Glitsky 02 - Guilt

by John Lescroart

  This was about as far as Farrell could go in attacking Ross's credibility. He had to go fishing again. 'What do you study at college, Mr Ross?'

  A welcome change for Ross. He brightened right up. 'I'm a Criminal Justice major.'

  This surprised Farrell, but it didn't make him unhappy. Glitsky could almost see the bells ringing inside his head. 'Indeed. By any chance do you plan to pursue a career in law enforcement?'

  'Yes, I do. I'd like to go to the San Francisco Police Academy.'

  A pause, Farrell formulating it. 'Have you been following this case in the newspapers, Mr Ross? On television?'

  'Sure.'

  'You know, then, don't you, that your testimony is helpful to the prosecution here?'

  'Yes.'

  This was the best Farrell was going to do. He decided to quit while he was ahead. 'Thank you. No further questions.'

  43

  Diane Price was less nervous than Sam Duncan, which was why she was driving. In the six months since she'd first come to Sam with her story, her life had changed.

  At first, Diane had been opposed to any public admission of what had happened between her and Mark Dooher - it had been her own personal tragedy, tawdry and shameful. She'd testify at the trial if she got the chance, but until then she'd keep a low profile, live her normal life with her husband and kids.

  She did not factor in the insatiable maw of the media, the hot-button buzz of her story, the fact that she was attractive, articulate and intelligent. Sam Duncan asked her permission to go to then-Sergeant Abe Glitsky and tell him about the rape - surely it was relevant to the murder charge Dooher was facing? He'd agreed and called in Amanda Jenkins, and within two weeks Diane had been identified and the notoriety had begun.

  The story in the Chronicle had been followed by an interview in People. Mother Jones put her on the cover and devoted half of their September issue to 'Life After Rape'. Diane had been contacted by a movie producer and signed an option agreement on her life story. She'd been invited to speak at least a dozen times, at first to small groups around San Francisco, but later to larger gatherings - a NOW convention in Atlanta, a Gender Issues Conference in Chicago, a Sexual Harassment seminar in Phoenix.

  And it was ironic, she thought, that all of this public discourse had been what had finally healed her private heart. Her husband, Don, stood by her through the fifteen minutes of her fame, and when the first flush had died down, they were left with their home and their family. And the bitterness that she'd carried all the years, that had finally prodded her to go to Sam Duncan's Rape Crisis Center in the first place, had been replaced by a calm sense of empowerment.

  She didn't need to talk about it anymore. She'd learned from the experience, albeit the hard, slow way, but she'd come to the belief that this was the only way people really benefited from pain or loss or hardship anyway - first by acknowledging it and then, over time, to see how it had changed you and fit those changes into how you lived.

  She became a regular volunteer at the Rape Crisis Counselling Center, working alongside Sam Duncan, helping other women, perhaps keeping them from going where she'd been. It was fulfilling, immediate, therapeutic.

  So today, what she thought would be her one last public appearance didn't worry her. Amanda Jenkins had called her early in the week and said she expected that Wes Farrell would begin calling his own character witnesses on Thursday or Friday and she would then be free to call Diane. Was she ready?

  And then, last night - Thursday - Amanda had said she ought to come down to the Hall of Justice by noon. The prosecution would probably be calling her to testify about Mark Dooher's character in the early afternoon.

  As it transpired, of course, Farrell had decided not to use his character witnesses, but there was no way for Amanda Jenkins to have gotten that word out to Diane Price before she left to come down. By the time the attorneys had come back to the courtroom from their extended meeting about Michael Ross in Thomasino's chambers, Sam and Diane were on their way.

  So she pulled into the All-Day Lot - $5.00/No In & Out - and the two women sat for a moment in the car. A fierce, cold and blustery wind whipped trash up the lane of the parking lot - a milk carton bounced along and out of their sight like a tumbleweed.

  'You ready to go out into this?' Sam asked her. She had her hand on the doorhandle, but didn't look as though she was prepared just yet. Huddled into an oversized down jacket, Sam looked tiny and vulnerable.

  'I think the real storm's going to be inside,' Diane said. 'Are you all right?'

