“I don’t see any problem with that,” Meine said, standing to leave. “You know it better than anyone else.”
Outside in the hallway Brian could hardly contain his excitement. Bernard had done beautifully, keeping his demeanor calm and convincing throughout the meeting.
“Good job.” Brian broke into a smile and reached out to shake Bernard’s hand. “What now?”
“I practice up on my trial tactics,” Bernard said lightly. “I’m as rusty as they come.”
“Something tells me you’ll do just fine.”
Chapter 34
Over the years Ben Bernard had earned a reputation that few deputy district attorneys ever gain. He was brilliant and thoroughly prepared for each flawlessly presented case.
In the past twenty years Ben had tried nearly one hundred felony cases and gained convictions on all but three. The way Ben saw it, trying a case was a game he practiced in the legal library and played out in the courtroom. Each time a court clerk read these words, “The jury finds the defendant guilty as charged,” he wondered how he could ever have wanted to do anything but practice law.
Ben was born in northeastern Ohio in 1939. He had just turned five years old when his family moved to Southern California. He was a talkative young boy with twinkling brown eyes and an uncanny ability to debate current affairs with adults.
“You’re gonna be a bright attorney one day,” a teacher told him.
Ben took the comment to heart. Throughout junior high when someone asked him what he wanted to do when he grew up, he did not hesitate. He wanted to be a lawyer. But during the summer between junior high and high school, Ben began chasing girls. In the process he forgot his goal, becoming like the majority of students who had not formulated career plans.
At age seventeen, Ben focused once more on his future and decided he wanted to be a cameraman for the motion picture industry. Not long afterward he was hired as a mail boy for Warner Brothers. His manager recognized Ben’s intense determination. He attacked even the smallest tasks with a fierce desire to do them better than anyone. In two years the twenty-two-year-old Ben was promoted to the television story department, coordinating between writers, directors, and producers for seventeen shows. There was even talk of his getting behind a camera one day. Then the layoffs came and Ben found himself suddenly without a job. Ben knew that if all variables had been within his control, he would have become a brilliant cameraman. Since the opportunity was simply not there, he decided to pursue something else. Ben realized that his determination was balanced by another inborn trait: realism. It no longer mattered what line of work he wound up in, so long as he did it better than anyone else.
A turning point came on Thanksgiving, just after his twenty-sixth birthday at a family gathering. After dinner, Ben found himself complaining to an older cousin about his inability to find a career niche.
“Well, my boy,” the man began, stretching out in a reclining chair and adjusting his belt to a looser notch. “What was it you wanted to do before you got mixed up with that crazy show business stuff?”
Ben paused a moment thoughtfully and remembered his childhood goal. “I wanted to be an attorney,” he said, sounding unsure of himself. “But that was a long time ago.”
The cousin chuckled. “Nothing wrong with that, my boy. You know I’ve been practicing law for many years now.”
For the rest of the afternoon and well into the night, Ben did not leave his cousin’s side. By the next day Ben had decided to give the legal profession a try. It might not work out, but it was worth a try.
In the 1960s, the State Bar of California offered a bachelor degree equivalency test as part of the application process—the same test Lorn Aiken would later take prior to attending law school. If prospective students passed the test, they could enter directly into law school without a college degree. When Ben passed, he decided he would not only become an attorney, he would be the best ever.
He attended night classes at the San Fernando Valley College of Law years before Aiken would wind up at the same institution. During his first year of law school, Ben was stunned by the amount of studying required. He became friends with two other first-year students, Dave and Keith. Together they held all-nighters in which they would alternately read in silence and hold raucous debate sessions in an attempt to analyze precedent cases.
Despite his heavy course load, he found some time to socialize. In 1969 he turned thirty and met and married a friend’s pretty Texas niece. But the real celebration came in 1970 when he and Keith and Dave all passed the bar exam on first try. Immediately afterward, Keith and Dave went into practice for themselves. Ben wanted something different. He applied for a position with the Los Angeles District Attorney’s office in January 1971 and waited for a response: The office wasn’t hiring.
For the next year Ben used his law degree for odd jobs about Los Angeles but was unable to find anything satisfying. Discouraged, he and Sandy moved to Texas where his wife’s father offered Ben a job in the building industry. It took Ben less than two months to realize that he could never be happy as anything but an attorney. He also realized he could never be happy in Texas. His wife, however, no longer wanted to live in Los Angeles. So Ben was alone when he returned to Los Angeles in 1971.
Ben was excited about being back in Southern California. Once more he applied to the Los Angeles District Attorney’s office. This time he was hired. Overnight, Ben found himself in the center of everything he had dreamed of as a twelve year old. He drew on the verbal skills that had always come naturally to him and soon his peers began taking time from their schedules to watch him in action. What made him so good had nothing to do with legal lingo or long-winded speeches. Rather, it was the way Ben delivered a statement that struck admiration in the hearts of his colleagues. With the casual air of a trusted friend, he would deliver his lethal punch lines. Jurors did not weigh Ben’s words so much as they took them to heart. His kind face and warm, trusting tone of voice told them he was merely a nice honest man, not manipulative, not overbearing.
