by David Ellis
Mr. Kolarich, I’m Lieutenant Ryan with the State Troopers. I’m afraid I have some bad news, sir.
I drove back from the cemetery with the windows down, breathing in the earthy, foul smell of the autumn air, the deadening leaves and mold, the crisp air whispering across me in a crosscurrent, wondering why I still made this daily trip to Talia’s and Emily’s graves but unable to stop. It was my one hour a day, my break, but it only made reality all the more gut-wrenching.
I closed my eyes as I pulled up to a traffic light outside the cemetery, trying to squeeze the sights and sounds from my mind, knowing that I could push them away but not wanting to.
Looks like they died on impact, the state trooper tells you. You accept the statement without question, wanting to believe it was a painless death, knowing that an infant child in a car seat probably would have survived the impact but unable to fathom the possibility, the probability, that neither of them had died on impact, that both of them had drowned.
“You’re in a special place now,” I said aloud, cursing a God that would have let this happen but needing now, more than ever, to believe in His heaven. “You’re in a special place and it doesn’t matter what happened.” A horn honked behind me and I opened my eyes, a considerable distance having opened between my car and the one in front of me, the light green. I gripped the wheel with white knuckles and took deep breaths, my heart rattling against my chest, my arms trembling.
You were supposed to live. You were supposed to have a childhood full of happiness and then become an artist or a doctor or a—you were supposed to fall in love with someone and have children of your own and be compassionate and warm and loving and happy and I—I wasn’t—I wasn’t there when you needed me. I wasn’t there ever. Not ever.
I slammed on the brakes and stopped just short of the SUV idling at a light in front of me, two children in the backseat turning their heads. I wiped thick, greasy sweat from my forehead and struggled to breathe. This happened, from time to time, when I let it get the better of me. I would calm in a few minutes, and it would wash away to my default mode.
That’s what happens to those of us who get to live. We fight through, grit it out, and move on to something better. It’s the dead who have to settle for what they had.
10
I MADE IT to the detention center by two o’clock, having calmed down from my lunch appointment. I had to get my act together for Sammy’s sake. And I was pretty sure I could do it. If there is one thing I took from my father, it was that ability to compartmentalize. He was a bitter, insecure asshole who could charm a rattlesnake when he turned it on. My version came in a different flavor—I was about as charming as a rattlesnake—but I could focus when the need arose.
I wondered, briefly, how Sammy would feel about his lawyer being pretty sure he could handle his case, but by then a guard was showing me back to the glass conference rooms. You get to know these guards, who are usually your typical robotic public servants, and it always pays to get on their good side. That’s always been my instinct, being nice to the staff, because they can make your life easier, though I wasn’t really sure what good it was having a prison guard on my side. Either way, for some reason entirely unknown to me, prison guards are not big fans of defense lawyers. And most of them, I’ve seen more humor in a hungry alligator. This guy pushed the door open like he didn’t want anything to do with me and pointed at the table where I was to sit.
“This is great, thanks,” I said to the guard. “I’ll start with a shrimp cocktail, and maybe I can see a wine list?”
The guard didn’t see the humor. “You being smart?”
“That was my first mistake. I’ll talk slower next time.” I opened the small file that Smith had given me on Sammy’s case. Sammy and I hadn’t discussed the details of the case yesterday. It was enough for us, yesterday, to simply reconnect after a long separation.
The case file was relatively small, but sufficient to tell me that the state had a pretty decent case against Sammy.
Griffin Perlini had answered his door on the evening of September 21 at about nine o’clock, whereupon he was greeted with a bullet from a .38 special through the forehead. A neighbor saw a man in a brown bomber jacket and green stocking cap running down the hallway. A married couple, strolling the sidewalk outside, positively ID’d Cutler as the man they saw passing them at a sprint, coming from the apartment building where Perlini lived. And a security camera from a convenience store down the street caught Sammy’s eight-year-old Chevy parked outside.
