Fox is Framed

by Lachlan Smith

  “Then what are we waiting for?”

  Teddy went out into the other room to talk to Tam. My father and I waited in the kitchen. After a moment Jeanie came in. “We’re going. You and I just need to get the baby’s car seat installed. We can put it in my car, I guess.” Teddy and Tamara didn’t own a vehicle.

  It was in the corner of the kitchen. In the front room Teddy and Tamara sat on the couch, Teddy’s arm around his wife, her head on his shoulder, the baby in Tam’s arms, Teddy talking in a low voice while Carly snuffled and cried. I carried the car seat out to Jeanie’s Prius.

  “Sounds from the papers like Nina’s doing okay,” Jeanie said as we worked to fit the car seat into the back.

  “We had Shanahan on the stand today.” I summarized his testimony. “Nina sounds good when she’s working on him, but we don’t have any hard evidence. It all happened twenty-one years ago. So basically it’s Nina trying to poke holes in Shanahan’s investigation, and then you’ve got this snitch Russell Bell in the mix. It’s going to come down to which side the jury believes.”

  “Meaning your dad’s testimony is crucial. He testifies when?”

  “Likely tomorrow. Depends on whether the state plans to call more witnesses.”

  “That would explain why he’s so hot to stir up trouble tonight.”

  Teddy and Tamara came out, Teddy carrying the baby. Our father took Tamara by the elbows and tried to speak to her, looking her in the face, making some apology for whatever tense exchange had passed between them before I arrived. Without seeming to hear him, she pressed her palm to his cheek, then turned and got in back beside the baby. Teddy sat in the passenger seat beside Jeanie. Lawrence and I followed in my truck.

  At Children’s, time slowed to a crawl. I tried to talk our father into letting me drive him home. “I’m staying until we know she’s all right,” he said, though it was obvious to me, to Jeanie, to everyone that Carly was just dehydrated, that she was going to be fine. Or so we kept telling ourselves. Sitting in the waiting area, I found myself flashing back to those weeks when Teddy had lain between life and death.

  It was nearly 1:00 am before they had Carly hooked up to an IV in the triage area. Teddy and Tamara were back there with her, my father and Jeanie and I slumped in the waiting room chairs, surrounded by anxious families whose children were probably in far worse shape than Carly. Around 3:00 am, the doctors made the decision to keep her overnight, having diagnosed her with severe dehydration due to an intestinal bug and diarrhea.

  We’d done the right thing by bringing her in, they assured Teddy and Tamara. Another six hours and her kidneys might have been damaged. Hearing this secondhand from Teddy when he came out to tell us that Carly was fine and we should head home, my father seemed to draw himself up straighter. Teddy pumped his hand.

  I told my father that he might as well stay at my place rather than make the drive back to San Rafael. He and I made it home around 4:00 am.

  ~ ~ ~

  In the morning, over Nina’s objection, the state called a physician from the medical examiner’s office to interpret the old medical examiner’s report and testify to the cause of death, establishing beyond a doubt that a homicide had occurred. In her cross-examination, Nina sought to establish that Caroline had been raped, and that the unknown rapist was the source of the semen in Caroline’s body, but the witness wouldn’t go where Nina wanted to go, insisting repeatedly that the evidence of forced sex was nonconclusive.

  “In other words, you can’t rule out that the physical evidence withheld from the defense in the first trial was left by someone who raped Mrs. Maxwell and then murdered her, correct?” Nina said, settling for what she could get.

  “Can’t rule it out, and can’t testify that it happened, either,” the doctor said. “I will say that if this were a rape prosecution, the fact of nonconsensual sex would have to be established in some way other than through the physical evidence.”

  In the end, Nina had to sit down, clearly frustrated at getting nowhere with this witness. This was the first tactical error of the trial. In a classic defense lawyer’s gamble, Nina had counted on being able to use the various injuries detailed in the autopsy report to develop evidence of rape through the DA’s own witness, so we hadn’t retained an expert of our own. This gamble had failed.

