Alibi

by Sydney Bauer

“That’s easy,” said David. “He is probably pissed as all hell Gus won’t have the paternity test results until tomorrow afternoon, and even madder at you for managing to keep the news of Jessica’s pregnancy out of the morning papers.”

  “No.”

  “No?”

  “If he wanted the pregnancy in, it would have been in. A newsworthy leak like that would have hit the front page with one phone call. I don’t know about you, but I’ve never known the Kat to sit on protocol.”

  “Me neither,” said David, his brow now furrowed in confusion.

  “Then ten minutes ago it got even more interesting,” Joe went on. “I got a call from John Nagoshi. He wanted to thank me, and asked me to pass on his thanks again to ADA Katz.”

  “What for?”

  “Apparently we made a joint decision to continue to withhold the public release of the pregnancy until we confirmed paternity. Katz told Nagoshi that he and I appreciated he was a man who has his children’s best interests at heart. He said we agreed it would be best to protect Jessica’s memory, or more to the point, her reputation, by limiting the public’s knowledge of any possible sexual partners she may have had over the past few months. Katz told Nagoshi he didn’t want the media speculating on Jessica’s sexual promiscuity. He told him we decided not to speak of the unborn child until Matheson was confirmed as the father.”

  “But why would he do that?” asked David, thinking on his feet. “The Kat should be busting his balls to get the pregnancy into evidence, and tomorrow’s arraignment would have been perfect—public, high profile.”

  Joe nodded.

  “Even if he doesn’t have the results,” David went on, “Katz could still table it in court tomorrow. It might play better if James is the father, but regardless of whose baby it was, the ADA could still play the ‘boy murders pregnant girl’ card and wring it for all it is worth.”

  “Right again.”

  “So what is he up to?”

  Joe shrugged. “Not protecting Nagoshi’s sensibilities. That much is for sure.”

  David nodded, the slight twinge of a headache now creeping into his temples.

  “Well, thanks for the heads-up,” he said after a time.

  And Joe nodded.

  They stood there for the moment, listening to the shallow hum of the air-conditioning unit, watching James who sat like a specimen in a cage—young, primed, genetically blessed.

  “This kid worth it?” asked Joe at last.

  “I think so,” said David.

  “You going this one alone?”

  “No. Sara’s been here all day, but she left a little while ago to sort things out, clear her decks.”

  “Jones?”

  “Yeah, Jones. She hoped we might be able to hold on to both but . . .”

  Joe nodded. “Not necessarily a bad thing,” he said.

  “No argument there. Besides, Sawyer Jones doesn’t need a lawyer. If anything Katz will be crawling all over him to try to woo him as a witness for the prosecution.”

  “Conflict of interest.”

  “No matter which way you look at it.”

  Mannix nodded again. “That kid creeps me out.”

  “Well, as of tomorrow he will be officially off our books,” said David. “I’m going to need all the help I can get on this one, Joe—Sara, Arthur, Nora and . . .”

  “I’m not here to help, David.”

  “Could have fooled me.”

  42

  In the Commonwealth of Massachusetts all potential defendants charged with a crime are entitled to a speedy arraignment within forty-eight hours of their arrest. In most cases their first court appearance usually occurs within the first twenty-four hours—unless the offender is apprehended over the weekend, in which case he has to sit tight until Monday comes around. The arraignment itself is not intended as a forum to hear evidence, rather to establish the basics. The defendant and his lawyer appear before a judge who reads the charge and informs the defendant of his constitutional rights and the possible penalties involved. The judge then asks the defendant to enter a plea, of guilty or not guilty, before opening the floor to the two main opponents who, more often than not, come out fighting, this first round of fisticuffs dedicated to the issue of bail.

  “Your Honor,” said Roger Katz now parading in front of the packed Suffolk County Superior Courtroom number seventeen. The atmosphere was taut with anticipation, the only disappointment so far coming in the form of a “no-show” from John Nagoshi and his son, Peter who, according to this morning’s news reports, was still recovering in Massachusetts General following an emergency nasal reconstruction. Seventeen was one of the smaller courtrooms in the Superior Court building at Three Pemberton Square, and David had no doubt Judge Isaac Stein had requested it specifically, so as to restrict the voyeurs, limit the press and maintain control of a case that had already triggered a national media frenzy.

