Play Dead ac-6

by David Rosenfelt

  After a break in the afternoon session, Judge Gordon suddenly adjourns court for the day and summons Hawpe and me into his chambers for another on the record session.

  “The U.S. marshals have declined to provide any information about the woman we know as Stacy Harriman,” he says. “They cited a long-standing principle of confidentiality and cautioned that we not read anything into their position concerning whether or not Ms. Harriman was in the program. According to them, their position would be the same whether or not she was in fact under their protection.”

  I’m not at all surprised to hear this. “Your Honor, we would request that you convene a hearing to consider an order to comply.”

  He nods. “I already have. Ten o’clock tomorrow morning.”

  * * * * *

  WHENEVER SOMEBODY SAYS “U.S. marshal,” I’m thinking Wyatt Earp or Tommy Lee Jones.

  I’m definitely not thinking Captain Alice Massengale, the attorney within the agency who leads a contingent of four into court for our hearing. Captain Massengale is all of five feet four and a hundred and ten pounds, one of the few lawyers I have ever gone up against whom I would be willing to arm wrestle to settle our dispute.

  The physical structure of the hearing is a strange one. Kevin, Richard, and I occupy the defense table, Hawpe and his team are in their traditional place at the prosecution table, and a third table has been brought in for Captain Massengale and her group.

  Hawpe is in the middle between us, and he’s uncomfortably in the legal middle here as well. When Judge Gordon petitions the U.S. Marshals Service for documents, he is doing so on behalf of the State of New Jersey. Hawpe is an employee of that state and therefore bound to advocate its position. However, as the prosecuting attorney, he is opposed to Judge Gordon’s, and my, request.

  Suffice it to say, I don’t think we’ll be hearing much from Hawpe today.

  Judge Gordon sets the parameters of the hearing and summarizes the situation to date. He then asks Massengale to state the position of the U.S. Marshals Service.

  “Thank you, Your Honor. For over two hundred years, the United States Marshals Service has served as the instruments of civil authority for all three branches of the U.S. government. It is easily the federal government’s oldest and most versatile law enforcement agency.”

  She thus launches into a fifteen-minute speech, without notes, about the glories of the Marshals Service. It’s a stirring rendition, and I’m sure I would be moved to tears if not for the fact that I doze off three or four times during it. I would object as to relevance, but I can use the snooze time.

  She finally seems to be getting near the point by saying that the Marshals Service “provides for the security, health, and safety of government witnesses and their immediate dependents, whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime members, and other major criminals.”

  It’s a false alarm, because she goes on talking about the tremendous importance of the program, the remarkable people that run it, and the extraordinary success it has had.

  Finally she gets to the matter at hand. “Any breach in the secrecy of this program, no matter how small, can imperil the entire operation. It is for that reason that we must regretfully decline to comply with the court’s request.”

  “Any documents you would hand over would be under seal,” says Judge Gordon.

  “Even to confirm that such documents exist-and I am not saying that they do-would be to breach confidentiality by revealing whether this particular subject was in the program.”

  “Mr. Carpenter?”

  “Your Honor, no one is disputing the need for secrecy in this program. It is crucial that witnesses be protected. But it is considerably less crucial when the witness is already dead. For that reason, secrecy should in this case give way to the defendant’s right to a fair trial.”

  Massengale comes back at me. “A precedent would be established.”

  I nod. “Right. The precedent would be that dead witnesses no longer need to be protected from the revelation that they were witnesses. I think our system could survive such a precedent. And if you are able to keep your future witnesses alive, it will never come up again.”

  “Our methods and procedures could be compromised,” she says. “If it is known that someone was in our system-even after they are deceased-an enterprising criminal might be able to learn how we go about protecting our people.”

  It’s a good point, and I don’t have a great comeback for it, but I give it a shot. “Your method is to provide the witness with an apparently normal background. There is no way to penetrate that unless someone first identifies the person they suspect is in the program, as we did with Stacy Harriman. Additionally, everything you present will be under seal, and the court can protect your methods and procedures.”

  Judge Gordon gives Hawpe the chance to intervene, and he speaks for about a minute without saying anything of consequence. Then Massengale and I kick it around for a while more, without breaking much in the way of new ground.

  Judge Gordon finally says, “It is the decision of this court to order the U.S. Marshals Service to turn over any and all documents relating to any period of time when the woman known in this trial as Stacy Harriman was under the control of the U.S. Marshals Service in the witness protection program. Because of the urgency created by this ongoing trial, I will suspend my order for forty-eight hours to allow time for appeal.”

  It’s a victory for our side, and a surprising one at that. The downside is what Judge Gordon has acknowledged, which is the right of the Marshals Service to appeal up the line, all the way to the Supreme Court. It can be time consuming and could easily exceed the length of the trial.

  Massengale’s only response to the ruling is, “May I have a moment, Your Honor?”

  Judge Gordon grants her the moment, and Massengale and her group huddle up and talk among themselves. After perhaps five minutes, she turns and addresses the judge.

