The Indictments

by William Eleazer

  No doubt on that, thought Scott. He had seen her at her best.

  “Who did you find to replace you as her clinic supervisor?” asked Scott.

  “Oh, I decided to continue the supervision myself. Now that I’m settled in, I think I’ll have time. She can help with my grand jury responsibilities. Can use her for admin purposes and to coordinate witnesses. Will be a good experience for her.”

  “No trial work?”

  “Probably not, but I may be able to find a case for her before the semester’s over. I’ve explained the situation to her, and she’s satisfied.”

  There was what Scott felt to be an awkward silence until he spoke. “Detective John Majewski is handling the investigation of the shooting at Toussaint’s. Do you know him?”

  “Yes, he appears often before the grand jury. Excellent witness. You’ll enjoy working this case with him.”

  “My case? There are no charges yet, and there may not be any. We don’t even have a suspect.”

  Moose frowned. “Of course you do.”

  Scott was surprised. “Who?”

  “Donaway.”

  “Donaway? For what?”

  “NFA violation, for one. He hadn’t registered that silencer—if he had, he would have said so. That’s a Title II weapon. He would have had his papers right there with the silencer. Even a fool knows that. They’ll find he hasn’t filed with ATF, and you’ll assist Majewski in writing up all the charges.”

  “Charges? Plural? I understand there may be a state statute violation for possession of the silencer, but Majewski says there are no charges related to the pistol.”

  “If we look hard enough we can find a pistol offense. But that’s not necessary—we have more than that. We’ll start with Georgia Statute, Section 16-11-123, possession of the silencer. That will get him five years. Then move on to Georgia Statute, Section 16-5-1. That’s the big one.”

  “16-5-1? What’s that?”

  “You’re no longer working in state court, Scott. These are felonies. Start thinking like a felony prosecutor. Why don’t you go take a look at the statutes involved and come back and discuss it. Are you in court this morning?”

  “No, not today.”

  “Then stop back by about ten. You’ve already done some legwork on this, and I’m going to assign it to you to see it through.”

  Scott took out a pen and wrote down the statute numbers that Moose had quoted. But he resented Moose’s critical and patronizing comment: “Start thinking like a felony prosecutor.” What the hell did Moose Mosley know about being a felony prosecutor? Still, Scott was pleased that Moose apparently thought enough of his capabilities to assign him this high profile case.

  Scott went back to his office and pulled up both Georgia statutes Moose cited. Yes, Section 16-11-123 outlawed the possession of an unregistered silencer. Scott wondered just what enabled Moose to cite statute and verse so quickly and with such ease. Damn it, I have to give him credit. He really is a smart guy.

  Then Scott pulled up Georgia Statute, Section 16-5-1. He read it and thought: Moose had surely made a mistake citing this one. Smart, but not infallible.

  ****

  At 10:00 a.m., Scott was back at Moose’s office.

  “I pulled up the statutes you mentioned.”

  “Have a seat. Do you have copies?”

  “I do,” Scott said, as he sat down opposite Moose.

  “Read ’em—I want to make sure I recall them correctly.”

  Scott looked down and began to read. “Section 16-11-123. A person commits the offense of unlawful possession of firearms or weapons when he or she knowingly has in his or her possession any sawed-off shotgun, sawed-off rifle, machine gun, dangerous weapon, or silencer, and, upon conviction thereof, he or she shall be punished by imprisonment for a period of five years.”

  “Do you also have 16-5-1?”

  “Yes, but it’s not applicable.”

  “Read it.”

  Scott refrained from rolling his eyes, as much as he wanted to.

  “O.K. Subparagraph (a). A person commits—”

  Moose interrupted. “No, just subparagraph (c).”

  “OK. Subparagraph (c). A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.”

  When he was finished, he looked at Moose, waiting for a response.

  Moose was stretched out in his high-back chair, gazing at the pictures that Jessica had hung on his walls. He remained silent for a long moment. Then he said, “So that’s your second charge. Right?”

