‘‘And what is his method? He attacks in a very specific, yet devious manner, Your Honor. He destroys something that the object of his attack cares about more than anything else. For example, the testimony will show that he destroyed his sister’s professional skiing career, the thing she wanted the most. A beloved pet, the pet his mother loved. The list goes on and on. To commit these acts of malice amounts to a compulsion, Your Honor.
‘‘The last incident, in which Kelly Strong was almost killed, is fourteen years old. But the first incident is twenty years old. We’re talking about a period of several years. There is ample reason to infer that this same pattern has reasserted itself. So we’re not asking the Court to allow such evidence because it shows the defendant’s disposition to commit violent acts against family members, or to show bad character generally. The prosecution understands that such evidence is inadmissible.
‘‘What we are saying is that the method of killing Alex Strong was the same method used when the defendant became angry at other family members. Violence, Your Honor, a particularly ugly violence with a particularly malicious flavor, recognizable throughout the defendant’s life.’’
Flaherty scratched his cheek with his pencil eraser. ‘‘It is true that the exclusionary rules may be relaxed in a preliminary hearing,’’ he said as if to himself, but making sure that the whole courtroom could hear him. ‘‘Mrs. Reilly, your objections are all technical. In a preliminary examination perhaps we should allow this, in a condensed form perhaps.’’
Nina said, ‘‘If I may respond?’’ and Flaherty nodded.
‘‘Ms. Banning’s central point is that all the alleged acts fit a certain pattern. And what is this pattern? I wrote down the crucial sentence in the argument that’s just been made, Your Honor.’’ Nina read from her legal pad. ‘‘I quote: ‘He destroys something that the object of his attack cares about more than anything else.’
‘‘If that is the pattern, I ask counsel: how does it fit here? Let’s assume for the moment that the defendant does demonstrate such a devious pattern. So what did he destroy that Alex cared about more than anything else? His life? Give me a break. That’s not devious. They don’t claim that he broke Alex’s legs, or killed his cat, or even hurt his wife or something. He’s supposed to have killed Alex, a direct act if I ever heard of one. The so-called method or pattern of indirect malicious acts, even if there were one, doesn’t fit, Your Honor!
‘‘Furthermore, this pattern only is supposed to come into play when the defendant is angry at a family member. If so, there has to be some foundationary evidence that the defendant was angry at his brother! In the witness summaries I’ve read, there’s no evidence like that. In fact, the statement the defendant gave to the police, which will come in, indicates that Jim Strong held his brother’s head as he died in a tragic accident—’’
‘‘Wait!’’ Barbara said. ‘‘We do have a witness who overheard the defendant’s father tell the defendant that his job was going to be taken by the victim.’’
‘‘You mean Gina Beloit?’’ Nina loaded her voice with incredulity. ‘‘We have an eavesdropper with an agenda, that’s all we have,’’ Nina said. ‘‘Did the father make one move to replace him? Would Alex have accepted? Why blame Alex? Why not kill his father? No, Gina Beloit’s testimony will not a motive make. Without motive, a solid reason Jim Strong might have wanted to harm his brother, there is no trigger for this alleged pattern.
‘‘You can ferret out a hundred bad things any of us did as kids, but that doesn’t prove he perpetrated a heinous crime out of the blue against a family member.’’
Nina was using an old technique to humanize her client by identifying herself and others in the courtroom with him, while at the same time casting aspersions on the prosecution for acting like small, vicious animals. The judge was too savvy to fall for the obvious ploys, but she trusted unconscious influences to sneak into the decision-making process.
She shook her head, saying emphatically, ‘‘It’s just that the prosecution doesn’t have anything else to work with, Your Honor. What they really want to do with this evidence is to persuade the Court that Alex Strong was murdered. If the defendant looks like a bad enough guy, maybe that will make up for the fact that there’s no direct evidence of a murder and that the forensic work was lousy.’’
Flaherty was getting her real point: that Kelly Strong’s testimony would lead to frequent objections, lengthy argument, corroborative witnesses, and rebuttal witnesses. The hearing would get messy and would be significantly protracted.