I’d reviewed a copy of that tape, typically grainy footage with a real-time clock running in the corner of the screen. The camera was positioned in the store’s back corner, providing an overview of the entire shop, including the front register, and continuing to a small area outside the store. At the time of 8:34 P.M., a beat-up Chevy sedan pulled up next to the convenience store, parking mostly out of the camera’s sightline but, alas, the rear end of the car was in full view—including the rear license plate, which confirmed it was Sammy’s beat-up Chevy. The car remained there until 9:08 P.M., at which time it drove away, out of the camera’s view. The time frame matched up perfectly with someone who drove to Perlini’s apartment, got in and killed him, and left. The only silver lining was that the camera could not, at any point in time, show the front of the car, or who got in or out—but Jesus, it wasn’t exactly a quantum leap here.
Once the police visited his house to inquire, Sammy didn’t exactly acquit himself well. He was asking for a lawyer before he had the door open. Then he changed his mind, at the police station, and unleashed a tirade against Griffin Perlini before they even mentioned why they were questioning him. He never outright confessed but that’s like saying Custer never outright surrendered.
I reviewed the list I had made: 1. Neighbor witness—saw man in brown jacket, green cap fleeing
2. Married couple—ID’d Cutler running from apartment building
3. Security video—Cutler’s car parked down street
4. Police interview—Cutler brought up Perlini’s name spontaneously
The case against Sammy looked pretty solid. Eyes at the scene, his car on camera at the scene, and a statement tantamount to a confession. But what was missing from all of this was what, in my opinion, was the most obvious element of the defense.
Sammy had pleaded a straight not-guilty. What he should have pleaded was a diminished-capacity defense, probably temporary insanity. He should admit he killed Griffin Perlini and tell the jury why—because Griffin Perlini was a child sex offender who had preyed on Sammy’s sister, Audrey. No jury would convict Sammy on those facts. Hadn’t his public defender explained that to him?
Sammy walked in, deputy escort in tow, and remained silent until the guard had locked him to the table and left the room. He had darker circles under his eyes than yesterday, and those eyes fixed on me with none of the curiosity and tolerance from our first meeting. He nodded without enthusiasm at the case file in front of me as he reached for his cigarettes. “So you know everything?”
You never know everything from a cold file. “They have you at his apartment building at the time of the murder,” I said. “You got any valid reason to have been in that neighborhood?”
He shook his head. “Nope.”
“You own a thirty-eight special?”
“Nope.”
The cops didn’t recover the gun, which was something, at least. Nor did they recover the brown bomber jacket or green stocking cap from Sammy’s place. Obviously the theory would be that Sammy tossed the gun and clothes, but at least plausible deniability was an option.
“Anyone ever borrow your car?”
Sammy stared at me with a sour expression. “Yeah, there’s this guy who goes around killing child molesters who wanted to borrow my car that night. You think that might be important? Should I have mentioned that before?”
He was in a real mood. What did he think, I wouldn’t ask him any questions? But I played along. “This vigilante, d
id he own a brown jacket and green stocking cap?”
He didn’t seem to like my return volley. He was pissed off about something. Maybe it was my questions, which reminded him of how tight the state’s case was. Maybe it was the fact that he was looking at life in the pen. It felt like something more personal.
“Sammy, your public defender ever mention a diminished-capacity defense?”
He blew out smoke with disgust. “What’s that? You mean the insanity shit?”
That’s what I meant. Temporary insanity, irresistible impulse—the idea that Sammy was so overcome with rage after seeing his sister’s killer that he lost all ability to act with reason.
“Yeah, he mentioned it, and I said no.” Sammy leaned forward, banging his manacles on the table, eyeing me. “I’m not saying I was nuts. I may not have a fancy law degree, but I ain’t nuts.”
Okay, so it was directed at me. But I didn’t have time for it. Sammy needed to see the big picture here. I silently cursed his public defender for not helping him do so. Diminished capacity was the obvious play here.
