“Was there anything in particular that triggered those periods of silence?”
“I’d say when she was frightened.”
“Do you recall anything specific?”
“There was a lot of tension in our house, even before Sashi disappeared. Most of it related to Sashi. But it wasn’t her fault.”
The judge interjected gently. “Ms. Burgette, the question is how do you know that Sashi’s silence was triggered by fear, as opposed to sadness, anger, stress, or whatever? Did you, personally, observe situations in which she regressed into silence in response to fear?”
“Yes, I did.”
Jack followed up. “Can you give the judge an example of such an instance, Ms. Burgette?”
She lowered her eyes and answered in a soft voice. “Whenever Gavin would yell.”
“Yell at Sashi?”
“Sometimes. But not necessarily. Just the yelling,” she said, her voice drifting away. “All that yelling.”
Judge Frederick rose. “Hold that thought, Ms. Burgette. Counsel—in my chambers. Now.”
Jack glanced at Hannah, wondering if she knew what the problem was, but she seemed equally confused. The lawyers followed Judge Frederick to the paneled door behind the bench and proceeded, single file, into his chambers. The judge took a seat behind his desk, and the lawyers remained standing. Jack was in front of the floor-to-ceiling bookshelves. The prosecutor positioned herself beside the draped American flag.
“Exactly what do you think you’re doing out there, Mr. Swyteck?” the judge asked.
The judge’s harsh tone took him aback. “Our evidence is that these phone calls are from Sashi Burgette, and that the silence on the line is consistent with Sashi’s psychological disorder.”
“Really?” he said harshly. “It looks to me like you’re leading an emotionally distraught woman down the path of painting her ex-husband as an abusive father and, quite possibly, a murderer.”
“What? No, Judge. That’s not at all what this is about. The medical records of Dr. Wurster show—and, in response to Your Honor’s ‘yes or no’ question, the state’s expert psychiatrist confirmed—that Sashi Burgette ran away from home on numerous occasions. The new evidence presented at this hearing is that Sashi made three phone calls to her mother after my client was sentenced to death for her murder. We don’t know what kind of emotional trauma Sashi has endured since she last ran away from home, but whatever it is, she has slipped back into a pattern of silence that is triggered by fear.”
“You’re saying that she’s incapable of screaming? Incapable of grunting? If you are, I’m not buying it.”
“Ideally I would bring in Dr. Wurster, the psychiatrist who actually treated Sashi. But he has refused to testify on the grounds that if Sashi is alive, his communications with her are protected by the doctor-patient privilege and only Sashi can decide to waive the privilege.”
“That’s an interesting position,” said the judge.
“I thought so, too,” said Jack. “I believe he has taken that position at the encouragement of Sashi’s father.”
“There he goes again, Judge,” said Carmichael. “Bashing the father.”
The judge raised his arms like a boxing referee. “Enough. Mr. Swyteck, I told you at the outset that we are not going to try this case all over again. The purpose of this hearing is not to suggest that someone else murdered Sashi. The question is whether Sashi is dead or alive. Period. If she’s deceased, your client’s conviction stands. If she’s not, you had better hope that she comes walking through that door right now. Because the evidence you’ve presented is nowhere near sufficient for me to disturb the jury’s verdict of guilty.”
“Is Your Honor denying the petitioner’s request for relief?” asked the prosecutor.
“I’m rejecting any and all arguments that the victim is still alive.”
Jack jumped in. “Judge, there are other arguments in our brief, including very serious challenges to Mr. Reeves’ so-called confession.”
The brief was on the judge’s desk. He quickly thumbed through the table of contents. “I don’t need an evidentiary hearing to decide those arguments. I will adjourn this hearing. You will have my ruling on the remaining issues no later than tomorrow. Is that clear?”
Painfully, thought Jack. “Yes, Your Honor.”
CHAPTER 19
Jack worked late into the evening in Neil’s old “conference room.” The refrigerator behind him burped and gurgled like a dinosaur with indigestion. Jack hardly noticed.
