The Ophelia Cut

by John Lescroart

  “You think that?”

  “I don’t know. I was going to check him out when all this first came up, but the trial went into overdrive, and here I am, nowhere.”

  “What about Wyatt Hunt? Isn’t this why you have a PI on standby? Didn’t you put him on it?”

  Hardy nodded. “He tried under both names. Tony’s real name, or maybe not, is Tony Spataro, though that appears to be an alias, too. There’s no record of him—cop, foot soldier with the Mob, nothing. The case, if there is a case, is sealed back east until they’re ready to move. It’s not in any of Wyatt’s databases, and as I say, the whole environment is federal, and you know how they’re always bending over backward to be helpful, especially to defense attorneys, especially the marshals.”

  “What do you think I can do if Hunt can’t get anywhere?”

  “I thought you’d never ask. You, as a law enforcement person, have had professional dealings with the FBI, have you not? More than a few.”

  “Yep. Bill Schuyler.”

  “I thought you might ask him what he could find out.”

  Abe folded the dish towel and carefully draped it over its rack. “Bill and I are not what I’d call intimate, Diz. He’s not going to give up a witness because I ask him. They invest a lot of money in these people and take pride in never having lost one. The marshal might not even tell Bill. Probably wouldn’t.”

  “I love that can-do attitude. It’s kind of inspiring.”

  “I’m just telling you it probably won’t happen.”

  “Not unless you figure out some way it will.”

  26

  FIRST THING THE next morning, Saturday, Hardy was breakfasting at home and got a phone call.

  “Mr. Hardy. Winston Paley here. I’m sorry to bother you on the weekend, but something’s come up that might be a bit of a problem, and I thought we might need to discuss it right away.”

  Paley, a psychologist who specialized in the reliability of eyewitness testimony—a crucial element of this trial—was a professional expert witness who was charging Hardy thirty-five hundred dollars for each day of his testimony, whether or not that testimony took all day, or parts of two or three days, or indeed, whether he was used at all. If he was in the courtroom, he got paid. If he flew up to San Francisco and wasn’t used, he got paid. If he cleared his schedule and did not need to fly up, he got paid. He was a big, charming man, loud and florid, and a brilliant marketer, salesman, and—by reputation—witness. Hardy had never used him, but they’d taken a half day of prep together (two thousand dollars, not including Hardy’s flight to L.A. and back), and Paley had impressed him.

  Hardy’s gut twisted as he put down his coffee cup. “Whatever it may be,” he said, “I’m sure we can work it out. What’s the problem?”

  Paley said, “I had it calendared that you would be calling me starting Monday of next week, nine days from now.”

  “Right.” Hardy didn’t have to look it up. “That’s what I’ve got.”

  “Yes, well”—the good doctor cleared his throat—“the fact is that I’ve been invited to be the keynote speaker at an international seminar being held in Zurich all of that week. I was their second choice, but unfortunately, the colleague who was originally scheduled has suffered a stroke and will not be able to attend. I don’t want to be coy with you, Mr. Hardy, but the honorarium I’m being offered is seventy-five thousand dollars, and I don’t see how in good conscience I can afford to turn them down.”

  Hardy had no problem seeing how Dr. Paley could in good conscience turn them down. In good conscience, he had already committed to Hardy, they had a signed contract, backed up by the money that had already changed hands. That was how. And he was sorely tempted to say as much. But before he could force a word out through his shock and dismay, the man was going on, addressing that very issue. “I’ll be happy to refund you for the moneys you’ve paid me to date. I truly regret this turn of events, but this is an opportunity that I can’t pass up. I don’t suppose there’s any way you can get a continuance?”

  “Unlikely,” Hardy said. “In fact, not a prayer in hell with a jury sworn. We gave opening statements yesterday. We’re already under sail.” Even on the weekend, Hardy was in trial mode, which came with a heightened sense of awareness to unimagined possibilities, and his next words fell from his lips without a moment of conscious forethought. “What are you doing this Monday? Day after tomorrow?”

