Ann sat for a long while, staring blankly at the papers on her desk. “So who knows about this?”
“Right now, just you and me. I played a hunch. Not even Cale Pleasance, the fingerprint guy, knows who the donor is. Like I said, I sent him a blind sample. Just asked if the print on the beer glass matched any in the house.”
“Let’s keep it that way for right now.”
“Can we get a warrant?” Punch asked.
“For what?”
“I don’t know. To get his prints, maybe to search—?”
“Hell, no! What are you looking for? We already have everything we need. We’ve got a trial in six weeks.”
“I’m aware. That’s your problem, counselor, and I don’t believe we ever have everything we need,” Punch said. “By the way, don’t we have to turn this information over to the other side?”
“You let me worry about that, Detective,” Ann said. “And as for the warrant, even if we wanted to go that way, not sure we’ve got probable cause for anything. We’ve got his prints on a vase. Close the door on your way out, please. I have a call to make. And keep this between us.”
Punch looked at her for a long moment before he left, closing the door behind him.
As soon as the door closed, Ann picked up the phone and punched the number for Mike Shepherd. “We need to talk,” she said.
Several minutes later, Ann was in Shepherd’s office. “Thanks for seeing me.” She took a seat somewhat gingerly. The office was a pigsty. Papers were strewn about his desk, file boxes full of reports and evidence lined the walls.
“Always good to hear from the lead prosecutor in a death penalty case,” he said. “How’s it going?”
“I think it’s going well.”
“What’ve we got?”
“Well, we’ve got the suspect’s prints all over the house and on the murder weapon, which we found at his house. Her blood was on the weapon, and a piece of the weapon was in her neck. We’ve got a DNA match—his semen. His blood at the scene. His name in her appointment book. His vehicle was placed at the scene. He admits being there the night she died. The neighbor saw him in the area as well.”
“Sounds solid. Anything exculpatory?” He reached for a paper bag.
“Potentially,” Ann said. Seeing him rummaging through the bag made her feel bilious. “Another semen sample—”
“Excuse me?” Shepherd stopped rummaging and looked at Ann.
“A spot of semen on her sheets.”
“Christ. Got an ID?”
“Only the suspect’s, so far.”
“This isn’t good.” He reached in the bag and withdrew a foil-wrapped package.
Ann watched as he carefully unwrapped the package. “We’ve got another complication.”
“What’s that?” He held up a sausage link. “Want one?”
“No, thank you,” she said, trying to hide her disgust. “Six identifiable sets of prints in the house. Most were left by the deceased, of course. Some are those of her mother and her housekeeper. The suspect, Olsen, of course, and two other sets.”
“Shit. Two sets of unidentified prints? Johnstone will be all over that.” He popped the sausage link into his mouth and chewed. “My doctor says it is better to eat a series of small meals throughout the course of the day,” he said at last.
“Good advice,” she said, watching as he fingered another sausage with stubby fingers. “It gets worse.”
“Really? How so?” He popped the link into his mouth.
“We’ve got a tentative ID on one set. Someone whose prints are problematic.”
“You’re making my stomach hurt,” Shepherd said. He chewed, swallowed, and took a drink of soda. “Why?”
“Well, he’s a prominent citizen.” She watched as he shook an antacid from a bottle and put it in his mouth.
“How prominent? Like, bank president prominent? Country club president?”
“A member of the legal community.”
“I don’t like this, Ann,” Shepherd said, chewing the antacid. “What’s the problem?”
“He’s up to his size-eighteen neck in this matter.”
Shepherd swallowed. He had to ask. “Is this individual a suspect?”
“Not at this point,” Ann said, selecting her words carefully. “We have no reason at all to believe he had anything to do with Emily’s death.”
“Is the individual aware of what you’ve found?”
“No. But based on the evidence, and based on his position, the guy is sophisticated enough to know that we must have figured it out by now. And just so you know, Punch considers the investigation open, at this point.”