  “The Commonwealth vehemently opposes bail in this case for a number of reasons.” Katz raised his perfectly manicured hand to reveal a crisp white cuff, linked by gold monogrammed cuff links, under his charcoal Armani suit. “First of all, the violent nature of this crime, the brutal means by which Mr. Matheson bludgeoned and manually strangled . . .”

  “Objection.” David was up. It was the fourth time he had got to his feet in the past ten minutes, which was extremely unusual in arraignments. “Mr. Matheson has not been convicted of any crime and therefore I would ask the Assistant District Attorney to use the word ‘alleged’ when referring to the crime of which my client has been so wrongly accused.”

  Stein rolled his eyes. David could tell the rigid but fair judge was ruing the day he drew this legal short straw.

  “He’s right, Mr. Katz. Watch your language—and get to the point.”

  “Yes, Your Honor,” said Katz, stealing a quick sideways glance at defense counsel. “As I was about to say, the heinous nature of this crime—warranting the charge of first-degree murder, indicates the level of atrocity of which the defendant is capable.”

  “Judge!” yelled David.

  “I know, Mr. Cavanaugh, he did it again,” said Stein, waving David away. “Mr. Katz, I repeat, this defendant, like all others in this fine country, is innocent until proven guilty. Do I make myself clear?”

  “Yes, Your Honor,” said Katz with a look of humility on his face, a look David knew hid the beginnings of a smile. The Kat was obviously determined to make sure his awestruck audience left this morning’s proceedings with no doubt who the real killer was, and if that meant getting a rap over the knuckles for the odd misuse of language, then so be it.

  “Mr. Matheson openly admits lying to police in the course of this investigation,” Katz went on, “and has the monetary resources to flee the country. He has a large number of international ties with foreign associates, including a close relative in Australia.”

  David was on his feet again. “Your Honor, my client’s Australian connection is not a foreign associate but his mother—who, I might add, is on her way to Boston as we speak. Mr. Matheson currently resides with his father at the family home in Brookline, and his father, respected merchant banker Jed Matheson, is also currently on his way back from a conference in South Africa. My client has no previous record, has been nothing but cooperative with police, and is more than willing to surrender his passport in the event that . . .”

  “Bail is denied,” said Stein, his pale hazel eyes under a bushy canopy of pepper-colored brows now focused on David, obviously ready for further objection.

  “Your Honor . . .” David began.

  “No, I am sorry, Mr. Cavanaugh, but Mr. Katz is right. The very nature of the crime makes bail impossible—foreign associates or not.” This was, David knew, a consolatory dig at the ADA, but denial of bail was denial of bail, compensatory jibe or not.

  “In regards to possible penalties,” Judge Stein began.

  “Your Honor,” Katz interrupted, causing Stein, who had obviously had enough of the endless disruptions
at this morning’s proceedings, to sit even taller in his seat and glare over his bifocals at the now advancing ADA. “Before we proceed to possible penalties, I would ask the court’s permission to readdress the nature of the charge.”

  “I do not understand,” said Stein, his voice now raising a notch. “Murder one is as good as you get, Mr. Katz, so unless you want me to consider reducing the charge?”

  “No, Your Honor. I was actually proposing an increase in the number of homicide charges—from one to two.”

  And that did it. A terrified James said “No” as he grabbed David’s arm under the table. The gallery erupted in a gasp of disbelief. The media scribbled madly onto palm-held notebooks, the judge lifted his gavel and slammed it once, twice, three times, just as a horrified David finally realized exactly what the ADA was up to.

  “Objection!” he yelled, now rising to his feet, aware of his shuddering client beside him. “Your Honor, this is nothing short of preposterous. The court has no record of a second homicide.”