  A pause. “I believe I have some patients.”

  “Could they be rescheduled?”

  “Yes, I believe they could. Nothing’s life-threatening.”

  “Would you be willing to do that if I could get permission to have you testify on Monday?”

  “Certainly. That’s an elegant solution. Can you get the court to go along?”

  “I’m not worried about the court. I’m worried about the DA. But I don’t see why it would matter. The jury’s going to hear your testimony one way or another. Basically, it’s background information. Why would they object to letting it in first?”

  “I don’t really know. It hasn’t come up in my experience.”

  “Well, give me a few hours. I’ll get back to you.”

  When Hardy hung up, Frannie came in and poured some fresh coffee into his cup, then pulled out a chair and sat. “That sounded ominous.”

  “That was Paley, my eyewitness expert. He got a better gig in Zurich and decided to take it.”

  “In Zurich?”

  “Don’t ask.”

  “Can he do that? Don’t you need him?”

  “I think I do need him. I’m certainly paying him as if I need him. I could probably get the judge to issue an order compelling him to appear, but what good would that do me? The whole idea is he’s supposed to be on our side, and if we take away his big paycheck—which is not the one we’re giving him—he’s going to be resentful, if not actually hostile.”

  “So what are you going to do?”

  “Try to get Stier to let him in on Monday. If he doesn’t object, the judge will probably let it go.”

  “So you’re going to be on the phone a while?”

  “Why? Do you need something?”

  “No. Well, yes. It can wait. If you need to make your calls.”

  “Just one,” Hardy said. “Stier.”

  “What about the judge?”

  Hardy shook his head. “Ex parte. Can’t do it.” In any criminal case, all discussion with the judge had to have both attorneys present. “That’s not happening until Monday morning.”

  “Won’t that be too late? If the judge says no and your guy is already up here?”

  “Then Paley won’t testify and I lose thirty-five hundred bucks, plus hotel plus airfare plus car rental, but who’s counting?”

  “All that, and Moses won’t get his expert, either.”

  “True. In which case, I’ll probably ask for a mistrial.”

  “And start over? And Moses stays in jail while all that goes on again?”

  Hardy sat back, leveled his gaze at his wife. He put his hand over hers and squeezed it gently, spoke in his mildest tone. “He’d better get used to being in jail, Frannie. Expert witness or not. I’m doing my damnedest to keep him out, but he’s got himself in a pretty deep hole, you must admit.”

  Frannie sighed, looked around the dining area, came back to her husband. “You always say you don’t want to hear the actual truth, that it doesn’t matter. But it does.”

  “Agreed. The truth matters.”

  “Well.” She paused. “He didn’t do it, you know.”

  Still gently, Hardy pulled his hand away from hers. Crossing his arms, he said, “We’re talking about killing Rick Jessup?”

  She nodded. “He didn’t.”

  “He’s never mentioned that to me.”

  “You keep telling him you don’t want to know. You stop him if he starts to say. You say it doesn’t matter, that you just argue the evidence.”

  “All true. I don’t want to fit his lying into my motivatio
n to get him off.”

  “What if it isn’t a lie?”

  “What makes you think it wouldn’t be?”

  She hesitated for a long moment. “He told Susan. Just yesterday. After the opening statements. She went to see him, and he told her he didn’t realize how bad it looked for him until he heard Stier lay it all out.”

  “He should have. I’ve told him a hundred times.”

  “I don’t know. Maybe it didn’t hit home before. But yesterday it finally did. So she flat-out asked him how he could have done it, put the family in that much jeopardy, risked their marriage. She told him that even if you got him off, she wasn’t sure she could be with him when he got out. And he just told her.”

  “That he didn’t do it? Didn’t kill Jessup?”

  “Right.”

  Hardy hung his head.

  Frannie said, “You don’t believe it.”

  Hardy looked at her. “What’s changed?”

  “You don’t believe him?”

  “I haven’t even heard him say it, Fran, so it’s not a question of believing him.”

  “Maybe you should ask him.”

