by Marcia Clark
“I can’t friggin’ believe they dropped the ball like this,” Bailey said when we got off on the eighteenth floor. Her face was white with anger.
I waited until we got to my office and closed the door. “Ian had to have been the one to bail him out—”
“Probably his money, but I doubt it was under his name—”
“I’m sure it wasn’t,” I said. Ian had a lot of friends—probably in both high and low places—who’d be glad to do him a favor. “But I don’t see why Ian would help him run. He had to know that Averly turned down a deal to testify against him. Ian had nothing to worry about.”
My office phone was ringing almost continuously. The press was in full feeding frenzy mode. I watched with a sense of vengeful satisfaction as Melia put each line on hold. She’d route them to Sandi in her own good time. Let those reporters get a taste of Melia’s efficiency for a change.
“But Averly did. He knew you’d prove the accessory charges. So maybe he was freaked out about doing a few years in prison after all.”
And maybe Ian knew better than to trust Averly’s resolve once he found himself locked up with Bubba in a four-foot cell. I was frustrated, but there was nothing I could do now except hope that Averly stumbled and got caught. Out of the corner of my eye, I noticed it was still raining—though it was more of a heavy mist with fine, thin drops. I watched them fall for a moment. “There is at least one bright side: it makes Averly look guilty as hell, and that spills over onto Ian as well.”
“True. And you want another bright side? Terry Fisk is out of our hair.”
I turned back to Bailey as the realization sank in. “Man, that is good news.”
“We’ve got another week and a half before Ian’s prelim, right?”
“Yeah, and all I have left to do is see what I can pull out of the coroner,” I said. “If it’s really juicy, I might save it for trial.”
Bailey stood. “Look, I want to get into it with the unis who were supposed to be watching Averly, so—”
“Go. See you later.” I didn’t envy those patrol officers. Bailey can really blast when she’s angry. And triple homicide or no, someone really should’ve stayed behind to keep an eye on that jerk.
With Averly out of the picture for now, I had time to work on my other cases. But first I searched my phone for the ringer control and turned it off. Better. But I could still see the blinking lights for my two lines. I covered the buttons with a file folder. Perfect. No more sound, no more fury. I put my head down and worked until almost seven o’clock. I packed up to leave and had just reached for my cell when it vibrated. I looked at the screen. The number was vaguely familiar, so, thinking it was one of my witnesses, I answered.
“Hello?”
“Rachel Knight, how are you this lovely evening?”
The now-familiar British accent told me it was my buddy from the National Inquisitor, Andrew Chatham. I cursed myself for not realizing why the number looked familiar. “I’m fine, Andrew. But you know I’m not going to tell you anything, so why waste your time?”
“Because you may change your mind and I’m the sort who’s ever hopeful. I can be useful, you know.”
My silence told him what I thought about the likelihood of that statement. Now listening only for a chance to end the call with a graceful exit line, I juggled my purse onto my shoulder and snapped my briefcase closed.
He resumed. “Proof of my worthiness: You have not seen the last of Terry Fisk.”
I stopped and clutched the phone. “What do you mean?”
“She’s joining Ian’s team.”
56
I called Bailey and told her what I’d just heard.
“Damn,” Bailey said. “Well, so much for our good news.”
To put it mildly. My shoulder sagged under the weight of my purse, which now felt like it was loaded with bricks, and I could barely pick up my briefcase. I decided to leave it in the office for tonight. I was exhausted; there was no point in pretending I’d get any more work done. But tired as I was, a nervous ball of energy burned in my gut. Prosecuting someone who was not only a major Hollywood player but also one who’d been like an uncle to the victim—and one with a history of “giving back” to the mean streets where he’d been born—was a daunting task in itself. Adding a pit bull like Terry Fisk to the mix would make it an unending bloody battle to keep the evidence from getting buried under a morass of defense red herrings and a barrage of laurels for Ian Powers the Wonderful.