Flaherty’s face lengthened.
Collier fidgeted in his seat, obviously itching to jump up.
‘‘We can finish her direct testimony in half an hour,’’ said Barbara, just as instantly responsive to the judge’s mood.
‘‘More like two extra days,’’ Nina said. She smiled at the younger attorney. Barbara fingered her gold and smiled back. She wore the composure as well as the color of a cardinal, Nina had to admit.
‘‘If I may—’’ Barbara began, but it was too late.
‘‘I’m not going to allow the testimony,’’ Flaherty said. ‘‘It doesn’t have much probative value. It’s old, and it just doesn’t seem to me to assist in demonstrating a modus operandi.’’
‘‘But—’’
‘‘So ordered. We’ll start the hearing at nine.’’
They went up to the clerk together to pick up the minute order. Barbara showed no sign that she had been bested. ‘‘What perfume are you wearing?’’ the clerk asked her.
‘‘Oh, do you like it? White Linen. It’s old-fashioned, but I love it.’’
‘‘And I dabbed on some Tom’s Natural Toothpaste before I left,’’ Nina said. They ignored her. The chat turned to fingernail polish, which Nina was not wearing. She left, having no hope of competing in that arena.
She passed Collier in the hallway. He shot her a glance, then swept past her, completely focused on Barbara.
So he was out, but not completely. Barbara had him lurking in the court for backbone, not that she seemed to need another one. Or was he still in charge?
Outside in the hall at the bank of phones, Nina called Artie’s office. She often left her cell phone in her car, and Sandy had been on her about using it frivolously, a finger’s distance from a pay phone.
His answering machine came on at the first beep.
‘‘This is the Law Office of Arthur Wilson. I have been called out of town and will not be able to return messages for some time. Please feel free to leave a message which I will return as soon as possible.’’ Artie’s voice sounded far away already.
She put in some more change. ‘‘Sandy? I just called Artie. His message says he’s left town! He’s due here in court! What’s going on?’’
Sandy said, ‘‘He left us a message too, but before eight o’clock so I didn’t get to talk to him. He says,’’ Nina heard the shuffling of paper, ‘‘there’s been a change of plan and he won’t be able to sit in with you.’’
‘‘Where did he go? What change of plan?’’
‘‘That’s all he said.’’
‘‘What’s his number?’’ Nina pulled a small notebook out of her bag and clicked a pen. ‘‘I’ll give that rat a piece of my . . .’’
‘‘He didn’t leave a number.’’
Nina clicked her pen uselessly. ‘‘Okay, Sandy, do me a favor. Go upstairs to his office and see what you can find out. Call me right back. I’ll be waiting.’’
She waited impatiently, the pleasure of winning her motion evaporating by the second. She had been depending on Artie to defuse her relationship with Jim, to take it back to a more even emotional and professional keel. Artie knew that she was depending on him for that, and to help her through the prelim. Where the hell was he? Should she ask for a continuance?
The pay phone rang once, a sharp sound in the empty hall. She grabbed it . . . ‘‘Sandy?’’
‘‘That’s what they call me.’’
�
�‘What’s the story?’’
‘‘You aren’t going to like this.’’
Nina looked at her watch. ‘‘Just tell me.’’
‘‘I moseyed up there. The door was locked but the landlord was just opening it. I asked him what happened to Artie. He said he didn’t know, just that Artie had cleared out. He said Artie’s secretary just left with her things and is gonna file a claim against him.’’
‘‘What?’’ said Nina, dumbfounded. ‘‘But—he had a lease!’’ she said, and hearing herself, felt foolish. As if that guaranteed his stability.
‘‘He broke his lease. The landlord wants to know if he can retain you to sue Artie.’’
Nina said, ‘‘I can’t believe he would do this! He made a commitment!’’
‘‘The landlord let me scope the place out. Looks like Artie left all his books and furnishings, but the personal stuff is gone.’’
‘‘But what about the files?’’
‘‘Gone wherever Arties go.’’
‘‘He’s gone? For good?’’
‘‘He’s down the road.’’
‘‘Okay. I’ll call later. See what else you can find out.’’
