The Mourning Sexton

by Michael Baron

  Dulcie leaned back in her chair and shook her head. “I'm lost.”

  The jazz trio was back from break. They opened the set with “Giant Steps,” an old John Coltrane number.

  He listened to the music, trying to decide how far to bring her inside. In the process, he tried to decipher his motives for doing so.

  Dulcie leaned forward so he could hear her over the music. “I'm not following you, David. You've got a wrongful death case on behalf of Judith. I understand that Peterson Tire is a defendant in your case and it's also a defendant in the case before Judge McCormick. So what? Where's the connection between your case and that case?”

  “Possibly the judge.”

  “Which judge?”

  “McCormick.”

  She stared at him. “What does that mean?”

  “Abe Shifrin got a copy of the medical examiner's file on Judith. I showed it to a retired pathologist. I was hoping that he could determine whether she'd been conscious after the crash. I was looking for pain and suffering.”

  She nodded. “Good way to increase the damages.”

  “There was no autopsy, so I knew there'd be some uncertainty. Still, I thought it was worth a shot.”

  “And?”

  He leaned closer and lowered his voice. “He was fairly sure she was dead before the crash.”

  She frowned. “What does that mean?”

  Leaning even closer, he explained.

  When he finished, she leaned back in her chair.

  He took a sip of his beer.

  She crossed her arms over her chest and stared down at her empty martini glass.

  He waited.

  She looked up, eyes wide.

  “My God, David.”

  He nodded.

  CHAPTER 15

  If this had been the deposition of a hostile witness, he would have stopped the line of questioning right there and moved on. He already had the witness staked out, each limb securely fastened down. All of which meant he could save that final killer question for trial. Hit him with it on cross-examination and let the jury look on as he gave you one of those startled-deer-in-a-headlight stares.

  But this wasn't a deposition, and Brendan McCormick wasn't a hostile witness. Or at least not for sure.

  As he reminded himself yet again, McCormick might be a friendly witness. Judith could have been driving that car that night. She could have lost control on the ice and died in a genuine accident. That's certainly what the police at the scene concluded. And the medical examiner had confirmed. And Henry Granger had emphasized that he couldn't be certain of the cause of death without an autopsy.

  But hostile or friendly, Brendan McCormick had locked himself into a timeline that began at 6:00 P.M. and ended at 8:43 P.M., which is when the emergency operator logged in the 911 call from Charlie Peckham, the high school kid who found the Explorer half in the woods jammed against that tree.

  And in the process, McCormick had locked himself into a timeline that included a critical gap of more than an hour.

  6:00 P.M.: That's when McCormick and Judith left the Christmas party at the courthouse downtown. It's what McCormick told the police on the night of the accident, and it's what he'd just confirmed during their witness interview.

  7:00 P.M.: That's the latest they would have arrived at McCormick's house. McCormick said that the drive to his house at that time of night took twenty minutes, thirty tops. Hirsch agreed. He'd done that drive himself at six o'clock to be sure—the last four nights in a row, in fact. Nineteen minutes the first time, twenty-five the second, twenty-three the third, twenty the fourth. Toss in an extra ten minutes on the night in question. And then add another fifteen for wintry conditions. But even with all that padding, they would have reached his house no later than seven o'clock.

  7:15 P.M.: That's when they supposedly departed from his house with the gifts. McCormick said they loaded the gifts into the back of the Explorer, and then Judith asked if she could drive to the restaurant.

  How long to load the gifts?

  Ten minutes, McCormick estimated.

  “You're sure?”

  McCormick had leaned back in his chair and rubbed his chin, mildly amused by Hirsch's question.

  They were in McCormick's chambers. Just the two of them.

  McCormick had pushed their meeting back from two to five-thrity, and now it was after six. Everyone else in his chambers had gone home for the day, and for the week.

  It was Friday night. At least thirty minutes past sundown.

  Shabbas, Hirsch thought ruefully.