  After the medical examiner, Crowder rested without calling Eric Gainer or any other witness. Sitting in the gallery, I felt little relief, knowing that the danger of Eric’s testimony had only receded, not disappeared. Nina made a motion for a verdict of acquittal, a pro forma move at this point. Judge Liu denied it, as judges almost always did.

  “The defense calls Lawrence Maxwell,” Nina said, and any suspense regarding whether my father would testify was dissolved.

  Lawrence wore a gray suit over a white shirt and red tie. His mustache was trimmed, his hair wet combed. When he raised his hand to take the oath, the suit coat lifted like an awning across his shoulders. He’d never gone to bed last night. This morning I’d found him on the balcony of my condo with a full ashtray beside him, another cigarette going between his fingers.

  “Mr. Maxwell, I’d like to bring you back to June twentieth, nineteen eighty-three.”

  They walked through it, sticking closely to his testimony from the earlier trial, establishing Lawrence’s explanation of his whereabouts that day and his claim of innocence. He spoke without emotion of his shock upon learning of the murder, and when prompted by Nina, he denied killing Caroline.

  Under further questioning, Lawrence admitted that at the time of Caroline’s death, their marriage hadn’t been right for a long time, that she’d often seemed consumed by frustration, and that their arguments had occasionally turned physical. “At the time of her death, were you aware of your wife having an affair?”

  “No. It wasn’t until just a few years ago that I learned that.”

  “How did you discover this?”

  “My older son, Teddy, was acting as my lawyer, trying to get me a new trial. This one. He’s the one who found the pictures that the man’s wife had taken of them together. Good for her, I thought when he showed them to me. I’m glad she had someone. God knows I wasn’t bringing any joy to her life.”

  Again I had the sense of my mother as still present for him in a way she was for no one else. The way he spoke of her, it was as if they’d parted a few minutes before, as if he expected to see her again soon. Dot, beside me, looked as wan as if she hadn’t slept at all last night. She’d barely spoken to Lawrence this morning, arriving in court rather than meeting us at Nina’s office. I didn’t know if he’d made any effort to explain his absence last night. Watching Lawrence, I had the sense that the ghost of Caroline, my mother, having grown stronger day by day throughout the trial, had finally stepped forward and pushed her replacement and rival aside.

  He didn’t love her, I realized—not the way he’d loved Caroline. Their marriage, coldly anatomized here, had been a burning thing, flaming out in murder. His engagement to Dot, by contrast, was tepid, provisional. He’d been avoiding her not because he was afraid of being convicted, but because with each passing day of the trial he was delving deeper into the past, which, for all its horrific consequences, he somehow preferred to the present. Now, when at last he’d taken the stand, the more powerful hold Caroline had on him must be obvious to Dot.

  Nina moved on quickly. “Did you ever make any comment that any other person could interpret as a confession that you murdered your wife?”

  “No,” Lawrence said. “From the day I was arrested, I’ve been telling anyone who’d listen that I didn’t do this.”

  “Did you ever tell Russell Bell or anyone else, ‘It’s a terrible thing but it had to be done’?”

  “No. I would never have said anything like that.”

  “How about that your only regret was that your son was the one who found her?”

  His eye
s found me in the gallery. “I never said that to Russell Bell or to anyone.”

  She next had him talk about Bell, recounting how he’d written the brief that had gotten Bell out of prison. Lawrence testified that at one point he’d considered him a friend, but that his feelings toward Bell had changed. “When I got out of prison, I called Russell,” Lawrence said. “I knew he’d done well since his release, and he owed his freedom to me. He was working for a San Francisco city supervisor, Eric Gainer. I thought he might give me a lead on a job, but the third or fourth time I talked to him, he told me something I wish to God I hadn’t heard.”

  Nina paused. This wasn’t in their script. However, she had no choice but to go on. “What did he tell you?”

  Lawrence spoke softly. “The girl he’d raped, the one who was fourteen when he grabbed her off the street, the one he went to prison for. He said that he’d had her again and that it was even better this time than it had been the first time.”

