Judgement Calls

by Alafair Burke

  a thorough investigation.

  "By having each of you testify about a separate aspect of the case,

  we're also distributing the credibility of the police investigation

  among all four of you. If no single detective is seen as the lead,

  Lopez can't get any mileage out of ripping one of you guys a new one.

  If she tries doing it to all of you, the jury will see that it's

  dirty."

  Walker nodded. "Got it. I'll tell the lieutenant so he gets off our

  backs."

  "As far as the order of your testimony goes, I'll be spreading your

  statements out around Kendra's, so she will be the highlight of the

  show. But I don't want to end with her testimony just in case she

  winds up taking a beating on cross.

  "The first witnesses will be the two kids who found Kendra in the

  Gorge. That'll set the scene for the jury. Then I'm going to call

  Mike." Calabrese would cover Kendra's condition when they got to the

  scene and the processing of the crime scene.

  The fingerprint on Kendra's purse would be a critical piece of

  evidence. To get it before the jury, I'd need to show that the purse

  examined by the crime lab was the same one Mike found near the crime

  scene. We went through the purse's chain of custody. Mike placed it

  in a sealed and marked bag at the Justice Center and then brought it to

  the crime lab without opening it. Later, Heidi Chung would explain

  that she removed the purse from the sealed bag that had been marked by

  Officer Calabrese. It's the kind of testimony that puts jurors to

  sleep, but, unfortunately, lawyers have to jump about six evidentiary

  hurdles to get to the good stuff.

  After Mike, I'd call the EMTs who drove Kendra to the hospital. They'd

  help show how bad Kendra looked at first. Then we'd get into what

  actually happened to her.

  I was especially concerned about Kendra's initial lies to the police

  about why she was in Old Town and whether she used heroin. I walked

  them through how I was planning to deal with this. First, Ray would

  testify about the initial interview with her. The bar against hearsay

  would keep him from repeating most of Kendra's statements, since they

  weren't made in court. But I could ask him about statements that were

  eventually determined to be false. Out-of-court statements are only

  hearsay if offered for their truth. He could also testify about

  Kendra's demeanor.

  I'd follow Ray with the ER doctor. If the jury didn't understand

  Kendra's explanation for why she lied, they might hang their hats on

  the Narcan if an MD explained the effects of the drug.

  After the doctor, Jack Walker would testify about the second interview

  with Kendra. I wanted him to talk about the change in Kendra's

  demeanor from the first interview to the second and what he said to

  Kendra to get her to open up with him. "Explain it to the jury just as

  you did with me," I

  told him. "If they're going to understand why she was initially

  dishonest, it's going to come from you, followed directly by Kendra."

  After Kendra, I'd call Andrea Martin to describe Kendra's recovery

  since she'd been home. Then Deputy Lamborn and Dave Renshaw would

  testify about Derringer's shaved body hair, followed by Chuck's

  testimony about the car overhaul.

  "Chuck, be ready to go over the contents of the work order from the

  Collision Clinic." The only bone Lopez threw me was on that order. The

  document was admissible under a hearsay exception for business records,

  but technically I should bring in an employee to establish the

  foundation. I'd included the shop's custodian of records on my witness

  list just in case, but Lisa had agreed to stipulate to admissibility.

  Stipulating for business records was the usual professional courtesy,

  but with Lisa it could've gone either way.

  After Chuck, I'd call Heidi Chung, closing on the strength of the

  fingerprint evidence.

  When I'd finished, the detectives were clearly impressed.

  Ray Johnson nodded his head. "Man, that's classy, Kincaid. You've got

  him smack down, girl."

  "Hey, you guys did all the work. I just put it together in a way that

  gets it all in front of a jury."

  "You think he's going down on all counts?" Walker asked.

  "To be honest, I'm not so sure. If Derringer were smart, he'd abandon

  this whole identity defense, especially since we got that fingerprint.

  If he'd focus on the actual legal charges instead of denying identity,

  he could beat the attempted murder and try to get out from

  responsibility for the sex acts of Suspect Number Two. But the jury's

  likely to get so pissed off by his lame-ass alibi defense, they're not

  going to split the legal hairs in his favor. They'll convict him of

  the whole damn thing once they decide he was the one who did it."

  Mike Calabrese liked that possibility. "Why shouldn't the loser get

  smacked for lying his ass off? Would be nice for a jury to call

  something in our favor for once."

  We turned to the defense witnesses next. Lisa had given me the bare

  minimum, names and addresses. She had even listed the five witnesses

  in alphabetical order so I wouldn't know who was most important.

  Jack Walker started with the top. "Well, you know who Derrick

  Derringer is. He's the scumbag's brother slash alibi."