  This was another surprise for Scott. He waited a few seconds, thinking, before responding.

  “Murder?”

  “Felony murder.”

  “But Donaway did not fire his pistol. In fact, Majewski said it wasn’t even loaded.”

  “What part of that definition don’t you understand? The felony part?”

  “No, I understand the felony part—and felony murder. But you can’t jump from possessing a silencer to felony murder. His possession of the silencer did not cause a death. We don’t know who caused that death.”

  “Oh, but we do. Had Donaway not gone for his pistol, the robber would have disappeared with just a little cash, and that young woman would still be alive. His action was the cause of death, and he was committing a felony by possessing the silencer. Now tell me again what part of felony murder you don’t understand?”

  “The Georgia legislature could not have intended that these facts constitute felony murder.”

  “You’re not claiming you were in the legislature when that legislation was passed, are you?”

  The sarcasm was both offensive and exasperating, but Scott saw no purpose in pursuing the issue. He could not tell if Moose was serious or just toying with him. He would just change the subject. If Moose was serious, Scott was sure he would drop it when he had time to reflect on it.

  “Majewski says he doesn’t know when they will complete the shooting investigation. Could be weeks or months. But he should have a confirmation soon on the possible NFA violation. You say you are going to assign this case to me ‘to see it through.’ I haven’t been involved in felony intake. I don’t know all the various steps in processing a report from Metro Police. You’ll let me know when the report comes in—and then you want me to draft the indictment and present it to the grand jury? Is that what you have in mind?”

  “Not exactly. But I’ll let you know when we get Majewski’s investigation report, and we’ll go from there. I’ll be assigning one of our investigators—probably Richard Evans—to work the investigation from our end.”

  Scott had worked with Evans on both of Harrison’s trials. At least that was good news.

  “OK. I’ll wait to hear from you on this.” Scott got up and walked toward the door. He paused at the table with the vase of white roses and looked down at the card attached.

  “Be Good” was printed on the card, apparently by the florist. He had seen a similar card with a similar greeting three weeks before in Jessica’s apartment—except something additional had been added here. It was handwritten in blue ink: “But not too good!” This was followed by a lipstick imprint—a kiss—in a bright raspberry color.

  CHAPTER TWENTY-FOUR

  October 3, 2007

  Scott poured his first cup of coffee shortly after 7:00 a.m. and opened the morning paper to the sports page. The sports section this morning, like all recent mornings, gave him little pleasure. The Braves did not make the playoffs—for the second year in a row. They had started September with a bang, winning 14 of 20 games to pull within only three of a wild card. But they couldn’t keep up the pace, dropping four of their last five games. The last game of the season was Sunday, which they lost 3-0. Scott’s sports reading now would be mostly about college football, and that wasn’t going well either. Alabama had already lost two in a row, first to Georgia and then to FSU. But they had a new head coach, Nick Saban, and maybe he could turn it
around.

  He made a quick read of the sports section and then skimmed through the rest of the paper to see if anything new was reported on the Toussaint’s investigation. The paper had covered it, seemingly in depth, for the past three days, yet had revealed nothing new. Again today there was an article and again, nothing new.

  Scott refilled his cup as the phone rang.

  “Hello, Scott.”

  Scott recognized the voice on the other end.

  “Hello, Bill.”

  Scott had not spoken with Bill Baldwin since the meeting at Churchill’s, so he wasn’t surprised that Bill was checking in. Unfortunately, he had nothing new to tell him about the perjury investigation. In fact, Carl DeBickero had briefed Scott by phone the previous Friday. So far, they had not been able to put any agent on it full time, and nothing significant had turned up on their interagency network.

  “What’s new?” asked Bill.

  “Nothing. No breaks. I told you that you would be the first to know. And to answer your second question, no, I wasn’t invited to Max Gordon’s victory celebration.”

