Motion to Suppress

by Perri O'shaughnessy

She underlined only. Nobody had ever made that argument before. But it was a good one.

  Collier was arguing that the tape was not a confidential communication between a client and a lawyer, because it was derived from a therapeutic session between the client and the therapist as soon as hypnosis was used. Michelle’s gasping sentences as she remembered the Philippines constituted hypnotic-regression therapy but were completely irrelevant to the case at hand.

  Fine. Nina had her answer. If the Philippines portion of the tape was therapy, only that portion could be admitted. And it shouldn’t be admitted, because it was irrelevant, as Collier conceded.

  Her third point was her strongest. Judge Milne ought to buy it, keep the confession out as an attorney-client communication. It was the best chance they had.

  Fourth. The tape was made under hypnosis. It is unreliable as a matter of law and inadmissible for the same reasons posthypnotic testimony is rendered inadmissible, except under certain well-defined circumstances not present here. See Evidence Code Section 795.

  Well, section 795 was not exactly on point, but it was close enough to control by analogy if Milne wanted it that way. Nina looked through the cases once more.

  Uh-oh. People v. Miller, a recent California Supreme Court case, held that even if the hypnosis session was inadmissible, evidence discovered as a result of the session was admissible.

  That case had to do with physical evidence, not a confession. It was distinguishable. Maybe.

  Fifth. To the extent that statements by the defendant on the tape tend to inculpate (good word, that, stately and dignified) the defendant, they violate defendant’s Fifth Amendment right against self-incrimination.

  The Menendez lawyers had tried that one on for size also. Michelle had not been compelled to testify against her own interest in a criminal proceeding. It was mushy, very mushy.

  Could she make any other arguments? She put her pen down and penciled in nine dots, doodling triangles, letting her mind meander through the information she had stuffed into it.

  Nothing new came to mind. Nina picked up her microphone and began droning the details.

  Michelle’s parents arrived at the shelter on Monday afternoon. Her father’s perfunctory kiss and her mother’s apologetic air told her to be on guard—he had cooked something up and she was going to be invited to eat it. She took them out to the picnic table in back, glad to see them and as usual feeling a little sad there were so many shadows between them.

  They seemed frightened by the shelter, the shabby furniture, the noisy kids running back and forth, the raucous laughter emanating from the kitchen as supper was prepared. Delores came over to be introduced and her father took in her old chenille robe and house slippers with astonishment. To Del, wearing the robe on Monday afternoon was a declaration of freedom. In jail she had to dress like they said, when they said. But Michelle’s father, in his perfectly starched shirt from the French laundry down the street from his auto dealership, saw slovenly clothing and not what it stood for.

  Michelle sat down on the bench, and her parents stood in front of her, already anxious to leave. Seeing them like that, uncomprehending and judgmental, she felt her latest resolve weakening. But she needed their help, didn’t she? Her time at the shelter was running out. For once she was going to be smart. Who could say? Maybe some time together would get them started on healing old wounds.

  Before she could open her mouth to announce her good intentions, her father spoke.

  "Michelle, we want you to come home now. But we want you to talk to Mr. Riesner first."

  "Is that why you didn’t come yesterday? You went to see him this morning?"

  Her mother said, "We needed legal advice, Michelle, and while I know you like her very much, we have lost our confidence in Ms. Reilly. She had worked something out with the district attorney, where you could have gotten a light—a reasonable—sentence. But they withdrew the offer, and it’s her fault."

  "Mr. Riesner says hypnotizing you was a serious mistake, that Ms. Reilly is making a lot of mistakes. She should be replaced. You need somebody really good, now more than ever, and Jeffrey Riesner is known in this town. He’s experienced and he is willing to represent you," her father said.

  "Wait, slow down," Michelle said. "She’s my attorney. I’m not saying she’s perfect, but I’ll decide if I’m going to ax her."

