by Marcia Clark
“I’m outta here,” Bailey said. “I’ll tell ’em all to be here by eight thirty.”
“I’ll be in my cave,” I said.
I spent the rest of the day in my office getting ready for my last witnesses. There wasn’t that much to do. They were all crime lab people. I intended to put Leo back on to give the defense fingerprint whore, Poplar, another thrashing, and Barry Feinstein, the head of the DNA section, who’d supervised Gelfer’s work on this case. He’d say that from what he’d seen, Gelfer had followed proper procedures during the testing in this case. He wouldn’t be able to say he’d watched him every second of the day, but it was better than nothing. I’d already had Russell’s threatening letters sent to the crime lab to see if I could do anything with them, but I wouldn’t have an answer on them until tomorrow.
The only thing left to do was work on my closing argument. If everything went according to schedule, I’d be doing it by tomorrow afternoon. I made bullet points of the evidence we’d presented and made a separate list of the zingers I’d save for rebuttal. Since the prosecution has the burden of proof, I’d get to argue twice, once before and once after the defense. That final rebuttal is the golden opportunity where we always stash our “gotcha’s” because the defense can’t respond.
Engrossed, I lost track of the time until Declan checked in. “It’s seven o’clock. Want me to bring you some dinner?”
“Damn. I didn’t realize. Thanks, but no. I’m just about ready to go.”
“Then I’ll wait and give you a lift. You’ve got to be tired.”
Bailey had given me a ride to work, so I didn’t have my car. I knew I should turn down the offer. I needed the exercise and the evening was beautiful. The sky was still bright, but the sun’s rays were low, giving the air a soft, balmy warmth. But I was wiped out. “That’d be great. Just gimme a sec.”
“No rush. Call me when you’re done.”
I called Bailey, just to check in. I got her voice mail and left a message saying I was heading back to the hotel.
When Declan dropped me off, I decided to hit the bar. I needed the break and I hadn’t seen Drew in a while. Being in trial means living in a tunnel, with the courtroom at one end and home at the other—nothing in between. There’s just no time. Anticipating a very dry martini, I opened the heavy glass door and swung into the cool darkness.
And stopped dead in my tracks. Sitting at a table with two other men, just twenty feet away, was the same jerkweed who’d hit me up in the hallway outside my room. Sunglasses and all. I quickly backed out and headed up to my room before they could see me.
I called Drew and told him about my encounter with the asswipe reporter now sitting at his bar, whom I’d nicknamed Sunglasses. “You see him?”
Drew was silent for a moment. “Yeah. What do you want me to do?”
“Would you consider watering down his drinks?”
“Sure, but…” Drew paused a moment. “You know the two dudes sitting with him?”
“No.”
“Call you right back.”
Five minutes later, my cell played Drew’s ringtone, “One for My Baby.”
“Tell me you gave him a water martini.”
“I did you one better.”
“What?”
“Can’t tell you right now. But just to warn you: those other two guys with him? They’re reporters. I hate to say this, but you might want to steer clear of this place for a little while. At least till the trial’s over.”
Damn. Now I wasn’t even safe where I lived. I sighed. “Okay. Thanks, Drew.”
“Oh, and just so you know. I heard them talking. This guy, Sunglasses, is only a freelance. My guess is he’s going guerrilla on you so he can get some footage that’ll score him a real gig. So watch out for him.”
“Will do. But please, whatever you decide to do to this douche bag, make sure it hurts.”
“Trust me.”
I knew I could. Just the thought that payback was being delivered—even if I wasn’t there to see it—was enough to lift my spirits. I was fed up with feeling hunted and powerless to do anything about it.
I’d showered and gotten into my comfy sweats and poured myself a glass of Ancien pinot noir by the time Bailey called me back.
“Hey, where’ve you been?” I asked. “I’m sitting here drinking all alone. Which isn’t all bad since it means more for me—”
“I’ve got good news and bad news.” Bailey’s voice was tight and low.
“Good news.” I’d had enough of the other to last me a lifetime.
