area. Hell, if Metro doesn't expand the boundary, I wouldn't be
surprised if prices actually fell out there."
"You didn't say anything about Metro before. They're not really going
to change the urban growth boundary, are they?" I asked.
"Do you pay any attention whatsoever to the local news?" she asked.
I'd gotten spoiled during the few years that my local paper was The New
York Times, so I haven't given it up. In theory, I'm extremely well
informed because I subscribe to it as well as the Oregonian. Grace,
however, knew my habit of getting absorbed in the Times crossword
puzzle before ever hitting the local paper's metro page.
"Of course I do," I said. "I know I was featured prominently in
several stories about a month ago. And Monday I watched Gloria Flick's
report on the Easterbrook case, not to mention Shoe Boy's press
conference."
"Man, Gloria Flicks annoying."
"Damn straight. It's the price I pay for being so impressively well
informed."
"So you must know that Metro is talking about expanding the urban
growth boundary."
Anywhere else in the country, that statement would sound a little like
You must know that Spock's Starfleet service number was S179-276. But
to people who live in my city, the urban growth boundary is the secret
ingredient in Portland's warm gooey cinnamon bun. The city's strong
neighborhood feel is what makes this place special, and those
neighborhoods would be gone by now if not for Metro.
I had read about proposals to expand the boundary by more than two
thousand acres but assumed it would never happen. Grace informed me
otherwise.
"The assumption is that it will happen. The population has exploded.
It will be a close vote, but everyone thinks the time is ripe for
expansion, and the place where it's most likely to happen is in
Glenville. The land outside the boundary there is nothing special, so
the theory is that Metro can hand it over to developers without pissing
off the greens too much. Unfortunately, the rest of the market shares
that same theory. For the last couple of years, buyers have been
gobbling up land in the area on the gamble that the growth's going to
spread. And from what you told me about your office park, it's right
at the line. I wouldn't be surprised if the same owner bought the
adjacent rural land."
"So if the line moves," I said, "the owner cleans up. And T. J.
Caffrey's one of eleven votes."
"Not only that, he's one of the swing votes. He's good on the
environment, but he's pro-business. In exchange for his vote, he can
probably set the terms about where the line gets moved."
That was definitely a coincidence. I was suddenly looking forward to
my morning meeting pardon me, my "courtesy sit-down."
I called it a relatively early night so I could get some work done at
home and rescue Vinnie from boredom.
The only message on the machine was from Chuck. "If it's not too late
when you get back, give me a call if you want me to come over.
Otherwise, have a good night, and I'll talk to you tomorrow."
Apparently, Grace wasn't the only one resenting the time I'd been
devoting to Chuck. Vinnie seemed pleased when I stayed put and
continued scratching him ferociously behind his goofy bat ears. When
he finally started in with his familiar snorting sounds, I knew I was
back in his good graces. I'd been so neglectful lately that I let him
stay on my lap with his Gumby while I prepped the Jackson prelim. If
only my father were so easy to assuage.
Maybe it was the second martini, but my thoughts kept wandering to one
of the seemingly inconsequential questions I would ask Ray Johnson as
background. "Where was Clarissa Easterbrook's body located?"
I fished my office phone directory out of my briefcase and left a
message for Jenna Markson, a paralegal in the child support enforcement
unit who was known for her dedication and investigative skills. Maybe
she could satisfy my curiosity.
Seven thirty a.m. was the time Duncan had promised, so there I stood on
Friday morning in the office's front lobby, waiting for T. J. Caffrey
and his lawyer. They finally arrived twenty minutes late, wholly
unapologetic for the delay.
I recognized Caffrey from the local paper, but I'd never seen him in
person. Probably around fifty, he was known for his casual garb, but
today he'd chosen a suit and tie that looked good with his
salt-and-pepper hair. He was a bit of a chubster, but I could see the
attraction.
The man running the show, though, was Ronald Fish. A high-priced,
high-power trial attorney, Fish was the guy CEOs called in a pinch,
whether it was for corporate mismanagement or a sixteen-year-old girl
in the backseat. He didn't even bother introducing himself. He was
big enough in the civil litigation world that he assumed every lawyer
in the city already knew who he was and maybe he was right.
I checked my posture while I led them into the conference room. In my
sling backs, I edged out the notoriously napoleonic power broker by a
full inch. He straightened his trademark bow tie. I chose to
interpret the nervous gesture as a very small leveling of the playing
field.