  'Sure,' Sam said, too quickly.

  'You're nervous.'

  A nod.

  'Don't worry. I won't blow this. I say what happened and they try to shake my story, which they won't be able to do, and then we leave and this whole thing is behind us, and they put that bastard in jail where he belongs.' She looked over at Sam, still inside herself. 'That's not it, is it?'

  Sam shook her head.

  'Wes Farrell?' Diane had learned all about Sam and Wes.

  Another nod. 'I'm going to hate him after he questions you. I know I am. That's all. And I don't want to.' She blew out a quick breath. 'It's just the end of something. The final end.'

  'I'll be gentle with him,' Diane said, then patted the other woman's leg. 'Let's go, okay?'

  They crossed Bryant, leaning into the wind, and came to the steps of the Hall, where Sam held open one of the huge glass double doors and they entered into the cavernous, open lobby.

  Or not directly. First, a makeshift plywood wall funnelled visitors toward a doorframe, to the side of which sat a desk manned by two uniformed policemen. A couple of reporters had stationed themselves outside the courtrooms to be ready for just such arrivals, and they attached themselves to the two women, asking the usual inane questions as they fell into the desultory queue for the security check.

  Diane was wearing designer jeans, a couple of layers of sweaters and a heavy raincoat, a large leather carry-bag slung over her shoulder. Moving forward with the line of people entering the Hall, trying to respond politely to the reporters and stay close to Sam, it didn't register to Diane that the doorframe was the building's metal detector until she was walking through it, setting off the beeper.

  'Oh shit,' she said, as the policemen stopped them, took the carry-all from her and put it on the desk and told her to step back through the entrance again. 'No, wait.' Reaching for the carry-all, trying to take it back from him. 'We'll just go back and put this in the car. I'll just—'

  But it was too late. The policeman, alerted by the weight of it, had already pulled it open and was reaching inside. 'Everybody else! Hold it! Step back!'

  'What?' Sam asked.

  'You!' The cop had Diane by the arm and was moving her away to the side. 'Get over there, put your hands against that wall. Do it! Now!' Then, to his partner, gesturing to the line forming behind the doorframe. 'Keep them back. Get on the phone and get a female officer down here.'

  'What is this?' Sam demanded. 'What's going on?'

  Diane started to turn around. 'I know—'

  But the officer yelled at her again. 'Against that wall! Don't you move!' Then he lifted his hand out of the oversized purse.

  He was holding a small, chrome-plated handgun.

  At about the same moment, back in their office across the street, the mood had shifted from relief at getting a piece of Michael Ross to fury at Wes Farrell's decision to abandon his character witnesses.

  Dooher was fuming. 'What do you mean, you're resting? We've got to call Jim Flaherty.'

  Farrell was calmly shaking his head. 'We're not calling Flaherty. We're not doing character.'

  'We have to do character, Wes. Character wins it for us.'

  'We've already won it. We don't need it.' Farrell was giving it a more confident spin than he felt after the nearly disastrous testimony of Michael Ross, which in spite of his cross remained a serious evidentiary chip for the prosecution.

  Wes wasn't going to tell Mark that the Arc
hbishop had withdrawn as a witness unless he absolutely had to. The momentum had shifted, and Farrell's last and best hope was that he could save what he'd already accomplished. He still had a good chance to get Mark an acquittal. But he was holding all this close.

  Christina was standing by the doorway. 'I thought you could never get enough. You've said that a hundred times. And now we've just had a hit from this Ross character -I think we do need more, Wes.'

  'Well, I want to thank you both for your input, but unless you're going to fire me, Mark, this is my trial, and I'm done. We've won it. I've got a closing argument that's irrefutable. Christina, I'm sorry you don't get to cross-examine Diane Price. I'm sorry we didn't use you, and I believe you would take her apart, but I don't want any hint of bad character about Mark, not now. Even if we can refute. It's not worth the risk when we're so far up. You both have got to trust me here. I've done a pretty fair job so far. I promise you it's going to work.'

  But Dooher wasn't ready to give it up. 'How long have you known this, that you weren't going to call Flaherty?'