  “Not calling about that case, Scott. The shooting over at Toussaint’s. You were the DA at the scene. What’s the progress? Can’t get much out of the investigators.”

  “And you’ll get less out of me. I don’t know anything new. And how did you know that I was the DA at the scene?”

  “Simple. I’m paid to know those things. But that’s about all I know—that’s why I called you. What about leads? We can talk off the record.”

  “Nothing to talk about, Bill. The investigation is where it should be, with the Metro Police. We don’t get involved until they have a suspect. I don’t know if they have one, and if I did, I couldn’t tell you, old buddy. You are going to have to go to their spokesperson. Have you tried that?”

  “Of course. But they won’t talk about suspects or leads or breaks, and that’s what our readers want to know. This is a major crime, Scott. Got a lot of restaurant and shop owners uptight. At least tell me what you know about the cashier’s condition. They did release her name, Mildred Thompson, forty-five years old, from Thunderbolt.”

  “I don’t know her condition, really I don’t. Last I heard she was in critical condition.”

  “I heard she is now blind. The shot to her head apparently damaged the optic tract.”

  “Oh, man, I hope that’s not true.”

  “I’m afraid it is. Got that from someone at the hospital who should know. But I was also told that she was likely to survive.”

  “I hope you’re correct on that, Bill. And Bill, I also hope you understand that what I know about an ongoing investigation—that’s if I know anything—I really can’t tell you or anyone else. When the investigation is closed, I’ll be pleased to discuss it with you.”

  “I was hoping we could talk off the record. But, sure, I understand, Scott. And I hope you understand that my job is to get what information I have into the paper for the public. I can’t print rumors; I need confirmation from reliable sources—such as my friend in the DA’s office. I keep my sources confidential.”

  Bill paused, then added, “How’s your boss, Moose, adjusting to his new duties?”

  That was not something Scott wanted to discuss either. “Seems to be doing fine. Stay’s busy like all of us.”

  “I saw him last night in the little gym at our apartment complex. First time I’ve seen him in there. He was working out pretty hard—lots of sweat on a flabby body. Far cry from how he looked in those football days. But he had trimmed his hair and trimmed that old walrus moustache. He was watching TV while running on the treadmill. I even heard him laugh a couple of times—haven’t heard Moose really laugh since he moved to Savannah. I teased him, with something like ‘found a new love life, Moose?’ and he just smiled. I guess he’s really enjoying his new job.”

  “I guess so,” said Scott, feeling even more reluctant to discuss his new boss—or exactly what could be improving his mood. “Gotta run, Bill. Talk to you later.”

  His thoughts then turned immediately to Mildred Thompson, and Mr. and Mrs. Voss and their terrible loss—their only living child, so soon after losing their son. What a total tragedy, what a horrible crime. Then Scott recalled his conversation with Moose: I’m going to assign it to you to see it through. He would contact Detective Majewski for an update today.

  ****

  It was 3:00 p.m. when Scott walked into Majewski’s office.

  “The short answer, Scott, is that we’ve made very little progress. Forensics came up with very little from the scene, except for the shell casings. Nine millimeter. Sometimes finger prints are found on shell casings, but in the initial exam, these were clean. One of the team members was present at the autopsy of the girl and collected the bullet that was still lodged in her chest. They also got the bullet the surgeons took from the back of the other victim’s head. They were both round nose cartridges.”

  “Is that unusual, for neither bullet to exit—to remain in the body?”

  “Not really. Donaway told us the robber was holding a Glock 26. He’s an NRA type, fairly experienced with weapons, so that’s likely what it was. It’s called a ‘baby Glock’—only three and a half inch barrel—the muzzle velocity is relatively low. The 125 grain round nose cartridge wouldn’t likely exit through a complete chest cavity—or both sides of a skull. So I’m not surprised they found the bullets intact in the chest cavity and skull area. What surprises me is that it was a round nose. Most of the bad guys nowadays with a 9mm semi-automatic use an expanding cartridge that does a lot more internal damage—and is even more unlikely to penetrate both sides of a body.”

