The Kill Clause

by Gregg Hurwitz

  “They don’t seem like they’re going to clear me. They seem like they’re looking for a scapegoat for a situation that doesn’t demand one.”

  “They will clear you. All the written statements are in and check out. They just sent out a few board members to run your statement through the ringer in-house so steps won’t have to be taken out of house. We don’t want any FBI involvement here. Or some state DA looking to make a name.”

  “What’s the bad news?”

  Tannino puffed out his cheeks in a sigh. “We’re gonna put you on light duty for a while, get you off the street until the press calms down. In a couple of months, we’ll get you qualified on a fresh service pistol.”

  At first Tim was not sure he’d heard Tannino correctly. “A couple of months?”

  “No big deal—you’ll just do analytical work rather than fieldwork.”

  “And while I’m putting my training to use making schedules at the operations desk, what is the unparalleled service PR machine going to be putting out about me?”

  Tannino walked over and examined a Walker .44 cap-and-ball sixgun that hung on the wall, encased in Lucite. A black plastic comb protruded from the back pocket of his suit pants. “That you’ve quite responsibly elected to enroll in an anger-management course.”

  “Absolutely not.”

  “That’s it. It’s a nothing thing. Then headquarters can stand behind your decision to engage with deadly force, and we’re a big happy family again.”

  “What does this have to do with Maybeck and Denley high-fiving?”

  “Absolutely nothing. But this is a bullshit perception game, as you’ll see if you’re ever so unfortunate as to reach my level. And the bullshit perception, because of that goddamn photograph, is that we’re a bunch of bloodthirsty, gung ho loose cannons. If we indicate the shooter is acquiring a heightened sensitivity to anger issues, we cut some of that perception, and the paper pushers at the Puzzle Palace can go back to their normal job, which is doing exactly nothing. In the meantime I get the pleasure of dealing with this on all fronts and of having to ask one of my best deputies—unjustly—to take some shit for us.” His grimace showed more regret than disgust. “The system at work.”

  Tim stood up. “It was a good shooting.”

  “Good shootings are relative. I know that what they’re asking is difficult, Rackley, but you have your whole career ahead of you.”

  “Maybe not with the U.S. Marshals Service.” Tim unhooked his leather badge clip from his belt and laid it on Tannino’s desk.

  In a rare display of anger, Tannino grabbed it and hurled it at Tim. Tim trapped it against his chest. “I am not going to accept your resignation, goddamnit. Not considering what you’ve been dealing with. Take some more time—administrative leave—hell, a few weeks. Don’t make a decision now, in these circumstances.” His face looked tired and old, and Tim realized how much it must have pained him to take the kind of company line Tannino himself had always despised and thought cowardly.

  “I’m not going to do it.”

  Tannino spoke softly now. “I’m afraid you’re going to have to. Everything else I’ll protect you on. Everything.”

  “It was a good shooting.”

  This time Tannino met his eyes. “I know.”

  Respectfully, Tim laid his badge back on Tannino’s desk, then walked out.

  9

  ON TIM’S WAY home a white Camry emerged from the crush of midday traffic to inch alongside him. A flurry of movement drew his attention to the car’s backseat. A young girl wearing a yellow dress was pressing her face to the window in an attempt to horrify nearby drivers.

  Tim watched her. She mashed her nose against the glass, pigging it upward. She crossed her eyes and stuck out her tongue. She feigned picking her nose. Her mother looked over at Tim apologetically.

  The car stayed more or less at his side, lurching and braking in time with him. He tried to focus on the road, but the girl’s movement and bright dress pulled his gaze back to her. Realizing she had Tim’s eye again, the girl fisted her straight blond hair out in Pippi Longstocking pigtails. She laughed openmouthed and unencumbered, as only children can. As she looked for a reaction in Tim’s face, her expression suddenly changed. Her smile faded, then vanished, replaced with uneasiness. She slid down in her seat, disappearing from Tim’s view, save for the top of her head.

