by Mike Markel
“As I said on the phone, Larry, Karen and Ryan wanted some help on a case. I told them I wasn’t sure if we could do what they wanted, but that I’d ask you.”
Larry nodded and adjusted his thick black-framed glasses on his thin, pale face. He looked like he’d gone a couple days without a shave, but that’s how he always looks by ten in the morning. He turned to me. “What ya got?”
“Austin Sulenka, the grad student. Died Sunday night. Choked. We got two sets of female DNA on him, and two women said they had sex with him that night. We’ve asked one of them to volunteer for a buccal swab. She refused. Haven’t asked the other one yet.”
“Okay.” He shrugged. “So what’s the question?”
“Can we force them to give it up?”
“No.”
“Just like that?”
“Just like that.” He shifted in the seat. “The crime’s good. Murder, I mean. The Supreme Court says we can compel DNA from anyone we arrest, but Montana says no, not unless they’re offenders—that is, convicted—or already arrested for a serious crime.”
“So, can we arrest one of them, get her DNA, then release her?”
“No. I won’t file for an arrest warrant as a means of compelling them to give DNA. You don’t have probable cause on the two of them, right?”
“Well, we got a pretty good sense it’s one of the two.”
“No, I mean you’re not thinking the two women conspired to kill the grad student.”
“That’s right. We think it’s probably one or the other.”
“Well, then, definitely no,” Klein said.
“How’s that?” I said.
“If you can convince me the two women conspired to kill him, I’ll file the papers for you. One woman lures him into an alley, the other hits him on the head. But if you think it’s probably one or the other, that’s a textbook case of not having probable cause. Because if it’s Woman A, then it can’t be Woman B. And the reverse. You need to choose a woman, get the evidence to show probable cause, and I’ll get you an arrest warrant. Once she’s in the system, show me why you need the DNA.”
“That’s the only way to get the DNA?”
He put up his hand. “You’ve only got three ways to argue it.” He raised a thumb. “You can compel an offender or arrestee to provide DNA if you have probable cause she committed the crime.” He raised his index finger. “Or if you have reasonable suspicion that she did it.” He raised his middle finger. “Or if you have reasonable suspicion the DNA will produce material evidence in a case where you already have probable cause. Without one of those three, you’re violating the Fourth Amendment, as well as the same thing written in Montana statute.”
“But if I could match only one of the two women to the DNA evidence on the vic’s body,” I said, “that could provide material evidence.”
“How’s that?”
“We’re trying to see if there was another woman involved—I mean, other than the two we’re looking at already.”
He shook his head. “It doesn’t work that way. You can’t compel evidence to broaden your suspect list. You can compel evidence only if you already have probable cause. Which you don’t have, right?”
“Where we are, Larry,” Ryan said, “is we’ve got two women with motives, and we can place them each of them at the scene at the right time. But we want to see if there was a third woman. If the two women don’t match up to the DNA on the victim’s body, we know we have to expand the investigation.”
“Nope,” Larry said. “You said the victim was strangled, right?”
“Yeah,” I said.
“You got DNA on the weapon?”
I shook my head. “We don’t have a weapon.”
“So where’s the DNA?”
“It’s on his dick. Two women have admitted to screwing him. But we think there may be more than that.”
“If you can’t put the DNA on a murder weapon, you don’t have anything. Screwing him doesn’t even make ‘reasonable suspicion.’ In fact, unless you’ve got other actions that show the two women both wanted him dead,” he said, raising an eyebrow, “the fact that they screwed him suggests that they were friends.”
“I can give you motive that each of the women might have wanted to kill him.”
“I said ‘other actions.’ I didn’t say motives. If motives were enough, you could arrest me every time something bad happens to a judge.”
“These women were with him within a few hours of his death,” Ryan said.
“Show me a video of one woman leaving his place right before he died. Prove to me it was impossible for someone else to have gotten in and strangled him. And prove to me it was impossible for him to have killed himself. Prove he wasn’t a gasper with a plastic bag—then prove that someone didn’t stop by and remove the evidence. Prove all those things and we’ll talk about compelling that woman to give up her DNA. Right now, what you have is a guy who got laid a lot—and, oh, by the way, you think he was strangled but you’re not really sure if it was one of the women did it.”
I glanced over at the chief, who was looking down at his hands, which were intertwined in his lap. Ryan was tapping a fist against his jaw. I looked at Larry Klein. He wasn’t gloating or preening or anything. His forehead was covered with deep wrinkles, like he was sorry to have to spell it out for us but that he felt it would be useful for us to see where we really were in the case.
“Larry,” I said, “doesn’t it make sense that it’s gonna speed up our investigation if we know we should be looking at only these two women, or there are other suspects?”
“Of course,” he said. He put his hands on the chair arms and lifted himself off the chair slightly so he could switch legs. “But the purpose of the law isn’t to make it easier for you to catch the bad guy. It’s to make it harder.”
I put out my hands in confusion.
“The law protects people from unreasonable searches and seizures. That doesn’t mean it’s unreasonable for you to want to know whether that person was at the crime scene. Obviously, you’d like to know that. It means that the search is reasonable only if you have probable cause to believe that person killed that other person.”
