Alibi

by Sydney Bauer

  “James Matheson did not kill Jessica Nagoshi. He loved her, and he would have loved the child that he also lost at the hand of a so-far unidentified monster. Mr. Katz talked of sorrow, of loss and pain and regret, but unfortunately nobody—nobody—knows those feelings better than my client.

  “This seems to be a morning of promises,” he said, the slightest trickle of sweat now making its way down his brow. “And so allow me to make you a pledge as well. A declaration of innocence is one thing but verification is another, and as Judge Stein so rightly instructed, no decision should be made without the guarantee of proof.

  “And so, I promise you—each and every one of you—that I shall prove my client is innocent for one reason and one reason only. James could not have killed Jessica Nagoshi because Jessica Nagoshi was murdered by somebody else. And I . . .” he began, the room so still and silent that he swore he could hear the snow falling, softly, peacefully outside. “We,” he said, before gesturing at his fellow defense counsel behind him, “. . . know exactly who it is.”

  The courtroom exploded as David moved quickly back to his seat, the judge calling for order, Katz already on his feet accusing David of lying to the jury in his short but shocking opening address.

  “Your Honor,” the ADA screamed above the hubbub, “this is outrageous. Mr. Cavanaugh obviously has no respect for the good people of the jury. He insults them and he spits in the face of the police and the District Attorney’s Office who have been investigating this case for months.”

  “Calm down, Mr. Katz. Order,” Stein called to the room. “I am afraid Mr. Cavanaugh has every right to make suppositions in his opening statement, and now it is his lot to back them up.” Stein turned to David.

  “Mr. Cavanaugh, a word of warning, if I feel you are setting out on a path of unsubstantiated accusations, I shall shut you down before you have a chance to extend your finger and point.”

  But David was sure that Stein knew better. He could see it in the old man’s eyes. “We have the proof, Your Honor.”

  Stein nodded, a nod that soon turned into a shake. “All right, but I warn you, the road you travel is a dangerous one.”

  “I understand that, Your Honor.”

  “Judge, please,” urged the Kat.

  “You had your fair share of airtime this morning, Mr. Katz. So I suggest you move on and prepare to call your first witness. We shall adjourn for an early lunch and then hear the testimony of . . .”

  And then it hit him—as he remembered who the first witness was and realized what he had done to him. David saw it in the half-smile now spreading across the ADA’s face.

  “Detective Joseph Mannix,” said Katz, speaking to the judge but looking at David. “We shall be calling the Boston Police Homicide Unit Commander directly after lunch.”

  And in that moment David recognized the trap he had set for himself—and worse, for his good friend Joe.

  74

  “What the hell are you doing?” asked Arthur as he pulled David and Sara into a vacant office along the Superior Court corridor.

  “He set me up,” said David. “I had no choice.”

  “Bullshit,” said Arthur. “You could have conceded a loss. Katz got you fair and square, David, and you made it worse by taking the bait. This is only the first morning, we had time to make up ground.”

  “No,” David said again. They were pacing now, around a stranger’s office. “The odds are stacked against us, Arthur. We can’t afford to start in second place. At least I narrowed the playing field and . . .”

  “And created a massive problem for Joe.” Arthur took a breath, removed his glasses and rubbed his eyes. “Having a witness for the Commonwealth on our side is a huge advantage, but you just pissed that into the wind because you cannot stand to lose to your longtime foe.

  “Joe didn’t hear your opening, David, he assumes you stuck to the original. He has no idea you told the world that we know the identity of the real killer and Katz is going to grill him on it within the hour. You boxed him into a corner, David. This is nothing short of catastrophic.”

  In all his years with Arthur, David had never seen him like this. The man had a temper, sure, but this was more than that. Arthur wanted to save James as much as he did, and he could see their chances slipping away by the minute, thanks to David’s hatred for Katz, and his selfish need to challenge the clever ADA every step of the way.

