Acts of Malice

by Perri O'shaughnessy

  ‘‘Me? I didn’t pay attention to his looks.’’ That was one huge humdinger of a lie, but Jim’s dark face called for it.

  ‘‘Twice, the week before I fired him, he was late. I talked to him about it. The day I fired him, he had left his post. I didn’t know where he was. Shooting crystal in the bathroom was my guess. So I took over his job until he showed up again. Then I took him into my office and terminated him.’’

  ‘‘Did you blame it on Alex?’’

  ‘‘Why do you keep asking the same question? I’ve told you over and over. Of course not. Gina’s lying. She’s got Gene madder than before. Now Gene will be waiting outside the courtroom for me. Gina would like that. He better not try anything. I’ll—’’

  ‘‘It just doesn’t make sense, though,’’ Nina said. ‘‘If you never told Malavoy that, why did he attack Alex in the parking lot on the twenty-second? You know? It’s just a very strange thing.’’

  ‘‘Yeah. It’s strange. That kid has a lot he’s hiding.’’

  ‘‘It’s just inexplicable.’’

  ‘‘Life is inexplicable,’’ Jim said.

  ‘‘And your father never threatened to remove you as manager of the lodge?’’

  ‘‘How many times do we have to go over this? She made that up.’’

  ‘‘Would your father testify to that?’’

  She saw again that resentful look Jim had whenever she mentioned his father. ‘‘My father? You’d have to ask him if he wants to do anything for me. I think he’s going to stay out of it.’’

  ‘‘He could help you on this point. What’s going on between you?’’

  ‘‘Nothing.’’ She asked him several more questions about his father, but Jim wouldn’t add to that.

  Nina pushed back her chair and said, ‘‘Keep your chin up. We’re doing well. I think Collier—Mr. Hallowell’s in trouble. Clauson didn’t do well today, and I don’t think the judge is going to pay much attention to the two ex-employees. They don’t want to bring in your father, as I told you before.’’

  ‘‘Alex died in an accident,’’ Jim said. ‘‘My father shouldn’t be dragged into this too. God, I hope it ends here.’’

  ‘‘It might. It might not. The judge is only looking for probable cause to bind you over for trial. That doesn’t take a whole lot of evidence. But I think— Ginger’s really going to go after the forensic work, and Tim Seisz, our geologist, is going to say that it could have been patterning from the rock striations. He went to grad school at USC, where Flaherty went to law school. Flaherty will listen to him about the patterning evidence.’’

  ‘‘And the fibers?’’

  ‘‘Ginger’s ready to testify that they’re indistinguishable from dozens of shirts of that type sold at Miller’s Outpost.’’

  ‘‘That’s where we always bought ’em,’’ Jim said. ‘‘I’m glad you called and asked me.’’

  ‘‘We should get back.’’ They climbed the staircase. Even though they were running late, no witnesses awaited in the hall, only the usual crowd of news reporters and photographers. The bailiff cleared a way through them into the courtroom.

  ‘‘Where are the witnesses?’’ Nina asked Flaherty’s clerk.

  ‘‘Mr. Hallowell said he’d be a few minutes late. We couldn’t find you to tell you.’’

  Nina raised an eyebrow at this. Back at the counsel table she doodled on her yellow pad, gathering her thoughts. They’d talked to the cops, the paramedics, the coroner, Beloit, and Malavoy . . . Collier wouldn’t bring in Philip Strong because he wouldn’t trust Strong to back up Gina Beloit. He was Jim’s father, after all. Who else should they worry about?

  Collier might have to rest his case now. He knew she had a couple of big scientific guns to pick Clauson apart. She had him on the run.

  Gradually, the reckless high she’d been feeling all day had deflated. Clauson had been a sitting duck, and Collier deserved better witnesses.

  She looked down at the pad where she had been drawing. She had doodled an enormous animal. You could only see the back of it. It had a head on its tail, and its tail was a ski. It was her defective memory of the surrealist painting she kept thinking about.

  The Elephant Celebes, she thought. What are you doing in my case?

  Collier walked in, his face grim. ‘‘Call in the judge,’’ he told the clerk.

  When Flaherty had seated himself on the bench, Collier said, ‘‘I must report to the Court that there has been a change of circumstances which requires me to request a continuance herein.’’