  He should be home lighting the Sabbath candles and saying the blessings. He should have said no when McCormick moved the meeting to five-thirty. An observant Jew—a good Jew—would have said no. Remember the Sabbath and keep it holy. Couldn't get much clearer than that. But he hadn't said no. He couldn't. He needed this meeting, and the thought of postponing it even a day had been unbearable. Now was the time.

  “Fifteen minutes tops,” McCormick finally said, “but I'd say ten. There were only a half dozen gifts. It took us each only one trip from the house to the car.”

  Hirsch nodded and jotted it down on his legal pad:

  No more than 15 minutes to load gifts Latest departure time: 7: 15 p.m.

  He stared at the departure time, face deadpan.

  Almost ninety minutes after they supposedly left the house.

  Hirsch ran through that final scene in his imagination, stretching it out to be sure—Peckham staring at the accident, getting out of the car, tentatively approaching the SUV, peering through the windows, first on the driver's side, then on the passenger's side. Seeing McCormick move, hearing the moan. Peckham reaching for his cell phone, punching in the numbers. How long from the moment he stopped his car until he dialed 911? Ten minutes? Slow it down by five to be safe. Fifteen minutes. That meant he'd arrived at the scene of the accident no later than eight-thirty.

  McCormick told the police that he remembered nothing after the crash until the sound of knocking on the window. He didn't know how long he'd been unconscious, and he was still groggy when the paramedics lifted him out of the Explorer.

  Left the house at seven-fifteen, discovered by Peckham one hour and fifteen minutes later.

  Locked in.

  Actually, and fortunately, locked in since the moment he gave his original witness statement to the police more than three years ago.

  Hirsch pretended to study his notes, flipping back a page to study something written there.

  He looked up with a frown. “So you stopped at your house, got the gifts, and left.”

  “That's what happened.”

  “You're sure you didn't hang around the house for a while, maybe have a drink, or perhaps a bite to eat?”

  McCormick chuckled. “I hardly think so, David. The holiday dinner at Cardwell's was scheduled for seven-thirty. I was the host. That meant I had to be there at the start, greet my guests. That's why we left the courthouse party early. Had to haul ass out to my house, pick up the gifts, and haul ass over to the restaurant. No time to dawdle over drinks.”

  Nice, Hirsch thought, jotting down a quick note to make sure he remembered McCormick's words.

  “Well,” he said, feigning uncertainty, “okay.”

  “Well? Well what?”

  Hirsch shrugged. “Probably nothing.”

  “Don't pull that shit with me. What's bothering you?”

  “Judith's wristwatch was shattered. Presumably in the accident.”

  “Makes sense.”

  “But the time doesn't.”

  “What do you mean?”

  “Her watched stopped at eight-fourteen.”

  “So?”

  “So the accident occurred less than half a mile from your house. According to the timeline we just went over, the two of you left your house no later than seven-fifteen.”

  McCormick pursed his lips and squinted. “I'm not following you.”

  “Based on the time on her wristwatch, the accident oc
curred almost an hour after you left the house. That means either the timeline is off or her wristwatch is off.”

  “Maybe the damn thing kept ticking after the accident.”

  “Maybe,” Hirsch said, pretending to consider the suggestion.

  He'd actually seen the watch. It was among the personal effects the hospital gave to Abe Shifrin in the large sealed plastic bag, which also included her wallet and jewelry and purse. The watch had been smashed—the crystal shattered, the face pushed in. He'd shown it to a jeweler, and the jeweler confirmed that the watch would have stopped functioning immediately upon impact. That was because some of the inner workings were crushed as well.

  Hirsch wasn't going to tell that to McCormick. His goal wasn't to cross-examine him. That would come later. The goal today was to rattle McCormick's cage a bit. Observe how he handled it.

  “Hell, maybe I was drunker than I realized.”

  “How so?”

  “Maybe it took a lot longer at the house than I thought.”

  “Maybe.”

  “Even so, what's it matter when we got back in the Explorer? The key is what happened after we got in it.”

  “Your housekeeper had the night off.”

  McCormick gave him a baffled look. “Huh?”

  “Your housekeeper. You gave her the night off.”

  “Did I?”

