Motion to Dismiss (A Kali O'Brien Legal Mystery)

by Jacobs, Jonnie

  Since I had the house to myself for the evening, I worked at the dining room table, which offered better light and more space than my cramped desk downstairs. I turned on the stereo and slipped in a Miles Davis CD. Then, kicking off my shoes, I got down to work.

  With the hearing only four days away, I needed to transform my rambling notes and thoughts into something concise and compelling. It wasn’t going to be easy.

  Whatever small hope I’d had of finding a major flaw in the prosecution’s case had pretty much evaporated—and with it, our chances of getting the case dismissed pretrial. While the evidence against Grady wasn’t overwhelming, it was strong enough. There was no doubt in my mind that if I offered only a routine challenge to the state’s case, the judge would find probable cause to try Grady for murder.

  I’d been clinging to the hope that Hal might come through with something solid about Tony Rodale or Eric Simpson. Or that Xavier would come forward with an eyewitness account that exonerated Grady.

  They were all long shots, and I’d just about given up. Hal’s call today was encouraging. He wouldn’t have phoned on a Saturday if it wasn’t important.

  <><><>

  Some days I wake up exhausted. For no particular reason, I feel spent and oddly out of sorts. As though my body had been dismantled during the night and reassembled with a slightly different fit.

  Sunday was like that. My jaw ached from grinding my teeth, my head was filled with vague memories of an unsettling dream, and my neck was stiff.

  I’ve learned from experience that it’s best to try to shake the feeling by ignoring it. So after breakfast I forced myself down to the gym, where I walked the treadmill and rode a stationary bicycle for five totally uninteresting miles, and then put my muscles through the wringer at exercise class. When I felt I’d had about as much as I could handle, I took a shower and drove to Sam Wong’s grocery in the hope of locating Xavier.

  By the time I parked, half a block from the store, I realized that a warm Sunday in early spring was probably not the optimal day for finding teenage boys at the local grocery. Nonetheless, I did stumble across a handful of them sitting on the sidewalk outside, smoking. They had shaved heads, multiple facial piercings, and the vacant stares of misspent youth.

  Two knew Xavier. But they didn’t know where he was right then or where to find him. They promised to tell him that I wanted to talk with him. I didn’t think they’d remember for longer than five minutes.

  <><><>

  “You got a call,” Bea said when I got home. “Someone from the police department. I wrote his name on the pad by the phone.”

  On a Sunday? I was surprised. Maybe they’d found a suspect in our break-in. It would certainly be a relief to have that off my mind.

  I dialed the number Bea had written down, then waited to be connected with Sergeant Fogerty.

  “Are you acquainted with a Harold Fisher?” he asked without preliminaries.

  Hal. I felt it in my chest, like a rolling blast of thunder. Bad news of the worst kind. “Yes,” I managed to say. “He’s a friend of mine.” My voice sounded foreign to my own ears.

  “I’m sorry to have to tell you that Mr. Fisher was killed last evening.”

  I sucked in a lungful of air, feeling suddenly as though I were suffocating. “Killed?”

  “He had your card in his pocket,” Fogerty continued.

  When I didn’t say anything, he continued. “I realize this is painful for you, but we need a positive in-person identification. Do you think you could help us with that? I can send someone over for you.”

  My mind was several beats behind the sergeant’s. “Killed?” I repeated. “How? Was there an accident?”

  Sergeant Fogerty cleared his throat. “He was shot, ma’am.”

  Chapter 34

  The morgue is not a comfortable place to spend time, even on a lovely spring afternoon. Or maybe especially then, when the contrast between life and death is underscored so starkly.

  Sergeant Fogerty was kind, though, and patient. He didn’t try to hurry me, and he didn’t turn gruff, or paternal, the way some men do when confronted with an emotional situation.

  “You ever done this before?” he asked, leading me into a small room at the end of a downstairs hallway.

  I shook my head.

  “We use closed-circuit TV these days. It helps a little. Still, it’s not pleasant. You going to be okay?”

