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

by Jacobs, Jonnie

  She handed me my message slips. “That boy Xavier called again,” she said. “I told him to try you at four.”

  I looked at the clock. It was now a quarter to.

  “I’m glad you made it back,” Rose said. “I get the feeling he’s not long on patience.”

  “I need to talk to him no matter what is going on. If I’m on the phone with someone else when he calls, get me anyway.”

  I opened the door to my own office, set my briefcase on the floor, and kicked off my shoes. Flopping into the chair at my desk, I closed my eyes for a moment and tried to ignore the worry that gnawed at me.

  Hal had been making inquiries about Tony Rodale. Hal was now dead. He’d told me he’d seen Marc with Tony. Marc was missing. What did it mean?

  My thoughts were broken by the jangle of the phone. I glanced at the clock. Three fifty-eight.

  “Hello,” I said into the receiver.

  “You the lady wants to talk to me?”

  “Xavier?”

  “Yeah, is me.”

  “I appreciate your calling back.”

  “Is nothin. ‘Sides, wanna see my picture on the front page.”

  “Your picture?”

  “Yeah, see my name in print too. You’s with some newspaper or somethin’ the man says.”

  “I’m a lawyer,” I explained, then hastened to add, “But I know someone with the newspaper.”

  “He gonna make me look good? I don’t want none of those pictures what makes me look like an ugly dog.”

  “Let’s talk first. I’ll put you in touch with the journalist, but I can’t make any promises.” I wasn’t sure whether Byron Spencer would even talk to Xavier.

  “They tell me you asking ‘bout the flying angel.”

  “The flying angel?” I could tell this wasn’t going to be easy.

  “Yeah, that’s what the man say.”

  “A couple of weeks ago a woman fell from the deck of a house above the canyon where you and some friends were partying. I understand you saw it happen.”

  “Yeah, was wild. All white and fluttery, like an angel. Not every day you see something like that.”

  “Did you see anyone else on the deck with her?”

  “The force of evil, that’s what was there. And her all in white.”

  “This evil . . . force, can you describe it? Big frame or slender? Tall or short?”

  “Didn’t have no frame, lady. Was a force. A spirit.”

  I worked to keep my irritation from showing. “So you didn’t actually see anyone with her?”

  “I told you. Evil. Red eye glowing like a burning ember.”

  “Its eye?”

  “Like an ember.”

  “You saw a spark of red, like an ember?” My mind was churning, trying to give substance to his words.

  “Not a spark. It was there, lurking.”

  “Did you see the . . . the flying angel before she fell?”

  “All in white.”

  “What about after she fell, did you see anyone on the deck then?”

  “Evil, triumphant, slinking off into darkness.”

  I pressed my hand against my forehead, seeing my last line of defense slinking off into the darkness as well.

  “Xavier, is there a number where I can reach you? I might think of something else I need to ask.”

  “I’m here, I’m there. A number’d be no good.”

  “What if I need to talk to you again? Besides, how’s my friend at the newspaper supposed to get in touch with you?”

  “He gonna take my picture?”

  “If that’s what you want.”

  He seemed to think about it a minute. “I got your number. I’ll be in touch.”

  <><><>

  I spent what was left of the afternoon preparing for tomorrow’s day in court. I reviewed my notes, the police report, and other materials, seeing and feeling the events from a fresh perspective now that I knew Grady had been there. I was trying hard to imagine things as they might really have happened.

  At six I packed up my briefcase and headed over to Nina’s to welcome her home from the hospital. On the way, I stopped by Marc’s. The house was dark, and his car was nowhere in sight. I rang the bell anyway, then pounded on the door. Nothing.

  Anger had long since given way to worry, but the worry was now clouded by a new sort of uneasiness. Had Marc been honest with me about the circumstances of his beating? Tony, former kingpin of the drug world, was now in jail. If Hal had really seen Marc with Tony, what kind of trouble might Marc be in? By the time I reached Nina’s, my head was spinning. But answers were in short supply.

