Supreme Justice

by Phillip Margolin

  "We would be able to prove that there was hashish on board if I were able to subpoena the records concerning this matter," Mary said.

  "Your Honor," Bishop answered, "the assertion of the privilege bars any discussion of this matter in this court. It is privileged and simply may not be discussed."

  "And rightly so," Judge Brandenburg said as he skimmed the memo. "You can't let foreign powers and terrorists get the records you seek, Ms. Garrett. I'm not letting you go on a fishing expedition when it might compromise national security."

  "Judge Brandenburg," Mary said, "I don't believe that the state-secrets privilege applies to criminal cases. It's a rule of civil procedure."

  "The type of case makes no difference, Your Honor," Bishop argued. "The purpose of the rule is to keep our nation's enemies from learning secrets that could undermine the security of the United States of America."

  "This is a death-penalty case, Your Honor," Mary said. "My client may die without the evidence we seek."

  "Death-penalty cases are governed by the same rules of evidence that are used in shoplifting cases, Ms. Garrett. Mr. Pike's motions will be allowed, and I will not permit you to introduce any evidence or testimony about the China Sea."

  Part V Death Row

  2012

  Chapter Forty-two

  It was after two in the morning when Dana finished the record in Woodruff. She thought that the State's case in the second trial was thin, but the defense couldn't counter the evidence connecting the bullets that killed John Finley to the gun that was seized in the gang- and drug-related murder that Sarah Woodruff had investigated. Monte Pike had introduced logs from the evidence room that proved that Woodruff was the officer who took the gun to and from the courtroom. Then he put on testimony about throw-down weapons, guns stolen from crime scenes or arrested criminals that rogue police officers threw down at the scene of a shooting when they discovered that a person they shot was unarmed. Pike argued that Woodruff had taken the gun to hold as a throw-down if she ever got into that type of situation and had used it to murder Finley.

  Mary Garrett had tried to have Sarah testify about the statements John Finley had made to her on the evening he was murdered, but the judge agreed with Monte Pike that the statements were hearsay and excluded them. Then Garrett had tried to raise a reasonable doubt by introducing the passports and ID found in the duffel bag, but Pike had argued that whatever Finley was involved in was irrelevant because the murder weapon was linked to only one person involved in the case, the defendant. Without the evidence about the China Sea incident and Finley's statements to Sarah Woodruff, the defense had very little to argue.

  The jury had been out one day before finding Woodruff guilty of aggravated murder. It had taken them another two days to produce the findings that had forced the judge to impose a death sentence.

  Dana had emptied her coffee pot sometime around one thirty, and what remained in her mug was lukewarm. She popped it in the microwave and grabbed a legal pad on which she'd been making notes. When the coffee had been nuked, she sipped from the mug and began making a to-do list on a new page. At the top of the list she wrote, "plane and hotel reservations."

  Portland, Oregon, is one of America's most beautiful cities, but Dana Cutler wasn't thinking about the high green hills that towered over it, the distant snow-capped mountains you could see from, or the river that wound through it when her plane began its descent. Portland evoked dark memories for Dana. The only other time she'd been in the City of Roses, she was running for her life, she almost died, and she'd left with the blood of two men on her hands.

  Dana picked up a rental car at the airport and was downtown twenty minutes later. After checking into her hotel, she showered, then put on a white silk blouse and a severe navy blue business suit. Dana rarely wore anything but jeans and T-shirts, and she always felt a little odd in a suit, the way she imagined a Wall Street investment banker might feel if she slipped into black leather.

  Dana walked the four blocks from her hotel to Mary Garrett's law office. Before leaving D.C., Dana had made an appointment with Garrett, and she arrived with a few minutes to spare. After a brief wait, the receptionist ushered her into the defense attorney's office.

  Dana had done her homework, so the attorney's unusual appearance didn't surprise her. She soon found herself seated in a director's chair with a seat and back of black leather and arms and legs of polished metal tubing. The seat sagged a little, decreasing the height of the chair's occupant. Garrett sat behind a wide glass desk on a high-backed chair of black leather that Dana guessed could be elevated by pushing a button, so the diminutive attorney could always look down at her clients.

