“Don’t tell me over the phone. I’ll be there in twenty minutes.”
“Who was that?” Pat asked. She was still in bed, lying next to the spot Jack had so recently vacated.
“It was Nancy. She found something.” He was already moving toward the bathroom as he was talking. He brushed his teeth in the shower, didn’t bother to shave, dressed in a flash, kissed Pat goodbye, and headed for the office.
Nancy looked like something the cat dragged in. She was still dressed in the same pantsuit from the day before, although the jacket was off and slung haphazardly on a chair in Jack’s office and her white blouse was wrinkled and stained with office-brewed coffee. There were dark circles under her eyes. He could tell she was bone-weary but very excited.
“What did you find?”
“Take a look at this.” She handed him a thin manila file. He opened it and saw several pages that appeared to be the results of chemical lab analyses. There were blood and urine test results and toxicology reports. It took him a moment to realize what he was reading. Then it came to him in a flash.
“That’s it! That’s what I knew in the back of my head was missing—the lab analyses in the coroner’s report. Where was it?”
“It was one of those little files in the back of one of the boxes that apparently none of us ever got to when we went through the stuff the first time.” Jack remembered. He had read the investigative reports thoroughly but had ignored the thin files at the bottom of the second box. He was just too tired to read them and assumed they were unimportant.
“Now take a look at this.” She handed him a second thin manila file. He opened it and started to read a two-page police report dated on the same day as the murder about a suspected rape of Lucy Ochoa! His heart started to race. He could feel the blood coursing through his veins at breakneck speed as he tried to slow his eyes down and read the report—and then the lab results again. A picture started to emerge—a very sinister picture.
“Do you know what this means?” he said.
“I think so,” she said, watching his eyes dart across the pages. “Although it’s taken me most of the night to figure out what you figured out in a couple of minutes.”
“Take me through it,” Jack said, hoping to calm himself while he listened to her explanation.
“Apparently, they found semen inside Lucy Ochoa the night she was murdered. The blood type from the semen was AB. That was different from the blood type on the carpet, Rudy’s blood. So they started a separate rape file. I’m not exactly sure why. I think they were up to no good but I’m not exactly sure how it worked.”
“You’re right so far. Here’s the rest. The blood and the semen created a big problem. It put two people in the house. So they—the prosecutor and the police—decided to eliminate the problem by creating two crimes. By having a separate rape investigation, they didn’t have to produce that file for the defense in the murder case. And also, since it was a criminal investigation, the documents weren’t public records, so nobody—including the press—could get at them.
“The press usually gets at least some of their information through a public records request. The state attorney knew that.”
“Why did we get the rape file?”
“We made a public records request for all documents relating to Lucy Ochoa or Rudy Kelly. The criminal investigation of the rape case—an investigation that, in fact, never existed—ended years ago. Once the investigation was over, those documents became available. Apparently, nobody has made a public records request since the original murder investigation ended.”
“I think I get it,” Nancy said. She was following but it was tricky, and this was all new to her. There was one other thought she had to get out before she lost it. “What about the coroner’s toxicology report? Wouldn’t the defense have seen that? And wouldn’t that show the semen and the different blood type?”
“It would if the defense had seen it. Note that the toxicology report is titled: ‘Addendum to Coroner’s Report.’ I’ll bet the coroner was in on this little scam. He didn’t issue his toxicology report with his initial report. It wasn’t forwarded to the defense, and the idiot who was representing Rudy never thought to request it later. And nobody picked up on the discrepancy in the appeals.”
“What about Rudy’s blood analysis? Wouldn’t that have been part of the coroner’s report?” Nancy asked. She felt a little stupid but she was still putting it all together.
“No. The coroner is only concerned with the body of the deceased. The semen was in Lucy’s body. Rudy’s blood that was found on the carpet was analyzed by the police—they used a crime lab in Miami.”
“Wow! So the two blood types were never described in the same report! So where do we go from here?”
“Well,” Jack said, “I finally have an issue that I can appeal. I’m confident that when the Florida Supreme Court finds out what the state attorney and the police did, we’ll get a new trial and, if Rudy gets a new trial, he will not be convicted again.”
“You really think we can get him out of prison?”
“I really do. It’s a long process but the worm definitely turned today, and you, Nancy, made it turn.”
Nancy didn’t know what to say. She was definitely excited but the prospect of Rudy’s freedom down the road wasn’t enough for her. She wanted Rudy to walk out of prison right away.
“What do we do next?” she asked.
“Next, I have to write this brief. I can probably do it in a week. As I said before, I anticipate the court will give the attorney general’s office maybe a week to respond and oral arguments will be set a few days after that. We’ll get a couple of days before the execution is scheduled in case we need to go to the next step, the Supreme Court of the United States. I don’t think we will, though. Nancy, this was great work.”
“What do we do between now and then?” she asked urgently, ignoring the compliment.
“I’m going to be tied up doing this brief, mostly.”
“Well, I’m going to continue to run down leads. Maybe we can find out whose semen that was. If that’s all right with you?”
“Sure. Just be careful.”
“I will. I just want to do whatever I can for Rudy.”