I was grateful to find the elevator empty and slumped back against the wall, eyes closed, as it hurtled down to the lobby. At this late hour the evening crowds were long gone, and I was nearly alone as I headed for the glass doors at the back of the building. I fished out my cell phone and turned on the ringer as I made my way out of the building.
I’d just turned onto Broadway when I heard pounding footsteps coming up behind me. Before I could turn to see what was going on, a batch of reporters closed in and shoved microphones in my face. Over their shoulders, the black lenses of video cameras glared at me.
“Ms. Knight, pundits are saying you had enough to go after Averly for murder—that you shouldn’t have dropped the charges to accessory—so why did you really dismiss his murder charges?” And “Former city councilman Mel Berman says it’s your fault Averly bailed out and ran! What do you have to say to that?”
A number of pungent responses crossed my mind—among them “Who cares what a former city councilman, and especially that idiot, thinks?” but I was just too damn beat. So fatigue alone was responsible for my giving the safest answer.
“As a prosecutor I’m ethically bound to proceed only with charges I believe a jury would find to be true beyond a reasonable doubt. That’s all I have to say.”
It was such a politically correct, neutral statement, I couldn’t believe it’d come out of my mouth. This damn case might actually be altering my DNA. I pushed through the crowd and moved as fast as I could without breaking into a run. A few reporters chased me for a minute or so, yelling for my response to the pundits, but when they saw I wasn’t going to give any more answers, they gave up and fell back. But I couldn’t stop myself from looking over my shoulder the whole way home, wary of yet another ambush. I reluctantly admitted that from now on I’d better drive to work. I made a mental note to ask Eric to get me a parking space close to the building.
Winded and depressed, I dragged myself back to my room. It’d been a long, hard day…again. I treated myself to a glass of pinot gris with dinner and by the time I got into bed, I was so drained my eyes closed before my head even hit the pillow. But when I fell asleep, I dreamed that my legs were chained together and I was being chased by a pack of pit bulls. Zombie pit bulls. Go figure.
I didn’t need to rush into the office the next day. I had no court appearances, and there were no witness interviews scheduled. I called Eric to tell him what had happened with the reporters when I’d left yesterday evening, and he got me secure parking under the courthouse. No one would be able to get to me now—at least not outside the courtroom. I’d given Declan the day off. He had to take care of a root canal. I told him that would ensure he’d still feel as though he’d spent the day in court. I got to work early, just because I needed to get busy, doing…something. It was good that I did, because at eight forty-five, I got a call from Judge Daglian’s clerk.
“We just got notice that Wagmeister wants to come in and advance the case,” she said.
Meaning he wanted the case moved up to an earlier date. “Did he say why?”
“No. But he said he’d be here at ten o’clock. Can you make it?”
I wanted to say no, but I’d only be delaying the inevitable. “Yeah.”
I called Bailey and asked if we could push the coroner meeting.
“I’ll check. So you think this is it, Terry’s joining in today?”
“I do.”
“Okay. We still have over a week before Powers’s prelim, right?”
“Right. We�
�ve got time.”
Wrong. We didn’t.
This time a phalanx of waiting reporters surged toward me as I stepped off the elevator, and cameras clicked and flashed in wave after wave as I “No commented” my way down the hallway. Obviously, Judge Daglian’s distaste for the media had been short-lived.
As expected, Terry was standing next to Don Wagmeister at the defense table. Ian Powers was dressed in one of his many multi-thousand-dollar suits. He looked a little tired—no doubt because the sheriff’s deputies got him up before five a.m., standard wake-up time so they could get prisoners on the bus to court. But otherwise, Powers was impeccably groomed and looking very calm. A young law clerk was dispatched to hand me the written motion giving notice that Terry Fisk would be joining the defense team for Ian Powers. Usually, adding an attorney is not a big deal, and no formal motion is either required or given. The lead counsel stands up in court and says so-and-so is joining the defense team. This formal, written motion was an obvious grandstand play. Until now, Don hadn’t made a lot of noise in the press. And as long as he didn’t engage, I didn’t have to push back to counter his spin. But I had a nasty feeling those relatively genteel days were over.
