Judgment Calls

by Alafair Burke

  That someone was me. I wrote down Lamborn’s information so I could add him to my witness list. Then I cut the call short so I could call Derringer’s parole officer to see if he knew anything else.

  He picked up the phone on the first ring. “Renshaw.”

  I introduced myself to Dave Renshaw as the DA who was going to pick up the Derringer case, then passed along Deputy Lamborn’s observation.

  “Well, I don’t like what he had to say about my penmanship, but the boy was certainly using his noggin, wasn’t he?”

  “I’d say so. Unless Derringer’s got some explanation, it looks like he knew he was going out for a victim and didn’t want to leave any physical evidence behind. I was calling to see if you had anything in your file that might help. Derringer hasn’t been out on parole for long, so if we could show that no one ever noticed anything unusual about Derringer’s appearance when he was in prison—”

  Renshaw cut me off. “Oh, I can do better than that. One of Mr. Derringer’s parole conditions is that he submit to plethismographic examination.” My silence told him I didn’t know what that was. “Standard for most sex offenders. A counselor hooks the guy’s private parts up to an EKG and then shows slides of various sexual images. By monitoring what gets someone like Mr. Derringer hot, the counselor can see whether the parolee’s preferred fantasy images are changing with treatment or whether he’s still perverted.”

  “Are you about to say what I hope?”

  “Yes, ma’am. Derringer was in—let’s see, I’ve got his file right here—yep, just last week for his initial examination, and I was there for it.”

  “And everything was normal down there?”

  “I don’t know about that, but, yes, I definitely would’ve noticed if he had shaved that area, and I didn’t see anything out of the ordinary.”

  “And what were the plethismograph results?” I asked.

  “Oh, the doctor would tell you that Derringer was responding to treatment. Derringer’s pulse got pretty fast during some of the violent porn and stayed flat and steady during what most of us would consider straight porn, but his johnson stayed limp the whole time. The doctor thought Derringer’s pulse raced out of nervousness that he might get caught getting off on the violence. But with what I know so far about this new case, I think Derringer was getting turned on but just wasn’t responding downstairs.”

  Definitely possible. We were wrapping up the call when Renshaw said, “Now this is interesting. I was flipping through the file while we were talking. I usually get the facts of my guys’ cases straight from the police report, but intake typed in something that must’ve come from the prosecuting attorney’s file. The notes say that Derringer’s brother, Derrick, had offered himself as Derringer’s alibi witness.”

  “This is on Derringer’s old case?”

  “Right, the Attempted Sod,” Renshaw clarified. “I didn’t realize that Derringer ever tried to go with an alibi, but it says here that Derrick was scheduled to testify that Frank was with him when the girl said she was attacked. Then our Mr. Derringer turned around and changed his defense. Instead of saying it wasn’t him, he argued the whole thing was consensual rough sex, trying to get the case bumped down to statutory rape. In the end, Derringer pled guilty as part of a plea bargain, but that doesn’t stop him from telling me at every opportunity that the girl consented. Everyone I supervise is innocent, don’t you know.”

  I thanked him profusely for all the information and assured him I’d be calling him as a witness. For now, I had other work to do.

  Renshaw had lodged a detainer against Derringer based on probable cause that he’d had unsupervised contact with a minor, a violation of his parole conditions. Derringer was booked over the weekend, so his case would be called in the Justice Center arraignment court this afternoon for a release hearing. Technically, a parole detainer is enough to hold a parolee for up to sixty days pending a hearing. I would have liked to keep Derringer in custody on the violation and wait for MCT to finish the investigation before I decided what charges to file.

  The problem was that the allegation underlying Derringer’s violation was essentially an allegation of new criminal conduct. In these circumstances, most local judges won’t hold the parolee in custody unless the State actually files new charges. So I needed to have a charging instrument ready in a few hours or the court might cut Derringer loose.

