Acts of Malice

by Perri O'shaughnessy

  Nina read it quickly. Heidi Strong had provided a confidential address on the North Shore to the district attorney, to be kept confidential, but she had left that address and could not be located.

  ‘‘The witness seems to have absconded, Ms. Reilly. Under the circumstances, this statement is all we have and it can come in, I would think,’’ said Judge Flaherty.

  ‘‘I would like to question the investigator about whether all efforts have really been made to find Mrs. Strong,’’ Nina said.

  ‘‘Oh, this isn’t a full-fledged trial, counsel,’’ Judge Flaherty said, frowning. ‘‘The investigator’s statement will do.’’

  ‘‘Very well. But there’s another very clear ground for objection. Because the person giving the statement is married to the defendant, the spousal communications privilege is applicable. The conversation cannot be admitted under Evidence Code section 980.’’

  ‘‘Mr. Hallowell, will you stipulate that the parties were married at the time of the conversation alluded to in this statement?’’ said the judge. He still had not looked down at Heidi’s statement.

  ‘‘I have no information to the contrary,’’ Collier said. ‘‘But as the Court knows, the strict rules of evidence don’t apply in a preliminary hearing—’’

  ‘‘But this is precisely the kind of situation where they should be applied in the Court’s discretion, Your Honor—’’ interrupted Nina.

  ‘‘The statement makes a strong showing of malice of the defendant toward—’’ Collier threw in.

  ‘‘Objection! Objection! He’s leaking the contents! This is a blatant attempt to prejudice the Court!’’ Nina shouted. ‘‘I request sanctions be applied to Mr. Hallowell for pulling that trick! He knows he’s got no chance of getting this statement in at a trial. We can’t cross-examine this lady, Your Honor. How can the Court judge her credibility—’’

  ‘‘Pipe down, Ms. Reilly,’’ said the judge. ‘‘Both of you, let me think for a minute.’’ He shuffled the two sheets of Heidi’s statement in his hands as though he had a great blackjack hand, playing with it, and Nina thought, he really wants to read it and if he does, Jim will definitely be bound over. But she knew Flaherty to be scrupulously fair, and he wouldn’t like the way Collier had deliberately brought in the malice bit.

  ‘‘Here’s the thing,’’ Flaherty finally said. ‘‘It sounds like section 980 is going to knock this statement out at trial, so why should I make a decision regarding the necessity of a trial based on it? It’s one thing to relax the rules of evidence, Mr. Hallowell. It’s another to relax them into nonexistence. Call it my great respect for marriage. Now you continue questioning the witness and keep away from the contents of the statement.’’

  ‘‘Very well, Your Honor,’’ Collier said. Nina totted up the score mentally. Statement not read, a goal for Jim. Judge knows Jim told Heidi something that indicated malice toward Alex, goal for the prosecution. Score: one to one.

  She glanced toward the chair beside her. Jim was looking pleased. He didn’t quite realize it was only a tie.

  Doc Clauson had been forgotten during this exchange. Now Collier turned back to him and Nina saw him tense.

  ‘‘When did you receive this statement by Heidi Strong?’’ Collier asked him.

  ‘‘Three days after the death of Alex Strong. The body had already been released and cremated.’’

  ‘‘And after receiving a copy of this statement, what did you do, if anything, in response to the information contained therein?’’ Flaherty’s ruling necessitated the klutzy form of this question.

  ‘‘I reopened the investigation. Now, how can I give my reasons for reopening if I can’t talk about this statement?’’ Clauson asked the judge, folding his bony arms in their short sleeves.

  ‘‘I’m afraid you’ll have to restrain yourself, Doc,’’ said the judge.

  ‘‘It’s not right,’’ Clauson said.

  Collier coughed, shifting attention back to him. ‘‘What new investigation did you perform?’’ he asked.

  Clauson unbent his arms. Nina could almost hear the creaking of the bones as they repositioned. He was getting old, fragile even, she realized to her surprise. She remembered her first case against him—how frightening it all had been, including him. Now, she saw through the thin skin to his vulnerabilities.

  ‘‘First,’’ Clauson replied, ‘‘I went over the autopsy photos, my notes, and my report again. Got interested in the photos that showed some patterning on the epidermis above the mid-torso area that I had originally attributed to the fall.’’

