Acts of Malice

by Perri O'shaughnessy

  She just felt it, right in the solar plexus.

  25

  ‘‘GOOD MORNING, COUNSELOR,’’ Jim said. ‘‘Three feet of snow in one night! Wonderful skiing weather!’’

  She had been up until two-thirty the night before talking to the cops about Heidi and thinking about what to do. She had slept until five in a room on the twelfth floor of Circus Circus in Reno, met Tony downstairs, and driven for two hours along barely plowed highways back up into the mountains to the cabin. She had changed clothes, eaten, called Bob at Matt’s, and shown up at court.

  She had been waiting in the courthouse hall for him since eight-thirty.

  She was on the brink.

  ‘‘Let’s go down the hall where it’s more private.’’ She led him around the corner and stopped him.

  ‘‘You look tired today,’’ Jim said. ‘‘Whereas I feel great. It’ll all be over today.’’

  ‘‘There’s something I’ve been meaning to ask you,’’ Nina said.

  ‘‘What?’’

  ‘‘Would you mind taking off that parka you live in?’’

  Surprised, laughing a little, Jim took it off. Underneath, he wore a blue long-sleeved cotton shirt.

  ‘‘Now, how about your shirt?’’ Nina said.

  ‘‘This is hardly the place for that, is it? What’s this all about?’’

  ‘‘Take your shirt off, Jim. Nobody’s around. I want to see your arms. All the way up to the shoulder.’’

  ‘‘Why?’’

  ‘‘Because several weeks ago Heidi told me that you cut yourself on that bathroom mirror.’’

  ‘‘I told you I didn’t break the mirror. Heidi did that.’’

  ‘‘I want to see for myself.’’

  He mashed his parka between his hands. ‘‘Let’s not go there,’’ he said softly, then turned the full force of his gaze on her.

  She tried to ignore the sensation, the threat she felt emanating from those eyes, but she couldn’t. ‘‘I have to see or . . .’’

  ‘‘Or what?’’ He was taunting her.

  ‘‘Or everything changes between us right now.’’

  ‘‘We have a deal, and so far, it’s worked very well. So maybe you want to think twice before you mess with it.’’

  ‘‘Let me see your arms.’’ She didn’t pause between words intentionally. The sentence just came out that way, full of portent.

  He continued to mash his jacket, as if he could make it very very tiny by pressing hard enough. ‘‘Now she believes me, now she don’t,’’ he said.

  ‘‘Show me!’’ she cried.

  ‘‘Fuck you!’’

  ‘‘I saw Heidi last night, Jim.’’

  ‘‘You—you found her?’’ All hand action ceased. The handful of parka unfurled and dropped down.

  ‘‘She wasn’t looking too good. She’s dead, Jim. As you know. I went to the trailer and found her there.’’

  ‘‘What are you talking about?’’ he said. ‘‘What trailer? Heidi wouldn’t be caught dead in a trailer.’’

  And then she saw it, a telltale flickering at the corner of his mouth.

  He thought it was funny!

  ‘‘You’re a psychopath,’’ she said, backing away from him.

  Jim pretended to think about this. ‘‘I don’t believe so,’’ he said. ‘‘I loved Heidi. Psychopaths don’t feel anything. I read up on them. I feel so much love, so much hate.’’

  ‘‘Okay, I’ve had enough!’’ She held up her hand. ‘‘Don’t bother to deny it.’’

  Jim took this in, and she watched the click, click, clicking in his blue eyes as he tried to decide how to handle her, and her information. ‘‘Do the cops know?’’

  ‘‘Of course. I called them right away. They arrived at Pyramid Lake before ten o’clock. I was questioned half the night.’’

  ‘‘And,’’ he said, ‘‘what did you tell them?’’

  ‘‘Masks off now, right, Jim?’’

  ‘‘Whatever you say,’’ Jim said. ‘‘You’re my lawyer.’’

  ‘‘I told them why I was there. I didn’t break the attorney-client privilege, if that’s what you’re wondering. I didn’t help them at your expense. It’s a different state, so you probably won’t be brought in for questioning until Monday.’’

  ‘‘There’s no evidence,’’ Jim said. ‘‘I guarantee that. Nobody’s going to get me for cutting Heidi.’’

