too, and it was never recovered."
I saw some of the grand jurors flip back into their notes, asking
themselves the same question I'd asked myself three days ago. "Ms.
Lopez, how did you know that Jamie Zimmerman's purse was taken and
never recovered? The police were unaware of that fact until just days
ago."
"I refuse to answer on the ground that the information is protected by
the attorney-client privilege and the work-product privilege," she
responded.
"Ms. Lopez, you understand that the attorney-client privilege protects
only information obtained in the course of communications between you
and a client, is that correct?"
"That's correct, counselor."
"The work-product privilege, on the other hand, applies to any
information you obtain during the course of working as an attorney on
behalf of your client. In other words, it covers not only
communications between you and your client but also information you
derive from research or interviews of third parties. Is that a fair
summary of the privilege?"
"Yes, counselor."
"It would be a violation of your professional ethics, wouldn't it, Ms.
Lopez, to assert a privilege that you did not actually believe covered
the information requested from you?" I asked.
"That's correct. I would not assert a privilege unless I had a
good-faith belief that the privilege applied to the requested
information."
"I want to be very clear here, Ms. Lopez." I paused for emphasis. "I
have asked you how you knew that Jamie Zimmerman's purse was taken from
her when she was killed. And you are refusing to respond not just on
the basis of work-product privilege, but also on the basis of
attorney-client privilege. Is that correct?"
"Yes, it is," she responded.
"I understand and respect your position, Ms. Lopez. Thank you for
your time," I said, excusing her.
When I announced that I had no further witnesses, the grand jurors'
questions began to fly. Was I arguing that Frank Derringer had killed
Jamie Zimmerman? How could that be, when we knew for certain that he
didn't kill at least two of the other women described in the Long
Hauler letter? Did I think Derrick Derringer was in on it? What
should they do about Travis Culver? Did this mean that Detective
Forbes coached Margaret Landry's confessions?
"I am asking you to indict Derrick Derringer on the following charges.
First, statutory rape based on Haley Jameson's testimony that Derrick
Derringer has had sexual intercourse with her. She is only sixteen
years old, and the photograph you saw corroborates her testimony.
Second, obstruction of justice and perjury for offering false testimony
on behalf of his brother, Frank Derringer. Third, conspiracy to rape
and murder. He may not have been present at the time that Kendra
Martin was attacked, but you have heard evidence suggesting that the
Derringer brothers conspired to rape and kill Kendra Martin to send a
message to other girls on the street that they'd better make their
payments, one way or the other.
"I am not presenting any charges relating to any of the murders
described in the Long Hauler letter, including the murder of Jamie
Zimmerman. Nor am I requesting charges against Frank Derringer or
Travis Culver." Double jeopardy protected Frank Derringer from being
charged again with the attack on Kendra, and Culver couldn't be
indicted by this grand jury, since he'd been brought here under the
compulsion of a subpoena. "I understand that it is difficult to
reconcile my theory of the charges against Derrick Derringer with some
of the extraneous evidence. The question for you to resolve is
whether, despite those complications, you believe a jury could find
Derrick Derringer guilty beyond a reasonable doubt."
I had blocked off the rest of the grand jury's afternoon so they would
not feel pressured in their deliberations. I gave them my pager number
and asked the foreperson to beep me when they'd reached a decision.
I passed Tim O'Donnell in the hallway on the way back to my office.
"Hey, Kincaid, I was just looking for you. Where you been all
morning?"
"Went over to JC-2 for a couple of arraignments. Crazy over there," I
said, looking down to make sure that everything was tucked away neatly
in my file.
So I wasn't sharing the sandbox anymore. Big deal. Playing well with
others isn't all it's cracked up to be. Besides, technically speaking,
I had done everything I was told to do. Frank Derringer was free, and
my actions had in no way jeopardized the exoneration of Margaret Landry
and Jesse Taylor.
As it turned out, O'Donnell still thought we were sharing.
"Just got back from OSP," he said, taking a bite of the bagel he was
carrying around. The Oregon State Prison was nastiness incarnate, but
O'Donnell was probably well past letting it affect his appetite.
"Landry and Taylor passed their polys. FBI guy says no signs of
deception to the three key questions."
The polygrapher had asked Taylor and Landry whether they abducted or
killed Jamie, wrote the Long Hauler letters, or knew the Long Hauler.
