The Kill Clause

by Gregg Hurwitz

  The federal guideline for first-degree murder was life to death. Federal guidelines, as that drunken public defender had pointed out to Tim, were notoriously inflexible. By his own count, Tim was up on at least three counts of murder one and implicated in three other deaths, not to mention the laundry list of additional felonies he’d picked up along the way, including obstruction of justice, conspiracy to commit murder, assault of a federal agent—to wit, a United States deputy marshal—illegal possession of firearms, and illegal possession of explosives. Tim figured he’d better get used to his current lifestyle. Frozen 7-Eleven burritos twice a day for the rest of his life.

  A trial date had been set, he was told, for May 2, which gave him seventy-eight days.

  The second week the congenial corrections officer politely took Tim from his cell and led him to the visitor area. Dray was seated when he entered the room, regarding him through the shatterproof glass.

  She picked up the phone, and Tim followed suit.

  “The photos,” she said. “Those awful photos. Of Kindell. With Ginny. I turned them over to Delaney.”

  Tim chewed the inside of his cheek. “They won’t be admissible. I obtained them illegally.”

  “Doesn’t matter. I’m the peace officer, and I obtained them legally. From a civilian. You.”

  Tim’s mouth moved, but no sound came out.

  “The case is reopened. The arraignment was this morning. Prelim’s in five months—the PD’s scared, so he’s taking his time this go-around. Aging the case.”

  Tim felt a tear swell at the brink of his eye. It fell, trailing down his cheek, dangling from the line of his jaw until he swiped it off with his shoulder.

  They stared at each other for a moment through glass and embedded chicken wire.

  “I forgive you,” she said.

  “For what?”

  “Everything.”

  “Thank you.”

  Her eyes were starting to water, too. She nodded, pressed a hand to the glass, and walked out.

  •The COs offered him books and magazines, but Tim passed his days lying on his bed, reflecting quietly. They let him stretch his workout time in the exercise room to a few hours a day, which helped cut through some of his despondency. He ate poorly and slept well. He spent a lot of time thinking about his murdered daughter.

  Lying on the cracked vinyl pad of the bench press one day, he finally had it—a single pure memory of Ginny, not of the loss of her, just her, untainted by rage or hurt or pain, laughing openmouthed. She’d gotten into a pomegranate; her chin was stained, and her happiness, even recollected, was contagious.

  •The day before his pretrial motion, the corrections officer tapped gently on his door. “Rack, wake up, buddy. Your new lawyer needs to see you.”

  Tim’s attorney, a weary man with droopy features, had gone on a fishing trip to Alaska and elected never to return. Another PD burnout to add to the ash heap.

  “I don’t want to meet my lawyer.”

  “You have to. Come on now, you’ll get me in trouble.”

  Tim rose and rubbed the sleep from his eyes. He splashed cold water over his face, smoothed down his hair, and brushed his teeth with a rubber-handled toothbrush. Pausing at the door, he regarded his blue jumpsuit. “How do I look, Bobby?”

  The CO smiled. “I keep saying. It’s a good color for you.”

  Tim was led down a hall into a dark conference room with no windows save a tiny square of shatterproof glass in the door. Bobby nodded reassuringly and opened the door for him.

  Tannino was sitting at the head of the table, hands laced. In a neat row to his left sat Joel Post, the U.S. Attorney for the central district, Chance Andrews, the presiding federal district judge, and Dennis Reed, the Internal Affairs inspector who’d stuck up for Tim on his shooting review board. Bear stood shouldered up against the wall, one foot crossing his shin and pointing down into the concrete. Opposite them all sat Richard, the public defender Tim had protected from the bouncer that night in the club off Traction.

  The door swung shut behind Tim. He made no move to the table.

  “I hope one of you brought a cake with a file in it.”

  Tannino unfolded his hands, then refolded them, his face maintaining its unamused cast.

  “The thing is…” Bear shuffled a bit against the wall, not quite making eye contact. “The thing is, I forgot to read you your Miranda rights.”

  Post leaned back in his chair, emitting a barely audible sigh.

