by Marcia Clark
“Should be pretty easy. You worried about privilege?”
“No.” I told him about having gotten a Special Master appointed to examine the files before we looked at it.
“I never would’ve thought of that.”
“You will now.”
That was the whole point of having a young up-and-comer act as second chair. The younger prosecutor got to learn how to play in the big leagues from someone who knew the ropes, instead of having to learn by getting knocked around—and losing. I still think of my mentor, Harvey Gish, with tremendous affection, and admiration. You couldn’t put a price on what I learned from him. He taught me to “never assume the other side knows what it’s doing” and “always be sure you know more about the case than anyone else.” He was referring to one of the most common mistakes prosecutors—or, really, any lawyers—make: automatically opposing what the other side wants. “Just because the defense wants it doesn’t mean you should object. Always think for yourself. Who does this help more?” And he was so right. You’d be surprised how many times the defense asks to put in evidence that’s much better for me than it is for them. Lessons like that showed me the world of difference between the way the run-of-the-mill cases are handled and the kind of lawyering required in the “big case.” It was the practice of law on a whole different level, one most lawyers never saw.
“So what’d you think of Jack Averly?” I asked. This would be the first of many conversations we’d have about how to watch and listen closely in court.
“He looked scared.”
“Scared of whom?”
Declan thought a moment. “His lawyer?”
“Well, he should’ve been, but no. He didn’t flinch when Terry gave him that hard look. I’d say first and foremost he was scared of Ian, and secondly of jail. So, assuming I’m right, what does that tell you?”
“That Ian was the mastermind?”
“We were pretty sure of that to begin with. What I’m getting at is, strategically, what does his attitude mean to us?”
Declan shook his head and leaned forward. “I give up. What?”
“He’s the one more likely to talk. Ian Powers is never going to give us the time of day—no loss, because we can’t give the puppet master a deal to testify against the puppet, anyway. But Averly’s a different story. He’s looking at a sentence of life without parole, all because he let Ian rope him into this mess—a mess he may really not have known involved murder until it was too late. So he’s a good candidate for a deal, and after seeing him in court, I have some hope that he’ll take it. The only real question is: Will he plead to something substantial enough to make the deal tenable for us?”
“What do you want to give him?”
I started to answer, then realized this was a great teachable moment about something that didn’t get talked about often enough. “I’ll tell you in a sec, but first, I want to say this: dealing out a defendant in return for his testimony should always be your last choice. I’ve seen prosecutors make deals just to make their lives easier, when they could’ve proven the case without the testimony if they’d just put in a little more work. Never, ever do that. Before you make a deal, make sure you’ve done everything you can to prove your case without that defendant’s testimony. And if you’re sure you do need it, then make sure you get the defendant to plead to the right charges. Meaning charges that accurately depict what he did. You can’t let a possible murder accomplice plead to an illegal left turn. And trust me, the jury will throw out every word he says as a liar’s package that was bought and paid for. In this case, Bailey and I think there’s a good chance Averly didn’t know what he was getting into. That would make a plea to accessory after the fact not only a good deal for him but also a fair reflection of his involvement. And he’s got at least a few of the important missing pieces we can only get from him.”
My cell phone played “Killer Joe.” Bailey.
“I’ve got to take this, so—”
Declan stood quickly. “I’m on it, boss.”
“You can start Monday, Declan.”
“I’d rather not wait.” Declan waved to me and left.
“What’s up?” I asked.
“You’ve heard the news, right?”
I sighed heavily. I’d managed to forget about it all for the past few hours. Now the memory of the ugly accusations deflated me. “Yeah.”
“I’m coming to pick you up right now,” she said. “I could use a drink and you can watch me if you’re not in the mood.”
I smiled in spite of myself. “I should get some more work done. Fisk’s demanding her speedy prelim—”
“You were ready for that thing days ago. Come on, Knight.”
