Missing Justice sk-2

by Alafair Burke

  area. Hell, if Metro doesn't expand the boundary, I wouldn't be

  surprised if prices actually fell out there."

  "You didn't say anything about Metro before. They're not really going

  to change the urban growth boundary, are they?" I asked.

  "Do you pay any attention whatsoever to the local news?" she asked.

  I'd gotten spoiled during the few years that my local paper was The New

  York Times, so I haven't given it up. In theory, I'm extremely well

  informed because I subscribe to it as well as the Oregonian. Grace,

  however, knew my habit of getting absorbed in the Times crossword

  puzzle before ever hitting the local paper's metro page.

  "Of course I do," I said. "I know I was featured prominently in

  several stories about a month ago. And Monday I watched Gloria Flick's

  report on the Easterbrook case, not to mention Shoe Boy's press

  conference."

  "Man, Gloria Flicks annoying."

  "Damn straight. It's the price I pay for being so impressively well

  informed."

  "So you must know that Metro is talking about expanding the urban

  growth boundary."

  Anywhere else in the country, that statement would sound a little like

  You must know that Spock's Starfleet service number was S179-276. But

  to people who live in my city, the urban growth boundary is the secret

  ingredient in Portland's warm gooey cinnamon bun. The city's strong

  neighborhood feel is what makes this place special, and those

  neighborhoods would be gone by now if not for Metro.

  I had read about proposals to expand the boundary by more than two

  thousand acres but assumed it would never happen. Grace informed me

  otherwise.

  "The assumption is that it will happen. The population has exploded.

  It will be a close vote, but everyone thinks the time is ripe for

  expansion, and the place where it's most likely to happen is in

  Glenville. The land outside the boundary there is nothing special, so

  the theory is that Metro can hand it over to developers without pissing

  off the greens too much. Unfortunately, the rest of the market shares

  that same theory. For the last couple of years, buyers have been

  gobbling up land in the area on the gamble that the growth's going to

  spread. And from what you told me about your office park, it's right

  at the line. I wouldn't be surprised if the same owner bought the

  adjacent rural land."

  "So if the line moves," I said, "the owner cleans up. And T. J.

  Caffrey's one of eleven votes."

  "Not only that, he's one of the swing votes. He's good on the

  environment, but he's pro-business. In exchange for his vote, he can

  probably set the terms about where the line gets moved."

  That was definitely a coincidence. I was suddenly looking forward to

  my morning meeting pardon me, my "courtesy sit-down."

  I called it a relatively early night so I could get some work done at

  home and rescue Vinnie from boredom.

  The only message on the machine was from Chuck. "If it's not too late

  when you get back, give me a call if you want me to come over.

  Otherwise, have a good night, and I'll talk to you tomorrow."

  Apparently, Grace wasn't the only one resenting the time I'd been

  devoting to Chuck. Vinnie seemed pleased when I stayed put and

  continued scratching him ferociously behind his goofy bat ears. When

  he finally started in with his familiar snorting sounds, I knew I was

  back in his good graces. I'd been so neglectful lately that I let him

  stay on my lap with his Gumby while I prepped the Jackson prelim. If

  only my father were so easy to assuage.

  Maybe it was the second martini, but my thoughts kept wandering to one

  of the seemingly inconsequential questions I would ask Ray Johnson as

  background. "Where was Clarissa Easterbrook's body located?"

  I fished my office phone directory out of my briefcase and left a

  message for Jenna Markson, a paralegal in the child support enforcement

  unit who was known for her dedication and investigative skills. Maybe

  she could satisfy my curiosity.

  Seven thirty a.m. was the time Duncan had promised, so there I stood on

  Friday morning in the office's front lobby, waiting for T. J. Caffrey

  and his lawyer. They finally arrived twenty minutes late, wholly

  unapologetic for the delay.

  I recognized Caffrey from the local paper, but I'd never seen him in

  person. Probably around fifty, he was known for his casual garb, but

  today he'd chosen a suit and tie that looked good with his

  salt-and-pepper hair. He was a bit of a chubster, but I could see the

  attraction.

  The man running the show, though, was Ronald Fish. A high-priced,

  high-power trial attorney, Fish was the guy CEOs called in a pinch,

  whether it was for corporate mismanagement or a sixteen-year-old girl

  in the backseat. He didn't even bother introducing himself. He was

  big enough in the civil litigation world that he assumed every lawyer

  in the city already knew who he was and maybe he was right.