  He pulled out a group of photographs, which Nina had already received but which Flaherty would be seeing for the first time. Collier had them marked, and Flaherty studied them intently.

  ‘‘We have some blowups,’’ Clauson said. He nodded and a uniformed policeman began projecting slides on the screen in the corner of the courtroom. Several views of the faint striped pattern on skin appeared.

  ‘‘I looked at these again, and I knew we might have a problem,’’ Clauson said. ‘‘Didn’t look natural to me. So I examined the clothes again.’’ This time, the courtroom was treated to a gory frontal view of Alex Strong, naked except for the black shirt.

  Nina glanced over at her client, who sat quietly with his hands folded, studying the photographs, just following the action, seeming unmoved, or else keeping any emotional response to the photographs private.

  ‘‘Clothing was all wrong,’’ Clauson said. ‘‘Injuries to internal organs, but some tearing and damage to the front of the shirt worn against the skin. Since the back of the parka was all torn up from the fall, and even the back of the bibs which covered that area ripped pretty good—’’ He showed pictures of the bibs and parka. ‘‘How come, I ask myself, the fronts of the parka and bibs weren’t torn up? So I looked again at the patterns and I started thinking about what weapon might cause such patterning.’’

  ‘‘And did you find such a weapon?’’

  ‘‘Yup. Delivers foot-pounds with sufficient pressure to crush and tear the liver in half, common object worn while skiing—’’ He paused for dramatic effect, then said—‘‘person in ski boots.’’

  ‘‘Did you subsequently test any ski boots to determine if there might be similar patterning found?’’

  ‘‘We got the defendant’s ski boots, the ones he was wearing the day of the incident. Tecnica Explosion 10s. Checked ’em out. Have a look, Judge.’’

  A blowup of the soles of Jim’s Tecnicas. Short striped patterns.

  ‘‘We have the boots, already marked,’’ Collier said, and handed them over.

  ‘‘Seen these?’’ said the judge to Nina.

  ‘‘Yes.’’

  The clerk handed up the dirty boots one by one, wrapped in plastic, and Flaherty turned one of them over and studied the sole.

  ‘‘Didn’t trust myself, so I brought in a guy from the forensics lab in Sac for a second examination and report,’’ Clauson continued. Nina objected without success, and he passed along that report to the judge.

  Flaherty read the damning conclusion that the patterns matched.

  ‘‘Anybody can see it,’’ Clauson said, pointing to the screen.

  Jim’s emotions could no longer be contained. He squirmed in his chair, whispering, ‘‘Do something!’’

  ‘‘Objection. Nonresponsive. Move to strike that last sentence,’’ Nina said.

  ‘‘Overruled.’’ Flaherty never lifted his head. He was rereading the report.

  Having made his point about the patterning, Collier started in on the black fibers found on the soles. They, too, had been double-checked in Sacramento. An evidence bag containing the fibers was introduced. Collier led him smoothly through the scientific testimony.

  ‘‘A perfect match to the shirt,’’ Clauson concluded.

  The lunch hour had arrived, and with it Clauson’s big moment. Collier read his question from his notes, which, legalese aside, was: Based on your experience, based on the autopsy fi
ndings, based on the fibers, the skin markings, the state of the clothing, what was the amended finding of the Office of the Coroner?

  ‘‘Homicide,’’ Clauson said. ‘‘Turned over to the police for further investigation.’’

  ‘‘Hello, Doctor Clauson,’’ said Nina after lunch. She used the formal address intentionally. He preferred ‘‘Doc’’ because it entrenched him firmly in the old-boy network here. She did not want to propagate the impression that his authority should have a lick more import than the testimony Ginger was going to give.

  Her mood hadn’t changed. She felt ruthless, like a lioness stalking almost invisibly in the shadowy bush, eyes locked on a pale wildebeest in a red bow tie.

  ‘‘Hello.’’ The wildebeest gave her a testy hand wave.

  ‘‘Your testimony is that you made a major mistake the first time around as to cause of death?’’

  ‘‘Understandable. As I’ve been trying to explain—’’

  ‘‘You originally thought it was an accident?’’

  ‘‘Correct. But—’’

  ‘‘You had the autopsy photos and the clothing the first time around?’’

  ‘‘Yes.’’