I said it quietly, trying to defuse the hostility. “Listen, Sam—all you’d be saying is that your act was legally justified. You get to tell the jury why you killed that piece of shit. And the jury would go along with that, Sam. If you say you didn’t do it, then everything that Griffin Perlini did in his past, to Audrey, to others—none of that is relevant. It’s not relevant because you’re saying you didn’t kill him. My guess is the judge wouldn’t even let the jury hear about all the sex crimes Perlini committed. So you go to trial on this murder beef, and you and I know what Griffin Perlini did—we know all the shit he’s done—but the jury has no idea. You get me?”
“Yeah,” he said evenly. “Even without a college degree, I get you.”
I sighed. My take was that Sammy had thought about things last night, how things had turned out for the two of us, and he was figuring that he’d drawn the short straw. “Listen, your best defense is to say, yes, you killed him, but here’s why—because that scumbag killed your sister. I think the jury would walk you, Sam. That’s more important than some damn principle. You get your life back. Let’s tell the jury what he did to your sister.”
By now, Sammy had broken eye contact. He was being stubborn but, I thought, also had trouble, to this day, thinking about what happened to his sister. I was hoping my plea had sunk into his logic. “And how do we prove what he did to my sister?” he asked me.
Well, now, he had a point. The police couldn’t stick anything against Griffin Perlini back then. They had a pedophile with a history, they had photographs of Audrey—and many other girls—found all over his coach house, but they never found Audrey’s body and couldn’t get a confession out of him. That was the extent of my knowledge of the case, from the perspective of a seven-year-old boy. The cops couldn’t prove their case. But now I’d have to revisit all of this. I would have to find a way to prove that Griffin Perlini killed Audrey Cutler.
“Maybe—maybe look at other people he hurt,” said Sammy. “Other families had a beef with this guy, right? Audrey wasn’t the only one.”
It was an obvious thought, a good one. But Sammy didn’t seem to be rushing forth to proclaim his innocence, so I doubted that pointing the finger at another father or brother or victim of Griffin Perlini’s crimes would ultimately get me anywhere.
“I’ll do that,” I promised. “But I need more than a month to prepare, Sam. I need six months, minimum.”
Sammy shook his head. “No. No more time. I want out of here.”
“If you make me go to trial in four weeks, you’ll never get out of here.”
“I said no.”
I sat back in my chair. I understood that he’d want out of this place, but trading a couple months for a lifetime in the pen was an easy call. What was the problem here?
“Let me do this the right way, Sam. The jury will see a child killer. They’ll see the anguished brother. We’ll have a fighting chance.”
Sammy remained motionless, but I could sense violence welling up within him. His hands were balled in fists, his arms and shoulders trembling. A shade of crimson colored his rugged face. I didn’t blame the guy, but I didn’t see what the problem was. I was right, and we both knew it.
I decided to change topics. “Tell me about Smith. What’s his story?”
It took him some time to decompress. His only bodily movement was a faint shrug of his shoulders. “Guy says he represents some interested parties or shit.”
“Other victims? Their families?”
“You’re the guy went to college.”
“Shit, Sammy, what the fuck do I know about this guy? I don’t even know his real name.”
Sammy took out some frustration on his cigarette, stubbing it into oblivion. “Guy says people wanna help me. They got money. They can get me some fancy lawyers to spring me. I say, you gonna get me a fancy law yer, I want Kolarich. He says he can get me someone better. I say it’s gotta be someone I—”
He stopped there, emotion choking his throat. Someone I trust, he was going to say. Sammy probably hadn’t received sparkling representation in his previous forays into the criminal justice process. He was counting on an old friend.
“You should’ve called me day one, Sammy. I don’t care about money.”
“Well, you’re here now, and you’re gettin’ your money, so win this fuckin’ case. I’ve been sitting in here for a year and I ain’t waitin’ more than four weeks, and I sure as shit ain’t gonna say I was crazy. This guy Smith, he’ll give you what you want. So win this case, all right, varsity athlete?”
