Judgement Calls

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Judgement Calls Page 32

by Alafair Burke


  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.

 

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