  “I think so.” I was grateful I didn’t have to stand close to an actual body.

  Fogerty darkened the room and angled a television on a metal cart so that I could see it.

  “You ready?”

  I nodded.

  The screen flickered and then settled on what looked to be a sheet. After a moment, two rubber-gloved hands raised the sheet just enough to accommodate viewing.

  Steeling myself, I lowered my eyes to look, tentatively at first, the way you test the temperature of hot water. I turned away quickly and then, when the initial shock had worn off, looked back again. Hal’s skin was colorless, his expression frozen, but his face was unmarked and clearly recognizable.

  “It’s him.” Where the sheet angled up, I could see the upper portion of Hal’s skinny shoulder and pale, hairless chest. He seemed much frailer in death than he had in life.

  “You’re sure?” Fogerty asked.

  I nodded again.

  He touched my arm and turned on the light. “Thank you.”

  “That’s it?”

  He nodded. “All we needed was a positive identification.”

  “Do you know what happened?” I asked. “Or why?”

  Fogerty led me back upstairs. “Not really, certainly not the ‘why’ part. A couple out walking their dog found the body late last night. Your friend was slumped over the steering wheel of his car. Shot. Had probably been dead for several hours by then.”

  The image of Hal bleeding and crumpled in pain while I was at home waxing envious about his social life loomed large at the back of my mind. I tried to ignore it.

  “Where’d they find him?” I was still reeling from the news of Hal’s death, trying to fit the pieces so that they made sense.

  “The car was on Belleview,” Fogerty said. “By the lake.”

  I leaned against the wall. “Is that where he was killed?”

  “Looks that way.”

  “Any leads?”

  Fogerty shook his head. “It’s most likely a case of being in the wrong place at the wrong time, but we won’t know for sure until we get further into the investigation.” He paused and looked at me kindly. “No offense, but did your friend by any chance do drugs?”

  “No. At least I’m pretty sure he didn’t.” Not unless you were counting tobacco and sugar. Hal wasn’t even much of a drinker. “Why? Did you find something that makes you think he did?”

  “Just wondering, is all. That’s most often what’s behind this type of crime. He have any family?”

  “He has a brother,” I said, trying to remember what Hal had told me about him. “Same last name. He teaches at one of the schools back east. Amherst maybe, or Williams. As far as I know, Hal didn’t have any other family.”

  “We’ll try to reach the brother.” Fogerty shook my hand, touching my shoulder at the same time. “Thanks for your help. I know it wasn’t easy for you.”

  <><><>

  From downtown I drove to Lake Merritt, five minutes away, and parked near the spot where Hal had been killed. The afternoon sun was still bright, and the sky unclouded. But the day seemed dulled by a haze of my own coloring. Only a few days earlier, Hal and I had walked the perimeter of the lake. And now Hal was dead. It didn’t seem possible.

  Sorrow swelled in my chest. I closed my eyes and let the tears come. After fighting them so long, it felt good to let loose and cry.

  I remembered meeting Hal for the first time when I was fresh out of law school. We’d been on opposite sides of a case then, but he’d taken me to lunch anyway and given me an hour’s briefing on the unw
ritten rules and behind-the-scenes politics of the D.A.’s office. We’d remained friends even when the client he was working for got sent away for thirty years.

  A host of images paraded through my mind like pages in a photo album. Nearly ten years of memories during which Hal had been there for me as a friend, as well as someone I counted on in my work.

  For a while, the sadness in my heart was so intense, I felt I couldn’t breathe. But gradually grief gave way to numbness. I wondered how Hal had ended up, to use Fogerty’s words, in the wrong place at the wrong time.

  Or if the answer was really that simple.

  I knew I should tell the police what I could about Hal’s life. That he was gay, that he’d had a string of failed relationships, and probably a series of one-nighters and attempted relationships, as well. Hal might have been searching for Mr. Right, but I knew he wasn’t putting his life on hold while he looked.