“Open? He’s made an arrest, for Christ’s sake! You’re going to trial in what—six weeks?”
“I know that, Mike. I’m just reporting to you where we are. Look, Punch is convinced we’ve got the right guy. We got through the preliminary hearing in one piece.”
“So, the individual’s role diminished after the prelim?”
“Yeah.”
Shepherd took a drink of soda. “Has the individual contacted you, or attempted to contact you?”
“No.”
“Has the individual attempted to influence the investigation in any way?”
“No.”
“Do you believe the fingerprint evidence is exculpatory?”
“Of course not. I think, based on the evidence that I have seen, that the case against Tommy Olsen is solid, and that Judge Howard’s prints would only serve to confuse the jury.”
“Howard? Jesus Christ!” At the mention of Howard, Shepherd had leapt to his feet and was now pacing his office.
“My words exactly.”
“So, what’s your plan? Are you going to reveal the presence of these prints to the other side?”
“I don’t know what to do,” Ann said. “See, the manner in which they were collected was, uh, unconventional.”
“Unconventional? You mean, like, without a warrant?”
“Yeah, but in a public venue.”
“Chain of custody?”
“None.”
“Oh, hell no!” Shepherd said. He walked to his window and parted the shades to look out. “You wanted this case. This is a tactical decision to be made by the lead counsel.”
“But you’re the chief deputy prosecutor! Surely you—”
“Who else knows about this?” Shepherd said. He turned to face her.
“Well, me, now you—”
“—I don’t know shit.”
“—Polson, I’m not sure who else.”
“Print guy?”
“Not sure. The judge, of course. He doesn’t know that we know, but he kind of has to know.” She was looking at her shoes, in part to avoid staring at a spot of grease on his chin.
“Damn it, Ann, why’d you tell me this?”
“Because you’re my boss, Mike.” She made eye contact with him, trying to avoid looking at the grease.
“Well, who else knows you’ve been here to see me on this subject?”
“No one.”
“Then that’s the way it is going to stay. No one is to know that we have discussed the matter of this additional evidence—do you understand?”
“Mike, I need your help. I’m not sure what to do here.”
“I’m not going there,” he said. He sat down at his desk. “My advice is to decide one way or the other and stick with it.”
“But if I make the wrong decision—”
“Then it’s gonna get ugly.” He was rummaging through the bag again. “But I’m having no part of it.”
“Will you speak with Rebecca about this for me?” She watched his hand in the bag.
“Absolutely not. And neither will you. She must not know about this, just in case something goes bad. She needs plausible deniability.”
“But Mike, you can’t leave me hanging like this!”
“You wanted this case, Ann. You’ve got it. And now you’ve got one hell of a problem on your hands, so you better
get to thinking about how you’re going to deal with it.”
“Let me ask you this: what if I disclose the information to the other side?”
“Then you will likely ruin Howard’s career, and you will be persona non grata with everyone in the state bar.” Shepherd was sweating profusely now. He withdrew a small candy bar, ripped the wrapper open with his teeth, and popped the entire thing in his mouth. Chewing furiously, he continued. “It probably doesn’t matter, given the evidence you’ve got on Olsen. But I think you know what most ethics professionals would tell you to do.”
Ann said nothing, thankful it was only a candy bar. Shepherd continued, “On the other hand, the good news, at least for now, is that Howard already bound Olsen over, and you didn’t know those prints were his, and what you’ve got can’t be used by the State. Maybe not disclosing would be deemed harmless error by an appellate court. I don’t know. I do know it sucks to be you.”
“So, I’m on my own, huh?”
“Well, yeah. I hate to say, ‘I told you so,’ but if I remember correctly, a couple of months ago I advised you to be careful what you ask for.”
“Ann, I don't like this,” said Punch. “It just doesn’t feel right.”