  "When you made your appointment, you told my secretary that you were calling from Washington," Mary said. "You should know that I'm not a member of the Washington bar, and I can't practice there."

  "I must not have made myself clear," Dana answered with her best smile. "I was calling from Washington, D. C., not Washington State, and I'm not here to consult with you on a legal matter."

  Mary's brow knit. "Then why are you here?"

  Dana handed Mary one of the business cards she'd had printed the day after her meeting with Patrick Gorman.

  "I'm a reporter for Exposed, a D.C. newspaper, and I'm here on a story."

  "Isn't Exposed a supermarket tabloid?"

  "Primarily, but we're publishing more hard news now."

  "That's right. Your paper broke the Farrington case."

  "And won a Pulitzer Prize for our coverage. We're not all about alien abductions and Bigfoot sightings anymore." Dana leaned forward and tried to project sincerity. "Ms. Garrett, Patrick Gorman, my editor, is fascinated by Sarah Woodruff's case. Being charged two times with murdering the same person is highly unusual, and the unusual is what sells our paper."

  "The case sounds odder than it really is," Mary said. "The DA rushed to judgment the first time and charged Sarah without evidence that John Finley was actually dead."

  "I'd say the case still has some pretty amazing elements," Dana said. "We have a dead man with no past who may be a spy involved in a covert operation. Then there's the mystery ship, the vanishing night watchman, and the disappearing hashish."

  "There's no denying that this is not a run-of-the-mill case," Mary conceded, "but before we go any further, I'd like to know what Exposed plans to do with this story. I appreciate your interest and the fact that you've flown to Portland, but Ms. Woodruff is my client, and her interests are my paramount concern. I can't discuss her case without her permission."

  "Ms. Garrett, our coverage of your client's case can only work in her favor. I did plenty of research before I came here, so I know a lot about what happened. There will be an outcry once the public learns that an innocent woman is on death row because the government is withholding evidence that could clear her. The publicity should help your efforts to get cert granted."

  "I don't think the justices are influenced by the opinion of your readers."

  "Public opinion is a powerful force. Even justices of the Supreme Court are aware of it. One never knows what influences a judge's decision in a close case. Then there's the possibility of the story convincing a whistle-blower to come forward. Someone knows what John Finley was up to. Time has passed."

  Dana hoped Garrett would decide that talking to her probably couldn't hurt her client's chances and might help.

  "Ask me your questions," Mary said, "and I'll answer those I can without breaching attorney-client confidentiality. But I want your promise that you'll let me screen anything you plan to print to make sure there's nothing in the story that can compromise Sarah's case."

  "I'll have to clear it with my editor, but I'm sure Mr. Gorman will go along with it."

  "So, what do you want to know?"

  "Why don't you fill me in on the two cases? As I said, I've read a lot about them, but I'd love to get your take."

  Garrett gave Dana a quick recap of the events that led to Sarah Woodruff's first a
rrest and the dismissal of her first indictment, followed by a short version of the second case.

  "At Sarah's second trial, I tried to prove that Finley was involved in dangerous undercover work, but the intelligence agencies used the state-secrets privilege to stymie my inquiries. Then the judge kept out statements Finley made to Sarah on hearsay grounds."

  "It looks like Ms. Woodruff's freedom rests on showing Finley's connection to a CIA smuggling operation," Dana said.

  "Or drug dealers. Finley told Sarah that he thought that the crew member who murdered everyone on the China Sea made an arrangement with a Mexican cartel for the hashish. There were also rumors that Finley's kidnappers were after two hundred fifty thousand dollars that Finley supposedly was given to finance the smuggling operation."

  "This is the first I've heard of money being involved."

  "It was a rumor that was circulated on the street by drug dealers and users."

  "How strong was the evidence that Finley was the survivor of the shootout on the China Sea?"

