down later on."
I hate this kind of crap. The four people at the table agree what
needs to happen and are willing to put in the work, but have to plot
how they can even start without bruising a fragile ego.
I was skeptical. Garcia was good, but I still thought O'Donnell might
see right through it and blame me when he wound up looking like a
chicken shit. It would have been so easy to blame O'Donnell for the
bad decision and say there was nothing I could do.
Apathy is grossly undervalued and never there for me when I need it. I
was already sucked in. I'd broken up some escort services and
prosecuted a few pimps, but I'd never had a chance to handle a case
like this one. And, to my mind, with scum like Derringer, it was
better to issue the case and lose than let him walk away up front.
"Alright, let's give it a try," I said.
Two.
Raymond Johnson was right. Tommy Garcia should run for office. Around
nine o'clock, Tim O'Donnell popped into my office to give me a heads up
that Tommy Garcia might be calling about an assault that happened over
the weekend. I feigned ignorance. According to O'Donnell, the victim
was a strung-out Old Town Lolita who acted surprised that a trick might
want rough sex.
By ten, O'Donnell told Garcia he didn't care what charges were filed if
someone from DVD agreed to pick it up. Once I got the word from
Garcia, I called O'Donnell to be sure he was aware I'd be filing
Measure 11 charges against Derringer. I didn't want him getting ticked
off later.
Oregon joined the growing ranks of "tough on crime" states a few years
ago when voters passed Ballot Measure 11 by a landslide. The law
requires mandatory minimum sentences for the most violent felonies. Not
surprisingly, once
Measure 11 defendants figured out they were facing long minimum
sentences upon conviction, whether they pled out or not, they stopped
pleading guilty and started rolling the dice at trial. As a result,
the DA's office stopped filing charges that fell under Measure 11
unless the bureau's investigation was flawless. In response, PPB
formed the Major Crimes Team. The precinct detectives weren't too
happy about what they understandably viewed as a demotion.
In theory, the DA's office chose carefully which cases to file under
Measure 11, because the consequences of a conviction are profound. But
when it became clear that pissed-off precinct detectives were slacking
on their general felony cases, the DAs started looking for creative
ways to justify filing cases under Measure 11 so MCT would be
responsible for the follow-up. Once the work was complete, they'd
threaten the defendant with the mandatory minimum sentence in order to
get him to plead guilty to whatever he should've been charged with in
the first place. And now I had to pretend I was doing exactly that so
a loser like Tim O'Donnell would give up a case he didn't even want.
I could hear laughing in the background when O'Donnell picked up the
phone. As usual, the rest of the boys in the major crimes unit were
huddled in his office for mid-morning coffee and a round of "No, I've
got the raunchiest big-tit joke."
"Hey, Tim. It's Samantha Kincaid. You were right. Garcia did call me
about that Derringer case. I agree it's a solid Assault Three, but MCT
won't do the follow-up unless we file it under Measure Eleven."
"Listen, Kincaid, if you want to do the work on it, that's fine with
me. I don't know why you'd want to. I talked to the vie at the
hospital she's a white trash junkie liar, no matter what those MCT guys
tell you. The case is a loser."
"Yeah, you're probably right, but Garcia seems to think she might be
able to get us some good vice cases."
"Tell me the truth, Kincaid. Do you actually give a shit about those
whores?" More laughter in the background. I tried to control my anger
as he put the phone on speaker.
"Alright, seriously, you guys. Who in this room really cares if some
sack teaches a drug addict from Rockwood how to sell it to support her
junkie habit?" When no one said anything and the guffawing started
again, he said, "See, Kincaid? That's why you get all those vice
cases. Ask me, we should give those guys a medal. Without them, those
girls would be breaking into houses and stealing to get the money."
When he realized I wasn't joining in the festivities, he tried to
cover. "We're just giving you a hard time, Sam. You know that, right?
Sure you do. Hey, here's a good one. What does a Rockwood girl say
right after she loses her virginity? "Get off me, Daddy, you're
crushing my smokes." "
I'd love to be one of those people who could throw off the perfect
zinger. The kind with the optimal amount of sting, but with enough of
the funny stuff to keep you from looking like a freak. But in my
experience, those perfect zingers never leap to mind at the right
time.