  "I’m sorry, Michelle, but in this serious situation you are going to have to rely on our judgment. You’re going home tonight, and we’re hiring Mr. Riesner. Barbara, help Mi- chelle pack her suitcase." He didn’t know how to discuss anything. He seemed able only to issue commands. It was one reason she had needed to leave home. She saw him steel himself for the negative response he expected.

  "Wait a second, Dad. I am coming home, but let me take care of the packing. I’ll drive down tomorrow in the Subaru, after I pick up my last paycheck and take care of some other important business. Nina got permission for me to leave the county to go home."

  Her father blinked.

  "I’ll go talk to this guy you found in the morning. Believe me, I’m willing to listen to good advice. I’ll listen, and then I’ll decide about changing lawyers."

  "Well, Michelle. I guess you always surprise us," her mother said. She came over and sat down on the bench next to her.

  "Mom," she said, her voice cracking.

  "What, dear?"

  "I’m going to have a baby."

  Her mom said nothing. Her mouth opened slightly, but she couldn’t speak.

  "Praise God," her father said, his voice hoarse. "Michelle, we’ve been praying for this day. And Anthony’s poor baby is welcome in our house."

  Michelle thought about clueing him in, but decided this was not the moment. It had eaten up her courage just to tell them she was pregnant. She needed time to build another brave face.

  They sat there, too embarrassed to say what they were feeling for a minute or two. Her dad, still standing, was holding her mom’s hand. Nobody was holding Michelle’s hand, so she put it on her stomach.

  Jeffrey Riesner’s receptionist had a neat pageboy. She wore a sailor-style dress, complete with a long, white tie in front that was a little young for anybody to wear, but had the effect of making her look friendly yet formal. She was the same age as Michelle. Michelle looked down at herself, at her fuchsia socks and shorts, and thought she needed to go shopping. Now there was one thing she could do in Fresno.

  Her feet sank into the rug as she entered Riesner’s sanctum. She took care to duck the blast of arctic air-conditioning guarding the doorway. Riesner stood behind a wide desk in the middle of the office, surrounded by blue Japanese urns, Chinese curio cabinets, and African statues. She could have sworn his receptionist bowed slightly before she disappeared.

  She recognized him right away. She knew him already, from Prize’s. He used to come in on Tuesday afternoons to play high-stakes poker with three friends. A Jack Daniel’s on the rocks man. As far as she recalled, he never drank much or lost much.

  He recognized her too. A grin showed gums in his mouth. "I didn’t know Michelle Patterson was my favorite barmaid," he said. "You look different without the black satin."

  "I’m no different, just wearing more clothes."

  She didn’t like him. The decorator office told her he probably charged too much and she remembered how he looked at her at the club, that wolfish grin and those quick, groping hands. But she didn’t have to like him. She was willing to listen; that’s all she had promised.

  He brought her a soda. She sat in an easy chair across from him. "What can I do for you?" he asked.

  "My parents asked me to come, so I’m here."

  "They consulted me about your situation. You understand I’m not your attorney, and I’m going to ask you to sign our form to that effect."

  "I don’t want to sign anything."

  "Then I can’t talk with you."

  "Why not? "

  "If you want me to help you, and it is perfectly within your rights to
consult me for a second opinion, you have to help me with this one little thing. Acknowledge on this form that I’m not your attorney on the murder charge."

  She signed the form, but she didn’t like the way he was pushing her around. He immediately said that he thought the district attorney could be approached again, that they didn’t really want to try this case, that there was some sympathy out there. He said it would be a very bad idea to go to trial, as he didn’t think she had much of a defense. He said in eighteen years of practicing criminal law he had never seen a lawyer make a more preventable and prejudicial error than Nina Reilly had, having her hypnotized under the circumstances. He said it wouldn’t be easy, but he thought he could persuade the DA’s office to reinstate the original offer of voluntary manslaughter. There would be a twenty-five-thousand-dollar initial retainer, plus costs.

  She listened to everything he said, sipping her soda.

  "Did you talk with Nina ... my attorney, about this?" she said.

  "Your parents asked that I wait, for now. They wanted to keep my opinion confidential, until a decision was made, and I respected that."