Make that a very, very small leveling. Fish was ready to go the second
I shut the door.
"I won't take up your time, Ms. Kincaid, because I know you've got a
court appearance to prepare for. I was hoping I could convince you to
support Mr. Caffrey's motion to quash the subpoena. Duncan sounded
amenable to it when I spoke with him yesterday."
I noticed that the spineless Mr. Caffrey had no problem letting his
attorney handle the talking.
"I believe what Duncan was amenable to was a meeting this morning at
seven thirty," I said, glancing at my watch, "as a courtesy to your
client. As you know, the decision whether to grant your motion is
entirely in the trial court's discretion."
I had spent the early morning researching the issue. There was no
clear correct legal answer to Caffrey's motion. Most important from my
perspective, there was no risk the court's ruling on the motion could
lead to a reversal of Jackson's conviction down the road.
"It seems patently obvious to me, Ms. Kincaid, that it would be in the
government's interest to prevent this Mr. Sillipcow "
"Szlipkowski," I corrected.
"Yes, this public defender, from deflecting the court's attention from
the very strong evidence against the defendant."
"That's one way to look at it, but I plan on staying out of it."
"I'm not certain how else one could possibly look at it."
"Well," I began, "one might look at the defense's subpoena as an
opportunity to make certain the state's not missing something we should
know about prior to trial. If, for example, your client was having an
affair with the victim and I'm not saying that he was then one might
believe it better to get that news out in court during the prelim,
rather than having a desperate defense attorney leak it to the med
ia in
the middle of trial."
I watched Caffrey glance at his attorney. Clearly he could tell this
sit-down was going nowhere.
"Or perhaps," I continued, "one might see this as an opportunity to
make certain, outside of the presence of the jury, that the state isn't
missing some off-the-wall defense theory that might take off at trial.
Something like a connection between the victim being found in Glenville
and Mr. Caffrey's power to shape the future of suburban development
out there. I don't know, something like that. But, again, maybe it's
better heard now rather than later."
I didn't take my eyes off Caffrey's face. Nothing.
I had no idea what his wooden affect said about his knowledge of the
case or any possible connection between Clarissa and development in
Glenville. But I knew one thing: I'd never vote for T. J. Caffrey,
whatever his politics. There was no doubt in my mind that this man had
some kind of relationship with Clarissa. I had spent the week watching
Tara, Townsend, and Susan struggle with their profound grief. But here
sat Caffrey observing this discussion like a Wimbledon match.
I excused myself to prepare for court and walked them to the exit.
News crews from all four local stations were waiting in front of the
Justice Center. Fortunately, they weren't allowed in the courtrooms,
so they only polluted what the attorneys said before and after the main
event.
Slip and Roger were giving competing statements. Slip was accusing the
police and prosecutors (I guess that would be me) of rushing to
judgment to comfort a nervous public that was demanding a quick arrest.
Roger, on the other hand, was grateful that the police had finally
gotten around to catching the right man.
When the cameras rushed over to me, I gave them the standard
prosecutorial line. We're confident about the evidence, wouldn't be
going forward if we weren't, blah blah blah. Because of the ethical
rules that govern the public statements of prosecutors, we never get to
say the good stuff.
Once we were in JC-3 before Judge Prescott, it was a whole other story.
In a prelim, the prosecutor runs the show, since the only relevant
question is whether the state's evidence, if believed in its entirety
by a jury, could support a conviction. Slip most likely would try to
get some free discovery by squeezing in as much cross-examination as
Prescott would tolerate, but he'd know there was little to gain by
grandstanding this early in the process. Roger was completely
irrelevant, sitting next to Townsend with the other observers. I
couldn't help but wonder how much he was charging.
I wheeled my chair toward Slip. "You subpoenaed Caffrey, huh? I
assume you know that he'll move to quash."
"His lawyer wants to wait until I actually call Caffrey to the stand.
He's probably making sure it's not a bluff. I told him I'd call him
when you were done presenting your evidence, so they wouldn't have to
wait."
"Hate to break it to you, Slip, but I doubt your courtesy's going to be
enough to win Ronald Fish over."
"I'm a good guy. What can I say?"