  “Your Honor,” said Katz, “this is the first court appearance in regards to this case. Mr. Matheson was only arrested on Saturday. There has been no opportunity to table this charge earlier—a charge that required sensitivity from the Boston Police and further investigation by the District Attorney’s office.”

  “Get to the point, Mr. Katz,” said an impatient Stein, waving David back to his seat.

  Katz nodded, before taking two swift steps so as to align himself in front of the judge, dead center in the middle of the now captivated room.

  “As you are aware, Your Honor, sometimes, in the interest of apprehending an offender, the police and the District Attorney’s office withhold certain details of a crime from the media and as a consequence from the greater public as a whole. This has been the case in regards to the Jessica Nagoshi homicide—or more specifically double homicide, considering the nature of the information withheld.”

  Shit, said David to himself. He knew Katz was determined to play this card—but had totally underestimated his intent.

  “In short, Your Honor,” a jubilant Katz went on, “Jessica Nagoshi was pregnant at the time of her death, the unborn child inside her—a boy,” said Katz, obviously trying to leach as much pathos as possible from the now horrified crowd. “And when the defendant murdered the mother he destroyed the unborn child’s life as well. It was a double homicide—or, more specifically, a homicide and a feticide. There is no question.”

  The air seemed to suck from the room as the crowd reacted in a simultaneous intake of breath, the resulting exhale releasing itself in sighs of disbelief.

  “Your Honor,” screamed David, who rose so quickly that he knocked his heavy wooden chair backward onto the parquetry floor behind him. “This is insane. There is no law that defines a standard approach to feticide in this state. There is no precedent . . .”

  “On the contrary,” said Katz. “Look at the highly publicized Peterson case. Scott Peterson was convicted of double murder for killing his wife and his unborn child.” Katz was referring to the extremely high profile 2002 homicide of Laci Peterson and her unborn son, Connor. “The jury convicted Peterson of two counts of capital murder with ‘special circumstances,’ and sentenced Peterson to death.”

  “That was in California,” objected David. “And the fetus was eight months old.”

  “Massachusetts 1989,” Katz pressed on over the din. “Commonwealth v. Lawrence. A man was convicted for the murder of a sixteen-year-old girl and the involuntary manslaughter of her unborn child.”

  “The fetus was twenty-seven weeks,” said David.

  “Commonwealth v. Cass, 1984.” Katz was determined. “A Massachusetts court extended the vehicular homicide statute to include a viable fetus.”

  “My point exactly,” countered David. “A thirteen-week-old fetus is a long way from being defined as viable. The law defines fetal viability as the period when an unborn child reaches a stage where it can survive outside of the mother’s body—and that’s at twenty-three weeks at best. There is no way a fetus of thirteen weeks would . . .”

  “Mr. Cavanaugh is correct,” said Katz in rebuke. “But there are no specific laws preventing a state judiciary from considering a nonviable fetus as a human being as well.”

  “This is insane,” yelled David.

  “Enough!” shouted Stein. The judge was losing control of his courtroom, a fact, David knew, that would have the respected adjudicator seething with anger.

  “If prosecution and defense counsel cannot conduct themselves with the necessary decorum I shall have them both removed for contempt,” he said. “And if the gallery continues to interrupt these proceedings with verbal outbursts of impropriety I shall call for their removal as well.”

  The crowd reacted immediately, obviously chastened by Stein’s heated rebuke, but determined not to lose their precious front row seats.

  “Your Honor,” said Katz, his voice now lowering a notch. “I realize this is a new area but the laws of Massachusetts have always had a high regard for the potentiality of human life. Thirteen weeks is early, granted, but a Minnesota court recently ruled in the case of a twenty-seven-day-old embryo—a mere two inches in length—that the question of ‘viability’ is irrelevant to criminal liability under the statute. Instead, the court found that viability here requires only that the genetically human embryo be a living organism that is growing into a human being.

