Motion to Dismiss (A Kali O'Brien Legal Mystery)

by Jacobs, Jonnie

  He went on to report that a guest at the Saturday night party had confirmed that Deirdre and Grady had driven off together in his car. A neighbor of Deirdre’s had heard raised voices around eleven. A woman’s breathless, “Don’t. Please,” and a male voice that wasn’t clear enough to understand.

  To my dismay, Deirdre herself had made a surprisingly good witness, telling her story simply and believably as Madeleine led her through the evening’s events. Now it was my turn. I doubted I’d be able to trip her up.

  I cleared my throat with the trace of a nervous laugh. Like the smile, this was an attempt to put the witness at ease, to have her see me as a person rather than simply as an attorney. It was surprising how many times witnesses obliged by going out of their way to give you what you wanted.

  “I’m going to take you through some of the testimony you gave earlier this morning,” I told her. “I know it’s going to seem terribly repetitive, but that doesn’t mean I wasn’t listening the first time. I just want to make sure I’ve got it right. Okay?” I loaded the word with all the empathy I could muster.

  “I understand.” Her eyes met mine as though we were old friends.

  Judge Riley’s gray head bobbed, though whether as a sign of approval or boredom, it was hard to tell. He’d been eyeing Deirdre Nichols as though she were the most captivating creature he’d seen in weeks, but at his age, even enchantment was no match for weariness.

  “You testified earlier that you work as a receptionist at a hair salon called Rapunzel,” I said. “And that you’ve worked there for approximately six months.”

  “Right.”

  “Where were you employed previously?”

  “Well, I was out of a job for a while, but before I got laid off, I worked at a dress shop on Lakeshore Avenue.” A flicker of a smile, a look in the eyes that said, Am I doing okay?

  I nodded. “You also do house-sitting for additional income, is that right?”

  “Yes. I stay in people’s homes, take care of animals and watering, and generally keep an eye on the place while the owners are away.”

  “The night in question, you were living in a house in the Oakland hills?”

  “I still am. The couple whose house it is are on an extended trip.” She looked up at the judge and then back to me. “They have cockatoos that need to be cared for.”

  Out of the corner of my eye I caught a glimpse of Grady, eyes straight ahead, his expression still poker stiff. Turning back to the witness, I asked, “Do you have a home of your own?”

  Deirdre licked her lips, adding extra luster to the soft pink mouth. “Not at the moment. In between housesitting jobs I live with my sister in Piedmont.”

  “Now, Ms. Nichols—” I stopped myself mid-sentence. “Do you prefer Ms. or Mrs.?”

  “Either one is fine.”

  “Nichols is your married name?”

  She nodded.

  “Are you currently married?” Not that it mattered, but stereotypes die hard, especially among the older judges. Divorcee has a different connotation than virgin, and I wanted to do what I could to paint Deirdre Nichols as other than the sweet young thing she was trying so hard to appear.

  Deirdre shook her head to my question. “No, I’m not married at the present.”

  Point made. I added a mental check mark to the list in my head. As an afterthought I asked, “How long have you been divorced?”

  Her eyes widened with ingenuous confusion. “Oh, I’m not divorced. I’m a widow.”

  Widow? Shit, just what we didn’t need. More sympathy for the victim. And I’d walked right into it.

  Judge Riley’s brow crumpled with feeling. If he’d been conducting a symphony, we’d have had a crescendo of violins.

  I turned and caught Madeleine’s smirk. Without missing a beat I asked, “How long have you been widowed?”

  “Almost five years. My husband died when Adrianna, that’s my daughter, was two.” Deirdre’s green eyes clouded at the memory. She looked down at her hands. “I’m so glad Adrianna wasn’t at the house the night Grady Barrett raped me.”

  “Ms. Nichols, simply answer the question.” I spoke sharply, then backtracked. “Please.” I softened it further with the hint of a smile.

  Deirdre looked startled, like a child reprimanded for an unfamiliar wrong. “Sorry, I didn’t mean to—”

  Judge Riley leaned in the direction of the witness box. “You’re doing fine,” he said. “Just try to focus on the question.”