Passing the polys helped clear the way for their release.
For a second, I thought I felt a pang of guilt for not telling
O'Donnell what I'd done, but I decided it was hunger brought on by
watching him eat his bagel. The moment passed when he started chewing
with his mouth open.
"So what happens next?" I asked. As far as I was concerned, what
happened next was a big fat indictment against Derrick Derringer, but I
kept that to myself.
"Duncan's on a call to the governor now," O'Donnell said. "The only
question is whether to get Landry and Taylor out through the courts or
have the governor pardon them. Looks like a pardon, though. The
courts will take too long, and there's no guarantee we could even get
them out that way without an error at trial."
Believe it or not, what's known as a "mere" showing of innocence is not
a legal basis for setting aside a lawfully obtained conviction.
Instead, the defendant has to point to an error during trial that
affected the result of the case. Illegally seized evidence introduced?
Public defender fell asleep? Then you might have a chance at reversal.
But if the procedures were lawful, it's pretty much impossible to set
aside a jury's guilty verdict, even if you subsequently demonstrate
your innocence. Respecting the finality of the guilty verdict is the
only way to keep the courts from being flooded by convicts' endless
claims of innocence. Without a procedural error, Taylor and Landry had
a better chance of release through the governor's intervention than in
a court of law.
"Is Jackson willing to issue the pardon?" I asked.
"Looks like it. We've talked about a stipulation of police misconduct
as the trial error, but Duncan and Jackson are worried about a beef
from the police union," he said.
"Was Landry poly graphed about that? What did she say about Ch
uck?"
"Nada. The polygraph only covered the ultimate issue of factual
innocence. The examiner was worried about adding too many
questions."
The greater the number of material questions you put in a poly, the
higher the risk of either false signs of deception or inconclusive
results. So much for using modern technology to find out if the man
I'd been sleeping with was lying his ass off.
"Oh, and the FBI finished its profile. Pretty much what we expected,"
he said.
"Any theory as to why the guy wrote the letters now, after all these
years?" I asked.
"Probably because of the media attention. He might not have come out
on the Taylor stories alone, or maybe he would've waited until after
the execution. But the theory is that the combo of the Taylor and
Derringer stories was too much for this guy to resist. The profiler
compared it to the Unabomber sending out his manifesto after Tim
McVeigh stole his thunder."
"So how come we haven't heard anything from him since?" I asked.
"FBI says that's the kicker," he said. "Usually, a communication like
that is followed up with a body or at least more taunts. It's possible
there's another one out there, and he's waiting to see if we'll find it
on our own. Another possibility, of course, is that this guy's got his
own way of operating. Wait and see, I guess. Anything else on your
end?" he asked.
Oops. Now I was going to have to be a hypocrite on that whole lying
thing. "Nope," I said, mentally crossing my fingers. "The victim
understands what's going on. The family won't be making any statements
to the media. They just want to be kept in the loop." The truth was
that Kendra and her mom were so grateful for Kendra's continued
anonymity that they'd never contemplate making a statement to the
media.
But seeing as how I was already lying to Tim's face, there was no real
harm in letting him think the Martins might embarrass him publicly if
he dropped the ball.
I might not play well with others, but I was getting pretty good at
faking it.
My pager finally buzzed as I was taking a plea in Judge Weidemann's
courtroom.
"A problem, Ms. Kincaid?" Weidemann inquired, peering down over his
half-moon glasses. I was surprised that he was paying enough attention
to the proceedings to notice that I'd glimpsed down at the device
clipped to my waistband.
"No, sir," I responded. "Just waiting for a grand jury decision, your
honor."
"Not too much suspense to be found there. Who's today's ham sandwich?"
he responded. The defendant and his attorney, Frankie LoTempio, got a
laugh out of that one. A running joke among criminal defense lawyers
is that grand jury proceedings are so one-sided that grand jurors would
indict a ham sandwich if asked to by the prosecutor. The way I saw it,
if prosecutors were doing their jobs and only asking for indictments
that were warranted, grand jurors should be indicting all the cases
given to them. I doubted that Weidemann and LoTempio wanted to hear my
view, though.
"Well, seeing as how they're the grand jurors and I'm a judge, let's
finish up here before you head on up to them, if that's acceptable to
you, Ms. Kincaid?" Weidemann asked.
