by David Ellis
She’d have left earlier in the day. She’d have left during daylight, making that turn along the road before it was dark. Had I not strung her along into the early evening, she’d have left that morning. Talia and Emily would still be alive.
I got out of bed and went to the bathroom, vomiting until there was nothing but dry retching. I got a glass of water downstairs and sat in the family room, dark and chilly, as the morning sun filtered through the blinds.
Time passed. I didn’t spend it in the way one might expect—lighting a candle, looking over photos. In fact, I spent several hours on the couch drifting in and out of sleep filled with vivid dreams of Talia: The first time we slept together in college, cautious and awkward; an ice-cream cone she threw in my face along the lake one summer afternoon; smiling through tears as she told me she was pregnant; the delivery room, Talia’s remarkable cool during eleven hours of labor; my dumbfounded fascination as the nurse put the scissors in my hand to cut the umbilical cord. Each time I popped awake, fresh sweat covering my forehead and my heart racing.
As I stumbled to the bathroom, I passed a clock that told me it was just past two in the afternoon, which reminded me that I had work to do today, that today could not be all about mourning. My cell phone rang and I scrambled around the living room to find it. It was under the couch, though I couldn’t recall how that happened.
“Hello?” I managed, my voice sounding like a poor facsimile of my normal speech.
“Hey.” It was Pete. “Wanted to see how you’re doing.”
“Not the best day.”
“No, I know. You wanna—you wanna grab dinner or something? Probably a good day that you could use some company.”
True, but I couldn’t run the risk of being seen with my brother. He had to stay secluded or Smith could sink his teeth into him.
“The day will come and go,” Pete said. “Tomorrow will be better, Jase.” I took a shower in scalding water and threw on a sweater and jeans. Neither Sammy nor Pete could afford the luxury of my wallowing in self-pity. Sammy’s trial started in sixteen days, and while I had a few pieces of a defense, I hadn’t yet decided how to make them fit together.
ACCORDING TO THE FILE Smith had delivered to my house, Ken Sanders had a pretty long sheet of violence and drugs. He’d been in and out of the joint and now worked as a dishwasher at a Greek diner on the west side.
I ordered some coffee at the counter and waited for him to come out. I’d seen a glimpse of him back in the kitchen—what looked like him, at least, compared to a mug shot—and I felt like I knew this guy already. I’d prosecuted this guy, a hundred times over, a guy on a treadmill of crime, having not much of a chance at anything promising once out of prison, so he returns to what he knows best: to criminal activity out of necessity, to drugs out of despair. One of the downsides of prosecution is you get so overwhelmed by these individual tragedies that you wall it off, you focus on the crime and not on the person, leaving you wondering how much sense any of this makes, whether you’re making any meaningful difference at all.
He came out about twenty minutes later and dropped across from me in the booth, reeking of fried foods, his white top wet at the sleeves and stained with various colors.
Kenny Sanders, my black-guy-fleeing-the-scene, looked all of his thirty-eight years and then some, a few scars along his long forehead, blemishes on the cheeks, a scrawny neck that bore a small tattoo resembling some kind of weapon. He had ex-con written all over him—the beaten-down expression, the submissive stoop in his shoulders.
“I’m Jason Kolarich,” I said, though he already knew that. “You were expecting me?”
“Okay,” he said, nodding compliantly but not making eye contact.
“You talked to our friend?”
“Didn’t talk to nobody, boss.”
Right. That would be the story, obviously. “You were at that apartment building on the night of September 21, 2006?”
“Okay.”
“Can you tell me who you were with?” I already had that information, too, courtesy of our mutual friend Smith.
“Jax and Clay,” said Sanders.
“Jackson Moore and Jimmy Clay?”
“Right, okay.” Still nodding.
“And they’ll say you left them about nine-thirty that night?”
“Okay.”