  By the time he got home, Tim’s shirt was spotted through with sweat. He entered the house and slung his jacket over one of the kitchen chairs. Dray was sitting on his couch, watching the news. She turned, regarded him, and said, “Oh, no.”

  Tim walked over and sat beside her. Not surprisingly, the chirpy KCOM news anchor, Melissa Yueh, had taken up the shooting. A graphic of a gun appeared in the upper right corner of the screen, in front of a shadowy outline of two hands high-fiving. Tim’s own personal logo. Beneath it stretched SLAUGHTER AT THE MARTíA DOMEZ HOTEL in block letters.

  “Did it go as bad as you look?” Dray asked.

  “They want to let drop I’ve enrolled in an anger-management course, then desk-jockey me till the storm blows over. It lets them cover their asses without admitting to liability or guilt.”

  Dray reached over and laid a hand on his cheek. It felt warm and immensely comforting. “Screw them.”

  “I resigned.”

  “Of course. I’m glad.”

  An attractive African-American reporter came on-screen, soliciting the takes of passersby on the shooting. An obese man with a skimpy goatee and a backward Dodgers cap—the archetypal Man on the Street for the market and time slot—offered his opinion gladly. “The way I see it, a guy’s running from the cops like that, he deserves to get shot. Drug dealers, cop killers, man, I say we execute ’em before the judge’s gavel drops. That U.S. Marshal guy, I hope he gets away with it.”

  Great, Tim thought.

  Next a woman with vivid green eyeliner added, “Our children are safer with drug dealers like that out of the picture. I don’t care how the police get them off the streets, as long as they’re gone.”

  “Look at those people,” Tim said. “No idea what issues are in play.” The bitterness in his voice surprised him.

  Dray looked over at him. “At least you have a few allies.”

  “Allies like that are more dangerous than enemies.”

  “They may not be the most well spoken bunch, but they seem to have a grasp of justice.”

  “And no grasp of the law.”

  She shifted on the couch, arms weaving together across her chest. “You think the law adds up to justice, but it doesn’t. There are cracks and fissures, loopholes and spin. There’s PR, perception, personal favors, and cluster fucks. Look at what just happened to you. Was that justice? Hell no. That was a big, self-cleaning machine clanking forward, squashing you beneath it. Look at how the investigation went into Ginny’s death. We’ll never know what really happened, who was involved.”

  “So you’re mad at me because…?”

  “Because my daughter got killed—”

  “Our daughter.”

  “—and you were in a position—a unique position—to see justice served. And instead, you served the law.”

  “Justice will be served. Tomorrow.”

  “What if he’s not executed?”

  “Then he’ll rot in prison the rest of his life.”

  Dray’s face was flushed, frighteningly intense. She ground a fist into an open hand. “I want him dead.”

  “And I want him to talk. To cough out what really happened when he’s on the stand. So we can know if there’s someone else out there, someone else responsible for our daughter’s death.”

  “If you had just shot him, instead of asking him, then we’d never have been burdened with this mystery. This unknown. It’s awful. It’s awful not knowing and thinking someone out there, someone who we could know or could see on the street and not ever guess…”

  Her face creased, and Tim moved over to embrace her, but she pushed him away. Sh
e rose to head back to the bedroom but paused in the doorway. Her voice was cracked and husky. “I’m sorry about your job.”

  He nodded.

  “And I know it was more than a job.”

  •The early-morning rain had vanished, leaving behind a moist, stifling heat that permeated the courthouse. Tim’s head throbbed with exhaustion and stress. He’d spent the night fidgeting on the couch in a kind of unsleep, sweating off his frustration about the shooting review board and obsessing about the upcoming hearing. He pictured the little girl in the Camry, her arms pale and thin. Ginny’s face at the morgue when he’d drawn back the sheet. The wisp of hair trapped in the corner of her mouth. Her fingernail they’d found at the crime scene, loosed in some desperate act of clawing or crawling.

  His own mind had become hostile, a treacherous terrain. There was less and less of it he could inhabit peacefully.