  “How many shots did he get off?”

  “We’re pretty sure there were three. That’s how many shell casings were found. Talked to a lot of folks who worked there. Most gave a number from two to four. One of the waiters said six or eight shots, but he was obviously wrong. Got to remember there was a lot of excitement and confusion. There was one hole in the ceiling of the alcove that looked like a bullet hole, but the forensic team didn’t find a bullet. We’re sure there were only three rounds fired—which makes it so unusual that two people got hit. It’s not an accurate weapon, just a convenient one. You would think he would be aiming at Donaway, who was trying to pull his pistol on him. Apparently he was just firing randomly when he hit the girl and the lady.”

  “You said you’ve made very little progress. How little is ‘little’?”

  “When we don’t have a single suspect—and we don’t—I have to say we may be stretching it to even say little. Usually in a high profile case like this one, with a $10,000 reward offered, we get dozens, sometimes hundreds, of tips—some off the wall of course, but a few good ones. So far in this one, we have very few tips, and none of any apparent use. No ‘auto leaving the scene’ tips, no ‘new money’ tips, no tips from disgruntled friends or jilted girlfriends. Nothing of value. Really exceptional case. But we have some of our best guys working it, so I’m confident we’ll eventually get a break.”

  “I heard this morning that the lady’s injuries have left her blind. Do you know? Is that true?”

  “I’m afraid so. Of course, we haven’t spoken to her—the doctors say she’s not ready. But, yes, a physician at the hospital told me she was blinded by the injury.”

  “Saturday night you told me she was shot in the back of the head.”

  “She was. And that’s why she’s blind. I’ve gotten a quick anatomy lesson on this case. Among many other things I don’t know much about, is the human brain. Found out the part of the brain responsible for processing visual information is the visual cortex, and it’s located in the back part of the brain. That’s where they found that bullet, and the damage was done. No chance, her doctor told me, that she will ever see again. But the good news—if there can be good news in this situation—is that they believe she will survive. And maybe she can eventually give us some identification info when we can speak with her. But I’m told that
may be a week or more.”

  “What a bummer. Go to work at five, just doing your job for measly pay—and end up in a hospital bed, blind for life.” Scott paused, shaking his head slowly. “What about the silencer charge against Donaway?”

  “Haven’t finished the records check yet, but like I said before, if he had registered it, he would have had his registration with him—or by now, delivered us a copy. He knows he’s in big trouble. He’s lawyered up now, so we can’t contact him. We’ll be recommending charges as soon as we confirm the NFA violation.”

  “Who’s his lawyer?” Scott asked.

  “Charles Samarkos. Like I said, he knows he’s in big trouble.”

  “John, does failure to register a silencer by an otherwise law abiding citizen, who’s using the silencer only to protect his hearing while target shooting, sound like a five-year sentence?”

  “That’s the max,” Majewski replied. “But it’s not for me to decide—that’s why we have judges. I just decide if charges should be filed.”

  “How much discretion do you use?”

  “Discretion? I just decide if the facts fit the criminal statute. If they do, we make the charge and provide the DA the evidence.”

  “You used your discretion in not charging David Voss with the assault on the paramedic—right?”

  “Wrong. I consulted with the duty DA. Remember who that was? It was a joint decision. Like I said, we investigate, determine if the facts support the charge, and if so, off it goes to the DA.”

  “That charge is a felony, right?”

  “Right,” Majewski replied.

  “And while he was committing that felony, he reached into his case for his target pistol, causing the robber to shoot those random shots, right?”

  “I suppose you could say that,” Majewski responded.

  “Killing the young girl?”

  “Yes.”

  “So if the statute reads, ‘A person commits murder if while committing a felony he causes the death of another,’ Donaway’s facing a felony murder charge?”