Missing Justice sk-2

by Alafair Burke

  your honor, that someone other than Melvin Jackson killed Clarissa

  Easterbrook. If that's true, as I believe it is, then let's be honest

  that someone did a pretty good job setting up my client. My client was

  upset with the victim, he worked where the body was found, paint from

  his van was found on her dog, and then, of course, the weapon's the

  icing on the cake. As I delved into the question of who might be in a

  position to accomplish such a setup, I kept coming back to the

  construction site in Glenville."

  Slip continued to spell out the coincidences for her. Jackson, his

  landscaping business a fly-by-night operation in the penny newspapers,

  suddenly gets a call from Minkins asking him to work on a

  multimillion-dollar project by Gunderson Development. Minkins sees him

  take paint from the property, and later that paint turns up on

  Clarissa's dog. When Clarissa's body is found at the property, it's

  Gunderson Development that makes sure the police get Melvin's name. And

  then it turns out that Jackson's not the only person with business in

  front of Clarissa Easterbrook; a case in which Easterbrook ruled on

  behalf of Gunderson had her troubled enough that she kept a copy of the

  case file under lock and key.

  Prescott raised her eyebrows, clearly surprised by the amount of detail

  in the proffer. The problem was that the proffer was enough to raise

  eyebrows, but Slip still didn't have enough to tie everything together.

  It was, in Thorpe's words, pure speculation. Prescott's ruling could

  go either way. Convincing her to pull the trigger and put the

  witnesses in the chair would be a matter of strategy.

  First, we had to sit through Thorpe's diatribe. "To suggest that my

  clients had anything whatsoever to do with Ms. Easter-brook's murder

  is outrageous. Mr. Szlipkowsky should be grateful that Mr. Gunderson

  hasn't sued him for slander." Thorpe handed the judge, Slip, and me

  copies of an affidavit signed by a Lee Block. I had to admit, I was

  impressed by the work Dunn Simon had done in the hours that had passed

  since the subpoenas were served. "As you can see," Thorpe explained,

  "Mr. Gunderson was in Bend, Oregon, looking at a property all day on

  the Sunday when Ms. Easterbrook disappeared. Mr. Minkins was in the

  casino at Chinook Winds until four p.m. that day. We are working on

  locating a videotape to substantiate that, and I'm confident we will

  have it by the end of the day."

  The plan was working. Without even getting a ruling on the subpoenas,

  the attorney who refused to let me talk to Gunderson and Minkins

  informally had just locked them into alibis for the time of Clarissa's

  death. Go figure.

  Having set up the facts he wanted to rely on, Thorpe launched into his

  argument. He took the predictable route, borrowing many of the same

  points made by Bow Tie on Friday.

  I opened the folder on my lap to sneak a glance at the note that Slip

  had passed me. The man's handwriting was as sloppy as his attire, but

  I made it out: Disc = finances of OHSU pediatric wing.

  I tried to pull my concentration back to Thorpe, who was using words

  like ludicrous, preposterous, and farcical. If Dunn Simon was charging

  by the word, he should have checked his thesaurus and added cockamamy

  and wacky while he was at it.

  Why had Clarissa kept the financial records from Townsends hospital

  wing in her safe deposit box? Maybe they were his backup records and

  she was keeping them for him, but would she really tell him about a

  safe deposit box that contained a video of Caffrey and her at a motel?

  If she wasn't holding them for Townsend, why was she holding them at

  all? It didn't make any sense.

  "Ms. Kincaid. Does your office have a position on this?"

  "I'm sorry, your honor. On what?"

  Slip looked at me like I'd lost my mind.

  "Well, as I understand it," the judge said, "Mr. Thorpe's principal

  argument is that the defense's argument is one big paranoid delusion

  and that, in any event, Mr. Szlipkowsky has failed to draw any kind of

  nexus between the folks at Gunderson and this supposed frame-up.

  Correct me if I'm misstating it, Mr. Thorpe, but he's essentially

  arguing that the starting point for the alleged conspiracy would have

  to be knowledge of Mr. Jackson's animus toward Ms. Easterbrook. And

  I haven't heard the defense articulate any reason to believe that the

  Gunderson company would have that knowledge. It happened to have a

  case decided by her, but so do hundreds of other companies doing

  business in the city. Before I rule, I'd like to hear where you stand

  on the motion."

  Something about what she said was bothering me, but I needed to get the

  plan back on track. "Obviously, this is a matter for the court's

  discretion, your honor, but it strikes me that the issue we're looking

  at is different from the one your honor ruled on last Friday. The

  previous subpoena struck me as an attempt to introduce inflammatory

  information about possible activities in the victim's personal life,

  without ever tying those activities concretely to the victims murder or

  to Mr. Szlip-kowsky's client.

