by Marcia Clark
“And I want to make sure we’ve got all of the bank records for both of them, any safe-deposit boxes—I know we didn’t find any in California, but we should check out of state. That ransom money’s got to be somewhere.”
Bailey tapped the steering wheel as she stared at the afternoon crowds. “You know, it’s possible Averly stashed the ransom money in New York.”
“Yeah, that should be an easy search. Somewhere in New York.” Bailey shook her head, and I turned my thoughts to a more immediate issue. “I was planning to add accessory charges to Averly’s counts and take him to prelim on everything. But now I’m starting to think we should dismiss the murder counts.”
“And just go after him as an accessory? Why? Why not wait until after the prelim?”
“Given the evidence we have now, there’s a real possibility the prelim judge will dump our murder charges anyway and only hold him on the accessory counts. If that happens, it’ll look like we were overreaching—”
Bailey nodded slowly. “True. And even if we got to keep the murder counts, I’m not all that excited about our chances with a jury—”
“No.” I didn’t believe we had proof beyond a reasonable doubt that Averly knowingly aided and abetted the murders. If I didn’t believe it, then I couldn’t ethically put those counts into a jury’s hands. “And it might take some wind out of Terry’s sails. Now that she has the phone records, she’ll want to rent a Goodyear blimp to holler about how Averly’s been falsely accused. If we beat her to the punch and dismiss the murder counts, it might take out some of the sting.”
“What do you want to bet she’s calling the clerk to set a bail review hearing even as we speak?”
I looked at my phone, half expecting it to ring with that news right now. “No bet.”
Averly, like Ian, was being held without bail because double homicide is a capital crime that prohibits bail as long as the proof is evident or the presumption of guilt great. But with the new evidence that showed Averly probably wasn’t personally involved in either murder, Terry would have a good shot at convincing a judge that he was at best an accessory, not an accomplice to murder, and therefore entitled to bail.
“So we may as well get out in front of it and drop the murder charges before she can make us look any worse.”
“That’s the way I see it,” I said. “I’ll call the clerk and get us set for a re-arraignment.” But Terry would probably still insist on keeping our preliminary hearing date, so the new charges wouldn’t buy us any more time. “Did we get any of that surveillance footage from LAX?”
We’d asked for footage of the day of the kidnapping for all gates with flights to JFK or LaGuardia airports to see if we could spot Averly.
“It wasn’t in as of this morning. But we don’t need it for prelim, do we?”
“No. I just want to make sure we keep after them so we have it in time to show the jury. Terry’s not going to waive any time in this case, so we’ll be in trial within sixty days after the preliminary hearing.”
Just saying the words made my stomach knot. There were still a few loose ends that needed tidying, but we were pretty much as ready as we were going to be. What plagued me were the unanswered questions. Not only how everyone ended up on Boney Mountain, but also how Ian and Averly found out about the kidnapping to begin with. As to the latter question, I probably already had my answer. Now that I knew how close Russell and Ian were, I felt sure that Russell told Ian. The problem was, with Russell my staunch enemy, I had no way to prove it. Even if there were phone calls between them at the relevant time, there was no way to prove what Russell had told him.
The grim look on Bailey’s face told me she was well aware of what we were up against.
“Well, one step at a time,” I said. “First, let’s get through this preliminary hearing on Averly.”
I headed up to the office and printed out the new complaint, charging Averly with two counts of being an accessory after the fact. Judge Daglian’s clerk, Manny Washburn, called to tell me that we could do the re-arraignment at nine a.m. sharp tomorrow. “But don’t be late,” he warned. “He’s squeezing you in before his regular calendar.”
“I’ll be there. But tell the judge Terry’s going to make a pitch for bail, so—”
“She already warned us.”
No shock there. I spent the rest of the day catching up on my caseload. By seven o’clock, I decided to head for home. I wanted to make sure I got to bed at a reasonable hour. It was going to be a tough morning.
