Missing Justice sk-2

by Alafair Burke

  counsel, no defendant.

  "Your honor," I said, "I already have this case scheduled for grand

  jury. He has no right to a preliminary hearing."

  "But he's not indicted yet, is he? And now he's asking for a

  prelim."

  I tried to explain that wasn't how it worked, but Levinson wanted to

  keep his docket moving.

  "I don't see the harm, Ms. Kincaid, and I don't want to leave all

  these people waiting here while the two of you argue about it. Friday,

  JC-Three, at nine o'clock. I assume you can make it, Ms. Kincaid?"

  "Of course," I said, since that was the only acceptable answer to a

  question that had used you in the collective sense. Judges assume

  prosecutors are fungible. If I had open-heart surgery scheduled for

  that morning, I'd have to find someone else. Fortunately, I did not.

  Neither did Slip. "I can clear my calendar, your honor."

  "Very good. As for bail, nice try, Mr. Szlipkowsky, but, unh-unh, I

  don't think so. Remanded."

  I told myself there was nothing to worry about. Beating charges at a

  prelim is unheard of.

  I passed Russ on the way back to my office. I was beginning to think

  the man lived in the hallway.

  He looked at his watch when he saw me. "You spent an hour and a half

  over there to do one arraignment. I need to find you some more work,

  Kincaid."

  I told him about Jackson's request for a prelim and the Friday hearing

  date.

  "You've got to be fucking kidding me. We don't do prelims."

  "Try telling that to Levinson while he's behind on his docket."

  "Well, we can't be ready to put on evidence by Friday morning. Did you

  ask for more time?"

  "No."

  He looked frustrated.

  "It would've been pointless, Russ, and it's just a prelim. Weapon,

  threats, paint, statements. Done. It'll take two hours."

  "Let's see," he said, ticking my points off on his fingers. "Hammer:

  no blood tests yet; threat: every judge gets them, including whoever

  you draw for the prelim on Friday; paint: you need an expert or else

  Jackson's just a laborer with a can of beige paint; and statements: you

  better hope they come in. I know your guys were out there just for the

  warrant, but a lot of judges will say Jackson was under arrest the

  minute the cuffs came out."

  Jackson hadn't yet been Mirandized when he admitted knowing that the

  police were there about the paint. His statements would be admissible

  only if the court believed that the police had handcuffed Jackson to

  restrain him temporarily during the search rather than to arrest him.

  "You worry too much," I said. "The threats are motive, and I'll line

  up a paint expert. That's enough for probable cause right there, and I

  guarantee you the crime lab will find a blood match on the hammer. The

  only problem is I'm supposed to have discovery to Slip by the end of

  the day. There's some evidence suggesting the victim was having an

  affair, and I think we need to turn it over."

  I had been hoping to have more time to mull over Tara's revelation, but

  Jackson's request for the quick prelim forced the issue. The failure

  to turn over exculpatory information could lead to a reversal down the

  road.

  "Christ." Frist rubbed his temples. "Exactly what kind of evidence

  are we talking about?"

  I told him about Tara's visit. It was more than mere rumors; according

  to her sister, Clarissa admitted she was contemplating divorce because

  she was in love with someone else.

  "You don't know who the someone else was?" he asked.

  "Not with any certainty, but we've got a theory." I told him about the

  calls to T. J. Caffrey.

  He started shaking his head before I had even finished. "I'm not sure

  I'd tell the defense about any of that. Even if she was having an

  affair, there's nothing concrete tying it to the murder, and you don't

  know for certain who the guy was. A few phone calls don't mean

  anything."

  I understood his argument. The rules on disclosure allow the

  prosecution to hold back just about anything that's arguably innocuous.

  But with the growing numbers of innocent men being freed from prison in

  cases where the prosecutor sat on information, I tend to fall on the

  side of broader disclosure.

  I explained my analysis to Frist. There was both physical and

  testimonial evidence suggesting that the victim may have been having an

  affair, and the phone records showed that the calls between Clarissa

  and Caffrey made up the bulk of her cell phone usage. I wouldn't turn

  Caffrey's name over to Slip directly, but I'd give him the phone

  records and a report about Tara s statement so he could decide for

  himself if they were relevant.

  "Suit yourself," Frist said, "but if this case goes to trial, and he

  tries to turn your victim's supposed boyfriend into his one-armed man,

  you'll regret it."

  "You're dating yourself. Satanic cults are the 'other guys' of

  late."

  "You're pushing your luck, Kincaid, but I'll go along with you anyway.

