counsel, no defendant.
"Your honor," I said, "I already have this case scheduled for grand
jury. He has no right to a preliminary hearing."
"But he's not indicted yet, is he? And now he's asking for a
prelim."
I tried to explain that wasn't how it worked, but Levinson wanted to
keep his docket moving.
"I don't see the harm, Ms. Kincaid, and I don't want to leave all
these people waiting here while the two of you argue about it. Friday,
JC-Three, at nine o'clock. I assume you can make it, Ms. Kincaid?"
"Of course," I said, since that was the only acceptable answer to a
question that had used you in the collective sense. Judges assume
prosecutors are fungible. If I had open-heart surgery scheduled for
that morning, I'd have to find someone else. Fortunately, I did not.
Neither did Slip. "I can clear my calendar, your honor."
"Very good. As for bail, nice try, Mr. Szlipkowsky, but, unh-unh, I
don't think so. Remanded."
I told myself there was nothing to worry about. Beating charges at a
prelim is unheard of.
I passed Russ on the way back to my office. I was beginning to think
the man lived in the hallway.
He looked at his watch when he saw me. "You spent an hour and a half
over there to do one arraignment. I need to find you some more work,
Kincaid."
I told him about Jackson's request for a prelim and the Friday hearing
date.
"You've got to be fucking kidding me. We don't do prelims."
"Try telling that to Levinson while he's behind on his docket."
"Well, we can't be ready to put on evidence by Friday morning. Did you
ask for more time?"
"No."
He looked frustrated.
"It would've been pointless, Russ, and it's just a prelim. Weapon,
threats, paint, statements. Done. It'll take two hours."
"Let's see," he said, ticking my points off on his fingers. "Hammer:
no blood tests yet; threat: every judge gets them, including whoever
you draw for the prelim on Friday; paint: you need an expert or else
Jackson's just a laborer with a can of beige paint; and statements: you
better hope they come in. I know your guys were out there just for the
warrant, but a lot of judges will say Jackson was under arrest the
minute the cuffs came out."
Jackson hadn't yet been Mirandized when he admitted knowing that the
police were there about the paint. His statements would be admissible
only if the court believed that the police had handcuffed Jackson to
restrain him temporarily during the search rather than to arrest him.
"You worry too much," I said. "The threats are motive, and I'll line
up a paint expert. That's enough for probable cause right there, and I
guarantee you the crime lab will find a blood match on the hammer. The
only problem is I'm supposed to have discovery to Slip by the end of
the day. There's some evidence suggesting the victim was having an
affair, and I think we need to turn it over."
I had been hoping to have more time to mull over Tara's revelation, but
Jackson's request for the quick prelim forced the issue. The failure
to turn over exculpatory information could lead to a reversal down the
road.
"Christ." Frist rubbed his temples. "Exactly what kind of evidence
are we talking about?"
I told him about Tara's visit. It was more than mere rumors; according
to her sister, Clarissa admitted she was contemplating divorce because
she was in love with someone else.
"You don't know who the someone else was?" he asked.
"Not with any certainty, but we've got a theory." I told him about the
calls to T. J. Caffrey.
He started shaking his head before I had even finished. "I'm not sure
I'd tell the defense about any of that. Even if she was having an
affair, there's nothing concrete tying it to the murder, and you don't
know for certain who the guy was. A few phone calls don't mean
anything."
I understood his argument. The rules on disclosure allow the
prosecution to hold back just about anything that's arguably innocuous.
But with the growing numbers of innocent men being freed from prison in
cases where the prosecutor sat on information, I tend to fall on the
side of broader disclosure.
I explained my analysis to Frist. There was both physical and
testimonial evidence suggesting that the victim may have been having an
affair, and the phone records showed that the calls between Clarissa
and Caffrey made up the bulk of her cell phone usage. I wouldn't turn
Caffrey's name over to Slip directly, but I'd give him the phone
records and a report about Tara s statement so he could decide for
himself if they were relevant.
"Suit yourself," Frist said, "but if this case goes to trial, and he
tries to turn your victim's supposed boyfriend into his one-armed man,
you'll regret it."
"You're dating yourself. Satanic cults are the 'other guys' of
late."
"You're pushing your luck, Kincaid, but I'll go along with you anyway.
