One of the suits began to object, but Underwood cut him off with a glare and a raised hand. “He will testify in chambers and outside the presence of the jury. His testimony will be solicited by one of you gentlemen, and Mr. Cerrabone and Mr. Sloane, you will be free to ask whatever questions you desire. The testimony will thereafter be sealed and not made a part of the official court record, but it will be available to any appellate tribunal should that become necessary to substantiate my ruling, which is as follows: there is to be no mention of these second and third sets of shoe prints. That being the case, I don’t see how I can allow introduction of the presence of Mr. Cruz’s fingerprint on the sliding-glass door. Based upon what I have heard this morning, and the testimony I anticipate to follow, neither the footprints not the fingerprint relate to the issue that is germane to this case—namely the guilt or innocence of Ms. Reid. Were I to allow the introduction of this evidence, the jury would certainly expect the state to explain it, and would perceive the state’s inability to do so as a tacit admission of its relevance and substance. Accordingly, I find that the prejudicial impact of the evidence and the further potential that it might reasonably be expected to cause juror confusion outweighs its probative value. Mr. Cerrabone, Mr. Sloane, you are to advise your witnesses that there is to be no mention of that evidence. And it is to be stricken from any documents to be admitted and shown to the jury.”
Underwood turned to Sloane. “Mr. Sloane, I am not unmindful that you must feel as if you just had the rug pulled out from beneath you. You have lost a significant piece of potentially exculpating evidence. At the same time, we now know it is not exculpating evidence, and to argue that it is, knowing that it is not, would violate your duty as an officer of the court not to mislead this tribunal. While this may require that you reshape your arguments, it does not prevent you from representing your client to the fullest extent of the law. I am also not unmindful that your client declined to waive her right to a speedy trial, and therefore, we are here in part because of that declination. Had she done so, this evidence might well have come to light before we impaneled a jury. But we are where we are, and my intent is to move forward. You would be well within your right to seek a continuance, if for no other reason than to preserve your client’s rights on appeal.”
In judge-speak, Underwood was advising Sloane that he could bring the motion to continue the trial, but the judge was not about to grant it. Still, Sloane would file the motion to preserve the record. Mindful of the judge’s attitude toward attorneys whom he perceived to be unprepared, however, Sloane took a different tack in chambers.
“Your Honor, this is an unfortunate development, but it does not change the fact that my client is innocent of the charges being brought by the state. We have maintained and continue to maintain that the jury will find not only a reasonable doubt but a significant one. That being said, I do wish to confer with my client before advising the court of my intentions.”
Sloane had put up the brave front, but inside, he knew he had suffered a tremendous blow. On the eve of his biggest trial, with the most to lose, he had lost his best chance to create a reasonable doubt.
LAW OFFICES OF DAVID SLOANE
ONE UNION SQUARE
SEATTLE, WASHINGTON
That afternoon, Sloane assembled the troops in the war room to discuss the outcome of the morning hearing and testimony. Neither Reid nor Pendergrass had been allowed into the hearing, the suits from the Justice Department wanting to limit the number of people privy to the information. Jenkins and Alex joined them at the table. Carolyn stood near the door, a spot she favored, arms crossed like a sentry.
Sloane did his best to keep from acting like the ship was sinking. It was taking on water, for certain; he couldn’t hide that fact, but the job now was not to panic and jump overboard. He had no alternative explanation for who else had both the motivation and opportunity to kill Vasiliev, or who could have had access to Reid’s home, left size-seven prints on the lawn, and fit the description of the person Joshua Blume claimed to have seen. It left him little choice but to go back to playing defense, attacking the state’s witnesses one by one and trying to create reasonable doubt at every opportunity on cross-examination. That wasn’t his first choice, but it was what it was.
“I agree with David,” Reid said, remaining philosophical. “I see little value in seeking a continuance. We go forward.”
“We’re going to have to shift focus.” Pendergrass, clearly the most forlorn, flipped through a stack of pleadings on the table. “I mean, many of our arguments are premised on the other sets of footprints and the fingerprint—our cross-examinations . . . experts . . . I don’t know what we have left to argue.”