  “I’m sorry,” said David at last, falling into the chair at the far corner of the office before burying his head in his hands. “This is my fault. I have placed us in an impossible position. I have promised something we can’t deliver. We have no proof.”

  “Then we’ll get it,” said Sara, speaking for the first time.

  Arthur turned to her as David lifted his eyes.

  “Enough is enough,” she went on. “Dwelling on what is done won’t get us anywhere. First, we have to work out how the hell we are going to save Joe’s testimony, and then . . . then we do everything in our power to nail the real killer. That is all that is left to us, and so that is what we will do.”

  The Kat began slowly. He was smiling and this in itself Joe found disconcerting. He started by asking Joe to state his position and give a brief description of his duties as Boston PD’s homicide chief. He even stopped along the way to compliment Joe on his “impeccable record,” which was enough to confirm to Joe that something was up.

  “Lieutenant Mannix,” said the Kat, now parading like a peacock before the court, “I want to begin by making one thing clear. You have been following this investigation from the outset, is that correct?”

  “Yes. The Wellesley police took the call, but myself and my partner Detective Frank McKay were the first homicide detectives on the scene.”

  “And you surveyed the crime scene, supervised the collection of evidence, organized the analysis of such evidence, conducted interviews first with Miss Nagoshi’s family and then, subsequently, with her colleagues, friends, associates?”

  “Yes.”

  “Sounds like an extremely thorough investigation to me, Lieutenant.”

  “Every investigation we undertake is thorough, Mr. Katz,” said Joe, stealing a quick glance at David.

  “Of course,” said Katz. “And I would expect no less from you, Lieutenant.”

  The ADA proceeded to run through Joe’s investigations, starting with his first interview with James at the Deane University boathouse all those months ago. Joe had expected this. He knew Katz would be determined to paint James as a liar from the get-go, and unfortunately, there was nothing Joe could do to stop him.

  “Yes, Mr. Matheson lied to us on that occasion,” Joe confirmed after a series of questions. “He certainly seemed to be uncomfortable given we approached him in front of his peers. Believe it or not, Mr. Katz, myself and Detective McKay have been known to trigger reactions of stress and discomfort even in the purest of innocents.”

  Joe said this in a manner that could have been read as an attempt at humor, but he made his point to the jury. He was giving James an out, an explanation for his lies in that first all-important interview. But Katz knew this too, and was not going to take it lying down.

  “Come now, Lieutenant, embarrassment is one thing but a blatant misrepresentation of the truth—to two police officers, no less—is most certainly another.” Katz stopped in front of the witness, shaking his head, his frame now captured in a lone muted sunbeam that streamed through the northern window, his shadow long and impressive.

  “Mr. Matheson told you he barely knew Miss Nagoshi, is that right?” he asked, picking up the pace.

  “Yes,” said Joe.

  “He said he had no idea why she would be sketching him,” said Katz as he moved to his desk to pick up Jessica’s sketchbook, displaying the impressive drawing for the jury before entering the sketch pad as exhibit number 1.

  “That’s right,” said Joe.

  “And correct me if I am wrong, Lieutenant, but the defendant,” he said, now turning to point a
t James, “went on to tell a blatant lie regarding his whereabouts at the time of Miss Nagoshi’s death.”

  “Yes, but . . .”

  “Yes or no, Lieutenant?”

  “Yes.”

  “He said he was having sex with another college student.”

  “Yes.”

  “A French exchange student by the name of Barbara Rousseau.”

  “Yes.”

  “But you spoke to Miss Rousseau and she assured you that this was not the case.”

  “Yes,” conceded Joe at last. “But after Mr. Matheson was arrested he made every effort to explain such misgivings. The young man lied about sleeping with an attractive fellow student, to two male friends no less. I am afraid we have all been guilty of such falsehoods, Mr. Katz. At least, I know when I was a young man . . .”

  “Lieutenant Mannix, we appreciate your offer to share your no doubt thrilling tales regarding your past sexual conquests, or lack thereof, but in the interest of this court, I would ask you to stick to the questions.”