  'Frankly, Mark, I don't know. There was always that possibility, right from the beginning. I wanted to keep the door open as long as I could in case I needed him, but now it's my judgment that I don't. We don't.'

  Christina spoke up again. 'I'd like to know where they got Michael Ross. What was that about? How could he have been where he said he was?'

  'He wasn't,' Dooher said flatly. 'They made him up. Glitsky and Jenkins invented him.'

  Christina believed it, Farrell could tell. But it was more than any one witness or decision at this point - Wes knew that Christina had bought the package with Mark.

  If the facts didn't fit, then the facts must be wrong.

  As a defense lawyer, she was inexperienced; as a person, she was naive. And she made the novice's mistake. She confused Not Guilty - a legal concept that meant the prosecution had failed to establish guilt, with Innocent, a fact of behavior.

  But this was not the moment for these niceties. Farrell forced a relaxed tone. 'How Ross got to testify is a long and tedious story about attorney duplicity that I'd be happy to recount for you at our victory celebration. But meanwhile, I'd like to put this thing to bed before Jenkins pulls any more quasi-legal shenanigans out of her bag of tricks - ones that might hurt us.'

  One last shot from the defendant. 'You're sure we got it, Wes? This is my life here.'

  He forced himself to meet Dooher's eyes. 'I have no doubts.'

  By the lunch recess, news of the arrest of Diane Price for carrying a concealed weapon had spread through the Hall, along with the myriad theories attendant upon any event of this nature: she had been planning to assassinate Dooher; she was going to kill herself as a last, desperate cry for help; or maim herself as a publicity stunt.

  Diane's plea was that the whole thing was simply a mistake. She'd carried a gun for protection for years and years, since a few months after the rape. It was registered, even, though she had no license to carry it concealed on her person. She'd had no violent agenda. She simply hadn't realized that there was a metal detector at the entrance to the Hall of Justice.

  This explanation was, of course, dismissed by every law-enforcement professional in the building, and Diane was taken upstairs - Sam Duncan abandoned, scuffling to locate the Crisis Center's attorney. Diane spent three hours in custody before being cited and released on the misdemeanor.

  Every person in the courtroom - the gallery as well as the principals - was aware of the drama that had occurred outside during the lunch recess.

  With this as a backdrop, Amanda Jenkins stepped up and presented her closing argument. The facts, she said, spoke for themselves, and allowed for no other interpretation than that Mark Dooher had murdered his wife on the evening of June 7th. The defendant had not been at the driving range when he said he was. They had a witness who'd positively identified his car near his house when the murder had been committed, another witness who'd been twenty feet from where Dooher was supposed to have been, and had never seen him.

  Why hadn't he seen him? Because Dooher hadn't been there, ladies and gentlemen. He'd been home stabbing his wife, faking a burglary. The prosecution had shown the linear connection between the blood taken from Dr Harris's office on the same day that Dooher had been there - indeed, within minutes of when the defendant had been in the same examining room. And then later this same blood, not even close to the most common type of blood, and tainted with EDTA, had been splashed on Sheila Dooher's bed and body. No one else but Mark Dooher could have done this. The jury must return, Jenkins concluded, with a verdict of murder in the first degree.

  Farrell stood as though lost in thought, scanning the yellow pages of his legal pad, on the table in front of him, for a last second before pushing back his chair and finally positioning himself in front of the jury box.

  'Ladies and gentlemen,' he began, then took another step forward and lowered his voice. This was now simply a talk with these jurors, whom he'd come to know. Intimate and familiar. 'I remember that back in school, when I was first being taught how to write an essay, I had a teacher - Mrs Wilkins - and she said if we only remembered three things about essays, we'd get an A in her class.

  'First,' he held up a finger, 'first you write what you are going to say. Next you say it. Then, number three, you summarize what you just said.' He broke a smile, homespun and sincere. 'I'm a bit of a slow learner, but I got an A in that course. And ever since, I've been comfortable with that essay formula. Which is why it's lucky I'm a lawyer, I suppose, because that's a little bit what a trial is supposed to be like.