  Duncan's going to want to call Caffrey as a courtesy," he said

  resignedly. "I'll tell Duncan; you take care of the husband. We don't

  want him learning about this at the prelim."

  Great. Getting information to Townsend meant a phone call to Roger. In

  the hierarchy of pleasantries, I ranked it just beneath walking a plank

  of nails into a shark tank.

  "And, speaking of the prelim," I said, "tell me I can do it without

  you."

  "I'm afraid I've got no choice, Kincaid."

  I started in on my spiel about how wasteful it was to use two attorneys

  on a prelim, but he interrupted. "No. I meant I don't have any choice

  but to let you go solo. I've got thirteen victims coming in on a

  sex-abuse grand jury. Some chick who ran a home day care didn't notice

  her boyfriend diddling all the kids."

  I never wanted to get used to these cases.

  "I'll do it by myself, then. Don't worry. It will be fine." I

  started to walk away, then realized I'd forgotten something.

  "Oh, can you do a death penalty meeting tomorrow at two? Duncan told

  me to get everyone together."

  "Yeah, I'm clear. And, for the record, Sam, I would have let you

  handle the prelim anyway. You're doing a good job."

  An unqualified compliment at the District Attorney's Office? For me?

  Either Frist was a different kind of supervisor or I was becoming a

  real jerk.

  I picked up the phone to call Roger but couldn't bring myself to ignore

  the message light on my phone.

  It was Chuck. "Hey, babe. Good news back from the crime lab. Give me

  a call."

  I hate those messages that keep you hanging. Either tell me what you

  need to tell me or ask me to return the call. I was eager for the lab

  reports but felt obliged to get the call to Roger over with.

  I dialed the first six digits of his number before tapping on the

  handset for a new dial tone. A call to Susan Kerr would allow me to

  procrastinate a little longer. I still needed to talk to her about

  Tara's suspicions that Clar
issa was seeing someone else, not to mention

  her little visit this afternoon from Townsend.

  When I identified myself, she jumped right in.

  "I'm so happy you called. I was going to see if there's anything I can

  do after Townsend's press conference last night. I was in bed by then

  and couldn't believe what I saw in the paper this morning. I didn't

  even know he had a lawyer."

  "Neither did we."

  "Would it help if I called someone at the mayors office to support the

  bureau? I know I was a bit critical of how the police handled the

  situation with Townsend Monday night, but I think you're all doing a

  great job."

  I assured her that I appreciated the offer, but there was no need for

  her to pull strings. "But, since you brought it up, do you have any

  idea why Townsend would rail against us like that?"

  "No, and it shocks me."

  "He didn't mention it when he was at your house this afternoon?"

  Wow. I hadn't planned on blurting it out that way. Very Perry

  Mason.

  Unfortunately, it didn't have a Perry-Masonian effect. Instead of

  breaking down and sharing a lifetime of secrets with me, Susan Kerr

  made me feel like shit.

  "Are you actually having Townsend followed or something? My God, are

  you watching my home? Maybe Townsend was right to rail against you, as

  you put it."

  I immediately launched into a back pedal, explaining that I had passed

  her house on my regular run and happened to notice his car.

  "If you had simply asked like a regular person instead of ambushing me,

  I would have told you all of this anyway. What I was about to say was

  that I can only chalk up the press conference to the fact that Townsend

  just hasn't been himself since well, since, Clarissa was found. He's

  been drinking more, and sometimes he'll start rambling incoherently. My

  best guess is that someone from work might have suggested it, because I

  know it didn't come from me or Clarissa's family.

  "As for his visit this afternoon, if you must know, I initially

  suggested it, hoping to pull out some of the old Townsend. When he's

  in work mode well, everything else sort of fades away. I've been

  helping him with some fund-raising for the hospital's pediatric wing

  and thought it might help him to put his mind back into that for the

  afternoon. But of course he told me about the arrest, and one thing

  led to another. I wound up crying away another afternoon, while he sat

  like a zombie on the sofa. So, no, we did not talk about the press

  conference."

  I didn't know what to say. I floundered around for an appropriate

  apology, finally lamely offering that I was sorry for her loss.

  She sighed. "I know. I can tell you care, and I do appreciate it. My

  God, I thought it was hard when I lost Herbie, but to have a loss like

  this I don't know how Townsend will ever get over it. Quite honestly,

  I'm beginning to question his stability. He doesn't seem to be

  thinking straight."

  Her worries about Townsend made it even harder to share what I'd heard

  from Tara. I omitted T. J. Caffrey's name for the time being.