There was little doubt how Judge Frederick intended to rule. The entire Freedom team was scrambling to find a new winning argument before Dylan Reeves’ entire petition was booted out of court and the stay of execution was lifted. Every half hour or so, Hannah, Eve, or Brian would appear in the open doorway, eyes wide with excitement while pitching another “surefire winner.” Jack would pick it apart in seconds, and it would be back to the drawing board. It amazed Jack how the team sustained the energy all these years. They were like his dearly departed golden retriever, who would sit happily and hopefully by the stove each morning, his tail wagging with optimism, absolutely convinced: This is it, today is the day, Jack is gonna make me pancakes!
Hannah walked in and put a bag of popcorn into the microwave. “Working in the kitchen again, eh, Jack?”
“Yeah. It’s cooler in here.”
“No, it’s not. It’s actually the hottest room in the house.”
It was an old house, and Hannah’s father had never called it “the office.” The microwave beeped. Hannah got her popcorn and pulled up a chair at the table.
“You realize that you’re paying us rent to use my dad’s old room.”
She tore open the bag and offered some popcorn. Jack took a steamy handful. “Yes, I realize that.”
“You haven’t gone in there since you moved in.”
“That’s not true.”
“It is true.”
Jack reached for the saltshaker. “Okay. So I haven’t.”
“Why not?”
“It’s complicated.”
“It’s a room in a hundred-year-old house, Jack. The biggest room. The nicest room. But just a room.”
Jack closed his laptop. “It’s not just a room, Hannah. It’s four years of memories. Some great. Some horrible.”
“‘It was the best of dark and stormy nights; it was the worst of dark and stormy nights.’ Is that it?”
Jack smiled. “Your literary references could use a little polish.”
“Sorry, boss. I’m part of the gadget generation.” She tossed a kernel into the air and caught it in her teeth. “Seriously. What are you afraid of? You think Eve and I might padlock you in there and never let you out?”
“You might,” said Jack.
Eve appeared in the doorway. “I got it,” said Eve, and her excitement practically knocked Jack and Hannah off their chairs.
“Okay. Let’s hear it,” said Jack.
She came to the table to make her pitch. “Trial counsel for Dylan Reeves stipulated that Sashi suffered from the ‘inhibited’ form of RAD. That was a huge mistake. He should have hired his own expert to review Sashi’s medical records. That expert might have come to the conclusion that Sashi had the ‘disinhibited’ form of RAD.”
“Where does that take us?”
“The terms are what they imply. A teen with inhibited behavior avoids relationships and attachments with almost everyone. Disinhibited RAD is characterized by indiscriminate sociability, such as excessive familiarity with relative strangers. That’s according to the American Psychiatric Association. And get this: they are more prone to sexually acting out.”
“We’re not going to make that argument,” said Jack.
“Don’t you see, Jack? An effective lawyer at trial would have argued that Sashi had the disinhibited form of RAD. The semen on her panties could have resulted from consensual sex with Dylan Reeves.”
“Except that it didn’t happen that way.”
> “Jack, this is reasonable doubt on the sexual assault, which, in turn, casts doubt on both the murder conviction and the aggravating circumstances that supported the sentence of death.”
“Dylan Reeves admitted to me that he overpowered Sashi with a knife. He says she got away. I have my doubts. I put the odds at fifty-fifty that he raped her that night, murdered her, kept her panties as a ‘trophy,’ and then jerked off onto them Saturday night before he was arrested.”
“I hear what you’re saying. Just let me write up a quick draft of the argument and see what you think.”
“No. We’re not making that argument,” said Jack.
“It’s our best shot to prove ineffective assistance of counsel in violation of the Sixth Amendment.”
“Then we drop the ineffective assistance argument. Sashi Burgette did not consent to having sex with Dylan Reeves. As long as I’m in charge here, we’re not going to play fast and loose with the facts to assassinate the victim.”
