“You couldn’t foresee it,” Sophie said.
“That’s no excuse.”
“It’s done, Dennis.”
He had returned home to Springhill and handed Queenie O’Hare’s report to Bibsy. His mother-in-law had scanned it, sighed, and said, “It’s true that I said those things. Perhaps not those exact words, but something like them. And it’s true that Scott was a little harsh when he told me to be quiet—when I think about it now, I don’t blame him. But I will tell you just one thing. I’ve thought a great deal about it, and I truly believe it’s the only thing you need to know in order to act properly as my lawyer. And that thing is this: I did not murder those two people. I didn’t assist them in suicide. I did not inject them with anything. I want you to believe me, Dennis. Do you?”
“Yes, I do,” Dennis said uneasily.
But belief in innocence did not rise to the level of religious faith. You could have it one moment, and it could be gone the next. If Bibsy were innocent, how to account for what she had said to Queenie O’Hare? And why had Edward Brophy lied? Dennis had difficulty accepting the dentist’s simple explanation of wanting to help his old friends. The whole matter of the false burial was ugly The empty graves in the cemetery were not proof that the victims at Pearl Pass were Henry and Susan Lovell. But proof was one thing, knowledge another.
If it was euthanasia, why carry it out thirty miles away and well above 12,000 feet? Stricken with a fatal illness, the Lovells might have said, “We want to die in the wilderness we love.” But there was plenty of wilderness only a few miles away from their home. And why the arrow through the heart of their dog? Had the killers wanted to approach silently? Or was the death of the dog a mischance unrelated to the deaths of Jane and John Doe?
Dennis wondered about all this.
“But do you believe my mother?” Sophie asked him, standing outside the courthouse.
“Her fingerprints were on the pillbox. Your father’s fingerprints were on the Remington rifle found near the graves. There has to be a theory for a rational defense. I haven’t come up with one.”
“That’s not an answer to my question.”
He stamped his foot on the pavement. “Sophie, what do you expect me to believe? I want to believe her. It’s not easy.”
Sophie measured him carefully. “Nevertheless, you’re going in that courtroom to win this case for her.”
“There’s no case yet to win or lose. There’s just an accusation.”
“You’ve got to believe in her!”
The force of Sophie’s cry startled him. “Listen to me,” he said. “I’ll do all that’s humanly possible to get her and your father out of this mess. Guilty or innocent makes no difference. I’m her lawyer. I let her down by abandoning her the day she came down here for fingerprinting. I had a lot on my mind. I had other things to do, but I made the wrong decision. I owe her. If there’s a case to win, I’m prepared to go all the way to win it. For her, Sophie—and for you.”
Judge Curtis Florian gazed down from his leather chair behind the high oak bench. On the wall over his head in Pitkin County’s only courtroom was affixed the blue-and-gold seal of the state of Colorado. Next to the seal hung an electric wall fan that the judge’s court clerk would switch on two or three times each summer. It never grew seriously hot in Aspen, and even when the temperature soared into the eighties there was barely any humidity. But it was January now. The temperature on Main Street was twenty-five degrees Fahrenheit.
The spaciousness of the high-ceilinged courtroom added to the atmosphere and presumption of authority. The judge’s domed forehead shone brightly under the fluorescent lighting. Judge Florian was a man well into his sixties, with sagging ears and narrow cold eyes. His downturned mouth gave rise to the notion that justice might be bad-tempered. For a while he gazed down in silence at the three lawyers standing in the well of the courtroom.
Ray Bond, powerful arms akimbo, pink face seemingly about to burst like a party balloon, represented the state. He was the deputy district attorney in the Ninth Judicial District and the prosecutor. Dennis Conway, the new boy on the block, was one of the two defense lawyers. The other defense lawyer, Scott Henderson, had double billing: he was one of the two defendants.
Sophie and Edward Brophy were squeezed together in a rear pew of the courthouse.