  Jabbing like the knife she had never mentioned, his comment took her breath away. ‘‘Why, Jim?’’

  ‘‘This is still a privileged conversation?’’

  ‘‘I haven’t looked it up,’’ Nina said. ‘‘But I believe it’s protected.’’

  ‘‘Then I’m going to take your word for it,’’ he said. ‘‘You’re an ethical lawyer, Nina. I rely on that. And you’re full of surprises, which is why this whole process has been a real Ferris wheel ride. Don’t ask, don’t tell, right? You didn’t really want to know the truth.

  ‘‘Hmm. So, speaking hypothetically, just in case this conversation is not privileged,’’ he said with a small smile, ‘‘why would I kill her? I loved her, right? My guess is, she made the mistake of saying something unforgivable.’’

  ‘‘Such as?’’ said Nina.

  ‘‘That she preferred my father to me. To me!’’

  ‘‘Your father!’’

  ‘‘It wasn’t Alex she was in love with,’’ Jim said. ‘‘It was my father.’’

  Nina tried to take that in.

  ‘‘She told me some crap about how she turned to my father because she was unhappy with me. Bullshit about never knowing love until she met him. She was disloyal and she left me, Nina, but I would have forgiven her almost anything. Under those circumstances, in this little fiction I’m telling you,’’ he said, looking up at her from the window he had been staring out of, remembering his game, ‘‘I would probably even offer to take her back.’’

  ‘‘But she wouldn’t come,’’ Nina said.

  ‘‘No, she wouldn’t. That shouldn’t have come as a shock to me, but it did. Her loyalty meant something once. I really thought, if we could just talk, she might have a change of heart, see how I loved her. And then, I got very, very angry . . .’’

  ‘‘I see.’’ She hung her head and exhaled.

  ‘‘I hate to ruin your fantasy world,’’ Jim said. ‘‘You tried so hard to believe I didn’t do a thing. I loved every loophole.’’

  Nina said, ‘‘You are such a practiced liar. It was hard to believe you could do something so—so—’’

  ‘‘So just. So right.’’

  ‘‘But why? Why Alex?’’

  ‘‘Because my father slept with my wife,’’ Jim said.

  Nina stepped back again. His hatred pushed her back, though it wasn’t directed at her.

  ‘‘My mother left me. I spent years dealing with that betrayal, Nina. I found Heidi and thought I’d be all right. I worked hard at Paradise. For so long I was such a good boy.’’

  He paused.

  ‘‘Then my father—slept—with my wife.’’

  Nina held her hand up to her eyes as if to shield them.

  ‘‘Marianne told me Heidi was sleeping with somebody. I went to ask her, not believing it, and Heidi said it was true. It was my father. Can you believe the extent of the betrayal?’’

  Nina’s hand went to her mouth. She stared at him. ‘‘So—I took Alex away. My father’s a broken man now. He’ll never get over it. That’s the way it should be. Oh, so now you hate the sight of me. But nothing’s changed! You never believed I was innocent. You just wanted to pretend, so you could feel self-righteous about defending me.’’

  ‘‘I did believe you were innocent! For a long time.’’

  ‘‘No. You always held back. You weren’t totally loyal, like you should have been.’’

  ‘‘You tried to use me to find Heidi.’’

  ‘‘Well, pat yourself on the back for not finding her in time. I had to do that myself. Come on. This shoul
dn’t affect our relationship, except that there are no lies between us now. Now get me off and send me on my way.’’

  ‘‘No,’’ Nina said slowly. ‘‘No, I don’t think I’ll do that, Jim.’’

  ‘‘Why?’’

  ‘‘Why? Because you make me sick.’’

  ‘‘So what?’’

  ‘‘I can’t continue.’’

  ‘‘Now settle down. We’ll finish up this hearing today and we both know the judge won’t bind me over. And you and I will be quits.’’

  ‘‘God! Artie! Did you hurt Artie?’’

  ‘‘The shyster in the office upstairs from yours? The one that’s so crazy about that bag of a wife of his?’’

  ‘‘You threatened to hurt his wife?’’

  ‘‘Certainly not.’’ Jim smiled. ‘‘So. Don’t worry. Artie’s been around. He got the message. Discussion closed. We go in there and finish up, and—’’

  ‘‘No, we don’t,’’ Nina said. ‘‘I’m asking for a continuance. I’m going to withdraw. You can see how you do with somebody else.’’

