Dachshund Through the Snow

by David Rosenfelt

  She nods. “That’s him.”

  “Thank you, Sergeant. And since we’re on the subject, are you working the Taillon murder case?”

  “I am.”

  “I subpoenaed phone records of Mr. Taillon, and I asked the phone company to get you copies. Is that correct?”

  “Yes.”

  “Did you receive and review them?”

  “Yes.”

  I ask her to focus on the calls that Taillon received, and direct her to the date of Kristen McNeil’s death. She testifies that Taillon received two phone calls from burner phones the day before the murder, and one the night of the murder.

  “Is that suspicious to you?” I ask.

  “Perhaps, but there could be innocent explanations.”

  I nod as if that is reasonable, which it is. “Now please turn to the phone calls Mr. Taillon made during that period of time.”

  She does so, and I ask her to identify two specific calls with the same phone number. “When were those phone calls made, in reference to the death of Kristen McNeil?”

  “One was made seven days prior to the murder, and the other five days prior.”

  “Who does that number belong to?”

  “NetLink Systems.”

  “And did I ask you to call that number today?”

  “You did, and I did so.”

  “Was it the NetLink switchboard?”

  “No, it was the private line for Arthur Wainwright.”

  Just in case the jury is not paying close enough attention, I hammer the point home. “George Taillon called Arthur Wainwright’s private line twice within a week of Kristen McNeil’s murder?”

  “That is correct.”

  I think the jury and everyone else in the courtroom realize the significance of this. What they don’t realize is that they ain’t heard nothin’ yet.

  I made the decision not to prep my next witness.

  I basically told her what I was planning to ask, but did not request answers. I want the testimony to be completely spontaneous; it will be more powerful that way.

  I spend the lunch hour going over the material Hike has come back with. I have to listen to him complain about how slippery the roads are from the snow, and how he almost got killed twice. Once we’re past that, he reveals that as both he and I expected, the information he’s gotten fits exactly with what we hoped for. Now all I have to plan is how to introduce it to the judge and prosecution.

  Before the jury is brought into the courtroom to take their seats, I ask the judge if we could briefly meet in his chambers, lead counsel only. He agrees, and Jenna and I follow him back there. Jenna looks warily at me, for good reason.

  “Your Honor, these are copies of a letter, written by the victim in this case, that I am going to introduce into evidence. The witness who will be testifying is Karen McNeil, Kristen’s sister.” Since Karen, Cynthia, and Kevin McNeil were all present when the letter was found, I gave them the option of which of them would testify. Karen won the vote, three to zero.

  The judge and Jenna take a few moments to read the letter, and Jenna is clearly stunned. “Your Honor, this is outrageous. The defense is claiming that this letter has existed for fourteen years, and they are springing it on us five minutes before the jury would hear it, without having shared it in discovery, as is their obligation?”

  “Your Honor, I say, we have only had it for less than—”

  Jenna interrupts, “And it is not even authenticated. Anyone could have written this at any time.”

  “Thank you for making my point for me,” I say. “Your Honor, we had concerns about its authenticity as well, so we took great pains, at significant expense, to have its legitimacy confirmed by top experts. We are prepared to present their affidavits to that effect, and they are here in the courtroom available to testify if necessary.

  “The salient point is that we literally received their verdicts within the last two hours, far too late to turn it over in discovery. I wish that were not the case, but we did everything properly and by the book.”

  Judge Stiller has two options here. There is no chance he will disallow the letter; he could never prevent blockbuster evidence like this from reaching the jury. He’d be overturned on appeal before the ink on the verdict form was dry. His two choices are to let the trial move forward now, or to grant a continuance to give the prosecution time to study it. I hope he chooses the former, but I can live with either one.

  He surprises me by splitting the difference and coming up with a third choice. He says that we can move forward, but after the testimony, he will grant the prosecution a delay until tomorrow if they want the time to prepare for cross-examination. It seems to me like a reasonable compromise; not so much to Jenna.

  We head back into the courtroom, the jury is called in, and Karen McNeil takes the stand. “We’re calling her?” asks Noah, surprised that the victim’s sister might be a witness for the defense.

  I thought about giving him a heads-up on what is going to happen, but decided against it. Let him enjoy it as it unfolds.

  As I stand, I notice that Cynthia and Kevin McNeil are in the gallery for the first time. They are coincidentally sitting next to Hauser, Arthur Wainwright’s lawyer, who, I have a feeling, is about to put away his notepad.

  I introduce Karen and have her talk briefly about her relationship to Kristen: “We were very close, in age and every other way. We were best friends. I still miss her every single minute of every single day.”

  “Did Kristen ever mention Noah Traynor to you?”

  Karen shakes her head. “No, she didn’t.”

  “What did you do this past Saturday?”

  “I went to my parents’ house.”

  “Why?”

  “My parents haven’t gone through Kristen’s room in all these years. They cleaned it, but never moved or touched her things. They treated it like a shrine; they couldn’t bring themselves to do anything else.”

  “Was Saturday significant in that regard?”

  Karen nods. “They decided to do it, to start the new year fresh. This trial was going to be the turning point that would allow them to move on, or at least as much as was possible. They would be the first to admit that after losing a child, nothing is ever the same.”