Thirty–two
“All right, ladies, stretch. Reach a little more. Stretch. That’s it. Let’s run in place—knees up high. Come on, Nancy, you can get those knees up.” Nancy smiled and raised her knees a little higher. Their instructor always seemed to be able to tell when someone could give it just a little bit more. She was so demanding!
She appeared to be in her mid-thirties and fit the stereotypical model for an aerobics instructor—on the small side but every muscle perfectly toned. Nancy thought she looked Mexican, or perhaps Puerto Rican or even Indian. She had creamy, shiny smooth skin and long, silky black hair that she tied in a bun for class. And she was a boundless font of energy.
Nancy had been in the class for two weeks and it was killing her. But she was already starting to see a difference. She’d never exercised before—didn’t need to, or so she’d thought. Now that her abs were tightening and her biceps and legs were showing some tone and definition, she realized this might be something that was good for her.
It was a little storefront studio on Main Street—Bass Creek was too small for a health club. They were a small group, only eight of them, and they were starting to get to know each other. They met three times a week and usually went out for coffee afterwards. This Friday night the five of them who were single were going to go out for drinks.
Nancy had not joined the class to tone up, however. She had read about Maria Lopez in the transcript of the suppression hearing. Maria had been the receptionist at the police department at the time of Rudy’s interrogation and still worked there ten years later, although she was now an administrative assistant to the chief of police. Nancy had been impressed by the forthrightness of Maria’s testimony at the hearing. She suspected Maria had been pressured to “forget” some o
f the specifics about what happened at the police station when Rudy’s mother tried to stop the interrogation. But Maria apparently hadn’t forgotten anything and didn’t hesitate to give the details.
Nancy thought Maria might still have a sour taste in her mouth about what occurred ten years ago to a young Puerto Rican boy. If she could tap into that distaste, maybe Nancy could learn something about the case—something that didn’t show up in the police reports or the transcripts. So she started going to the police department for innocuous reasons—once to pick up a form, two days later to pay a parking ticket she’d gotten deliberately. On the second visit, she managed to spot Maria sitting at her workstation, identifying her by the nameplate on her desk. At five o’clock that evening, Nancy waited near the police station in hopes of seeing Maria leave and orchestrating some way to strike up a conversation. As luck would have it, Maria headed straight over to the aerobics studio. Nancy didn’t find out she was actually the instructor until she joined the class herself the next day.
The first night out for coffee at the Pelican—Dolly wasn’t working, thank God—Maria asked Nancy what she did, and she told her that she was a legal secretary.
“Who for?” Maria asked.
“Jack Tobin. He’s new in town.”
Maria recognized the name immediately. “He’s going to be the new state attorney but he’s working on the Rudy Kelly case now.”
“That’s him,” Nancy replied, trying to appear reluctant to talk about Jack or her work.
“That case is such a tragedy.” Nancy didn’t follow up—she just nodded. But her heart was pounding. Maybe she knows something. But she calmed herself. Don’t be too eager. If it’s in there, let her bring it out.
On their second coffee night, Maria was even more forthcoming.
“If you only knew the real story about that murder, you wouldn’t be able to sleep.” Nancy suspected that Maria was the one who wasn’t able to sleep. Again, however, she decided not to seem too curious. Wait until Friday night, when she’s had a couple of drinks.
It took Jack the whole week to write his brief and edit it to where it was moderately acceptable. He faxed it to the court and the attorney general’s office. The appellate division of the AG’s office handled all appeals in the state, and Jack had contacted their office when he started the brief so that it could be assigned to a particular individual who would be prepared to respond quickly. He had contacted the court as well with the date of execution so the appellate process could be expedited. Normally, appellate cases in the Supreme Court could take three to six months or longer. This appeal had to be decided in a matter of days after the briefs were filed.
Jack knew from experience that the initial brief was the most important part of the appellate process. It had to be clear and concise and had to make the case quickly. Good appellate lawyers spent weeks poring over the initial brief, editing and re-editing, until it was a finely honed dagger, stabbing directly and mortally at the legal deficiencies in the lower court. Jack didn’t have the luxury of time, so he concentrated on the short, sweet and to the point part of brief writing.
The point was prosecutorial misconduct. The state attorney, the police, and the coroner had conspired, in his opinion, to keep the semen evidence from the defense, depriving Rudy Kelly of the best evidence to exonerate him—that somebody else was in Lucy’s trailer that night. Even if it wasn’t a conspiracy, Jack argued, creating a separate rape file deprived the defense of evidence that would support reasonable doubt.
Jack knew the court would probably not find prosecutorial misconduct—they rarely did. Appellate judges were an arm of government just like the police and the state attorney. There was an institutional bias there, at least when it came to the issue of intentional wrongdoing. But by raising the possibility, he gave the appellate court an opportunity to “split-the-baby,” a term used in legal circles to describe judicial decisions that benefit both sides in some way. By ruling against Jack on the prosecutorial misconduct issue and for him on the more neutral deprivation of evidence argument, the court could give each side something while still reaching the result Jack was really after—the right result. It was a tactic he had used many times in the past.