I looked at the murder book—the binder detectives prepare that contains all the reports. My concentration was broken, so I probably wouldn’t be all that productive even if I tried to get back into it. And getting some distance right now might be a good thing. Sometimes, a little breathing room gives me my best inspirations.
“Okay. But let’s stay out of Hollywood.”
“Gee, how will we survive? Be downstairs in ten.”
I called Declan to tell him I was leaving and made him promise to get out soon too. When I got downstairs, Bailey stepped halfway out of her car and waved to me. “Brought you a present,” she said, pointing to the front seat.
Toni rolled down the window and gave me a broad grin. “We’re hitting the Varnish, so hurry up. They’ve got a drink with my name on it and it’s getting warm.”
The Varnish was a speakeasy-style bar, tucked into the back room of Cole’s, a nineteen-twenties diner. Dark, intimate, with small booths and the best mixed drinks I’ve ever had, it was the perfect little hidey-hole for a persona non grata like me.
After we’d imbibed enough to let go of the day, Toni seconded Bailey’s sentiments about the public reaction we’d seen.
“First of all, you’ve got to remember that was just Hollywood. They’re probably all Ian’s clients or wannabe clients—”
I shook my head. “There were a couple of working-class guys stumping for him—”
“Who benefited from his charity, right?” I nodded. “My point stands: those were all people who got something or hope to get something from Powers. There’re a lot more folks who don’t fit into either of those categories than those who do. Folks who won’t find it so hard to believe that some manager—yes, even one who’s a charity sponsor—would kill someone—”
“But people like that, and especially actors, can sway public opinion, Tone,” I said. “There’re a lot of people out there who like the idea of being in league with the stars.”
“Yeah, but the fools who believe what these airhead actors say are not going to make it onto your jury. You’ll see to that.” She saw my skeptical look and held up her hand. “No, you can’t weed them all out, but you’re going to have a chance to push back very, very soon, thanks to Terry’s demand for a speedy prelim. When you start putting on evidence, it’s gonna be a brand-new day.”
I had to hope that Toni was right, that getting the evidence out there would balance the picture. In any case, it was better to hang on to that hope than to dwell on the way my jury pool was being poisoned by all this bad press.
“Speaking of a decent case,” I said. “What do you think of giving Averly a deal to testify?”
“Right now? Before the prelim?” Bailey asked.
“Yep. I’d like to get him on the record as soon as possible, while his memory’s still fresh.”
“You think Averly did either of the murders?” Toni asked.
“I can’t say for sure right now. But Ian’s the only one whose blood is anywhere to be found.”
Toni nodded and sipped her drink. “And you don’t know how Ian heard about the kidnapping, or how they all wound up on that mountain?”
“No. Averly could fill in the gaps for us. Maybe flesh out the motive too.”
“The only downside I see is that it’ll look like you’re piling up on Powers w
hen Averly might be just as culpable,” Toni said. “Just because you didn’t find his blood anywhere doesn’t mean he didn’t kill Brian—or Hayley, for that matter.”
“But Powers has got to be the mastermind,” Bailey said. “No way this two-bit-dealer PA had any part in a plan this big until Ian dragged him in.”
“I agree with you there,” Toni said. “I’d say it’s at least worth an exploratory meeting to find out if he can give you something to make it worth your while.” Toni gave a wry smile. “Cutting a deal with Terry Fisk. What fun.”
I looked at my empty glass. “I think I need another drink.” We all got one, and then I broached the suspicion I’d been dreading, and needing, to air. “Remember that giant screaming match I got into with Russell when I told him about Ian’s arrest?”
“Like we could forget,” Bailey said.
“I got this bad feeling,” I said. “Like he knew Ian did it—”
“And was covering for him?” Bailey looked incredulous.
“You gotta be kidding, Rache,” Toni said. “Denial’s one thing, but deliberate cover-up—about the murder of his only child? Uh-uh. You know I’m always down with believing the worst, but that’s just…”
“A bridge too far,” Bailey filled in. “Even for me, I think. What gave you that idea?”
