An English setter ran up to her, ginger-and-white, its feathers combed out on its legs and tail.
“This must be Finn.”
Zeke had figured that out, sniffing and prancing around her. Finn ran back down the path, Zeke right behind her.
“How on earth did you find this spot?”
“The DNR office in Roscommon has a schedule for the Kirtland’s warbler project, but you probably know that.” Burr looked over at the net full of birds. “Isn’t that a little hard on them.”
“Those are cowbirds. I take it you’ve never seen a Kirtland’s?”
“I don’t think I have.”
She turned to the bird wranglers. “Let’s get the net to the trucks.” Then to Burr, “There are only one hundred seventy-two nesting pairs left. We may already be too late to save them.”
“And you’re doing it with cowbirds?”
“Cowbirds don’t make nests. They lay their eggs in the nests of other birds. Out here, they lay them in Kirtland’s nests. The cowbird chicks are much bigger and much more aggressive than the Kirtland’s. They eat all the food that the adults bring back to the nest. The Kirtland’s chicks starve to death. So the Kirtland’s parents end up raising the cowbirds.”
“I see,” Burr said, who once again didn’t. It’s a different world up here.
“These are pine barrens. About the only thing that will grow here is jack pine. Like these. Except that these were planted.”
She bent over and pulled a pinecone off one of the trees. She stood up and tossed him the cone. “It takes about five hundred degrees to open the cone up to spill out the seeds. And that takes a forest fire.”
Burr had no idea where this was headed, but he did what he always did in these situations. He looked down at his feet and didn’t say a word. Then he looked back up at the winsome professor.
“The Kirtland’s warbler only nests in jack pine and only when they’re scrub, like these. Now that we’ve pretty much stopped forest fires, they have no habitat. Unless we make it by cutting or burning. If you’ll excuse me, I have to attend to the cowbirds.”
She started off, then stopped.
“Do you hear that droning off in the distance?”
Burr nodded.
“That is an oil rig. Drilling in the Niagran. If the cowbirds don’t get the Kirtland’s, the oil men will.”
“There is much to admire about your work,” Burr said.
“Thank you,” she said, turning to him.
Did she just smile at me?
“I was hoping you’d show me where you found the paddle.”
“I’m much too busy. As you so cleverly pointed out, it was Finn who found the paddle.”
It must not have been a smile. “It might save a life from being ruined.”
She called Finn.
The English setter, with Zeke right behind, ran out of the jack pines.
“What are you going to do with the cowbirds?”
She started down the trail with Finn. She looked back at him. “We’re going to kill them.”
* * *
Burr and Zeke drove to Harbor Springs and rowed out to Spindrift. He hadn’t had any time on his boat, and he was going to enjoy it while he could.
He ducked below, pried up a floorboard, and retrieved another bottle of his favorite Bordeaux, nicely chilled in the bilge. He uncorked the wine and started on a Labatt while the wine opened.
He nursed his beer as long as he could, then, “Zeke, it must surely be open by now.” He poured himself a glass, swirled it and raised it to his lips.
“Burr.”
Zeke barked.
Burr ignored the barking and the voice, convinced or at least hoping he was hearing things.
“Burr. I know you’re there.”
Burr swirled again.
“Come up this minute.”
Zeke barked. Burr peered out of the cabin.
“For God’s sake, man, I’m going to drown,” Jacob said.
He stuck his nose halfway in and breathed. He took a sip. “Almost perfect.” He climbed up the companionway and peeked over the side. There was Jacob in the dinghy, again. Zeke barked.
“Quiet, Zeke.” Burr took another swallow. “Yes, Jacob?”
Jacob looked up from the dinghy. He had on a red-and-white-striped polo and blue Bermudas.
“You look like an American flag.” The dinghy bumped against Spindrift. “Fend off.”
“I beg your pardon.”
“You’re going to ding up the hull.”
“Skinner wants to see you.”
“The boy judge?”
“He wants to see you. Tomorrow morning.”