  “I will. Now. I will. Absolutely. But you must admit the possibility that he told Susan what she wanted to hear so she wouldn’t give up on them staying together.”

  “You’re saying he lied to her?”

  Hardy was silent.

  “He wouldn’t have done that,” she went on. “That’s not who he is.”

  “What, do you think—?” Hardy stopped, scratched at the table, raised his eyes to Frannie’s. “What happened to the shillelagh?”

  REACHED AT HIS daughter’s soccer game, Stier had a little trouble hearing Hardy on his cell phone but picked up the gist in the end. “You want me to let you poison the jury with your expert witness telling them the many ways that my eyewitnesses’ testimony is flawed, so they’re primed to disbelieve everything those eyewitnesses say before I even call them? Why is it that I would agree to that?”

  “Couple of reasons.” Hardy, the voice of, plowed on. “First, if I don’t get Paley, I’m asking for a mistrial. That’s not a threat. That’s a statement of fact. Half my defense is attacking the value of your eyewitness testimony. If I can’t do that, I’ve got to punt. Then we’re another sixty days out, starting from scratch. Neither of us wants that.”

  “Why would I mind it?”

  “Your eyewitnesses are that much further from the event. We get a whole new jury you might not like half as much. My private eye finds an alternate suspect. Somebody gets run over by a bus. Who knows?”

  “In your dreams,” Stier said.

  Conceding the point, Hardy kept up his press. “All right, how’s this? If Paley testifies for me up-front, he’s that much further from the jury deliberating. They’ll have heard your eyewitnesses, with basically no rebuttal. They’ll remember the testimony, not the ways it might be flawed.” Hardy did not really believe that, but he thought it made a good argument. “The main thing is that I don’t believe it’s going to help or harm either of our cases. Paley’s testimony is going to come in someday, now or later, and how they take it is going to be part of the jury instructions when we’re done.”

  After a lengthy pause—Hardy heard the wind blowing, the other parents cheering—Stier spoke. “Tell you what, Mr. Hardy, I’ll give this some thought and have an answer for you Monday morning. How’s that sound?”

  “It doesn’t sound like a ‘no.’ Thanks for considering it.”

  As soon as he rang off with Stier, Hardy punched up Dr. Paley’s number and left an unequivocal message that the DA had agreed to the Monday testimony and Paley should cancel his patients and plan on being in San Francisco for the start of the court day.

  As Hardy put down his phone, he realized that this was nothing if not an out-and-out lie. Which reminded him that he needed to go downtown and have a talk with his client.

  INSIDE THE GLASS-BLOCK curvature of the attorney visiting room, Hardy paced against the long wall, over to the admitting door, back to the far end.

  Moses sat at the table in his jumpsuit. “I don’t try to tell you how to run your business,” he was saying. “You say you don’t want to know, I take you at your word. Call me a literalist. If I say I didn’t do it, you think I’m lying. If I say I did, then you’re defending a guilty man, and why do you want to do that?”

  “Actually, I’m good with defending you if you’re guilty. Somebody did what Jessup did to the Beck, I might have done the same thing. I understand it.”

  “Susan wasn’t understanding it so well. All this time, she’s thinking I went and killed this guy and—”

  “You let her go on believing that? What was that about? You could have told her right off and saved her a load of grief.”

  “You’re assuming she would have believed me.” Moses pushed at the bridge of his oft-broken nose. “I was pissed off, to tell you the truth. Everybody’s so ready to believe it was me. Even Susan. Even Brittany. You. Okay, if that’s who they really think I am, I’ll be that person for a while. See how they like living with that.”

  “And it would have killed you to set any of us straight?”

  “Fuck that guilt trip. I’m thinking it wouldn’t be so ridiculous if my wife and daughter and, oh yeah, my best friend, simply believe in me. Believe I’m not the kind of guy who goes and beats a kid to death, even if he did deserve it. Did it ever occur to you that I might feel a tiny bit abandoned by the people who know me best? Do you think it might tend to piss me off?”