  I checked my posture while I led them into the conference room. In my

  sling backs, I edged out the notoriously napoleonic power broker by a

  full inch. He straightened his trademark bow tie. I chose to

  interpret the nervous gesture as a very small leveling of the playing

  field.

  Make that a very, very small leveling. Fish was ready to go the second

  I shut the door.

  "I won't take up your time, Ms. Kincaid, because I know you've got a

  court appearance to prepare for. I was hoping I could convince you to

  support Mr. Caffrey's motion to quash the subpoena. Duncan sounded

  amenable to it when I spoke with him yesterday."

  I noticed that the spineless Mr. Caffrey had no problem letting his

  attorney handle the talking.

  "I believe what Duncan was amenable to was a meeting this morning at

  seven thirty," I said, glancing at my watch, "as a courtesy to your

  client. As you know, the decision whether to grant your motion is

  entirely in the trial court's discretion."

  I had spent the early morning researching the issue. There was no

  clear correct legal answer to Caffrey's motion. Most important from my

  perspective, there was no risk the court's ruling on the motion could

  lead to a reversal of Jackson's conviction down the road.

  "It seems patently obvious to me, Ms. Kincaid, that it would be in the

  government's interest to prevent this Mr. Sillipcow "

  "Szlipkowski," I corrected.

  "Yes, this public defender, from deflecting the court's attention from

  the very strong evidence against the defendant."

  "That's one way to look at it, but I plan on staying out of it."

  "I'm not certain how else one could possibly look at it."

  "Well," I began, "one might look at the defense's subpoena as an

  opportunity to make certain the state's not missing something we should

  know about prior to trial. If, for example, your client was having an

  affair with the victim and I'm not saying that he was then one might

  believe it better to get that news out in court during the prelim,

  rather than having a desperate defense attorney leak it to the med
ia in

  the middle of trial."

  I watched Caffrey glance at his attorney. Clearly he could tell this

  sit-down was going nowhere.

  "Or perhaps," I continued, "one might see this as an opportunity to

  make certain, outside of the presence of the jury, that the state isn't

  missing some off-the-wall defense theory that might take off at trial.

  Something like a connection between the victim being found in Glenville

  and Mr. Caffrey's power to shape the future of suburban development

  out there. I don't know, something like that. But, again, maybe it's

  better heard now rather than later."

  I didn't take my eyes off Caffrey's face. Nothing.

  I had no idea what his wooden affect said about his knowledge of the

  case or any possible connection between Clarissa and development in

  Glenville. But I knew one thing: I'd never vote for T. J. Caffrey,

  whatever his politics. There was no doubt in my mind that this man had

  some kind of relationship with Clarissa. I had spent the week watching

  Tara, Townsend, and Susan struggle with their profound grief. But here

  sat Caffrey observing this discussion like a Wimbledon match.

  I excused myself to prepare for court and walked them to the exit.

  News crews from all four local stations were waiting in front of the

  Justice Center. Fortunately, they weren't allowed in the courtrooms,

  so they only polluted what the attorneys said before and after the main

  event.

  Slip and Roger were giving competing statements. Slip was accusing the

  police and prosecutors (I guess that would be me) of rushing to

  judgment to comfort a nervous public that was demanding a quick arrest.

  Roger, on the other hand, was grateful that the police had finally

  gotten around to catching the right man.

  When the cameras rushed over to me, I gave them the standard

  prosecutorial line. We're confident about the evidence, wouldn't be

  going forward if we weren't, blah blah blah. Because of the ethical

  rules that govern the public statements of prosecutors, we never get to

  say the good stuff.

  Once we were in JC-3 before Judge Prescott, it was a whole other story.

  In a prelim, the prosecutor runs the show, since the only relevant

  question is whether the state's evidence, if believed in its entirety

  by a jury, could support a conviction. Slip most likely would try to

  get some free discovery by squeezing in as much cross-examination as

  Prescott would tolerate, but he'd know there was little to gain by

  grandstanding this early in the process. Roger was completely

  irrelevant, sitting next to Townsend with the other observers. I

  couldn't help but wonder how much he was charging.

  I wheeled my chair toward Slip. "You subpoenaed Caffrey, huh? I

  assume you know that he'll move to quash."

  "His lawyer wants to wait until I actually call Caffrey to the stand.

  He's probably making sure it's not a bluff. I told him I'd call him

  when you were done presenting your evidence, so they wouldn't have to

  wait."

  "Hate to break it to you, Slip, but I doubt your courtesy's going to be

  enough to win Ronald Fish over."

  "I'm a good guy. What can I say?"

