Judgment Calls

by Alafair Burke

  “I have no interest in a continuance, your honor. Mr. Derringer is eager to go home.”

  “Very well then, Ms. Lopez. No mention of Jamie Zimmerman, Margaret Landry, or Jesse Taylor again until I’ve ruled on these issues. Now we’re taking a twenty-minute recess so we can collect our thoughts.”

  * * *

  Forcing Lopez to work her way through the boring stuff first helped me in a couple of different ways. Obviously, the detectives and I could use some time poring over the police reports for the Zimmerman murder to get up to speed, and I could prepare a motion to exclude evidence about the case. But even if the evidence wound up coming in, Lesh had provided a more subtle kind of assistance. In the time it would take Lisa to get through these other witnesses, the jury might forget the drama of her opening statement, and the defense might lose its momentum. Along the same lines, it would be hard for Dan Manning to write a great story when he had no trial testimony to back up the opening statement yet.

  For those reasons, I decided I wouldn’t object to testimony relating to Andrea Martin’s arrest for criminal trespass at the Lloyd Center Mall, although it was blatantly inadmissible. It was better to let Lisa present that kind of innocuous evidence and hope the impact of her opening statement wore off before the sexy stuff started. Plus, I might have a better chance of getting Lesh to exclude the damaging evidence if I didn’t throw a fit over this chippy stuff.

  A twenty-minute recess wasn’t much, but at least I could update my investigators so they could start working on it while I was in trial.

  I almost knocked Dan Manning on his ass as I was rushing out of the courtroom. He looked like a high school kid who just won a swimming pool full of beer and a squadron of cheerleaders to share it with. I could see his willingness to be sucked into Lopez’s defense. It was, after all, a great story. But I didn’t have time to set him straight and I suspected it wouldn’t work anyway. So instead I almost knocked him on his ass.

  To save valuable time, I pulled out my cell phone rather than fight the courthouse elevators to get back to my office.

  My first call was to Alice Gernstein, the paralegal in our major crimes unit. I gave her a quick rundown of what was going on and asked her to pull the files from the Landry trial from archives and put them on my chair and to order the trial transcripts. As it turned out, she had already pulled the stuff for O’Donnell. He had prosecuted Landry and Taylor and was now part of the investigation into the new letter to the Oregonian. Alice said she’d make copies for me. I also asked her to tell O’Donnell that I was going to need to talk to him soon, since he’d handled the Zimmerman case.

  Next, I called MCT. I was lucky. Chuck was out interviewing a witness, but Ray and Jack were both in. They put me on speaker and I told them what Lisa had unloaded in her opening.

  It was a great opportunity for catty chat about my nemesis, but I told them I had to make it quick. They had already refreshed themselves on the Zimmerman case, since they were working on the investigation into the anonymous letter. I warned them that Lisa might call them back to the stand to testify about the case.

  “Do you have anything yet on the letter?” I asked.

  They were silent. I could picture them looking at each other over the speakerphone, wondering how to tell me that I was outside the official circle of knowledge. Walker handled it. “This thing’s really hot, Sam. O’Donnell and the lieutenant are going nuts over it, this being the first execution and all. If anything leaks—”

  “Hey, forget it. I only asked because it would obviously be a lot easier to defuse this Lopez stunt if we could show that the letter was a hoax. If you don’t want to tell me—”

  I heard the line get picked up off the speaker. Walker spoke quietly into the handset. “Look, don’t count on getting anything on the letter. No prints. No DNA on the envelope or stamp. Typewritten on plain paper and dropped in a mailbox by the side of a road.” Great. No help for me, and no help to Chuck. “And Sam,” he said. “No one knows, not even Chuck. I just didn’t want you getting your hopes up.”

  I hung up feeling let down. It would be easiest if I could tie up any loose ends that Lopez pulled free about the Zimmerman case, but apparently I couldn’t count on that. I would need to convince the jury that Derringer was guilty, even if they developed doubts about the guilt of Landry and Taylor.

  * * *

  When court resumed, Lisa called her first witness, the star with the alibi—convicted felon Derrick Derringer.

  His testimony was predictable. Lopez did her best to make him sound respectable. He owned a home in southeast Portland and worked night shifts at one of those quickie oil-change places. As expected, he swore under oath that his loser brother had been at his house on the night Kendra was attacked. According to Derrick, his brother Frank—a few months on parole and ready to set off on a new law-abiding lifestyle—had walked the mile and a half to his house to hang out. They wound up watching a Saturday Night Live repeat. He remembered that John Goodman was the host because he did a brutally accurate impersonation of the woman who had sold out the former president’s mistress to the independent counsel. I wasn’t impressed. Last time I checked, John Goodman hosted that show a couple times a month. And it still wasn’t funny.

  Fortunately, I was ready with a tough cross for Derringer’s brother, and Lisa did little on direct exam to blunt the effect in advance.

  With permission from Judge Lesh, I rose and approached Derrick Derringer for questioning. The fact that the witness was the defendant’s brother was enough to give him a motive to lie, but fortunately that line of questioning was only the beginning of my 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, 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 vic 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.”