  Tim let out a short bark of a laugh. “I can give you my statement again.”

  “As your new court-appointed defense attorney, I would strenuously advise against that,” Richard said.

  “You’re my…?”

  Richard nodded.

  “This is ridiculous.” He raised his voice to talk over Richard’s objections. “I wasn’t even in official custody yet in Bear’s office—he didn’t have to read me my rights.”

  Richard was standing, his face red and impassioned. “You were clearly in custody. There was a warrant out for you. You turned yourself in. You were not free to leave. They tape-recorded Deputy Jowalski’s intercom call to Marshal Tannino’s office claiming you were in custody, and when the marshal came over to take your account, he closed and locked the door. You were then held for questioning, even denied medical attention.”

  Tannino regarded Richard as he might the remains of a cockroach smeared in the tread of his loafers.

  “How about my conversation with Bear at Yamashiro?” Tim said. “That’s certainly fair game.”

  “That conversation is covered under attorney-client privilege,” Richard said.

  “Excuse me?”

  “George Jowalski became a member of the bar in good standing on November 15 last year. In fact, Your Honor”—Richard nodded at Chance Andrews—“I believe you swore him in that day yourself.”

  Andrews, an old-school justice with a leathery, venerable face, tugged uncomfortably at his cuffs. It occurred to Tim he’d never seen Andrews out of his robes.

  Richard didn’t dare smile, but his face showed he was enjoying himself tremendously. “Mr. Jowalski confirmed for me in an interview that on the fifteenth of February he agreed to represent you if your shooting review board led to a criminal trial. All future dialogue that you had with Mr. Jowalski regarding criminal matters would be covered under attorney-client privilege, and therefore he cannot testify regarding your consultation in a court of law. Your discussion can’t be admitted. Anyone else’s knowledge of it from Mr. Jowalski is hearsay. Then, because of Mr. Jowalski’s status as a deputy marshal, we have fruit of a poisonous tree—”

  “Attorney-client privilege,” Tannino muttered. “I don’t know how they dig up this stuff. Like pigs rooting for truffles.”

  Richard gave a self-assured little nod.

  It took a moment for Tim to speak through his shock. “Well, I’m willing to come clean again. Let’s do it now.”

  Andrews cleared his throat. “I’m afraid it’s not that easy, son.”

  “What are you saying?”

  Post pressed both hands on the table, palms down, as if readying to do a push-up. “What we’re saying is, we’re having a tough time finding independent evidence.”

  “What?”

  “We need independent corroboration of your account. Robert and Mitchell Masterson are dead, as are Eddie Davis, William Rayner, and Jenna Ananberg. The only accounts we have from potential victims Bowrick and Dobbins are of you acting in a protective capacity. Even the kid at the video store doesn’t want to press charges. He says you were polite, never pulled a gun on him, and he told you you could have the security videos. He’s a bit shaken up and just wants to put the episode behind him.”

  “You certainly knew how to go about things to cover your ass,” Tannino said.

  Post continued, “We have no witnesses to put you with any of the Vigilante Three before the Dobbins event and no direct evidence, no eyewitness testimony, no physical evidence, and no forens
ic evidence—ballistic or DNA—tying you to the Lane earpiece bomb or the Debuffier assault. Hell, we can’t even link your gun to any bullets fired anywhere because the bore is blown apart. The files we recovered at Rayner’s office indicate you were being illegally spied on—that’s all.”

  “Oh, come on,” Tim said. “Run some interrogations around KCOM—someone will be able to recognize me despite the disguise. Maybe the guard who frisked me by the loading dock—”

  Richard was on his feet again, yelling. “You are not supposed to help build the case against yourself.”

  “But we all know I’m telling the truth about my involvement.”

  Post raised his hands, then let them fall into his lap. “It’s not what happened….”

  Andrews cocked his head, somber eyes on Tim. “It’s what you can prove.”

  “Even with evidence there’d be a good chance you’d skate on charges,” Post said. “Since Lane was planning to unleash sarin nerve gas after his interview, you could argue defense of others.”