  Prescott took the bench and called the case. Every other judge in the

  county lets the prosecutor call the case, and we do it in about five

  seconds flat, the words so routine that the court reporter has no

  problems keeping up with the pace. But Prescott treated even this

  routine function like a constitutional moment.

  When she was finally done, it was my turn for a quick opening

  statement.

  "Thank you, your honor. Deputy District Attorney Samantha Kincaid for

  the state. As your honor is well aware, the only question here is

  whether the state has sufficient evidence to hold the defendant over

  for trial on the pending Aggravated Murder charge. The ultimate

  decision regarding the defendant's guilt must be made by the jury at

  trial, and the jury is entitled to make its own determinations about

  credibility. Accordingly, the standard for today's hearing requires

  the court to credit as true all testimony that benefits the state, and

  to discredit any contradictory evidence from the defense, even if that

  would not be your own assessment of the evidence were you to sit in

  this case as a juror."

  I went ahead and cited the controlling cases for good measure. I would

  never spell out the governing law as thoroughly for a more experienced

  judge, but Prescott was still learning the basics of criminal law. The

  last thing I needed was for her to substitute her own opinion for the

  jury's because I forgot to cover Criminal Procedure 101.

  I gave a brief outline of the critical evidence and then called Ray

  Johnson to the stand.

  Ray looked dapper, as usual, in a lavender dress shirt and black

  three-button suit. Half that man's salary must go to the Saks men's

  department. He had removed the diamond stud from his ear for his

  testimony. Good call, given Prescott's transition from a corporate

  culture.

  We covered the evidence quickly despite our judicial assignment. I

  wasn't asking any questions that were objectionable, so there was no

  reason for Prescott to get involved.

  In straightforward question and answer format, Johnson and I covered

  the critical points: Jackson's pending case, the letters he'd written

  to Clarissa, the paint on Griffey and in Jackson's van, his employment

  at the site where the body had been located, his statements, and the

  weapon. My criminologist would cover the fingerprint and blood

  evidence. It was more than enough.

  I had decided to keep it simple. Since we weren't alleging a sexual

  assault as part of the charges, getting into the nonoxynol-9 and the

  ME's opinion that Clarissa had been undressed when she was killed would

  only muck it up. If Slip chose to get into those complications, he ran

  the risk of making his client look like a rapist and not just a

  murderer. Down the road, I'd have to worry about a jury thinking that

  Clarissa's nudity was inconsistent with Jackson's motivation of

  revenge. But even a judge as inexperienced as Prescott knew that rape

  was about exercising power over the victim, not sex.

  I wasn't surprised when Slip chose to cross. One of the only benefits

  to the defense of a prelim is the chance to test the state's case and

  its witnesses in advance of trial. Here, Slip could risk asking

  Johnson questions that might backfire if asked for the first time at

  trial in front of the jury. Some judges would cut off a prelim fishing

  expedition at the start, but I knew Prescott would give Slip some

  line.

  "Good afternoon, Detective Johnson. My name is Graham Szlipkowsky, and

  I represent Mr. Jackson."

  It sounded funny to hear Slip pronounce his full name. It had been a

  couple of years since we'd had a formal hearing together.

  "You arrested my client late on Tuesday night, is that right?"

  "That's correct. Technically, it was Wednesday morning."

  "When you woke up on Tuesday morning, did you believe that my client

 
; killed Clarissa Easterbrook?"

  "I believed it was a possibility, yes."

  Johnson was wasting his witness skills. He's a master of spin, which

  helps in front of a jury. In a bench hearing, it was better to cut

  through the crap.

  "But you didn't believe you had probable cause, did you? Or surely you

  would have arrested him."

  No doubt about it. Slip was good.

  "Prior to Tuesday evening, we had not yet made a determination of

  probable cause, against Mr. Jackson or anyone else."

  "You said you thought it was possible on Tuesday morning that Mr.

  Jackson killed Clarissa Easterbrook. Who else would you say that

  about?"

  "Any number of people," Johnson said. "We had not yet identified a

  suspect, so at that point anyone was a possible suspect."

  "How about the president of the United States. Was he a suspect?"

  "Not a likely one," Johnson said. He threw me a look to let me know he

  thought I should have objected, but he was going to have to sit through

  it. Judges are insulted by objections during a bench hearing. If the

  question's absurd, they believe they should be trusted to disregard it

  on their own. Slip's rhetorical question definitely fell within that

  camp.

  "What about the victim's husband, Townsend Easterbrook? Isn't it true

  that he was still a possible suspect?"

  "I wouldn't call him a suspect."

  Johnson was falling into the pattern that a lot of cops get into on the