Leaving Sanders with sufficient time to attempt a robbery of, say, a guy who lived two floors up named Griffin Perlini, a mousy little guy who’d be an easy mark, though something might have gone wrong, see, and instead he ended up popping the guy between the eyes. That would be my story to the jury, of course. Kenny Sanders wouldn’t go quite that far, I assumed. Whatever deal he cut with Smith, however much Smith was paying him for this little charade, Kenny Sanders would not flat-out admit to murder—certainly not to one he did not commit. No, the way I figured it, he’d allow himself to be the object of suspicion but nothing more.
“Do you deny you left your friends at nine-thirty that night?”
“Not sayin’, okay.”
Right. “Did you leave your friends on the second floor of that building, head up two flights to Griffin Perlini’s apartment?”
“Not sayin’.”
“Did you attempt to rob him?”
“Not sayin’.”
“And when he struggled, did you shoot him between the eyes?”
“Not sayin’.” He shook his head. “No sir, not sayin’.”
“Did you then run out of the building?”
“Not sayin’.”
“Were you wearing a leather bomber jacket and green stocking cap? Not saying,” I answered for him.
“Not sayin’,” he agreed.
Smith had worked this out with Kenny Sanders just right. There would be provers—Jax and Clay—to put him in that building at the time of the murder, and to have him leave at nine-thirty, which is the approximate window of time that would allow him to go upstairs, kill Perlini in an aborted robbery, and run out of the building.
But Kenny wouldn’t testify to any of that, and he’d take Five on all the hard questions. The jury would hear the invocation of the Fifth Amendment so many times that they’d be repeating it in their sleep. The prosecutor, Lester Mapp, might try to give Kenny immunity to compel his testimony, but Kenny here would just deny everything, and I, the great defense lawyer, would play up the grant of immunity, which typically tells people that someone is guilty of something. If Mapp took the route of immunity, I’d shove it so far up his ass he’d be tasting it for dinner.
Sanders pulled up his sleeve and scratched the dry skin on his arm. This man had been malnourished his entire life, from the baloney-on-white in the local lockups to the inedible garbage that is prison food. This guy started with nothing and would end up that way.
“This is ridiculous,” I said.
“No.” For the first time, Kenny Sanders eyeballed me. “No, sir.”
He needed this, he was saying. He was being rewarded handsomely for giving himself up as a scapegoat. I could follow my conscience and my preppy-white-boy guilt, but Kenny wanted the payday.
“Please,” he said, eyes averted again, nodding insistently. “Please, sir.”
And in the end, Kenny Sanders wouldn’t go down for this. The prosecution had their sights set on Sammy. No, the only thing stopping me was my ethical constraints, and I’d already checked those at the door.
“Okay.” I slipped him my card. “The prosecution’s going to want to talk to you,” I said. “That will happen soon. You’ll probably be testifying even before trial.”
“Okay, yeah. Good, okay.”
“I—have to take this picture,” I said. He knew I’d need to do this.
I had a digital camera I’d given to Talia two Christmases ago. She was the photographer in the family, but I wasn’t completely useless. I snapped Kenny’s photo and stopped at a drugstore on the way home to get the picture developed with copies. When I had it in my hand, I made the call to Tommy Butcher, my only eyewitness.
“I need you to look at something,” I told him.
42
I FOUND TOMMY BUTCHER at the work site in Deemer Park where Butcher Construction was erecting a new facility for the city park district. I don’t recall what previously existed, what had been torn down, but the replacement building was a massive structure, big enough to house indoor tennis courts. First time we met, Butcher had explained to me that his company was a few weeks behind schedule with the project. Apparently that was still the case, if working full-boat on a weekend was any indication.
Men on scaffolding were working on the building’s facade, while others moved in and out of the building through an opening that, one day, would house double doors. Tommy Butcher was surveying their work while he spoke on a walkie-talkie. I caught his eye and he looked away casually, then did a double-take to return to me. He waved to me as he tried to get off his radio. “Okay, Russ, write up the change order and we can decide later. You gotta make a record with these fuckin’ guys, understand me? Now, this isn’t coming from the old man. The old man isn’t working this. It’s coming from me.” He clipped the radio to his belt and gestured in the direction of the building. “These people are gonna be the death of me,” he said.
