Fruits of the Poisonous Tree

by Mayor, Archer

  She smiled wanly and shrugged. “I’m just feeling a little blue. It’s just part of the process. Our talk was good. I know it’s what I’m supposed to do.”

  “Is there anything I can do to make things easier?”

  She raised her hand then and laid it on my forearm. “Not unless you could give me amnesia.” She shook her head, the smile fading entirely. “I think I’ll take a nap. You go work out with your brother.” She paused a moment and then asked, “You’re doing a lot better, aren’t you?”

  “I’m getting there. I still don’t have much stamina, but the strength is coming back. Why?”

  “I was just thinking that I wasn’t doing much good up here anymore. Maybe I ought to go back to Bratt—help Susan out.”

  “Would that make you feel better?”

  She slipped her shoulders from under my hands and turned away again. “I don’t know. I’ll take a nap first.”

  · · ·

  I almost skipped the soaps that day. After my workout with Leo, I returned to my paper piles and began to discover that nostalgia had played no part in my need to review what we’d done. Things no longer felt as solid to me as they had before Vogel stuck me with his knife. I still had no palpable evidence leading me anywhere, but I did have a growing list of questions that needed definite answers.

  None of which eclipsed my concerns about Gail. Her abrupt emotional nose dive shouldn’t have been unexpected. But it reminded me too much of the days immediately following the rape, when she’d been absorbed by her friends, and I’d ended up on the outside.

  My mother turned down the sound before I even reached my chair.

  “So what’s going on?” she asked me bluntly.

  I quoted Gail. “It’s a process that has its ups and downs.”

  She shook her head impatiently. “I know that. Did you talk to her about that idiocy this morning?”

  “I’ve tried… ” I stopped, and thought about the question more carefully, countering with a question of my own. “What about this morning? She’s a politician herself. She may have thought it was a lousy thing to do, but she knows the game.”

  Again, my mother looked disgusted. “I thought you’d missed the point. I could see it by the way you handled things.”

  I rubbed my forehead in exasperation. “What are you driving at?”

  She looked at me closely. “Where’s Gail’s award?” She then squeezed my hand supportively, sat back in her chair, and hit the remote, her message delivered. The earnest murmurings of insincere people filled the room.

  I sat there beside her, stunned by my own shortsightedness. I was no longer in the mood to watch TV; nor did I want to further aggravate Gail by waking her up just to be contrite and make myself feel better. So I did what I’d done for most of my life when the complexities of human nature outpaced me—I went back to work.

  My weeks in a coma had given me distance from the case, allowing my mind to float free of the momentum and prejudice that had grown as we’d gotten closer to Bob Vogel. Now, that passion had been supplanted by an analytical coolness, granting me the chance to play devil’s advocate with many of the clues we’d collected with indiscriminate enthusiasm.

  For example: the rape itself. We had built strong, credible bridges linking Gail’s account, the evidence found at the scene, and Bob Vogel’s MO. My perusal of Tony’s selected documents told me that these bridges had been strengthened by corroboration and tailored for clarity.

  So where was the problem?

  While attempting to fit a person to a crime, police officers are supposed to probe for the loopholes, no matter how flimsy. Much of this falls into the “vagaries of human nature” department, such as, in our situation, the assumption that Bob Vogel had continued to learn from each of his previous assaults, altering the way he blocked his victims’ vision, restrained their movements, and protected his hands by using gloves when he beat them.

  My concern was that we hadn’t questioned hard enough, instead caving in to the weight of attractive evidence and increasingly turning our backs on a significant number of apparently minor questions.

  Such as: Why, after stealthily entering the house and removing his clothes—presumably to help shield his identity—did Vogel climb onto Gail before bagging her head? By so doing, he’d woken her up prematurely and had run the risk of being identified.

  Why did he whisper, when the two of them had never met, and there was no way she’d recognize his voice?