Duncan's going to want to call Caffrey as a courtesy," he said
resignedly. "I'll tell Duncan; you take care of the husband. We don't
want him learning about this at the prelim."
Great. Getting information to Townsend meant a phone call to Roger. In
the hierarchy of pleasantries, I ranked it just beneath walking a plank
of nails into a shark tank.
"And, speaking of the prelim," I said, "tell me I can do it without
you."
"I'm afraid I've got no choice, Kincaid."
I started in on my spiel about how wasteful it was to use two attorneys
on a prelim, but he interrupted. "No. I meant I don't have any choice
but to let you go solo. I've got thirteen victims coming in on a
sex-abuse grand jury. Some chick who ran a home day care didn't notice
her boyfriend diddling all the kids."
I never wanted to get used to these cases.
"I'll do it by myself, then. Don't worry. It will be fine." I
started to walk away, then realized I'd forgotten something.
"Oh, can you do a death penalty meeting tomorrow at two? Duncan told
me to get everyone together."
"Yeah, I'm clear. And, for the record, Sam, I would have let you
handle the prelim anyway. You're doing a good job."
An unqualified compliment at the District Attorney's Office? For me?
Either Frist was a different kind of supervisor or I was becoming a
real jerk.
I picked up the phone to call Roger but couldn't bring myself to ignore
the message light on my phone.
It was Chuck. "Hey, babe. Good news back from the crime lab. Give me
a call."
I hate those messages that keep you hanging. Either tell me what you
need to tell me or ask me to return the call. I was eager for the lab
reports but felt obliged to get the call to Roger over with.
I dialed the first six digits of his number before tapping on the
handset for a new dial tone. A call to Susan Kerr would allow me to
procrastinate a little longer. I still needed to talk to her about
Tara's suspicions that Clar
issa was seeing someone else, not to mention
her little visit this afternoon from Townsend.
When I identified myself, she jumped right in.
"I'm so happy you called. I was going to see if there's anything I can
do after Townsend's press conference last night. I was in bed by then
and couldn't believe what I saw in the paper this morning. I didn't
even know he had a lawyer."
"Neither did we."
"Would it help if I called someone at the mayors office to support the
bureau? I know I was a bit critical of how the police handled the
situation with Townsend Monday night, but I think you're all doing a
great job."
I assured her that I appreciated the offer, but there was no need for
her to pull strings. "But, since you brought it up, do you have any
idea why Townsend would rail against us like that?"
"No, and it shocks me."
"He didn't mention it when he was at your house this afternoon?"
Wow. I hadn't planned on blurting it out that way. Very Perry
Mason.
Unfortunately, it didn't have a Perry-Masonian effect. Instead of
breaking down and sharing a lifetime of secrets with me, Susan Kerr
made me feel like shit.
"Are you actually having Townsend followed or something? My God, are
you watching my home? Maybe Townsend was right to rail against you, as
you put it."
I immediately launched into a back pedal, explaining that I had passed
her house on my regular run and happened to notice his car.
"If you had simply asked like a regular person instead of ambushing me,
I would have told you all of this anyway. What I was about to say was
that I can only chalk up the press conference to the fact that Townsend
just hasn't been himself since well, since, Clarissa was found. He's
been drinking more, and sometimes he'll start rambling incoherently. My
best guess is that someone from work might have suggested it, because I
know it didn't come from me or Clarissa's family.
"As for his visit this afternoon, if you must know, I initially
suggested it, hoping to pull out some of the old Townsend. When he's
in work mode well, everything else sort of fades away. I've been
helping him with some fund-raising for the hospital's pediatric wing
and thought it might help him to put his mind back into that for the
afternoon. But of course he told me about the arrest, and one thing
led to another. I wound up crying away another afternoon, while he sat
like a zombie on the sofa. So, no, we did not talk about the press
conference."
I didn't know what to say. I floundered around for an appropriate
apology, finally lamely offering that I was sorry for her loss.
She sighed. "I know. I can tell you care, and I do appreciate it. My
God, I thought it was hard when I lost Herbie, but to have a loss like
this I don't know how Townsend will ever get over it. Quite honestly,
I'm beginning to question his stability. He doesn't seem to be
thinking straight."
Her worries about Townsend made it even harder to share what I'd heard
from Tara. I omitted T. J. Caffrey's name for the time being.