"Of course, your honor," I said, reminding myself once again that
displays of ingratiating deference come with the territory when you're
a trial lawyer. The rest of the sentencing was predictable, given
Weidemann's Solomon-like approach. I recommended an upward departure
from the sentencing guidelines, mentioning a few facts I'd noted in the
file that were mildly aggravating some packaging materials, a tattoo
hinting at a gang affiliation, the defendant's choice words for the
arresting officer. Then LoTempio cited a few lame reasons for
requesting a downward departure from the sentencing guidelines. In the
end, Weidemann applied the guideline sentence. The sentencing
guidelines provided 99 percent of all drug sentences and left little
discretion for the judge. Weidemann, though, had to feel like he was
doing something important, so everyone who appeared before him played
along.
When we finished, I ran up to the grand jury room on the seventh floor
and knocked on the cracked door before pushing it open. "You all
done?" I asked.
The foreperson, a seventy-year-old man in a T-shirt that said I still
love my harley handed me the slip of paper. A single check mark told
me they had true-billed the requested indictment by a unanimous vote.
"Some of us wanted to know if we'd be able to find out what happens in
the paper," he said.
"Oh, I think you can count on that," I said.
"Go get 'em, Tiger," he said. "And watch out for yourself."
Maybe grand jurors are a prosecutor's conspirators after all.
I had wasted no time getting the paperwork for the indictment to Alice
Gernstein. I thought I'd have to sneak it through while O'Donnell was
in court, but I got lucky. His legal assistant mentioned that
O'Donnell had left early to head down to his fishing cabin. The
superstar of office paralegals,
Alice had Derrick's warrant in the system by the following morning.
As it turned out, the rush hadn't done me a damn bit of good, because
three days later, Derringer still hadn't been picked up.
The plan was to find Derrick without tipping him off to the warrant.
Once he was in custody, I'd arraign him, confess my sins to Duncan, and
let the chips fall where they may. The arrest might force my boss and
the bureau to come up with a theory that explained all the evidence,
not just the evidence they liked.
I didn't say it was a great plan, just a plan.
The plan was looking even lamer now that I couldn't get even the first
step off the ground. I'd called in my markers with four different pals
in the Southeast district, but they hadn't seen Derringer at his house
or work all weekend.
At one point, I picked up the phone to call Chuck, but I quickly
replaced the handset. Since the showdown at my house, I must have done
this at least a dozen times.
Grace was always good at strengthening my resolve, so I asked her to
meet for lunch at a bistro that was halfway between the salon and the
courthouse. Once we'd placed our orders, I filled her in on my plan.
She wasn't pleased. "You realize, don't you, that you may very well
get fired over this."
It didn't sound like a question, but I answered anyway. "I sort of
figured that if Duncan tried to fire me, I'd use the grand jury
transcripts as leverage."
"And how, exactly, will the transcripts give you any leverage?" she
asked.
"The press looks at the JC-2 calendar every day to see who gets
arrested. When Derrick finally gets arrested, the media will start
asking questions, so Duncan will at least have to keep investigating
the Derringers and find out how they're involved with the Long Hauler.
If he tries to bury it and get rid of me, I could hint that I might
release the information presented to the grand jury."
We were momentarily distracted by the arrival of our food. Or, to be
more accurate, by the arrival of our extremely attractive waiter.
Apparently having sex on a semiregular basis over the last month had
altered my cognitive priorities.
"I thought grand jury proceedings were secret," Grace said, as we both
admired our waiter's extremely attractive departure.
"They are. Doesn't mean Duncan won't worry about the threat.
Prosecutors have been known to leak grand jury information when it
helps them. Look at Ken Starr," I said.
"So your big plan is a bluff?"
"I'm not sure about that, Grace," I said. "I think I'd actually do it
at this point. I mean, they convicted Landry and Taylor based mostly
on the fact that Landry knew things no one but the killer could know.
Now those same defendants are being released, and Frank got his case
dismissed, because the Long Hauler knows things no one else could know.
But it turns out that Frank had information too. How could he have
known Jamie Zimmerman's purse was stolen unless he was involved
somehow? And the Derringers' involvement in teen prostitution is just
too coincidental. I think Duncan will have to pursue it once I force
the issue with Derrick's arrest. If he tries to ignore it, I don't
have a problem with making sure that the press doesn't let him."
"And what does Chuck think about your plan?" she asked.
Judgement Calls Page 32