I woke up on time and tried to prepare myself for the butt-slamming I was about to get from the press. No matter how I tried to spin it, reducing the charges on Averly so dramatically was going to hurt us. We’d be accused of sloppy police work, sloppy lawyering, and overreaching. But it was better to get it over with now, and on our own terms, than lose the counts at prelim—or worse, in the middle of trial. I got in at eight thirty and reviewed my notes for the bail argument. Fifteen minutes later I started to head down to court, but got stuck on back-to-back phone calls from lawyers and witnesses on my other cases. By the time I finished, it was five minutes to nine. I raced out the door to the elevator and punched the button. I glanced down at my watch over and over again as precious minutes ticked by before an elevator finally arrived. By the time I made it to the courtroom, it was five minutes past nine. Judge Daglian was already on the bench—and fuming. Manny, the clerk, was shaking his head.
“Ms. Knight, what does nine sharp mean to you?”
“I’m so sorry, Your Honor. I got stuck on—”
“Not interested. If it happens again you can bring your checkbook. Now, please give the new charging papers to the clerk and counsel and arraign the defendant.”
As I handed out the copies, I noticed there were only two reporters in the audience and no cameras. Odd. I’d expected Terry to call every news outlet in town to witness this early victory. When I’d finished arraigning Averly on the new charges, Terry launched into her bail pitch.
“Your Honor, I remind the court that the defendant is entitled to reasonable bail now that the capital charges are gone. And these tremendously reduced charges prove that the People’s case against my client is unraveling by the minute.”
“So what do you suggest, Counsel? O.R.?” Judge Daglian’s raised eyebrow made it clear that Averly’s release on his own recognizance was not an option.
Terry lifted her chin, the “tell” that she was spoiling for a fight, but she reined in her baser instincts. “I’d say at most a bail of ten thousand would be appropriate.”
“People? You good with that?” the judge asked.
“No, Your Honor, we’re not. Jack Averly has already given us ample cause to believe he’d be a flight risk.” I outlined his trip to New York, how he’d been apprehended at LaGuardia Airport, his possession of Brian’s ID, and his drug history. “I’d ask for five hundred thousand dollars bail.”
Terry sputtered about the “outrageousness” of my request. The judge split the baby.
“I’ll set bail at two hundred and fifty thousand.”
I’d figured we’d land somewhere in this ballpark, and ordinarily I wouldn’t have worried that a defendant like Averly would be able to make bail. But Averly had deeper pockets floating around him than most other defendants. I scooted up to my office and called Bailey immediately.
“I’ll put a tail on him,” she said. “Don’t sweat it, Knight.”
I didn’t have time to sweat it. The press had missed this development on the first bounce, but they more than made up for it now. I got an avalanche of calls demanding information. Sandi, the media relations director, decided it would be best to handle this in a press conference. The conference room off Vanderhorn’s office was so crowded, reporters were sitting on the floor. For a change, I was glad Vanderhorn had asked me to stand next to him at the podium. He’d be within arm’s reach if I needed to throttle him.
But he started well enough. “As I’ve said before, this investigation is
ongoing. It is not uncommon to amend charges as new information comes in—”
A reporter shouted out, “But this is a big drop. Why didn’t you know about this phone call between Powers and Averly sooner?”
Vanderhorn cleared his throat—a typical stalling tactic of his—and said, “It is our duty to be ever vigilant to the possibility that new information will change the complexion of a case, and to be willing to make any necessary alterations, as we have done—”
Another reporter, smelling blood, chimed in. “Yeah, but he’s asking why you didn’t know about that call—isn’t checking the defendant’s phone records one of the first things you do?”
Vanderhorn drew himself up with a deep breath, and I could tell he was getting ready to bury them in more PR blather—which would only piss them off. I stepped in. “Yes, but the call came from Brian’s phone—not Ian Powers’s.”
There was a moment of complete silence as they all absorbed the new information. Then the questions started flying hot and heavy. “Does that mean Averly wasn’t there?” and “So where was Averly when the murders went down?”