Burr climbed out of the cockpit. He put his wine glass down, sat on the deck and kept the dinghy off Spindrift with his feet. He picked up his wine, swirled and drank.
“Why didn’t someone call me?”
“You have no phone on this blasted ship.”
“Exactly.”
“He wants to meet with you and Cullen.”
“Jacob, would you like to join me for dinner on Spindrift?”
“I would be violently ill.”
Burr pushed the dinghy away with his feet.
* * *
Burr sat next to Cullen and across from Skinner, who was hunched over behind a desk the size of a pickup. For all the shabbiness of the Crawford County Courthouse, Skinner’s office had the trappings of a king. Diplomas and awards filled the walls. Light streamed in through the windows.
“I’ll get right to the point,” Skinner said.
Burr certainly hoped so.
“Let’s get going with this trial. I want to get the scheduling order out.”
“Your Honor, I’m afraid we can’t schedule anything until the Court of Appeals rules on the exhumation,” Burr said.
“That’s why you’re here. I want you to dismiss it.”
“I’m afraid I can’t do that, Your Honor.”
“Of course, you can. I know the law. I was elected just like my father.”
Burr sat straight up and shook his head no.
“It is a perfectly reasonable request. Then we can wash our hands of this.” Skinner did just that with his hands. “Overruled by those idiots in Lansing. Their preliminary injunction will be overturned.” He pointed a long, skinny index finger at Burr. “And an ex parte order, to boot.” Skinner pronounced it ex part, and not ex part-A.
“Your Honor, Michigan law does not favor exhumation. I said that at the hearing.”
“I said get that ex part order dismissed.”
Burr did not suffer fools gladly, even when he knew he should. “Respectfully, Your Honor, it is ‘Ex Part A.’ The ‘e’ is not silent. It is pronounced like a long ‘A’. Ex Part A.”
“Out.” Skinner pointed at the door.
* * *
“All rise,” the bailiff said.
Those two little words always got Burr going. He loved to litigate. He loved to fight with words. Armed only with his No. 2 pencil and his legal pad, he loved to meet the enemy and win the day. Today’s would be a battle royal, but thanks to Squire Jacob, Burr was well armored. He stood, as did his foe.
The three judges entered from the back of the courtroom and sat.
“The Court of Appeals for the State of Michigan is now in session,” the bailiff said. “You may be seated.”
For all the shabbiness of the Crawford County courtrooms, the Court of Appeals was nothing if not elegant. It was on the second floor of the Prudden Building in downtown Lansing. The courtroom had oak paneling, the varnish so old it had turned almost black, covering all but the brightest of the grain in the oak. It had so many coats of varnish, you could see your reflection in it. Tapestries framed the windows. There were walnut desks for the judges, matching walnut tables an
d chairs for the litigants, walnut pews for the gallery.
It was a grand setting for grand-and-weighty matters of law, although the subject matter today tended more toward the macabre than the esoteric.
Once again, Lizzie sat on Burr’s left, Jacob next to her. Cullen sat across the aisle. Eve was the only one in the gallery.
“We are here today to decide whether that certain ex parte order, issued by this court, in the matter of the People versus Shepherd shall become a permanent injunction. The court notes that the temporary restraining order was granted by Judge Gunnison.” This said by Chief Judge Miriam Florentine, a petite, attractive, white-haired woman in her sixties. Burr had argued before her many times and had great respect for her intellect.
“Counsel, I must say that I find it highly irregular for this court to grant an emergency ex parte order.”
Burr himself had found it highly irregular and was shocked, not to mention delighted, when Judge Gunnison granted the order. Judge Delton Gunnison, referred to by Burr as Tweedledum, and his counterpart on the other side of Judge Florentine, Judge Wilton Franklin as Tweedledee, were living proof that judges should be appointed, not elected. Burr, though, had cultivated relationships with all of the appellate court judges, and he usually won the close calls.
“You may proceed, Mr. Lafayette,” she said.