  Now Hardy stopped. “You’ve got a history, Mose.”

  A dull light flared in McGuire’s eyes. His voice came out in a low rasp. “You’ve got the same one, Diz. How about that? Did that slip your mind in all the excitement?”

  “It’s not the same.”

  McGuire threw up his hands in emotion. “Goddamn right it’s not the same. That’s my point. That time we had an overt warning that they were going to murder our children. They’d already killed Sam Silverman and David Freeman. That was an ongoing vendetta, and they had us against a wall with no other options. Five of us were in agreement on what we had to do. No choice. Life or death. That was not the situation with Jessup. But everybody jumped on the old Moses bandwagon, didn’t they? Meanwhile, do you see anybody believing that you, for example, are capable of cold-blooded murder? Why me and not you? Not anybody else?”

  “Yeah, well guess what? You remember what Ugly said yesterday: blood, DNA, eyewitnesses? You must admit, they add up.”

  McGuire sighed. “That’s why I finally told Susan.”

  “The truth?”

  “That’s right. The hard-to-believe, honest-to-God truth.”

  “Everything before wasn’t?”

  “I never said anything about it, either way. Those were your instructions, if memory serves, and they suited me fine. If people were going to believe what they believed, I wasn’t going to help everybody out. To hell with ’em. The evidence remained the same. You were going to get me off either way, right?”

  Hardy, hands in pockets, leaned against the admitting door. He stood planted across the room, at least halfway because if he went closer, he didn’t trust himself not to take a swing at his client. He stared off, trying to get a handle on his temper, cursing his Irish genes. Cursing McGuire’s. The whole situation.

  “So,” he said at last, “you want to tell me what happened? You’re trying to tell me you really did go fishing?”

  “No. I didn’t go fishing.”

  “Your alibi is a lie?”

  “So sue me. I knew what the cops were thinking the first time they came by. I knew Jessup had been killed. I had to think of something. Nobody’s going to come along and disprove it, so who gives a shit?”

  “The jury might, if I decide to tell them the truth, except for ‘oh yeah, the alibi.’ ”

  Not amused, Moses chuckled nevertheless. “You’re not going to do that. Nobody believes I went fishing anyway.”

  “What did you do
?”

  “I drove down there.”

  “Why?”

  “I don’t know. Maybe kill him, definitely hurt him. It wasn’t all thought out.”

  “And you brought the shillelagh?”

  “Of course. Last time I’d hit him, my hand was sore for a week.”

  “You got there and . . .”

  “Knocked on his door, no answer, so tried the knob, and it was open. He was lying on the floor just inside, blood pooled out under him.”

  “So what’d you do then?”

  “I’m not sure, to tell you the truth. Stood there a minute, thinking, Shit. Maybe I prodded the body a time or two with the shillelagh.”

  “Maybe? A time or two?”

  “Maybe more than that. I don’t really remember. He was dead, which meant I was in trouble just being there. I might have whacked him another time out of frustration. Then I had to get out of there.”

  “How about the eyewitnesses?”

  McGuire shook his head. “I don’t remember any of them. I just wanted to get to my car and be gone.”

  “And you didn’t tell Susan?”

  “I didn’t do anything. There was nothing to tell her.”

  “How about the bare fact? Jessup being dead.”

  “We were all going to find that out soon enough, weren’t we? If I could avoid it, I didn’t want Susan thinking I was any part of it. I was trying to save her some anguish. She had enough going on, dealing with poor Brittany. It was a rough day or two. I told her I went fishing to clear my head.”

  “And the shillelagh?”

  Moses’s shoulders settled. “I shouldn’t have taken that. I loved that old thing. It’s someplace out at the bottom of Stow Lake.”

  Hardy came across the room, sat at the table with Moses. He spoke in a conversational tone. “You’re asking me to believe that somebody else altogether came to Jessup’s place before you did?”

  “I don’t know when anybody came, Diz. He was dead when I got there.”

  “Why?”

  “I thought that was your job.”