‘‘Kick butt, now.’’
She hung up. It was a blow, a particularly galling low blow that had found a vulnerable place and pounded her. Artie had been a friend, but he had also become her support in this case. She would never have done that to a fellow attorney, and had never anticipated such a possibility. He’d abandoned her!
What the hell had happened to him over the weekend? She tried to remember some hint she had overlooked—if he’d ever mentioned some ongoing problem in his life, but he always seemed so happy. He loved his wife; he had some money socked away; he was enjoying his modest office.
A health problem? He wasn’t young, and she assumed his wife wasn’t either. Her mood wavered between anger and concern.
Jim appeared at the top of the staircase. He walked over to her, jaunty in his parka, his hair slicked back, carefree and healthy as a young man about to hit the slopes or make time with a fresh new babe. He pointed at his watch and said, ‘‘Eight forty-five. Right on time. You look good.’’
‘‘Thanks.’’ Her expression must have warned him, because he said abruptly, ‘‘How did the motion go?’’
‘‘We won.’’
‘‘Thank God!’’ Jim said. ‘‘All right!’’ His face expressed pure pleasure. ‘‘So we’re past this hurdle.’’
‘‘But there has been a change in plans. Artie’s been —called out of town. Suddenly. He won’t be able to join us.’’
‘‘Oh. Okay then.’’
‘‘I was relying on his experience, Jim. I think we ought to ask for a continuance.’’
‘‘You mean, wait to get this over with?’’
‘‘Yes, at least a few days, until Artie—until I can talk to Artie.’’
‘‘Wait a minute. We’re the ones that insisted on having the second hearing right away, like we did with the first. You said it was a good strategy.’’
‘‘I still think that. But I don’t feel comfortable without Artie. We’d already decided which witnesses he would take, and he was going to be a big help with the coroner’s office especially.’’
‘‘But you were brilliant before, dealing with them. You’ve already been over the testimony. What’s the problem?’’
‘‘Jim, I wanted Artie. I don’t think I—’’
‘‘He was useless,’’ Jim said. ‘‘I mean, I hate to say it, but you’re fine on your own, Nina. Where’s your confidence? I don’t think Artie believed in me, to be honest with you. Maybe that’s why he left. Maybe he felt you’d pushed him into something he didn’t want to do.’’
Nina thought about that. She had pushed Artie. He hadn’t really wanted to come in.
If that was his problem, he had sure picked a moment to leave which would inflict maximum damage.
‘‘It’s five of,’’ Jim said. ‘‘Please, Nina. Let’s go ahead. I have to put this behind me. I can’t stand to wait any longer. I want to start putting my life back together.’’
Nina, who had many of the same feelings rioting at the moment within her, shrugged. ‘‘All right. I guess I can handle it. I’ve already been through most of it once, as you say, and I have all the files. It’s just—’’
‘‘What?’’
‘‘I can’t believe he ran out on me.’’ The place was filling up with the buzz of people. A man gabbing into a cell phone strode by, looking important.
She turned away from the phone and walked with Jim toward the courtroom, thinking. She could go in there, make a scene, destroy any progress she had made, and stall for time. She could forfeit any advantage the tight time frame imposed upon the prosecution.
No. She couldn’t take the chance that the case might be compromised. She’d just have to do it without Artie.
Because of the blizzard outside, the prelim started twenty minutes late, and even so, some of the subpoenaed witnesses still hadn’t arrived. Marianne Strong called to say she couldn’t get out of her driveway, which seemed pretty funny; the trailblazing snowboard champ was marooned at home due to snow. Philip Strong, too, called and received permission to report the next day.
They wouldn’t have been called to the stand today anyway, since the entire morning and afternoon were taken up with a tedious rehash of the first prelim. Barbara laid her groundwork impeccably. It was just that there was so little groundwork to lay. The same ‘‘amendment’’ to the original coroner’s report was covered; the same descriptions of the rescue effort and Alex’s death at the hospital were entered into the record.
