CUTTING ROOM -THE-

by Jilliane Hoffman

  But Daria hadn’t answered her phone in three days. She hadn’t texted him since Sunday. Right before they’d become lovers, she’d told him she’d never missed a day of work. Not one damn day. At the time he’d thought that was plain nuts — one more alarm he should be hearing that his firecracker prosecutor was a little OCD when it came to work.

  ‘I’m putting a cell search out on her phone,’ Manny added as he dialed his lieutenant. ‘And I’m calling Orlando PD. I don’t want no one touching that room till we get a crime-scene unit in there.’ Something was wrong. Really wrong. He just knew it.

  ‘Jesus Christ, Detective, let’s not jump to conclusions now,’ Vance protested. ‘Especially crazy ones. We’ve had ASAs disappear before and the sky has not fallen in on them. All that’s happened is that they had a personal meltdown — some people can’t help folding when they find themselves under pressure.’

  ‘You mean like getting ready to take the heat for your bullshit decision to cut Bill Bantling a deal? Yeah, then she was under a lot of pressure.’

  Vance’s eyes became slits. ‘I’m not going to get into a war with you, Detective. I’m not saying Daria ran away from the pressures she was under — which included, I’m sure, any personal damage she or her family might have suffered in the catastrophic hurricane that we all just went through. And any pressure she may have felt in trying a very important, very difficult, very circumstantial murder that has commanded the attention of the press. What I am saying is please hand all this investigating off to your lieutenant or someone else in your department or in Orlando or Fort Lauderdale, because you and I need to focus on the hearing that’s going to be happening this afternoon.’

  George looked around to make sure no one was listening. ‘I have to ask this, Vance: was she on drugs?’

  ‘No!’ Manny erupted. ‘What the fuck?’

  George ignored the outburst. ‘The question’s going to be asked. Did she have a problem with drugs or alcohol?’

  Vance sighed and shrugged, replying to the Chief of Legal as if Manny wasn’t there. ‘I don’t know, George. I didn’t know her very well outside the office. I hear she liked to party with the young ASAs, but does that mean she had a substance abuse problem? I don’t know her well enough to say.’

  ‘What are you two saying?’ Manny slapped the wall behind him in frustration. ‘Jesus Christ! I can tell you that Daria did not have a substance problem. She didn’t do drugs and …’ He turned toward the door. ‘She didn’t even smoke. I’m not gonna sit around and let you smear her. I won’t. I know her better than anyone else standing here. And she didn’t just disappear to do lines or stretch her wings or get away from all of this shit and all of us. There is something wrong.’

  ‘I agree,’ Gretchen said quietly. ‘I never saw or heard of Daria doing drugs or stuff. I do know she was under a lot of pressure from this case, though.’

  This case.

  Manny suddenly remembered the conversation he’d had with Lunders. He looked through the door into the courtroom, where Talbot was laughing with his attorneys as his smiling mommy in a low-cut blouse looked on.

  It’s a real shame that cute little prosecutor of mine couldn’t be here … Little Lena needs to tend to that garden.

  He remembered Daria’s frightened reaction when he’d delivered Lunders’s cryptic message to her, when she’d told him of the roses that had been massacred in her backyard, her once-colorful garden reduced to a graveyard of stems and thorns. Manny had dismissed it at the time, but now …

  He looked back at Vance and his crony from Legal. He motioned to the courtroom. ‘Where the hell has he been for the past three days?’

  ‘Lunders? House arrest,’ answered Vance, turning himself to look in the courtroom. ‘You think he’s involved?’

  ‘Maybe … yes, I definitely think it’s a possibility.’

  ‘I’ll check right now with Probation, but he’s confined to his house on weekends and after-work hours, monitored twenty-four/seven with a GPS-equipped ankle bracelet that alerts his probation officer should he step one big toe off his family’s compound. If that had happened, particularly on the eve of a court hearing, I would have had a phone call, and this morning I would’ve had a condition of release violation sitting on my desk, along with a request he be taken back into custody.’ He reached for his cell and dialed. ‘This is Chief Assistant Vance Collier with the Miami-Dade State Attorneys’ Office,’ he began, as he walked off down the hall.