  My surprise was followed by a surge that I recognized as an instinctive reaction to the truth. I hadn’t shared with my father what I’d learned from Sherrie and Eric. The only question was why Lawrence hadn’t told me this before.

  Crowder was on her feet, crying, “Objection. Hearsay, the stipulation. Move to strike this testimony from the record and instruct the jurors to disregard.”

  “We’ll take a fifteen-minute recess,” Liu said, his thoughtful tone giving nothing away. He asked the deputy to clear the courtroom. As the jurors filed out, Nina shot me an urgent question of a look. I nodded to her, trying to convey confidence, but she just looked angry, like I’d conspired with Lawrence to sandbag her. I couldn’t ask him about this now, as court rules forbade any communication with a witness while he was still on the stand. I couldn’t meet the eyes of Teddy or Dot. Each of us sat staring straight ahead, trying not to betray fear or any other emotion. But if we got through this with Lawrence’s credibility intact, then we’d have the missing piece of our defense, Bell’s motivation to lie.

  It was a mystery and a shame that we hadn’t had this piece of the puzzle before.

  “I don’t need to linger over the hearsay objection,” Liu said when the jurors were out of the courtroom. “I presume that the defense doesn’t necessarily intend the jurors to consider these statements for their truth. My bigger concern is where this line of questioning leaves the agreement we made before trial.”

  Nina took a breath like someone about to dive into cold water. “The district attorney violated the agreement first,” she said. “Yesterday, Detective Shanahan testified that Russell Bell feared for his life, that he was afraid of being a witness, and that Mr. Maxwell had carried out reprisals in the past. All through Ms. Crowder’s examination, the state and its only witness pointedly referred to Mr. Bell in the past tense. In making the agreement, I trusted that the state wouldn’t resort to the kind of innuendo we’ve heard. We need a certain leeway to repair the damage.”

  Crowder blew up. “What innuendo? The reason we’re using the past tense is because the conversations we’ve been discussing occurred in the past. We’re supposed to use the present tense? Bell says this, he says that?”

  “So you made a bad deal and now you want out,” Liu said to Nina.

  “We have to be allowed to mount a defense. This is our defense.”

  Crowder said, “They’re doing exactly what you said they couldn’t do. Trying to take advantage of Bell’s absence from this trial. This testimony has clearly been invented. Clearly, he knows Bell can’t come into court and contradict what he says. He’s broken the agreement by taking advantage of the fact that we can’t put Bell on the stand. We need to be able to ask him about the murder on cross-exam.”

  “It does seem to me that you’ve opened that door,” Liu said to Nina. “Let me ask this. Do you intend to continue in this vein?”

  Nina punted. “That depends on Your Honor’s ruling as to whether the agreement is still in force. As I’ve said, we need a certain amount of leeway so that we can develop Bell’s motive to invent the confession. We need some room to maneuver here.”

  “I’ll let you choose. Either I can shut you down, command the jury to disregard this testimony, and hope for the best, though we all know there’s no unringing the bell. Or I can rule that you violated the agreement, meaning the door’s now open for Ms. Crowder to cross-examine your client about Russell Bell’s death. Pick your poison. You’re the one who crossed the line, Ms. Schuyler, so I’ll leave the choice to you.”

  Nina glanced at Lawrence, still sitting in the witness stand, clearly wanting to pull him aside, but knowing that the judge would allow no private consultation. Lawrence nodded to her, and she took a sharp breath of frustration, then turned toward Liu again.

  Crowder didn’t know to quit when she was ahead. “They made a deal but they never meant to abide by it. You ruled that this wasn’t going to be a surrogate trial. Now, evidently, it is, and that’s what they’ve been planning all along. We’re not prepared to try Mr. Maxwell for a murder he isn’t charged with.”

  “That’s your own fault, though, isn’t it?” Liu said, turning his frustration from Nina back to Crowder. “You had every opportunity to charge him, if you’d had the evidence. Now you’re claiming you could have had more evidence with more warning? Well, I don’t see any indication that there’s any evidence to be had.”

