The Last Alibi (A JASON KOLARICH NOVEL)

by David Ellis

  “You doing okay? I didn’t think Ogren was that good. You doing okay?” This from Bradley John, the lone associate at our law firm, a young guy with a lot of talent and a terrific work ethic. If I could get him to cut his hair so he didn’t look like the lead singer in some cheesy boy band, he might have a future in this profession.

  “Ogren was good,” I say. “He was what he needed to be.”

  “There’s water if you want it,” he says, nudging the bottle toward me.

  “Okay, thanks, kid.” I stifle a snicker and catch eyes with Shauna. Among the other tasks she has delegated to young Bradley, Shauna presumably has given him the assignment of babysitting me, making sure I never get dry mouth, never come suddenly unglued in the middle of a long day of trial.

  When it was bad for me, when I was scraping the bottom this past summer, I would use the dry mouth I was experiencing as an excuse to reach for my tin of Altoids. My mouth is feeling kind of sticky and dry, better pop a mint! I even used the excuse when I was alone, as if I were somehow fooling myself with the ruse. You know your life is going off the rails when you tell yourself the lie you’ve created for everyone else, and you believe it.

  And the ruse was no casual thing. I did research. I bought a dozen different brands of breath mints, brought them home and opened each container, examining each mint individually to identify the one that bore the closest resemblance to a thirty-milligram tablet of OxyContin.

  I ended up going with Altoids, even though they weren’t the best replica, because when I’ve eaten mints in the past, it was usually that brand. Every morning, I replenished my Altoids tin with a half dozen new Oxy pills, enough for one every two hours of a workday and a couple extra in case I went straight from work to dinner. It became my top priority, ensuring a proper supply of OxyContin before I left the house.

  Of course, I also needed to have real Altoids, in case someone saw me partaking and asked me for one. Hey, could I bum one of those off you? I couldn’t very well drop a tablet of immediate-release oxycodone into their hands, which would have given them a lot more than minty breath. So I always carried around two of the mini-tins, the red peppermint tin for the painkillers and the blue tin of wintergreen mints for curiously strong breath freshening. I lived with the nagging fear of making a mistake and handing a friend or colleague the wrong tin.

  More ridiculously still, I went through the same routine at home, sticking a sleeve of the Oxy tablets in a box of allergy medicine, even though I’ve never been allergic to anything in my entire life. But just in case, on the off chance that I might have a female visitor to my house, again I needed a ruse for my painkiller habit. I remember driving to the pharmacy, looking for a box of allergy medicine for my disguise, and not even knowing what to say to the pharmacist, finally settling on hay fever because my mother used to have that problem in the summer.

  “I’m doing fine,” I say to Bradley, making sure Shauna hears it, too. I am fine. It’s been over four months now, and I feel separation from the drugs. And I sure as hell am not going to come apart in front of my jury, who will scan me throughout the trial for any hint of emotional instability, among other things.

  But the harshest truth I’ve ever had to accept is the one I swallowed a few months back: I lost control once, and I can’t ever be one hundred percent sure I won’t lose control again. I’m now an addict, and I’ll be one for the rest of my life.

  The judge reenters the room, and everyone rises. The jury filters back into their assigned seats. In response to Judge Bialek, Roger Ogren rises.

  “The People call Officer Martin Garvin,” he says.

  20.

  Shauna

  Marty Garvin is a young cop, mid-twenties, with three years in uniform as a patrol officer. He looks more like an accountant, a bookish sort with a long nose that dominates his face. He is soft-spoken and careful with his words as he relates his background. It’s clear that he is not a veteran witness; he pauses before each answer, measuring his words, probably a bit too much for the liking of the jury. But I have to concede that he comes off as earnest and straightforward.

  They start with the 911 call, which started this whole affair. Technically, Officer Garvin is not the one to authenticate this recording, but we stipulated to its admissibility rather than force the prosecution to drag in the 911 dispatcher. Sequentially, this is the first step in the story, and I don’t blame Roger Ogren for wanting to start with it.

  The words echo through the silent courtroom, maybe the only words that the jury will ever hear directly from Jason’s mouth:

  “There’s been a . . . death. Someone’s been . . . There’s been a murder. Please come . . . please come right away.”

  On the tape, Jason’s voice is ambiguous. Shaky, but not distraught—not as distraught as I would have liked him to sound, but not nonchalant, either. Sad, maybe. Disturbed, but not unhinged. If you knew Jason, you could believe that this is him sounding upset, the stoic warrior trying to keep it together. The problem is, the jurors don’t know him. It is one of the many incongruities of the courtroom: People who are making a decision that could affect the rest of Jason’s life know him less than anybody he’s ever met.

  The jurors listen with furrowed brows, some of their eyes closed, trying to envision the person delivering those words. The words of a distressed man? The words of a cold-blooded killer? My take is they could interpret this 911 call in whatever way necessary to suit their conclusions.

  “I arrived just after midnight—I believe it was twelve-fifty A.M.—the first hour of July thirty-first,” says Garvin. “The defendant met me at the front door of his town house.”