“That’s not exactly a level playing field, is it?”
“Not supposed to be. It’s tipped in favor of the defendant. If I prosecute someone, I have to make the case that this particular person did it, beyond a reasonable doubt. You got two women—or two dozen women—screwing this guy the night someone throttled him. Choose a woman, make a case that she did it—not that she or someone else had a reason to do it, but that she did do it—and I’ll get you a court order to compel her to give us her DNA. But you think one of those two women did it because they screwed him that night?” He shook his head. “I can’t bring that to a judge.”
“Isn’t there something in the law about ‘exonerating innocent suspects’?” Ryan said.
“Yeah,” Klein said. “If Woman A is serving a sentence for killing a guy, and you can show probable cause that Woman B killed him, I’ll get you a court order to compel Woman B to give up her DNA, whether she’s already in prison or she’s the mayor’s wife. But I still want probable cause.”
Ryan leaned forward. “The fact that at least one of these women would be helping themselves out by cooperating with us—that doesn’t make a difference?”
“Being stupid’s not a crime,” Klein said. “We don’t have the prison space.”
“Shit,” I said to Klein.
“Shit, indeed.” He put up his hands. “Anything else I can not help you with?”
I gave him a sad smile. “No, I think you’ve sandbagged us enough.”
“Excellent.” He stood, buttoning his black suit jacket. He shook hands all around and left.
I turned to the chief. “When Ryan and I came in, you told Larry you didn’t know whether we could compel the two women to give up the DNA.”
He nodded. “Yeah, I said that.”
“You have a doctorate in criminal justice, right?�
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“That’s right.”
“So you already knew, didn’t you?”
“I’ve been in Montana less than a year.” He gave a little shrug. “There might be some loophole I don’t know about.”
“I don’t believe you.” I smiled. “You had him come over and explain it so we wouldn’t think you were shutting us down. So we’d be pissed at Larry.”
“Interesting theory.” I could almost make out a smile.
“That’s what you were doing, right?”
“Like the prosecutor said, ‘Show me probable cause.’”
Chapter 20
“Well, that was somewhat embarrassing,” Ryan said as we made our way back toward the center of the building and headed into the incident room.
“What’s that?”
“Larry Klein explaining to us how we can’t compel the two women to give us their DNA.” Ryan put his briefcase and cane down on a desk.
“I don’t see it that way.” I put my bag on a table in the center of the room. “That’s Larry’s job. We’re supposed to ask for help. And he’s supposed to explain what we can do and can’t do. We should be embarrassed if we decide not to ask him and it turns out he could’ve helped us with the case.”
“Okay,” Ryan said. “But what I get from him is we’re not any farther along now than we were a day and a half ago.”
“Austin calls Kathy Caravelli a dyke around ten-thirty or eleven.” I sat down in a cheap plastic chair at the desk. “May doesn’t call him out on it. Kathy leaves. So, assuming Kathy didn’t come back and strangle him—with May there or not—May is the last person sees Austin alive.”
Ryan stood there, looking at the whiteboard. “Yeah?”
“How’re we gonna check out May’s story that she went home?”
“Ask her landlady?”
“The one with the hearing aids? Who probably took them out when she went to bed around nine, nine-thirty?”
“We could canvass the scene,” Ryan said. “There might be some teenage boy across the street with binoculars who keeps a log of when May enters and leaves her apartment.”
“Might as well,” I said. “Write that down, would you?”
“And the same for Kathy Caravelli?”
“I don’t see anyone tracking her comings and goings, but, yeah, I guess we should.”
Ryan wrote it down in his notebook.
“It’s ten-thirty or eleven. Austin’s apartment. He watched the two women going at it. Then he nails May. Then—we don’t know how it got around to Austin calling Kathy a dyke—but she leaves, pissed off. So it’s just May and Austin. He lies back on the mattress, she gets on top of him, strangles him with … it could be anything.”
“Sure, a sleeve of a blouse. A jacket. Anything. Gets dressed. Walks out, wiping her prints off the doorknob.”
“Because Austin called Kathy a dyke?” I said.
Ryan shrugged. “I don’t see that. Now, if he’d been humiliating Kathy for a long time, and May had been telling him to stop. Or if he’d done something to Kathy beyond calling her names—maybe. For May to get worked up enough to want to kill him, she’d have to be totally committed to Kathy.”
“Which would make me wonder why she’s still screwing him,” I said.
“Exactly. Whatever crimes Austin committed, they’d be against May, not against Kathy. Maybe he’d humiliated May by sleeping around. She might’ve found out he’d nailed Tiffany earlier that night. She could’ve smelled it on him.”
“Or May called Kathy and told her to come back,” I said. “She comes back. The two women kill him.”
“Or Kathy decides to come back to tell Austin off. May’s still there. She lets Kathy back in. Kathy kills him. May watches. The two women walk out, wiping the doorknob.”
“Jesus Christ, we’re just spinning our wheels.” I shook my head. “We’ve got motives, means, and opportunities for May, for Kathy, and for the two of them together, either premeditated or spur-of-the moment.”
“The only thing we don’t have,” Ryan said, “is probable cause.”