  ‘‘A continuance?’’ said Flaherty. ‘‘What’s going on?’’

  ‘‘I received a phone call from Boulder Hospital about ten minutes ago,’’ Collier said. ‘‘Doc Clauson has suffered a stroke. While driving back to his office, he felt sick. He drove on to the hospital. His physician advises that he’s been admitted. He won’t be able to testify tomorrow.’’

  ‘‘Do you have any other witnesses scheduled for tomorrow? Maybe he could get back in the next day,’’ Flaherty said.

  ‘‘I have no other witnesses, but even so, it sounds to me as if his illness may incapacitate him for some time.’’

  ‘‘Hmm. Well. Under the circumstances, Mrs. Reilly, I suppose I should find out your position on this,’’ said the judge.

  ‘‘We will not agree to any continuance, Your Honor. The statute plainly says that the defendant has a right to have a preliminary hearing within ten days of the filing of the charges, and for that hearing to continue uninterrupted until completed.’’

  ‘‘Yes, yes, of course, but if you don’t choose to extend this minimal professional courtesy to Mr. Hallowell, I will be compelled to dismiss the charges without prejudice, and he’ll be free to refile the charges at his convenience, and we’ll have to start all over again.’’

  ‘‘That’s exactly what I will do,’’ Collier said.

  ‘‘We’ve gotten this far,’’ Flaherty said, frowning. ‘‘I don’t see why you can’t give it a couple of days until we see how the Doc’s doing. Avoid repetition, waste of judicial resources, that sort of thing.’’

  ‘‘I’m sorry, Your Honor, but we will stand on the statute.’’ She was doing what was best for Jim, but she wasn’t proud of herself.

  ‘‘And we will refile the charges, at a time convenient to us,’’ Collier said stiffly.

  ‘‘Perhaps, upon the further review necessitated by this unfortunate event, the district attorney’s office will change its mind about refiling,’’ said Nina.

  ‘‘Not gonna happen,’’ Collier said, without looking at her. ‘‘Your Honor, the prosecution is unable to proceed at this time.’’

  ‘‘You could rest your case, let Mrs. Reilly put on her case, and see how I rule,’’ said Flaherty.

  ‘‘I can’t go ahead without being able to be in close consultation with the county coroner,’’ Collier said. He was right, he would be lost without Clauson, and he was too experienced to sail on without help.

  ‘‘Then I suppose we’ll have to bow to the inevitable. You request a dismissal without prejudice at this time?’’

  ‘‘Yes, Your Honor,’’ Collier said.

  ‘‘Very well. So ruled.’’ Court adjourned. Flaherty left and the clerk handed out the Minute Order confirming that the case of People v. Strong had been dismissed in its entirety.

  Until next time.

  Collier left without comment, four or five reporters with clipboards and notebooks in hand, trailing behind him.

  ‘‘Am I free?’’ Jim said. While Nina finished up her notes on what had just happened, he and Nina were still sitting in the courtroom.

  ‘‘That’s right. All charges have been dismissed. You can even get your bail back. But you might want to wait until we see if Collier refiles the charges within a week. I thought Clauson looked wiped out in court, but— I’d better try to find out how ill he is.’’ Nina wanted time to think about this turn of events. Unsmiling, she packed up her briefcase.

  J
im was beaming. ‘‘You won! You beat them!’’

  ‘‘This round only, Jim. And it was a TKO. We haven’t convinced the D.A.’s office to drop this matter. I think you should assume that they will refile, and we’ll have another prelim in a few weeks.’’

  ‘‘That’s the future. It might never happen. You’ve been great, Nina. Great.’’ He leaned in and gave her a big hug. Though she wanted to feel good for his sake, his closeness reminded her unpleasantly of the day on the mountain at Paradise. She pulled away quickly.

  ‘‘Let’s go out and celebrate. Drink champagne,’’ he said.

  ‘‘Can’t. Sorry. I’ll talk to you soon.’’

  ‘‘You are so fucking good,’’ he said, as if he couldn’t believe it. He was still shaking his head as she practically ran out the door of the courtroom and headed toward the bathroom, where she waited until she was sure Jim was gone.

  She didn’t feel good. She felt nauseated, disgusted, at the whole half-assed proceeding, at her arrogant treatment of the witnesses, particularly Clauson, and at how artificial her defense had seemed to her even as she was pushing it. Granite striations, indeed. She didn’t want to talk to Jim anymore.