  Simon opened the door for me and Emily escorted me upstairs. “Mommy and I were playing go fish,” she chirped. “Simon hates to play go fish.”

  “You must be happy to have your mom back home.”

  She nodded. “I wish my daddy was here, too.”

  “I know you do, honey.”

  Emily pushed open the bedroom door.

  “Hi,” I said to Nina as Emily pulled me into the room.

  Nina smiled. “I was hoping you’d come by.” She looked pale and tired, but she made a valiant effort to sound upbeat.

  I pulled an emerald velvet armchair closer to the bed and sat.

  “God, I’m happy to be back home,” she said. “Hospitals have got to be among the most depressing places on earth.”

  Next to prisons, I thought. “They serve a purpose though.”

  She nodded without conviction, then turned to Emily. “Why don’t you go see if your dinner is ready, sweetie, while I talk to Kali. We’ll keep the cards right where they are and finish the game after you eat.”

  “I’m not hungry.”

  “Kali and I need some grown-up time.”

  With great reluctance Emily left us, but not before giving her mother a smothering hug.

  “How did it go at court today?” Nina asked when we were alone. “Did Adrianna say anything new?”

  “She was a good witness,” I began. “She seemed certain the car she saw was a convertible and that it was silver.” I paused. “She also knew that it was a Mercedes.”

  “A Mer—” Nina lowered her head to her hand and closed her eyes. “Was it Grady’s?” she whispered, then, without waiting, answered her own question. “Yes, of course. So he was there that night.”

  I couldn’t tell her what Grady had told me in confidence, but I wanted to reassure her somehow. “He had nothing to do with Deirdre’s death,” I said. “I firmly believe that.”

  “But he was there that night, wasn’t he?”

  “He swears that he never saw her or spoke to her. That’s all I can tell you. Grady will have to give you a fuller explanation.”

  “Dear God. It just keeps getting worse and worse, doesn’t it?”

  “He didn’t kill her, Nina. We may not prevail at the hearing, but we’ll beat the charges at trial.”

  “You hope. We both know that juries are unpredictable.”

  “We’ll present a strong defense.”

  Nina drew in a breath. “You really think there’s no chance it’s going to be dismissed before trial?”

  I hesitated. “The other day you asked me to skip the sugar coating. Is that the way you want it still?”

  Her shoulders slumped. “It will be months, won’t it? Maybe years.”

  “Six months at least,” I said. My throat felt raw. “I’m sorry, Nina. I tried, but the prosecution’s case is solid.”

  “The baby will be crawling by the time the case gets to trial. Maybe even walking. I’ll be finished with chemo.” She closed her eyes. “Assuming I’m still alive.”

  I reached for her hand.

  “I can’t face it alone, Kali. There must be something you can do. You can still put on a defense.”

  “I’d like to be able to do that, believe me. But I need something to work with.”

  “The state’s case can’t be airtight,” Nina said.

  “It isn’t. And there are things that don�
��t feel right to me—”

  She leaned forward. “Like what?”

  “I can’t put my finger on them.” It was like searching for a word that remained just outside your memory.

  “What you need is a witness who saw someone else there that night.”

  “That’s not going to happen. I’ve canvassed the neighborhood. So did Hal. And I finally spoke with the kid who claimed to have seen Deirdre fall. He’s useless.”

  “He didn’t see anything at all?”

  “If he did, he sure can’t communicate it.” I filled her in on my conversation with Xavier. “I’m afraid we’re stuck with simply picking away at the prosecution’s evidence.”

  “And you don’t think that will be enough?” Defeat was etched in her voice.

  “I wish I could be more optimistic.”

  “What does Marc think?”

  I hesitated, not happy about worrying Nina further. I decided, finally, that I had no choice. “You haven’t heard from him the last couple of days, have you?”

  “No. Why?”