“Ooo-kay,” said Eve, rising. She turned and went back to her office.
“Glad to see you’re ‘in charge,’” Hannah said with a tight smile.
Jack took a breath. “I meant on this case.”
His cell rang, and he checked the number.
“It’s Debra again,” he said to Hannah. “She calls every half hour asking for some good news.”
“What are you going to tell her?”
“I don’t know,” he said, and then he answered.
“Jack! Jack!” She sounded completely out of breath.
“Slow down, Debra. What is it?”
“Sashi called!”
CHAPTER 20
Andie was alone at home when her cell rang. It was Jack. He didn’t always love the fact that his wife was an FBI agent. That night, she suspected he did.
Andie wrote fast on a notepad as he relayed everything Debra had told him about the phone call. “Meet me at the field office,” she said. “I’ll have a tech agent access the call data record for her cell.”
“The service provider can’t give it to you without a warrant,” said Jack.
“Yes, it can.”
“No, it can’t.”
Yet another difference of opinion in the marriage of lawyer and law enforcement. “Tell Debra to call her provider right now and let them know that she consents to the FBI accessing her data.”
“That’ll work,” said Jack.
Andie grabbed her keys and hurried out the door. She checked in with ASAC Schwartz by cell while speeding up the express lane on I-95, making sure he understood that the suspected caller was the victim—alleged victim?—in Jack’s case.
“Be careful here, Andie,” he told her. “You don’t want to end up before an ethics review on a possible conflict of interest.”
“We gotta move fast if this girl could still be alive. I know the background on this. I’ll limit my personal involvement to interface with the tech unit till we sort this out.”
“I’m good with that,” he said, and Andie was good with it, too.
She didn’t often use the police beacon in her unmarked car, but the flashing light helped her make it from Key Biscayne to the field office in record time. She went straight to the tech unit. Special Agent Kevin Kusak was seated in front of the computer terminal, already at work on the information she’d forwarded from her car. Kusak was a member of the FBI’s Cellular Analysis and Surveillance Team (CAST), which specialized in cellular records and analysis of cell location evidence. Andie pulled up a chair and sat beside him. The LCD before them was aglow with columns of raw data.
“The call detail record for Debra Burgette’s phone confirms that she did have an incoming call from the number you gave me,” said Kusak. “It was at nine-eleven p.m. and lasted two minutes.”
“Can you attach a name to the incoming number?”
“It’s a burner,” he said, meaning a prepaid cell phone. “Probably purchased for cash by a guy who walked into the local fly-by-night electronics store dressed up like a cast member from Duck Dynasty. No service contract, no way to know who owns it.”
“Just like the three other calls Debra received on Sashi’s birthdays,” said Andie. “Do you have anything on location?”
“Cell tower connection data is coming up now,” he said, staring at the screen. “I had to push to get this without a warrant. Ms. Burgette’s consent to allow us to access data for her cell has nothing to do with data for the prepaid phone.”
“Glad you were able to get it.”
“Keep in mind that it won’t tell you where the prepaid cell phone is right now. This is not a real-time search. It’s historical.”
“I understand,” said Andie.
“Good,” he said. “Some agents come in here expecting too much. Usually it’s the old guys who just last week figured out how to use the HOLD button on their landline. They think that because calls on prepaid cells are transmitted over existing networks, I can give them a street address for each call. It doesn’t work that way. You don’t get the location of the phone. All this tells you is the location of the first cell tower that the call connected to in the network.”
“Which probably is the tower that was closest to the cell phone, but not necessarily.”
“You’ve done this before, then?”
Andie let it slide, but her bet was that Kusak had laid eyes on her protruding belly and assumed that she’d been barefoot and pregnant since the dawn of the cellular age. “Yes. I’ve done this before,” said Andie.
Kusak tightened his focus on the screen, then hit the ENTER button. “Got it,” he said. “The phone was within two-point-eight miles of BellSouth Mobility cell tower number J-62.”
“Where is that?” asked Andie.