  Deirdre nodded. She glanced at Grady, then turned away, but I saw that hurt had clouded her expression.

  I picked up again, reminding myself that I was doing this for Nina more than for Grady. “During these past five years I assume you’ve dated other men?”

  Madeleine voiced an objection, which Riley overruled.

  “Not at first,” Deirdre said. “But then, yes.”

  As she’d done periodically throughout her testimony, Deirdre looked in the direction of a tall, angular woman seated in the visitors’ section of the courtroom. I’d assumed at first that the woman was a court-appointed victims’ advocate, but I’d learned during break that she was Deirdre’s sister.

  “Are you seeing anyone on a regular basis at the present time?” I asked.

  Deirdre hesitated. “What do you mean by regular basis?”

  “A steady boyfriend, someone you’ve been dating for a period of time, maybe exclusively.”

  Her gaze darted across the room again, but in a different direction. “Well, there’s Tony,” she said after a moment. “We were seeing each other for a while, but not so much anymore.”

  “You broke up?”

  A small sigh. “It’s complicated.”

  Madeleine jumped to her feet again. “I fail to see what any of this has to do with Ms. Nichols’ testimony.”

  Judge Riley rubbed his cheek. “Is that an objection?”

  “Yes, on the grounds that the question is irrelevant.”

  “Your Honor,” I said, “the defense should be allowed latitude . . .”

  Riley cleared his throat. “I know, I know. I will allow you to continue, Ms. O’Brien. For the moment.”

  I took advantage of the interruption to walk back to the defense table, ostensibly for a sip of water. In truth, I wanted to see who Deirdre had been looking at before she’d mentioned Tony’s name.

  The courtroom wasn’t crowded. Despite the hoopla in the press over Grady Barrett’s arrest, journalists had not shown up in droves—perhaps because Riley had refused to allow cameras in the courtroom. My eyes scanned the quadrant where Deirdre’s gaze had drifted.

  There was a fair-haired man sitting alone near the rear, but I couldn’t say for sure that he was the person she’d glanced at.

  Turning back to address the witness, I asked, “For the record, can you state Tony’s last name?”

  She hesitated. “Rodale, I think.”

  “You think?”

  “I mean, as far as I know. That’s the name I know him by anyway. And it’s the name on his driver’s license.” Her gaze again drifted to the rear section, where the fair-haired man was sitting. She licked her lips nervously.

  “But you have some reason to doubt that’s actually his name?”

  Deirdre’s fingers toyed nervously with the heart-shaped locket at her neck. “No, not really.”

  And yet her initial response had implied otherwise. I made note to find out more about Mr. Rodale, a man with whom Deirdre had a relationship that was, in her own words, complicated. Perhaps she’d fabricated the story of rape to get Tony’s attention, or to defuse his jealousy. It wouldn’t have been the first time a woman had used that ploy.

  Approaching the witness box, I turned my attention to the night in question. “You testified that you met Grady Barrett at an office party you attended with a girlfriend. Correct?”

  Once again her eyes flickered in Grady’s direction. “Yes.”

  “You didn’t know him prior to that evening?”

  She frowne
d. “I thought he looked familiar, but I didn’t know why. Now I realize that maybe I’d seen him at parents’ night or something.” She turned to the judge. “His stepdaughter attends school with my daughter.”

  “But you didn’t remember that until later?”

  “That’s right.”

  “Was it before or after you filed a complaint with the police?”

  Deirdre continued to finger the locket. “I’m not sure.”

  A fine answer, until she looked at the judge and added, “I’m sorry. It’s just that I was so upset that things kind of blur in my mind.”

  The corners of Riley’s eyes crinkled with a sympathetic smile. “Just answer the questions the best you can, Ms. Nichols. That’s all we can ask.” If he’d been close enough, he’d probably have given her arm a reassuring pat.

  “What was it,” I asked, “that made you realize Mr. Barrett was someone you might have met in connection with your daughter’s school?”

  “I don’t recall.”