Burr stood. “Thank you, Your Honor. As I’m sure you’re aware, and as noted in my brief, Michigan law does not favor exhumation. The policy of the state is not to disturb the remains of the dead.” He paused and pulled on the knot of his tie. “Moreover, the wishes of the relatives are also of paramount importance, and Mrs. Shepherd, the widow, does not want the remains of her husband disinterred. These two principles have been affirmed in case after case. For example, in Shumway versus—”
Tweedledee, a stout man with a fringe of black hair and bifocals, raised one hand, palm toward Burr. “Stop right there, Mr. Lafayette. We have all read your most able brief.”
“Yes, Your Honor.”
“Mr. Wertheim’s legal scholarship is without peer.”
“Thank you, Your Honor,” Burr said.
“Having said that, there are other factors that weigh in the decision.” Tweedledee turned toward Cullen. “Sir, do you have anything you would like to add?”
Cullen bolted out of his seat, smiling his inane smile. “Thank you, Your Honor. Counsel is correct, as far as he goes.” He looked over at Burr. “The policy of the state and the wishes of the relatives are trumped by certain circumstances such as, if a crime has been committed.”
“Quinn Shepherd drowned,” Burr said.
“Please be quiet, Mr. Lafayette. Continue, Mr. Cullen,” Judge Florentine said.
“As I was saying, exhumation is permitted if the possibility exists that a crime has been committed. Especially if new evidence is brought forth that suggests a crime has been committed. In these circumstances, the interests of the state outweigh the interests of the relatives.”
“There is no justice in what you’re doing,” Burr said.
Judge Florentine pointed at Burr. “I’m going to ignore your last comment, Mr. Lafayette, but if you have one more outburst, I am going to eject you, and then we will hear from Mr. Wertheim.”
Jacob cringed.
“Now then, Mr. Cullen.”
“The case law is clear on this. In Spencer versus—”
“I read your brief. What is your point?” Tweedledee said.
“My point is, Your Honor, there is new evidence. Shocking new evidence. We have a canoe paddle with a shattered blade. And the blade has traces of Mr. Shepherd’s hair. If we are allowed to examine Mr. Shepherd’s body, we will be able to show that Mrs. Shepherd struck Mr. Shepherd on the head with the canoe paddle, thereby causing his death.”
Burr couldn’t take it anymore. He looked at the pencil in his hand and snapped it in two. All three judges looked at him.
“Excuse me,” Burr said. He studied his broken pencil, then stood. “Your Honor, if I may—”
“If you must.”
“The coroner ruled that Mr. Shepherd drowned. The autopsy described Mr. Shepherd’s injury in detail. It determined that Mr. Shepherd struck his head on the rail of his boat. It did not even suggest that he was struck by a canoe paddle.” Burr looked at Cullen. “While Mr. Cullen is correct as far as he goes, the case law is also clear that there must be an overwhelming reason to disinter. There is no overwhelming reason here. Mr. Shepherd’s injury was analyzed in painstaking detail at the autopsy.”
“The medical examiner did not know about the canoe paddle,” Cullen said.
“The canoe paddle was found almost a year later,” Burr said. “By a dog.”
“A dog?” Tweedledee said.
“The paddle has Mr. Shepherd’s hair on it,” Cullen said.
“Sit down, Mr. Lafayette. You too, Mr. Cullen,” Judge Florentine said.
“Gentlemen, I have quite enjoyed the lively discussion and the education regarding the law of exhumation. I now know much more about the law of exhumation than I care to. In fact, I fear that if I learn anything further I will know less than when we started. But, I am afraid that all of you, including my learned colleague, have missed the point.”
Judge Florentine cleared her throat. “We are not here today to decide whether the body of the late Mr. Shepherd is to be exhumed. On the contrary. We are here today to determine whether the ex parte temporary restraining order should become a permanent injunction. This is a procedural question not a substantive question.”
The chief judge continued, “Mr. Lafayette, I do find that you have met certain of the requirements of a preliminary injunction. It is certainly the case that money damages would not be an adequate remedy.”