If the truth had been known, every person in the jury box would have been surprised. Underneath his calm, casual demeanor, Ben was a ruthless fighter whose weapons were words. Trying a case was a deadly serious matter to Ben, but he had long since learned to use a casual demeanor to his advantage. It was all part of the game; one that early on Ben grew accustomed to winning.
In 1974 Ben married Laura, a beautiful, supportive woman whom he had met through a colleague at the district attorney’s office. Laura was a kindergarten teacher and for the next eighteen years the couple shared their career rewards with each other. Although they had no children of their own, they enjoyed Laura’s kindergartners and together their lives were rich and rewarding.
For the next decade Ben’s reputation continued to grow. He sent so many felons to prison that opposing counsel used to joke that he alone was responsible for the overcrowded prisons in California. Despite his success Ben never became pompous. Other attorneys compared notes and played games of one-upmanship with each other, always ready to rattle off their win-loss records. Not Ben. For that reason, he got along with his peers as well as his superiors.
Not long after the anniversary of Ben’s tenth year with the district attorney’s office, the combination of his courtroom successes and his amiable attitude led to a series of promotions. He was promoted to deputy district attorney in charge of the office in Glendale and in 1988 he was promoted to assistant head deputy of the Pasadena office.
One of his duties was evaluating cases submitted by detectives. The only drawback about the managerial jobs was that they took him away from the courtroom. But by 1988 Ben had turned forty-nine, and he decided that it was time to leave the challenge of trying a case to the younger prosecutors making their way up. Sometimes a case would cross his desk that would make him hunger for his courtroom days. But none tempted him as much as the case against Dan Montecalvo.
Throughout 1989 Ben ha
d followed the case and was aware of the hours of work Detective Arnspiger had put into it. From the beginning Ben felt fairly sure that Dan was guilty. But believing it was so and allotting taxpayer money to take it before a jury were two entirely different matters.
So each time Brian brought the case to Ben, he had no choice but to send it back for further investigation. Ben thought Brian had done a meticulous job, but there was simply not enough evidence—until the detective brought in the information from Mark Paulson at Pacific Bell. By then Ben had decided the case needed a fresh look from another district attorney and he assigned Tricia Lynn to evaluate it. After she looked at the 8,600 pages of circumstantial evidence she agreed to file it. When Ben heard the news he was satisfied that the case against Dan Montecalvo would finally have its day in court.
Later, Ben could not comprehend why Lynn wanted to drop the case for lack of evidence. Ben’s feelings about the evidence against Dan Montecalvo were so strong that after his superior had agreed to allow the case before a jury he had offered to try it. The challenge of one last trial, one last chance to play the game and win, was simply irresistible.
Chapter 35
Attorney Lorn Aiken had reason to believe that Dan Montecalvo did not kill his wife. In part he believed him because Dan had maintained his innocence, even after Lorn had declared his rule about clients who lie. But Lorn was not a fool. Neither was he egotistical enough to believe that the threat of his presence alone was enough to extract the truth from a person charged with murder. What convinced him were several items mentioned in the police reports.
The first dealt with the words Carol had said just before she was shot. According to Dan she said, “What are you doing here?” After years of working as a defense attorney Lorn considered himself an expert in the typical reaction of victims involved in violent crimes. In such a situation a woman might scream or run away. But Lorn had never heard of a robbery victim asking the robber, “What are you doing here?” The only reason Carol would have asked that question, Lorn reasoned, was if she knew the people burglarizing her home. Neighborhood kids, perhaps, or a business associate. Lorn was not concerned with the responsible person, as long as he could prove it wasn’t Dan.
Another item that Lorn questioned was the license plate registration tag. According to Dan, he had been outside waiting for Carol to return with a wet paper towel so that he could clean off the dusty license plate and put on the sticker. He heard Carol ask, “What are you doing here?” heard two shots, and ran into the house after her.
One police photo showed a license plate tag lying on the driveway, midway between the parked cars and the front door. Dan had never mentioned the tag or what had happened to it amidst the madness that night. But there it was. Right where it would be if Dan had been telling the truth, having dropped it in his haste to get to Carol.
The longer Lorn looked at the evidence, the more certain he became that he could get Dan an acquittal. After all, if there were two likely explanations for a piece of circumstantial evidence—one demonstrating the defendant’s innocence and one his guilt—the jurors were instructed to disregard it totally. In other words, if there was a reasonable explanation for a bit of circumstantial evidence, it could not be used against the defendant. Lorn could think of a reasonable explanation for everything the prosecution had against Dan—even Mark Paulson’s story.
As for the Paulson story, the hearsay element would work in favor of the defense. Mark said Denis said that Dan said he would kill a woman for her insurance money. And this evidence had come forward only after the media had reported how much insurance Carol had. For all anyone knew, Denis was mad at Dan for something unrelated and had created the entire story. As far as Lorn could tell, until Ben Bernard stepped in there really was no case.