“We know Russell called Ian right after he got that first text from Hayley’s phone saying that Hayley’d been kidnapped. So when I went out there to tell him about Ian’s arrest, I’d planned to get Russell to confirm that he told Ian about the kidnapping during that call. No big deal, really. Ian’s his best friend; it made sense he’d have thought it was safe to tell Ian, right?”
Bailey nodded.
“Except that the minute I got the words out of my mouth, Russell denied it—”
“So?” Toni challenged. “Maybe it’s true. Maybe Russell didn’t tell him.”
“But he didn’t just deny it. He said, hollered actually, that I could never prove it. Why, of all things, would he say that?”
They both shook their heads. The table was silent for several long beats.
“Could just be guilt,” Bailey said. “Russell didn’t want to believe he’d set the wheels in motion…”
But there was a note of doubt in her voice. Toni stared down at her drink.
“Right,” I said. “See what I mean?”
50
It was a soul-shaking thought: that a father might cover for the murderer of his child. If it was true, Russell Antonovich deserved a far worse fate than the legal system could deliver. But at this point there was nothing we could do. We needed proof, not just suspicion, that Russell knew what Ian had done. That we did not have. I could only promise that if the evidence existed, we’d find it. And use it to put Russell away for as long as possible.
Right now, I had a more immediate lion to beard. Literally. I had to play “Let’s Make a Deal” with Terry Fisk. I placed the call bright and early Monday morning, so I’d be sure to catch Terry before she went to court. “I’d like a meeting with you and your client. I want to talk about a deal.”
“You don’t talk to my client until we have a deal.”
“Terry, your client is looking at life without the possibility of parole. I’m prepared to offer him a substantially lesser sentence that’ll let him parole out in a few years. But I’m not going to do it unless I can make this offer to him personally. I need to get a feel for whether he’ll give us something worthwhile—”
“No way. No one talks to my client but me until everyone’s signed on the dotted line.”
“You want to stand in the way of a sweetheart deal just because I want to look him in the eye when I make the offer? Because if you do, I’ll want to put that on the record in open court.”
There was a beat of silence as Terry considered the ramifications of what I’d just said. If I took the deal off the table because of her refusal to let me make the offer in person, and he got convicted, she’d never live it down. There was no valid tactical reason for her to refuse my request. It wasn’t as though I were asking to take a statement so I could use it against him later. And if Averly was convicted of murder, even if an appellate court didn’t find her incompetent, she’d be the jerk who tanked her client’s chance to beat a life sentence.
“Why do you need to see him? I mean really?”
“Because I want to make sure he understands what I’m offering.”
What I didn’t say was that I didn’t know whether I could trust her to relay the offer. It wouldn’t be the first time an attorney withheld an offer to prevent a client from being a “snitch”—or, in a high-profile case, to keep the case alive so the lawyer could grab more limelight. Added to those possibilities was the potential pressure from the co-defendant’s side, in this case Ian, to prevent that client from testifying, which could significantly increase the odds that any offer might be “forgotten.” Though Terry wasn’t the type to cave in to pressure from anyone, with a major player like Ian Powers and his supporters in the mix, I couldn’t take any chances.
“No questioning.”
“No.”
Terry exhaled loudly. “When?”
“In one hour.”
“Make it two; I’ve got an appearance in Judge Henley’s court in fifteen minutes.”
“See you there.”
Bailey drove us to the Men’s Central Jail on Bauchet Street, where Jack Averly was housed and undoubtedly making all kinds of new friends. The largest county jail in the world, it’s a concrete mushroom of a building that squats across three square blocks and emanates a gray, hopeless despair. As we put our guns in the lockers and passed through security, I held my breath, trying to let as little of the putrid air into my lungs as possible. Bailey went to tell the guards that we needed an attorney room, and I pondered whether I had enough Febreze to get the smell out of my clothes. Terry came through the metal detector and sat down next to me.