  Joe nodded. Katz was not giving him an inch.

  “Did you have any explanation for the defendant’s repeated lies, Lieutenant?”

  It was a good question, because the obvious answer was that the defendant was trying to hide something.

  “Well,” Joe began, choosing his words carefully, “following his arrest Mr. Matheson explained that his falsehoods were founded in a desire to honor his girlfriend’s wishes to keep their relationship secret.”

  “But there you go,” said Katz interrupting, raising his right hand to scratch his head as if unable to solve the puzzle before him. “You see, this is what I don’t understand,” he said, looking up at Joe as if he might be able to shed some light on this frustrating conundrum. “When Mr. Matheson told these lies, when he stared you and your partner in the eye and told untruth after untruth, Miss Nagoshi was dead, was she not?”

  “Well, yes, but . . .”

  “So, you can see my problem, Lieutenant. I find it difficult to conceive why Mr. Matheson was so concerned about her wishes, so desperate to protect her from scrutiny, when she was no longer alive to protect. Having said that, Lieutenant, I do see the irony—the fact that the defendant has a propensity for keeping secrets—that he expressed a desire to protect the ideals of a life that he so heartlessly extinguished in one of the most brutal executions this state has ever seen.”

  “Objection!” screamed David. “Your Honor, the ADA is engaging in blatant grandstanding. Mr. Katz is taking advantage of the court’s license by attempting to weave his own agendas into the testimony of the witness, leaving the jury with the impression that the lieutenant has similar views in regard to my client’s motives.”

  “He’s right, Mr. Katz. The objection is sustained,” said an obviously annoyed Stein. “You know better than that, Mr. Katz, and if I catch you at it again I shall hold you in contempt. The jury will disregard the ADA’s last comments,” said Stein turning briefly to the twelve. “And you shall watch your step, Mr. Katz.”

  Katz, having made his point, straightened his tie and, wearing a fresh expression of humility, went on to ask about the physical evidence in the case. He asked about James’ Nike shoes, forcing Joe to concede that the partial print in the greenhouse was also a Nike, but did not push too far considering the shoe was a popular one and the FBI had failed to find any evidence of “greenhouse mud and/or residue” on the pair confiscated from James’ apartment.

  He skirted over the other physical evidence collected but only long enough to establish that while the police did not have evidence linking the defendant to the murder, they had not linked anyone else to the crime scene either. Finally, he reached the point he was so obviously impatient to get to—the one piece of evidence the defense would find it almost impossible to refute: the fact that James’ friends had given statements regarding a confession and the knowledge of those all-important shoes.

  He lumbered on about the confession for over an hour, making continual references to Jessica’s missing shoes—“the highly confidential piece of evidence” known only to the police and the District Attorney’s office. He harped on about how difficult it must have been for Simpson and Westinghouse to speak out against their closest friend, and touched repeatedly on their honesty and their strength of character in forgoing their instincts of loyalty to do what they knew to be right.

  By the end of Katz’s soliloquy, during which Mannix hardly got a word in edgewise despite David’s repeated objections that the ADA failed to allow the witness to answer the question, Katz had created an almost saintlike aura around the two boys named Simpson and Westinghouse. In short, he had done an exemplary job of paving the way for his two young “super witnesses” to take the stand in the coming days.

  And so, after seventy long minutes of having to swallow Katz’s interminable flattery of the two assholes known as Simpson and Westinghouse, Joe had had enough.

  “So, Lieutenant, allow me to clarify,” said Katz for the umpteenth time. “Messrs Simpson and Westinghouse appeared genuine in their efforts. They . . .”

  “Absolutely,” interrupted Joe. “The minute the reward was mentioned their eyes lit up like Christmas trees. Two million bucks is a lot of cash,” he said. “But I got the feeling that for these trust fund babies the thrill was more in the chase.”

  The crowd gasped. It was the first time the two boys had been described as anything but heroes, and it was the first time, in a very long time, that the press had seen a witness for the prosecution turn the tables on the confident ADA and slap him squarely in the face.