The judge’s thin chest rattled audibly. He didn’t like it when a defendant insisted on his right to defend himself pro se. It usually meant that the court had to bend over backwards to help the “lawyer” proceed with his case, for it was generally agreed that such a lawyer had a fool for a client. In this case, however, the accused himself was a real lawyer, a member of the Colorado bar, albeit retired. He should not need help. The judge still didn’t like it. You never knew what might happen and how an appellate court would deal with the proceedings. Judge Florian’s sternness and lack of facial ease covered up a chronic indecisiveness. When he had to make up his mind about something he believed to be vital, he broke out in hives. In civil cases he always encouraged the adversary lawyers to come to a pretrial settlement. In criminal matters he encouraged plea bargaining.
Beatrice Henderson, the second defendant, sat alone at the long rectangular defense table. She looked at ease—Grace Pendergast had put her on twenty milligrams of Valium a day. Every now and then in the past few weeks since Dennis had read the deputy’s report and seen the results of the fingerprinting, he had said to her, “Are you all right, Bibsy?”
And Bibsy had unvaryingly replied, “Yes, Dennis, I’m on Valium, you know.”
Dennis worried about it but decided to let it be. If she were to take the stand as a witness in her own defense, that would be another matter. But they were a long way off from that possibility.
Dennis had made no decision yet about Bibsy’s testifying. He rarely did in a criminal trial until the prosecution presented its case. It was usually better not to have the defendant testify; the cross-examination could be crushing. But sometimes it was the only way to save a lost cause. Amend that, Dennis thought. To try to save a lost cause. He had seen too many defendants commit legal suicide on the witness stand.
Soon after he had begun practicing law in New York, Dennis had as a client a man named Lindeman, a city official accused of accepting bribes. Prior to trial, Dennis asked Lindeman, “What did you think when you were first approached with the proposition?”
Lindeman said, “I was worried. I didn’t like to break the law. I was hurting for money, but it didn’t seem right.”
Dennis told Lindeman to say it that way, and in court with his client on the stand, he asked the rehearsed question. Lindeman replied, “I thought, How do I know this guy’s not an undercover cop? And then I said to myself, ‘There just isn’t enough money in it.’ “
Dennis broke into a sweat and was afraid to ask any more questions. Later, Lindeman said, “I can’t believe what I did. It just flew out of me.”
What had flown out of him was the truth. The truth, struggling for air to breathe, for space, for supremacy and vindication. Lindeman had been found guilty and sentenced to five to ten years.
But Dennis believed he could win the Henderson case—unless something more were to happen that he didn’t know about and couldn’t predict. His attention drifted, as often happened when he was someplace he didn’t want to be. He certainly would have preferred not to be in this courtroom as lawyer for the defense. His client hardly talked to him. She was not angry at him. She was just distant, at ease under the influence of Valium.
The judge said, “You had a motion to make, Mr. Conway? Is that what you started to say a minute ago?”
Dennis’s mind snapped back into focus. “Yes, Your Honor.”
“Proceed.”
Dennis moved forward into the well of the courtroom and looked up into the face of the judge. “Your Honor, even before any hearing regarding bond, I would like to move to dismiss the charge, the information, against my client, Mrs. Beatrice Henderson. I believe that Mr.
Henderson will move also to quash the information against himself as codefendant.”
Scott nodded genially in agreement. Dennis waved some papers in the direction of the bench. “This information submitted to the court by the district attorney’s office,” he went on, slowly gathering momentum, “is compounded almost totally of circumstantial evidence, and flimsy circumstantial evidence at that. There are fingerprints found at the crime scene on a silver pillbox. We freely admit that a box answering this description once belonged to my client, but there is a glaring lack of evidence to indicate that this box was left at the scene at the time the crime was committed. Or for that matter, that it was left there—at any time—by Mrs. Henderson. There are fingerprints found on a rifle, and those prints are alleged to be those of Mr. Scott Henderson, the codefendant. But the rifle, Your Honor, had nothing to do with the crime. It was merely found at or near the crime scene. No one knows who owned that rifle. It did not belong to my client. It was never in her care or custody or in the codefendant’s care or custody. The state will be unable to prove any such allegation, and I’m pleased to note that they haven’t even attempted to make it. So the prints prove nothing. They are fluff and bluff.”