  During the rape, he’d taken the time to go on a rampage, breaking lamps and tearing apart Gail’s drawers and closet. But why had he been so methodical, working his way around the room in a clockwise direction? Why had he spared the fancy TV set—the largest target in the room—and why had he said, “Shit,” when the expensive Mexican plate she’d had hanging on the wall fell and broke? Surely such destruction was the whole point of the exercise. Hadn’t he called her a “snotty god-damn bitch,” implying a sense of social and financial inferiority—a factor which had played no apparent part in Vogel’s previous rapes? It was an odd choice of words from someone whose vocabulary tended to wallow among the truly obscene—a phrase that sounded even vaguely effeminate.

  And what about the means of entry? It had been easy to effect—the simple sliding of a knife blade across a window’s loose lock—but that had been the only such vulnerable window in the house. An unlikely coincidence unless Vogel had been inside before, scoping things out—a supposition for which we had no evidence. Murchison, the glass man, had been a good suspect there, but according to a forensics report from Waterbury—the blood-stained knife found in Vogel’s trailer was a perfect match for the scratch marks on the lock.

  And what about Vogel’s presence in the area shortly before the attack? The neighbor who’d hired him to work on her lawn had positively identified him, but to our knowledge, Vogel had never staked out his intended victims before in that fashion. Furthermore, assuming that he’d set fire to the regular yard man’s equipment so he could legitimately get close to Gail’s house, why hadn’t he gone door to door afterward, pretending to offer his services to others? That simple ploy could have put him right at Gail’s doorstep, and—if he’d properly conned her—might have gotten him inside.

  I hadn’t lost sight of all the evidence we had against Bob Vogel, or of the fact that his own actions, once he’d been accused, had hardly been those of an innocent victim. But I was troubled by what I was finding.

  With the sun having surrendered to the room’s overhead light, and the sounds of dinner being prepared in the kitchen below, I sat back from my research and stared at the floor in contemplation, Tony Brandt’s words of caution echoing in my ears. If you’re going to kick over the apple cart, he’d implied, do it now and don’t be wrong.

  What I needed was a sounding board, and of the two best ones I’d used in the past, one—Tony Brandt himself—was in Brattleboro, while the other was downstairs, slowly drifting away from me on a raft of her own misery.

  18

  I WENT DOWNSTAIRS, lost in thought, rationalizing how my problem and Gail’s might be mutually redressed. I wanted someone to help me untangle—or at least confirm—the questions I’d been struggling with all afternoon. And Gail, as I saw it, needed some mental handhold she could use to help pull herself out of her depression.

  Perhaps mercifully, I never got to put my theory to the test. By the time I walked into the living room, all three of them had been pulled out of the kitchen by the evening news and were fanned out in front of the television in silence. I joined them quietly, standing to the rear, looking over the top of my mother’s head.

  After a brief, noncommittal smile at the camera, the anchorwoman behind the curving desk fixed us all with a serious look. “Earlier today, in Thetford, Vermont, Brattleboro Police Lieutenant Joseph Gunther was presented the State’s Attorneys’ Association’s annual Outstanding Achievement Award. Last month Gunther was stabbed with a knife while apprehending the alleged rapist of Brattleboro Selectw
oman Gail Zigman. Gunther spent three weeks in a coma at the Dartmouth-Hitchcock Medical Center and is currently recuperating at his mother’s home in Thetford. News at Six’s Tony Coven covered the ceremony.”

  The anchorwoman was replaced by a young man in a ski parka standing in bright sunshine in front of our house, a microphone gripped in his hand like a relay-race baton. “The Outstanding Achievement Award was presented by State’s Attorney James Dunn to Lieutenant Gunther on the heels of one of the most publicized sexual-assault cases this state has seen in years—a case still awaiting trial, and which is of particular concern to James Dunn, who is currently in a neck-and-neck reelection bid against Brattleboro attorney Jack Derby.”

  The camera cut to footage of me standing next to a tense James Dunn. My mother was seated between us, and to my other side, cut off by the camera’s tight framing, we could see one of Gail’s arms. Dunn all but speared me with the edge of the plaque and muttered a few words of congratulations before giving my hand a limp shake.

  Coven’s voice continued in the background. “Ms. Zigman made headlines last month because of her insistence not to remain an anonymous victim of rape. Instead, immediately following the alleged assault, she organized and led a candlelight march on the courthouse to publicize her message that rape is only encouraged by the silence of its victims.”