  “The thing is,” Joe went on before Katz had a chance to recover, “if I were a cynic, I might take the leap and consider these boys had their eye on the prize from the very beginning. I might even suggest they manipulated Mr. Nagoshi’s grief for their own benefit—some sort of power thing, being able to control a room of experienced legal and criminal authorities and earn some extra cash in the process.

  “But of course, we are not cynics, Mr. Katz, which is probably a very good thing, because if we were, we would have to admit to being had—by a pair of twenty-two-year-old college kids, no less.”

  The room erupted, David looked at Joe with a nod and Stein picked up his gavel and thumped it on the desk before him once, twice, three times.

  “Your Honor,” Katz cried above the hubbub, his voice a shaky, high-pitched staccato. “I request you demand this witness refrain from this scandalous conjecture. And I ask that his comments be struck from the record.”

  “Hold on, Mr. Katz,” said Stein, glaring out at the crowd as if daring them to give him a run for his money in the volume stakes. “Might I remind you that you cannot object to your own witness and as Mr. Cavanaugh is still firmly in his seat I suggest you accept the lieutenant’s testimony and move on. After all, Mr. Katz, you were the one who rightly described Lieutenant Mannix as an experienced, exemplary officer, and as such, I believe his observations should be heard.

  “Having said that, Lieutenant,” said Stein, now turning to Joe, “I might suggest you think carefully before you offer any further comments on the two boys in question. They are . . .”

  “I know what they are, Judge.” Mannix went to say “who” but “what” came out instead.

  Joe looked back to the ADA, unable to suppress a smile. He was challenging him and Katz knew it. Joe was daring him to throw another punch, and warning him of the potential repercussions all at the very same time.

  “Lieutenant,” Katz gathered himself before moving on, a new fire of intensity in his narrow brown eyes. “As your grasp of the players in this case seems so insightful, I feel I would be remiss in my duty if I failed to ask you one final question—or rather a series in the same vein.”

  Joe nodded, his eyes never leaving the ADA’s before him.

  “Do you have any other bona fide suspects?”

  Joe was completely taken aback. This was the last question he expected the Kat to ask. The ADA had spent the last few m
onths telling Joe there were no other suspects—and here he was, opening the door for Joe to suggest otherwise.

  Joe stole a quick glance at David, seeing the panic, the fear, the regret in his eyes and in that moment he guessed what had gone down at this morning’s opening—David had let the cat out of the bag, and now the Kat was determined to shove it back in.

  “No,” answered Joe at last, because it was the only thing he could say.

  “Did you ever, in the course of the investigation, consider another individual as the perpetrator of this heinous crime?”

  Joe was caught. A “yes” would be giving away their game, but a “no” would be a blatant lie, and considering he was under oath, this alternative was unthinkable.

  “We always consider a number of possibilities, Mr. Katz. That is our job.”

  Katz shook his head, as if signaling to the jury that he knew the lieutenant was avoiding the question.

  “Fair enough, Lieutenant, I realize the police came under a considerable amount of criticism for taking so long to solve this case so in all fairness to you I shall rephrase the question. Do you have any genuine proof that someone other than the defendant killed Jessica Nagoshi?”

  Joe hesitated. “No,” he said at last.

  “So, as far as the police are concerned the only viable suspect for the murder of Jessica Nagoshi is James Matheson.”

  “Well . . . yes.”

  “The defendant.”

  “Yes.”

  And Katz took a breath. “Thank you, Lieutenant,” he said with a smile. “We have no further questions for this witness, Your Honor.”

  75

  It was after eight. The sun had set almost four hours ago. The snow had slowed to a steady drift but the wind was still strong—enough to force a temperature barely in the positives down to a biting three below. David closed his eyes, allowing the cold crystals of frost to fall against his face. They were there and then they weren’t, attempting to land where they intended only to be swept up and taken on another journey by the determined offshore breeze.