“I take it neither Cruz nor Willins actually saw the killer?” Jenkins asked.
It had been the first question Sloane had asked. “No. Willins said he heard something like a splash, but with the storm, he couldn’t be certain.”
“Which fits the state’s theory that the killer swam to and from the property,” Pendergrass said.
“Doesn’t matter. What Willins heard isn’t coming in,” Sloane said. “How much progress have we made on the documents?”
Pendergrass put down the pleadings, changing focus. “Not much. I went through another couple hundred this morning, but with all of this, I haven’t made a dent. I guess the good news is that I have the rest of the day and all night to continue.”
Sloane shook his head. “I need you to go through our motions and briefs and determine what we can salvage.”
“I’ll continue,” Barclay said. “I can go through them.”
“All right, then. Let’s try to put this time to good use.” That was as much of a pep talk as Sloane had in him. He went into his office, shutting the door. A few seconds after he did, it opened. He didn’t need to turn to know who had entered.
“You okay?” she asked.
He forced a smile. “Shouldn’t I be asking you that question?”
She shrugged. “What’s done is done.”
Sloane knew the stoicism was for his benefit. He also knew Barclay understood, perhaps better than anyone, the seriousness of the blow they had suffered.
Alex had the divorce file open on her desk, paging through it, when Jenkins entered.
“What do you know?” he asked.
“I know that I’m tired and my husband is an insensitive boob.”
“Yes, but we both already knew that.” He smiled. “Sorry. How are you holding up?”
“Too late.” She handed him a slip of paper. “You have a meeting at three-thirty.”
“Did you speak to Rowe?”
“They work in the same building. Same floor. He said he’d be there.”
THE JUSTICE CENTER
SEATTLE, WASHINGTON
Rowe met Jenkins in the lobby of the Justice Center, and they rode the elevator to the seventh floor.
“Tell me again why I’m doing this?” Rowe asked.
“You’re humoring me.”
“I’m a bit out of humor after last night. I’m tired.”
“Have you been talking to my wife?” That got a smile. “You see, you do have some humor left.”
On the seventh floor, they entered an interior office where a dark-haired man sat talking on the phone. “I got to go. They’re here,” he said.
Rowe made the introductions. “This is Bernie Hamilton. He runs our cold-cases unit. This is Charles Jenkins. He works for Sloane.”
Hamilton grinned. “Knock knock.”
Jenkins looked at Rowe.
“We’re in a bit of a hurry, Bernie, anything?”
Hamilton flipped open a file. “Zach Bergman. Killed January twelfth, 2001.”
“How did he die?” Rowe asked.
“Shot in the head,” Hamilton said.
Rowe glanced at Jenkins, then back to Hamilton. “Do we know the caliber bullet?”
“A thirty-eight.”
“Suicide ruled out?”
“Given that the
y never found the gun, and the location of the bullet was the back of his head, yeah, suicide was ruled out.”
“Any suspects?”
“One, but nothing ever came of it. This case is as cold as the queen of England in bed.”
Rowe turned to Jenkins. “Okay, Mr. Jenkins, you’ve piqued my curiosity. So tell me who this guy is—or was.”
“He was a private investigator on a very acrimonious divorce.”
“And do I know either of the unhappy couple?”
“Both. He worked for Barclay Reid.”
Rowe turned his attention back to Hamilton. “Who was the suspect?”
“Some guy named Oberman. A doctor.”
TWENTY - TWO
THURSDAY, DECEMBER 1, 2011
KING COUNTY COURTHOUSE
SEATTLE, WASHINGTON
The media returned with a vengeance, having assembled the previous morning only to be turned away. Rumors had begun to circulate, as they do when something unusual is left unexplained. Sloane had heard everything from he and Cerrabone were discussing a plea deal, to Barclay was pregnant.