  "Here, in contrast, Mr. Szlipkowsky has provided specific information

  that appears to raise questions that I would be inclined to pursue at

  least in some form prior to trial. Let me be clear: I am still

  confident of our case against Mr. Jackson. But what I don't want to

  see is a situation where we'll be dealing with these same issues down

  the road at trial in front of a jury who might be misled or confused.

  Quite frankly, if the court were to grant Mr. Thorpe's motion, my

  office might be inclined to serve grand jury subpoenas instead. In the

  event that possibility affects the court's exercise of its discretion,

  I thought I should be forthright about my intentions."

  "Well, thank you, Ms. Kincaid, for your candor. It certainly wouldn't

  make sense to have the witnesses leave, just to return tomorrow for a

  grand jury session."

  While I was getting brownie points for my honesty, Thorpe was working

  his way into the doghouse.

  "That doesn't make any sense at all, your honor. If you decide to

  quash these subpoenas, you should quash any subpoenas that Ms. Kincaid

  might order in the future."

  Prescott, Slip, and I just looked at him. In addition to being rude,

  Thorpe's statement was simply wrong. Courts live with the fiction that

  grand juries are independent of the judicial and prosecutorial systems.

  Convincing a judge to quash a subpoena to appear in court was one

  thing; convincing her to mess with the grand jury was quite another.

  While Prescott corrected Thorpe's misunderstanding, I thought more

  about what was bothering me. Prescott was right. If Gunderson was

  behind this setup, he had to have known about Jackson's letters.

  My immediate attention, though, was on the subpoenas. Thorpe hadn't

  thrown in the towel yet, and we were moving into part two of the plan,

  the good part.

  "With all due respect, your honor" lawyers should never say this, since

&nb
sp; what they're essentially saying is I have no respect for you, your

  honor "I don't see how the court's decision about this hearing should

  be affected by something that the district attorney may or may not do

  in a separate grand jury proceeding. And if we're going ahead and

  playing that game, the reality is I can always instruct my clients to

  invoke their Fifth Amendment rights either today or at a subsequent

  grand jury hearing."

  Oh, yeah. As I'd hoped, Thorpe had been the first to mention the Fifth

  Amendment. It was time for my move.

  "Actually, your honor, on that point: I don't want to get too far ahead

  of ourselves here, but in the event Mr. Gunderson and Mr. Minkins are

  ordered to testify either today or at a subsequent grand jury hearing

  it strikes me that it may not be appropriate for the two of them to

  share counsel." I looked down at a PPDS printout. "I see here that

  Mr. Minkins is on probation for forging a check. His probation

  officer might not be happy about a failure to cooperate with a murder

  investigation or gambling, for that matter, since Mr. Thorpe has said

  his client was in a casino just eight days ago. As a matter of fair

  process, Mr. Minkins should at least have an attorney who is thinking

  solely about Mr. Minkins's best interests."

  They had good poker faces, but I could've sworn that Gunderson looked

  afraid, and Minkins looked mad. And they both looked nervous.

  Prescott must have seen it too, because she suddenly displayed a

  decisiveness I'd never before witnessed in her. "I am not going to

  quash the subpoenas. Although I granted a similar motion filed by a

  different witness last Friday, I believe that the defense's desire to

  question Mr. Gunderson and Mr. Minkins is distinguishable. The

  questioning does not raise the same issues of privacy implicated by the

  earlier subpoena, and the defense has articulated a plausible nexus

  between these witnesses and this offense. Although it is not a nexus

  that has in any way been proven, I believe the defense should be

  entitled to at least question these witnesses further to determine

  whether they possess relevant exculpatory evidence. As for potential

  harm to the witnesses, Mr. Thorpe, you said so yourself: They can

  always invoke if they believe the questioning is likely to incriminate

  them."

  Thorpe was clearly stunned, but he did his best to cover. "I'd like a

  moment to confer with my clients, your honor, to determine how they

  would like to proceed."

  "Of course. We'll reconvene here in ninety minutes. And, with respect

  to Ms. Kincaid's observations about the appropriateness of joint

  representation, if either of your clients wishes to speak to me in

  chambers about that matter, I will be available and can assist in

  obtaining substitute counsel if necessary. Ms. Kincaid, you might

  want to stay nearby, in the event you're needed."

  Prescott had gone one step further than I expected. If Min-kins had

  missed the point of my earlier comments, Prescott's certainly set the

  stage for Minkins to jump ship.

  As we left chambers, Thorpe said something to Roger, who then excused

  himself from Townsend, no doubt so he could accompany his partner and

  Slip's next witnesses back to some conference room at Dunn Simon.

  "Roger, I was hoping we could talk before you leave," I said. "I need

  to speak to Townsend about something."