  The case against him had fallen apart, and she had done what she could to speed up that process, but there had been no trial of the facts by a disinterested third party. Clauson had not marched back into court to do his damnedest to refute her theories about rocks and fibers. Collier had not had any chance to cross-examine the geologist, or to go after Ginger.

  If there had been a fair fight and Flaherty had dismissed the case, she would have relaxed and said to herself, yes, thank God, he’s probably innocent, Flaherty thinks so too. Or even if Flaherty had bound Jim over, she would have been able to gauge how realistic the defense theories were, to form her own opinion.

  She hadn’t been good. She had been lucky. Too lucky, in a way. So lucky she felt more uneasy than ever.

  She washed her hands, combed her hair, and left, alone. Then, feeling like a phony, she gave the shivering reporters who were waiting by the Bronco a couple of posed smiles and selected word bites for tomorrow’s papers, muttering something about vindication.

  17

  ‘‘I’M HERE FOR a consultation,’’ Nina told the spectacles at the desk. It was late, past six o’clock. She had already called Bob to remind him to work on his homework and to put frozen fish sticks into the oven.

  ‘‘I’d like to help you, but he’s about to go home. We could get you in tomorrow morning.’’

  ‘‘I’m tied up tomorrow. Have to see him now.’’

  ‘‘Nina?’’ The white-haired man had been walking past her, toward the exit, carrying the usual heavy case.

  ‘‘Artie, have you got just a minute?’’ Nina said. She must have looked really needy at that moment, because Artie Wilson didn’t even stop walking, he just swiveled and reversed his direction, saying over his shoulder, ‘‘Follow me.’’

  In the shuttered conference room of Artie’s law office, surrounded by the familiar law books and his comforting presence pulling out a chair for her and bringing her a cup of water, she realized just how bad she felt.

  ‘‘How can I help you?’’ he said, as he must say to the criminal clients he represented.

  Artie, a criminal defense attorney with forty years of experience, had just retired to Tahoe from San Francisco a few months before. At least, he had expected to retire, but he quickly wearied of playing golf and drinking with his fellow retirees at the Chart House, so he had opened up an office in the Starlake Building just above Nina’s on the second floor. He loved Mexican food and talking law, and they had fallen into the habit of eating lunch together several times a week.

  ‘‘It’s a case I have. I need to consult you,’’ she said.

  ‘‘Sure.’’

  ‘‘I’ll pay you.’’

  ‘‘No need.’’

  ‘‘So there won’t be any confidentiality problem down the road. You know.’’

  ‘‘Okay. Pay me. I’m listening.’’

  ‘‘Well, I just got all the charges against Jim Strong dismissed today.’’

  ‘‘Nice work!’’

  ‘‘Thanks, but I have to tell you, I’m very unsure about this case. For one thing, I’m sure the prosecutor will refile.’’

  Artie liked to skip the anesthetic preludes and go directly for the root, however painful the operation. ‘‘You think he killed his brother.’’

  ‘‘I don’t know. That’s what’s bothering me. If I thought he was innocent, I could defend him wholeheartedly. If I thought he was guilty, I’d do the same, to make sure he got a fair trial. But I want to know which it is. I can’t figure it out. It could have been an accident. If it was a murder, someone else could have done it. It’s all tangled up. I have to know if he’s lying.’’

  Artie pondered this. ‘‘Are you ever going to have a clear answer to that question?’’

  ‘‘I don’t see how. He’s not going to change his story, if he’s lying.’’

  ‘‘Why won’t you defend a lying killer? You’ll defend a killer, you just said so.’’

  ‘‘Because—because you see, we’re a team. He turns me into a liar if he’s a liar. The whole thing turns false, into a charade of justice. I look for exculpatory evidence that doesn’t exist, and I assert theories that are hooey—I construct this whole edifice of lies without even knowing it. I—’’

  ‘‘He uses you to defeat justice.’’

  ‘‘Yes, that’s it. I use all my skills, my smarts, everything, in the service of a lie.’’

  ‘‘But that’s our job sometimes, isn’t it?’’ Artie went to the credenza and withdrew an untouched bottle of liquor and two very small silver-rimmed glasses. ‘‘What difference does it make, except that maybe you do a little better job if you think he’s innocent?’’