  "Boy, you are full of good news today, aren't you?" Her attempt at

  levity didn't change the fact that she wasn't having any of it. "I

  know I've already told you this," she said, "but Clarissa and Townsend

  had a perfectly normal marriage. Well, about as normal as it can be

  given how hard the guy works. But, trust me, if there was something

  wrong, Clarissa would have told me. And, my God, if she was cheating "

  She laughed at the mere thought of it. "She'd definitely tell me

  before she'd say anything to Tara."

  "I'm just trying to reconcile Tara's information with everything else

  we've heard," I explained. "Why would Tara make something like that

  up?"

  "Perhaps she misinterpreted something Clarissa said. We all vent about

  our husbands now and then, don't we? And Tara can be very

  melodramatic."

  "She seemed fairly certain about Clarissa's meaning," I said.

  "Just because she was sure doesn't make her right. And even if

  Clarissa was fooling around which I'm sure she wasn't what use is there

  in bringing it up now? I understood from Townsend that you had a

  mountain of evidence against this Jackson guy."

  "We do," I said, "but we still need to cover our bases. I don't want

  the defense springing something on us down the road because we were

  afraid to ask the tough questions."

  "Well, you've asked them, and my answer hasn't changed. Clarissa

  wasn't like that, and I hope you'll leave it at that. If the police go

  to Townsend with this, it could send him right over the edge."

  Tara had expressed the same concern. Townsend might be the one in

  charge at the hospital, but apparently, in other areas of his life,

  those closest to him felt the need to be strong on his behalf.

  "I know you're worried about Townsend," I said, "but I hope you're not

  holding back information you think would hurt him. Tara already told

  me that's why she initially didn't say anything about this."

  "I am most definitely not holding back with you. If anything, I feel a

  little guilty for mentioning Townsend's irrational behavior. But I

  don't want to hear anything else about Tara's little suspicions. This

  son of a bitch Jackson killed my best friend. You just told me a

  second ago that it was basically a sure thing. But instead of anyone

  asking me about her life or what she was like or how wonderful she was,

  you just want to make sure she was a good wife."

  I did my best to explain how important the questions were to the case,

  and she did her best to say she understood. But I nevertheless hung up

  feeling like the worst kind of bottom feeder.

  I probably should have waited before calling Roger, but I didn't.

  "Roger Kirkpatrick." I could picture him in an office high above the

  Willamette, feet on his desk, answering the phone on speaker to avoid

  wasting his valuable time on extraneous hand movements.

  "Roger, it's Samantha."

  "I assume you're calling about Easterbrook?" He still hadn't picked up

  the receiver.

  "Good guess, since I've never called you about anything else in the

  last three years. Now unless you've once again got your hands where

  they don't belong, pick up the damn phone and get me off speaker."

  I heard a click and then his voice was directly in my ear. Perhaps I

  should have left well enough alone. "I had hoped you'd either squelch

  the hostilities, Samantha, or remove yourself from the case."

  He had no idea how much I had squelched. There was a time when I

  wanted to rip his guts out in public if not literally, then at least

  through well-placed billboards announcing that Mister Communitarian was

  a cheat and a liar. He liked to think his charitable donations and

  board memberships made him a good person, but Roger Kirkpatrick was a

  thief of the worst kind, no better than a con man. His grift began

  with the hours he spent with Nike's newest spokesperson, the

  aforementioned volleyball pro. It was only after weeks of inner debate

&nbs
p; that I had finally asked him if I needed to worry. Surely, he had

  noticed that she was seventy-two inches of legs, breasts, muscle, and

  tan. Negotiations, he assured me.

  And, with that, I had given him my trust, not just in the general way a

  wife trusts her husband, and not even just in the way I trusted Roger.

  I had given him the trust I have in myself, in my own ability to judge

  a man who looks me in the eye and tells me he's for real.

  Yes, Roger had gotten off easy. If I seemed a little brusque, he was

  going to have to deal.

  "I wanted to make sure you knew that Jackson requested a prelim," I

  said. "It's Friday morning. I'll need Townsend there at eight-thirty,

  just in case."

  "I know," he said. "I sent a paralegal over this morning for the

  arraignment. I told Townsend to expect to be there. If you don't

  mind, I'll be with him."

  "Suit yourself. Easy billables, I suppose." Eventually, Town-sends

  retention of a defense attorney would look terrible in front of a jury,

  but it would be irrelevant to the judge who handled the prelim. "We

  also would like him to meet with us before we make a final decision

  about whether to seek the death penalty."

  He assured me they'd both be at the meeting the next day.

  "Is that everything?" he asked.