  "Is that the way it is usually done?"

  He didn’t answer. They sat there. She could see the dirt ski trails at Heavenly out his window. She liked Nina’s view of the lake better.

  "Loyalty is all very well," Riesner said finally, "but you have to look out for yourself. Your lawyer is going to defend you right into the penitentiary."

  "One thing I’m curious about, Mr. Riesner, is, how do you know all these things about my case? And why are you so interested?"

  "The details I’ve just mentioned to you are all over town," Riesner said. "I hear things at the courthouse, at lunch, playing poker. I heard some things from your parents. Have I said anything inaccurate?"

  "Not exactly."

  "Why am I interested? Because I hate to see a case like this mishandled, Misty—"

  "Michelle."

  "It reflects badly on the criminal lawyers up here who are doing a good job for their clients."

  "The thing is, I want a trial," Michelle said. "We’re still investigating. I know how it sounds, when I told Dr. Cervenka under hypnosis I killed Anthony—"

  "Precisely. I know half the cops in Tahoe. I know you confessed. That’s just my point. Nina Reilly is gonna let you do anything you want. It doesn’t matter that you don’t know how dangerous it is. It doesn’t matter that you’re gonna get crushed by Collier Hallowell in a trial. All that matters to her is to grandstand, pick up some publicity, pick up some new clients—"

  "You’re wrong. She cares about what happens to me," Michelle said. "You don’t."

  "I know I won’t be the only one to remind you what’s at stake," Riesner said. "This isn’t a decision to make based on how you feel about somebody. You like her, she’s nice to you, she makes you feel good. So invite her over to dinner. But I’d be goddamned before I’d hire her to defend me on a murder charge."

  Michelle got up to leave. "I’m not you," she said, unable to think of anything better.

  "If you ever figure out which end is up, call me."

  Out in the parking lot, Michelle moved her suitcases from the backseat into the trunk of the car, dawdling, not quite ready to drive away. Jeffrey Riesner made perfect sense, from a logical point of view. If the world really had been a logical place, she would have hired him. He could probably get the deal back, just like he said.

  But what could you trust if you couldn’t trust the way you felt about someone?

  First off, if she hired Riesner, the baby would definitely be born in prison.

  Second, it didn’t matter what she’d said to Dr. Cervenka. She was mixed-up inside. She didn’t believe herself Period.

  Third. Nina listened to her, and Jeffrey Riesner would not.

  Okay, following her feelings had gotten her in trouble before, mostly with men, but Dr. Greenspan used to say that if you went down deep enough, that’s where you could find the truth, and down to gut level she trusted Nina Reilly. Nina made a mistake and she would fix it somehow.

  Wishing she could afford to skip her next chore, she drove off to Prize’s to pick up her paycheck.

  She didn’t want to make the rounds and say good-bye, but she couldn’t avoid it. She had to walk through the casino to get to the bookkeeping office. She hadn’t been back since her arrest, but people all seemed happy to see her, and said encouraging things as she cleared out her locker. She couldn’t help wondering what they would say when she was gone.

  She passed the gift shop on her way out, the very same gift shop where she had picked out the polar bear a lifetime ago, a little gift from Steve, and far too expensive for her to explain to Anthony. She had told him it was a cheap imitation, and he believed it because he avoided shopping and didn’t know better. She had lied to him about everything, hadn’t she? While she was caught in the web of that thought, Steve Rossmoor came hurrying up, carrying a huge bouquet of flowers.

  "I didn’t want to miss you," he said. "I asked the clerk to give me a buzz if you came in."

  "Well, here I am."

  "Look, after we talked on the phone, and you couldn’t see me, you said you would call. You didn’t return my calls to your lawyer; you left your house.... I’ve been worried. Oh. For you."

  She took the bundle of flowers, all you could hold, purchased from the florist kiosk three doors down the hallway. "Thank you," she said. He took her elbow and steered her into the ice-cream parlor just past the gift shop.

  "How about a cup of coffee?"

  "Actually, a dish of strawberry ice cream sounds good."