  One alternative was to issue the lowest-level charges, like assault, kidnapping, and rape. That would be enough to hold Derringer until MCT was finished. Once the grand jury heard the complete evidence, I could come back with an indictment for Attempted Aggravated Murder. I’d been burned by this method before, though. A smart defense attorney can convince a defense-oriented judge that upping the charges on a defendant after he has been arraigned on the initial complaint is prosecutorial misconduct. Under the law, it’s not, but that doesn’t stop a court from doing what it wants.

  This case would turn on Kendra Martin. Before I made up my mind about charges, I wanted more than Walker and Johnson’s opinion about her. During my stint in DVD, I’d dealt with a few street girls. Most of what Walker and Johnson said about Kendra sounded right. I wasn’t surprised that she would lie about the work and about her habit. And, if she was street smart, I believed she didn’t get into that car on her own. What bothered me was her initial response to Walker and Johnson. Detectives with their experience are used to the typical rape victim response. It’s normal for rape victims to be defensive and to direct their anger at police. But this girl, a thirteen-year-old, sounded like a nightmare. If I was going to go all out and guarantee myself a tough trial, I didn’t want to spend the next few months fighting with a teenage sociopath.

  I went to the law library and pulled a copy of the Physicians’ Desk Reference. The emergency room had injected Kendra Martin with Narcan to prevent her from overdosing. According to the PDR, the active ingredient in Narcan was naloxone, which reverses the effects of opiates and induces immediate withdrawal. Even for a relatively new user like Kendra Martin, the shock to her system would be enough to create a very unhappy camper.

  The effects of heroin last longer than the effects of naloxone. As a result, once the naloxone wears off, the person might have a short period where they’re still under the influence of the opiates. Those effects gradually wear off, and the person returns to their normal state.

  If Walker and Johnson were right about Kendra Martin essentially being a nice girl, the mix of Narcan and heroin would explain her initial crankiness, followed by a period of indifference.

  Having satisfied my main point of doubt, I decided to go with my gut. Walker was right. Derringer and his buddy got a thirteen-year-old girl to shoot up a boatload of heroin, then beat her, choked her, sexually assaulted her, and left her to die in the woods. The case would be tough to prove, but it was looking better now with the information from the jail and Renshaw. There was enough for an attempted aggravated murder indictment and enough to get it to the jury. And even if a jury didn’t go for the attempted agg, it could still convict on the kidnap, assault, and sex charges.

  I spent the next couple of hours reviewing the reports that had been written on the case so far. I was impressed. Most of the time, if you read a cop’s reports after the case has been described to you, the reports and the verbal summary don’t quite match up. Either something was omitted from the conversation or, more commonly, left out of the written reports. MCT’s good reputation appeared to be well deserved. I was pleased to see that everything I already knew, and nothing else, was in the reports. And I was irritated that I couldn’t stop myself from paying special attention to the quality of Chuck Forbes’s work.

  Chuck had joined the bureau after college and had wound up on the fast track into MCT after he obtained a murder confession that eventually led to one of Oregon’s first capital sentences. I took a special interest in Chuck Forbes for more personal reasons: He had taken my virginity from me in high school (OK, I kind of gave it to him), a
nd we had continued our bad behavior on and off throughout our youth. We bickered constantly back then, and we still argue today. However, I’d made a vow to stop mixing wild sex with the fighting almost a decade ago, the summer after my college graduation. Once I make a vow, I stick with it.

  We lost touch when I started law school in California, and my visits to Portland had dwindled and then stopped. But then the New Yorker I called my husband at the time took a job here, so I moved back. My friendship with Chuck and the accompanying spark had reignited when he showed up to testify as the arresting police officer in my first trial as a DDA. And now here I was, divorced and long past high school, trying to read his police reports without reminiscing.

  Deciding I needed to take a break, I put on my coat and walked over to the Pit for lunch. Tourists might assume that the Pioneer Place mall’s food court owed its nickname to its basement location, but they’d be wrong.