“Detective, you do your job and I’ll do mine, okay? I already explained to you that exculpatory evidence is only exculpatory when it would tend to show that the accused did not commit the crime. Those fingerprints—and anything else you have or will find, for that matter—don’t matter given the weight of the evidence that we have accumulated, that you have accumulated, against Tommy Olsen. All it’s going to do is confuse the jury.”
Ann looked at Punch, expecting an affirmation of some sort. Seeing none, she continued. “The last thing we need is twelve of these local mouth-breathers getting their feet tangled and acquitting the sonuvabitch. I am not going to let that happen on my watch.”
“I guess I don’t understand how in the hell Judge Howard can do the preliminary hearing when his prints are at the scene of the crime. This is bullshit.”
“Not your call,” Ann said. “If we assume he knows his fingerprints—”
“He does.”
“How the hell would he know that?”
“He has to know. He left them.”
“But they were on a vase. It could have been delivered. And does he know we know?”
“He has to, unless he thinks my people and I are incompetent. And he knows I’d tell you.”
“Right,” Ann said. “That means the judge made an informed decision not to recuse himself. He’s an experienced jurist. We need to respect that. The investigation is closed.”
“Counselor, you do your job, and I’ll do mine. This is an open investigation.”
“You made an arrest!” She angrily shuffled papers on her desk. “We have to assume the judge has examined the situation and determined he does not need to recuse himself.”
“How in the world could he be impartial when his own damned prints are there?”
“Because it was only a preliminary hearing, and all he had to do was conclude that a crime was more likely than not committed, and that Olsen committed it. Besides—and I remind you again—what the judge did is not your concern.”
“How about you? Could you ask for a mistrial? This isn’t right!”
“Not yet. The trial hasn’t even started. I could disclose what we know to Johnstone, but I’m not going to, and I remind you, we are not in the ‘right’ and ‘wrong’ business. We are in the ‘lawful’ and ‘unlawful’ business. Again, you need to do your job and let me do mine. If you can’t do that, then maybe the chief and I need to have a talk.”
“I gotta think about this, Ann,” Punch said.
“Think all you want, Detective. But when we get to trial, listen to the question, answer the question and only the question, and then shut the hell up. Do not admit or reveal that a set of prints that you found belongs to Howard.”
“What if his lawyer asks me?”
“He won’t. That crazy bastard is as nervous as a short nun at a penguin shoot. He’s in over his head and clearly falling apart. He’s got no reason to expect complications with fingerprints, does he?”
“Not right now. But what if he asks?”
“He won’t. He's an alcoholic, half-crazy disabled vet trying his first murder case. He’s only in town because Paul was doing him a favor. Now he’s in way over his head, financially and in every other way. No capital murder experience, no money, no resources. He’s falling apart; he just doesn’t know it yet."
“You don’t seem to think much of the guy.”
“I don’t think about him at all. He’s just in the way.”
“I think you might be misjudging him.”
“I don't care what you think, Detective. Do your job and everything will work out.”
“Right,” Punch said, turning to leave.
“Oh, Detective?”
“Yeah?”
“Just remember, a preliminary hearing is just a formality, really. You’ve been around long enough to know that. Howard bound Olsen over, just like any other judge would have any other defendant. Whatever Howard did or didn’t do in his private life really didn’t matter. Cut the guy some slack.”
“Kenneth, what is the matter? You haven’t eaten anything.” Rhonda was the only person in the world who called him by his first name. Even his own mother called him Punch.
He lifted his gaze from his plate of uneaten lasagna and saw the concern in her dark brown eyes. “It’s just this case, honey. Stuff bothering me.”
“You’ll do fine, Kenneth. You always get your man, right?” she said playfully. “But you cannot let it get to you like this. You’re not eating. You’ll get sick.”
“I’m fine,” Punch protested.
“No, you’re not. You’re not eating, you’re drinking like a frat boy, you’re snoring like a freight train, and you’re short with me and the kids.”
“Well, if I’m such a pain in the ass, maybe I’ll just leave!”
