by David Hosp
Finn paused again, to see if Kozlowski would fill the silence: nothing. “Of course, if he’s guilty and I take the case, and then the DNA evidence comes back as a match, we can drop the guy right then and there. That way, we can feel pretty good that we know the cops got the right guy on this—everybody’s a winner.” Finn wondered whether it was obvious to Kozlowski how badly he wanted to take the case.
Kozlowski flipped up the collar on his raincoat. It was an old, shapeless khaki rag that was great for Columbo impersonations but useless against the New England winter. Finn had gotten Kozlowski a new coat for Christmas the year before—a nice wool/cashmere blend in char-coal—but it had never been out of the detective’s front hall closet. He shoved his hands into his pockets as he arrived at the passenger side of Finn’s car.
Finn unlocked the driver’s side and then paused, looking at Kozlowski drawn up tight against a mean winter breeze. “I’m not taking the case,”
Finn said. “It’s pretty clear that this is bothering you. I’m not sure what it is, exactly, but it’s not worth it to me. Besides, I’d need your help on it, and if your heart isn’t in it, it isn’t fair to Salazar. Better that he have people behind him who are invested.”
“Take the case,” Kozlowski said.
Finn was silent for a moment. “You sure?”
“Yeah. Open the friggin’ door, it’s cold.”
“Why?”
“I told you, it’s friggin’ cold.”
“No. Why do you want me to take the case?”
Kozlowski shook his head. “I’m not buyin’ this guy the way you are. Yeah, he seems okay now, but even if he didn’t shoot Maddy, he’s been in for fifteen years, and nobody spends that kind of time in a place like this and keeps his shit the way Salazar claims to have. He’s conning us, no matter what, at some level.”
“But . . . ?”
“But I was friends with Maddy Steele. I may not be convinced that Salazar is innocent, but I’m not convinced that he’s guilty, either. And if Salazar didn’t shoot Maddy, then the asshole who did is still out walkin’ the streets. That doesn’t sit well with me, and it won’t until I get some answers.” He punctuated his point with his eyes, daring Finn to ask any further questions. “Now open this fucking door before I peel off this ratty piece-of-shit cloth you call a roof and open it myself.”
Finn slipped into the driver’s seat and reached over to unlock Kozlowski’s door, pulling on the handle to open it. Kozlowski grunted loudly as he folded his bulk into the low, narrow passenger seat. “You know,” Finn said as he turned the key and the engine sputtered to life, “you’re really very strange.”
“No,” Kozlowski replied, “mainly, I’m really very cold.”
z
Finn and Kozlowski stopped for lunch on the way back to the office: bangers and mash for Kozlowski and a Reuben for Finn at a local pub in Charlestown. The food was great, but the service left something to be desired, and it was nearly two o’clock by the time they pushed open the door to the old building that housed their offices. Finn had put a down payment on the brownstone with the generous severance he’d taken from the partners at Howery; Kozlowski paid a nominal rent for the use of two rooms in the back.
“Jesus fucking Christ, where have you been?” Lissa Krantz accosted them as they walked through the door. Finn was still adjusting to the way she littered her language with creative obscenities. It wasn’t unusual for the older legal practitioners to season every sentence with a pungent curse or two, but it shocked Finn, coming from Lissa. She was a petite thirty-two-year-old law student at Northeastern, with a lithe body toned from endless hours on treadmills and StairMasters, dark hair and olive skin carefully maintained through regular trips to high-end Newbury Street salons, and shoes and clothes that he was sure cost more than his car. She’d been interning with Finn for eight months, and her legal and organizational effort had been astounding, so Finn was beginning to get over the swearing.
“Lunch, thanks,” Finn replied. “Why, did you miss us?”
“Always.” She fluttered her eyes in flirtatious ridicule. Kozlowski nodded to her and headed back to his office to hang up his coat, closing the door behind him.
“Problem with your contact lenses again?” Finn asked.
“Just trying to be demure,” she replied.
“Try harder, I’m spoken for.”