  My usual Pit selection is Let’s Talk Turkey, the only downtown deli that uses turkey from the bird instead of the pressed stuff. The good stuff you get on Thanksgiving beats slimy slabs of processed turkey food, hands down. However, healthy just wasn’t going to cut it today. I decided a corn dog on a stick and a chocolate milkshake promised the perfect balance of sugar and fat. It had been awhile since I’d indulged my weakness for food on a stick, but I soon remembered why I always felt guilty when I did. The poor girl working at Food on a Stick wore the same uniform that the unfortunate employees had been subjected to when I was in high school: short shorts, a scoop-necked tank top, and a hat that can only be described as phallic. Like the generations of Food on a Stick girls that preceded her, she had long flowing hair, thin arms and hips, and breasts that didn’t look like they wanted to stay in that little top. How does such a big company get away with never hiring a man?

  The floor of the food booth was elevated and surrounded on three sides by mirrors. She was bent over at the waist, bobbing up and down as she pumped the juice from a bucket full of lemons for the nation’s most famous fresh-squeezed lemonade. She seemed grateful to have a break from the thrusting to get my corn dog.

  As I walked away, I saw a group of prepubescent boys sitting on a bench by the escalator, enjoying the view of the resumed lemon-pumping. I knew they weren’t the first group of boys to cut class to hang out and watch a Food on a Stick girl at work. Hell, it was practically a rite of passage in America’s suburbs. That said, I still couldn’t help myself when I heard one of them speculate what the girl could do on his stick.

  Introducing myself as a deputy district attorney for Multnomah County, I flashed my badge to make sure they appreciated the enormity of my clout. “You all better get back to school or I’m going to have to page a police officer from the truancy unit to have you picked up.” The kids hightailed it up the escalator faster than you can say there’s-no-such-thing-as-a-truancy-officer-anymore.

  Feeling good about my lunch and my good deed, I headed back to the courthouse to draft the complaint about Derringer.

  * * *

  A criminal complaint is the initial document used to charge a defendant with a felony in Oregon. It’s simply a piece of paper, signed by the prosecuting district attorney, notifying the defendant of the charges that have been filed. Once the defendant is arraigned on the complaint, the State has a week to present evidence to a grand jury and return an indictment. Without an indictment, the complaint will be dismissed and the defendant will be released from the court’s jurisdiction.

  I drafted a complaint charging Derringer with Attempted Aggravated Murder, Kidnapping in the First Degree, and Unlawful Sexual Penetration in the First Degree. I also included charges of Rape in the First Degree and Sodomy in the First Degree, since Derringer could be held responsible as an accomplice for the sex acts of the other suspect, even if the second suspect was never caught. Finally, just so O’Donnell wouldn’t think I had completely disregarded his opinion, I added the Class C felony of Assault in the Third Degree.

  I walked the complaint over to the Justice Center so I could get a look at Derringer and argue bail myself. The Justice Center is a newer building two blocks down from the county courthouse. It houses PPB’s central precinct, a booking facility, holding cells for prisoners with upcoming court appearances, and four non-trial courtrooms, used for routine preliminary matters like arraignments, pleas, and release hearings.

  I took the stairs to JC-2, the courtroom where Derringer’s case would be called on the two o’clock arraignment docket, and handed the court clerk a copy of the complaint, a motion for continued detention of the defendant, and a supporting affidavit summarizing the facts. The JC-2 DA looked relieved when I told her I’d handle the Derringer matter myself. She was a new lawyer I’d met a few weeks ago at a happy hour. I suspected she was just getting used to the monotony of calling the misdemeanors and petty felonies that comprise most of the JC-2 docket. God help her if she had picked up the Derringer file to find an Attempted Agg Murder complaint.

  Judge Arnie Weidemann was presiding over the docket today. It could have been worse. Weidemann was a judge who truly stood for nothing. He was neither a state’s judge nor a liberal. He didn’t write law review articles expounding on either judicial activism or conservative restraint. He was interested in neither outcome nor analytical process.

  If he felt strongly about anything, it was keeping his courtroom moving. Quick from-the-hip decisions during the juggling of a crowded docket were his forte. Weidemann, therefore, was a terrible judge to draw if you had a complex legal issue that required sophisticated analysis. He wasn’t bad, though, for what I needed today. A superficial take on Derringer’s case would weigh in my favor on pretrial issues like release and bail.