Dennis paused. He didn’t want to go too quickly. He wanted the judge to absorb the facts, sort them out, and hang on to them. He had heard that the judge had a thoughtful, somber demeanor, but for the most part it cloaked a slowness of perception.
Judge Florian nodded at Ray Bond. “And what say you to that, Ray, on behalf of the People?”
Ray? Dennis felt a twinge of dismay. Aspen was a sophisticated and overpriced part of the world, but it was still a small town. The legal community had done business together for years, broken bread together at Men’s Club luncheons, waved to one another on chairlifts, cheered in unison at high school hockey games. Dennis wondered if he was being put in his place—and being so informed—by virtue of his being a newcomer. As for the Hendersons, it also bore in on him that they too might be looked on as foreigners; indeed, the local good-humored expression was downvalley dirtbags. How much was jest and how much was evidence of that class structure which Americans so vigorously denied and so religiously practiced? Springhill—remote, insular, supposedly unfriendly—might even be in a worse category than merely dowmvalley.
Ray Bond stepped forward, blue eyes aglow with pleasure—a man who loved his work. To complement his no-nonsense blue serge business suit, the deputy district attorney wore black elephant-hide boots with pointed toes. After Vietnam, Dennis had gone through a boot period, and he knew that those elephant-hide boots on Bond’s feet had cost the prosecutor in the neighborhood of $1,000.
The heels clicked like gunshots as Bond strode across the courtroom’s parquet floor. “If it please the court,” Bond said, “I’d like to explain to defense counsel the way I see the nature of what he calls ‘flimsy circumstantial evidence.’ “
The judge nodded his approval. Bond swiveled his narrow hips and turned his attention to Dennis. “This is a true story, sir. I’m sitting in my living room one Sunday and I hear a crash outside in the street, where my green Ford Explorer is parked by the curb. My wife and I run out and there’s a brand-new big dent in the fender of the Ford, with a red streak. And about fifty yards down the road, at the end of a trail of antifreeze, there’s this old red Chevy pickup that’s run up on someone’s lawn at a cockeyed angle. We can hear that the guy behind the wheel is trying to get his engine started. And his front bumper has a big streak of green paint that matches the color of my Ford Explorer.”
Ray Bond faced Judge Florian. “Your Honor, I didn’t see him sideswipe my car. And no one else in the neighborhood saw it. I have only circumstantial evidence to go on, plus common sense. What does common sense tell me? The only intelligent explanation—and I’ll bet my paycheck that counsel for the defense, even though he probably never saw a Chevy pickup until he moved here from New York, will agree with me—is that the guy in the Chevy hit my Explorer. If I had to I could have made a case out of that and won it hands down. Just like I can make a case out of what we’ve got against Mr. and Mrs. Henderson. And if we can get an impartial jury of Colorado folk with a minimum of common sense, which shouldn’t be difficult, I believe I can win.”
Dennis had already guessed that this speech was one that Ray Bond made time and time again to the judge and to various juries. Before this trial’s over, he decided—if there’s going to be a trial—this man’s going to make me puke. I just hope that when I do it he’s close enough so I don’t miss his boots.
Dennis stood again. “Your Honor—”
Judge Florian raised a pale hand. “I heard you out, Mr. Conway, and I heard Mr. Bond. Anyway, the evidence isn’t all circumstantial. Isn’t there the matter of the confession? You don’t call that ‘circumstantial,’ do you?”
Dennis took a copy of Queenie O’Hare’s report from his briefcase. He arched his back a little, so that the vertebrae crackled. As firmly as he could without risking judicial wrath, he said, “Your Honor, I’ve studied the document you refer to. I’m obliged to point out to the court that it is not a confession. That word has a specific meaning and this report does not qualify. It’s a report of a conversation in a moving vehicle in which, allegedly, Mrs. Henderson makes several statements about—I quote—’what we did up there at Pearl Pass.’ Judge,”—Dennis raised the pages between two fingers, far from his face and equally far from the judge’s bench, as if they were contaminated—”please read carefully. Is there anything that Deputy O’Hare claims my client said about what she did, specifically, up at Pearl Pass? No, there is not. The deputy leaves that out, because Mrs. Henderson made no such admission or confession. What she said barely rises to the level of vague reminiscence.”