So it was no surprise that an even bigger crowd assembled on the sidewalk outside the front entrance to the Administration Building on Fourth Avenue. Sloane had known that Yamaguchi’s trick, like any trick, would work only so many times before the media figured it out, and they had. They didn’t recognize the car, but as soon as Jenkins eased to the curb, they figured it out quickly enough and converged.
“You okay?” Sloane asked Barclay.
She nodded, wearing her game face, and Sloane pushed open the door.
The cameras clicked and flashed from the moment they exited. Sloane and Pendergrass—who looked a bit shell-shocked—flanked Reid like two bodyguards as they worked through the group to the front entrance, ignoring the shouted questions.
Two sheriffs designated by Court Operations waited at the glass doors to assist them in entering the building, being processed, and running the media gauntlet that filled the underground tunnel leading to the courthouse. Men with handheld cameras perched on their shoulders and reporters with notepads followed them in lockstep. The swarm increased on the eighth floor and followed until they stepped through the double doors into the sanctity of the courtroom. Men and women sat shoulder to shoulder while two King County sheriffs directed those still seeking admittance to the room next door. To accommodate the media and public interest, Court Operations had opened the courtroom immediately adjacent to 854E and set up a television to receive a live feed of the proceedings.
Seated at the counsel table, Sloane did not feel the sense of comfort that usually came with the familiar surroundings. As the number of cases he tried mounted, he had come to find the structure of a trial relaxing. He developed a rhythm, and he knew for that day he had just one case to concentrate on, one witness at a time. But this morning he felt like a man who had asked a woman to marry him, and now, standing at the altar, the guests assembled behind them and the minister about to appear at any minute, he was having serious second thoughts.
Perhaps sensing his unease, Barclay leaned to her left to shorten the distance. “I like the watch, counselor.”
He turned his wrist to admire it and returned her whisper. “So do I.”
She squeezed his hand, then allowed hers to retreat back beneath the table.
Cerrabone and Rowe had draped their suit jackets over the backs of their chairs. At the moment they were wheeling a large flat-screen television on a stand so that it would be visible to the members of the jury. Satisfied, Cerrabone continued to walk about the room like a stagehand arranging his props for the show’s performance—brown paper bags sealed with blue painter’s tape containing the evidence to be introduced and an easel for the series of blowups he would use. In the corner of the room, the sliding-glass door—replete with the single concave hole and the spiderweb of cracks—stood upright on a dolly. The blood on the interior of the glass had dried to a rust color.
At nine A.M. sharp, Underwood’s bailiff, the attractive, dark-skinned woman of Indian descent, stepped into the courtroom with Judge Reuben Underwood hot on her heels. He ascended to the bench before she had finished her instruction for all those present to rise.
“The People of the State of Washington versus Barclay Alison Reid. Judge Reuben Underwood presiding.”
“Are there any preliminary matters before we bring in the jury?” Underwood’s tone clearly intended to convey “And God help the attorney who says there are.” There being none, he instructed his bailiff to bring in the jury.
Trials unfold much like theater productions, with the spectators getting to see both the actors onstage with the curtain up, as well as what transpires backstage, when the jurors leave for the jury room. The eight men and six women had an inkling of the nature of the case from the questions Sloane and Cerrabone had asked during the voir dire selection. As they took their seats, picking up the spiral notepads they would use throughout the trial, several looked over at Barclay.
Underwood’s face had transformed, and he sat looking like a proud father—or in the case of some youthful jurors, a grandfather—smiling down at his children. When he spoke, it was in a benevolent tone, and he wasted little time before thanking the jurors for their service. He then provided them with the basic allegations of the case they were about to hear. Finished with the stipulated statement to the jury, Underwood turned to Cerrabone. “Mr. Cerrabone, you may give your opening statement.”
Cerrabone approached the jury box holding a yellow notepad. He maintained the appearance of the everyman in an off-the-rack brown suit a little too wide in the shoulders, a little too long in the cuffs, and bunched at his loafers. He put his pad on the railing beneath the bench, and it promptly slid over into the well and onto the clerk’s desk, bringing nervous laughter from the jury and those seated behind them in the gallery. “Butterfingers,” Cerrabone said.