Lorn wondered why an expert prosecutor like Bernard had agreed to take on a case that technically was not winnable. If the jurors followed the rules of circumstantial evidence, Dan would walk away a free man and the resulting black mark would mar Bernard’s otherwise brilliant career. After all, there was a reasonable explanation for even the most damaging pieces of circumstantial evidence against Dan.
The life insurance was easy to explain. Dan had a criminal record and health problems. That made his chances of employment virtually nonexistent. Therefore, Carol, in a manner that proved her loving feelings for Dan, had taken out a handful of inexpensive life insurance policies on herself. That way if anything ever happened to her and Dan was left to fend for himself, he would have enough money to survive two or three decades without her. Simple as that.
Dan’s gambling debts were not difficult to explain, either. Yes, Dan had run into some bad luck in Las Vegas. But he was making fairly steady payments to erase his debt. Even if the collectors had deposited Dan’s markers at his bank, he would only have faced the penalty one faces for writing a bad check. Since Dan was on disability and had no wages to garnish, that type of penalty was certainly not threatening enough to cause him to murder his wife for her insurance money.
In Lorn’s opinion Dan’s making a payment to the casino the morning of Carol’s murder was of no significance whatsoever. The prosecution was pointing to the fact that the payment was accompanied by a letter in which Dan promised to pay the loan balance in three weeks. The prosecution believed this letter proved that Dan was planning to kill Carol and collect her insurance money. But Lorn thought it was logical to pay one’s bills on the last day of the month before going on vacation. As for the promise to pay off the balance of the debt within three weeks, that, too, could be explained. Dan and Carol had been looking into taking a loan out on their home. Once approved, the money would have been enough to pay off the debts. Dan was not informed that the loan was denied until after Carol’s murder.
Then there was the hollowed-out book, which Lorn felt only proved that the detectives were grasping at straws. Lorn was completely convinced that one of the officers must have checked the bookcase during the initial search. Since Brian Arnspiger had come on the Montecalvo case later, Lorn figured he had assumed no one had searched the bookcase. If there had been guns in that book after Carol’s murder, they would have been found.
Lorn also believed that if, for some reason, the book had been overlooked, Dan would not have saved it for evidence. If he had killed Carol, shot himself, and successfully hidden guns in the book without dripping blood on the carpet or near the bookcase, he certainly would have disposed of the book when he got rid of the guns. As for Dan’s character flaws—the drinking and carousing, the habit of carrying guns—they clearly were not enough to convict a man of murder.
Lorn was not concerned with whether the jury liked Dan Montecalvo. He wasn’t sure if he liked Dan Montecalvo. What mattered was that Lorn produce a reasonable explanation for each piece of circumstantial evidence. If the jurors could accept his explanations, they would be obligated to return a not-guilty verdict.
But Lorn knew that to be successful in court against Ben Bernard, he would have to do more than offer explanations for the circumstantial evidence. If Dan was indeed innocent, then someone else must have killed Carol. After hearing that he was going to trial against Bernard, he decided he would need to initiate his own investigation to produce evidence proving his theory. He picked up the telephone in his cluttered office and began dialing.
Chuck Lefler and Gene Brisco were retired sheriffs homicide detectives turned private investigators. In all of Los Angeles County there wasn’t a pair of private detectives Lorn would rather have digging up information to help exonerate Dan Montecalvo. The call came in to the office just after three o’clock that April afternoon; Chuck answered the phone.
“You got some time?” Lorn sounded gruff and Chuck knew instantly who it was. Chuck and Gene had worked for Lorn several times with great success. When Lorn sent them fishing, the pond was usually stocked full of fish.
“You bet,” Chuck answered, grabbing a notepad and a pencil. “What’s up?”
“R
emember that case I told you about? Dan Montecalvo?”
“The guy up for killing his wife?”
“Right.”
“Vaguely. Refresh me on the details.”
For the next twenty minutes, Lorn did just that.
“I’d bet my grandmother’s false teeth that the guy’s innocent,” Lorn said when he finished the story.
“Where do we fit in?”
“Something Dan says he heard Carol say just before she was killed.” Lorn paused. “I think Carol knew the person who shot her. That’s where you come in.”
“I’m listening.”
“I need you guys to talk to Dan’s neighbors, talk to anyone who might have seen something that night. We’re looking for hard evidence here. Anything that proves Dan didn’t kill his wife.”
“Who pays us?” Chuck was a bottom-line person who had no interest in working for free.
“The court. Dan is entitled to some court-funded investigation work. I’ll work out the details.”
“How long are we talking?”
“Three months, maybe six.”
Chuck looked over his calendar. They could work it in. “Okay,” he said. “You’ve got a deal.”
Long before Gene Brisco and Chuck Lefler joined forces and began doing private investigations, they each spent nearly twenty years as homicide detectives with the Los Angeles County Sheriff’s Department. As a result, they were die-hard cops who even after becoming private investigators still looked and acted like deputies.
They became friends in the late 1970s when both men were working in the City of Industry station. Each detective had his own unique and successful knack for solving murders. In 1985 Chuck retired with twenty years experience and opened his own private investigation office, south of Los Angeles in La Mirada, an industrial city near Disneyland. Two years later, Gene also retired.
Final Vows Page 24