Mitigating Circumstances

by Nancy Taylor Rosenberg

  Staying in the chair until the night air burrowed deep in her bones, she looked at the moon and the stars and tried to imagine herself floating there in the dark serenity, far away. Then she walked to the back door and turned the knob. After a few moments of fiddling with it, she realized it was locked. She started beating on the door with her fists and kicking the wood with her feet.

  “Is there anything I can do?” a familiar voice said in the dark.

  Lily looked over her shoulder and saw her neighbor peering over the top of the fence. “No, Ruth,” she said to the woman, “the doors just stuck. I’ll go around to the front. Thanks anyway.”

  Waiting until the woman disappeared, she walked in the moist grass and tried the front door and found it also locked. Finally she discovered a cracked window, removed the screen, and climbed in. All the lights were turned out and the door to the bedroom bolted from the inside. There was no energy left in her body to continue the fight. She felt small and frail, invisible; she felt erased. Taking a pillow and blanket from the linen closet, she curled up on the sofa. “One one-thousand, two one-thousand, three one-thousand,” she counted.

  About to leave for the day, early, due to their appointments at the Ventura Police Department to look at photo lineups of possible suspects in the rape, Lily punched the hands-free button on the speaker phone for what had to be her last call. She hadn’t arrived at the office until almost noon, waking late in the morning on the sofa in the empty house, and she was now trying to wade through the deep pile of cases on her desk and make one last assignment before leaving. The deep voice of Bruce Cunningham was recognizable without introduction.

  “Thought I would let you know what’s going on,” he said hurriedly, excitedly. “I’m heading out now to Moorpark, where they’re digging up a body that fits the description of Patricia Barnes. Seems they were bulldozing for a new housing tract and spotted a leg or something after the first level of dirt had been removed.”

  Lily slammed back so hard and fast in her chair that it slipped backward on the plastic mat. She pushed herself to the desk with the heels of her shoes and grabbed the receiver. “I’ll get one of our investigators over there too,” she said. “I want one of our men present when the body is exhumed.” She then added quickly, “If you get there before he does, try to preserve the crime scene before they destroy it.” Wanting to have him call her at the police station, she hesitated, not willing to disclose her reasons for being there. “Let me give you my home number. Call me around six-thirty or seven. I should be home by then.”

  She rattled off her number and disconnected, swearing she would purchase a cellular phone, her heart jumping and her mind racing. What she wanted to do was get into her car and go to Moorpark, actually be where she could feast her eyes on death brought about by Hernandez. She wanted to smell the putrid odor, lean over the grave and take the cold, lifeless hand and hold it in her own, seal in her mind the bond they had, both of them victims, sisters. Then perhaps she could exonerate herself, free herself from this nightmare of guilt. But Shana was waiting and the fact that Hernandez had murdered Patricia Barnes was still no more than speculation. The body buried in Moorpark might not even be the prostitute.

  She made the necessary call to Investigations and started someone rolling. Then she called Clinton.

  He was huffing and puffing when he answered the phone. “Did Cunningham call you?” she asked.

  “No, I just walked in the office this second. What’s up?”

  “They found a body in Moorpark and it may be Patricia Barnes. He’s on the way now and I have one of our guys responding.”

  “Fuck…“he said, letting the word roll off his tongue and linger. “You had the guy nailed from the beginning.”

  “Don’t get ahead of yourself, Clinton. It might not be her. That’s a virtual dumping ground for homicide victims out there from all over the state.” She paused, trying to read his thoughts, knowing how she would feel in his position. “If this is her, she was already dead when you dismissed, so there was nothing you could do. Hernandez is dead anyway.”

  “But we had him and released him, and I wanted to plead him on a misdemeanor.”

  “All water under the bridge now,” she said, glancing at her watch. “It was only a wild guess on my part in the first place, or woman’s intuition, if there is such a thing. Listen,” she said, “fill Richard in on what’s going on when he gets out of court. I’m leaving now.”

  “No telling what other crimes he could have committed if someone hadn’t killed him.” Clinton was thinking out loud, persecuting himself.

  Concluding with assurances that she would fill him in on whatever developed, she hung up and rushed from the office to pick up Shana. If he only knew, she thought.

  CHAPTER 22

  “Shana,” Lily yelled the moment she walked into the house. “Come on, we’re late.”

  John had a pile of raw hamburger in a big bowl and was mixing it with ketchup, raw egg, and onions. He was making his second favorite dish after roast chicken: meat loaf. When she came through the door, he wiped his red-smeared hands on a paper towel, and Lily thought instantly of blood and severed arms. Shana appeared in the kitchen, dressed neatly in a button-down blouse, a black skirt, and the low heels they had purchased for her to wear to the last dance at school. Her hair was pulled back with a clip at the nape, the way Lily frequently wore her own hair, and she looked more like fifteen than thirteen. Her eyes were solemn.

  “Go ahead and get in the car, sweetie,” she said. “You look so pretty. I just have to run to the bathroom.”

  “Isn’t she gorgeous?” John said, walking over and grabbing her around the waist and hugging her.

  Just as he started to kiss her, she pulled her face away and glared at him. “Stop it. I told you not to do that anymore. I’m too old for that stuff.”