  "Last time we talked about him, we hadn't found anything to prove they

  weren't together. I'm assuming that hasn't changed."

  Walker said, "All we got is that he's lied for his brother in the past

  and is no stranger to the system himself."

  "Yeah, but is the jury going to hear about that?" Ray Johnson asked.

  I nodded my head and popped open a can of Diet Coke that Calabrese

  tossed me from the MCT mini-fridge. "The priors for sure. As soon as

  a person takes the stand, all his felony priors come in to impeach. I'm

  sure the jurors will be real impressed that big brother's got a robbery

  and two forges. As far as his statement backing Derringer on the last

  beef, I filed a motion to get it in. Have to wait and see. If the jury

  hears about it, Derringer's toast. They'll not only know that the

  alibi's bullshit, but they'll also figure out that Derringer's done

  this kind of thing before."

  Mike's beefy hands looked awkward opening a tiny snack pack of

  chocolate pudding that I imagined his wife packed in his lunch every

  day. I tried to ignore the fumbling and focus on what he was saying.

  "I say they're taking a big risk putting the brother up there. They

  can't possibly think anyone's gonna buy this alibi deal. I mean, what

  about the fucking print on the purse, for Christ's sake? I mean, don't

  you think I'm right on this, Samantha?"

  "All the way. Like I said, Lisa'd be better off arguing reasonable

  doubt on the legal elements of the most serious charges, instead of

  going with this alibi defense. I still can't figure out why she's

  doing it. It's got to be coming from Derringer. Probably figures

  that, with the prior attempted sod, the judge will tee up on him even

  if he beats the attempted murder and the accomplice charges. Figures


  if he's going down for the count anyway, he may as well roll the dice

  and try to beat the whole thing."

  Chuck pushed his palms against the edge of his desk, rolled his chair

  back a couple of feet, and crossed his arms. "He must have some loaded

  fucking dice, because I don't see him beating a damn thing with this

  weak-ass witness list."

  It's a fundamental truth that the number and density of cuss words

  increases exponentially as the number of cops and DAs in a room goes

  up.

  "I'm glad you're so confident," I said. "I recognized the big brother,

  and I knew Lisa'd be calling Jake Fenninger. He's the cop who popped

  Kendra on Christmas. But I don't have a clue on the other three.

  Enlighten me?"

  "Well, let's start with Geraldine Maher and Kerry Richardson. Know

  what they have in common?" Chuck raised his eyebrows, daring me to

  guess. When I continued to stare at him, he said, "They work at Lloyd

  Center."

  I felt my eyes widen. "The shopping center? What does a fucking mall

  have to do with my attempted murder case?"

  "I wouldn't have put it together except for the last name on the list,

  Timothy Monrad. Rad was a new recruit for the bureau last summer.

  Works northeast neighborhood patrol, including you guessed it Lloyd

  Center."

  "Nice of Lisa to let me know that one of her witnesses is a cop," I

  said.

  "Don't freak out. It's not a big deal," Chuck said with confidence.

  "See, Kerry Richardson comes up in PPDS as a complainant over and over

  up at Lloyd Center. Turns out he's what they call a 'loss prevention

  officer' at Dress You Up, that discount department store down at the

  end by the movie theater?"

  I nodded to let him know I recognized the name.

  Chuck continued. "OK, so when I saw Rad's name on the list too, I was

  psyched. I figured there might be some connection through Lloyd

  Center. So I ran all of Rad's arrests at Lloyd Center and

  cross-referenced them with Richardson's PPDS records. I found a report

  from January where Rad was the arresting officer on a trespass that

  Richardson called in. The trespasser was Andrea Martin."

  "That's right. I remember. I ran Andrea's record in February as

  background. She had no convictions, but I did see a real recent arrest

  for trespass somewhere." I didn't pursue it, because even if I called

  Andrea to the stand, misdemeanor trespass is not the kind of crime that

  can be admitted into evidence against a witness. And her case hadn't

  even been issued; it was just an arrest.

  Chuck continued. "The somewhere was Lloyd Center. I pulled the arrest

  report. Back in November, Kerry Richardson thought he saw Andrea

  shoplifting in the store. He went and got the manager, Geraldine

  Maher, and the two of them stopped Andrea outside in the mall. She had

  receipts for the things in her bags, but Richardson insisted he'd seen

  her sneak something. They figured she must have stashed whatever she

  stole somewhere right outside of the store. They didn't call police,

  but they did eighty-six her from the store. Richardson must have some

  memory, because when Andrea came back into the store in January, he

  recognized her and called police. Rad made the arrest. Andrea told

  Rad she just assumed that the eighty-six from the store had ended by

  then."