  Dray sat beside him, rigidly forward, her arms crossed on the bench back in front of them. They’d arrived early and sat in the last row, awash in an unspoken dread. When Kindell had been led in by a young sheriff’s deputy and the shoddily dressed public defender, he’d looked neither as menacing nor repugnant as Tim had remembered. This disappointed him. Like most Americans, he preferred to see evil embodied unequivocally.

  The DA, a sharp, well-put-together woman in her early thirties, had sat with Tim and Dray for a few moments before the preliminary hearing had begun, offering further condolences and assurances. No, she wasn’t making a case for an accomplice, since that could open up the door to a reduced sentence for Kindell. Yes, she was going to nail Kindell’s ass to the wall.

  Despite her prudish name—Constance Delaney—she was a tiger of a prosecutor, with a stellar track record. She opened strong, fending off the defense’s motion to reduce the high bail set at arraignment. She artfully examined Deputy Fowler, working to establish probable cause to bind the case over to trial, while trotting out as little of her case strategy as possible. Fowler spoke clearly, without sounding coached. He left out Tim and Bear’s presence at Kindell’s dwelling without committing anything to the record that could be contradicted. CSU’s delayed arrival to the crime scene did not arise.

  Kindell sat erect, attentively watching all the proceedings, his head swinging back and forth from Delaney to Fowler.

  It wasn’t until the cross that things came unwound.

  “And of course you had a warrant to search Mr. Kindell’s property…?” The public defender shuffled closer to the witness stand, the sheaf of yellow legal-pad pages swaying in his hand. Delaney propped her chin on her fist, jotting notes.

  “No. We knocked and introduced ourselves, asked him if we could take a look around. He clearly gave oral consent for us to search the area.”

  “I see. And that’s when you discovered”—a few moments as the PD shuffled through the sheets of paper—“the hacksaw, the rags stained with what was later identified to be the victim’s blood, and the truck tires with tread that matched that at the scene of the crime?”

  “Yes.”

  “You discovered all of these things after he gave you consent to search the property?”

  “Yes.”

  “With no search warrant?”

  “As I said—”

  “Just yes or no, please, Deputy Fowler.”

  “Yes.”

  “At which point you began arrest procedures?”

  “Yes.”

  “You’re entirely certain, Deputy Fowler, that you Mirandized Mr. Kindell?”

  “One hundred percent.”

  “Was this before or after you cuffed Mr. Kindell?”

  “I suppose during.”

  “You suppose?” The public defender dropped a few of the sheets and crouched to pick them up. Tim was beginning to suspect that his bumbling-lawyer routine was just that.

  “I read him his Miranda rights as I was cuffing him.”

  “So he wasn’t facing you?”

  “Not through all of it. He was turned around. We generally handcuff suspects from behind.”

  “Uh-huh.” The PD’s pencil poked at his upper lip. “Are you aware, Deputy Fowler, that my client is legally deaf?”

  Delaney’s hand slipped from her face, slapping the table and breaking the perfect silence of the superior court. Judge Everston, a small, pucker-faced woman in her late sixties, bristled in her black robes as if she’d been shocked. Dray’s hand pressed over her mouth so hard her nails left red imprints in her cheek.

  Fowler stiffened. “No. He’s not. He understood everything we said to him.”

  His stomach churning, Tim recalled Kindell’s uneven voice, its lopsided cadence. Kindell had responded only when spoken to directly and when he’d been watching his questioner. Tim’s chest tightened painfully, a vise closing.

  The PD turned to Judge Everston. “Mr. Kindell lost his hearing nine months ago in an industrial explosion. I have his treating physician in the hallway, who I’m prepared to call as a witness to testify that he is legally deaf, and two independent complete audiology reports showing bilateral deafness here.” He raised a manila folder, promptly scattering the papers it held, then retrieved them and handed them to the judge.

  Delaney’s voice lacked its usual confidence. “Objection, Your Honor. The reports are hearsay.”

  “Your Honor, as those records were produced directly to the court from USC County Medical pursuant to a subpoena duces tecum, they are exceptions to the hearsay rule as official records.”