  "That's a fact. The night watchman who called 911 told Tom Oswald, the investigating officer from Shelby PD, that he'd seen a man stagger off the ship and drive away. The guard thought the man might be wounded. He also saw another car that may have been following the wounded man.

  "During Finley's autopsy, the medical examiner found a bullet wound in Finley's side that was older than the wounds caused by the bullets that killed him. Then there was the duffel bag found next to Finley's body, the one with the phony passports and ID. There were bloodstains on the bag. Some were old and some were new. If Finley was wounded on the night of the murders on the China Sea and shot again on the evening he died, it would explain the two different groups of bloodstains.

  "Another thing. Shortly after Finley disappeared that first time, the bodies of two men with ties to a Mexican drug cartel were found just off a logging road. I think these were the men who kidnapped Finley, but I didn't have a shred of evidence connecting the men to our case, so the judge wouldn't admit any evidence about the dead men."

  "Then there's the clincher. After Sarah was indicted the second time, I learned that Oswald lifted a latent print from a hatch covering the hashish. Shortly before Sarah's first trial was supposed to start, a deputy DA ran one of the unknown prints from Sarah's condo and matched it to that print found on the hatch. After Finley was murdered, they took his prints and made the match.

  "It's clear to me that Finley was wounded on the China Sea. Sarah's condo was the closest place he could think of to go, so that's where he headed. The Mexicans were watching the ship and tailed him to Sarah's place, kidnapped him, took him to the area with the logging road, and were killed when Finley was rescued. But after the judge's rulings and the assertion of the state-secrets privilege by the government, I had no way to prove any of it."

  "Do you think the men who rescued Finley were with the CIA?" Dana asked.

  "Probably. Someone paid for that ship. Finley's company, TA Enterprises, is a shell corporation. I'm certain it was created to purchase the China Sea and finance the hashish smuggling operation. But who put up the money? My bet is the CIA. The passports and phony ID point that way too."

  "You're talking about the stuff found in the duffel bag?"

  Mary nodded. "While I was preparing for Sarah's first trial, she told me some names she'd heard Finley mention: Dennis Lang, Larry Kester, and Orrin Hadley. In the duffel bag that was found with Finley's body were several passports and sets of phony ID. Lang, Hadley, and Kester were the aliases Finley used. He could have gotten the ID and passports on the street, but an expert I hired to look at them told me they were a first-rate job. He couldn't swear that only a government agency could make something that authentic, but they looked like something the CIA would turn out.

  "That's why I made the discovery requests. If I could have proved that Finley was involved with drug smuggling or terrorists or the CIA, I would have had a viable argument that someone other than Sarah killed him. But I dropped the inquiries when Sarah's first case was dismissed and, as I said, I was stonewalled when I made them again after the second indictment. The attack on the state-secrets privilege is a cornerstone of our argument in the Supreme Court."

  "Is there anything else you can think of that I should know?" Dana asked.

  Mary looked as though she was going to say something, but she paused.

  "Yes?" Dana prodded.

  "Well, there was another odd thing that happened during the second prosecution, but I don't think it had anything to do with Sarah's case directly. On the other hand, you might be able to use it to spice up your article.

  "Max Dietz prosecuted Sarah the first time. He just rushed to judgment. Then he kept information from me that the law compelled him to turn over to the defense. He was reprimanded by the DA. Shortly after, he disappeared."

  "Just vanished?"

  Mary nodded. "This was a few weeks before the motions in Sarah's case. The last person to see him was his secretary. He asked her for some blank subpoenas and took them into his office. He left a little later and hasn't been heard from since."

  "Any idea what happened?"

  "He was very depressed by his demotion out of the Homicide Unit after the first trial, and the most prominent theory is that he committed suicide after he was reprimanded for hiding the exculpatory evidence from me. But that's just a theory. No body has been found."

  "I do have a last request. Do you think it would be possible to talk to Sarah?"

  "I'll ask her, but it's her decision."

  "Great."

  "Tell me where you're staying. As soon as Sarah tells me whether she'll meet with you, I'll let you know."