“Wonder Woman down in D.C., right? Good for you; that seems to be going really fucking well—eight months and I haven’t even met her.”
Finn’s gut clenched, and he hid his gaze in the mail on his desk. “I’m spoken for, all the same.”
“Like I said, good for you. It’s awfully egotistical of you to assume I’d bat my eyes at you in the first place. You’re not my type.”
Finn looked up from his mail. He pointed his finger at himself, then tilted his head and turned his finger around so that it was aimed at the door leading to Kozlowski’s office. “No way,” Finn said. “You’re kidding, right?”
She shrugged. “Some girls like older men.”
“Yeah, but he’s not a man. He’s some sort of prehistoric creature the police thawed out of a glacier in the Arctic Circle a few decades ago and brought back to life to fight bad guys in Boston.”
“Stop it, you’re just turning me on. Besides, scars are sexy.”
“Don’t get me wrong, he’s the closest thing I’ve got to a friend at this point, and I’d take a bullet for him if I thought bullets would actually hurt him. But Tom Kozlowski and romance? We’re not exactly talking about chocolate and peanut butter.”
“Whatever,” Lissa said, turning to her desk, picking up a stack of papers, and dropping them on Finn’s desk. “Here’s the research you wanted.”
“Already done? That was fast.”
She raised an eyebrow at him. “You expected less?” She turned and walked back to her desk, then swung around again. “Are you really gonna take this guy on as a client? Do you have any idea how hard it is to set aside a jury conviction in a criminal case?”
“Not really. That’s why I wanted you to do the research.”
“And I did. It’s really fucking hard. You have to show manifest injustice. Do you know how fucking hard it is to show manifest injustice?”
“Really fucking hard?”
Kozlowski reemerged from his office. Lissa looked at him. “You agree with what the boss is doing?”
“He’s not my boss,” Kozlowski replied.
“Fine,” she said. “Who am I to complain? I’m guessing I’m the most liberal person in the room by a pretty wide margin. I just wouldn’t have pegged you two to be the type to tilt at windmills.”
Finn looked at Lissa, then at Kozlowski, and then back at Lissa. He raised one eyebrow. “I guess we’re all full of surprises today.”
“Fuck off,” Lissa said.
“That’s all I’m saying,” Finn said.
“Jesus fucking H. Christ, that’s all I’m saying.”
Finn went back to flipping through his mail. “You should be a little more careful, taking the name of someone else’s lord in vain. God forbid I was Muslim. How’d you like it if I started taking Moses’ name in vain?”
“Moses is Old Testament and, technically speaking, belongs to both of us, so you’d probably be okay.”
Finn tore open a letter. “Barbra Streisand, then?”
“Bite your fucking tongue.”
“See what I mean?”
“Fine. You should just understand you’ve got an uphill battle. Like Everest kind of uphill. I’ve looked through every case Cavanaugh has been asked to reopen. He’s ruled on twelve of these motions in other cases. Guess how many times he’s let in additional evidence.”
“I don’t want to know, do I?”
“That’s right. Zero. Never.”
“Good thing thirteen’s my lucky number.”
“It’d better be.” She grabbed her purse. “I’m going to get something to eat. Some of us didn’t get a long, leisurely lunc
h today. I’ll be back . . . if you’re lucky.”
The door banged behind her as Finn picked up the stack of research she’d handed him. “She does good work,” he said to Kozlowski after a moment.
“I’m sure,” Kozlowski replied. “She’s still trouble you should stay away from.”
“I’ve got Linda; you know that.”
Kozlowski nodded skeptically. “You had her; I know that. Now I don’t know what either of you have.”
“She left because of the job, not because of me.”
Kozlowski raised his hands. “Don’t get me in the middle of this. I told you when I took this office, I don’t want to have anything to do with whatever happens between the two of you. She was my partner on the force for five years. You’ll never get me to take sides against her.”
“Who’s to say there are any sides to take? Last I knew, we were still together.”
“When’s the last time you talked to her?”
“She called last night,” Finn admitted.
“Did you pick up the phone and actually talk to her?”