“The park district?”
He nodded. “Everything’s our fault with these guys. These guys write up the worst specs you’ve ever seen, but we’re supposed to read everyone’s minds. Every time we talk, we gotta make our record with those people.”
“Sounds like someone who’s afraid of a lawsuit.”
He looked at me. “Oh, they’ll sue us. That’s a given. It’s just a question of how much we can get back in a counterclaim.”
So much of the business world is like this now. Litigation is just another cost of doing business, no different than payroll and insurance and bribes to city inspectors. “So, Mr. Butcher—”
“Tommy.”
“Tommy, I have a photo for you to look at.”
He drew back. “No fuckin’ foolin’? You found this guy?”
I struggled with that—or pretended to. “I’d rather not, uh, put ideas in your head.”
The message was clear enough. “You found him,” he repeated.
“Can you just take a look?”
Butcher glanced around before he leaned into me. “Mr. Kolarich, I saw this guy a year ago, runnin’ past me. Right? Understand?”
“Tom—”
“Listen, I saw a guy. I told you that. A black guy. That’s the God’s honest. You tell me you did some digging, you found the guy, I say great. You tellin’ me you got your man? Then it’s the guy I saw. You tell me it’s not your man, then it can’t be the guy I saw. Right?”
I deflated. I couldn’t believe I was even having this conversation. The process was being turned on its head. Usually, Kenny Sanders would be a legitimate suspect only if Tommy Butcher saw him that night. Here, Tommy Butcher saw him only if he’s a legitimate suspect. There are some cops, and maybe some prosecutors, who did it this way. I was never one of those guys. I wore that pride like a badge.
“Hey, look,” he continued, raising his hands, “you got a client who did right by his sister, sounds to me like. Guy killed his sister, so he kills that guy. Me, I might do the same thing. But if it’s me on trial, and there was a black guy barreling out of that building with a gun in his belt, I’d want someone to step up and say so. So I’ll say so. Believe me, I got a hell of lot better things to be doin’ than goin’ to court. But I’ll do it, if you found the guy.”
The wind was whipping up, dropping the temperatures to near freezing. I thought of Talia. I thought of Sammy. And Audrey. I thought about justice and fairness and how rules we put forth to guide a criminal justice system don’t always get it right. There was something larger at play here, a higher ethic. If Sammy killed Griffin Perlini, he didn’t deserve to spend his life in prison. And if he didn’t do it, he sure as hell didn’t deserve a single day inside. No rule of law could alter that truth.
“I found the guy,” I said. “But you didn’t hear me say that.” I handed him a copy of the photo of Kenny Sanders.
He took the photo and didn’t even look at it. “Okay, then. I didn’t hear you say that.”
I told him to keep the photo, which was a subtle direction for him to study it, to commit details to memory. I told him the prosecution would fight his testimony hard and probably try to exclude it prior to trial. Then I left him to his construction project, retreating to my car, safe from the wind. I drove off, secure in the knowledge that I now had two legitimate suspects, Kenny Sanders and Archie Novotny. Each of them was a plausible alternative to Sammy Cutler as the killer of Griffin Perlini. I was disavowing everything I was taught about my profession, crossing virtually every moral boundary, mocking every canon of ethics I had once held sacred. I had fabricated evidence, put words into witnesses’ mouths beyond any typical lawyerly cajoling, and I felt absolutely nothing. No regret. No self-doubt. Just the realization that I was now a lawyer in name only, a man hiding behind a title. I would focus on winning and ignore what I had willingly lost.
“ HAPPY BIRTHDAY TO YOU, happy birthday to you.”
Talia sits patiently at the table, wearing that sweet smile and a party hat we have forced her to don for the celebration. I’ve acquiesced in letting Emily carry the cake, dominated by lit candles, from the kitchen to the dinner table. Talia’s parents join in the singing, her mother holding our infant daughter, Justine. Her parents have glasses of wine in front of them, but not for Talia, who is just beginning to show with our third child, a boy.