  ‘‘You found nothing suspicious about the photos or clothing the first time around, did you?’’

  ‘‘Further evidence came to my attention. Mrs. Strong’s statement—’’

  ‘‘Did you ever talk to Mrs. Strong?’’

  ‘‘No. She didn’t want to talk to anybody.’’

  ‘‘So anybody can write down anything and you’ll jump up and change your findings and call it a homicide?’’

  ‘‘Objection. Argumentative.’’

  ‘‘Sustained. No need for posturing, Mrs. Reilly. There’s no jury present.’’

  The judge did not like her hardass pose. Fine, she would relax her shoulders ever so slightly. ‘‘Now, I’m going to show you some blowups of some patterns, sir, and ask you which if any of the patterns also seem to you to match the marks on Alex Strong’s skin.’’

  That drew a storm of argument from Collier which went on for almost fifteen minutes. In the end, Judge Flaherty’s curiosity got the best of him and he ordered Clauson to go ahead.

  ‘‘But I can’t see the blowups well,’’ Clauson said.

  ‘‘Here,’’ Nina said, handing him five eight by tens. ‘‘You can see these, can’t you?’’

  ‘‘Certainly.’’ He muttered to himself as he looked at the pictures which had been shot with rulers included for scale, in the same sharply contrasting black and white as the skin photos.

  ‘‘You want some sort of preliminary opinion?’’ he said.

  ‘‘That’s right,’’ Nina said.

  ‘‘They all look like the bottoms of ski boots. They all could match the photos of the skin markings.’’

  ‘‘Thank you,’’ Nina said. ‘‘Now please turn the first four pictures over, sir, and read to us what they represent. I will represent to the Court that our forensics expert, Ginger Hirabayashi, took these photos and identified them and is available today to testify to that effect if the court deems it necessary.’’

  ‘‘Okay, then, turn the first four over, Doc,’’ said the judge.

  Clauson turned them over one by one and read, ‘‘Dalbello ski boots, men’s size eleven. Lange ski boots, men’s size nine and a half. Nordica ski boots, women’s size eleven. Dolomite VXR ski boots, size ten.’’ He looked up. ‘‘I’d have to look at these photos in the lab, with better equipment, and I’d want a better look.’’

  ‘‘But isn’t it true that you first thought the markings were natural, and now find that they might match almost anybody’s ski boots?’’ Nina asked, and Collier objected, and off they careened into more argument. Finally Flaherty told them he’d heard enough and that he would take the demonstration for what it was worth.

  Nina said then, ‘‘I guess we ought to turn the last photo over, then, Your Honor, before I move on. Which, the Court will recall, also seems to the coroner to be similar to the skin markings.’’

  ‘‘Preliminarily,’’ Clauson added.

  ‘‘Preliminarily.’’ Flaherty nodded, and Clauson turned over the last picture. ‘‘Quartz mixed with granite, taken from rubbings of rocks at location of body,’’ he read. ‘‘What’s that supposed to mean?’’

  ‘‘The rocks where Alex Strong landed,’’ Nina explained to the judge, not bothering with Clauson anymore.

  ‘‘What’s she talking about?’’ Clauson said, looking toward Collier. Flaherty wasn’t having any trouble understanding it.

  Nina turned to Collier too. If he wanted more argument, she was ready.

  Collier’s mouth moved, and she was sure he was saying, ‘‘Same old shit,’’ to her. Offended, she turned to the judge.

  Collier was already talking. ‘‘I have to renew my objection. This demonstration is completely worthless. I could have balled up my dirty sock in a picture in just such a way that it would look similar. Similar, Your Honor. Not the same. Request permission to bring Doc Clauson back tomorrow after he’s had a real chance to compare these pictures in a scientific setting.’’

  ‘‘No problem, Your Honor,’’ Nina said. ‘‘We have already conducted our own review in a scientific setting, and will have our own expert witness ready to testify that the fifth picture, of quartz in granite, was taken personally by her at the site of Alex Strong’s death, and that it is just as likely to produce a pattern similar to that in the autopsy photo.’’

  ‘‘All right,’’ Judge Flaherty said. ‘‘Are you finished with your cross-examination of this witness for today?’’

  ‘‘Not quite,’’ Nina said. ‘‘I have a second demonstration for the Court.’’ She went to the brown Raley’s grocery bag on her counsel table, ignoring the disguised groan from the other table.