Finn shook his head. “I thought about it, though.”
“You thought about it? Seriously? Sounds solid to me, then.”
“We’ll work it out.”
“Good. Until you figure out what’s going on with Flaherty, I’d still stay away from any office romances.”
“Thanks for the advice, but I’m not the one I’m worried about with Lissa.” Finn smiled at the detective maliciously.
Kozlowski laughed. “What is she, mid-twenties? I’m old enough to be her father.”
“She’s in her early thirties. You’re only old enough to be her perverted uncle.”
“Good to know. I’ll keep that in mind.”
“Besides, maybe what she’s looking for is a father figure.”
“If she was, I’m guessing she’d be searching for a good-looking banker who drives a big brand-new Mercedes, not some haggard old ex-cop who drives a ten-year-old Lincoln. I have no doubt I’m safe.”
Finn shrugged. “You never know, do you?”
Chapter Six
Wednesday, December 12, 2007
The Honorable John B. Cavanaugh, at seventy-eight, suffered from a bad back and swollen joints in his knees that made it difficult for him to sit for extended periods of time. His condition had made his already prickly disposition nearly lethal on the bench, and whatever patience he’d had as a younger man was long used up. His thin six-footfour-inch frame had always been imposing, and the slight stoop in his shoulders accentuated the impression that he was continually looking down on the lawyers who appeared before him—an impression that was usually closer to reality than not.
At the moment he was directing his condescension toward Finn and Dobson as they sat at counsel table before him. It made Finn question whether his decision to take Salazar on as a client had been hasty.
“Gentlemen,” Cavanaugh said slowly, looking back and forth between Finn and Dobson on the one hand and Assistant District Attorney Albert Jackson on the other. Finn knew Jackson well from various criminal matters he’d handled, and liked him. He stood nearly six feet tall but was pushing three hundred pounds. Finn had often wondered whether his parents had been aware of Cosby’s cartoon when they’d chosen his name. Jackson bore the inevitable ribbing well, though, and he was one of the better attorneys in the DA’s office.
Cavanaugh cleared his throat before continuing. “I’ve read the briefs, but I’m willing to hear argument. Mr. Finn, it’s your motion; would you care to lead us into the abyss?”
“Thank you, Your Honor,” Finn said, getting to his feet. “As you are aware, we are here today seeking an order requiring the district attorney’s office to turn over skin and blood samples taken from underneath Officer Madeline Steele’s fingernails on the evening she was attacked. We are confident that DNA testing of these samples will definitively show that our client was not the person who attacked Officer Steele.”
“Really, Mr. Finn? You’re confident?” Cavanaugh leaned forward in his chair. “On what is this confidence based? It is my understanding that the evidence at trial included positive identifications, both through the eyewitness testimony of the victim and through fingerprint comparisons. What is it that magically gives you this confidence?”
“Well, Your Honor, the fact that the DA’s office is resisting this motion, for one thing. After all, if Mr. Salazar is actually guilty, the evidence in question should only prove his guilt. Why, then, should the DA’s office oppose this motion so vehemently? In addition, Mr. Salazar has an alibi. At the time of the attack, Mr. Salazar, who was a medical doctor in his own country, was providing medical attention to a woman up the street from his residence. The witness who can confirm that alibi is now willing to come forward and testify. As a result, it is impossible that Mr. Salazar was the individual who attacked Officer Steele. The district attorney’s office is in possession of evidence that could affirmatively establish the guilt or innocence of our client. In the interests of justice, it’s hard to find a reason for this evidence to be withheld.”
Cavanaugh considered this. “Mr. Jackson?”
Albert Jackson stood up. “Yes, Your Honor. What Mr. Finn fails to recognize is that Mr. Salazar has already been given a fair trial and a fair opportunity to demonstrate his innocence. Our refusal to open the door to additional evidence at this time is hardly reflective of any fear that the wrong man is in jail. Indeed, Mr. Salazar’s guilt has already been definitively established by a jury of twelve. A central and necessary principle of our criminal justice system is the finality of a jury’s decision. If we abandon our reliance on that principle, the system would become paralyzed and collapse.”