  He ordered two dishes. Then he tilted his head to the side, regarding her. "You’re as lovely as always, but different," he said.

  "I’m not blitzed," Michelle said. "And I’ve got my clothes on."

  "I could say the same," Steve said. "How have you been?"

  She shook her head. "Don’t get me started. But I am glad you caught me before I left for Fresno. I wanted to say something to you, but I didn’t know how, and there was so much else going on...."

  "Well, let’s just eat ice cream, and maybe it’ll come out naturally."

  After a few bites, Michelle said, "I think what I want to say first is, I apologize."

  "For what?"

  "For being so afraid of you I slept with you so I wouldn’t have to talk to you."

  Steve Rossmoor sat back and looked at her.

  "It’s a bad habit of mine. I know you tried to make friends with me, but I couldn’t understand why you would want to. So I-what’s the word?—deflected you."

  "I certainly enjoyed being deflected, if that’s what it was. And it didn’t work, because I still would like to know you better. "

  "Why?"

  He took her hand in his. "Now you put me on the spot. I’ll sound incredibly stupid, but let me just try to answer that question. Okay. Because I got hooked on watching you through the security mirrors. I liked watching you walk, and talk, and smile when you collected your tips. I got to meet you, and I liked your soft voice and the things you said. I got you into my bed, and we were good together, and I knew there was more, a lot more, inside your head I needed to find out about. And then all hell broke loose for you."

  "Oh," Michelle said.

  "And now you’re leaving for Fresno. I have the worst timing in the world."

  "Don’t you feel a little bit worried about getting to know a girl who—"

  "Not a bit. You forget, I knew Anthony: I watched him watching you, nights you were on shift together. I know things about Anthony you don’t know. Someday you can tell me how you ever had the misfortune to marry him."

  "That’s not what I mean. I’m probably going to prison!"

  He didn’t seem to have an answer for that one.

  Michelle looked at the young man opposite her at the rickety little iron table, licking his spoon.

  "Steve ..."

  "Mmm-hmmm."

  "Did you tell anyone I was going to San F
rancisco, that day we talked?"

  "Of course not. Why?"

  "Never mind. I guess I better tell you something."

  "Anything."

  "I’m going to have a baby. It’s possible—"

  But he was already rushing around the table. He pulled her up against him, her head against his chest, his heart beating fast. "Yes ... it’s possible you are the father," she finished breathlessly. He just held on to her, as though he would fall down himself if she were not now propping him up.

  "How possible?" he said in a strangled voice.

  "It could have been Anthony. Or one other guy. Or you."

  "You weren’t going to tell me?"

  "It’s so complicated. I really don’t know what to say about it right now. We’re sitting here eating ice cream and talking about making friends and then it’s bombs away. Now we can’t just be friends, can we?"

  "I’m floored," Steve said. He loosened his hold on her, but touched her shoulders gently at arm’s length.

  "What if the baby isn’t yours, for instance? Do you still want to get to know me better?" Michelle said. She looked searchingly into his eyes, and saw in them something she didn’t understand, something dark. "I’m going to keep the baby," she went on.

  "Don’t go," he said. "Stay here with me. If you’re sentenced to prison, we’ll fly away somewhere and live happily ever after."

  "My prince," she said, making fun of him, but liking what he had said. "Thanks. Really, thanks. But I have to go."

  "Then let me see you in Fresno this weekend."

  "Maybe. Here’s my number and the address."

  He walked her out to her car. Before he would let her shut the door, he picked up her hand and lowered his head and she felt his lips pressing against her palm. Then he closed her hand on the kiss and said, "Don’t forget to wear your seat belt." She set the flowers on the passenger seat and headed for Fresno, watching Steve Rossmoor standing in the parking lot in the rearview mirror, looking like any man in a really expensive suit, a man used to getting his own way.

  The Superior Court of the County of El Dorado, Tahoe Session, Curtis E. Milne presiding, heard law and motion on Monday morning, June 11, at 8:30 A.M. Collier Hallowell’s hair was still wet from the shower.