Judgment Calls

by Alafair Burke

  “Nada. The polygraph only covered the ultimate issue of factual innocence. The examiner was worried about adding too many questions.”

  The greater the number of material questions you put in a poly, the higher the risk of either false signs of deception or inconclusive results. So much for using modern technology to find out if the man I’d been sleeping with was lying his ass off.

  “Oh, and the FBI finished its profile. Pretty much what we expected,” he said.

  “Any theory as to why the guy wrote the letters now, after all these years?” I asked.

  “Probably because of the media attention. He might not have come out on the Taylor stories alone, or maybe he would’ve waited until after the execution. But the theory is that the combo of the Taylor and Derringer stories was too much for this guy to resist. The profiler compared it to the Unabomber sending out his manifesto after Tim McVeigh stole his thunder.”

  “So how come we haven’t heard anything from him since?” I asked.

  “FBI says that’s the kicker,” he said. “Usually, a communication like that is followed up with a body or at least more taunts. It’s possible there’s another one out there, and he’s waiting to see if we’ll find it on our own. Another possibility, of course, is that this guy’s got his own way of operating. Wait and see, I guess. Anything else on your end?” he asked.

  Oops. Now I was going to have to be a hypocrite on that whole lying thing. “Nope,” I said, mentally crossing my fingers. “The victim understands what’s going on. The family won’t be making any statements to the media. They just want to be kept in the loop.” The truth was that Kendra and her mom were so grateful for Kendra’s continued anonymity that they’d never contemplate making a statement to the media. But seeing as how I was already lying to Tim’s face, there was no real harm in letting him think the Martins might embarrass him publicly if he dropped the ball.

  I might not play well with others, but I was getting pretty good at faking it.

  * * *

  My pager finally buzzed as I was taking a plea in Judge Weidemann’s courtroom.

  “A problem, Ms. Kincaid?” Weidemann inquired, peering down over his half-moon glasses. I was surprised that he was paying enough attention to the proceedings to notice that I’d glimpsed down at the device clipped to my waistband.

  “No, sir,” I responded. “Just waiting for a grand jury decision, your honor.”

  “Not too much suspense to be found there. Who’s today’s ham sandwich?” he responded. The defendant and his attorney, Frankie LoTempio, got a laugh out of that one. A running joke among criminal defense lawyers is that grand jury proceedings are so one-sided that grand jurors would indict a ham sandwich if asked to by the prosecutor. The way I saw it, if prosecutors were doing their jobs and only asking for indictments that were warranted, grand jurors should be indicting all the cases given to them. I doubted that Weidemann and LoTempio wanted to hear my view, though.

  “Well, seeing as how they’re the grand jurors and I’m a judge, let’s finish up here before you head on up to them, if that’s acceptable to you, Ms. Kincaid?” Weidemann asked.

  “Of course, your honor,” I said, reminding myself once again that displays of ingratiating deference come with the territory when you’re a trial lawyer. The rest of the sentencing was predictable, given Weidemann’s Solomon-like approach. I recommended an upward departure from the sentencing guidelines, mentioning a few facts I’d noted in the file that were mildly aggravating—some packaging materials, a tattoo hinting at a gang affiliation, the defendant’s choice words for the arresting officer. Then LoTempio cited a few lame reasons for requesting a downward departure from the sentencing guidelines. In the end, Weidemann applied the guideline sentence. The sentencing guidelines provided 99 percent of all drug sentences and left little discretion for the judge. Weidemann, though, had to feel like he was doing something important, so everyone who appeared before him played along.

  When we finished, I ran up to the grand jury room on the seventh floor and knocked on the cracked door before pushing it open. “You all done?” I asked.

  The foreperson, a seventy-year-old man in a T-shirt that said I STILL LOVE MY HARLEY handed me the slip of paper. A single check mark told me they had true-billed the requested indictment by a unanimous vote.

  “Some of us wanted to know if we’d be able to find out what happens in the paper,” he said.

  “Oh, I think you can count on that,” I said.

  “Go get ’em, Tiger,” he said. “And watch out for yourself.”

  Maybe grand jurors are a prosecutor’s conspirators after all.