  “And you were there to help?”

  Karen nods. “And support them, yes.”

  “Please describe what happened.”

  “Well, we were going through her things, deciding what we wanted to give to charity, what to keep for sentimental reasons … that kind of thing. Then my mother started going through her desk drawers, and she found an envelope.” Karen is starting to choke up as she says this; her emotion and distress are real and palpable.

  “Do you want a minute?”

  She shakes her head. “No, I want to get through this.”

  I go back to the defense table and pick up the envelope and introduce it officially as evidence. Then I hand it to Karen. “Is this it?”

  “It certainly looks like it.”

  “Please open it and take out what is inside.”

  She does as instructed and unfolds the piece of paper.

  “Please read it.”

  She looks at it and starts to read. “‘Mother and Father, if you’re reading this…’” She stops and starts to sob softly. Then, “I’m sorry.… I…”

  “Would it be easier if the clerk read it for you?”

  “No … I’m sorry.… I’ll be okay.” Karen lifts up the letter and starts to read again. “‘Mother and Father, if you’re reading this, then you know I have left home. Please don’t try to find me or contact me; it would put all of us in danger. I have saved a good amount of money, so don’t worry about me.… I can take care of myself. I have had an affair with Arthur Wainwright, but that is not why I have left. It is because I have learned something terrible about him. He knows that I know, and I’m afraid of what he will do. I’m sorry … please try to understand.’” Then, “She signed it, ‘Love you forever, Kris.’
”

  The silence in the courtroom is deafening. I turn and see that Cynthia and Kevin are quietly sobbing, which does not make them unique in the gallery. Herbert Hauser has, in fact, put away his notepad.

  I introduce the affidavits certifying the authenticity of the letter. We have had a handwriting expert confirm that it is Kristen’s writing and a carbon-dating expert confirm by analyzing the ink and paper that it was written well more than a decade ago. He can’t confirm that it was exactly fourteen years, but says that is certainly possible, even likely.

  Jenna opts not to delay her cross-examination until tomorrow. I think it’s a correct decision; she wants this testimony over as soon as possible. She has no way to damage Karen and would look bad doing so even if she could, since Karen is so obviously sympathetic.

  All she can do is confirm that Karen and Kristen were close and then get her to say that Kristen never revealed an affair with Arthur Wainwright to her. It is ineffective at best because Kristen also never revealed anything about Noah Traynor to Karen either.

  When I get back to the defense table, Noah obeys my pretrial admonition not to show emotion, good or bad. He must be jumping out of his skin with happiness, but he’s hiding it.

  I know the feeling. Defense attorneys don’t get many days like this; if we did, I would like working more.

  I can’t get overconfident about this.

  We still have a major hill to climb. In our favor is that Kristen, in her own written words, said that she was having an affair with Arthur Wainwright and that she was running away because he presented a deadly danger.

  That is incredibly compelling, but it doesn’t prove that Arthur did anything. Kristen’s fear could have been misplaced; maybe Arthur did not pose a real threat to her at all. Or maybe he did but never acted on it.

  It is balanced by the fact that ironclad evidence shows Noah Traynor had been at the scene of the crime and had left his blood and skin under Kristen’s fingernails.

  I think we still have to attack this evidence, to tell an alternative story about it, different than the prosecution’s. The only way to do that is to have Noah testify.

  I have an instinctive revulsion at the idea of a defendant taking the stand, but that’s what I am going to recommend here. Fortunately, I have had Hike prepping Noah on the testimony he will give. He wants to do it, and Hike says Noah should do okay. For Hike that is a five-star review.

  I cannot imagine what is going through Arthur Wainwright’s mind tonight. Yesterday he was a well-respected businessman and community leader. Today he has been credibly accused of having an affair with an eighteen-year-old employee, then murdering her to protect some terrible secret that she learned about him.

  Not a good day for old Artie.

  The media is obviously covering the hell out of the day’s events, but I am focused on something that they are not. Kristen said in her letter that Arthur was concealing a terrible secret. It wouldn’t be just the affair; it had to be something else. But what? Whatever that is, it is most likely the same secret that Arrant has been murdering to protect.

  Hike is going down to the jail tonight to meet with Noah one more time and prep him again for his testimony. He will also confirm that Noah still wants to do it; it is totally his call.

  Tonight I am going to go over the mechanics of my side of it. I’m pretty well prepared already, so I’ll take some time to watch the LSU-Clemson game and wonder what the LSU defensive coordinator could possibly have had to do with Charles Arrant.

  Tomorrow I am going to call two character witnesses, friends of Noah’s, and then Noah himself. Then I will rest our case.

  Big day tomorrow.

  Hike and I are sitting at the defense table when Noah is brought in.

  He looks nervous, which makes perfect sense. I wish I knew more about Noah; I wish I knew whether he rises to the occasion under pressure or wilts in the face of it. I’m going to find out that answer at the same time everyone else in the courtroom will.

  “You feeling okay?” I ask.

  He takes a deep breath. “Yeah, I am. I’m looking forward to it.”