  Hirsch nodded. “My investigator interviewed her.”

  “Interviewed her? You're kidding? My housekeeper? Which one?”

  “Judy Gonzalez. She was your housekeeper back then.”

  “Why did you have someone talk to her?”

  “I was hoping she could help us fill that time gap, tell us how long the two of you were in the house. She couldn't, though. She wasn't there. She said her normal nights off were Sunday and Monday, but that week you gave her Thursday night off as well.”

  McCormick shook his head, amused. “David, I'm not here to tell you how to prepare your case, but I doubt whether the jury will give two shits whether we left the house at seven-fifteen or seven-thirty. This lawsuit is all about what happened after we got back in the vehicle.”

  “You might be right.”

  “Trust me on this one. The timeline doesn't matter. Maybe I went back in the house to take a leak. Maybe she had to make a phone call. It must not have seemed important at the time, because I honestly don't remember. All I know is that Judith asked to drive, I let her have the keys, we got back in the vehicle, and a minute later we crashed head-on into that goddamn tree. The only part that counts is that last part, the damn crash.”

  “Then let's talk about the crash.”

  “Finally,” McCormick said.

  Hirsch expected nothing new, and that's exactly what he got. Whether McCormick's narrative was based on actual memory or rehearsed fiction, the sequence of events tracked the account he'd given to the police officer at the hospital the morning following the accident: fiddling with the radio, Judith's surprised gasp, looking up from the dashboard, a small animal scurrying across the road, Judith turning hard to the left, the slight acceleration, the tree suddenly jumping in front, her cry of “No!”

  “Do you remember anything after the moment of impact?”

  McCormick shook his head. “Not a thing.”

  “No memory of Judith?”

  “I'm not following you?”

  “Any sound from her after the impact? Groans? Moans? Any movement?”

  McCormick frowned up at the ceiling and rubbed his chin. Eventually, he looked at Hirsch and shook his head. “Afraid not. I must have blacked out immediately.”

  Hirsch smiled. “Nothing's easy.”

  McCormick gave him a sympathetic look. “That's why settlement might be the best option.”

  “Probably not here.”

  “Why?”

  “Her father isn't interested.”

  “Everyone has a price. Even her father.”

  “I don't know. He's looking for things beyond money.”

  “Such as?”

  “Vindication. A finding of guilt.”

  “That's just money, David. Get him enough shekels and it'll translate into vindication and guilt.”

  “Jack up the numbers, eh?”

  “Sure. That's the key.”

  “It's also the problem,” Hirsch said, pleased at how McCormick was wandering into the trap.

  “What do you mean?”

  “I think the defendants might be willing to talk settlement. At least Marvin Guttner suggested as much. But before I meet with him again, I need to be able to jack the numbers up. The best way to do that is with pain and suffering. But that means I need Judith to be conscious after the accident. Even if it's just for a few seconds.”

  “Ah,” McCormick said, grasping the purpose off the prior questions. “Unfortunately, I'm no help there.”

  “But there's still hope.”

  “How so? Did that boy see her moving?”

  “Oh, no. And she had no vital signs when the paramedics arrived.”

  “So where's the hope?”

  “I just need her to survive for a few seconds. I'll have to find a top medical examiner. I'll have him examine Judith's file—the morgue photos, the X-rays, the medical examiner's report.”

  “Was there an autopsy?”

  “No, but I've done some calling around on that issue. From what I've been told, a top forensic pathologist can often tell the cause of death even without an autopsy.”

  McCormick gazed at him, eyes neutral. “We know the cause of death.”

  “Right. But if he can pinpoint the actual medical cause of death, he might be able to determine whether she was conscious after the accident.”

  “I'm not following you.”

  “Her death certificate's a little ambiguous. It states the cause of her death was ‘blunt force trauma with asphyxia.' Asphyxiation is a nasty way to die. If she was conscious while she was suffocating, there'd be plenty of pain and suffering.”

  “You think these defendants will pay you more if you can prove a few seconds of pain and suffering?”

  “Absolutely. If Judith was conscious as she choked to death, we're talking much bigger numbers. That's why I need a top pathologist.”