  Keeping my tone conversational, I asked, “Could it have been his picture that appeared in Monday’s business section?”

  She bit her lower lip, giving the question serious consideration. “I doubt it. I don’t have much use for the business section.”

  The corners of Riley’s mouth tweaked in an avuncular smile.

  Despite her avowed disinterest in business, I found the timing of Deirdre’s complaint interesting, coming as it did the day after a major spread on Grady Barrett and ComTec, and three days after the alleged rape.

  “I’d like to turn now to the party where you met Mr. Barrett. You weren’t invited directly, but attended as a guest, correct?”

  “Yes. But it wasn’t like a formal party, or anything. Just some guys celebrating. My girlfriend works with one of them. He told her to come along and bring a friend.”

  “What is your girlfriend’s name?”

  “Judith Powers.”

  “Was it Judith who introduced you to Mr. Barrett?”

  Deirdre gave me a wide-eyed look. “It wasn’t the kind of party where people got introduced.”

  “I see.” One of those parties. It might help us. “Who struck up the conversation first,” I asked, “you or Mr. Barrett?”

  The eyes dropped. “I don’t remember.”

  Nor did she remember what they’d talked about, except that it wasn’t “anything heavy.” She spoke in a quiet, unwavering voice, answering my questions like a good student trying hard to please. Grady had bought her a couple of drinks—well, more than a couple, she conceded, and they’d danced some. Yes, they’d danced close, but it was that kind of music. And then they’d more or less drifted away from the rest of the party, finishing their last drinks “and stuff” in a booth at the back of the restaurant.

  “What do you mean by ‘stuff,’ Ms. Nichols?”

  She shrugged. “Conversation. Sometimes we just listened to the music.”

  “Did you ask him if he was married?” I pushed the image of Nina, pregnant and ridden with cancer, from my mind.

  “He never mentioned it.”

  “What about the ring on his left hand?”

  Her lips puckered like a pink rosebud. “I never thought to check.”

  As a single woman myself, I recognized the answer as pure bullshit. But she carried it off convincingly.

  “Did Mr. Barrett touch you at all while you were sitting there in the booth?” I asked.

  I could feel Grady stir at the table behind me.

  “Some.”

  “And did you ask him to stop?”

  “It wasn’t like that. It was just . . . touching.”

  I walked back to the defense table. She couldn’t look in my direction without focusing on Grady as well. “Did Mr. Barrett offer you a ride home,” I asked, “or did you ask for one?”

  “I . . . I may have said something about not having a car there. But he offered.”

  “When you left the party, did he take you straight home?”

  “Yes.”

  “And you invited him in?”

  “I’m not saying I wasn’t attracted to him,” Deirdre said, sounding, for the first time, a bit testy. “He’s an attractive man, and he seemed like a nice guy.”

  “Did you want him to kiss you?”

  She looked at Grady and then quickly away. “I guess. Like I said, he seemed nice.”

  “So you didn’t resist?”

  “Not at first.”

  “You were having a good time?”

  Deirdre leaned forward. Her eyes flashed with exasperation. “Look, I never said he jumped out of the bushes and raped me at knife point. Yes, we were having a good time. But then he crossed the line. I want him held accountable.”

  Grady snorted in disgust. I put a hand on his shoulder to quiet him. “Nonresponsive,” I said to Judge Riley. “Move to strike.”

  Riley directed the court reporter to disregard the comment, then instructed the witness that she was to answer the question and nothing more. But I could tell from his tone that Deirdre Nichols had found a soft spot in the judicial armor.

  “When you say, ‘He crossed the line,’ I take it you mean he forced you to have sex against your will?”

  She lifted her chin. “Yes.”

  “After you made it patently clear that it was something you didn’t want.”

  “Yes.”

  I led her, step by step, over the testimony she’d given on direct, eliciting from her an account of fairly steamy flirtation on her part. But she held firm on the issue of consent. She’d told Grady no and he had ignored her.

  “What made you change your mind?” I asked.

  Madeleine was on her feet again. “Objection. Assumes that witness initially intended to give consent.”