“Well, why not?” Rhonda cried. “Why don’t you just go on down to the office like you did last night and seventy percent of the nights before that and just leave me and the kids here by ourselves?”
“I will. I don’t have to listen to this,” Punch said, donning his jacket.
“Daddy?”
Punch stopped in his tracks. He’d thought Joey was asleep. It was long past his bedtime. “Yes, son,” Punch said. “What are you doing awake? You should be asleep.” With a dark look at Rhonda, he walked over and picked up Joey, took him down the hall, and put him to bed.
“Story,” Joey demanded.
Punch complied.
Later, lying next to Rhonda, he explained.
“Surely Jon Howard didn’t kill her. And they can’t hide evidence, can they?” she asked.
“I don’t know, honey. I’m not a lawyer. I do know Judge Howard shouldn’t have been involved in the case at all, and I think the presence of his prints should be given to the defense. But some of it is my fault. I played a hunch and I should have gone by the book.”
“Well, honey, it’s early in the case, right? Maybe Jon will speak up. Maybe Ann will do the right thing. And besides, the guy you arrested—that Tommy Olsen—he’s the right guy, isn’t he?”
“Oh, I’m positive of that. I’m not questioning whether he did it, but that’s not the point.”
“Well, what is the point?”
“If the system is to work, it has to be fair. If it isn’t fair, no one will believe in it. Things will begin to fall apart.”
“My husband the idealist. Who would have thought my tough cop would have a soft heart for defendants?”
“It’s not a matter of having a soft heart. It’s—”
“Kenneth. Go to sleep. Better yet, roll over here first.”
Daniels was in the master bathroom shaving when he heard something in his bedroom. He opened the door to find Marci up and about.
“Did I wake you?” he asked.
/>
“Oh, I don’t know. I guess I just can’t sleep. Thought I’d make us some breakfast this morning before I go to work. You’ve got a big day.”
“Thank you,” he said, and moved to kiss her.
“But I haven’t brushed my teeth!”
“I’ll live with it.” He gave her a peck. “And thanks for breakfast.”
Thirty minutes later they were sharing eggs and toast. “So, do you really think the trial will take two weeks?” Marci asked.
“Oh, it’ll take every bit of that,” he said. “Could be much longer if the jury finds him guilty and we have to go into the death penalty phase.”
“I guess the good news is that you’re never too late getting home during trials.”
“Gotta take care of the jurors,” Daniels said, taking a bite of toast. Marci’s strawberry-rhubarb jam was legendary.
She was drinking coffee and watching him closely. He noticed. “What?” he said.
“I’m just looking at you,” she said. “I’m very proud of you, you know.”
“And I’m proud of you, too.”
“In three months, I’ll be retired and just an aging housewife.” She looked at her coffee.
“And I’m just an old judge a couple of years from retirement. Soon I’ll call it quits and we can sit and drink coffee to our heart’s content every morning. I look forward to it.”
“I don’t,” she said.
“What? Why not?”
“I know you. You’ll be making a mess and napping and generally getting in my way. I’ll be cleaning up after you all day long!”
He was up, putting on his jacket. “You can’t wait, and you know it,” he said, reaching for her.
She was in his arms. “You’re right. I can’t wait. Now get out of here so I can get breakfast cleaned up and get to my office. Go do your trial.”
36
Sam took a moment to stop and survey his surroundings before entering the courthouse, a three-and-a-half-story building constructed in 1932. Despite the ongoing depression, the men who held elected office at the time had vision and possessed a degree of optimism that Sam felt was lacking in contemporary officeholders. He could write what he knew of architecture on the head of a pin, but someone who did understand the field explained the structure was “classical modern”—whatever that meant. From the front, the view was of a symmetrical, commanding building of cut limestone dominated by six evenly spaced Ionic columns, three of which framed either side of the double entrance doors, which were at present jammed with potential jurors and onlookers. A rectangular stone carved with “Custer County Courthouse 1932” rested on the pillars.
Misjudged Page 19