  I told her about the phone call that had lured Marc into the flatlands of Berkeley, and his subsequent beating. I also voiced my suspicions, starting with what Hal had told me and then tiptoeing around the terrible doubt at the core of my thinking.

  Nina saw where I was headed immediately. “You don’t seriously think he might have been involved in Hal’s murder, do you?” Her tone was incredulous.

  Gibson had told me they had two suspects in the case. But that didn’t mean Marc wasn’t somehow implicated. “When you look at the whole picture—”

  She shook her head vehemently. “No, there’s got to be another explanation. Have you checked with the hospitals?”

  “It wasn’t until this afternoon that I really began to worry.”

  “I can take care of the checking,” she said. “Making phone calls is one of the few things I can do from bed. You focus on getting Grady’s case dropped, and try not to worry about Marc. He’s done this before.”

  “Disappeared?”

  She nodded. “Not come into the office for a couple of days, at any rate.”

  “Without telling you where he is?” I felt a glimmer of hope.

  Nina pulled her hair back from her face. “Marc is a good friend. Like most men, though, he keeps things to himself. Sometimes he’d call, but not always. I learned not to ask.”

  <><><>

  I didn’t feel like eating dinner, so I nibbled on cheese and crackers, and washed them down with several glasses of merlot. I didn’t feel like working either. I sat by the living room window and looked out at the twinkling lights across the bay.

  “You look troubled,” Bea said, coming to sit beside me. “Is the hearing going badly?”

  I gave her a resigned smile. “You might say that.”

  “It must be so much harder for you when you’re representing a friend.”

  I nodded. Even though Grady wasn’t someone I’d initially have classified as a friend, he was the husband of one. And someone whose strengths I’d come to appreciate.

  Grady, Nina, Marc, Hal—I couldn’t shake the feeling that I’d let them all down.

  “Sometimes,” Bea said soothingly, “things really are beyond our control. You do what you can and try your best, but none of us is able to direct the course of events.”

  “Thanks.” I squeezed her hand. “I’ll try to remember that.”

  Taking the case file, along with another glass of merlot, I headed downstairs to work. I pulled out the police report and went over the crime scene step by step. I looked at my notes on the investigation and on the testimony to date. Once again I couldn’t shake the feeling that the answer was there if only I could see it.

  Finally, exhaustion caught up with me and I went to bed. But sleep eluded me. Instead, my mind replayed possible scenarios for the night of Deirdre’s murder.

  She’d been upbeat at work that day. She’d made plans to meet her friend Judith the next evening to “celebrate her independence.” I’d assumed she’d been talking about her breakup with Tony Rodale, but maybe it was Grady’s payoff she was referring to. What did that tell me about her killer, or was it totally unrelated?

  She’d come home, talked briefly with her sister, slipped out of her street clothes, and prepared a simple meal for herself and Adrianna. Then she’d busied herself baking cookies while waiting for Grady, whom she didn’t expect until almost eleven.

  Had she been expecting someone else, also? From the look of the kitchen, I thought she’d probably been caught unawares. But would she have opened the door to a stranger?

  And that brought me back to the ultimate question—who might want Deirdre dead?

  It was after three in the morning when I drifted off to sleep. By then the germ of an idea began to form. Did I dare risk voicing it in court?

  Chapter 47

  “The prosecution rests, your honor.” Madeleine Rivera lifted her chin and walked purposefully to her table in front of the gallery railing. Although I didn’t turn to look, I was willing to bet she made eye contact with members of the press.

  It was only ten o’clock in the morning. Madeleine had wrapped things up quickly, so as not to undercut the strength of Adrianna’s testimony at the close of court yesterday. It was a wise strategy. I’d have done the same.

  Next to me, Grady was looking agitated. He leaned close. “Are you going to have me testify?”

  “Not at this stage, for sure.”

  “But it’s the only way to explain what really happened.”

  “Trust me on this.”

  “I need the case dismissed.” Grady’s voice was a low whisper, almost a hiss.