  "I'm not surprised we didn't issue that. Sounds like she never

  should've been excluded in the first place."

  Ray Johnson was laughing. "So that's it? The whole defense is that

  the vica whore, her mom's a trespasser, and Derringer's scum brother

  says they were watching TV?"

  I was just as bewildered. "I don't know what the hell Lisa's thinking.

  The jury's going to hear about Kendra's background from me. I'll go

  over it during voir dire, opening, and Kendra's direct, so Lisa doesn't

  get any mileage by calling Fenninger. She can't get in those Lloyd

  Center witnesses to impeach Andrea. And even if she did, who would

  care?"

  Mike Calabrese gave me a thumbs-up. "Lock and load, baby. That's what

  I say."

  I love it when a plan comes together.

  I left the detectives at the Justice Center and walked over to the

  courthouse to review my trial notebook one last time. I had already

  outlined the topics I wanted to discuss during jury selection and had

  written my opening statement, the direct examinations of the state's

  witnesses, and the cross-examination of Derrick Derringer.

  I no longer carried the anxiety I'd been shouldering all week about

  Lisa Lopez's list of defense witnesses. She was desperate if she was

  trying to get Kendra and Andrea's prior arrests into the record. No

  wonder she'd been pretty quiet about the case when I'd seen her around

  the courthouse lately. I had to admit a certain level of smug

  satisfaction. If it hadn't been for her initial bravado, I'd feel

  sorry for Lisa. She was going to spend her next two weeks stuck with a

  major barker at trial, all for a scumbag sex offender who wanted his

  free lawyer to present a preposterous defense that he and his dimwit

  brother cooked up. But after Lisa's attempts to get under my skin at

  arraignment, I was going to enjoy handing her a solid trouncing at

  trial.

  I called Chuck around seven to see if he was ready to go. We had

  finally gotten around to rescheduling dinner with my dad. He agreed to

  meet me at my car; I was uncomfortable letting the other MCT detectives

  know that we were spending time together outside of work.

  Dad opened the door before we could knock. "You sure the city can make

  it through the night without you guys? I tell you, with the two of you

  working together, the bad guys had better watch their backs." Dad

  always found creative and not so subtle ways of letting me know that in

  his view Chuck and I belonged together.

  Dad was making his specialty, steak on the grill. Dad's like a lot of

  men of his generation. Wouldn't think of putting together a full meal

  in the kitchen, but sees cooking an entire dinner outside as one of the

  great manly traditions, like hunting, fishing, or teaching a kid to

  bat.

  Dad took Chuck out to the deck to show him his new Weber while I poured

  us some wine. Watching them crouched by the grill reminded me of the

  summer the two of them built the deck. It was right after our college

  graduation,

  mine from Harvard, Chuck's from the University of Oregon. Chuck had

  decided not to leave the state for college, a decision his parents had

  harangued him for until they realized it would be bad form for the

  governor and his wife to suggest their son was too good for the state's

  best public university. By the time Chuck graduated, the former

  Governor Forbes spoke at commencement of the pride he felt when his son

  turned down the Ivy Leagues for U of O. That summer was also the summer

  I told Chuck he had to fish or cut bait. I had vowed not to bifurcate

  my life anymore between him and everything else. At Harvard, I missed

  out on things that other kids experience when they go away to school,

  because
my heart had stayed with Chuck back in Oregon. When other kids

  took summer internships on the Hill or in Manhattan, I had faithfully

  returned to Portland, four years in a row. I decided law school would

  be different.

  So I'd begged Chuck during our senior year to live up to his potential

  and apply to graduate programs around the country. He was accepted

  into Stanford Business School and put down his deposit over Christmas

  break when I sent my acceptance to the law school. By spring break, he

  was saying that he hadn't gotten used to the idea of himself in

  business school, and, by summer, he was thinking of pulling out.

  So I told him to choose.

  Of course, it wasn't as easy as that. I cried for two hours and told

  him that I loved him and wanted to be with him and couldn't picture my

  life without him in it. I said that moving to Stanford with him would

  make me happier than I'd ever been, and then I told him to choose.

  He chose to cut bait. He didn't know what he wanted to do, but he knew

  he didn't want to go to California, and he knew he didn't want to go to

  business school. He was thinking of becoming a cop.

  I didn't handle it well. I laughed at him and asked what it would be

  next: astronaut or firefighter. I told him he'd never grow up and

  would never amount to anything. I pointed out that he'd been given

  every advantage in life privileges other people actually had to work

  for and took it all for granted. When my tirade finally ended, he went

  outside, finished up the last coat of stain on the deck, and walked

  out. I didn't see him again for six years.

  I'd heard he'd joined the bureau, of course. I'd actually considered