In the afternoon when Ed Dorf, Doc Clauson’s replacement, got to the later forensic findings of the pattern on Alex’s skin and the black cotton fibers, he flashed a state-of-the-art laser pointer and professional-looking exhibits, but the slickness and high-tech doodads were not enough to demolish the defense. Nina had had a few extra weeks to shape her cross-examination.
When the dust cleared, two things were obvious: that the presence of the fibers on the bottom of the Tecnicas was suspicious, but might have occurred when the boots came into contact with clothing in the back seat of Philip Strong’s car that night; and second, that the pattern on Alex’s skin was too faint to convince a jury that a ski boot had caused it, especially after Nina finished grilling Dorf with her own photos of the rock striations where Alex had fallen.
Barbara’s uncanny composure never wavered. She was magnificently clinical. Nina’s respect for her increased by a hundredfold as she administered blow after blow and Barbara fought back steadfastly. No rolling of eyes, no outbursts, no anger, just the facts, elegantly presented.
When Barbara had more to work with, no one would be able to beat her. She must have been angry to be handed this case at the last minute, and Collier had hinted once that her interest in him had been personal. If that were true, her confident presentation was all the more remarkable.
Inspired by Barbara’s performance and mellowed by this calm, academic atmosphere, Nina, too, found herself in top form. As the stronger party, she wielded a scalpel, not an axe, vivisecting official witnesses so neatly that they didn’t realize their limbs were being lopped off. They started off whole, normal, credible. When she finished, they were like cartoon figures run through a chain saw, arms and legs dropping away as they stood up.
At four o’clock, as they were all tiring, the lights dimmed in the courthouse. The storm had taken down a line somewhere. Flaherty gave the usual admonishments to the witnesses and adjourned in the light of a couple of emergency lanterns.
In her time at Tahoe Nina had greatly enjoyed the weather, the heat and piney scents of summer and the sunny snowfields of winter, but this was the worst blizzard she could remember. The Bronco was about a hundred feet away in the parking lot, but the storm presented a few problems she, along with the other people in the courthouse who wanted to leave, didn’t quite know how to handle.
&n
bsp; First of all, the main doors to the outside had frozen. She waited along with everyone else for the back door to be dug out, almost half an hour, she and Jim off to one side of the hall, and the prosecutors and court personnel on the other. Then, the rarely used back path was two feet deep in the white stuff. As soon as the doors were opened, the wind tore her hat off and whipped her scarf around so she was again blind.
Led by a grim, chin-jutting deputy, they struggled like pitiful refugees toward vehicles buried up to the hoods in snow which had hardened into ice due to previous plowing. People scattered in all directions. Collier came over and helped Nina shovel out the Bronco. Through the snow, Nina could make out Jim twenty feet away doing the same thing on his car. Even Flaherty was out there with the deputy, trying to get the frozen door open on his Land Rover.
At last, they got the front door open partway and climbed into the compartment together. She turned on the windshield wipers and ripped off her hat, then turned the heater to full blast.
‘‘I’ve got to get to Matt’s,’’ she told Collier.
‘‘I’ll take you to the Reno airport.’’
‘‘He has a tow truck. If anybody can make it off the mountain, he can. He’s waiting for me.’’
‘‘Are you sure? I could—’’
‘‘No, really. I’ll be there in five minutes.’’
‘‘Call me from Reno so I know you mean it.’’ He kissed her and said, ‘‘Be safe,’’ then got out to go dig out his own car. She pulled out her cell phone.
‘‘I’m on my way,’’ she told Matt. ‘‘What’s the weather in Reno? Are they canceling Bob’s flight?’’
‘‘I just called,’’ Matt said. ‘‘Reno’s having some rain, nothing severe, and the planes are on time. Can you get here? I’ve got the tow truck gassed up and ready. I can come get you.’’
‘‘Let me get out onto the road and see.’’ Bob’s flight arrived in Reno at seven-thirty. She had thought she had plenty of time. Now she was starting to wonder.
Steering through the lot with her brights on, she picked up occasional silhouettes still digging out. Jim seemed to be gone. Barbara was just getting into her SUV, bedraggled and hatless.
Acts of Malice Page 33