Madriani - 02 - Prime Witness

by Steve Martini

  “Which of course he did,” I say.

  “Of course. Oh—and one other little piece of paper.” He takes a folded sheet of letter-size paper out of his pocket and hands it to me. I open it and read. It’s a contract, signed by Chambers and the Russian’s aunt, conferring on Adrian Chambers all film and literary rights pertaining to the Putah Creek murders and the trial of Andre Iganovich.

  “Well, at least now we know how he’s gonna get paid,” says Claude.

  “Ten days?” she says. “Get real. I figured we’d have at least ninety. I’ve got a full plate.”

  Lenore Goya is in my office, through the open door. She’s looking for some papers, something she laid down in the commotion on my return from the Russian’s arraignment. She turns and is back out again, searching, mumbling to herself, under her breath. Lenore will bear much of the burden of preparation in the next nine days, this along with her other duties, some disorder already created by Roland Overroy who is now in over his head on several of Goya’s old cases.

  “So had I,” I say, “figured we had more time.”

  I humor her, tell her that in refusing to waive time, Chambers shows all the signs of a man operating with less than a full deck.

  “Wonderful,” she says. “It’ll give new meaning to the term incompetent counsel. Another grounds for the defendant to appeal.”

  We both know this is garbage. Chambers is crazy like a fox.

  “He knows exactly what he’s doing,” she says. “He’s jamming us. Balls to the wall.” Lenore is of course correct. There is method to his madness.

  “Anybody who would do this in a death case.” She shakes her head. “When they circumcised him they threw away the wrong part.” Her assessment of Chambers as a lawyer.

  She settles into a chair on the other side of my desk, and begins to come down, out of the stratosphere. It is what saves her as a trial lawyer. While she has flashes of anger, she has learned to control these quickly, and to mask it in court.

  She smiles finally, lightens up. “Tell me,” she says, “I’ll bet Lester Osgood was a real help this morning?”

  I roll my eyes as if to confirm her suspicions that the judge was worse than useless. “I had to coach him,” I say, “to even get it on the record that Iganovich understood the risks involved in shortening time. The judge was willing to walk away and leave it unstated.”

  Now that Osgood has touched this case, he will no doubt draw the preliminary hearing. It will be his penance from the presiding judge for allowing Chambers to screw up the court’s calendar.

  We talk about this prospect, Lenore and I.

  “If he gets it, he’ll be in over his head,” she says. “And the first sign of fear is hostility. He’ll turn his wrath on us.”

  She is right. I have visions of Osgood playing to the press, a judicial sonata designed to cover his ass, with an oft-repeated theme—the prosecution served up this case, brought these charges, and now they are not ready. In the chorus he will sing the travails of the overworked and unsung judge.

  “Every time he reaches for his gavel and it turns to shit,” she says, “he will blame us.”

  She looks at me cold and stark for a moment. “Osgood might just cut him loose,” she says.

  I disagree. “It is the one thing he will not do. Even if he has to issue a grudging holding order to bind Iganovich over for trial, and blame us for the defects, he will do it. He will blame us for the plight that the court is in, pillory us at every turn, but he will without fail ship this case to the superior court for trial.”

  What scares me is that it may be a defective holding order, based on marginal evidence we cannot defend on appeal, something that might be overturned two years from now after a costly trial, and conviction.

  Lenore and I talk about the probable defenses that Chambers will raise in the preliminary hearing. We agree that he will not trot out his best horses for this show. Any surprises that might be fatal for our side, a potentially credible alibi witness, a notable forensic expert reading persuasive tea leaves, these he will save for the trial jury. The state’s burden of proof in a preliminary hearing is not sufficient to risk everything at this level. If he shoots his wad and misses, he will have tipped his hand for trial, given us valuable information on his case. Instead, he will push us to reveal our own, to produce our best evidence, which given the shortness of time we may now be forced to do. With only nine days to prepare, finesse is not our first strategy.

  “He’ll kick us hard with Scofield,” she says.

  I agree.

  “It’s a golden opportunity to confuse an already hapless judge,” I say. If he is deft, Chambers will have Osgood asking more questions about these unsolved murders than we have answers. The press will have a field day.

  “We will look like shit,” says Goya.

  I raise my gaze, look directly at her. “Unless,” I say.

  She looks up. “Unless what?”

  “Unless we don’t take him to a preliminary hearing,” I say.

  Puzzlement on her face for a brief instant, then like sonar plumbing the depths, she reads my mind. “A grand jury,” she says.

  I smile and nod.

  The grand jury has been an unused vestige of the criminal courts process in this state for the better part of two decades, ever since a liberal-leaning state supreme court ruled that every defendant was entitled to a hearing before an objective magistrate—a preliminary hearing—even those indicted by a grand jury. Two years ago angry voters showed the liberals on the court the door, and their predecessors the light, when they voted by initiative to restore the criminal grand jury to its prior eminence.

  As I look at her, I see a sparkle in Lenore’s eye.

  “It’s perfect,” she says. “We lock out Chambers, make him wait outside in the hall.”