  Was that what had led to his death? A lover’s quarrel, or perhaps the wrong choice for an evening’s companion?

  Or could his death be connected in some way to his work as a private investigator? He’d called me yesterday. Twice. Was he killed because of his investigation of the Barrett case? With that thought came a new wave of sorrow, intensified by guilt. I knew I’d have to tell the police about that too.

  Finally, I started the car and drove to Marc’s. Although I was still feeling hurt by his sudden indifference yesterday afternoon, I didn’t want to be alone.

  Marc answered the door looking half dazed. He was wearing a rumpled shirt and jeans that showed signs of having been donned hastily. His hair was sticking up on one side and his eyes were bloodshot.

  “Sorry,” I said. “I didn’t expect you to be asleep still.” It was already past noon.

  He shook his head, as much to clear his mind, I suspect, as in response to my apology. “It’s not a problem.”

  “Are you alone?” I felt suddenly uncomfortable at the prospect of what I might have interrupted. No wonder he hadn’t wanted my company last night.

  Marc apparently read my mind, because he responded with a twisted smile. “No one’s here. I was just resting.”

  For a moment we stood awkwardly in the open doorway. And then, surprisingly, the tears started flowing again. Damn, I’d thought that part was past.

  “What is it?” Marc’s face registered concern. He no longer seemed half asleep. “What’s the matter, Kali? What’s wrong?” He pulled me close and encircled me in his arms.

  I pressed my face against his chest. “Hal was killed last night,” I said tearfully. “Somebody shot him.”

  “What?”

  “He was in his car, by the lake.”

  “Shot? Jesus. Did they get the guy who did it?”

  I shook my head. “I know you didn’t like him much, but he was a sweet guy. Honest and funny and generous beyond belief.”

  “Liking has nothing to do with it,” Marc said. His voice was scratchy with emotion. “I certainly didn’t wish him any harm. Hal was a friend of yours, someone you cared about.”

  “I can’t believe he’s really dead.”

  “Jesus, what a shock.” Marc stepped back. “Come on, I’ll make some coffee. You look like you could use it.”

  I followed him to the kitchen.

  “Do you know how it happened?” he asked, measuring grounds into the filter.

  I relayed the few details of Hal’s death that I knew. “I’m worried,” I said, swallowing hard to hold back a fresh round of tears, “that it might be my fault. That maybe Hal was killed because he was working on Grady’s defense.”

  “Sounds to me like you’re looking to beat yourself up.”

  “No, I think it’s a real possibility.” What had started as simple supposition had now taken hold in my mind. And I was troubled.

  “But why?” Marc handed me a mug of coffee.

  “Hal was suspicious of Tony Rodale.”

  Marc raised an eyebrow.

  “He said there were rumors circulating about him.”

  “What kind of rumors?”

  “He didn’t know exactly. But he was digging to see if he couldn’t find out more.”

  Marc was visibly shaken. “And you think he found something on Rodale?”

  “Maybe. Hal said Rodale might have had police connections.”

  Marc sank into the leather sling chair. “Jesus. Why didn’t you say something about this before?”

  “There was nothing to tell, really.” A half-truth of sorts. I wondered if Marc recognized that.

  We sat at the glass-topped dining table and sipped our coffee as though it were a task that required full concentration.

  “There’s also Eric Simpson,” I said after a moment. “The guy who was hounding the Carsons. Hal was looking into that, too. He was digging in a lot of different directions, in fact. It could be any of them.”

  “Or none.” Marc rubbed the back of his neck. “Street crime is usually random, don’t forget. Rotten luck as opposed to sinister motives.”

  But what had Hal been doing down by the lake in the first place?

  “I take it his wallet wasn’t missing?” Marc said.

  “I don’t know. I didn’t ask.” I wished now that I’d pressed Fogerty for more information. But the shock of Hal’s death had been too fresh for clear thinking. “The sergeant I spoke with asked me if Hal did drugs.”

  Marc’s face registered surprise. “What made him ask that?”