“Let me see,” he said, switching screens with a click of his mouse. A map of south Florida appeared with cell towers superimposed. “Unfortunately, it’s a very densely populated area. Anywhere from Sunny Isles Beach in Miami-Dade County almost all the way up to Hallandale Beach in Broward.”
Andie stared at the map, and then it hit her. “Little Moscow,” she said.
“What?”
“When I transferred here from Seattle, the first investigation I worked on was the Lufthansa heist at the airport.”
“I remember it,” said Kusak. “Biggest cash heist ever in Florida.”
“The kingpin in the heist owned a Russian-style restaurant right in the Sunny Isles–Hallandale Beach district. Huge Russian-speaking population there. Everyone from Anna Kournikova and NHL stars to ballet teachers and Mafiya goons. And it’s not just Russians. You have Ukrainians, Belorussians, Lithuanians, Latvians, Moldavians, Uzbeks, Chechens, and on and on.”
“I didn’t know that.”
“You need to get out more.”
“Yeah, no kidding. So, does a possible Russian connection help your investigation?”
“The missing girl—the girl who may have made this phone call—was adopted from an orphanage in Moscow. Her biological parents were possibly from Chechnya.”
“Glad to be of help,” said Kusak.
Andie was about to dial Jack’s number, then stopped. Instead she dialed Special Agent Steve Hidalgo at the Violent Crimes Against Children Unit in Washington. The work never ended in that unit, and her hunch that he’d still be at his desk at ten o’clock at night proved correct.
“Steve, hi. It’s Andie Henning. Sorry it’s late, but you said to call if I had anything for you to follow up on.”
“You have something?”
“I need to conference in my ASAC to keep this kosher. I may even have to drop off the call and let you run with this if Schwartz doesn’t want me involved. But the answer to your question is yes,” she said, glancing again at the map. “I do have something.”
CHAPTER 21
Jack was back in court at eight on Friday morning. Based on the emergency motion filed by the Freedom Institute late Thursday night, Judge Frederick reopened the evidentiary hearing for additional testimony from
Debra Burgette on the possible whereabouts of her daughter.
Jack rose and walked to the podium. The courtroom was less than half-full, but the media had returned in full force. Gavin Burgette was again in the front row of public seating, directly behind the prosecutor. Jack saw no sign of Aquinnah. Debra wrung her hands, waiting for the first question. She appeared no less nervous than she had in her first trip to the witness stand, but she definitely looked more tired. It had been a late night for her and the entire Freedom team.
The prosecutor spoke before Jack could begin. “Judge, I think it would be appropriate to remind the witness that she is still under oath.”
“Are you not awake yet, Ms. Carmichael? That has already been done.”
“Oh, my mistake,” she said.
Jack knew it was anything but a mistake. It was the prosecutor’s calculated reinforcement of an earlier warning that had prompted Debra to tell Jack that she needed her own lawyer: the state attorney prosecutes perjury.
“Ms. Burgette,” said Jack, “yesterday you testified about three telephone calls you received on your cell phone, the last of which came on your daughter Sashi’s twentieth birthday. Have you received any similar calls since then?”
“Yes, I got one last night.”
“Do you recall the incoming number?”
“Yes,” she said, and she repeated it.
“Judge, before proceeding further, I wanted to inform the court that as soon as Ms. Burgette called me, I immediately notified the state attorney’s office and Miami-Dade Police, as well as the FBI. At this time, I would like to offer into evidence a call-data record that the FBI obtained from Ms. Burgette’s service provider which confirms that at nine-eleven p.m. she received a call from the number in question, and it lasted for two minutes.”
The judge took a copy from Jack and inspected it. “Any objection from the state?”
“None,” said Carmichael. “The FBI provided the same report to us last night.”
“The exhibit is admitted. Continue, please, Mr. Swyteck.”
“Ms. Burgette, have you ever received a call from that number before?”
Gone Again: A Jack Swyteck Novel Page 10
