In Short Measures

by Michael Ruhlman

  *

  Frank got coffee going and took a shower but couldn’t wait even until 7 a.m. to call Dan. Dan had been asleep. It took several moments for him to develop enough consciousness to wonder why Frank Markstrom, of all people, would be calling him at this hour. Karen sat up in bed, watching Frank pace the room silently.

  “Are you still there? What is it?” Dan said irritably.

  Frank suddenly didn’t know what to say or how to say it or even if he was jeopardizing the situation. He said, “Last night there was a fatality outside our house and I need your advice.”

  In thirty minutes, God bless him, Dan was in Frank’s foyer, Frank holding his large Starbucks while Dan removed heavy snow boots. By the time they were moving through the hall toward the dining room, Karen was descending the stairs, tying her bathrobe, frayed at the collar and belt, newsprint stains on the elbows, which had nearly worn through.

  “Dan, you remember my wife, Karen?”

  “Of course, we met at the Hillers’ party three years ago.” He looked to Karen. “Hi, Karen,” he said, shaking her hand.

  Dan Jeffries appeared hulking due to the slouch of his six-foot-four frame. He had dark curly hair, smooth skin, and vivid green eyes, a handsome man despite the graying whiskers of his unshaven face. He wore a red plaid flannel shirt, tight across his broad chest, sleeves rolled up, over a long-sleeved maroon undershirt, jeans, and heavy wool socks. When he shook her hand he smiled warmly at her, sympathetically.

  The three sat at the dining room table, Frank at the head, Karen and Dan across from one another. Frank, showered and dressed in khakis and an old crewneck sweater, had poured coffee for himself and for Karen.

  “I don’t even know what I can tell you,” Frank began. “Do we have any privilege here?”

  “It probably depends,” Dan said. “So my answer is not necessarily.” He looked askance at Frank, then at Karen, then back to Frank. “Why don’t we go slowly and tell me objectively what happened, who was killed and what were the circumstances. There’s nothing in the paper by the way. So I know nothing.”

  Karen said, “We were driving home last night.”

  “The roads were a mess,” Dan said, “I know. I was out as well.”

  “Our car hit a woman walking in the street. The car spun as we were turning into the driveway and ran her over. She was pronounced dead at the scene.”

  “Okay,” Dan said, nodding. “Frank, were you driving?”

  “No, it was me,” Karen said quickly.

  “Okay.” He looked to Karen, leaned forward on his elbows, his back erect. “What were you charged with?”

  “Negligent vehicular manslaughter.”

  “Okay, that’s good.”

  “Good?”

  “Better than aggravated, and so, better than homicide. Go on.”

  Karen recounted everything. Dan stopped her only once.

  “Why did they breathalyze Frank?”

  “The officer smelled alcohol on him.”

  “But he wasn’t driving.”

  “The officer said he wanted to ‘cover his bases,’ why?”

  “So you did it?” he asked Frank.

  “I didn’t see why not although I didn’t want to, but, well, I was afraid to say no. Should I not have?”

  “What did you blow?”

  “Point nine. Does it matter?”

  Dan shrugged. “It brings up a fourth amendment issue, arguably an illegal search and seizure if he didn’t have cause. But go on.”

  When Karen had finished, Dan said, “You’ve called your insurance?”

  “No.”

  “You need to report this immediately to your insurance company, auto and homeowners.” Then to Karen he said, “They’ll provide you a defense if there’s a civil wrongful-death suit. It depends on what the police and district attorney do.”

  “The district attorney?”

  “Yeah.” Dan leaned back and swigged from his Starbucks cup. “You’re going to need a couple of lawyers. One for the civil case and one for a criminal case.”

  “But I was charged with negligence. Is that a crime?”

  “You were driving a car in unsafe conditions and you have a responsibility not to kill anyone.” Dan raised his eyebrows at her. “Clear?” he seemed to be asking her, as if she were a dim child. “So how this plays out,” he continued, “depends on the police and the DA. Now the tox screen was clear, that is very, very good. If you were over the limit or even under but close, this could move into aggravated manslaughter or even homicide, felonies, both of which carry mandatory jail time.”

  Karen looked to Frank.