  “In other words, Judge, are we to disregard Jessica Nagoshi’s unborn son just because he was murdered ten weeks before he became so-called ‘viable’? Are we to label John Nagoshi’s grandson as irrelevant just because his potential life was extinguished before he made it to the hallowed twenty-three weeks?” Katz shook his head then, before looking up again and delivering his final kick. “I think not. Because if we do, Your Honor, we are telling the people of this fine state that innocent victims like this unborn child are not really victims at all—indeed that they never existed. But this boy did exist, he did live and he should not be denied justice simply because he never got to see the sun.”

  “Jesus!” said David, not realizing he had uttered this last objection aloud.

  “My chambers,” said Stein, rising quickly to his feet before flipping his billowing black robe over the back of the chair behind him. “Now!”

  David turned quickly to his ashen-faced client, instructing him to drink a glass of water and sit tight until he returned. He then followed Katz toward the corner of the courtroom, the Kat stepping aside to allow David to exit the room before him.

  “After you, Counselor,” he smiled.

  “Get fucked, Roger,” said David under his breath.

  Minutes later they were standing in Judge Isaac Stein’s chambers, the elderly arbitrator now having removed his robe, which lay draped over a nearby dark green leather sofa.

  “What the hell was that?” boomed Stein at last as he paced restlessly behind his black walnut desk. The judge was a tall man who needed no robe to assert his authority in the Superior Court or beyond.

  “That, Judge,” David began, “was a case of the ADA showing a blatant disrespect for the general laws of Massachusetts and for the courtroom over which you preside. It was a reprehensible, pathetic attempt to incite media and public frenzy over a case that already runs the risk of being swayed by the powerful force that is public opinion.

  “His claims are ridiculous, his grandstanding unforgivable. There is no way on earth, in a state that upholds the principles of Roe v. Wade, that the court should consider the termination of this fetus’ existence as feticide.”

  David was referring to the groundbreaking 1973 US Supreme Court decision that ruled most laws against abortion violated a constitutional right to privacy. The decision overturned all state laws outlawing or restricting abortion, thereby becoming one of the most controversial cases in Supreme Court history.

  “As for the cases Mr. Katz referenced in court, all were in regard to viable fetuses of twenty-three weeks or mo
re and—”

  “This case has nothing to do with Roe v. Wade,” interrupted Katz, “which by the way is being challenged by what new studies reveal to be as many as thirty-four of the fifty states. Feticide law differs greatly from abortion cases in that the issue of a woman’s choice is not in play.

  “We are talking about murder, Judge,” said Katz, taking a step forward in an effort to make his point. “The brutal death of an unborn boy who, if James Matheson had not interfered, would have, in all probability, grown to adult manhood.”

  “Your Honor,” countered a now furious David. “For every case Mr. Katz quotes on the viability of feticide, I can refer to ten more that rule a child cannot be termed a human being until it is born alive or, in the very least ‘viable.’ My client has not only had to suffer the injustice of being wrongly accused of his girlfriend’s murder, but now has had to sit through the ADA’s selfishly motivated mantra to use what is more than likely my client’s unborn child as a bargaining chip to secure the maximum sentence.”

  “I can understand Mr. Cavanaugh’s distress,” said Katz. “But in all honesty, this is not about severity of sentence nor about protecting the defendant’s sensibilities. It is about justice.”

  “Ambition, more like it,” said David.

  “Shut up, the both of you,” said Stein. The judge moved in front of his desk, pushing various papers out of his way so that he might perch himself on the front edge to stare the two men directly in the eye.

  “What are you after, Mr. Katz?” he asked after a time. “One count of murder for the girl, and involuntary manslaughter for the unborn child?”

  “No, Your Honor. The Commonwealth calls for two counts of murder one—with the penalty being two life sentences to be served consecutively.”

  “What? That is insane,” insisted David. “Murder one requires premeditation. My client only found out about this pregnancy yesterday. In fact, I was the one who told him.”

  “Matheson is a top-notch law student. He knows how to play the game,” countered the Kat.

  “Not everyone who studies law sees it as a stepping-stone to self-gratification, Roger.”