  "Now's not exactly a good time, Samantha. Jim told me about the stunt

  you pulled back there. I don't know what you're up to, but don't say a

  word to Dr. Easterbrook while I'm gone, or I'll have your bar ticket.

  On my instructions, he's going home."

  I stood by the door and watched them head down the hall. By the time

  they got to the elevator, Jim and Roger were already playing referees

  between Gunderson and Minkins.

  I turned to my favorite flannel-and-cords guy. "Hey, Slip. You

  gamble?"

  Thirteen.

  I won the bet. Minkins called Judge Prescott just forty minutes later

  from a pay phone in the lobby of the Dunn Simon building. Slip had

  guessed it would take an hour.

  I spent some of the time talking to Slip. He gave me a copy of the

  spreadsheets he'd printed out from Clarissa's mystery disc. Based on a

  quick scan, I had to agree that nothing interesting popped out, except,

  of course, the fact that the data had been password-protected in a safe

  deposit box.

  I thought about the security system on the Easterbrook house. Maybe

  they were cautious enough to keep something as innocuous as a backup

  file under lock and key. But would Clarissa really stow a copy of her

  husband's file alongside a video of a tryst with her boyfriend?

  I spent the remaining half hour thinking about everything I had learned

  about Clarissa this week. Based on what I'd heard, it was hard to

  imagine that she'd sell her office to someone like Gunderson. But

  ultimately I could picture it. After all, there had been times when I

  wondered whether the cops and lawyers

  I knew were always squeaky clean. You never know how a person's

  circumstances might affect their decisions. A few years of pushing

  through the morass of boredom I saw in Clarissa's files, and your

  average person might not see the harm if a couple of arbitrary,

  meaningless decisions went the wrong way.

  So what had been Clarissa's circumstances? Maybe she felt guilty about

  her affair and wanted the money if in fact there had been any money to

  make it up to Townsend. Or maybe the money was to help her leave

  Townsend and start a life with T. J. Caffrey.

  Judge Prescott's clerk finally saved me from my aimless speculation

  when she told me about the call from Minkins.

  Prescott handled the stress well. She made a quick call to Thorpe to

  confirm that he was aware of Minkins's decision, then found the nearest

  defense attorney in the hallway to stand in as counsel. The short

  straw went to Lisa Lopez, one of the most liberal cop-haters in the

  PD's office. If you need a defense attorney who can cut through the

  crap and pull a recalcitrant defendant to the plea table, Lopez is a

  pain in the ass. But here, we'd paint the picture of a

  down-on-his-luck chump-change cheat, eager to flip the switch on the

  big bad white-collar criminals in exchange for a walk. Lisa'd be all

  over it.

  Prescott gave Lisa a chance to talk to Minkins alone. I called

  Minkins's probation officer to make sure I wasn't missing anything. The

  PO had never heard of him and told me to do what I needed to do.

  A half hour later, I was sitting with Lopez and Minkins in a jury room.

  Lisa cut to the chase. "Before he says anything, I want full

  transactional immunity," she said.

  She knew that was impossible. Transactional immunity is the brass ring

  of plea deals, and no one ever receives it. Hand that over to a

  defendant, and he can boast of every bad thing he ever did, and you can

  never touch him for any of it.

  "First of all, you know that's not going to happen," I told her. "More

  important, you know that what I'm willi
ng to give him depends on what

  he's got to say."

  "Are you in a position to give him a walk?"

  I was nervous about making a deal without talking to Russell. But if I

  called him now, not only would I look weak, but he might screw things

  up and stop the flow of information. I steeled my courage. This was

  no different than what I'd done hundreds of times before with drug

  informants.

  "Again, it depends on what he's got to say. Can he give me PC for

  murder?" With probable cause for someone other than Jackson, I'd have

  enough to make arrests and obtain search warrants.

  "No," she said without hesitation, apparently surprised that I had even

  entertained that as a possibility. Minkins eyed her suspiciously, and

  I got the feeling that he would've offered to say whatever was

  necessary to save his ass.

  "No promises," I said. "You've got to take your chances or take the

  stand. Up to you."

  Lisa nodded at Minkins, and he said what he had to say.

  "First off, I got nothing to do with anyone dying. Swear to God, to

  this day I still don't know what the fuck's going on. But far as I can

  tell, you think someone set up this Jackson for a fall. As to that

  point, what I can add is that Larry handed me the dude's number a

  couple weeks ago and told me to hire him. Didn't matter what the terms

  were. Gunderson owed a friend a favor, and that meant I had to get

  Jackson on-site. Turned out not to be a problem. The guy jumped at

  it."

  "Did he say who the friend was?" I asked.

  "No clue."

  Most likely a cover story Gunderson gave Minkins just to get Jackson on