  “But if you can show them that it was negligence, that there were no contributing factors beyond the weather—it was dark, there was no reason to expect anyone to be out walking at that hour, and it seems they’re already at this conclusion—then it’s a misdemeanor.”

  Karen reached for Frank’s hand. He looked to her. He looked to Dan and said, “I like the sound of misdemeanor.”

  Dan smiled, a mouth full of big white teeth. “Um, yeah, that’s what you want this to be. A misdemeanor of the first degree, but still a misdemeanor. As long as you stay in that negligent category. Now, Karen, have you ever been arrested?”

  “No, never.”

  “Were you violent, did you give them any difficulties at all?”

  “No, of course not.”

  Dan leaned back in his chair, which creaked from his weight and folded his hands. “A nonviolent, first-time offender cooperating fully, I don’t see that they’re going to change the charge. So when you go to court—”

  “Court?”

  “Well, yeah, Karen. A woman’s been killed. This will be addressed in a court of law, not in a dining room or police station. So it’s important that you get a really good lawyer who can plea it down as low as possible. Hard to say at this point. A lot depends on the family. They may cooperate. They may be vengeful beyond their own civil case. Much of the if-thens are hypothetical at this point. If you’re convicted of manslaughter, even if your lawyer can’t plea it to vehicular assault, you can still avoid prison.”

  “Prison?” they both said.

  “Yeah, it’s a possibility you have to acknowledge, so, as I said, you need … good lawyers. But it’s not necessarily going to play out that way. There’s probation, there’s community service. Again it depends on a lot of things. If your lawyer is good, he or she will go to the DA and say please don’t press hard on this. But Karen, this is not going to come without costs.”

  Frank said, “But it was an accident.”

  Dan snapped his gaze from Karen onto Frank and said slowly, “She has an absolute duty to maintain control of her vehicle. Okay?”

  Frank nodded contritely. Karen was glad Frank called Dan. This was not civilian Dan getting high at a concert. This was a powerful, smart man with valuable information and expertise they desperately needed now.

  “Read about it,” Dan continued, addressing Karen. “It’s available on the Internet. Negligence. It involves duty, breach of duty, causation, and damages. I have a duty to operate my car in a safe manner; if I don’t, that’s breach of duty, and if I cause injury, if that breach of duty results in damage, then I’m negligent.” He paused. “Okay?”

  Again nods from both, like scolded children.

  “So, let’s look at the best scenario, which you have every right to expect. Though the family is an unknown still, right?”

  “Right.”

  “Did you know this person?”

  “No,” Karen said. “We’ve seen her for years, often weekly, sometimes daily in the summer, and a lot in the winter. About our age, a little older maybe. We see her walking on all the streets around here all the time, in all weather.”

  “Okay, so the DA goes with minimal charges and your lawyer can plead it down further, so you’re not going to jail and this can all go away.”

  Heavy exhalations from both.

  “Now, civil. Your insurance will co
ver it to a point. I’m sure you’ve got normal insurance. It’ll be something like three hundred thousand with a $1 million umbrella, that’s your total coverage. Go over that and you have to pay the cost. I don’t think a settlement is going to be over that, piercing that ceiling, but this depends on the victim—does she have family who relied on her income, what the level of her work was, things like that. It depends what kind of earning potential this person had, or if damage is all speculative. So just be aware of it.” He went back and forth from Karen’s eyes to Frank’s. “Questions?”

  Karen spoke: “First things first. Call insurance. Find representation.”

  “That’s correct.”

  Frank, diminished by shame and fear, asked, “Is it possible that you could represent us?” he asked.

  “It’s possible. I’m normally on the plaintiff’s side, but I could be a part of it. Make sure you’re getting the best counsel.”

  Frank exhaled, held his head, staring at the table. He said, “I have a question.”

  “Okay.”

  “Another hypothetical. Let’s just say that, theoretically,” Frank said, now looking Dan in the eyes, “Karen hadn’t been the driver.” Frank glanced quickly to Karen and then back to Dan.

  Karen knew she had conveyed to Frank in an instant her dismay and anger, a rigidity of posture, a tightness in the mouth—my God, why? What are you thinking? And when Frank turned back to Dan, she felt this to be the moment their car sped off the edge of a cliff. Idiot. But she could do nothing, not even reach to clutch his hand and hold him back.