  “I don’t believe we’ve violated the agreement,” Nina said. “The issue of what Russell Bell told my client isn’t a topic that we addressed before trial. If you’re going to let them talk about Russell Bell’s murder, then we’ll renew our motion in limine and ask for a mistrial, because I don’t think there’s been a proper foundation laid for the accusation that my client was involved in procuring Bell’s death.”

  Liu pondered this, frowning toward the back of the courtroom. “I’m going to give you latitude to conduct a limited cross-­examination, Ms. Crowder. I agree with the defense that the state hasn’t laid the groundwork to accuse Mr. Maxwell of murdering Bell. I’ll allow you to establish that Bell is deceased and that his death is the reason he isn’t here in court, so that the jurors realize that Bell can’t contradict anything Maxwell says. However, if the state implies that Maxwell was somehow involved in Bell’s death, I’m going to favorably entertain a motion for a mistrial.”

  “In that case, Your Honor, we request a day’s recess to further prepare for cross-examination on this subject.” Crowder’s voice was subdued. “We’ve kept to the agreement in good faith and assumed that the defense would do the same. We’ve been sandbagged.”

  “Denied,” Liu said. “We’re still on the record. Let me just observe that the defendant, through counsel, attempted to take advantage of Russell Bell’s death to introduce statements not addressed in our agreement before trial. The defense’s characterization of the state’s direct examination of Detective Shanahan is unfounded; there was no improper innuendo. The use of the past tense was appropriate, given that these conversations occurred in the past. Even so, I’m going to allow the defense to withdraw from the agreement. I’m also going to allow latitude to the prosecution to introduce Bell’s death on cross-exam. Just so the record is clear, the trial is taking this turn because of the actions of the defendant and his counsel.”

  Nina accepted this abuse stony faced. Never put your head in the lion’s mouth, I thought. With this speech, Liu was sending a message in a bottle to the appeals court, making sure that we wouldn’t be able to point to the unfair effect of any testimony relating to Bell’s death as grounds for overturning a guilty verdict.

  With the jurors back in their places a few minutes later, Nina returned to the podium. “Mr. Maxwell, before the break, you testified that Russell Bell told you that he’d ‘had her again’ and that it was even better than it had been the first time around. Did Bell explain to you what he meant by this statement?”

  “Those are the words he used.
He knew that I knew he was guilty of the crime he was in for, which was kidnapping a fourteen-year-old girl off the street in San Francisco, holding her captive, and raping her for three days. He’d told me as much while we were still inside. He wanted to gloat, I guess, show me how he’d beaten the system. He was an evil man, Ms. Schuyler.”

  The courtroom was still, the jurors frowning, staring at my father. It was impossible for me to gauge whether they were buying his story, whether they believed him or not. Every word from my father’s mouth fell now with the impact of stone on glass.

  Nina was working without a net, feeling her way forward, but it was crucial that she not betray her discomfort to the jurors. They had to believe this was all part of the script, not the monumental fuckup I knew it was. I alone knew that Nina had no idea what was coming next. “Did Russell tell you that he’d killed this woman?” she asked with apparent confidence.

  “No,” my father said. “He just told me that he’d had her. I took that to mean that he’d tracked down the victim of the first crime and had sex with her, probably raped her again. That was all he said. Then he laughed, told me I couldn’t repeat it to anyone, because I was his lawyer and anything he told me was privileged.”

  At the DA’s table Crowder sat shaking her head, making notes on a legal pad, trying to keep up but clearly not equal to the torrent of perjury she believed my father was unleashing against her prosecution. Sitting in the gallery, I felt myself shrinking into a cold dead center the size of a pea, wanting to beg with him to quit while he was ahead, just play it straight and stick to the script.

  Nina kept her equilibrium. “And how did you react to that?”

  “I said no way. I’m not a lawyer anymore. I told him that I was going to go to the police and tell them everything he’d told me. The police and his employer. That being Supervisor Gainer.”

  “And what did he do then?”