  ‘‘Now, wait a minute,’’ Jim said. He seemed sincerely surprised. ‘‘We already talked about this. We need to get this over with today, so they don’t have time to get it all together. And you can’t withdraw, you’re my lawyer, you know the case, you’re bound to take care of it.’’

  ‘‘No. I’ll say I’m sick or something. You won’t be prejudiced. But I’m not going forward today.’’

  ‘‘Sure you are,’’ Jim said. ‘‘You’re just dying to spend some time with that new blended family of yours, aren’t you? I heard your kid just got in from a trip last night. But it’s still a lonely little place you live in, for a big-shot lawyer.’’

  She stood there, swallowing. He was threatening her family.

  ‘‘I’m only making sure you do your job. Finish the prelim, then they can’t come at me again on Alex. I’m not worried about the Heidi thing. My guess is they’ll find evidence that points to my father in that case. So you just go in there and finish the prelim. If you don’t, I’ll be terribly disappointed. I’ll be violently disappointed.’’

  She closed her eyes.

  ‘‘Well? Are we still in business?’’

  ‘‘Okay,’’ she said, because she had no choice.

  ‘‘That’s my good ethical counselor at law,’’ he said. ‘‘Do your duty. No mistakes now.’’

  She turned to leave.

  ‘‘Oh, Nina. One more thing to show you how much I trust you never to reveal our secrets . . .’’

  He pushed the sleeve up on his arm all the way to his shoulder.

  Scars.

  Barbara approached Nina just before Flaherty came into court and said, ‘‘We heard about Heidi Strong this morning, just before I came in. You found the body, didn’t you?’’

  ‘‘We’d been looking for her, too,’’ Nina said, without a glance toward Jim, who was standing beside her.

  ‘‘If he doesn’t go down for this one, he’ll go down for her,’’ Barbara said, jerking her head toward him.

  Jim sighed and looked hurt.

  ‘‘That’s the thought that will get me through the day,’’ Barbara said, ignoring him.

  ‘‘Her death won’t help you,’’ Nina said. ‘‘You still can’t get her statement in.’’

  ‘‘Well, I’m going to try. You can’t stop me from trying. Flaherty deserves to know she’s dead.’’

  ‘‘It won’t help you,’’ Nina repeated. ‘‘The marital privilege still applies after her death.’’

  Barbara said contemptuously, ‘‘You people are the lowest of the low.’’ She turned her back and went to her counsel table.

  ‘‘Them’s fightin’ words,’’ Jim said. He seemed to have enjoyed the interchange. But she felt the tension in him as intensely as the blue scrutiny of his eyes. He would be watching her every move until the day was over.

  All morning, Nina did her job. Flaherty glanced curiously at her a couple of times as if bothered by something, but she cross-examined the police witnesses thoroughly and carefully. Concentrating was easy with her family at stake.

  All she had to do was her job.

  Collier came in to watch and sat in the back. Barbara stayed angry, although this anger was expressed by no more than a titanium glint in her eye. She tried everything she could think of to convince Flaherty of her position, but every thrust she made, Nina countered. Flaherty knew which way it was going. They all did.

  At the break, Nina said, ‘‘We aren’t going to put on a defense, Jim. We’ll win without Ginger and the others.’’

  Jim said, ‘‘But aren’t they added insurance?’’

  ‘‘No, they’re risks. Barbara’s good, and she’s thrashing about like a wounded eel right now. She could put the wrong question to them, and they’re not going to lie. You don’t need them is what I’m saying.’’

  ‘‘You’re not trying to pull anything, are you, Nina?’’

  ‘‘No!’’ She forced herself to be calm. ‘‘Can’t you see I’m doing the best that I can?’’

  ‘‘You’re kind of halfhearted,’’ he said in a light, teasing tone that wasn’t meant to fool her. ‘‘I’m willing to overlook that,’’ he continued, ‘‘because you know you have to win. How you do it is your business. All right. Now, let’s get back in there and finish it.’’

  Just before the noon hour, Barbara came to the end of her testimony. Her job had been to show probable cause that a murder was committed and Jim was the perpetrator. She hadn’t met that burden.