  * * *

  I had wasted no time getting the paperwork for the indictment to Alice Gernstein. I thought I’d have to sneak it through while O’Donnell was in court, but I got lucky. His legal assistant mentioned that O’Donnell had left early to head down to his fishing cabin. The superstar of office paralegals, Alice had Derrick’s warrant in the system by the following morning.

  As it turned out, the rush hadn’t done me a damn bit of good, because three days later, Derringer still hadn’t been picked up.

  The plan was to find Derrick without tipping him off to the warrant. Once he was in custody, I’d arraign him, confess my sins to Duncan, and let the chips fall where they may. The arrest might force my boss and the bureau to come up with a theory that explained all the evidence, not just the evidence they liked.

  I didn’t say it was a great plan, just a plan.

  The plan was looking even lamer now that I couldn’t get even the first step off the ground. I’d called in my markers with four different pals in the Southeast district, but they hadn’t seen Derringer at his house or work all weekend.

  At one point, I picked up the phone to call Chuck, but I quickly replaced the handset. Since the showdown at my house, I must have done this at least a dozen times.

  Grace was always good at strengthening my resolve, so I asked her to meet for lunch at a bistro that was halfway between the salon and the courthouse. Once we’d placed our orders, I filled her in on my plan.

  She wasn’t pleased. “You realize, don’t you, that you may very well get fired over this.”

  It didn’t sound like a question, but I answered anyway. “I sort of figured that if Duncan tried to fire me, I’d use the grand jury transcripts as leverage.”

  “And how, exactly, will the transcripts give you any leverage?” she asked.

  “The press looks at the JC-2 calendar every day to see who gets arrested. When Derrick finally gets arrested, the media will start asking questions, so Duncan will at least have to keep investigating the Derringers and find out how they’re involved with the Long Hauler. If he tries to bury it and get rid of me, I could hint that I might release the information presented to the grand jury.”

  We were momentarily distracted by the arrival of our food. Or, to be more accurate, by the arrival of our extremely attractive waiter. Apparently having sex on a semiregular basis over the last month had altered my cognitive priorities.

  “I thought grand jury proceedings were secret,” Grace said, as we both admired our waiter’s extremely attractive departure.

  “They are. Doesn’t mean Duncan won’t worry about the threat. Prosecutors have been known to leak grand jury information when it helps them. Look at Ken Starr,” I said.

  “So your big plan is a bluff?”

  “I’m not sure about that, Grace,” I said. “I think I’d actually do it at this point. I mean, they convicted Landry and Taylor based mostly on the fact that Landry knew things no one but the killer could know. Now those same defendants are being released, and Frank got his case dismissed, because the Long Hauler knows things no one else could know. But it turns out that Frank had information too. How could he have known Jamie Zimmerman’s purse was stolen unless he was involved somehow? And the Derringers’ involvement in teen prostitution is just too coincidental. I think Duncan will have to pursue it once I force the issue with Derrick�
�s arrest. If he tries to ignore it, I don’t have a problem with making sure that the press doesn’t let him.”

  “And what does Chuck think about your plan?” she asked.

  “He doesn’t. I haven’t told him.”

  She raised a perfectly plucked eyebrow at me.

  “Look, I realize that I might’ve had more pull with Griffith if I hadn’t been fooling around with Chuck.” I paused. “To be honest, Grace, I don’t know what to think. I mean, I seriously doubt that Chuck coerced a confession out of Margaret Landry, but what if he did? That cocky independence of his could translate into some questionable police tactics.”

  “Or he could be a perfectly honest cop, Sam. I thought it was that cocky independence that appealed to you in the first place.”

  “No, I know. I just want to make sure that my judgment’s clear on this one.”

  “That’s so unlike you, Sam. You’re always so quick to say you’re a good judge of character. That every egg’s good or bad, and you can tell right off the bat.”

  “That is what I always say,” I confirmed. “But what did Roger turn out to be?”

  “Well, blow me over. You’re beginning to sound like someone who’s willing to accept some gray areas in her life.”

  I half smiled.

  “And how’s Lucky Chucky taking it?” she asked.