  I nod. “Good. You’ll do fine.”

  The bailiff tells us to rise as the judge enters. Then he says whatever he thinks necessary and has the jury brought in. Judge Stiller is prompt and has never kept us waiting.

  Until today.

  Today fifteen minutes go by with no Judge Stiller. It’s almost like he’s a coach calling time-out to ice the kicker about to make the pressure kick; in this case the “kicker” under pressure is Noah. But there is no chance that is happening; something else is going on.

  When the fifteen-minute delay stretches to twenty-five, something significant must undoubtedly be causing this. Sure enough, the clerk comes out of the back where the judge’s chambers are and walks over to first Jenna and then me.

  “The judge wants to speak with you in chambers, immediately,” the clerk says.

  As we follow the clerk, Jenna and I make eye contact. The look on her face says that she has no more idea what is going on than I do.

  The judge is sitting at his desk in street clothes, which in itself is highly unusual. He always looks serious, at least when he’s working, but this time he looks positively somber.

  “Sit down,” he says. “Please.”

  Jenna and I sit down across from him and do the only thing we can do. We wait.

  “I received some information about forty-five minutes ago,” Stiller says. “I’ve attempted to confirm what I could, but some of the details are still unclear. But here is what we know for sure.”

  He takes a deep breath. “At some time during the night before last, probably between midnight and four A.M., Arthur Wainwright drove to a cemetery in Little Falls. He went to his former wife’s gravesite, sat next to the headstone, put a handgun in his mouth, and fired it. He died instantly.”

  Judge Stiller’s words just hang in the air, as Jenna and I sit in stunned silence. We don’t say anything because neither of us knows what to say.

  Judge Stiller picks up the slack. “The reason it took more than twenty-four hours to discover the body is apparently due to the snow that fell on it, plus it was in a secluded area of the cemetery.

  “You are going to have differing views on how this news will or should impact this trial. I suspect that you, Mr. Carpenter, will feel strongly that the jury hear about it. Ms. Silverman, I’m not going too far out on a limb to say that you will oppose that.

  “I also suspect that however it is handled it will impact the manner in which you end your case, Mr. Carpenter. So here is what I have decided to do. Court will not be in session today; we will resume tomorrow. I am going to sequester the jury, effective immediately.

  “Depending on how we proceed, that sequestration will either be for one night or the duration of the trial. So prepare your arguments, file written briefs before the close of business today, and I will see you back here tomorrow morning for oral arguments.”

  Holy shit.

  I know I am going to spend the rest of the day and night preparing my arguments for getting this news in front of the jury, and also deciding whether, if I am successful, I’ll still want Noah to testify.

  But in the immediate aftermath of hearing the news, that’s not what is dominating my mind. What I am feeling is … guilt.

  Arthur Wainwright did not kill himself because of what I did in court yesterday. That could not have happened because he died before Karen testified about the letter. So either his decision was as a result of what I did in court prior to yesterday, or he somehow found out about the letter in advance of my presenting it.

  Either way, I know intellectually that I did nothing wrong, and I also know that I only introduced evidence that was 100 percent true and accurate.

  But the other fact that is 100 percent true and accurate is that I caused the death of Arthur Wainwright.

  Hike handed in our brief yesterday afternoon, moments before the prosecution submitted theirs.<
br />
  The issue in front of us is whether to tell the jury about Arthur Wainwright’s suicide. I’m sure the jurors know that something important is going on because they were suddenly sequestered last night.

  Obviously our defense position is that they should be told, but in addition to wanting that to happen, I also think it’s the right thing to do.

  We’re about to be called into the judge’s chambers for oral arguments, and I’m concerned about how Judge Stiller might rule. If he was leaning toward letting it in, I am surprised that he wouldn’t have just done so yesterday. That he didn’t and instead chose the major step of isolating those jurors indicates to me that he must be seriously considering leaving them in the dark.

  As Jenna and I are walking toward the judge’s chambers, Jenna asks me softly, “What do you think?”

  “I think it’s fifty-fifty. Maybe sixty-forty in your favor. What about you?”

  “Fifty-fifty sounds about right.”

  As soon as we’re seated and the court reporter is ready, Judge Stiller says for the record who is present, where we are meeting, and what the issue under discussion is. Then, “Let’s hear from the prosecution first.”

  “Thank you, Your Honor. Our position is that this news is far more prejudicial than it is probative. The jurors will draw an inference that the suicide is directly related to this trial, and we do not know that to be the case. Even if we did know that for sure, we do not know why he did it. Maybe it was just the embarrassment of being accused, or of it being revealed that he had an affair with an eighteen-year-old girl. Maybe he was dealing with incredible, unrelated stress, or a serious health issue, and this development just pushed him over the edge.

  “Arthur Wainwright is not here to defend his actions with Ms. McNeil, assuming she was telling the truth in her note, or explain the reason that he took his own life. We don’t have anywhere near the knowledge or information to make the explanation for him.

  “We would be entering unchartered waters here, and we cannot take a dead man with us. He cannot speak for himself, and we cannot speak for him. As I said, attempting to do so would be prejudicial to the extent that it would far exceed the probative value.”