  Dana told Mary the name of her hotel and her room number.

  "Another thing, are Officers Oswald and Swanson still on the Shelby police force?"

  Garrett shook her head. She looked sad. "They're both dead."

  "What?"

  "Shortly before the second trial, they answered a 911 call about a robbery in progress at a convenience store and were gunned down by the robbers."

  "Was anyone arrested?"

  "No. There were no witnesses, and the clerk was killed, too."

  "An interesting coincidence, don't you think?"

  "You mean because all of the witnesses to what happened on the China Sea are either dead or missing? I've thought about that, but there's nothing I've heard that leads me to believe that they were murdered because of what they saw on the ship."

  "Thanks for taking the time to talk to me, Ms. Garrett, and for what it's worth, I'd say you did a good job but kept running into a brick wall."

  "I don't know how good a job I did. Sarah's on death row. But you're right about that wall. Someone doesn't want what Finley was doing made public, and it's not going to be unless the United States Supreme Court rules that they have to."

  Chapter Forty-three

  When Daphne Haggard opened her front door, she was assaulted by the scent of herbs and spices. Her husband was sweet, considerate, and great in bed, but she always told her friends that Brett had seduced her with his mastery of their kitchen. Daphne liked to think that she was considerate and good in the sack, but it was no secret that she couldn't cook worth a damn. Brett's passion was food and his flexible hours as an academic let him practice his hobby frequently. Daphne never knew what culinary delight awaited her on her return home. The divine aromas drew Daphne into the kitchen. Brett had his back to her, and she wrapped her arms around him and gave him a peck on the cheek.

  "Out, woman," he growled. "Can't you see I'm working?"

  "What am I smelling?" she moaned.

  "I've conjured up a golden oldie," Brett said. "Chicken Marbella. You're smelling oregano, prunes, garlic. It's been marinating in the fridge all night."

  "It looks heavenly, and I haven't eaten since breakfast."

  Brett looked over his shoulder. "What happened to lunch?"

  "A traffic fatality on Wentworth Road just as I was headed to
Elsie's Cafe. I'm starving."

  "Hang in for another twenty minutes. It'll be worth it," Brett assured her.

  Daphne was about to answer him when the cell phone she used for police business rang. She tugged it out of her jacket pocket and walked into the living room, grateful for anything that would distract her from her growling stomach.

  "Detective Haggard," she answered.

  "Amal Shastri here, calling from the Orthosure offices in Omaha."

  A friend of Daphne's at Princeton had been an upper-class Indian, and Shastri's clipped British accent made her think of him.

  "Thank you for returning my call, Dr. Shastri," Daphne said.

  "I was at a conference in New York City," the president of Orthosure said. "I have just returned today, or I would have gotten back to you sooner. I was intrigued. Your message states that you are a homicide detective?"

  "Yes, sir," she said. "I'm with the Inverness Police Department in Wisconsin, and I was hoping you could help me solve a mystery."

  "That sounds exciting. How can I do that?"

  "Inverness is a college town in the northern part of the state. The area surrounding the campus is heavily forested. A few weeks ago, a student came across the remains of a human thigh."

  "My goodness."

  "She was pretty shaken up."

  "I would imagine."

  "We were set to search for other body parts when bad weather moved in. I didn't have much hope once the storm passed, but we got lucky and found the other thigh. The medical examiner X-rayed it. The victim's leg had been broken at some point and there was an orthopedic appliance--a stainless steel rod--that had been inserted to stabilize the fracture. When we examined the rod, we found Orthosure's maker's mark and a serial number. If I give you the number, could you identify the patient?"

  "I couldn't, but the surgeon who inserted the rod should be able to."

  "How can we find him?"

  "Our records will tell me what hospital ordered the appliance. Part of the serial number tells us the year in which it was shipped. The hospital can give you the names of the orthopedic surgeons who operated in the given year. You'd have to interview them, but there should be a sticker from the rod with the serial number attached to the surgeon's notes. It would be in the patient's file."