“What’s your offer?” she asked.
“One count of murder, I’ll dismiss the other count. It gives him a shot at parole.”
She gave me an incredulous look. “You called me here for that? Forget it.” She started to get up, but I pulled her back.
“Come on, Terry, chill. Where’s your sense of humor? The deal is accessory—providing he gives me the solid truth about everything. No whitewashing bull about how he didn’t do nuthin’ and Ian did everythin’.”
Terry glared at me, but she sat back down. We didn’t speak again until Bailey returned with a guard who said he had a room for us. We entered the tiny glass-walled room and took seats around a metal table. I stared at the windowed hallway Averly would have to pass through to get to us. Within minutes I saw him shuffling in his waist and leg chains, a deputy holding his elbow. When I’d seen him in New York, I thought he had the kind of smart-assy attitude and rangy look that would give him an attractive bad-boy appeal to some. But the county jail had a way of ripping the insouciance out of even the toughest of criminals, and Averly was far from the toughest in this jungle. His eyes were wide and staring and his face looked pinched. So much for the bad-boy appeal. As the deputy chained him into his seat, he barely glanced at any of us, even Terry.
“Jack, the prosecutor says she has a deal for you,” Terry said, jumping in first, no doubt to take control of the situation. “I don’t want you to say a word. Do you hear me?”
He gave a sideways nod, his head tilted away from her, eyes cast down.
“Hey, Jack,” I said, hoping to get him to engage with me.
“Just state your offer. This isn’t a blind date,” Fisk interrupted.
“It kind of is, Counsel,” I said. “I have a feeling Jack didn’t do these murders himself, but I don’t know for sure—”
Jack opened his mouth, but Terry cut him off. “And now you’re baiting him. Make your offer and do it fast or you’re out of here.”
Jack clamped his mouth shut, but a beseeching look flashed across his face. He would’ve gladly taken th
e bait I’d offered, and he was ready to deal. Just what I wanted to see.
“Here’s the deal, Jack: I’ll dismiss the murder charges and let you plead to being an accessory after the fact for both murders. That means a possible low of sixteen months. As of right now, you’re facing a sentence of life without the possibility of parole. Pretty big drop, wouldn’t you say?”
“He’s not saying anything.” Terry turned to Jack. “Right?”
Jack ducked his head and muttered, “Guess not.”
“What I’ll need from you in return for this deal is your testimony. That means your complete, truthful testimony to everything you know about this case. Do you understand?”
“Yeah, I—”
Terry hit the table with her hand. “You don’t speak. How many times do I have to pound it into your head?” She turned to me. “And you. No more questions, got it? He understands.”
I ignored her and continued. “We’ll need you to make your decision soon. Because if you take this deal, I’m going to want you to give statements to me and Detective Keller, and I’m going to want you to testify at the preliminary hearing. Please nod if you understand.”
Jack threw a sullen look at Terry and nodded.
“So that’s it,” Terry said. “Unless you’re adding a year’s supply of Turtle Wax to your offer, I’d like some time alone with my client now.”
“You have one week to get back to me. After that, the deal’s off the table.”
Bailey and I stood to go, and a guard came over to the room to let us out.
“I’ll be in touch,” Terry said.
The guard opened the door, and I began to follow Bailey out when Jack suddenly blurted, “I didn’t kill anyone!” He cowered like a whipped puppy under Terry’s glare, but found the courage to add, “I just need you to know that.”
I nodded. “Thanks, Jack.”
Terry glared at me. “Don’t you have somewhere to be?”
I raised an eyebrow. “Just being polite, Counselor.”
Bailey and I left, and as we walked out into the afternoon boiler room of a day, I breathed a sigh of relief. Even the smoggy heat was an improvement on the permanent stench of Mordor.