Wagmeister, wearing an unusually sedate tie, waxed unusually eloquent for the occasion. I’m sure it was just a coincidence that the cameras and recorders were all pointed his way. “I would like to advise the court that I will be joined in the defense of this case by my most esteemed colleague Ms. Terry Fisk.”
Judge Daglian thanked him for the notice. “Why does this require a formal appearance, Mr. Wagmeister? As long as the fees are coming out of your client’s pocket, he can have twenty attorneys as far as I’m concerned.”
And he probably will before this is over, I thought, even if they don’t all get paid. You’d be surprised how many lawyers are willing to donate a little pro bono time when it means an appearance on the five o’clock news.
“Yes, Your Honor, I understand, and I would not have taken up this court’s time if that were the only matter. I’ll defer to Ms. Fisk to present our next motion.”
I watched as Terry moved to the podium between the defense and prosecution counsel tables. A wave of camera clickings followed her every step, and when she got to the podium, she took her time adjusting the microphone down to her height, giving the photographers a chance to get their shots. And they’d be the best she’d ever had, because she looked terrific. Freshly styled hair, minimalist makeup, sharp suit—it was all working for her.
“Your Honor, at this time the defense will be requesting to reset the preliminary hearing for an earlier date.”
“And what date do you propose?”
“The day after tomorrow.”
What? I held my breath and prayed that the judge would say he couldn’t do it, that his calendar was full.
“People?” the judge asked. “Is that acceptable?”
I took my time as I rose to respond. “I have all my witnesses scheduled for the following week solely because Mr. Wagmeister chose that date—”
“If you’re unable to proceed on an earlier date, that’s fine, Ms. Knight. The court understands you relied upon counsel’s prior representation.”
Terry interrupted. “Excuse me, if I may, Your Honor. I have a suggestion. One that might alleviate the People’s problem. If the People can’t be ready, the defense will waive the preliminary hearing.”
Ian Powers wore a little smile as he shot his cuffs and straightened his jacket. The few reporters who understood what Terry had just said began to buzz, and those who didn’t know were nudging them for explanations. The buzz grew to a loud hum.
The judge banged his gavel. When the hum died down, he spoke sternly. “I’ve allowed all this press because I believe in the public’s right to know, but I will not have the courtroom disrupted. If you have something to say that just can’t wait until recess, say it outside.” Two of the reporters rushed out of the courtroom, but the rest stayed put.
The offer to waive prelim was a clever move. The burden of proof at a preliminary hearing is very low. All we have to show is that there’s “probable cause” to believe a defendant committed the crimes charged. When there are civilian witnesses, especially eyewitnesses, the chance for the defense to grill them early on and explore weaknesses—not to mention get statements on the record they can later use at trial to show inconsistencies—can be critical.
But in this case, Terry wasn’t giving up much, if anything, by waiving. And there was a big bonus in it for the defense: if there was no hearing, the evidence of Ian’s guilt wouldn’t come out until the trial. That would keep a lot of bad press off Ian Powers. Some of the evidence would dribble out through pretrial motions, but it would probably only be covered by print reporters. There wouldn’t be the kind of widespread publicity we badly needed to swing public opinion—or, more to the point, the jury pool—our way.
If I objected to Terry’s waiver, it’d either look like I wanted the public airing—which, though true, wasn’t cool, because it was an obvious effort to sway the jury pool—or look as though I wanted our evidence to be challenged, as though I didn’t really believe in my case. I had to decide quickly. Was it worth getting slammed for wanting to publicize our evidence? If I let the defense waive prelim, it’d be at least two months before I had the chance to put the evidence out there in any cogent way. I decided I couldn’t lose this critical opportunity. The battle for the hearts and minds of the jury pool had begun and it was time I joined it.