  She took the glass. ‘‘Bottoms up,’’ he said, and they both tossed theirs down.

  ‘‘Uh . . . uh . . .’’ Nina’s esophagus was afire and her eyes were bulging out of her head. A wildfire swept through her body. ‘‘What is that stuff?’’ she sputtered.

  ‘‘Mezcal. Premium Oaxacan. Made from the agave plant. No worms in the expensive mezcal, don’t worry.’’

  She set the glass down carefully. Slowly, her insides began the first phase of repairs, damping down into a contained burn.

  ‘‘So what do you care if he fools you?’’ Artie said.

  ‘‘Artie, this is a first for me,’’ Nina said. ‘‘With my guilty clients, the evidence against them is usually overwhelming. They don’t have to lie to me or make excuses. It’s easier. I explain that even if they have done what they are accused of doing, I can help with the process, make sure every mitigating factor is considered.’’

  ‘‘You’ve never gone to trial with a client you knew was guilty?’’

  ‘‘Not knowingly,’’ Nina said. ‘‘I’ve handled quite a few appeals where I thought the client was guilty, but the client was sitting in prison in San Quentin or Soledad or someplace and it was all intellectual arguments and filing papers. I did my best, but I always felt confident that the system would work at that level—the attorney general’s office would put up a fight and the court would make a reasoned decision. There had already been a trial. I didn’t have to make up facts—’’

  ‘‘You just had to massage them within an inch of their lives,’’ Artie said. ‘‘Are you making up facts in this case? Is that what you think you’re doing?’’

  ‘‘No! I don’t mean to say that. I’m . . .’’ She thought about it. ‘‘Making up explanations for facts. And the prosecution isn’t fighting back like it should.’’ She explained about the time squeeze she had put on Collier, the late revision to the autopsy report, Doc Clauson’s sudden illness, and Heidi’s disappearance.

  ‘‘It’s like you put the hex on them,’’ Artie said. ‘‘I see your problem. The balance of power isn’t working.’’

  ‘‘Yes, that’s it.’’ />
  ‘‘You feel uncomfortable and want your fetters. You don’t want to be allowed to run amok.’’

  ‘‘Correct.’’

  ‘‘Have another tot. Bottoms up.’’ They drank. The liquor stoked the fire. A shudder ran through Nina’s body. Artie coughed a couple of times. ‘‘Good stuff,’’ he said, wiping his eyes.

  ‘‘Y’know, Nina,’’ he went on thoughtfully, ‘‘we lawyers tend to get too self-important sometimes. We’re very good at taking on responsibilities, and sometimes we imagine that we have a whole lot more responsibility than we actually have. Take your situation. You’re worrying about all sorts of things that aren’t in your bailiwick. You’re just a lowly defense attorney, and your duty is to defend. That’s all. It’s very simple. You’re an advocate, and not for justice, but for your client. If you start taking on other roles like judge and jury you’re not doing your job. Quit worrying. Quit trying to see all sides. Defend your client.’’

  ‘‘I know that’s my duty. I am loyal to the client. I believe in what I do. I like my place in the system. But if other parts of the system are breaking down all around, I have too much power,’’ Nina said. ‘‘I’m just a cog in the machine, but if the machine is shaky, and I just keep blindly doing my cog thing, I could corrupt it.’’

  ‘‘What is a cog, anyway?’’

  ‘‘No idea.’’

  ‘‘So you’re scared, eh?’’

  ‘‘No, I never said that.’’

  ‘‘Then you’re nuts. I’ve been afraid for forty years. After all, we’re closer than mothers to some people whose lot in life is to lay waste to other people.’’

  ‘‘That’s something else. I don’t want to think about that part of the job right now.’’

  ‘‘Listen. Don’t worry. The system has its ways, and some of them aren’t quite straightforward. If Strong did it, he’ll be caught one way or the other no matter how brilliant the defense.’’

  ‘‘I hope you’re right. But—what if he’s guilty? And I get him off?’’

  Artie shrugged. ‘‘Then one guy out of a thousand slipped by,’’ he said. ‘‘It’s the conflict at the heart of our work. Now and then he’s guilty but you can’t get a deal and you have to go to trial, and you find yourself saying things to the jury that are intended to mislead, and that’s the way it goes.’’