Sloane wondered if the act had been purposeful.
Recovering with a shrug, Cerrabone gave a slight bow to Underwood, to Sloane, and finally, to the jury. “May it please the court, respected counsel, ladies and gentlemen of the jury, I am Rick Cerrabone, and I represent the people of the state of Washington.” He paused as if to gather his thoughts. Someone coughed. “A moment ago Judge Underwood read to you a stipulated statement of the allegations the state has brought here today against the defendant, Barclay Reid.” Cerrabone pointed and looked at Reid, as all good prosecutors were trained to do, the belief being that if the prosecutor couldn’t be certain, then neither could the jurors. “The statement read to you did not contain any facts, because there are no facts before you. That’s my job, to present to you the facts of this case through the evidence that I will solicit from persons seated in that chair—police officers, detectives, the medical examiner, and forensic specialists, which is a fancy term for people with expertise in certain fields such as bullets and guns.”
A few jurors smiled. Cerrabone seemed to find his stride after the initial jitters. “You will find the facts to be uncomplicated, and when I am finished, I believe you will have no doubt of the charge brought here today, that Barclay Reid”—this time he moved to within inches of the front of their table—“with premeditation and forethought, shot and killed Filyp Vasiliev.”
Cerrabone paused again. This time Sloane knew it was for effect.
“This is a tragedy, ladies and gentlemen,” he said, which was argument and not fact, but Sloane was loath to object during another attorney’s opening or closing statement. A jury could perceive an objection as Sloane trying to keep information away from them. Besides, he thought it was a good line and he could now use it himself.
“The evidence introduced will be that just over a year ago, Ms. Reid’s daughter died from an accidental overdose of heroin. That is the conclusion of the county medical examiner. The medical examiner will testify that an autopsy of Carly Oberman revealed that she had ingested a lethal combination of heroin and crushed amphetamines, a concoction kno
wn on the street as ‘cheese.’ Now, there is no such thing as good heroin, but the heroin that Carly Oberman ingested was more pure than normal. It stopped her heart, and she died.”
From his peripheral vision, Sloane noticed Reid drop her head, the first time she had done so since entering the courtroom.
“Any time a young person dies, it is a tragedy. The police arrested the man who supplied Carly Oberman those drugs, and he is incarcerated here in the King County jail, awaiting trial for his crimes. Witnesses will testify, however, that following her daughter’s death, Ms. Reid became a crusader against drug dealers, and as part of that crusade, she pushed the United States attorney’s office and federal agents with the Drug Enforcement Administration—”
This time Sloane stood. “Objection. Your Honor, I apologize for the interruption, but I object to the prosecutor’s use of the word ‘pushed’ to describe a nearly yearlong investigation by the U.S. attorney’s office against Mr. Vasiliev after which the U.S. attorney, not Ms. Reid, filed charges.”
“Sustained. Pick a different word, Mr. Cerrabone.”
Cerrabone acted nonplussed. “Ms. Reid was intimately involved in the U.S. attorney’s investigation to bring charges against Mr. Vasiliev for drug trafficking, including trafficking in heroin. Witnesses will testify that Ms. Reid told them she held Mr. Vasiliev responsible for the chain of distribution that supplied the drugs that killed her daughter. Now, as I mentioned, the U.S. attorney’s office brought charges against Mr. Vasiliev. However, a federal district court judge decided that certain evidence obtained in that investigation could not be admitted in court. The evidence will show that as a result of that ruling, Mr. Vasiliev, while charged with drug trafficking, was never convicted. What does this have to do with the case I will present to you? Let me explain.
“After Mr. Vasiliev walked out of that federal courtroom Barclay Reid would go before the television cameras and proclaim her fight was not over, that she would continue to pursue those who supply drugs that kill. You will hear her say on that tape, ‘I will avenge my daughter’s death.’”
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