  “Sustained.”

  I rephrased the question. “Ms. Nichols, what did you expect would happen after this episode of kissing you’ve told us about?”

  Deirdre shook her head, and a lock of red hair sprang from the ribbon at her neck. “We were clearly attracted to each other, but I thought . . . I thought it might be better to get to know one another first.”

  I checked my notes. “When Mr. Barrett persisted with his affections, despite the fact that you’d asked him to stop, is that when he grabbed you by the arm?”

  “I think so. It’s all kind of a blur.”

  Her fingers twisted a handkerchief embroidered with tiny purple flowers. I wondered if it was hers or Madeleine’s. Not that Madeleine would ever have use for anything as dainty and ladylike herself, but I wouldn’t have put it past her to have a stash of them for occasions such as this.

  “ ‘All kind of a blur,’ ” I repeated. “Yet you’re certain you told Mr. Barrett, ‘Stop. Let go of me?’ ” This had been her testimony on direct.

  “Yes.”

  They weren’t the exact words the neighbor had heard, which might work to our benefit at trial.

  “Certain you made it clear you weren’t interested in having sexual relations with him?”

  She hesitated, then nodded emphatically. “Yes, I’m certain.”

  “What did you do to resist?”

  “I don’t remember exactly.” Tears sprang to her eyes. She dabbed them with embroidered white linen, lilacs facing out.

  “Did you kick him?” I asked.

  Madeleine rose. “Your Honor, Defense knows that the witness doesn’t have to offer physical resistance.”

  “I’m just trying to determine what happened.”

  Riley nodded. “I’ll allow it.”

  “I may have. I don’t remember.” Her voice wavered.

  “How about bites? Or scratches?”

  “I don’t think so.” She addressed her hands, which were folded in her lap. “He’s so much bigger and stronger than I am. I was scared.”

  “So it’s conceivable Mr. Barrett might have thought you weren’t resisting at all?”

  “He knew.” She was crying harder now, but her voice no longer quivered with emotion. Anger
had hardened it. “He knew how I felt, and he didn’t care.”

  Grady squirmed in his chair. “Not true,” he muttered under his breath.

  “And afterward,” I asked. “What then?”

  She dabbed at her nose. “What do you mean?”

  “What did you do after he’d . . . completed the act?”

  Deirdre hugged herself, as if for reassurance. “I cried.”

  “Did you say anything to him?”

  “Nothing important. It’s like part of me couldn’t believe what had happened.”

  “Did he say anything to you?”

  She looked directly at Grady. Her eyes flashed anger and something else I couldn’t read. “He just pulled up his pants and left. I’ve never in my whole life felt so . . . so devalued.”

  “When you finished crying,” I said with a gentleness that wasn’t entirely feigned, “what did you do then?”

  Deirdre shook her head in confusion. “I don’t understand. I cried off and on the whole night.”

  “Did you take a shower?”

  “Not that night, no.” Her tone was wary.

  “Did you wash yourself?”

  “I might have.”

  “But you don’t remember for sure?” With most victims of rape, including date rape, there’s a strong impulse to wash away the remnants of the crime. Even women who know they shouldn’t destroy evidence succumb.

  “I was upset,” Deirdre said.

  “Yet you waited until Tuesday to make a police report. Why is that?”

  “I was ashamed and frightened. I tried to forget about it, but I couldn’t.”

  “Did you tell anyone what had happened?”

  She shook her head. “Maybe you don’t know what it’s like, Ms. O’Brien. Being raped is an awful experience. It makes you feel worthless. Humiliated. You can tell yourself that it’s no reflection on you personally, but it doesn’t matter. I didn’t want to talk about it with anyone.”

  “Not even a friend? Your sister, perhaps?”

  “No.” A thin whisper of a word.

  I stepped back. “I see.”

  My tone was skeptical, as I’d intended. But there was a part of me that found Deirdre’s testimony disturbingly convincing. She might well have been lying through her teeth, but my suspicion was that there was some element of truth there too. And I had the sinking feeling the judge felt it also