  The defendant, not Jason. Depersonalizing the adversary. Officer Garvin has been coached well.

  “Describe what happened next, if you would, Officer.”

  “The defendant led me upstairs to the second floor of his town house. He made me immediately aware of a Glock handgun that was lying on the floor next to a dead body in the living room. He said the weapon might be loaded, but he wasn’t sure.”

  “Is this the weapon?” Ogren asks. From the evidence table behind the prosecution, Ogren removes the handgun. We have stipulated that this was the weapon Officer Garvin found at the scene. We have stipulated that it was the murder weapon.

  And we have stipulated that, according to records filed with the state police, the owner of this handgun is Jason Kolarich.

  Over the defense’s objection, which Judge Bialek already overruled prior to trial, Roger Ogren shows the officer a series of photographs laying out the scene on the second floor of Jason’s town house: the dead body with a single gunshot wound to the back of the neck, the handgun lying neatly nearby on the hardwood floor. Close-ups and faraway shots, angles capturing Jason’s kitchen and shots showing his large window overlooking the street, dark at that time of night.

  “Once you determined that the victim was, in fact, deceased, and after securing the handgun, what did you do next, Officer?”

  “I asked the defendant if anyone else was in the town house. He said no. I told him I wanted to search his person for other weapons, and he allowed me to do so. I found no weapons on his person. I asked the defendant for permission to search the remainder of the house, and he gave me that verbal consent. My partner, Officer Middleton, stayed with the defendant while I searched the remainder of the town house. I determined that nobody else was present in the house.”

  “What happened next?”

  “I read the defendant his Miranda rights and asked him if he could tell me what had happened.”

  “And what—”

  “He said he wanted to call his lawyer.”

  “What did you do in response?”

  “I ceased any questioning. I told him he was not under arrest and that it wasn’t the time for a phone call.”

  That’s right. It wasn’t until nearly two hours later, at close to three in the morning, that Jason called me at my home. Three-oh-six in the morning, to be exact; I’ll always remem
ber the time on the bedside clock. Shauna, he said to me, his voice calm but with a slight tremble, I’m being arrested for murder. Call Bradley John and have him meet me at Area Three.

  Shauna, I’m being arrested for murder.

  SHAUNA, I’M BEING—

  “I radioed for detectives and tried to keep the scene as pristine as possible,” Garvin continues. “I directed the defendant to remain in the kitchen, where he sat in a chair while we waited for the police detectives. Detective Cromartie arrived about thirty, forty minutes later.”

  Ogren pauses briefly for a segue. “Officer, can you describe the defendant’s demeanor during this encounter?”

  Officer Garvin nods, ready for the question. “He was very compliant. He was able to speak clearly and intelligently. He seemed calm. No outbursts.”

  “Was he crying?”

  “No, sir. I didn’t see that.”

  “Did he seem upset in any way?”

  “Objection,” I say.

  The judge allows the question. I scold myself for the objection. I’ve just highlighted the testimony, placed more importance on it. And since I did object, I should have at least done a speaking objection: The officer couldn’t possibly know if my client was upset, Judge.

  Shit. That was a mistake. An easy one I fumbled. Get your head in the game, Tasker. This is the whole ball of wax.

  “The defendant showed no outward signs of any emotion,” says Garvin. “He wasn’t happy, but he wasn’t crying or shouting or moving. He was calm and quiet.”

  “Thank you, Officer.” Ogren nods to Judge Bialek. “No further questions.”

  21.

  Jason

  After Shauna cross-examines Officer Garvin, Judge Bialek bangs a gavel and we are done for the day. Shauna didn’t spend a lot of time on the cross. Garvin was just the first responder to the scene; his testimony didn’t do much damage. Shauna only covered two topics. First, my demeanor, which Garvin had suggested was unreasonably calm—which would be translated by Roger Ogren in closing argument as “icy” or “cold-blooded.” “In your three years on the beat, you’ve encountered a number of people in stressful, upsetting situations, haven’t you?” Shauna asked the officer. “And people show grief in different ways, do they not? Some cry, some scream, some remain quiet, some have already cried before you arrived and appear calm by the time you see them.” Yes, yes, and yes, the cop agreed.

  And second, the fact that I lawyered up right away, invoking my right to counsel at the first question Officer Garvin posed. The law says that you are entitled to counsel before interrogation by the police. Every American who has watched one evening of television knows that. But many, and maybe most, of those same Americans would infer guilt from someone who immediately invoked. So Shauna couldn’t let it go. “My client, Jason Kolarich, is a criminal defense attorney, is he not? And a criminal defense attorney would be expected to be very much aware of his rights, wouldn’t you agree? Does it seem unusual to you that a criminal defense attorney would follow the same advice that he gives to every single one of his clients, which is to confer with an attorney before talking to the police?” The last question drew an objection from Roger Ogren, which Judge Bialek sustained. That was fine by us. We just wanted the jury to hear the question.

  “Meet you back at the Palace,” I say to my lawyers. “Get some decent food first.”

  “What would you like?” Bradley asks me.

  “Whatever. I don’t care.”