  McCormick studied him. “I guess you'll do whatever you feel you need to do.”

  Hirsch stood up to go. “That's my job.”

  CHAPTER 16

  When Hirsch finished, Rosenbloom leaned back in his wheelchair and shook his head.

  “You're nuts.”

  “Maybe not,” Hirsch said.

  “Maybe not?” Rosenbloom frowned in disbelief. “Maybe isn't enough. You two aren't exactly in the same weight class anymore, Samson. He's a federal district judge, invested with all the powers of article three of the U.S. Constitution. And you, boychik, are just a bankruptcy schlub standing there with nothing but your putz in your hand. Not”—he turned toward Dulcie, who had just returned to the dining room carrying a bottle of red wine, a corkscrew, and three wineglasses—“that I am suggesting that David's penis is anything less than imposing.” He placed his hand over his heart. “Heaven forfend. By all accounts, it is a most noteworthy appendage—a handsome and imposing instrument.”

  “How nice for you, David.” She handed him the wine bottle and corkscrew. “Pour us some wine.”

  “My point is,” Rosenbloom said to Hirsch, “that all you got is your noteworthy appendage. Brendan McCormick may be a knucklehead, but he's an article three knucklehead, and that means he's virtually untouchable. Worse yet, you don't have hard evidence of anything beyond the fact that he is a knucklehead.”

  Hirsch twisted down the corkscrew. He looked up at Rosenbloom and smiled. “It's still early.”

  They were having dinner at Dulcie's house, an arrangement Hirsch learned of just twenty minutes before they arrived. Rosenbloom had been waiting for him in front of Anshe Emes when the Saturday afternoon services ended. As Hirsch emerged from shul, he heard the familiar tap of a horn. He turned, surprised
to see Rosenbloom seated in his Cadillac, engine idling. Rosenbloom gestured him over, lowering the driver's side window as he approached.

  “Hop in, Samson. We got a dinner date.”

  “With who?”

  “Your professor pal.”

  On the ride over, Rosenbloom explained that Dulcie had called him at the office that morning, anxious to hear about Hirsch's meeting with the judge.

  “I told her she wasn't the only one, but that we'd have to wait till Saturday night to find out because the Reb Hirsch doesn't answer his phone until sundown.”

  During Rosenbloom's telephone conversation with Dulcie that morning, he'd mentioned that Federal Express had just dropped off a delivery for Hirsch from someone in Florida named Shields. The package contained what appeared to be several dozen printed e-mails. Dulcie recognized Missy's name from her conversation with Hirsch. She asked if she could drop by his office that afternoon, explaining that she was curious to look at the e-mails. She didn't mention that she was also curious to finally meet Rosenbloom, whom she'd seen only in the photograph on the back cover of the metropolitan St. Louis telephone directory, staring into the camera under the caption “THE ROSENBLOOM FIRM: TOUGH LAWYERS FOR TOUGH TIMES.”

  She arrived at his office shortly after noon and spent an hour reviewing the packet of materials from Missy Shields. On her way out, she suggested that Rosenbloom and Hirsch come by her house for dinner that night. That way she could hear what happened with Judge McCormick, too. Rosenbloom accepted the invitation with delight. As became apparent to Hirsch during the short drive from shul to her house, Rosenbloom's enthusiasm was less about Missy's documents and more about Dulcie's good looks.

  Hirsch yanked the cork out of the wine bottle.

  “Okay.” Rosenbloom held up his hands in a gesture of appeasement. “Let's assume McCormick really did do something nasty to that poor girl. If so, what was the purpose in telling him about the time gap and the pathologist? All you're doing is poking a stick at a snake.”

  “Exactly,” Hirsch said.

  “Exactly what?” Rosenbloom frowned. “If he's actually guilty, what's the point of fucking with him?”

  “An old litigation ploy.” Hirsch paused to fill each of their wineglasses. “When your case is stalled, you lob a hand grenade into the middle of the lawsuit and wait for people to scramble. If you watch carefully, sometimes you get an opportunity.”