“Parkova’s got something.”
I put down the glass of wine and sat up. “What?”
“She called it an MITM attack. ‘Man in the middle.’ It’s a way of intercepting someone’s e-mail without them knowing it.”
“Ian was intercepting Russell’s e-mail?”
“Yep.”
“How?”
“The only words I understood were ‘man in the middle,’ so I think I’ll let her explain.”
“So that’s how Ian knew about the kidnapping.”
“And why he didn’t have to be in Russell’s house at the time the kidnapping e-mail came in.”
“If I call her to the stand, can she prove this?”
“That’s the bad news. Right now, it’s an educated guess. She needs to firm things up—”
“So she needs more time. How much?”
“A few days. I know we’ve only got enough witnesses to fill up tomorrow morning, but if we can stretch them out, we’ll make it. Monday’s Labor Day—”
“Right.” I’d forgotten. But getting there was another story. There was no way the judge would give me tomorrow off. I’d have to stall. “I’ll do my best, but…”
“I know.” Bailey sighed. “Okay, I’m going back in there. Parkova’ll be working all night and I need to follow whatever the hell it is she’s doing so I can write a report for your girlfriend Terry.”
My girlfriend. “Yeah, Fisk and I just booked a spa weekend together.”
Bailey snorted. “For the mud baths.”
“No, she’s got those at home.”
“Anything you want me to tell Parkova?”
“Yeah. Hurry.”
80
I spent the rest of the evening dreaming up ways to stall. Call in sick? Dicey. Shoot Terry? Tempting, but the judge would just make Wagmeister take over. And he’d probably be delighted to do it now that they looked like sure winners. Give some of the jurors food poisoning? Hard work. They weren’t sequestered, so they could go wherever they wanted. Bailey would need to tail them. Bailey might not approve of this plan. I fell asleep with no workable ideas.
But I woke up with a couple. Idea number one: pray for rain. It was far from foolproof, but there were clouds in the sky. Rain was good. Rain meant slow traffic. Slow traffic meant a late start. I did a mental rain dance as I got dressed. I even threw a trench coat over my shoulder to give the weather a little encouragement. As I walked up Broadway toward the courthouse, I looked at the clouds, tried some visualization exercises. Come on, you suckers, pour. But by the time I arrived at work, not a drop had fallen. Proof that the clouds were on the defense dole.
Since the weather had crapped out on me, I was forced to put idea number two into action. I went to Declan’s office and found him hunched over a legal pad.
“Hey, Rachel. Need anything?”
“Yes, but first I have some news.” I told him about the latest development with Parkova.
“Awesome! Finally, the good guys get a break!”
“Doesn’t sound like a game changer yet. First of all, we have to hope the trial lasts long enough for her to firm it up—”
“But if she can, I’ll take it.”
“Me too. But we’ve got to stall, and I think we both know that the judge is not my biggest fan.”
“He’s a tool.”
“This is true. But a tool who still likes you…”
Declan’s eyes widened.
&n
bsp; “I’m putting you in, slugger. All you have to do is remember to talk slowly. But I mean, really, really slowly.” Declan’s brow creased with worry. “You can do it. I know you can.”
The truth was, he had to do it. There was no other choice. If I suddenly slowed my pace and meandered around the courtroom, everyone would know it was an act and I was just stalling for time. But they hadn’t seen enough of Declan to really know what his style was. And after his stumble with Leo’s testimony, if he moved slowly, everyone would think he was just being extra careful. Declan nodded and then he gave a little smile. “Okay, put me in, Coach. We all know I can drop the ball. That should eat up some time.”
His willingness to look less than stellar for the sake of the case was a real sacrifice, and it showed me yet again what a mensch he was. I told him so.
“Just promise that, whatever happens here, you’ll tell everyone that I took the hit for the team.”
“You better believe it. You’ll be the stuff of legend. A current-day J. Miller Leavy—”
J. Miller Leavy was the most famous L.A. prosecutor of all time.
“More like a J. Miller Leavy on downers,” Declan said.