  “He’s not—I mean, I haven’t exactly explained it to him. In fact, we’re not actually speaking at the moment, I don’t think. Which is a bit inconvenient, because I want him to go pick up Derrick Derringer.”

  There went that eyebrow again.

  “And I miss him,” I added.

  15

  Before I left for the day, I checked in with my Southeast Precinct pals to see if they’d had any luck, but there was still no sign of Derrick Derringer. It’s hard to arrest someone when you’ve asked the few uniformed patrol officers working on it not to do anything that might tip the suspect off, like knock on his door or ask for him at work.

  I thought again about calling Chuck on my way home, but I held myself back. I’d thought the evidence through backwards and forwards, but it kept coming back to him. Either he’d coerced a confession out of Margaret Landry, or somehow she’d managed to squeak through the polygraph while someone else wrote letters to the Oregonian in an attempt to exonerate her—someone who had access to details about unsolved crimes.

  But something was bothering me about the letters too. It seemed peculiar that the Long Hauler had confessed to every strangling case in the Northwest Regional Cold Case Database that didn’t involve DNA evidence. Why did all the killings happen to occur in the handful of states that cooperated in the database? And what were the odds that every strangling without DNA in those states had been committed by the Long Hauler? The perfect correlation struck me as odd. But every time I felt like I was close to putting my finger on the missing piece, I’d come back to the obvious: maybe Chuck just wasn’t the person I thought he was.

  So I hadn’t called him. I decided that if Derrick didn’t get picked up tonight, I’d call in sick tomorrow and sit outside his house until he came home.

  Maybe if I hadn’t gotten so caught up in fantasizing about Derrick’s impending arrest scene, I would’ve noticed when I opened the door that Vinnie hadn’t waddled up to meet me. It wasn’t until I was locking it behind me and realized I didn’t hear the alarm beeping that I registered the déjà vu. Bracing myself for another crack on the head, I heard a familiar voice, the one that had called my cell phone the night I left Grace’s. “Welcome home, Samantha.”

  The good news was I’d managed to find Derrick Derringer. The bad news was he was standing behind me with a very large gun.

  “Why don’t you join us in the living room?” He waved his gun to indicate that I should walk in front of him.

  The bad news got worse. Tim O’Donnell was tied to my Mission-style chair, Frank Derringer sat on my sofa with the remote control, and Vinnie was whimpering, presumably relegated to the pantry again.

  I noticed, though, that Derrick was pacing behind the sofa, and Frank was chewing the cuticle of his right thumb. They were nervous, and I tried to take advantage of it by faking confidence.

  “Nice to see you were enjoying a little TV. Anything good on? I try to stay away from the reality shows myself,” I said.

  Derrick wasn’t amused. “Maybe that explains why she didn’t listen to you, Tim,” he said, glancing at O’Donnell, who looked truly terrified. “Has trouble with reality. Now, if I were you, sweetheart, I’d shut the fuck up and have a seat.”

  “Stop it, Sam.” A puddle under my Mission-style chair and spots on O’Donnell’s pants suggested that things had already gotten ugly before my arrival. “This is some serious shit.”

  Derrick laughed at him. “Figure it out, ass-wipe. This bitch don’t listen, not to you, not to anyone. But you had to tell us you’d handle everything, you’d get it all taken care of. But what the fuck happens? Nimrod here,” he said, gesturing to his little brother, “gets his case dismissed, and I wind up under indictment. Well, I’m through letting you and Frankie fuck this shit up. This shit ends tonight. My way.”

  “Look, I got you in just like you wanted,” O’Donnell whined. “You said you’d let me go if I was telling the truth about knowing her alarm code. Let me out of here, and I won’t say a word.”

  All that money for my super deluxe alarm, down the drain. If I got out of this mess, I’d be smart enough not to use the security code from work as my home password.

  Derrick laughed again. “What are you gonna do, Tim, call a judge and say I broke my word? This ain’t some plea bargain, counselor. You don’t get to walk just ’cause you flipped on someone.”

  “Jesus, Derrick, I’ve done everything you wanted!” O’Donnell was practically whimpering.