Burr nodded at the judge and smiled, Cullen’s smile noticeably absent. “As to the test of irreparable harm, the family, particularly Mrs. Shepherd, has already suffered harm from an exhumation. Will it be irreparable? I don’t know, but the decision does not rest on this point.”
Both Tweedledum and Tweedledee nodded. Burr was sure they had no idea what they were nodding about. He was afraid he did.
“The point of decision, Mr. Lafayette, rests on the matter of prevailing on the merits. That is, are you likely to win at trial? Is the trial judge likely to decide that the wishes and interests of Mrs. Shepherd in preventing the exhumation outweigh the interests of the state in obtaining justice? Particularly, when there is new evidence. I am afraid, Mr. Lafayette, that on this point, you must fail.”
“Your Honor,” Burr said, standing.
“Sit down, Mr. Lafayette.”
Burr sat down.
“It is not clear that you would win at trial. Therefore, I find that this matter does not warrant a preliminary injunction. The temporary injunction is dissolved.”
“Your Honor,” Burr said, standing once more.
“Mr. Lafayette, you have two choices. You may either appeal to the Supreme Court of the State of Michigan or you may take this up with the trial judge, Lawrence G. Skinner, and have a trial on the merits.”
Burr started to sit back down.
“You might as well keep standing. We’re leaving now. We are adjourned.” She hammered her gavel and left, followed by Tweedledum and Tweedledee.
* * *
Burr rarely mourned a loss. There was always the next battle, and, for that matter, he hardly ever lost. After this loss, they adjourned to Jim’s Tiffany Place. The food wasn’t great, but Jim’s had the great advantages of being close to the Court of Appeals, and having a good wine list. They sat in the atrium, the September sun pouring in, and as far away as Burr could get them from the schmaltzy Tiffany lamps that littered the restaurant and gave it its name, but had nothing to do with the Greek food it was known for.
Eve ordered Greek samplers for all of them. Burr didn’t like Greek food, a
nd he especially didn’t like samplers, but the food was secondary to the wine, and the wine was secondary to the matter at hand.
Lizzie sat across from him, her stuffed grape leaf untouched. “So they’re going to dig up Quinn?”
“No, they’re not,” Burr said.
“I thought we just lost.”
“Judge Florentine said we can either appeal to the Supreme Court, or we can have a trial in front of Skinner.”
Lizzie picked at the grape leaf with her fork. “What’s going to happen?”
“We’ll probably lose. In both forums,” Burr said.
“Then why should we do it?”
“We can’t give in to Cullen. If we fight long enough, we’ll win,” Burr said.
Jacob straightened his tie. “It will be expensive.”
“Not that expensive,” Burr said.
Eve, director of finance, poked Burr on the wrist with her fork.
“Burr, sometimes I think that you fight for the sake of fighting,” Lizzie said. She stabbed the stuffed grape leaf, put the fork to her mouth, then set it back down. “I’m tired of fighting about this, especially if we’re going to lose anyway.”
Burr, who never gave an inch, gave an inch. “What would you like to do?”
“I don’t want to fight about this anymore.”
* * *
Back in his office, Burr leaned back in his chair, hands clasped behind his head, feet propped up on his desk. Zeke napped on the couch. Eve out front, Jacob in his office.
“Money.” Burr said, loud enough for all to hear. “Money,” he said again. “Jacob, it’s time we started looking for the money.”
“What did you say?” Jacob said from his office.
“How about a few suspects?” Eve said from her desk.
“My point exactly.” Burr righted his chair. “Jacob, let’s look for the money.”
“We’re going to look for money?” Jacob said.
“Who has it. Who doesn’t. What they do with it.”
“I beg your pardon,” Jacob said.
“Whose money?” Eve said.
Burr was getting tired of talking to people he couldn’t see. “Jacob, is there any chance you could come all the way in here for a minute?” Burr heard Jacob groan, but his partner walked in, Eve at his heels. Burr spun around in his chair to face the two of them.
The Gray Drake Page 11