  “Hypothetically,” Frank carried on. “What if I had been driving and then when the police arrived we switched places and Karen claimed to be the one driving?”

  Dan stared at Frank with those dark green eyes. He didn’t blink. When he took his gaze off Frank, he looked at his Starbucks cup. He drank from it. He looked out the dining room window to the gathering blue light.

  But only for a moment, not even long enough for Frank to register regret at having asked. He turned his head back toward Frank again.

  “As your friend …” Dan looked away, then back to Karen, then to Frank. He shook his head at nothing and snorted hard. He leaned in close to Frank, on the edge of uncomfortably close, his green eyes unblinking. “As your friend, I’m going to tell you, that’s a crime. That’s a crime. An ongoing crime. And as an officer of the court, if I have knowledge of an ongoing crime, I have a duty, one, to advise you to stop doing that crime. And two, to alert the authorities of an ongoing felony.”

  The power that Karen had felt moments ago emanating out of the intelligence of Dan, power that could protect them, had just reversed to a powerful sense of menace. As though Dan’s actual personality had changed from bright to black, angel to serpent, as if suddenly possessed. Karen watched Frank and knew that he, too, realized he’d been a fool to go this far. Jesus, they didn’t know anything about Dan. Dan was married, he had kids, but how many or their ages, Frank probably didn’t even know, and she certainly didn’t. They bumped into one another socially, but they didn’t know a thing about this man or who he’d become, if he was good or bad, zealous or easygoing, honest or dishonest. He’s an ambulance chaser, for God’s sake. Karen thought, He can now find the victim and go after us. Jesus, that’s what he does.

  Frank held Dan’s gaze as strongly as he could.

  “I am not your lawyer and not your confessor, okay?” Dan said.

  Each time Dan said okay, he waited. Dan wanted some actual acknowledgment that they understood every word. “If what you are telling me is true, I would have a problem.” He nodded once. “So, I very much hope that this is not the case and that that was a purely hypothetical question because you are curious about the law. Because as your friend, I don’t want to be in that situation.”

  “Is Karen’s case something that you could handle for us?” Frank tried to end it there, which, in its lameness, pulled the strings tighter.

  “Well, I could have been a part of it, as I said, but given certain … hypotheticals, I’m going to give you the name of a very good criminal defense lawyer.”

  Dan looked out the window. He stretched the fingers of his left hand and made a fist, squeezing the fist tightly three times. He turned back to Frank and said, “I’m going to repeat this, Frank. I seriously hope that your hypothetical is not true. But you have not confessed anything to me.”

  “It was purely hypothetical,” Frank said, nodding.

  “Okay. Then since you’re curious about matters of the law, I’m going to tell you what would happen.

  “This situation changes from negligent manslaughter to aggravated vehicular homicide, with a mandatory prison sentence. You’d lose your license forever, which would be the least of your problems. If intoxication were involved, you would have problems with your insurance, as it moves from a negligent act to an intentional act. With millions to be gained by the victim’s family and their lawyers in civil. It would, in all likelihood, obliterate you financially.”

  He paused for breath, the volume of his voice having risen as his thoughts pieced it all together. “Additionally, it would be a felony to have tried to avoid it in the first place. Conspiracy. It would be an obstruction of justice and a perjury charge. And the wife,” and here he looked at Karen, eyebrows raised, eyes unblinking, “the wife would have the same thing as well. Fraud, perjury, obstruction of justice charges. Minimum. These are multiple and serious felonious offenses that would put both the husband and the wife in a state prison, which are not the relatively safe incarceration facilities maintained at the federal level—I’ve been to the one in Lucasville and it’s not pleasant—and they would likely be there for many years.”

  He shook his head in unrelieved, undisguised disbelief.

  “So, now, here is what I’m going to say. Based on the situation, as I understand it to be, having given you some legal advice, I am not going to take you on as clients. While you have not made a confession, and you’ve given me no evidence of an ongoing crime, everything has been purely hypothetical, I’m informing you that we now have no attorney-client privilege, and I would recommend to you that you do not offer me any privileged information now or ever on this matter. Because if you convey to me any information, I may not be in a position to keep it a privileged situation.” He looked at them both and they returned his intense and knowing glare. “Okay?”