Cavanaugh sat upright in his chair, his back pain evident. He looked down at Finn. “I have to say, Mr. Finn, that having read the papers, I’m inclined to agree with the prosecution. I see nothing out of the ordinary about this case, and if I were to allow your client a second bite at the apple, how could I deny that same opportunity to every defendant to come into my courtroom with a similar request?”
“First, Your Honor, this case isn’t the same as every other case. There is a witness who is willing to come forward now and corroborate Mr. Salazar’s alibi.”
“Where was this witness fifteen years ago, when Mr. Salazar was on trial? I assume that the defendant was aware of the identity of his own alibi witness at that time, correct?”
“Yes, Your Honor, but at the time the witness was afraid to come forward. She was in the country illegally then, and she was afraid of being deported. Since the trial, she has earned her citizenship, and she is no longer afraid to testify.”
“Mr. Finn,” Cavanaugh said, shaking his head. “The same claim could probably be manufactured by any defendant currently behind bars. It still seems to me that I would be setting a precedent that would allow an opportunity for every person in jail who claims that DNA evidence could exonerate them.”
“And what would be so bad about that?” Finn asked abruptly. He hadn’t planned to join the confrontation on this level, but the words just came out of his mouth, and he could feel the judge’s look harden at the challenge to his authority. Finn was tempted to back off, but he figured he had nothing to lose. “If innocent people are in jail, don’t we have a responsibility to identify them? We’re not asking the state to pay one dime for these tests—tests that were not even admissible in courts in Massachusetts at the time of Mr. Salazar’s conviction. DNA testing has been used to identify hundreds of wrongly convicted—innocent— people in the past few years. I see no reason why the state would resist the opportunity to make sure that every person in its custody is actually guilty, particularly when it comes at no cost to itself.”
“Mr. Jackson?” Cavanaugh invited.
“No cost to itself?” Jackson scoffed. “The district attorney’s office must respond to each of these frivolous motions. This hearing alone is costing the state thousands of dollars in my time and yours, Your Hono
r.”
“Mr. Jackson has a point,” Cavanaugh said to Finn. “Besides, your client was convicted on the basis of eyewitness testimony and fingerprint evidence. How do you explain that?”
“First, Your Honor, as to the state’s ‘cost,’ the only cost that Mr. Jackson and his bosses in the district attorney’s office are really worried about is the cost of a civil lawsuit if it turns out that Mr. Salazar was wrongly convicted. As to the other evidence used to convict Mr. Salazar, eyewitness testimony has repeatedly been shown to be the least reliable evidence available to the prosecution. We’re also asking for the fingerprint evidence to be released to us so we can reexamine that as well. But as you well know, fingerprint analysis is far from an exact science. DNA evidence, on the other hand, is ninety-nine percent conclusive.”
“Your Honor!” Jackson protested. “They’re now looking to try their entire case over?”
“The histrionics are unnecessary, Mr. Jackson,” Cavanaugh quipped. “I can see what’s going on here.” He looked at Finn again. “You still haven’t given me a reason to think that this fishing expedition of yours is worth anyone’s time. I just don’t see the justification.”
“Your Honor, we have no record that the defense was told the DNA material was available at the time of trial. We found out only recently; that alone should justify this exercise.”
Cavanaugh’s eyes narrowed. “Are you suggesting that potentially exculpatory evidence was withheld by the prosecution, Mr. Finn? Because you realize what a serious charge that is.”
“I do, Your Honor.” Finn was going for broke. “Let me be clear, we are not alleging any misconduct at this time. But the DNA evidence comes from under the victim’s fingernails. When Officer Steele was attacked, she fought back valiantly and apparently scratched her assailant quite badly. Blood and skin were collected from under her fingernails. That fact was never disclosed to the defense and could have constituted exculpatory evidence. Mr. Salazar could arguably be entitled to a new trial on that basis alone. We’re not looking for that. We’re looking only to have the DNA in the scrapings tested.”