  The screen came alive with a phalanx of police officers escorting a manacled Bob Vogel from a heavily guarded van into an unidentified building, surrounded by a crowd waving placards and chanting.

  “The missing figure in all this turmoil is the accused man himself. Robert Vogel, who was apprehended at the Harriman Reservoir immediately following the stabbing of Lieutenant Gunther—a bloody knife still in his hand—remains in high-security isolation at the Woodstock Correctional Facility, silent and defiant. Neither he nor his attorney, Thomas Kelly, have issued any statements to the press, nor have they responded to any inquiries made of them by News at Six

  Tony Coven reappeared before us. “Off camera, State’s Attorney Dunn stressed that today’s ceremony honoring Joseph Gunther was a simple act of recognition for a public servant who came so close to paying the ultimate sacrifice. Dunn denied that his own tight political race, and the significant role this case might play in his reelection, had anything to do with the timing of the award. News at Six learned, however, that Gunther himself didn’t wish to be so honored and has asked that the presentation of his own department’s Medal of Honor be postponed until sometime after his return to work. For News at Six, I’m Tony Coven.”

  Leo burst out laughing at my sudden celebrity status. “See that, Joey? You’re a hero.”

  But my eyes were on Gail as she pushed herself violently out of her chair and marched out of the room, her back and shoulders stiff with anger.

  I patted Leo gently on the back as I moved around him. “Be back in a sec.” I followed Gail into our bedroom. She’d already pulled her canvas bag out from under the bed and was filling it helter-skelter.

  She didn’t look up as I entered. “I’m going back to Brattleboro.”

  “Could we talk?” I asked, keeping my voice soft.

  “What about? You’re doing fine, and I need to get back to work.”

  “Neither one of us is fine, Gail. We need to sort this out.”

  She packing and stared at me. “What are you doing with those files upstairs? And don’t give me that ‘I wanted to look it over again’ crap. I know you better than that.”

  I could feel my face flush. “It was my case. There were some details I wanted to review.”

  “What details? Are you having problems with what happened? Is it becoming an ‘alleged’ assault to you, too?”

  Her anger was white-hot and all-encompassing, but instead of easing it as I should have, I bristled in turn, finally reacting to a stored-up critical mass of pain and self-denial. I ignored groping for an appropriately soothing response. “We both know you were raped, Gail. But it’s my job to make sure Vogel did it. I’ve got to make sure we go into that courtroom with a rock-solid case. You’re not the alleged victim—he’s the alleged rapist.”

  “He stabbed you, for Christ’s sake, and he raped three other women,” she shouted, her fists clenched by her sides. “Isn’t that enough? Why do you have to pick at everything? That bastard is guilty, Joe—let the son of a bitch hang.”

  “I’ll let him hang when I believe he did it.”

  She stared at me for a moment and then returned to her packing. “Go away, leave me alone. Wrap yourself in your mother and Leo and your hero’s halo, and let me get on with my life.”

  I caught my breath, stung by her reckless, damaging fury. Despite my sympathy for her plight, I was astonished at what it had suddenly unleashed—in both of us.

  I left the room without comment.

  · · ·

  Twelve hours later, I was in the hospital, back under the knife.

  Reacting to both Gail’s blistering departure and my own growing reservations about the case, I’d pushed my training too hard. Consciously, the point had been to get better faster and return to the job; subconsciously, I wasn’t so sure, although the looks Leo gave me as I sat writhing in agony on the way to the hospital told me he wasn’t in any doubt.

  My injury was not severe—a small internal tear, easily remedied. But it ensured a few more days in a hospital bed and took a few notches off the hard-won gains I’d made so far. More important, it put me out of action just when I most wanted to get moving. Tony Brandt’s call, a day later, made me regret my setback all the more.

  “Dunn and Kelly had the status conference yesterday. Kelly asked for a speedy trial—standard enough—but it looks like he’s going to get it. They have a judge and an out-of-county jury all lined up. The trial’s set to begin in three days.”