  Manny, Gretchen and George looked at each other for a long moment. It was Daria’s secretary who finally said what everyone was now thinking. ‘I hope she’s okay, is all.’

  Minutes later, Vance was back.

  ‘I’m headed up to Fort Lauderdale—’ Manny began.

  ‘The hell you are. Didn’t you hear Judge Becker?’

  ‘Yeah. And I also heard your lead prosecutor is missing.’

  Vance shook his head. ‘As cold as this might sound, Detective, we have a hearing in three hours. A hearing that’s happening whether we want it to or not. I’m not waiting for Daria to walk back in and save the day at one fifty-nine p.m. And I’m not going to lose this motion. If that happens, a murderer is going to go free, and I won’t let that happen. So you and I need to get familiar with what it is you’re going to testify to so we can at least get one scumbag back off the streets.’

  Manny looked in the direction of the courtroom. ‘Where was he?’

  ‘He was home all night with his mother,’ Vance replied quietly. ‘It’s just the two of them — his father’s overseas on a business trip. Your boy hasn’t even been going into work. His probation officer did a fly-by on the house last night; he was home and everything looked okay. Said the most Talbot Lunders did was watch movies and surf the Internet.’

  52

  For the first time in a very long time, Chief Felony Assistant Vance Collier was sweating in a courtroom, even though the air conditioning was working just fine. The motion to suppress the search warrant of Abby Lunders’s Mercedes was to have been handled by Daria. She’d never expressed a real concern with losing it. As a Division Chief, she’d handled her fair share of motions and knew the basic law when it came to challenging a warrant. But she was not here and, as Judge Becker had insisted, the show must go on. So Vance had done his best speed-read through Lunders’s motion, Daria’s response, the search warrant itself and Manny Alvarez’s accompanying affidavit. And the first thing he’d noticed was the very fine, very particular, and very troubling problem that everyone had apparently missed, including defense counsel, because he hadn’t raised it in his motion. For Vance, though, it was like looking at a misspelled word in the title of an otherwise perfect thesis. His brain kept returning to the mistake, again and again, wondering when everyone else was finally going to spot it, too.

  Through dogged detective work, Manny Alvarez had identified Talbot Lunders as a suspect in Holly Skole’s murder. Marie Modic — the witness who was now no longer going to be able to testify to anything because she was dead — had ID’d Talbot in the still-shot of the Menace surveillance video as the man she’d talked to the night Holly went missing. Marie Modic had given Manny the name ‘T’. She’d ID’d the Mercedes key. And, most importantly, she had given Manny the name Automotive Experts on the Mercedes key ring, which was what led Manny to the car dealership and Abby Lunders’s Benz. From there, Talbot Lunders was ID’d through his mother’s insurance records and then his driver’s license photo. Add in the video of Holly seen getting into the Benz, and there was more than enough probable cause to believe that the Mercedes might contain evidence of a crime, to wit: murder, and more than enough evidence to support the issuance of a warrant to search the car. Judge Paulus, the on-duty Circuit Court judge, had thought so, too, which is why he’d signed off on it. Perfect.

  Except for one little, tiny, major fucking problem. Like the misspelling in the thesis title, it all came down to one word. One cursed word …

  So that the whole system is not und
ermined because one judge’s idea of probable cause differs from another’s, a warrant that’s been signed off on by a judge is presumed valid. End of story. The only legal way for a defense attorney to attack a warrant’s probable cause — or lack thereof — would be to prove that the detective lied about the facts or intentionally misled the judge in the affidavit. In other words — fraud. Talbot Lunders’s misplaced argument was that since Marie Modic could not be questioned by defense counsel about what she had witnessed, any hearsay statements she gave Manny Alvarez were suspect and the warrant should therefore be tossed, along with any evidence that was found in the Benz. And since the evidence in the Benz was what led Manny to search Talbot’s boat, the fibers found there would go, too. There was no way the circumstantial case against Talbot Lunders could survive if the warrant was tossed.