"Funny, O'Donnell. Hey, hold on a sec." I set the phone down on my
desk and rushed down the hall to his office. Standing in the doorway,
I could see their wee brains straining to figure out how I could be in
O'Donnell's office and on the phone at the same time. "There's nothing
funny about the Derringer case, and there's definitely nothing funny
about some guy getting over on his daughter. You say something like
that to me again, and it'll feel like someone stretched your sad little
ball sack up over that big empty head of yours."
I stormed back toward my office before I could make things worse.
Behind me, I heard O'Donnell yell out, "Real nice, Kincaid," over the
other guys' laughter. I hadn't meant it to be funny, but if they were
going to take it that way, so be it.
I had to hand it to O'Donnell. He could be a Grade A jerk, but at
least the guy could take it. As I slammed down the phone in my office,
I could hear his laugh above all the others.
I waited for my pulse to return to normal, then called over to the jail
to make sure Derringer was still in custody. The Multnomah County
holding center's under an order from a federal judge for overcrowding.
If the cells get full, the sheriff's office is required to start
releasing prisoners according to a court-created formula. In theory, a
sex offender in on a parole hold should be one of the last to be
released, but I'd stopped being surprised by MCSO's decisions a long
time ago.
I finally got connected to a Deputy Lamborn.
"You calling about Frank Derringer?" he asked. "Because I've been
trying all morning to figure out who to call, and I'm getting ready to
come off shift. Can't read the PO's signature for shit."
"What's going on?" I asked.
"Well, we noticed something I thought the PO should know about. When
we bring the prisoners in for booking, they've got to strip down out of
their street clothes and put on their jail blues. Anyway, when
Derringer was changing, one of the guys noticed that Derringer doesn't
have any pubic hair."
"Come again?" I said.
; "Yep, all gone down there. So, anyway, we assumed he had crabs or
something and were joking around about what lucky prisoner was gonna
have to share a cell with him. But then I noticed Derringer had a
parole hold for an Attempted Sod One and figured a sex offender might
have a more sinister reason for getting rid of the short and cur lies
Thought someone should know about it."
That someone was me. I wrote down Lamborn's information so I could add
him to my witness list. Then I cut the call short so I could call
Derringer's parole officer to see if he knew anything else.
He picked up the phone on the first ring. "Renshaw."
I introduced myself to Dave Renshaw as the DA who was going to pick up
the Derringer case, then passed along Deputy Lamborn's observation.
"Well, I don't like what he had to say about my penmanship, but the boy
was certainly using his noggin, wasn't he?"
"I'd say so. Unless Derringer's got some explanation, it looks like he
knew he was going out for a victim and didn't want to leave any
physical evidence behind. I was calling to see if you had anything in
your file that might help. Derringer hasn't been out on parole for
long, so if we could show that no one ever noticed anything unusual
about Derringer's appearance when he was in prison "
Renshaw cut me off. "Oh, I can do better than that. One of Mr.
Derringer's parole conditions is that he submit to pethismographic
examination." My silence told him I didn't know what that was.
"Standard for most sex offenders. A counselor hooks the guy's private
parts up to an EKG and then shows slides of various sexual images. By
monitoring what gets someone like Mr. Derringer hot, the counselor can
see whether the parolee's preferred fantasy images are changing with
treatment or whether he's still perverted."
"Are you about to say what I hope?"
"Yes, ma'am. Derringer was in let's see, I've got his file right here
yep, just last week for his initial examination, and I was there for
it."
"And everything was normal down there?"
"I don't know about that, but, yes, I definitely would've noticed if he
had shaved that area, and I didn't see anything out of the ordinary."
"And what were the pethismograph results?" I asked.
"Oh, the doctor would tell you that Derringer was responding to
treatment. Derringer's pulse got pretty fast during some of the
violent porn and stayed flat and steady during what most of us would
consider straight porn, but his Johnson stayed limp the whole time. The
doctor thought Derringer's pulse raced out of nervousness that he might
get caught getting off on the violence. But with what I know so far
about this new case, I think Derringer was getting turned on but just
wasn't responding downstairs."
Definitely possible. We were wrapping up the call when Renshaw said,
"Now this is interesting. I was flipping through the file while we
were talking. I usually get the facts of my guys' cases straight from
the police report, but intake typed in something that must've come from
the prosecuting attorney's file. The notes say that Derringer's
brother, Derrick, had offered himself as Derringer's alibi witness."
"This is on Derringer's old case?"