  When it was time for Derringer’s matter, I took a moment to look over at him while the MCSO deputy accompanied him to the defense table. His hair was shaved down to a shadow not much darker than the one left on his face from the night in jail. A tattoo of a vine of thorns hugged the base of his skull. Everything about him looked chiseled except for the acne scars cratering his cheekbones. His strong jaw was clenched, his lips a cold slit. His eyes appeared to register nothing as he stared straight ahead, seemingly unfazed by his current circumstances.

  Then his head turned slightly as I approached, and I realized he was watching me out of the corner of his eye. It was unnerving, but I went ahead and called the case. “The next matter is State of Oregon v. Franklin R. Derringer, case number 9902-37654. Samantha Kincaid appearing for the State. The defendant is in custody on a parole detainer for having unsupervised contact with a minor. Based on the same incident underlying the parole violation, the State now charges him with Attempted Aggravated Murder and other substantive crimes in a six-count complaint that I have forwarded to the court. The State requests that the defendant be held without bail.”

  An audible snort from Derringer revealed his disdain. He had already filled out an affidavit of indigency, requesting the court to appoint a state-paid attorney on his behalf. The court now made a finding that Derringer qualified for court-appointed counsel. Then a hard case got even tougher. The judge appointed Lisa Lopez to represent him.

  Public defenders generally fall into one of three different camps. There’s no diplomatic way to describe the first bunch. They’re bad attorneys who wind up in the public defenders’ office by default. Whether they’re devoted to a specific client or to the larger cause of criminal defendants’ rights is, in practical terms, irrelevant. Even at the top of their game, the performance of these lawyers is dismal—so pathetic, in fact, that most prosecutors will admit it takes the fun out of winning.

  A second crop of public defenders consists of what I call the straight shooters. These attorneys have been around long enough to understand the realities of the system, and axiom number one is that the overwhelming majority of criminal defendants are guilty. The straight shooters review discovery materials early on and decide whether the client even stands a chance. If he doesn’t (and most don’t) the def
endant will soon get a heart-to-heart from his attorney. The straight shooter will explain the way things work to his client and then negotiate the most favorable plea deal possible.

  If the client has a serious defense, or if there is a real possibility of having material evidence suppressed, the straight shooter will take the issue to court and do a good job trying it. He or she will always deal honestly with the prosecuting attorney.

  The second camp of defense attorneys is my favorite. Lisa Lopez was not, however, among them. She belonged to the third group, the true believers. Card-carrying members of this crowd represent the most naive demographic still in existence. It doesn’t matter how long they’ve been around trying cases, these attorneys are fundamentally incapable of distrusting their clients. Don’t misunderstand me: There’s plenty of distrust to go around for police, victims, witnesses, and prosecutors. But they always believe their clients.

  Lisa Lopez was the truest of the true believers. Everyone knows that police sometimes make mistakes, overstep their bounds, and even engage in grossly unethical and illegal acts of malice. Yet somehow these relatively rare instances of misconduct happened to transpire in 95 percent of Lisa Lopez’s cases. And, of course, all her mistreated clients were also innocent.

  Lopez stepped forward and obtained the court’s permission to meet with Derringer and review the complaint and affidavit before she argued the release motion.

  For the next fifteen minutes, I pretended to review the file while I looked at Lopez and Derringer huddled together like teammates on a high school debate team. I determined he was articulate, because Lisa was scribbling frantically on her legal pad. In a crunch, most attorneys will cut the client off when it’s obvious the time would be better spent reviewing documents.

  Lisa was impressive. When the judge took us back on the record, you would’ve thought she’d had the case for a week.

  “Your honor, this case is grossly overcharged. Ms. Kincaid’s affidavit lacks any direct evidence that anyone attempted to kill the alleged victim in this case. Moreover, Mr. Derringer shouldn’t even be here. They’ve got the wrong guy. My client cooperated with police. He told them he was at his brother’s house at the time of the incident. His brother has corroborated that information. Finally, Mr. Derringer is not a flight risk. He was born and raised in southeast Portland, and his family still lives here. There simply is no basis to hold him without bail. We ask that he be released on his own recognizance.”