  “I guess it’s one of the first things that comes to mind in a situation like this.”

  “Did he?”

  “I don’t think so.”

  Marc leaned forward, elbows on the table, his head in his hands. He was still for a moment. Then he stood abruptly and walked to the window. “Maybe now isn’t the time to mention this, but if your theory is correct, you might be in danger yourself.”

  “Me?”

  “And me,” he added wryly. “If that makes you feel any better.”

  A cold chill worked its way down my spine. “What happened to your street-crime-is-usually-random argument?”

  “It’s still floating around out there. This is an alternative.” Marc sat again, turning his chair so that he faced me. “Think about it. If Hal was killed because of something he discovered about Deirdre Nichols’ death, then the killer might think we know also.”

  I stared at my cup, not at all comfortable with the direction my mind was taking. “There was the break-in at our office,” I said, thinking aloud.

  Marc nodded.

  “You really think . . .”

  “I don’t pretend to understand it,” he said. “But I know I don’t like it. In fact, it scares the hell out of me.”

  It scared the hell out of me too.

  Chapter 35

  I ended up staying at Marc’s for dinner and then through the night. I couldn’t face being alone, and I think Marc felt the same way. He seemed almost as unsettled by the news of Hal’s death as I was—a reaction I found both surprising and endearing.

  We watched the news at six and again at eleven, but there was no mention of Hal’s murder. Without celebrity status or an overlay of tantalizing circumstances, life cut short by violence was apparently too prevalent to be newsworthy.

  Monday morning I awoke early, before the sun was fully up. While Marc slept, I slipped quietly out of the house and drove home for a shower and change of clothes. I was at my office desk by seven-thirty.

  I’d stopped for a latte on my way to work. I sipped it while I checked the answering machine. There were three messages: two late Friday afternoon from investment bankers wanting to speak with Marc, and one on Saturday, from Hal.

  Kali, give me a call as soon as you can. I’m onto something, babe. I’ve got information on Tony Rodale and Deirdre that might just save Grady’s ass. You’re going to love it. Hal’s words were punctuated with a chuckle. Didn’t I tell you I had a bad feeling about that guy?

  Hal’s familiar voice brought a sudden ache to my throat. But
his message sent a chill down my spine.

  What had been, last night, only speculation now faced me in bare, bold relief. It couldn’t be happenstance that Hal had been killed just as he’d discovered something suspicious about Tony Rodale.

  When Marc came in later that morning, I started to play the tape for him. Then, with an uncomfortable thought that floated in from out of nowhere and lodged itself squarely in my mind, I decided not to. Hal had been right about Rodale. Had he been right in warning me about Marc as well?

  My stomach felt sour. I’d been sure that Hal was mistaken in thinking he’d seen Marc with Tony Rodale. And Marc himself had denied it. I still thought Hal must have been wrong. But there was enough doubt in my mind to make me hesitate.

  I remembered the pen from Rapunzel I’d found in Marc’s kitchen. Had he known Deirdre as well as Tony? Was Marc somehow implicated in a web of deceit that went to the heart of our case? These were not thoughts I welcomed, but I couldn’t ignore them. Once the seed of suspicion is planted, it takes root very quickly.

  I spent an uncomfortable morning trying to prepare for the preliminary hearing while niggling thoughts about Marc intruded. Twice I headed for his office with the message tape, and twice I turned back.

  After lunch I called downtown to check on the investigation of Hal’s death.

  “Nothing new,” Sergeant Fogerty told me. “But we managed to reach his brother. Thanks for your help with that.”

  “I might be able to be of more help.” I told him about Tony Rodale as well as the other angles Hal had been pursuing in connection with Grady’s upcoming trial.

  If the system were truly efficient, word would get back to Madeleine and she’d have the inside scoop on our defense strategy. I was banking on the fact that bureaucracies are rarely efficient.

  Fogerty listened, but without the enthusiasm I’d hoped for.

  “I can make you a copy of the tape,” I said.

  “I don’t think that will be necessary.”