  Her greatest problem was the complete lack of evidence that Jim would want to kill his brother. Although she did not have to prove motive, all her experts’ talk about patterns and fibers was unconvincing, because there was no evidence that Jim might want to hurt Alex.

  Not that Barbara hadn’t tried. But Kelly’s testimony was out. Gina Beloit, the disgruntled employee who had heard the conversation with Jim’s father about Gene Malavoy, had been neutralized, and nobody else had anything to say. Philip Strong hadn’t been called, because Barbara was afraid he’d support his son, and Marianne wasn’t going to help the prosecution.

  Collier hadn’t stirred in the back all this time, and gradually an idea had formed in Nina’s mind. Her idea depended on Collier, with his intimate knowledge of the law in the case.

  ‘‘I have no further testimony to present, Your Honor,’’ Barbara said at ten minutes to twelve. ‘‘At this time, I move that the Court admit a statement made to the South Lake Tahoe police one day after the death of Alex Strong.’’ Flaherty pulled out the papers.

  ‘‘Old business,’’ Nina whispered to Jim. The moment she had waited for all morning had come.

  She glanced at the prosecutor’s counsel table. Collier was leaning over Barbara’s shoulder, whispering in her ear. Then he turned and walked out of the courtroom.

  Why now? What was he doing? Nina wondered.

  Barbara said, ‘‘The Court should be made aware that Heidi Strong, who has been missing ever since she made this statement, was found last night, her throat cut, in a trailer at Pyramid Lake—’’

  Nina stood up. ‘‘I object to any such representation, Your Honor! It’s not relevant to this case inasmuch as the statement is still clearly inadmissible. The marital privilege continues even after the death of the spouse.’’ She cited a case. ‘‘There’s no need to get into this.’’

  ‘‘But the Court wants to get at the truth,’’ Barbara said. ‘‘This is a fact-finding hearing. The Court can relax the technical rules in the interests of justice.’’

  ‘‘There are good reasons for technical rules, Your Honor,’’ Nina interrupted. ‘‘And the Court can’t relax the rule relating to marital privilege. We claim the privilege. The communication was made in confidence between the husband and wife. Even in the less formal preliminary hearing the privileges of confidentiality hold. Why? Because once the privilege is broken, you can’t repair the break.

  ‘‘As section
985 of the Evidence Code states, the only exception is when the spouse who holds the privilege, waives it. Then the other spouse may testify. In this case, Your Honor, we have never and will never waive that privilege. Let me make myself clear on that point.’’

  She glanced at Jim. He was nodding, pleased. She held her breath. It was up to Barbara now.

  Had she heard what Nina had said? Everything that she had said? Had she heard Nina discuss an exception to the marital privilege? Had she heard Nina’s slight misstatement?

  Had Nina reminded her that there were in fact other exceptions?

  Collier would have picked up on it immediately. Barbara didn’t know the law of the case well yet.

  A fine line appeared between Barbara’s stenciled brows. Nina saw that fine line, willed it to deepen, willed her to open her mouth and say the right thing . . .

  Barbara looked at the clock and said, ‘‘Your Honor, I wonder if we could finish this argument after the lunch break. I have a telephone conference at twelve sharp back in my office.’’

  Flaherty said, ‘‘Mrs. Reilly?’’

  ‘‘We object to stopping now, Your Honor. Miss Banning is on the run and she’s hoping she’ll think something up over the lunch hour. Really, there is no reason to continue. We don’t intend to put on a defense and we are ready to submit this matter for the Court’s decision now. Let’s not drag it out.’’ Now she prayed, Let him be as good as I think he is . . . let him overrule me . . .

  ‘‘Well,’’ Flaherty said. ‘‘I guess we can spare ten more minutes on this after lunch. After all, it’s the second go-round in a murder case. I’m going to adjourn until one-thirty.’’

  Barbara left immediately. Out in the hall again, Jim said sullenly, ‘‘She’s really hanging this up. We should be done by now.’’

  ‘‘I want it over too. I’m doing everything I can. Now, I’m leaving until one-thirty.’’

  ‘‘We could have lunch together. That would be a good idea.’’

  She stuck her chin out and said, ‘‘I’ll do the prelim. But don’t expect me to smile at you, you son of a bitch.’’