  Criminal defendants, while they have a right to testify before a grand jury, have no right to counsel there. Like the star chambers of yore, grand jury hearings are closed, secret, not only to defense attorneys, but to the press and the public as well.

  “And,” she says, “we dump Osgood.” There’s a satisfied smile on her face with this thought. There is no judge to sit in hearings, to preside over a grand jury.

  “Thank Providence for little favors,” I say.

  Suddenly her mood is lighter, there is some cheer in her face, a way out of a tedious and sure to be punishing public hearing.

  “I don’t want to be greedy,” I say, “but there’s one more thing.”

  She looks at me.

  “At the moment you’re closer to the evidence than I am,” I tell her.

  I get a wary look, like she thinks maybe I’m on the verge of asking her to take on something more.

  “Do you think there is any chance . . .” I study her for a short moment before going on, thinking. “Do you think there is any way that we could get the Scofield evidence before a grand jury?”

  She stares at me, a picture of puzzlement.

  “You mean charge the Russian with those crimes?” she says.

  I shake my head. “No. I mean can you think of any argument, any theory that would permit us to play out the details, the physical evidence in the Scofield murders before this grand jury, without charging Iganovich with the actual murders?”

  She looks perplexed, like she can’t figure why I would want to do this.

  “I don’t know,” she says. “Not off the top of my head. We control the proceedings, but that’s a far reach. Some appellate panel looking at the transcript later might question the relevance,” she says. “Might even find prejudice if they believe we used the stuff to further incriminate Iganovich without charging him with the murders.”

  “You wouldn’t recommend it then,” I say.

  She shakes her head, still a bit puzzled. “Why do you ask?” she says.

  “Nothing,” I say. “Just a thought.”

  We end. She leaves me musing in my office.

  It’s what professional prosecutors call “a cop
shop.” Buried two floors beneath the Davenport County Sheriff’s Department, down a long corridor marked by outdated and faded civil defense signs, is a single door of solid wood, with no glass panels or windows, and no sign. We open it and step inside.

  Lenore’s behind me. I look at her. “What do you think?”

  She makes a face. “For the kind of party we’re throwing, it looks about right. How many cops upstairs?” she asks Claude.

  “During the day shift, in the office, maybe ten, twelve.”

  It seems we have found our grand jury room. It’s a problem in this state. With the high court decision fifteen years ago, grand jury rooms with their windowless facades, designed for secrecy, fell into disuse, and over the years were commandeered for courtrooms, or consumed by other burgeoning bureaucracies.

  I have decided to convene the grand jury here in the basement of the sheriff’s office for reasons of security. Since Iganovich was delivered back to Davenport County we have received more than a dozen threats on his life.

  We lock the doors and head back upstairs. Behind the public counter Emil Johnson is waiting for us.

  “Counselor. You got a minute?” He wags at me with his finger, then turns and heads for his office.

  I nudge Lenore to join us, and the two of us follow Emil’s big haunches toward his office.

  Inside he closes the door and asks us to take a seat.

  “What’s this I hear about a special grand jury?” he says. “What’s wrong with the one we got?”

  “The key man system?”

  He nods.

  “Key man” is the selection process that permits a few powerful judges and elected politicians to put their friends and, in some cases, family members on the county grand jury.

  “It won’t work, Emil.”

  “Why not?”

  “Because the defendant has a right to a representative grand jury, a cross section of the population,” I tell him. “Have you taken a look at your grand jury lately? It’s whiter than snow. It has only two women.” I don’t mention that one of these is the concubine of a county supervisor. “There are no Hispanics or blacks.”

  “Two thirds of that jury was appointed by the superior court judges. You’re telling me that ain’t good enough?”

  “The white friends of white judges don’t cut it,” I say.

  This sets him back on his heels. By the look on his face I can tell that my words will be passed along, chewed on over stale sourdough rolls and wilted lettuce at the next meeting of the Lincoln Club with all the county pillars.

  “Politics has nothing to do with it, Emil. Read Smith v. Texas and Alexander v. Louisiana,” I tell him. “U.S. Supreme Court decisions. They give the defendant the right to question the composition of the grand jury that indicts him. He can file a motion to discover the demographics of the jury as well as the method that was used to impanel it. If it’s not representative, any indictment would be quashed. I assume you don’t want to do this more than once?”

  He shakes his head. “We’ll do it your way.” In the final analysis, Emil is a pragmatist.

  Chapter Eighteen

  “Let’s see what we’ve got,” I say.

  “Not much from my end. Like I told ya, a pack a tree-huggers.” This is how Claude describes his telephone inquiries into the World Center for Birds of Prey.

  Lenore’s back from the library, leaning against the edge of my desk. Claude’s in one of the client chairs on the other side.

  “I checked with the Boise police,” says Dusalt. “It’s a research outfit, and a sanctuary for birds. Cops don’t know much about ’em. They pulled a few records for me, looked the place up on a map.”

  “What do they do exactly?” I ask.

  “According to the cops, they raise raptors.”

  “You make it sound kinky.” Lenore winks at him.

  “Birds of prey,” he says.

  “I know.” She smiles.