Dennis waited, mustering as grave an expression on his face as he was capable of.
“Anything more?” the judge asked.
“No sir.”
Judge Florian said, “I’ll let a jury decide about that matter. I’m the judge of the law—the jury is the judge of the facts. I’m going to tell them that. Let them decide if it’s a confession, or an admission, or a reminiscence, as you put it, or even a daydream of this charming deputy, Ms. O’Hare. Mr. Conway, I’m going to deny your motion to dismiss the charge. The information has merit. This court accepts it. So let’s move along.”
Dennis absorbed the blow. He looked at Bibsy, who seemed calm. Sophie, in the rear of the courtroom, had gone pale.
“Did you come here prepared to plead?” Judge Florian asked Dennis. “And if so, how does your client plead?”
“Not guilty,” Dennis said.
“And you, sir?” The judge looked down at Scott Henderson, who stood tall in his old, well-cut, wide-lapelled gray flannel suit, looking like a contemporary Moses.
“Not guilty,” Scott said.
“Then we’ll try these two cases together. Anyone object to that? If so, I’ll hear argument.” The judge looked from one lawyer to another.
“The People don’t object,” Bond said.
“I don’t either,” Scott said.
Dennis knew there was no hope to ask for a severance. Under other circumstances he might have battled to separate the two defendants, on the theory that he didn’t want to be burdened by what Scott might have done at Pearl Pass or might say in court. But these were his wife’s parents: it was nearly impossible to separate them in terms of his feelings, or to let one of them suffer a fate different from the other’s. And it certainly would be more efficient and less painful to try them together.
“Mrs. Henderson does not object,” he said.
“The defendants will stand trial together. We come to the matter of bond. Ray?”
The prosecutor said, “Judge, this is first-degree murder. The People don’t believe that bail is proper in such cases. There’s plenty of precedent and I won’t insult your knowledge of the law by quoting it to you. We request no bail for either defendant.”
“Mr. Dennis Conway?”
Progress, Dennis realized. First I was “Mr. Conway,” and now I’m “Mr. Dennis Conway.” After twenty years of practice here and fifty more lunches at the Ritz-Carlton, I might be just plain “Dennis.”
“These defendants,” he said, “are long-term citizens of the community. They have absolutely no criminal record. All their property is in nextdoor Gunnison County. Their family is here. They’re taxpayers. They’re not young. It’s not their habit to travel. On behalf of Mrs. Henderson, a registered nurse who served her township for nearly forty years before retirement, I ask for bail on her own recognizance. And Mr. Henderson—a lawyer, an officer of this court—joins me in that request on behalf of himself.”
The judge made an effort to convince the lawyers that he was considering the request. The truth was that he had made up his mind on all these matters days ago, in chambers, while munching an apple and drinking a Sprite for his afternoon snack, and nothing short of startling new evidence would have forced him to change his intentions.
“Mr. Ray Bond,” he said, “I have to tell you the presumption of guilt in this case is not great. It’s there, but it’s not overwhelming. And there is definitely a great deal of circumstantial evidence alongside that reported confession. Mr. Scott Henderson was arrested on what I’d call bare probable cause. Mr. Dennis Conway’s comments about the nature of Mrs. Beatrice Henderson’s alleged confession have some merit. So, no, I am not going to pen these people up until the day of trial.”
He turned to Dennis. “But I can’t let them just wander around under their own recognizance, sir. There’s no precedent for that in a first-degree murder case. These folks will have to post bond of $250,000 each. They own property up in Springhill, and everything’s sky high these days, so that should make no problem. You can work out the details with my clerk. Now, as to the matter of the trial date …”
Scott Henderson stood. “Your Honor,” he said in his deep, lawyerly voice, “under the Colorado speedy trial statute, I’m allowed to request trial within ninety days. I so request. I’ll be ready in ninety days, and I’m sure Mr. Conway will be ready on behalf of my wife.”
Clifford Irving's Legal Novels - 03 - THE SPRING -- a Legal Thriller Page 14