“Mommy, how old are you?” Emily asks, taking a seat like a big girl at the table.
“Old enough, honey.” She laughs in her self-deprecating way.
“You don’t get any more birthdays,” says Talia’s mother, Ginny. “Because that means I get older, too!” Little Justine, in her lap, begins to whine. She is shaping up to be a carbon copy of Talia.
I am cutting the cake, screwing it up as usual, as Justine is handed over the table to Talia. I pause a moment to watch them, mother, daughter, granddaughter, the shared olive complexion and dark Italian features.
When her parents have left and the children are in bed, I take Talia in my arms and drink in the smell of her shampoo, the silky skin of her neck, the dark, watery eyes that always seem to project multiple colors, the forming lump in her belly. My heartbeat pounds against my chest, against her body joined to mine, and it feels like I love you doesn’t even begin to cover it.
I BREATHED a sigh of relief when the clock passed midnight, as if there were something magical about the passing of a minute or hour. Sammy’s trial was only two weeks away, and I had many things to do. I had to disclose to the prosecution the additional evidence about Archie Novotny—the photocopies of the checks he wrote to Music Emporium. I had to disclose Kenny Sanders and Tommy Butcher’s positive identification of Sanders. I still had to reach the prosecution’s eyewitnesses—Griffin Perlini’s neighbor and the elderly couple on the street who ID’d Sammy as the killer.
I had to find Smith and the people he represented, because they would probably try to kill Pete and me once Sammy’s case was over.
Two days from now—Tuesday—I would appear in court to argue for the expedited DNA testing of the girls found behind that school, or otherwise a delay in the trial. Smith hadn’t been shy about voicing his objection, and I was still hoping he might back down on Pete—call off his witnesses and let Pete off the hook in exchange for my dropping that motion. Or maybe Smith would make a wrong move and somehow expose himself. It wasn’t much more than a long shot, but it was all I had.
Other than Denny DePrizio, that is. Another long shot.
Question marks. I had plenty of them. And I was running out of time.
43
SMITH FINGERED A BREADSTICK, considering it but unable to bring himself to eat. The private room in Locallo’s was dark but warm, a comfortable setting, and the rigatoni was the best he’d ever h
ad in the city, but his appetite eluded him this evening. He replayed the entire course of events leading up to today, wondering if he could identify a particular misstep on his part. The only misstep, he decided, was in underestimating Jason Kolarich.
“The fuckin’ guy knows how to play poker,” he said. “That motion he filed for the DNA testing and to delay the trial. He knows he’s hit a nerve. He’s trying to force our hand.”
“He’s desperate.”
“Yeah, but so the fuck are we,” Smith said. He drained his Scotch and felt worse for doing so. “The question is, does he know why we’re desperate?”
“No.”
“You don’t know that. You hope that.” Smith looked squarely at Detective Denny DePrizio.
“I’m telling you,” said DePrizio. “He doesn’t know which way is up. He’s desperate, but he doesn’t have a clue. He basically told me he was waving the white flag. He said you had him boxed in. He said he had no way of finding you, unless you accidentally left your fingerprints on that briefcase or the cash inside.”
Smith didn’t know his adversary sufficiently. That had been his problem all along. Jason Kolarich hadn’t been his choice; he was Sammy Cutler’s pick. And Kolarich was proving to be more difficult to manipulate than he’d thought.
“That guy’s a stubborn prick.” Smith looked at DePrizio. “I don’t think we have a choice now. Do we? I think he’s going forward with that motion in court. The judge is going to move the trial date and let him do DNA testing. With all the publicity after those bodies were found? Of course she will. We don’t have a choice.”
“He’s bluffing,” DePrizio said. “He’s taking a free shot at getting you to let his brother off the hook. He won’t go through with it.” DePrizio scooped up a healthy fork full of linguine and shoved it into his mouth.