Vanderputz had barely moved to let me reach the mike—heaven forbid he step out of frame—so I was practically standing on his feet as I fielded every question for the next fifteen minutes. And even though he really had no information to give, he didn’t let that stop him from flapping his gums. Every other question, he interceded with brilliant observations like “Investigations are always ongoing” and “Information comes in continuously.” By the time Sandi finally ended the conference, I wanted to grab him by his tie and slap him until my arm fell off. But I was too tired.
54
That evening, as I headed down Broadway toward the Biltmore, my cell phone rang. I thought it might be my soil expert, so I answered.
A fast-talking, excited voice said, “Rachel, it’s Benjamin at KRFT radio—can I put you on the air to answer a few questions about today’s proceedings?”
My face grew hot with anger. I tried to rein it in as I answered, “No, Benjamin. How did you get this number?”
“Rachel, everyone has the number. We just haven’t used it until now.”
Furious, I ended the call on as polite a note as I could muster. My cell rang another five times before I got to my room and turned it off. If I changed my number, would they just get it again? Probably. The only thing I could do was to screen my calls and let every unknown number go to voice mail. Feeling hounded, I went to take a shower. But before going to sleep, I made sure all my friends and witnesses had assigned ringtones.
Graden and I settled on Drago Centro, a fantastic place just a few minutes from my hotel, for dinner that Saturday night. I told him about the siege I’d undergone with the press. “Matter of fact, I just had an idea. Would you record the outgoing message on my cell? Maybe it’ll cool their jets if they hear a male voice when they call.”
“You sure you want me to?” Graden asked, smiling. “It might start a rumor.”
Preoccupied with the case, I needed a minute to understand what he meant. “Why would they know the male voice belongs to someone I’m…uh, seeing?”
Graden held up my phone and clicked the “Record” button. “Hello, you’ve reached Rachel Knight’s phone and this is her boyfriend, LIEUTENANT Graden Hales. You can run, but you cannot hide. If you harass her, I will find you.” He clicked off, then clicked it on again and added, “Thank you. Have a nice day. And don’t leave a message. I wouldn’t if I were you.”
I didn’t know how badly I’d needed to laugh until that moment.
Over the next few days, I checked in with Bailey and talked to Declan about trial strategies in general. But otherwise, I kept my head down and worked.
By the day of the preliminary hearing, I was as prepared as I could possibly be. Clouds had moved in during the night, and the morning air was heavy with the promise of a summer shower. With no appetite for breakfast, I left early, hoping to beat the rain, and took an umbrella just to be on the safe side.
My phone started ringing as I crossed First Street and didn’t stop the entire trip. This time I knew better than to answer. But I noticed no one left a message. Thank you, Graden. I ducked into the courthouse just as the first few drops of rain began to fall, and was early enough to avoid running into the press.
I don’t usually like to wait in court, and whenever possible, I get the DDA who regularly works the calendar in that courtroom to give me a call when my case is almost up. But it’s not a foolproof strategy, and I have found myself in the hot seat for being late more than once. So today I decided to take no chances. I was front and center when the bailiff opened the courtroom doors. Surprisingly, I was the only one. There wasn’t a reporter in sight. Weird. The clerk, Manny Washburn, looked at me with surprise when I walked in.
“Rachel Knight, the first one in court?” He put his hand to his forehead. “I think I feel faint.”
I walked over to his desk. “Must be all that Wite-Out you use on your minute orders. I’m here on the Averly case. Can I get first call?”
“No one’s used Wite-Out since 1980, Rachel. And since you’re the first one in, who else would I give first call to? My mother?” Clerks are often smartasses like this. It’s the natural evolutionary adaptation to being around so many lawyers. “And I know what case you’re here on. I’ve had about fifty calls from the press in the past hour.”
“But I didn’t see—”
“Because the judge banned ’em all. Said he wasn’t going to have a circus in his courtroom. So no cameras.” I let out an exasperated sigh. “Sorry, Rachel, but it’s not like you’re having that good a hair day.”