Declan got into character by walking slowly on our way to court.
“You’re killing me, dude,” I said. The slow pace was sheer agony for me.
“You want me to sell this?” I nodded. “Then don’t argue. It’s my process.”
“You hang around too many actors.”
We walked into the courtroom and set up at counsel table…slowly. “I’m busy, don’t distract me,” Declan said. Slowly.
When the jury was seated, Declan stood deliberately, reviewed his notes with great care, and then called our first rebuttal witness. Leo Relinsky. He then reshuffled through his notes for as long as he dared.
“Good morning, Mr. Relinsky. How are you today?”
“I’m well, and you?”
“Just fine, thank you for asking. Mr. Relinsky, is it common to see fingerprints planted at a crime scene?”
Leo stated it was not. Declan consulted his notes, then opened his binder, flipped through some pages, then closed his binder. Finally, he asked his next question. “Why is that?”
While Leo explained, Declan garnished every answer with “Thank you for that, Mr. Relinsky” and “Very interesting, sir.” Then he’d pause and consult his notes before asking the next question.
And when it came time to put exhibits on the monitor, he dropped them, put them in upside down, and then spent minutes readjusting the focus. Each question, punctuated by pauses, took almost a full minute to get out. Only I knew what a great act this was.
And because it was Declan, an obvious newbie whom they hadn’t seen much of, the jury was forgiving and even somewhat entertained by his puppy-like display of nerves. But I knew their goodwill had its limits.
“Mr. Relinsky, are there set standards for how many points must match before you can declare that a print was made by a particular person?”
“Yes, the commonly accepted standard is eight points. I personally won’t declare a match with less than ten, though.”
“Do you know of any expert in the field who doesn’t have a set minimum number of points?”
“Not one who’s qualified, no.”
“Then you don’t ascribe to the Jackson Pollock style of print analysis?”
It was what they call a two percenter—just two percent of the country was likely to know that Pollock was a famous abstract artist—but apparently about four percent of our jury knew, and they laughed. One of them was the Hollywood agent.
Somehow, Declan managed to stretch Leo’s testimony out till almost noon. I knew Terry couldn’t let it go without some cross-examination. Otherwise it’d look as though she’d conceded the fingerprint battle. So Leo was ordered to come back after the lunch break.
“You are, quite simply, my hero,” I said as we ate our turkey and Swiss sandwiches.
“I can pull it out for another hour after Terry’s cross, I think,” Declan said. We exchanged a conspiratorial grin.
“And I’d think our crime lab director’s testimony will take some time. No way they can let him off easy.” No matter how strong the defense was right now, they couldn’t afford to let us off the ropes on the DNA evidence even a little. “But just to be on the safe side, want to take him too?”
“Uh…sure…though if I’m being entirely frank, Your Honor, I must admit…this is slightly embarrassing…I do have some…ah…difficulties with the finer points of deoxyribonucleic acids.”
We laughed. It was the best either one of us had felt in days.
When we resumed after the lunch break, Terry did as minimal a cross-examination of Leo as she dared, but as promised, Declan dragged his feet on redirect. By the time he called Barry Feinstein, our crime lab director, it was almost three o’clock—just as we’d hoped. Judge Osterman called for the afternoon break. That would take us to three fifteen. Every minute helped. Plus, the brief recess gave me the chance to bring Barry in on my strategy. Barry and I went back a long way—to the days when he was a new tech and I was a baby DA. Fun and smart, with a casual style, he knew how to make DNA sound simple. It’d been a real loss to us in court when he went into management. “Take your time, Barry. Explain at length, and talk slow. We need you to be ordered back to finish your testimony on Tuesday.”
Barry raised an eyebrow. “Want to tell me why?”
“Yes, but then I’d have to kill you.”
Barry turned to Declan. Declan gave him a wide-eyed look. “All I heard was the lady telling you to speak clearly so the court reporter and the jury would catch everything.”