  The warrant had to survive.

  And Vance had to avoid calling attention to the one-word landmine that was waiting to be stepped on. The fact Justice Joe hadn’t raised an obscure, hot-button issue that could get his client off didn’t mean an experienced judge wouldn’t see it.

  ‘The law is clear,’ Vance said, carefully choosing his words. ‘In order to challenge the warrant by attacking the veracity of Marie Modic’s statements, the defendant must show that the detective intentionally, or with reckless disregard for the truth, included a false statement in the affidavit. There’s been no evidence presented here today to support that, or that Detective Alvarez in any way misled Judge Paulus into signing the warrant. None whatsoever, Your Honour. The defendant has not met his burden and the warrant must stand. The defense can attack the veracity of a witness’s statements at deposition and at trial, but not through a motion to suppress.’

  It was like affirming the sturdiness of the roof of a house that’s got water damage in its basement. His argument was legally correct, and the roof was definitely sound, but there still lurked a major problem somewhere. If you started to rip apart the walls, you just might see the rotten plumbing.

  Judge Becker stared at Vance, her head slightly cocked, as though she was waiting for him to say something more. She waved off Joe Varlack, who’d opened his mouth to respond. ‘Of course, that can’t happen in this case, Mr Collier,’ she remarked coolly, ‘because Ms Modic won’t be giving a deposition or testifying at trial. She’s dead.’

  ‘She was murdered, Your Honor.’

  ‘Sad, but for purposes of this hearing, irrelevant. So the defense is stuck with what they’re stuck with?’ the judge mused. ‘You get what you get in Detective Alvarez’s warrant and you don’t get upset.’ She leaned back in her chair and tapped her finger on her copy of the motion. ‘Ms Modic is dead and the defense can’t question her about what she saw or how she saw it. They have no idea whether she was a reliable witness because they’ve never met her. They cannot assess her credibility,’ she finished, deliberately enunciating her words.

  Shit. Vance looked down at his notes on the podium. A drop of sweat had fallen from his forehead on to the paper. He watched it roll down the motion, smearing ink and distorting words as it did. The house was still standing, but here came the city inspector, knocking on beams and probing dark corners, looking for the damage she knew existed inside.

  The judge pointed her pen at Manny, who was seated at the state’s table. ‘Detective Alvarez, you’re still under oath. I have a question or two. Why did you refer to Ms Modic in your affidavit as “an anonymous source”? Why was she not named?’

  Bing. Vance closed his eyes. The judge had spotted the misspelling in the title, too. The building inspector was now inside the house and headed for the basement stairs.

  The questions that Vance had feared were now flying rapid-fire across the room. And of course, all that activity woke up Justice Joe from the nap his brain had been taking. Vance could see him flipping through notes, writing things down, his thin, yellowed ponytail draped over his shoulder like an old cat’s tail. He may not yet know exactly what the issue was, but he’d figured out there was one.

  ‘Because she was terrified that the defendant might find her if she was identified through the warrant,’ Manny explained. ‘Given what’d happened to Holly, I can’t say I blame her. If Marie Modic hadn’t escaped through the back door of that club that night, it might well have been her murder I was investigating.’ He looked over at Talbot Lunders, who was staring straight ahead, unmoved. ‘And now look how things turned out for her.’

  ‘Let’s not go there, Detective.’ The judge sighed and peered over her glasses at Vance. ‘Therein lies the problem, and you know it, Mr Collier. Oh, you definitely know it.’

  Vance turned red. One cursed word had changed absolutely everything in an otherwise airtight search warrant. A warrant that had yielded basically the only physical evidence in a circumstantial case. Anonymous. Out came the sledgehammers. The walls were coming down.

  ‘A search warrant is a powerful instrument,’ the judge continued, choosing her words just as carefully as Vance had, but he knew that was for the court reporter’s benefit. She was laying a record for the inevitable appeal. ‘It allows the police to go into a person’s home, business or vehicle and search for evidence of a crime. The affidavit that accompanies a search warrant must establish that probable cause exists to believe that, one, a crime has occurred and, two, certain evidence of that crime will be found in the location to be searched. Probable cause is established by facts. Those facts have to be set out in the detective’s affidavit, so that the judge can assess if there is probable cause just by looking at the affidavit itself. So the detective doesn’t have to drag before the judge every witness who provided him with information, the courts have established rules regarding the credibility of witnesses.