I ignored the gibe and sat down at counsel table. I’d wanted the public to see the evidence so they’d know that, contrary to what they’d heard from the televised ass-kissers, this case was no sham. Just this once, press coverage would’ve been a good thing. We’d probably still get some print coverage—the judge couldn’t keep the reporters out. But nothing gets the public’s attention like television.
Terry strode in a few minutes later and, with a curt nod to me, started to unpack her briefcase. Lawyers, witnesses, and the friends and family of defendants and victims began to arrive after that, and within half an hour, the courtroom was full.
Judge Daglian took the bench and began to call his calendar. When he got to our case, Terry stood. “Your Honor, my client bailed out last night. As you requested, I gave his passport to your clerk this morning. But Mr. Averly had some matters to take care of before court and told me that he’d be just a few minutes late. If the court could please put us on second call.”
“I will. But he’d better be here by second call or he’s going right back into lockup.”
Bailey came in, murder book in hand, and sat down next to me in the attorney section. “How much longer?” she asked.
I told her what Terry’d said. “Did your guys tell you he’d bailed out?”
“No. Be right back.” She hurried out of court.
Twenty minutes later, the judge called our case again.
Terry stood, her expression stony. “Your Honor, I haven’t heard from my client, but I can assure you he’ll be here shortly.”
“Have you tried to reach him, Counsel?”
“Yes, I’ve left several messages. I believe he must be on his way.”
Bailey rushed back in and came over to me. “Ask for a sidebar,” she whispered. “I’ll go with you.”
When we gathered at sidebar, I told the judge that Bailey had information for him. He motioned for her to speak and she leaned in.
“Your Honor, I had Mr. Averly under surveillance. I just found out that there was a triple homicide in the area last night, so the detail was pulled off to help secure the scene. Patrol officers went to his apartment just now and knocked on the door. They got no answer. So they contacted the manager and got him to check inside—”
“I object to any search—” Terry barked.
“Doesn’t matter, Co
unsel,” Bailey said. “There was nothing to see. The apartment’s empty. He’s gone.”
55
The judge turned to Terry. “Who posted his bail, Counsel?”
“I—don’t know, Your Honor. All I know is that Mr. Averly called to tell me he’d bailed out. I didn’t ask how.”
Probably because she didn’t want to know.
“Well, it should be easy enough to find out,” the judge said. He motioned for his bailiff to come over.
“Your Honor, I think we should be putting all of this on the record in open court,” I said. “I see no reason why this information should be kept under wraps.”
I was plenty mad, but I wasn’t about to miss the opportunity to give the defense a little bad press. If Averly was on the run, he looked guilty as hell, and that made our case look that much better—against both him and Ian Powers. Terry objected, but the judge agreed there was no reason why the public couldn’t know that Averly had absconded. When he announced that Averly was at large, the entire spectator gallery erupted in gasps, and one reporter even yelled out loud, “You’ve gotta be kidding me!”
“Come to order!” the judge declared, fixing that reporter with an infuriated glare that would’ve melted a normal person. “You don’t speak. You observe, with your mouth closed. Got it?” He turned to the bailiff. “I want to know who posted his bail. In the meantime, I’m issuing a bench warrant for the arrest of Jack Averly. Detective Keller, please give the information on him to the clerk. I guess for now, that’s all on the matter of People v. Jack Averly. Next case.”
As we packed up to make room for the next hearing, I studied Terry’s face for any sign that she’d known this was coming. She might be one hell of an actress, but it didn’t look like it to me. In fact, she looked pretty angry.
Bailey and I walked out to the elevators, trailed by reporters, all of whom were shouting questions: “What does this do to your case?” “Were you planning to make him an offer to testify against Powers?” “Who do you think bailed him out?” I brushed by them all with a “No comment” and left them to stampede Terry as she walked out of the courtroom. Over the ding of our elevator, I heard her say, “I have no doubt my client will return. Jack Averly wants his day in court and he knows the People have no case.”
