe that this was my real life. It was like something that had happened to someone else. “His mother, Caroline Maxwell, crumpled on the floor in the front hall in a pool of blood, her body half nude. She’d been savagely beaten with the child’s aluminum baseball bat, which lies nearby, covered with blood, clumps of hair. Standing in the hall, he wets his pants. Then he picks up the phone and dials the number that he’s been taught to dial.

  “You’ll hear that child’s nine-one-one call. You’ll also hear that in the six months preceding Caroline Maxwell’s death, police had been called at least four other times to the residence. Emergency calls, domestic violence. Two of those calls were placed by Caroline Maxwell, the other two by her oldest son, Teddy. On each of these occasions, Caroline changed her mind by the time police arrived. Each time, she decided that she didn’t want her husband arrested after all. Each time, police complied with her wishes. You’ll have the chance to examine the police reports, and you’ll see that they reflect a pattern of escalating violence, a rage building in Lawrence Maxwell. A rage that kept swelling until that fateful day in June nineteen eighty-three, when Lawrence Maxwell decided to do what, as he’d later say, ‘had to be done.’

  “He came home from his law office in the middle of the day. Around one or two o’clock, judging by the coroner’s estimate of time of death. A Wednesday afternoon. We don’t know what happened between them, whether words were exchanged before he did what he’d planned. He beat her to death there in the hall. Afterward he wiped the handle of the bat, but his fingerprints were left on the barrel. He dropped the bat and simply walked out of his own home, leaving her there for his ten-year-old son to find. Later, Maxwell was located in a neighborhood bar not far from the scene of the crime. No alibi. He was arrested, tried, and convicted of his wife’s murder and sent to prison. But I’m here to tell you that twenty-one years ago justice was not done. That failure to do justice is the reason we’re here in this courtroom today.

  “The next chapter is one that I’m not proud to tell. The p
rosecutor on Mr. Maxwell’s case was a man named Gary Coles. Coles, at some point in his career, came to believe that rules were for other people. They certainly didn’t apply to him. What the rules say is that whatever evidence there is, good or bad, the prosecutor has to share it with the defense. Everything must be turned over.

  “Gary Coles didn’t like that rule, and he broke it. Not just in this case but in others. He broke our golden rule, hiding evidence that he thought was unfavorable to the people’s case. What this evidence showed was that Caroline Maxwell had had sexual intercourse with another man on the day of her murder. She had another man’s semen in her body, type A blood rather than type O like her husband’s.

  “Gary Coles didn’t like that fact, and when he got the report he threw it in the trash, sat down at the office typewriter, and made another one. Thus, that evidence never saw the light of day. The medical examiner, when he testified, inexplicably failed to notice that a change had been made.

  “In short, Gary Coles cheated. And this evidence was never turned over to the defense. Over the years, the samples were destroyed as a matter of routine practice. The defense never had a chance to test them. Gary Coles is dead, and so he can’t explain why he did what he did. In the end his intentions, good or bad, are irrelevant. What matters is that it happened. As a result of Gary Coles’s long-ago misconduct, Lawrence Maxwell’s conviction has been overturned. He deserves a new trial and that’s why we’re here. But Caroline Maxwell deserves justice, too.

  “Don’t get me wrong. Mr. Maxwell killed Caroline Maxwell viciously and in cold blood. I’m telling you now to look hard at all the evidence, the good and the bad. And at the end of the state’s case, I’m going to ask you to give Caroline the justice she deserves and convict Mr. Maxwell of the crime of first-degree murder. Twenty-one years is a long time, but it’s not too late to do the right thing. The only way to fix the injustice that was committed is by convicting Mr. Maxwell based on all of the evidence. Not just the evidence that one side or the other wants you to hear.” This last comment said with a warning nod toward the defense table.