  “No, you did everything you wanted!” Derrick was pointing the gun at him now. “I thought the Zimmerman girl was behind us, and now dumb fuck here goes and does it to some other girl, and you say you’ll take care of it again, but I’m the one who winds up getting fucked in the ass.”

  O’Donnell was blowing it. The Derringers had been showing signs of doubts about their plans, but now Tim was getting Derrick wound up, and Derrick was reverting to his aggressive mode. I had to find a way to make Derrick anxious again.

  “Look, Derrick,” I said, speaking very slowly. “I don’t know what’s going on between you and Tim here, but killing us will only make things worse. There’s no murder beef on you right now. You kill us, and you’re going to feel heat like you never knew before on—what do you have, a few forgeries or something? Don’t do this.”

  It didn’t work. Now the gun was pointed at me. And Derrick was still ranting. “Don’t you pull that shit with me. You know exactly what’s going on here, and that’s the whole problem now, isn’t it? You couldn’t let it alone. You got a major hard-on for this case and couldn’t let it drop. Now this dumb-fuck DA’s calling me, telling me you got a fucking indictment against me.”

  I couldn’t stop to figure out how O’Donnell knew about the indictment or why he would tell the Derringers.

  “Derrick, listen to me. The indictment was a bluff. Grand jurors will indict anyone the prosecutor tells them to indict. I just wanted you picked up so the police would talk to you about the case. I don’t have any evidence against you or your brother.” I could tell he was beginning to tune in, so I talked a little faster.

  “Here’s what we’re going to do. Tim, as a supervisor at the District Attorney’s Office, you are on official notice that I am hereby resigning from my position as a deputy district attorney. Derrick, give me some money. A dollar, whatever, and tell me you want to talk about your legal problems. Attorney-client privilege will protect everything you say to me, OK? Let me talk to you about this.”

  Derrick was looking at me, not saying anything.

  Frank couldn’t keep quiet any longer. “Derrick, give it to her,” he said.

  “Shut up, Frank,” D
errick said. “She’s full of shit, and she’s gonna die, so I don’t give a shit about privilege.”

  “Think about it, Derrick.” Frank was beginning to sound desperate. “Just in case something goes wrong, the judge won’t let her rat on us.”

  “Yeah, well, nothing’s going wrong,” Derrick retorted, clicking the safety off his gun and pointing it at me. “You’re the one who leaves people alive who are supposed to be dead, not me.”

  “Stop! It’s not supposed to happen till after eight!” Frank yelled.

  Hearing they’d apparently penciled in my death for a specific time made me dizzy. Luckily, I seemed to have found an ally in Frank. He fished a dollar out of the front pocket of his jeans and asked if that would work for both of them.

  “Derrick, do you accept my representation?” I asked.

  “Sure, what the fuck? Three times I went down, I wanted to kill my lawyers. Guess I can fulfill my wish.”

  I always wondered what it would be like to go into private practice. This wasn’t what I pictured, but I offered my advice anyway.

  “Frank’s got a free ride on anything that happened with Kendra Martin. The trial started, so double jeopardy protects him. And there’s no physical evidence to link you to anything, Derrick. Not that I’m saying you did anything, because I don’t know that you did, of course. And, on Zimmerman, two people have already been convicted, so that pretty much creates reasonable doubt for anyone else the State tries to charge down the line.”

  He was thinking about it, I could tell. What I couldn’t tell was whether his brain was big enough to comprehend it all.

  “Nice try,” he said, “but you left out my fucking eyewitness over here.”

  “Your brother?” I asked. “Frank’s not going to turn you in, are you, Frank?”

  This pissed Derrick off for some reason. He said, “I told you she was full of shit, Frank. Don’t pretend like you don’t know what’s going on, bitch. My first mistake was letting Master Crime Fighter here live when it turned out he was a DA and not some salesman from Idaho like he said. Dumb and Dumber here meet each other in a chat room. So one day Frankie tells me he knows a furniture salesman from Idaho who’s willing to pay big for a gang bang on a young’un. We set him up with Jamie, and next thing you know the girl’s dead and, lo and behold, the salesman’s a DA. Should have killed you then, O’Donnell.”