  It took me a moment to digest what he’d said. A criminal trial, especially a major one, never came up this soon after arraignment. It could in theory—assuming both the prosecution and the defense agreed—but it never actually happened in practice. Not only were delaying tactics so common they’d become routine, but judges and courtrooms were at a premium, booked for many months in advance.

  Normally, as a beleaguered cop who constantly complained about a snail-paced system, I would have been elated for all concerned. Given my newfound qualms, however, this was lousy news. “How come?”

  “There was another change-of-venue case scheduled for the end of the week, complete with judge and courtroom, but they settled out of court about an hour before the status conference on the Vogel case. When Kelly demanded a speedy trial, the clerk offered it as a possibility—almost as a joke. He took it.”

  “So it’s definite?”

  “Dunn couldn’t argue the point. He’d already said he was ready, and if he backed down now, he’d have a hell of a time explaining why. From what I heard, though, he went ballistic when he reached his office. He’s convinced Kelly’s got something up his sleeve.”

  “What do you think?” I asked cautiously.

  “I’m not sure anymore. I’ve never seen anything like this. One thing I do know is that the judge’ll be Waterston, from the old if-she-was-dressed-like-that-she-was-looking-for-it school. Maybe Kelly’s pinning his hopes on that.”

  I didn’t buy it. The judge would probably be a factor in the defense theory, but I respected Tom Kelly’s abilities enough to know there must be more to it. “What about their witness list? Who do they have?”

  Brandt’s voice rose a note. “That was another surprise. Vogel’s the only one on it, which means Dunn can’t depose him, since he’s also the defendant. But Dunn may not even get to cross-examine him, since Kelly isn’t obligated to put him on the stand, so the prosecution’s got no way of knowing what strategy they’ll be fighting. Kelly could claim his client’s innocent, or that he was insane at the time… He could even claim it was consensual sex that got too rough. Whatever he chooses, he’s got Dunn in a pickle, since he won’t be calling witnesses till afte
r the prosecution’s shown its hand.”

  “Has Kelly deposed anyone?”

  “Gail’s the only one he’s listed. You might warn her that he’ll be calling her soon.”

  “She’s gone back to Bratt.”

  I could hear him evaluating the tone of my voice. “I’ll let her know,” was all he said finally. “How long are you going to be on your back?”

  “A few days, maybe—it depends,” I answered vaguely. I was distracted by the sudden thought that Tom Kelly had more up his sleeve than just a mysterious strategy. It was possible that he had certain knowledge of his client’s innocence and needed only Vogel on the stand to prove it.

  “Have you been able to get a reading on Vogel? Any rumors from cell mates or prison guards or anyone else?”

  “Nope. Ever since he blew it with the oil-slick story, he’s been stone silent.” Tony’s voice became guarded. “What’re you after, Joe? Did you find something in those files I gave you?”

  I sidestepped. “I’m just trying to figure Kelly’s strategy.”

  Almost reluctantly, I thought, Tony admitted, “From what I’ve heard, Vogel is feeling no pain. I guess defiant is the word.”

  “Like he expects to stick it to us in court?”

  “If I knew that, I wouldn’t be biting my nails.”

  “Right,” I muttered.

  Brandt tried once more. “I get this feeling you’re holding out on me.”

  I gave in just a hair. “I don’t know, Tony—I’ve got a lot invested in all this. I’m worried I may have been sloppy.”

  His voice was solicitous, but he sounded vaguely relieved. “You didn’t land this guy all by yourself, you know. We all did, and we got him on the evidence—better than a lot of other times. You just need to get back to work.”

  “I guess so,” I agreed, but I knew we had different meanings in mind.

  · · ·

  I returned to Brattleboro four days later, in the middle of the night, just as soon as I’d been able to get out of bed, use the bathroom, and put on my clothes, all without assistance. I knew there was going to be hell to pay from the hospital, whom I hadn’t informed of my departure, but getting back to work had by now become a visceral need. I had to confront theory with reality—doubts with concrete answers—and thus stand with everyone else in their conviction that we’d put the right man behind bars.