"Right, the Attempted Sod," Renshaw clarified. "I didn't realize that
Derringer ever tried to go with an alibi, but it says here that Derrick
was scheduled to testify that Frank was with him when the girl said she
was attacked. Then our Mr. Derringer turned around and changed his
defense. Instead of saying it wasn't him, he argued the whole thing
was consensual rough sex, trying to get the case bumped down to
statutory rape. In the end, Derringer pled guilty as part of a plea
bargain, but that doesn't stop him from telling me at every opportunity
that the girl consented. Everyone I supervise is innocent, don't you
know."
I thanked him profusely for all the information and assured him I'd be
calling him as a witness. For now, I had other work to do.
Renshaw had lodged a detainer against Derringer based on probable cause
that he'd had unsupervised contact with a minor, a violation of his
parole conditions. Derringer was booked over the weekend, so his case
would be called in the Justice Center arraignment court this afternoon
for a release hearing. Technically, a parole detainer is enough to
hold a parolee for up to sixty days pending a hearing. I would have
liked to keep Derringer in custody on the violation and wait for MCT to
finish the investigation before I decided what charges to file.
The problem was that the allegation underlying Derringer's violation
was essentially an allegation of new criminal conduct. In these
circumstances, most local judges won't hold the parolee in custody
unless the State actually files new charges. So I needed to have a
charging instrument ready in a few hours or the court might cut
Derringer loose.
One alternative was to issue the lowest-level charges, like assault,
kidnapping, and rape. That would be enough to hold Derringer until MCT
was finished. Once the grand jury heard the complete evidence, I could
come back with an indictment for Attempted Aggravated Murder. I'd been
burned by this method before, though. A smart defense attorney can
convince a defense-oriented judge that upping the charges on a
defendant after he has been arraigned on the initial complaint is
prosecutorial misconduct. Under the law, it's not, but that doesn't
stop a court from doing what it wants.
This case would turn on Kendra Martin. Before I made up my mind about
charges, I wanted more than Walker and Johnson's opinion about her.
During my stint in DVD, I'd dealt with a few street girls. Most of
what Walker and Johnson said about Kendra sounded right. I wasn't
surprised that she would lie about the work and about her habit. And,
if she was street smart, I believed she didn't get into that car on her
own. What bothered me was her initial response to Walker and Johnson.
Detectives with their experience are used to the typical rape victim
response. It's normal for rape victims to be defensive and to direct
their anger at police. But this girl, a thirteen-year-old, sounded
like a nightmare. If I was going to go all out and guarantee myself a
tough trial, I didn't want to spend the next few months fighting with a
teenage sociopath.
I went to the law library and pulled a copy of the Physicians' Desk
Reference. The emergency room had injected Kendra Martin with Narcan
to prevent her from overdosing. According to the PDR, the active
ingredient in Narcan was naloxone, which reverses the effects of
opiates and induces immediate withdrawal. Even for a relatively new
user like Kendra Martin, the shock to her system would be enough to
create a very unhappy camper.
The effects of heroin last longer than the effects of naloxone. As a
result, once the naloxone wears off, the person might have a short
period where they're still under the influence of the opiates. Those
effects gradually wear off, and
the person returns to their normal
state.
If Walker and Johnson were right about Kendra Martin essentially being
a nice girl, the mix of Narcan and heroin would explain her initial
crankiness, followed by a period of indifference.
Having satisfied my main point of doubt, I decided to go with my gut.
Walker was right. Derringer and his buddy got a thirteen-year-old girl
to shoot up a boatload of heroin, then beat her, choked her, sexually
assaulted her, and left her to die in the woods. The case would be
tough to prove, but it was looking better now with the information from
the jail and Renshaw. There was enough for an attempted aggravated
murder indictment and enough to get it to the jury. And even if a jury
didn't go for the attempted agg, it could still convict on the kidnap,
assault, and sex charges.
I spent the next couple of hours reviewing the reports that had been
written on the case so far. I was impressed. Most of the time, if you
read a cop's reports after the case has been described to you, the
reports and the verbal summary don't quite match up. Either something
was omitted from the conversation or, more commonly, left out of the
written reports. MCT's good reputation appeared to be well deserved. I
was pleased to see that everything I already knew, and nothing else,
was in the reports. And I was irritated that I couldn't stop myself
from paying special attention to the quality of Chuck Forbes's work.
Chuck had joined the bureau after college and had wound up on the fast
track into MCT after he obtained a murder confession that eventually
led to one of Oregon's first capital sentences. I took a special
Judgement Calls Page 3