  Delaney sat down. With a stern frown, Judge Everston reviewed the file.

  “Mr. Kindell is able to read lips, Your Honor, though only minimally—he’s never received professional instruction in this area. If he was being cuffed during the admonishment, he would have been facing away from Deputy Fowler’s mouth. Any questionable chance he might have had to comprehend his Miranda rights was surely eliminated. His confession was made without any clear knowledge of his rights.”

  Delaney broke in. “Your Honor, if these officers made a good-fai—”

  Judge Everston cut her off with a wave of her hand. “You know better than to come at me with ‘good-faith effort,’ Ms. Delaney.” Judge Everston’s mouth tightened, wrinkles ringing her lips. “If Mr. Kindell is really deaf, as counsel has indicated, there would seem to be a clear Miranda problem.”

  The public defender rocked forward on his shoes. “Further, the defense requests that all physical evidence found at my client’s house be suppressed, as the search was in violation of the Fourth Amendment.”

  Dray’s voice, small and strained, escaped from beneath the hand she held cupped over her mouth. “Oh, God.”

  Delaney was on her feet. “Even if the defendant is legally deaf, he can still give legally binding consent to search, and the evidence should not be suppressed.”

  “My client is deaf, Your Honor. How on earth could he give knowing and voluntary consent for a search-and-seizure request he didn’t even hear?”

  Kindell turned, craning his neck to locate Tim and Dray. His smile was not malicious or gloating, rather the pleased grin of a child allowed to keep something he’d just stolen. Dray’s face was drawn and bloodless and, Tim was fairly certain, a match of his own.

  “What other physical evidence do you have, Ms. Delaney, linking Mr. Kindell to the crime scene and the crime?” Judge Everston’s bony finger emerged from the folds of her robes, pointing at Kindell with thinly veiled disdain.

  “Aside from what we recovered at his residence?” Delaney’s nostrils flared. Her skin had reddened in blotches spreading down her neck to the high reaches of her chest. “None, Your Honor.”

  Something escaped Judge Everston that sounded remarkably like “Goddamnit.” She glowered at the PD. “I’m calling a half-hour recess.” She exited, taking the audiology reports with her, not seeming to notice that half the courtroom forgot to rise.

  Dray leaned over as though she were going to vomit, digging her elbows into her stomach. Tim’s shock was so heightened it actually
set his ears humming and pinched his vision at the sides.

  The recess seemed to stretch on for decades. Delaney glanced back at them from time to time, her pen tapping nervously on her pad. Tim sat numbly until the bailiff entered and called for order.

  Judge Everston hoisted her robes as she took the bench, her short stature apparent until she settled into position. She studied some papers for a few moments, as if mustering the strength to proceed. When she spoke, her tone was heavy, and Tim knew immediately she was about to impart bad news.

  “There are times when our system, with its protections of individual rights, seems almost to conspire against us. Times when the ends justify the sordid means, and we must shut our eyes and take our medicine, despite the fact that we know it will kill a little part of us to serve a greater health. This is such a case. This is one of the sacrifices we make to live with liberty, and it is a sacrifice paid unjustly and by an unfortunate few.” She tilted her head regretfully toward Tim and Dray in the back row. “I cannot in good faith allow evidence which will clearly be overturned in an appellate court. As the audiology reports are unequivocal about Mr. Kindell’s bilateral deafness, it strains my credibility to believe that a deaf man with no formal training in lip-reading comprehended the intricacies of his Miranda rights or the oral consent he was asked to grant. It is not without considerable despondency that I hereby grant the motion to suppress evidence, with respect to the alleged confession and any and all physical evidence recovered from Mr. Kindell’s residence.”

  Delaney shakily found her feet. Her voice quavered slightly. “Your Honor, in light of the court’s rulings suppressing the confession and the evidence, the People are unable to proceed.”

  Everston spoke in a low tone of disgust. “Case dismissed.”

  Kindell grinned sloppily and raised his hands for his cuffs to be removed.

  10