Prescott took the bench and called the case. Every other judge in the
county lets the prosecutor call the case, and we do it in about five
seconds flat, the words so routine that the court reporter has no
problems keeping up with the pace. But Prescott treated even this
routine function like a constitutional moment.
When she was finally done, it was my turn for a quick opening
statement.
"Thank you, your honor. Deputy District Attorney Samantha Kincaid for
the state. As your honor is well aware, the only question here is
whether the state has sufficient evidence to hold the defendant over
for trial on the pending Aggravated Murder charge. The ultimate
decision regarding the defendant's guilt must be made by the jury at
trial, and the jury is entitled to make its own determinations about
credibility. Accordingly, the standard for today's hearing requires
the court to credit as true all testimony that benefits the state, and
to discredit any contradictory evidence from the defense, even if that
would not be your own assessment of the evidence were you to sit in
this case as a juror."
I went ahead and cited the controlling cases for good measure. I would
never spell out the governing law as thoroughly for a more experienced
judge, but Prescott was still learning the basics of criminal law. The
last thing I needed was for her to substitute her own opinion for the
jury's because I forgot to cover Criminal Procedure 101.
I gave a brief outline of the critical evidence and then called Ray
Johnson to the stand.
Ray looked dapper, as usual, in a lavender dress shirt and black
three-button suit. Half that man's salary must go to the Saks men's
department. He had removed the diamond stud from his ear for his
testimony. Good call, given Prescott's transition from a corporate
culture.
We covered the evidence quickly despite our judicial assignment. I
wasn't asking any questions that were objectionable, so there was no
reason for Prescott to get involved.
In straightforward question and answer format, Johnson and I covered
the critical points: Jackson's pending case, the letters he'd written
to Clarissa, the paint on Griffey and in Jackson's van, his employment
at the site where the body had been located, his statements, and the
weapon. My criminologist would cover the fingerprint and blood
evidence. It was more than enough.
I had decided to keep it simple. Since we weren't alleging a sexual
assault as part of the charges, getting into the nonoxynol-9 and the
ME's opinion that Clarissa had been undressed when she was killed would
only muck it up. If Slip chose to get into those complications, he ran
the risk of making his client look like a rapist and not just a
murderer. Down the road, I'd have to worry about a jury thinking that
Clarissa's nudity was inconsistent with Jackson's motivation of
revenge. But even a judge as inexperienced as Prescott knew that rape
was about exercising power over the victim, not sex.
I wasn't surprised when Slip chose to cross. One of the only benefits
to the defense of a prelim is the chance to test the state's case and
its witnesses in advance of trial. Here, Slip could risk asking
Johnson questions that might backfire if asked for the first time at
trial in front of the jury. Some judges would cut off a prelim fishing
expedition at the start, but I knew Prescott would give Slip some
line.
"Good afternoon, Detective Johnson. My name is Graham Szlipkowsky, and
I represent Mr. Jackson."
It sounded funny to hear Slip pronounce his full name. It had been a
couple of years since we'd had a formal hearing together.
"You arrested my client late on Tuesday night, is that right?"
"That's correct. Technically, it was Wednesday morning."
"When you woke up on Tuesday morning, did you believe that my client
; killed Clarissa Easterbrook?"
"I believed it was a possibility, yes."
Johnson was wasting his witness skills. He's a master of spin, which
helps in front of a jury. In a bench hearing, it was better to cut
through the crap.
"But you didn't believe you had probable cause, did you? Or surely you
would have arrested him."
No doubt about it. Slip was good.
"Prior to Tuesday evening, we had not yet made a determination of
probable cause, against Mr. Jackson or anyone else."
"You said you thought it was possible on Tuesday morning that Mr.
Jackson killed Clarissa Easterbrook. Who else would you say that
about?"
"Any number of people," Johnson said. "We had not yet identified a
suspect, so at that point anyone was a possible suspect."
"How about the president of the United States. Was he a suspect?"
"Not a likely one," Johnson said. He threw me a look to let me know he
thought I should have objected, but he was going to have to sit through
it. Judges are insulted by objections during a bench hearing. If the
question's absurd, they believe they should be trusted to disregard it
on their own. Slip's rhetorical question definitely fell within that
camp.
"What about the victim's husband, Townsend Easterbrook? Isn't it true
that he was still a possible suspect?"
"I wouldn't call him a suspect."
Johnson was falling into the pattern that a lot of cops get into on the
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