As he expected, the Supreme Court immediately issued a schedule for the parties to follow. The attorney general had seven days to respond on behalf of the State of Florida, and oral arguments would be five days later. Rudy’s execution was scheduled for nine days after the oral argument date. Whether it was in the Florida Supreme Court or the United States Supreme Court, it was going to be a last-minute decision that would decide Rudy’s fate.
Like Nancy, Jack couldn’t just sit around and wait after he submitted the brief. He decided to learn everything he could about the chief investigating officer, Wesley Brume, and the former state attorney, Clay Evans IV, and to visit both men. He knew there was no real benefit in continuing the investigation. Neither man was going to admit to anything. But something compelled him to go forward. He wasn’t quite sure what that something was.
Wesley Brume did not want to talk to Jack Tobin. He avoided the first three calls, but when Jack persisted, he knew he couldn’t duck the conversation forever. This prick was going to be the new state attorney and Wes couldn’t afford to make him an enemy before he even started. He didn’t have that kind of power. Why would the governor appoint a lily-livered, scum-sucking, criminal-loving son-of-a-bitch like this Tobin guy to be the state attorney? It just didn’t make sense. It was like being in bed with one of the bad guys.
He took the fourth call.
“Brume here.”
“Mr. Brume, I’m Jack Tobin.”
“I know who you are. I know you’re going to be the new state attorney. I also know you’re now representing Rudy Kelly. So what do you want with me?”
“I’d like to have a conversation with you.”
“About what?”
“About all of the above.” Jack didn’t want to tip his hand just yet, although he was sure Brume knew exactly what he was after.
“Well, I’d prefer that we delay a face-to-face meeting until you come on board as state attorney.” The Grunt was still holding out hope that the governor would come to his senses and jettison this commie pinko.
“We can’t always get what we want in this world, Mr. Brume. You and I are going to be working together. I think we should start to get to know each other. When the governor offered me this job, he and I talked about the necessity of forming partnerships.”
There it was—the veiled threat. “If you don’t talk to me, I’ll call my friend the governor, whose ass I’ve had my nose up for the last twenty years.” Wes wanted to vomit. These politicos were all alike. The only guy who had any real balls was Clay Evans, and he rode the Kelly case to an appointment on the federal bench. But Wes had to meet with this guy. He’d only been appointed police chief last year and he needed two more years on a chief’s salary before he could retire with a chief’s pension. Besides, he ain’t gonna get squat from me. I’ll dance him around the room for a few hours, then show him the door.
They met at Wesley Brume’s office. Jack would have preferred more neutral ground, but the Grunt insisted on his office. He wanted the upper hand.
“Would you like some coffee, Mr. Tobin?” Chief Brume asked as he leaned back in his fake leather chair and propped his feet up on his cheap, particleboard desk. Jack wanted to laugh. If this was Wesley Brume’s feeble attempt at intimidation, it was having the opposite effect. Wesley Brume would learn about real intimidation very soon.
“No thanks.”
“Well then, what can I do for you?” the Grunt asked as he sat up in his chair and began to shuffle some papers, pretending to be a very busy man.
“Well, I know we might be working together in the future and I wanted to clear the air about some things.”
The word “might” had its intended effect. What the hell does he mean “might”? Is he trying to intimidate me? He decided to ignore the remark.
“What air, exactly, needs to be cleared, Mr. Tobin?”
“Well, I’m representing Rudy Kelly and you were the chief investigating officer in his case, so in a way I’m investigating you and your actions.”
“Have you found anything I did wrong?”
“Oh yeah, and I’m not finished yet.” The blood rushed to the Grunt’s face. He knew his feeble attempt at remaining calm wasn’t working. His face was burning and his temples were throbbing. He decided to abandon the act, pointing his finger at Jack.
“I don’t give a shit who you think you are coming in here and accusing me like this, but I’m not gonna stand for it. Get the fuck outta here.”
Jack didn’t move. In fact, he leaned back in his chair as the Grunt had done moments before. “Calm down, Mr. Brume. Nobody is accusing you of any criminal activity—at least, not yet. I’m just saying that a few mistakes were made.”
The Grunt didn’t hear the last part. He was too busy choking on the words “at least, not yet.” Jack didn’t keep him in suspense too long.
“We know about the separate rape file. It’s part of my brief before the Supreme Court on prosecutorial misconduct. I just don’t know whose idea it was—you or Mr. Evans. My guess is it was Mr. Evans’s idea and he got the coroner to go along. Mr. Evans, or I should say Judge Evans, won’t talk to me and I figure when the time comes to discuss these matters he might throw you under the bus—so I thought I’d come to you beforehand and give you the opportunity to tell me the real story.”
There was a moment of silence. Brume was sweating now—boiling and sweating. Jack decided to turn up the heat full blast. He could now see that Wesley Brume was the pawn in this operation. If Tracey James had in fact been murdered, Brume hadn’t made the decision.
“Oh by the way,” Jack continued, “I know Tracey James called you before she was killed—and told you she had new information and a witness.”
The Mayor of Lexington Avenue Page 23