  “Hawks, falcons, birds of prey,” he says, “they hatch ’em, raise ’em, and let ’em go in the wild. A labor of love,” says Claude. “I’m told that the center is one of a kind. They take in birds from all over the world, breed them, and then do their thing to reorder the balance of nature.”

  “Did you call the place, talk to anybody?”

  “Yeah.” Claude looks at his notes again. “I tried for this guy William Rattigan.” If Nikki is right, this is the “Bill” from Karen Scofield’s computer files.

  “He was away on business. I guess he runs the place. The director. That’s his title. The woman on the phone was cooperative, but she didn’t know a lot. Abbott Scofield was a regional representative for the center in this area, sat on its board of directors with Rattigan. They were involved in a number of projects together.”

  “Did she say where Rattigan had gone?”

  “East coast for a seminar. I got the number of the hotel he’s staying at. He was out so I left a message at the desk for him to call me back.”

  “Anything else?” I ask.

  He shakes his head and turns a blank page on his notebook.

  I turn to Lenore. “What did you find?”

  She’s been at the university library most of the afternoon.

  “Guess how many listings?” she asks.

  I shake my head, like I have no idea.

  “Five,” she says.

  Goya’s been playing with the computerized version of the Guide to Periodical Literature. Checking to see what she could find out about the center in any magazines or other publications.

  She reaches into her purse and pulls out a long narrow sheaf of paper folded down the center. She opens it up. It’s several pages of letter-sized paper stapled together at the top left corner.

  “This was the best of the lot,” she says, “out of Audubon.”

  I open the photocopied article and read.

  She takes it from my hands and turns a few more pages, then flips it around and drops it on the desk in front of me again, tapping one of the photos with her finger.

  I look at the picture, a wooden tower built at the edge of some rocky precipice, a silhouetted figure climbing a makeshift ladder to the top. I read the cutline underneath.

  On Idaho’s Grouse Peak, university ornithologist Abbott Scofield climbs to a hack box to place extra food for young peregrines.

  “If you want my guess,” she says, “that’s the project he was working on when they were killed.”

  Lenore has wandered into my office. “What are you doing for lunch?” she says.

  I reach for my coat.

  “My turn,” she says. She means to pay for lunch. The last two have been on me.

  “I won’t argue.”

  “You know,” she says, “the thing we talked about the other day. The Scofield evidence. There may be a way to get it in.” She means before the grand jury.

  “Let’s walk and talk,” I say. We head out the door.

  “It’s a little duplicitous,” she says.

  I wrinkle an eyebrow.

  “We’d be setting up the other side, just a bit.” She explains that there would be no deception on the court.

  “All’s fair in that war,” I say. “Within limits. What’s your idea?”

  “I’ve been doing a little research,” she says.

  Neither of us is well versed in the aspects of a grand jury. To find the people best honed in this, you would have to go back through a generation of lawyers, most of whom are now retired.

  “People v. Johnson,” she says. “What’s called a ‘Johnson letter,”’ she tells me.

  I’ve seen the case before, somewhere, but can’t recall its rule.

  She explains. It seems the courts have held that while the defendant has no right of representation before a grand jury, he has the right to insist that all exculpatory evidence, anything that could point to his innocence, be disclosed to the jury, which then can choose to look at it in detail, or not, as the jury chooses.

  “What’s the ‘Johnson letter’?”
I ask.

  “It’s the mechanism the courts came up with to trigger the requirements of the case. If the defendant sends the prosecutor a letter,” she says, “demanding that certain evidence, deemed to be exculpatory, be given to the grand jury, the prosecutor has no choice. He has to disclose that evidence. If he doesn’t, it’s automatic reversal. The indictment will be quashed.”

  I whistle, a high pitch. “A real silver bullet,” I say.

  She nods.

  We’re out the front door, down the steps.

  “Where do you want to go?” I ask.

  “How about Quiche Alley,” she says. This is the salad and soup spot a block away, light fare. We head in that direction.

  “What I don’t understand,” she says, “is why you want to do it. The Scofield stuff could be dynamite. Confuse a jury with it and Chambers will turn it into the best defense going.”

  “Very likely,” I say.

  “We don’t charge his client with the Scofield murders, but instead admit that there’s probably another killer out there someplace, still on the loose. If I were defending, I’d love it,” she says.

  “Exactly. You don’t think Chambers has already seen the possibilities in Scofield? He’d have to be a fool,” I say. “But it’s still an open question, how damaging the stuff would be.”

  We walk a little further in silence. Then I speak.

  “What are twelve innocent and objective souls going to say when they see the Scofield evidence at trial, when it’s mixed and stirred in a courtroom with the other testimony, the physical evidence? Is it going to explode in our faces, or go inert?”

  She shrugs like she has no idea.

  “Precisely,” I say. I look at her, a sideways glance as we walk down the street. “That’s why I want to take it in front of the grand jury,” I say, “to test-drive the case.”

  She stops in mid stride and looks over at me, tracking on the strategy. She laughs a little. “Interesting,” she says, nodding her head. I can tell the wheels are turning upstairs. “He’s not there. Chambers isn’t there to see you do it.”

  I smile. “Just like a shadow jury,” I say.

  We start to move again, down the street.