  “Your Honor, in the interests of justice, and with the promise of the court to keep the entire matter under seal, I am declaring to the court that the woman known in this trial as Stacy Harriman was never under the control of the U.S. Marshals Service, in the witness protection program. Therefore, the documents you are requesting do not exist. We will not be appealing your ruling.”

  It’s not a bombshell, but close, and it certainly defines the term “hollow victory.” We’ve prevailed in our efforts to force them to reveal what they have on Stacy, only to find out that they have nothing.

  “What are we going to do now?” Richard whispers.

  “We’re going to find out who Stacy really was, and why she went to such lengths to hide it.”

  * * * * *

  KAREN EVANS AND Willie Miller are waiting for us in the hallway outside the courtroom.

  Karen has been going crazy at not having been allowed inside during the hearing, and her first question is, “Did we win?”

  I nod without enthusiasm. “We won…”

  Before I can get the rest of the story out, Willie interrupts. “See? I told you,” he says to Karen. “My man don’t lose.”

  “Unfortunately, there’s more to the story,” I say. I don’t want to talk about it in this public hallway, so I tell Karen she should come back to the office and I’ll fill her in. Willie will drive her because when he is protecting someone, he doesn’t leave them for a minute. And he certainly wouldn’t trust Kevin and me, since for some reason he doesn’t regard us as physically intimidating.

  We all meet back at the office, and I take a few minutes to bring Karen up to date on what took place. When I tell her that the Marshals Service denied that Stacy was under their control, she says, “Maybe they’re lying.”

  I shake my head. “No, lying to the court is a felony; there’s no way their lawyer would risk that. Besides, they had much more they could do legally to fight the judge’s order. There would have been no reason to lie now.”

  �
�So Stacy was really Stacy?” she asks.

  “No. That’s no longer possible.”

  “So is this terrible news?”

  I shake my head. “Disappointing but not terrible. We can still go to the jury with what we know about her faked background. It’s very obvious she was hiding from something, which certainly helps our case.”

  What I’m saying is technically the truth, but the reality is that the ruling today is very disappointing. If Stacy had been in WITSEC, it would have meant that the U.S. government was essentially testifying for us, saying that dangerous killers were after Stacy Harriman and that she needed protection from them.

  Willie says, “Can’t you dig up her body and get some of that DNA stuff?”

  “It wouldn’t help,” I say. “We already have her DNA; it’s how her body was identified. But there aren’t national DNA registries; it’s not like she would have had her DNA on file before this.”

  “So it’s not like fingerprints?” he asks.

  Sometimes I’m so slow to see things right in front of my face that it frightens me. “Willie, you’re a genius.”

  “You got that right,” Willie says, though he can’t have any idea what I’m talking about.

  “Of course,” Kevin says, realizing where I’m going. “Fingerprints.”

  I ask Karen, “Is there anything that Stacy touched, maybe that she handled a lot, that you’d still have?”

  “You mean fingerprints can last that long?” she asks.

  “Depending on the circumstances, absolutely.”

  Karen starts thinking out loud. “The house was sold… maybe some things in the basement, but I don’t know what the new owners have done… the cabin! We were up there all the time!”

  “Where is it?”

  “Up near Monticello. I didn’t want to sell it; I always had this picture of Richard getting out and going up there, and I wanted to keep something that was his.”

  “So it’s been empty all this time?”

  She nods. “There’s a guy who maintains the outside, but he doesn’t have a key. And I haven’t been able to get myself to go there without Richard.”

  She goes on to say that Stacy was at the cabin many times. It was her favorite place; she liked it even more than the boat. She particularly loved cooking there, so any prints on the pots and pans would be hers.

  I call Laurie and ask her to recommend somebody around here who would be competent to retrieve the fingerprints. She suggests George Feder, a forensics specialist recently retired from his position with the New Jersey State Police. She had heard that he was doing private work to supplement his retirement income.

  I call Feder, but he says that he would be too busy to go up to Monticello for at least a week. I offer to double his fee, and his schedule experiences such a sudden clearing that I can’t help but wonder if it would also work on Kevin’s sinuses. Kevin, Karen, Willie, and Feder will go up to the cabin tomorrow morning, while I’m in court.

  I call Pete Stanton, figuring I might as well take the abuse in advance. He tells me that he had been in a panic; I hadn’t called him for a favor in almost twenty-four hours, and his fear was that he had offended me.

  “Don’t worry,” I say, “I am a man who believes in forgiveness.”

  “The bigger they are, the nicer they are,” he says.

  “And to show there are no hard feelings, I’m going to let you do me another favor. I need a fingerprint run through the national database.”

  “Where’s the print?” he asks.

  “I don’t have it yet.”

  “Oh. Well, what I’ll do is put a stop to all fingerprint work around the country, and then the system will be ready for you when you get your hands on the print.”

  “Works for me,” I say.

  He asks if I’m going to Charlie’s tonight, and I say that I’m busy with the trial but that I’m thinking of stopping by for an hour or so.

  “Make sure it’s the hour that we ask for the check,” he says.