"Boy, you are full of good news today, aren't you?" Her attempt at
levity didn't change the fact that she wasn't having any of it. "I
know I've already told you this," she said, "but Clarissa and Townsend
had a perfectly normal marriage. Well, about as normal as it can be
given how hard the guy works. But, trust me, if there was something
wrong, Clarissa would have told me. And, my God, if she was cheating "
She laughed at the mere thought of it. "She'd definitely tell me
before she'd say anything to Tara."
"I'm just trying to reconcile Tara's information with everything else
we've heard," I explained. "Why would Tara make something like that
up?"
"Perhaps she misinterpreted something Clarissa said. We all vent about
our husbands now and then, don't we? And Tara can be very
melodramatic."
"She seemed fairly certain about Clarissa's meaning," I said.
"Just because she was sure doesn't make her right. And even if
Clarissa was fooling around which I'm sure she wasn't what use is there
in bringing it up now? I understood from Townsend that you had a
mountain of evidence against this Jackson guy."
"We do," I said, "but we still need to cover our bases. I don't want
the defense springing something on us down the road because we were
afraid to ask the tough questions."
"Well, you've asked them, and my answer hasn't changed. Clarissa
wasn't like that, and I hope you'll leave it at that. If the police go
to Townsend with this, it could send him right over the edge."
Tara had expressed the same concern. Townsend might be the one in
charge at the hospital, but apparently, in other areas of his life,
those closest to him felt the need to be strong on his behalf.
"I know you're worried about Townsend," I said, "but I hope you're not
holding back information you think would hurt him. Tara already told
me that's why she initially didn't say anything about this."
"I am most definitely not holding back with you. If anything, I feel a
little guilty for mentioning Townsend's irrational behavior. But I
don't want to hear anything else about Tara's little suspicions. This
son of a bitch Jackson killed my best friend. You just told me a
second ago that it was basically a sure thing. But instead of anyone
asking me about her life or what she was like or how wonderful she was,
you just want to make sure she was a good wife."
I did my best to explain how important the questions were to the case,
and she did her best to say she understood. But I nevertheless hung up
feeling like the worst kind of bottom feeder.
I probably should have waited before calling Roger, but I didn't.
"Roger Kirkpatrick." I could picture him in an office high above the
Willamette, feet on his desk, answering the phone on speaker to avoid
wasting his valuable time on extraneous hand movements.
"Roger, it's Samantha."
"I assume you're calling about Easterbrook?" He still hadn't picked up
the receiver.
"Good guess, since I've never called you about anything else in the
last three years. Now unless you've once again got your hands where
they don't belong, pick up the damn phone and get me off speaker."
I heard a click and then his voice was directly in my ear. Perhaps I
should have left well enough alone. "I had hoped you'd either squelch
the hostilities, Samantha, or remove yourself from the case."
He had no idea how much I had squelched. There was a time when I
wanted to rip his guts out in public if not literally, then at least
through well-placed billboards announcing that Mister Communitarian was
a cheat and a liar. He liked to think his charitable donations and
board memberships made him a good person, but Roger Kirkpatrick was a
thief of the worst kind, no better than a con man. His grift began
with the hours he spent with Nike's newest spokesperson, the
aforementioned volleyball pro. It was only after weeks of inner debate
&nbs
p; that I had finally asked him if I needed to worry. Surely, he had
noticed that she was seventy-two inches of legs, breasts, muscle, and
tan. Negotiations, he assured me.
And, with that, I had given him my trust, not just in the general way a
wife trusts her husband, and not even just in the way I trusted Roger.
I had given him the trust I have in myself, in my own ability to judge
a man who looks me in the eye and tells me he's for real.
Yes, Roger had gotten off easy. If I seemed a little brusque, he was
going to have to deal.
"I wanted to make sure you knew that Jackson requested a prelim," I
said. "It's Friday morning. I'll need Townsend there at eight-thirty,
just in case."
"I know," he said. "I sent a paralegal over this morning for the
arraignment. I told Townsend to expect to be there. If you don't
mind, I'll be with him."
"Suit yourself. Easy billables, I suppose." Eventually, Town-sends
retention of a defense attorney would look terrible in front of a jury,
but it would be irrelevant to the judge who handled the prelim. "We
also would like him to meet with us before we make a final decision
about whether to seek the death penalty."
He assured me they'd both be at the meeting the next day.
"Is that everything?" he asked.
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