  “I didn’t have prior knowl—”

  “My client has no comment on that matter,” Richard said.

  “At Debuffier’s house you weren’t even the shooter, and that was clear defense of others,” Post said. “And you didn’t go through with Bowrick.”

  “Fine. How about the Stork’s house? The Mastersons at Monument Hill? You have plenty of evidence. I had their blood all over my shirt.”

  “Eddie Davis died of a heart attack.”

  “You could argue the felony-murder rule.”

  “Mr. Rackley,” Richard said. “Shut up, please.”

  Andrews said, “Mitchell Masterson was clear self-defense, and Robert Masterson…well, even in my infinite legal wisdom, I don’t know if there’s a case to be filed for someone having a booby-trapped gun blow up while attempting to commit murder.”

  Tim held up his hands. “Wait, wait, wait.”

  “Plus, we’d have mitigating emotional circumstances to fall back on, due to your daughter’s death,” Richard said. “Maybe even post-traumatic stress disorder or temporary insanity.”

  “No,” Tim said. “Absolutely not. I knew what I was doing. I was just wrong.”

  Tannino finally raised his dark brown eyes. “You are so goddamned stubborn, Rackley.”

  “Plus,” Richard continued, “you’re a citizen in good standing, you turned yourself in and cooperated with authorities in helping alleviate the threat of the Vigilante Three.”

  “Cooperated,” Tannino muttered. “Hardly.”

  “Throw that on top of your daughter’s murder and the fact that several of the deceased conspired to kill your daughter, and our jury-sympathy factor is through the roof.”

  Tim glanced at Reed. “And this is fine with you?”

  “Just because I’m IA doesn’t mean I like to see the service get a black eye when it’s not necessary. The Rampart case set LAPD back ten years in the eyes of the public. We’re not covering something up—there’s just sparse legal ground to stand on here.”

  “Hanging everything on the other members of the Commission doesn’t seem fair.”

  “Don’t you fucking worry about fair,” Tannino said.

  “The homicides are shit cases, son,” Andrews said. “Take it from me.”

  “In light of insufficient evidence and a lack of independent corroboration, I have to decline to prosecute the homicides,” Post said. “I’m sorry.”

  “We’d like to cut a deal,” Richard said.

  “What deal?”

  “Plead you out with a misdemeanor—1361, malicious mischief. They can prove that.” Richard recoiled a bit from Post’s glare.

  “What’s the sentence?”

  “Time served.”

  Tim’s jaw literally dropped. “So I just go free?”

  “It’s not like anyone’s concerned with recidivism here.”

  Post said, “Despite the various levels of contempt in which we hold you—and they are various—we all do agree on one thing. You’re not worth the space in our prison system.”

  “We’re not gonna make it easy for you and send you away for ninety years.” Andrews extended a knobby finger and pointed at the far wall, a gesture intended to indicate the awaiting world. “Out there, however, are hundreds of cameras representing international media organizations. The wolves. They want answers.”

  “But you walk,” Bear said.

  Tim finally sat down. “The system’s not supposed to work this way.”

  “Do us a favor this time, Mr. Rackley,” Reed said. “Don’t do anything about it.”

  Tannino stood up and placed his knuckles flat against the table. “Here’s what your future looks like, Rackley. Tomorrow in court you plead to this misdemeanor”—he spat out the word—“and you skate. It goes without saying that we’re gonna keep you on a very tight leash, keep an eye on you. If you step even an inch out of line, we’ll hammer you. Any part of this unclear?”

  “No, Marshal.”

  “Don’t call me ‘Marshal.’” On his way to the door Tannino shook his head, muttering under his breath. “A Medal of Valor winner. For the love of Mary.”

  The others filed out, Richard pausing to shake Tim’s hand. Only Bear remained. They had a tough time making eye contact but finally did.

  “Did you do that on purpose? Forget to read me my rights?”

  “Nah.” Bear shook his head. “But if I did, I wouldn’t tell you anyway.” His shirt was rumpled as always, and Tim thought he detected a splotch of salsa beneath the too-short tie. “I brought you a suit for court. Have it out in the rig.”