  John stepped back, his mouth open, obviously hurt.

  Exchanging only detached eye contact with him when he looked at her for an explanation of Shana’s behavior, Lily rushed to the master bathroom and closed the door behind her, removing a little bottle from the medicine cabinet. She dropped on her knees in front of the white porcelain commode, feeling nauseous, but nothing happened. Her child was living through the same pain and confusion she had suffered, not knowing why she felt the way she did, uncertain who to trust, isolating herself from other young people. Removing one of the little pink pills, Valium, and tossing it into her mouth, she leaned down to the sink and swallowed it with tap water. There was only one pill left. She would have to get it refilled tomorrow.

  The Ventura Police Department was housed in a brand-new building, on a street named after a sergeant who had been killed in the line of duty: Dowell Drive. Lily recalled when the department had been housed in a couple of trailers, attached to an old run-down building. Now it was all carpet, and each desk sported a computer terminal. The detective met them in the lobby. Lily had known the woman for years.

  Detective Margie Thomas was close to retirement—or beyond, for that matter, probably surpassing the twenty-year mark several years before and electing to stay on as long as she could pass the physical. There was no doubt that this was her life and adjustments following her retirement would be difficult. She was the first woman police officer in Ventura, the first to make detective, and the first to earn the respect of her male counterparts. Her hair was tinted a shade too dark to be flattering; she was heavy in the lower section of her body, making it look like she had an old-fashioned bustle underneath her shirtwaist navy blue cotton dress. With thick, painted-on eyebrows and eyes almost a shade of lavender, she made Lily think of Elizabeth Taylor during her boozy, blubbery days.

  Margie took one of Shana’s hands, sat down on the lobby sofa with her, and just looked her over. “How you doing, doll?” she asked. “Boy, are you a pretty thing. You’ve got your mom to thank for that hair, that’s for sure.”

  Shana didn’t smile and slipped her hand from the detective’s. “I’m doing fine,”
she answered politely. “I’d feel a lot better if you caught him, though.”

  Realizing she had never discussed this possibility with Shana, Lily wondered if she thought about this often, maybe at night in her room before she went to sleep, or in the early hours when she got up long before anyone else. If she could only assure her that he would never hurt anyone again.

  “Okay, this is what we’re going to do today,” Margie said, her voice light and breezy, as if they were going to have fun or something. “I’ve prepared some pictures of men who resemble the man you and your mother described and have backgrounds that make them possible suspects. I’m going to let you sit at my desk, Shana, and look at half the pictures. Your mom will sit in the other room and look at the other half, and then you’ll exchange. If you see someone that resembles the man who attacked you, you write down the number by his name. You may see several faces and not be certain, but that’s okay. Just be sure to write down all the numbers.” She paused and looked at Shana only, aware that Lily was all too familiar with the routine. “If you do see someone, then we can try to get this man in for a real lineup so that you can be absolutely certain.” She stopped and stood, adding, “Any questions and I will be right across the room. Okay?”

  Lily started thumbing through the photos, seeing a number of men shed prosecuted through the years, sometimes amazed that they were back on the street and trying to recall the exact particulars of each case. One face she remembered from years back, noting how he’d aged and recalling the ten or twelve counts of indecent exposure shed prosecuted and plea-bargained down to two counts and ninety days in jail. They called these men “weanie wavers,” and statistics proved they seldom committed more serious offenses. Shouldn’t even be in the lineup, Lily thought.

  After about ten minutes, she was eager to pick up the phone on the desk of the small, glass-enclosed office she was occupying and call Oxnard P.D. to see if she could contact Cunningham. It was too early, anyway, she decided and continued to look at the faces, no longer actually seeing them, letting her thoughts roam.

  Looking at the photos the way they were presented made her think of the proofs professional photographers give their clients to make their selections, and she realized that it had been over a year since Shana’s last portrait. She would have to have one done in another month or so. She glanced through the glass and saw her daughter intently staring at each face on each page at Margie’s desk. Thinking this whole process was a catharsis in many ways for Shana, she was glad that John had called the police. Considering the way things were shaping up, and with the simple fact that what she had done was done and there was no going back, Lily thought that someday she might be able to detach herself from that terrible morning in Oxnard.

  If he had murdered Patricia Barnes in order to prevent her from testifying against him, merely fulfilling that first mission that Lily had suspected all along—to kill her—then he might have followed the same pattern with her and her daughter. Perhaps God had intervened and it was His hand that guided her that night. It was His voice Lily had heard in her mind and not the ghost of her dead father. Recalling the religious fervor of her early childhood, she vowed she would take Shana to the Catholic church one Sunday.

  Deep in thought, she jumped when the door to the small office opened and Margie appeared with Shana. The policewoman was holding something in her hands and she took a seat next to Lily. Shana was ashen and wide-eyed, her hands by her side, an excited expression on her face. Margie opened her mouth to speak, but Shana blurted out: “I found him. I know it’s him. I’m certain. Show her,” she urged, reaching over and pushing Margie’s shoulder. “Show her. She’ll know it’s him too.”