  Both Karen and Frank nodded.

  “I’m going write down a name, and then I’m going to leave.”

  Karen rose urgently from the table to retrieve pen and paper.

  Dan continued. “Just so you know, Frank, so we’re clear on this. If we run into each other at the grocery store, or more likely at a party, I’m going to say, ‘Nice to see you, Frank,’ and I’m going to leave the room.”

  “Okay,” Frank said. And Dan shook his head again.

  Karen gave him a notepad with the word GROCERIES embossed at the top. Dan wrote down the name of a person and a law firm. He set the pen on the notepad and said, “Tell Sharon I recommended you. I hope this all goes away for you. If I can have my coat, I’ll see my way out.”

  Karen, still standing, went to the front closet where Dan’s heavy, unfamiliar canvas work coat hung on a hook. It smelled of sawdust and oil and filled the closet with the odor.

  Frank remained at the head of the table, hands held flat together, index fingers pressed into his lips, and staring blankly ahead and out the window, but did not rise. The day had become bright, the sky a vivid blue. By the time Karen handed Dan his coat, Dan was staring at a framed photo on the hall table.

  “Your kid?”

  “Yes,” Karen said. The photo had been taken last year in their living room, the holiday portrait of a happy family. “Nick, in ninth grade.”

  “Ours are both still in high school.”

  “I’d like to wish you and your family a merry Christmas.”

  “We’re Jewish. We don’t celebrate it.”

  “I’m sorry.” />
  “No need to be.”

  “I’m … sorry for the presumption,” she said, looking down.

  Dan scrutinized her. He seemed to Karen to want to reach out and touch her, the scrutiny so warmly intense. And he did, he stroked her shoulder in a way that made her feel self-conscious about the ratty bathrobe. She looked up at him but couldn’t hold his intense gaze. She felt smudged and ashamed and afraid. He held her shoulder for an uncomfortably long time. He had the power here, and she was afraid of him now. He wouldn’t remove his hand until she looked at him. When she did, he smiled inscrutably at her. He put on the large jacket, zipped it up, the smell of a wood shop drifting over her. He moved to the door in the foyer that led to the vestibule and put his hand on the knob, but then released it.

  He turned to face her. “A conspirator is either a strong conspirator or a weak conspirator, okay?” he said, pausing. “A weak conspirator cobbles together a story that doesn’t add up and so she cannot stick to the story. A strong conspirator is one who sticks to the story, all out, one hundred percent. Plays the part, one hundred percent. Okay? One hundred percent. She sells the story. She sells it to the police, the family of the victim, she sells it to all parties involved, which makes it very hard for the police to break. That’s a strong conspirator. Okay?”

  He paused for one more moment, but she did not move, not even to nod, and then he left. She stood waiting. After about twenty seconds, he slammed the heavy door of the suburban colonial house, rattling windowsills and provoking a faint chime from touching Christmas tree ornaments in the other room.

  It’s Christmas Eve, she thought. How could she possibly bake cookies with Nick as she’d promised? Or dress for the annual dinner at Frank’s mother’s, or attend the Christmas service?

  But she would.

  She turned and stood in the doorway to the dining room. She stared at Frank’s profile. He turned to her, a pleading apology in his watery eyes.

  She didn’t speak, she simply went to her phone, at the kitchen charger, and punched in the name of their long-time insurance agent, so diligent that he himself answered that Saturday morning; she explained what had happened and asked him to notify the appropriate people. The only bad news she learned was that they didn’t have that umbrella coverage Dan had presumed. Given the charge, the agent said he hoped it wouldn’t be an issue—theoretically, the victim’s family could go after everything they had (house, savings accounts, even college savings), but this typically happened only in aggravated cases; he told her he thought they’d be safe. Karen gave him Officer Williams’s name so that he could retrieve what information he needed from the police. Next she called the law office of the attorney Dan Jeffries had written down, one Sharon Talbott. It being a Saturday and Christmas Eve, the offices were closed, so no one would respond until Monday morning; but she left the time, her name, Dan’s name, the charge, Officer Williams’s name, and her need for immediate counsel.