  Judge Atwood gave us a cool look. “Are you ready, Counselor?’

  “Yes, Your Honor.” I shuffled papers and then stood slowly. “The defense would like to recall Sheila Barlow.”

  Judge Atwood’s frown deepened. “You want to start by recalling a prosecution witness?”

  “We would, Your Honor.”

  There was a rustling sound at the back of the courtroom. The media folks smelled something unusual in the wind.

  “And we request that she be called as a hostile witness,” I added.

  Another wave of reaction from the courtroom. Hostile witness is an ominous-sounding term, but in legal parlance it means that the attorney can ask leading questions, as befitting cross examination. Nonetheless, there was a palpable buzz from the back of the room.

  As Sheila Barlow took the stand, I had a moment’s doubt about the path I was about to lead us down. Although my sleep last night had been uneasy, and tangled with wakefulness, I’d woken this morning with a clear sense of what had been bothering me about the case all along. And now I was about to gamble on a hunch.

  I approached the witness stand, hoping to put Sheila at ease. “I’d like to go over a few things from your earlier testimony, to make sure I understand it.”

  Sheila nodded.

  “You testified that on the morning Adrianna called you to say that her mother was hurt, you were already up and had had your coffee.”

  “That’s correct.”

  “So you got up that morning around, what, five-thirty, six?”

  “Sounds about right. I don’t recall exactly.”

  “Can you tell me why you were up at that hour?”

  She adjusted the silver brooch at her throat. “I’m often up early.”

  “Even on Sundays?”

  She looked at Madeleine, then away. “Sometimes.”

  “Did you set the alarm to wake you that morning?”

  “I . . . I don’t remember.”

  Madeleine was on her feet. “Your Honor, I fail to see the relevance of this line of questioning.”

  Judge Atwood raised an eyebrow my direction, inviting a response.

  “I’m ready to move on anyway,” I said, then turned back to address the witness. “When you arrived at the house, did Adrianna let you in?”

  “No, I’ve got a key.�
�

  “The door was locked when you got there?”

  Sheila Barlow licked her bottom lip. “It locks automatically when shut.”

  “How about the sliding glass door that opens onto the deck? Was that locked?”

  She hesitated. “I don’t remember.”

  “And Adrianna was in her room, is that correct?”

  “Yes. I’d told her on the phone to go there and wait for me.”

  I weighed the moment, then let it pass. “So you found Adrianna in her room,” I said. “And then the two of you went into the den, where you read to her and held her until the police arrived, is that correct?”

  “I don’t believe we read until after the police arrived, but in general terms it’s correct.”

  “Did you check the rest of the house?”

  “What do you mean?”

  I gave a casual shrug. “To see if there were other signs of disturbance.”

  Sheila shook her head. “I guess I never thought about that. My main concern was comforting Adrianna.”

  “So you didn’t go into the kitchen?”

  “Correct.”

  “You didn’t turn off the oven?”

  She hesitated and glanced again in Madeleine’s direction. “I don’t remember.”

  “But you couldn’t have turned off the oven if you didn’t go into the kitchen, could you?”

  She seemed to search her memory. “No, I guess not.”

  “Your sister was in the midst of baking cookies when she was killed. Yet when the police arrived, the oven was off. Who do you suppose turned it off?”

  Sheila Barlow looked at me a moment, and then cleared her throat. “I don’t know. Maybe I did it without thinking.”

  “But you just said that you hadn’t gone into the kitchen. Are you changing your testimony?”

  She took her time answering. “No. To the best of my recollection, I didn’t go into the kitchen.”

  I turned for a moment to let my eyes roam the courtroom, drawing it closer. “Your sister was lucky to have such a conscientious killer, wouldn’t you say? It’s not often you find someone who commits murder and then carefully turns off the oven before leaving.”

  Madeleine jumped to her feet. “Objection, Your Honor. Defense counsel is badgering the witness.”