  I agree to the request; I could use the relaxation that comes with beer drinking and sports watching, and it will give me a chance to ask Pete for an update on the investigations into Karen’s shooting and Franklin’s death.

  I head home to walk and feed Tara, and then go over some files I need to be familiar with for court tomorrow. Once I feel fully prepared, I drive over to Charlie’s, getting there at about eight thirty.

  Vince and Pete have not exactly been waiting for me to start; the table is filled with empty beer bottles and plates. Once he sees me, Pete calls out to the waitress the request that she change the beers to more expensive, imported ones.

  “Well,” I say, “if it isn’t my two favorite intellectuals. What have you two been discussing? Literature? Fine art?”

  “Shit, yeah,” says Vince.

  It takes mere minutes for me to stoop to their level, which is not far from my natural state. Actually, because of the need to stay alert for tomorrow’s court session, I don’t fully match their behavior. So while I eat, drink, watch TV, and leer at women, I don’t drool or spit up my food when I talk.

  I’m also ready to leave before they are, so I attempt to turn the conversation to the Franklin investigation. “How close are you to making an arrest?” I ask Pete.

  “How close are you to being an Olympic shot put champion?”

  “I came in third in the nationals.”

  Pete goes on to tell me what he has told me before, that this appears to have been a professional job and that no leads of any consequence have come to light.

  “What about Franklin’s job at customs? Have they opened up their records about his work? Because I would guess that’s where the answer is.”

  He says that in fact the records have been checked but that nothing seems to be amiss.

  “What about since that night? Have you checked that?”

  “What are you talking about?” he asks.

  “Well, let’s say Franklin was doing something illegal, letting in material he should not have been. If it’s tied into the Evans case, then that’s been going on for a long time. If the pattern has changed significantly since Franklin died, then that would be important to know.”

  Pete looks at me for a few moments. His mouth is preparing an insult, but his mind has other ideas, so they compromise. “You may not be as dumb as you look.”

  “Stop, you’re going to make me blush,” I say.

  Pete promises to get right on it the next morning, and I grab a final handful of french fries before heading home.

  My work here is done.

  * * * * *

  I HATE COURTROOM surprises-unless I’m the one springing them.

  The kind I hate most are witness list surprises, and that’s what I’m greeted with when I arrive in court for the morning session. Hawpe has come up with a new witness, and the first thing on the docket is a hearing in Judge Gordon’s office to decide whether he should be allowed to testify.

  Hawpe informs Judge Gordon and me that a witness, Craig Langel, has just come forward with the revelation that he saw a golden retriever, apparently quite wet, on the night of the murder. The location was about a quarter mile from where Stacy’s body washed ashore three weeks later.

  Langel reported it to the animal shelter, who sent out someone to search for the stray dog and capture him but could not find him. Hawpe has just checked the back records of the shelter and located the call and dispatching of the shelter worker, to confirm that it was the same date. It was.

  I argue that Langel should not be allowed to testify, because he was not on the list Hawpe provided, but it’s a halfhearted argument with no chance of success. Hawpe represents to the court that he did not know about Langel until yesterday afternoon, and he hadn’t confirmed it with the animal control department until early this morning.

  Judge Gordon rules that Langel will be allowed to testify, and I enter a formal objection. He overrules me, and we head into court.

  Hawpe’s first witness is Ger
ald Daniels, head of the Somerset County crime lab. Five years ago Daniels was the technician who handled the forensics on this case, and his promotion since then probably gives him additional credibility.

  Not that he needs it. He gives a straightforward, professional analysis of the evidence. He describes the evidence collection on the boat, most notably the bloodstains on the floor and railing, and the positive DNA match to Stacy, based on hair samples from her brush in Richard’s house.

  There isn’t any doubt that Daniels is qualified to render these conclusions, and no reason to think he would be deceptive. It is not particularly harmful to me, since I have not contended that Stacy was not on that boat or that she was not murdered.

  My cross-examination is therefore short and narrowly focused. “Mr. Daniels, I would like to explore the scope of your investigation. So I’m going to ask you some questions, and I’d like you to answer based on what you can say with a reasonable degree of scientific certainty. If you cannot speak with that certainty, please say so.”

  “Yes, sir.”

  “Thank you. Now, where on Stacy Harriman’s body did the blood on the boat come from?”

  “I cannot determine that with any degree of scientific certainty,” he says.

  “Who caused her wounds?”

  “I can’t determine that, either.”

  “Was Richard Evans conscious when Stacy Harriman was killed?”

  “I don’t know.”

  “Were the bloodstains placed where they were deliberately?” I ask.

  “Questions like that are beyond the scope of my work.”

  “Now I’d like to present a hypothetical. With Richard Evans unconscious, someone who had been hiding on the boat, or who had boarded it after it set sail, murdered Stacy Harriman and threw her body overboard. Is there anything in your work which could disprove that?”

  “No, but…”

  “Thank you.”

  I made some rhetorical points with Daniels, but nothing that will stick. I still have not given the jury any reason to believe that someone other than Stacy and Richard was on that boat. Making the point that it is merely possible is just not going to do it.