With that, Sammy pushed himself out of his chair, though he couldn’t move from his position with the manacles. He nodded to the guard, who walked to the glass room and opened the door. “You owe me, Koke,” he said. The guard unlocked him from the table and led him out.
“I know,” I answered, after he’d left the room.
11
YEAH, that Sammy’s one piece a work.”
Patrick Oleari, the public defender assigned to Sammy Cutler, parked himself in a chair in the diner located in the criminal courthouse basement. All around us, defense lawyers and prosecutors negotiated plea deals and traded war stories over weak coffee and crappy deli sandwiches. I’d caught up with Oleari after court, just after four. He’d been in a hearing all day and was having a very late lunch, the life of a trial lawyer. Oleari had been out of law school for five years, compared to my nine, but he had plenty of experience as one of the state-provided defense attorneys to the lowest of the low.
I remember being this guy, though as a prosecutor, not a PD, grinding through the intermediate levels of the county attorney’s office—traffic, juvie, misdemeanors, the three-days-on, three-days-off of felony review—waiting for the Show, the felony courtroom. It was a noble endeavor, to be sure, putting away the bad guys, but in truth it felt more like selfish fulfillment. I was like most of them; I would never be a “lifer.” I wasn’t a true believer, but I relished the sport of the thing and dreamed of a payoff in the private sector one day.
“Anyway.” Oleari wiped at his mouth. “They have eyes on Cutler leaving the house. They have a store vid of his car parked outside the vic’s apartment building. And Sammy didn’t exactly distinguish himself in the interview.” Oleari shook his head. “I mean, this thing has ‘diminished capacity’ written all over it. But try telling him that.”
I did. Apparently Oleari had struck out on that score, too.
“Did Sammy tell you he killed Perlini?” I asked.
Oleari made a face. “No, but the evidence did.”
Right. I said, “I have to get Perlini’s past in front of the jury. If they know who they’re dealing with, they’ll acquit anyone the prosecution puts in front of them.”
“I know it. I know it.” Oleari gave up on his soggy roast beef sandwich and wiped his hands with a napkin. “Judge already ruled on that, y’know.”
I didn’t know. I didn’t have t
he entire file yet.
“Judge Poker said Griffin Perlini’s priors for child molestation are irrelevant.”
I was afraid of that. As long as Sammy was claiming he didn’t kill Perlini, it made no difference whether Griffin Perlini was the pope, the CEO of General Motors, or a two-bit child predator. I would have made the same ruling if I were the judge. The murder victim’s history makes no difference if the defendant is merely claiming that he didn’t do it.
But Sammy wouldn’t plead diminished capacity. He wouldn’t claim he temporarily lost control. That left me with a case that looked pretty damn strong for the prosecution.
“There’s one guy.” Oleari was using a toothpick. “One guy who says he saw some black guy running from the apartment building at around that same time.”
A black guy fleeing the scene. As a defense attorney, I wasn’t above stereotypes, and white jurors might be willing to buy into the idea.
“Was he wearing a brown jacket and green stocking cap?”
Oleari smiled, then shrugged. The truth, I figured, was that he didn’t know the answer. The interview had probably been conducted by one of the PD’s investigators, and a trial that was four weeks away, in the chaotic life of a public defender, might as well be four years away. “So you got a nice elderly couple that ID’d Cutler, you got a neighbor that saw the same guy with the bomber jacket and ski cap just outside the vic’s apartment, plus the store vids, plus Cutler’s incriminating statements to the cops—”
“And on the other side, I have one guy who saw a black man running.”
“Right. So unless you got a jury from Simi Valley, you better talk Sammy into a temporary insanity defense.”
By the tone of his voice, it was clear that Oleari didn’t expect me to have any more success than he did in that area. But a lightbulb went on. I still had a couple of synapses firing in my brain. “You got Griffin Perlini’s criminal history in your file?”