I was looking at the timeline on the whiteboard. “Tiffany fucked him around seven, right?”
“That’s right.”
“Then she went to a girlfriend’s house.”
“We never did follow up on that,” Ryan said.
“Go back to the chief’s office, get authorization to get some uniforms to canvass Kathy’s place and May’s. I’ll call Tiffany.”
Ryan nodded and walked out of the incident room. I got my cell from my shoulder bag and called Tiffany. She picked up right away.
“Tiffany, Detective Seagate. We need to talk with you again.”
“Oh, God, what about? I told you everything I know about Austin.”
“Yeah, I know. We need to talk with you more about Sunday night, after you were at his apartment.”
“I went to a girlfriend’s place. I told you that already.”
“Yeah, that’s what we wanna talk to you about.”
“What else do you wanna know?”
“We need to talk in person. Where are you? Your apartment?”
“Yeah.”
“We can be there in ten minutes.”
“No.” Her voice was high. “Not here.”
“All right,” I said. “Where?”
“The Starbucks on Fourth.”
“Okay,” I said. “Ten minutes. You got that?”
She didn’t answer. She just ended the call. People can be so rude.
Ryan came back into the room. “The chief said okay. The canvass will be done by end of shift today.”
“Good, thanks.” I stood up. “Let’s go talk to Tiffany.”
We drove over to the Starbucks. There were no spots, so I parked in a private lot where you put money in an envelope in a box on a pole. I put down the visor with the Official Police Business sign visible.
We walked into the coffee place. I breathed in the smells—the coffee, the steamy cream, the cologne from the two business guys in suits at the table right near the door. Paul McCartney was singing from the speakers in the ceiling. Ryan and I scanned the place. No Tiffany. We threaded our way to a table near the back and sat down to wait for her.
“She gonna pull a runner?” The coffee smelled real good. I was tempted.
“If she does, we know who killed Austin,” Ryan said.
“I’m not sure we’ll ever know,” I said. “Screw it. I’m getting a coffee. Want something?”
He shook his head.
I grabbed a paper cup and pumped some of the regular coffee and put two dollar bills on the counter. As I was getting the cream and sugar, Tiffany walked in, looking pissed-off.
She wasn’t quite pulled together. She had on jeans and a tee-shirt, half tucked in, with a light cloth jacket, unzipped. Her hair was uncombed. She squinted, then frowned some more when she spotted us near the back. She navigated between the tables, turning sideways now and then to squeeze through. A couple of young guys sitting off to the side watched her tits bobbing their way to our table.
Ryan stood up when she arrived. She looked at him, confused.
“Thanks for coming, Tiffany,” I said.
She sat down, and Ryan did the same. She just looked at me. Paul McCartney stopped singing, and some Sixties music I didn’t recognize came on. The espresso machine was hissing and whooshing, sending clouds of steam into the air.
“You told us yesterday you were at Austin’s apartment around seven, that you stayed there around a half hour or so.”
“That’s right.”
“And then you drove over to a girlfriend’s apartment. You didn’t go to your own place. That correct?”
She nodded. The frown lines coming down from the sides of her mouth were going to become a problem in a few years.
“What’s her name?”
“Emily Johnston.”
I glanced over at Ryan, who was writing it in his notebook.
“What’s her phone?”
; Tiffany leaned over and pulled her phone from her pocket. She turned it on, hit a button, and held it up to me. I pointed my chin to Ryan. She held it up for him to write it down.
“When we talk to her, she gonna tell us you were there all night, watching a movie, you went to bed around midnight in the spare bed in her bedroom, and she swears you didn’t leave till the next morning?”
Tiffany looked at me. “She’s not gonna say that.”
“What’s she gonna say?”
“She’s gonna say we ordered in some pizza, then a couple guys from her building came by to hang out.”
“Hang out?”
“Yeah.” She looked down at her hands for a moment and then back up to me. “Hang out.”
One of my goals in life is to figure what the hell it means to hang out. I’ve asked my son about a hundred times, after he’s told me that’s what he’d been doing for the last day or three when he’d been off the grid, but he can’t seem to explain it, either. “What exactly does that mean?”
“They came over. We were talking. You know, hanging out.”
Ryan said, “If we bring Emily in to headquarters to make a formal statement, is she going to tell us the four of you were together in the same room, then the two guys left, then you and Emily went to bed?”
Now she turned to Ryan and shared the fuck-you expression that I thought she reserved for me.
“Come on, Tiffany.” I was getting a little pissed myself. “Is Emily gonna tell us you never left her place until Monday morning?”
“How the fuck should I know what she’s gonna tell you?” She shifted in her wooden chair.
“Okay,” I said, standing up. “Let’s go down to headquarters, have you make a formal statement.”
She put out her hands. “What do you want me to say?”
“I want you to tell us the truth. Have you got an alibi for Sunday night, around midnight?”
She looked out over my shoulder, then pulled her gaze back toward me. “What happened was, Emily and this guy went into her bedroom.”
“When was that?”
“I don’t know. Around nine.”
“How long were they in there?”
She shook her head. “Till maybe … I wasn’t looking at my watch. Eleven?”