I smiled at Barry. “Any further questions?”
Judge Osterman came out and Jimmy called the court to order.
Barry smiled as he faced the judge and spoke under his breath. “No. But I’d just like you to remember this little exchange when you need a rush on your evidence, or you insist on getting Dorian on your next case.”
I winced. Point taken.
The judge called for the jury, and when they were seated, Barry walked over to the witness stand and took the oath. Declan came through once again, slow as molasses and as thorough as could be. And Barry’s testimony was helpful.
“You are familiar with, ahh, Mr. Gelfer?”
“I am.”
“He works in your lab, does he not?”
“Yes, he does.”
“Do you observe your lab workers during testing?”
“Yes, I frequently watch them.” Barry went into a lengthy description of his job duties and the importance of monitoring the actual casework.
“Thank you, sir. That was very interesting,” Declan replied.
If there was a way to string out the questioning any longer, I sure couldn’t think of it.
“Were you in the lab the day Mr. Gelfer performed the DNA analysis on the bloodstain found on Brian Maher’s car trunk?”
“I was.”
“I see.”
Declan shuffled through his notes before he continued. “Could you see whether he brought Ian Powers’s blood sample into the lab at that time?”
“Yes, I would’ve seen that if he’d done it. And no, I did not see Mr. Gelfer bring Ian Powers’s blood draw into the room at any point during testing.”
“I see. Thank you. Could you describe what you saw Mr. Gelfer do that day?”
Barry could. In excruciating detail.
“Are you confident that there was no contamination?”
“Yes, I am.”
Declan nodded. Slowly. “And are you confident that the results were accurate?”
“Quite confident.”
“Thank you very much, sir.”
On cross-examination Terry predictably asked, “You mean, as far as you could see, Mr. Gelfer followed proper protocols, correct?”
“Yes, that’s correct.”
“And he didn’t bring Ian Powers’s blood draw into the lab as far as you coul
d see, correct?”
“Correct.”
“But since you didn’t see his every move, there is a possibility that the evidence sample from the car trunk was contaminated, isn’t there? You can’t rule it out completely.”
“Completely? I don’t know that I can rule out anything in this world completely.”
“So the answer is no, you can’t rule out that possibility, correct?”
“Yes, I can’t completely rule it out.”
Terry raced through her cross. Even on a slow day, she talks faster than anyone I know. But today she was setting a new land speed record. More than once, the court reporter had to stop her and get her to repeat her question. Finally, the reporter lost it. “Counsel, I didn’t get one word of that! If you don’t slow down, you’re going to have to start writing your questions out!”
Terry obviously hoped to force us to rest before the end of the day so the judge would declare the evidence closed. But she didn’t reckon with the awesome powers of Declan Shackner. When Terry finished cross at four o’clock, Declan immediately requested a break.
“Counsel, we’ve already taken our afternoon break,” Judge Osterman said.
“I’m sorry, Your Honor. Some aspects of life just aren’t in my control.”
Judge Osterman sighed. “Fine, we’ll take a ten-minute break. And I don’t mean eleven. Understood?”
“Yes. Thank you, Your Honor.”
Declan made a big show of leaving the courtroom with a fast stride. Barry stepped off the witness stand and came over to us.
“He has a bright future with the DA’s office, doesn’t he?” he asked.
“If I have anything to say about it he does.”
“So what’s the story?”
I told him. He shook his head sympathetically. “Talk about down to the wire. Well, I’m glad to do what I can to help the cause.”
The judge took the bench at ten minutes past four and called for the jury. Barry gave me a private wink and moved slowly up to the witness stand. Declan stalled by scanning his notes for as long as he dared, then had Barry go over every single move he made on the day of the testing in such excruciating detail that even I wanted to pull my hair out. But he did it wisely. Not once did he repeat a question he’d already asked. And at five minutes to five, Declan looked up innocently and told the judge, “I’m about to move into a whole new area, Your Honor. Perhaps the court would prefer to recess now? If not, I’m happy to continue…”