  ‘‘I’m not doing any more courtroom comparisons,’’ Clauson said hurriedly from the witness stand.

  ‘‘Absolutely not, Your Honor,’’ Collier said. ‘‘Absolutely not! Anything else she wants compared, he’ll take it back to the lab and compare it. That’s it! No way.’’

  ‘‘That might save time, so I have no objection,’’ Nina said. She removed five labeled plastic Baggies which contained swatches of black material. Clauson saw them and mouthed the word ‘‘fibers’’ to Collier.

  ‘‘That’s right,’’ Nina said. ‘‘Fibers. I wouldn’t want to surprise you or anything, Doctor, since you don’t seem to like surprises. For the record, these are swatches of black cotton material taken from, let’s see: Exhibit twelve a: black cotton socks, men’s, Miller’s Outpost; twelve b, black cotton T-shirt from Macy’s in Sacramento; twelve c, black cotton purse lining from Cecil’s Market, Stateline; twelve d, black cotton socks found in Alex Strong’s sock drawer, dirty socks as referred to earlier.

  ‘‘And last but not least, twelve e, black cotton boxer shorts belonging to Philip Strong. I’d like you to compare them to the cotton fibers found in the grooves of the Tecnicas as per your report.’’

  ‘‘Very funny, Judge,’’ Collier said. He had evidently decided to go further. Now he didn’t want Clauson touching Nina’s samples in the lab, either. ‘‘I’m not about to turn the State’s crime lab into a tool of the defense. She can get her own experts and put on her defense and the defendant can pay for all the fishing he can afford, but we’re not going to do it. The photos, okay, we’ll have a look at them. But chemical analyses— no.’’

  ‘‘I have to agree with that,’’ Flaherty said. ‘‘I see no reason for such forensics work to be carried out while the prosecution is presenting its case. However, Mr. Hallowell, Ms. Reilly has stated that she intends to present her own set of results at the time she puts on a defense. It might indeed save time for you to take the swatches and have a look at them now, to avoid a motion to continue the prelim when we get to the defense case.’’

  ‘‘But there isn’t time!’’ Collier said.

  ‘‘I will take the lack of due notice int
o account, I assure you,’’ Flaherty said. ‘‘Now. Doc, you may step down and I direct you to return for further testimony at nine A.M. tomorrow morning. We’ll take a ten-minute recess, and then you can call the next witness, Mr. Hallowell.’’

  Doc Clauson stuffed the swatches and photos into his briefcase and stood down. As he walked past Nina he gave her a hunted look, and she gave him the yellow lioness eye. He was going to work all night, and she was glad, because he had done enough harm and he never would again.

  16

  ‘‘CALL GINA BELOIT.’’ A long day was about to get longer, as a wholesome-looking young woman with short blond hair that looked a little like Heidi Strong’s was called into the courtroom and marched to the witness stand.

  ‘‘State your full name for the record,’’ Collier said.

  ‘‘Gina May Beloit.’’ A soprano voice. ‘‘I got a subpoena and I’m here under duress.’’

  ‘‘That does say it all, Judge,’’ Collier said. ‘‘Request the witness be considered a hostile witness under Evidence Code section 776.’’

  ‘‘So stipulated,’’ Nina said. Collier could now lead the witness, impeach her, and generally have more latitude in his questioning.

  ‘‘Where do you work, Miss Beloit?’’

  ‘‘I’m unemployed. Until a week ago I worked at Paradise Ski Resort. The lodge.’’

  ‘‘What were your duties there?’’

  ‘‘I was the day hostess. I led customers to their tables, took reservations, made sure they had their menus. Sometimes I took their orders, served food, poured water, cleaned off the tables, that sort of thing. I had to quit due to my boss, Mr. Jim Strong.’’

  ‘‘Little bitch,’’ Jim whispered to Nina at the counsel table.

  ‘‘Move to strike that last phrase,’’ Nina said. ‘‘Nonresponsive.’’

  ‘‘Overruled.’’

  ‘‘During what period of time did you know the defendant?’’

  ‘‘About three months.’’

  ‘‘And during this time did you overhear a conversation occurring regarding the employment status of Gene Malavoy, the night host?’’