  'We've been here over the last couple of weeks listening to the evidence in this case, trying to see if we can resolve one question, and resolve it beyond a reasonable doubt: Does the evidence show that Mark Dooher, the defendant over there' - he turned and pointed - 'that Mark Dooher killed his wife?'

  Back to the jury, his voice now harsher in tone, though still at only the volume of whisper. 'I'm going to let you in on something, ladies and gentlemen. It does not. Not even close. Let's look for a last time at what the prosecution has given you to consider, what they say they have proven.' He stopped and looked back over his shoulder at Glitsky and Jenkins.

  'A motive? Certainly, a man who apparently has been happily married for over twenty-five years to the same woman would need some overwhelming and immediate reason to decide to kill his wife in cold blood. The prosecution's theory is that Mark Dooher did it for the insurance money. Now, forget for the moment the fact that Mr Dooher is a well-paid attorney, that he owns a house worth a million dollars, and that his retirement is secure. Forget all that and focus on this question: Where's the proof of this motive theory? Did the prosecution present any witnesses supporting any part of it? They did not. No proof. No witnesses. A bald assertion with no basis in fact.'

  Farrell glanced at the clock - 3:15. He had a lot to say, but suddenly he knew with relief that he was going to finish today. It was nearly over. He went to the table and drank some water, then returned to the panel.

  'Now let's talk for a minute about the evidence of the crime itself, evidence found at the scene which they contend proves beyond a reasonable doubt an inextricable link between Mark Dooher and this murder.'

  He stood mute before the jury box, making eye contact with each juror, one by one. The process took nearly fifteen seconds - an eternity in the courtroom. The silence hung heavily.

  Farrell nodded, including them all. That's right. There is none. None. The kitchen knife with fingerprints on it? Those fingerprints were left by normal use around the house.

  The surgical glove? Where's the proof that it was Mark Dooher's glove, that he brought it to the scene? There is none because that didn't happen. No, this glove was brought to the scene by the burglar - by the murderer -and left there. That's all we know about it, and it says nothing whatever about Mr Dooher.

  ' So we have no proof that Mark Dooher was at the scene of the crime, no direct or circumstan
tial evidence tying him to it. Next we must turn our attention to whether Mark' - Farrell began purposefully using Dooher's first name - 'was even in the neighborhood. Mr Balian says he saw his car parked a couple of blocks away when it should have been in the San Francisco Golf Club parking lot. But Mr Balian also says he recognized a brown Lexus from diagonally across a wide street, in the dark.' Farrell shook his head. 'I don't think so.

  'And Mr Ross didn't see what he said he didn't see at the driving range that night, either.' He put his hand on the bar rail in front of the jury. 'You know, it's funny about people. You and me, all of us. You ever notice how sometimes we say something, and we're not too sure of it, but we say it anyway? Maybe something we've seen, or a story from a long time ago where we don't remember all the details so we kind of fill in what's missing with something plausible? I think we've all had the experience - after we've done this, especially if we've told the story more than once - of not being able to remember what parts exactly we filled in.

  That's what happened to Mr Ross. I don't think he purposely perjured himself under oath here. No, he was at the driving range that night, or perhaps on some other night he was three mats from the end, and he remembered not seeing anyone at the last mat. But he told Lieutenant Glitsky it was this night, and he was stuck with that story.

  'For those of you who might be familiar with Sherlock Holmes, Mr Ross was the dog who did not bark in the night. He saw no one. This testimony, even if it were true in all its details, does not possess the same authority as if he said he saw Mark picking his way through the hole in the fence. Perhaps Mark wasn't there one time when Mr Ross looked up. Mark has admitted going to the bathroom and getting a Coke. That testimony was corroborated by the golf pro, Richie Browne. He says Mark Dooher was there the whole time. So let's leave Mr Balian and Mr Ross. The purported proof they offer is fatally flawed.'

  Farrell let out a long sigh and gave another weary smile to the jurors. 'You've heard that Mr Dooher carefully sedated his wife. Then, after killing her, he made the scene appear as though a burglar had done it.'