  ‘The problem we have with Detective Alvarez’s affidavit is that probable cause was established by the use of an anonymous source, namely Marie Modic. Ms Modic’s identity was not made known in the affidavit. It therefore was not made known to Judge Paulus. The courts have recognized a distinction between named citizen informants and confidential informants or anonymous sources. Information provided by a named citizen informant is presumed to be reliable, but information from a confidential informant or anonymous source is not. It may be an order of semantics in the case at bar, but that’s the law. The reliability of a confidential informant or anonymous source must be established independently and specifically set out in the affidavit. Particularly dubious is any information provided by an anonymous source, which is the legal equivalent of a tipster calling into the 911 line. There’s no way to independently verify the tipster’s credibility because you don’t know who he or she is.

  ‘In his affidavit, Detective Alvarez relied on the hearsay statements of an anonymous source — a source whose identity he actually did know, but was understandably trying to protect. Unfortunately, though, the reliability of this source was not established in the affidavit.’

  ‘Your Honor,’ Vance protested, ‘I know where you’re going with this and I have to interject before you get there. Even if Marie Modic was improperly named as an anonymous source by Detective Alvarez, it was an unintentional oversight. As you said, it’s semantics. She was obviously a citizen informant, because he knew her identity. But even if the court wants to treat Ms Modic as an anonymous source, the information that she provided was independently verified by Detective Alvarez when he searched Automotive Experts records and ultimately discovered Talbot Lunders’s identity.’

  The judge shook her head. ‘That’s not enough independent corroboration for me.’

  Manny felt his gut churn. The fast legal banter was like listening to two people argue in Russian — he wasn’t getting all of it, but he’d quickly figured out things were bad. It was hard enough to be sitting in this witness chair helplessly listening to suits duke it out over legal semantics while precious seconds ticked away and the world fell apart a couple of hundred miles to the north, but to see his case unravel because of some obscure legal bullshit that he maybe should’ve th
ought of but didn’t when he wrote up a damn warrant months ago was too much to take. All he saw was Daria’s face, all he could hear was the message she left for him three nights ago. He had to find her. Everything else seemed trivial in comparison; it was time to make everyone understand that.

  He stood at the state’s table. ‘Your Honor, Judge Paulus knew who Marie Modic was. He knew she was not just some tipster off the 911 line. I told him her name, all the information I had on her. He asked me why she was anonymous. And I told him what I just told you, about her being scared and all, and he nodded and said, “Smart.” Then he signed the warrant.’ Manny turned to Vance. ‘I’m sure Judge Paulus would remember.’

  Judge Becker shook her head again and picked up the affidavit, dangling it before her as if it smelled bad. ‘The law only lets me look at the four corners of the warrant. Any conversation you had with the issuing judge is outside these four corners.’

  Vance was shaking his head in resignation and Manny knew it was over. ‘This is crazy,’ Manny yelled. ‘I’ve been a cop for twenty-three years. This is totally crazy. Are you kidding me, Collier?’

  ‘This is the law. Take it or leave it, gentlemen. Or better yet learn it so that these problems won’t lead to the downfall of your cases. Maybe Ms DeBianchi stayed up in Disney for a reason, because she didn’t want to come back to the mess she’d left here.’ The judge sighed. ‘This court cannot overlook that the state has already committed serious Brady violations, including withholding evidence from the defense about similar murders. This court is deeply disturbed by the state’s lack of candor, and that includes you, too, Mr Collier. I watched you dance around the issue of Ms Modic being an anonymous source because you thought you could get away with it. Since Mr Varlack didn’t think to bring it up you weren’t going to, either. Well, the court doesn’t work that way. So if I toss this warrant, tell me right now — what is the physical evidence you have against Mr Lunders?’