  “I hope it’s not one of yours.”

  It took a moment, but Bear returned his smile.

  47

  THE READINESS CONFERENCE went so quickly that Tim barely kept up with the proceedings. Though sawhorses and cops were keeping throngs of press at bay on Main Street, inside it was a remarkably unimpressive affair; he was shoehorned between an Argentine drug dealer and a Bel Air madam with reputed mob connections and two-inch lashes. Though he smelled distinctly of tequila, Richard proved capable and articulate counsel.

  Tim barely rose to his feet before Judge Andrews pronounced, “You are free to go.”

  As he headed down the center aisle toward the courtroom doors, he was enfolded in an incredible loneliness. For the past several months, he’d been focused on one crisis after another, all of them immediate. Now he had the rest of his life to face. The events of the past forty-eight hours still hadn’t taken on a reality; it was inconceivable that he could be walking away.

  The clamor of media rose as he stepped through the doors—glinting lenses, flashing bulbs, shouted questions. An army of reporters documenting his going free due to precisely those types of technicalities he’d committed such violence to protest. With some effort, police held their line at the sawhorses.

  Tim continued down the marble courtroom steps, his eyes on the Federal Building standing tall and proud across the square.

  When he glanced down, he saw Dray standing in the apron of calm at the base of the stairs, a twenty-meter stretch of sanity before the held-back horde. She was wearing the yellow dress with tiny blue flowers, the dress she’d worn the first time they’d met. He drew nearer, his pace slowed with disbelief, and saw that she was wearing her ring—no rock, no inscription, the plain, worn, twelve-karat band he’d given her on bended knee back when he couldn’t afford anything more.

  The din seemed to recede—the scrape of cable on concrete, the babble into microphones, the strident queries—fading into inconsequentiality.

  He paused a few feet from her, regarding her, unable to speak. The wind kicked up, blowing a strand of hair across her eye, and she left it.

  “Timothy Rackley,” she said.

  He stepped forward and embraced her. She smelled like jasmine and lotion and a touch of gunpowder around the hands. She smelled like her.

  She pulled back her head and regarded him, hand on his cheek.

&nb
sp; “Let’s get you home,” she said.

  Specifics of bomb construction and cell-phone tracking have been altered in the interest of public safety. Also, please don’t run with scissors.

  The Writing Is the Easy Part

  When I started writing The Kill Clause, I knew I wanted to examine the theme of vigilantism. I wanted a protagonist who was a stand-up guy, not too preachy, but someone who was a man of the law. The various branches of the intel and law enforcement communities have all had their reputations tarnished in one manner or another over the years, and because of extensive media coverage or depictions in films, it seems everyone has preconceived notions of, say, the FBI or LAPD. I started poking around my contacts, asking, who are the most stand-up, ethical guys you’ve worked with? And the answers kept drawing me back to the Marshal Service.

  Try doing research on the U.S. Marshal Service. There’s not much material. I managed to find only four books that even dealt with the Service, three of them out of print. The first thing I did was to go back and review the entire history of the Service, starting with Stuart Lake’s biography of Wyatt Earp (1931)—recounted to him in Earp’s own words. I got my hands on a few documentaries, and delved heavily into the Service’s role in the civil rights movement, most significantly during James Meredith’s enrollment at Ole Miss—a second Civil War for this country about which very few people are knowledgeable. While this didn’t directly influence my story, it gave me a great background and understanding of the Service.

  From there, I did what I normally do—I called a buddy of mine (the former agent whose brain I picked for Ed Pinkerton’s character in Do No Harm ) and asked him if he ever overlapped with any deputy U.S. Marshals he could put me in touch with. I talked to his good friend, a deputy out of East St. Louis, and we got along great. He was coming to L.A. on some business and promised to set a few meetings for me in the California Central District office (there are ninety-four U.S. districts, and ninety-four appointed U.S. Marshals, one corresponding to each judicial district). So he flew in, we grabbed breakfast and headed over.