“As much as I appreciate the defense’s kind offer, the People must regretfully decline. We would like to proceed with the preliminary hearing. If I could have a moment to check with my investigating officer about witness availability, I’ll be able to tell the court whether I can make the requested date.”
“Go ahead, Ms. Knight,” the judge said. “I’ll give you second call.”
I moved to the end of the empty jury box, as far from the highly tuned ears of reporters as I could get, and called Bailey. When I told her what had happened, she erupted.
“Why the hell is the judge letting them do this?”
“He’s not, Bailey,” I whispered, my hand covering my mouth. “If we can’t get it together, he’ll deny the motion and give us more time. But it’d look a lot better if we do it without the extra time.” It was all about not showing any weakness. With the press breathing down our necks, every single move would be scrutinized and every talking head would give his or her own interpretation. A request for more time would play like we had a weak case and were scrambling to shore it up.
“Well, they’re almost all criminalists and techs, so it should be doable. Stand by. I’ll make sure.”
I stayed at the end of the jury box, my back to the rest of the courtroom, and pretended I was still on my cell so no one would talk to me. A few minutes later, Bailey called back.
“All clear. Only problem might be the coroner. But since they’re being so amenable about waiving prelim—” she said.
“Yeah. They should be willing to stipulate to the coroner’s testimony.”
I passed the defense on my way to the clerk’s desk and deliberately said nothing to either lawyer. Wagmeister put out a hand to get my attention, but I ignored him.
When the judge called the case, I said that we could be ready with all witnesses except the coroner. So if the defense would agree to stipulate to that testimony—
Terry jumped up. “The defense will be glad to stipulate. We don’t intend to contest the fact that someone murdered these victims.”
“Very well, then I’ll see all parties back in this court the day after tomorrow, eight thirty sharp.”
As I turned to go, I saw a reporter lean over the rail that separated the lawyers from the spectators and ask Terry for a comment.
If I got lucky, some channel would have a talking head who’d explain why I had to refuse the waiver. But I couldn’t worry about that now. I had a day and a half to get ready for a hearing that would be carr
ied on nearly every station in the country from coast to coast.
57
The day of the preliminary hearing dawned hazy and blistering. Even at seven thirty, I had to take off my jacket as I headed up Broadway. I’d needed to walk to calm my nerves, and I was pretty sure I wouldn’t get ambushed by the press today. They’d be too busy lining up to get seats in the courtroom. As usual, my perennially ringing cell phone kept me company all the way. Maybe I’d miss it when the case was over…but I doubted it.
The courthouse was surrounded by satellite trucks, and as I reached the back door, I saw that there was a line of people waiting to get in and a huge crowd clustered on the front steps of the building. One young ponytailed woman held up a poster with an enlarged photograph of Ian Powers. Underneath his picture was the caption FRAMED. Another woman, who was wearing a beret, carried a poster titled NOT GUILTY. A beret? In this heat? Who could take someone like that seriously? As I entered the lobby, I heard chanting, but I couldn’t make out the words—and didn’t want to. A throng of reporters with cameramen filled the elevator waiting area, so I opted for the stairs. Already hot and tired, after two flights in the concrete and metal staircase, I emerged on the third floor wringing wet and out of breath. I had to find time to get to the gym. If only so I could outrun reporters.
I really wanted to keep climbing so I could avoid any run-ins with the press, but I couldn’t face even one more flight of stairs, let alone make it up to the eighteenth floor. I punched the “Up” button and crossed my fingers. When I heard the ding of an arriving elevator on the far-right side, I ran to catch it. But as the doors opened, I saw that it was packed to the ceiling with reporters. One of them pulled up his camera, but I quickly stepped back and moved to the left, out of their field of vision. The next elevator that came was equally packed, but I didn’t notice any cameras. Not much better, but I had to get to the office at some point. I slid in and tried to squeeze myself into a corner where I could face away from everyone. Just as the car bounced to a stop on the fifth floor, one of the reporters said, “Hey, aren’t you—”