  A sheriff’s deputy named Floyd takes me by the elbow and walks me out of the courtroom. Once in the waiting area behind the court, he handcuffs me, hands in front, and perp-walks me to an elevator, then to a bus waiting underground. I’m joined by seven other men, also standing trial today and headed to the Palace for the night. I’m one of only two white guys; the others are African-American or Latino. I’m the only one in a suit. Most of them are wearing expressions that tell me they have a pretty good idea how their cases are going to turn out.

  The Alejandro Morales Detention Center was named after a congressman who represented this area in the eighties, one of the first Latinos ever to serve in Congress. The “Morales Palace,” less than a mile from the criminal courts, looks like an ordinary twenty-story concrete structure, save for the bars on the windows. It’s used these days primarily as a youth detention facility, but with our state and county governments in their ever-present state of fiscal Armageddon, and real estate at a premium, the segregated prisoners sometimes overflow here from the county jail.

  Segregation is typically reserved for gangbangers and either cops or prosecutors who run afoul of the law and, for various reasons, might not fare so well in general population. I’m a two-time winner because I’ve prosecuted and defended some of the people inside, thus my private cell. For this last week, when I’m expected to need lots of time to prepare for trial, I’ve been granted liberal privileges with the meeting rooms to confer with my attorneys. And because these meetings could interfere with the regimented timing for meals, they even let my lawyers bring me something to eat, as long as it’s something the guards can open and inspect freely. Soup is out; sub sandwiches very much in. Every time I bite into a hoagie that Shauna brings me, I know that a correctional employee has already worked over every slice of turkey, lifted every tomato and pickle, searching for razors, needles, drug packets. I assume the guard is wearing a plastic glove while doing so. I prefer to imagine it that way, at least.

  This evening, Shauna, Bradley, and I will go over the witnesses for tomorrow and finalize cross-examination questions. We will probably discuss, once again, whether I should testify, though I am certain I will.

  Until then, I’m left alone in my deluxe penthouse, a ten-by-ten cell of concrete and bars, a stained and scuffed-up floor, a toilet with a broken seat, and a bed with a cushion an inch thick. Left alone with my thoughts, I’m taken these days to self-abuse. I don’t kid myself. I have nobody to blame for my predicament but myself.

  Dr. Evans warned me about the dangers of taking OxyContin, and I assured him I was prepared for it. He asked me if there was a history of alcohol or chemical dependency in my family, and for some reason I lied and said no, said nothing about my father or my brother, Pete. He vigilantly monitored me over those first few months after the surgery, when the pain was sometimes teeth-gnashing, often searing needle-stabs, but again I assured him that I was sticking with the proper dosing regimen. “Yes,” I told him, “I’m taking them four hours apart. No,” I lied, “I don’t chew them up, I let them dissolve in my stomach.” I was cocky. I was a tough guy, and I could take as many pills as I wanted, as often as I wanted, without it becoming a problem.

  Before I knew it, four pills a day was six, then eight, then a dozen. Even after the pain in my knee subsided—maybe mid-March, definitely by April—I gradually needed more and more to feel okay, whatever okay meant. Then I found myself in Dr. Evans’s office on April 1—that’s right, let’s all say it together, April Fools’ Day—with my crutches, even though I no longer needed them, even though I was essentially pain-free, lying to him, telling him the pain was excruciating. “That’s . . . odd,” he said. “The healing has been remarkable. To still have this much pain . . .”

  Then, wisely—and diplomatically, too, with that practiced bedside manner, never outright accusing me of lying—Dr. Evans switched medication on me, moving from the immediate-release oxycodone tablets to the ones you can’t chew up, the controlled-release tablets that dissolve into your bloodstream over hours, not minutes, before he took me off Oxy altogether a few weeks later. Suddenly, a guy who had never taken pain medication in his life before the knee surgery was scoring sheets of Oxy from a street merchant, a drug dealer named Billy Braden, one of my clients, no less. And still I needed more and more, building up a tolerance and never once considering stopping.

  Funny, I can’t even remember how or when it happened, when the dam broke, when I crossed that line from patient to addict. I can’t identify a date or event or even a sensat
ion, any moment when I said to myself, You have a problem, these pills are controlling you, not the other way around. But somehow it happened. In the blink of an eye, I went from taking OxyContin because it made my knee feel good to taking OxyContin because it made me feel good.

  None of this would have happened otherwise. I would have handled differently that redheaded client who walked into my office and said he didn’t kill two young women. I wouldn’t have stayed with Alexa so long and allowed everything to happen. Shauna was right about her all along, but I was too high and too stubborn to listen. There were plenty of warning signs, not the least of which was the day that Alexa offered to be my alibi.

  Well, it didn’t quite work out that way, did it? I sure could use an alibi now. But I’ve never offered one. The murder happened in my house, with my gun, and with no sign of forced entry.

  I shudder out of my funk. Look forward, not backward, they told me in rehab, the lanky brunette named Mara who smelled of cigarette smoke and made you look her in the eye. Fix the problem.

  It’s too late to fix most of the damage I caused. I hope it’s not too late to keep myself out of prison.

  SIX MONTHS BEFORE TRIAL

  June