  Lily felt perspiration oozing from every pore in her body and knew that she would be drenched in seconds. Waiting for the heavy pressure in her chest signaling a heart attack, she felt blood rush from her face.

  Margie saw her distress. “My God, you look ill,” she said and turned to Shana with a degree of urgency. “Go and get your mother some cold water from the water cooler—right at the back of the room you were in. And bring some paper towels from the bathroom and soak them in cold water. Hurry, now.” Shana ran from the room.

  “Do you want me to call an ambulance?” she said to Lily, seeing the moisture darkening the pale green blouse she was wearing, watching as beads of sweat dropped from her forehead, over her nose, and down her chin. “Are you having chest pains?”

  Lily tried to monitor her breathing and calm herself. She felt like there was a tight band around her chest and suddenly remembered the shingles. She was just having a panic attack, long overdue. Shana had seen a photo of someone who resembled Hernandez, and she would realize it was the wrong man as soon as she saw him in person. “I’m okay. Just too much pressure, I guess. I’ve even had a case of shingles, so…”

  “I had those too one time,” Margie said sympathetically. “Boy, do they hurt. Nerves. That’s what they said caused it.”

  Shana returned, her mouth tight with concern, carrying the wet towels and a cup of ice water. She handed them to her mother and stood back, watching while Lily wiped her face and the back of her neck, and then left the soggy, cold paper towels resting on her neck while she sipped water from the Styrofoam cup. “I’m fine,” she said, reassuring Shana. “Might even be coming down with the flu or something.” She placed her hand on her forehead as if checking for a fever. “Just give me a minute and I’ll look at the photo.”

  “Relax,” Margie said. “You can even go home and come back in the morning. One more day—”

  “No,” Shana said, her voice louder than normal, insistent, “let her see it now. Then you can put him in jail.”

  The detective turned and took Shana’s hand. “Just give your mom a minute, honey. This has been real hard on her too. Even if your mom agrees that this man resembles the man who attacked you, we can’t just go out and arrest him. You’ll have to see him in a real lineup, and we’ll have to get an order from a judge to arrest him. That’s the way it works.”

  Shana stared impatiently at Lily, impervious to whatever was wrong with her, wanting her to confirm her selection. Lily could see her chest rise and fall visibly with each breath.

  “Okay,” Lily said. “Let’s see the photo.”

  Asking Shana to return to the desk she had been at previously, the detective handed Lily a stack of pages with photos just like the ones she had been looking at before they had entered.

  “Go through each one slowly and don’t respond just because she has told you she saw someone. I told her to remain outside, but she followed me in here. If you do select someone, it should be completely independent.” Seeing that Lily appeared in control, she said, “I’m going to step outside. Come out when you’re through.”

  As she searched each page, she now was really looking, wanting to see the man Shana had seen, certain that he resembled Hernandez but knowing that half of Oxnard resembled Hernandez. She occasionally glanced out the window of the office, looking for Shana. She was out of visual range. Margie had more than likely taken her to the vending machines for a soda or to the rest room. On about the twentieth page of photos, she saw him.

  My God, a dead ringer, she thought, leaving no question as to why Shana had become so excited. Even if he was not the right man, simply seeing his face propelled her back to the fear and humiliation, the degradation of that night. Her pain for what her daughter had suffered was agonizing. The man had an almost identical shape to his face, his eyes, his nose, his mouth.

  Even the way his hair was cut was similar to Hernandez’s. He looked younger, however, and Lily knew he was not the rapist. He couldn’t be. The rapist was dead.

  She took her time and studied his face closely. She recalled how photographs were sometimes miles apart from the actual person. They were one-dimensional, and this man in the flesh, in profile, in body conformation, could look entirely different, she rationalized. Removing the paper towels from her neck, she felt the crisis had passed. Just
go through the motions, she told herself, and even agree that he looks somewhat like the attacker, because it would be absurd to say anything different. So what if the guy had to be yanked in for a lineup? He’d done something at one time or another to place himself in this position. She certainly wasn’t going to worry about some unknown man with a criminal history at this point. Once they saw him, the whole thing would be dropped. Lily would state that he wasn’t the man and that would be it.

  She picked up the package of photos and calmly left the office. Margie and Shana were walking through the doors to the detective bureau, where six desks were lined up, three to a side. It was six-thirty and only one detective was still working, files open, phone in his ear, his feet on the desk. Shana held a Coke in her hand and appeared subdued but anxious. Lily had her finger on the page containing the photo of the man she was certain Shana had picked.

  The three of them met in the center of the room. “I admit, I have one that’s real close, but I’m pretty sure it’s not the man,” Lily said without enthusiasm. Seeing the taut look of frustration in Shana’s eyes, she quickly added, “But it’s real close and worthy of additional investigation.”

  Setting the photos down on Margie’s desk, she turned to the correct page and placed a finger on his face. “Number thirty-six is the one I picked.” Her look was questioning, but she didn’t have to wait long for a response.

  “That’s him,” Shana said, turning to the detective eagerly. Told you. That’s him. Number thirty-six.”

  “Shana, I don’t feel as positive as you. I want you to know that from the start, and remember, I got a better look at him when he was leaving. You were terribly distraught.”