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

by Jacobs, Jonnie

  “You may be seated,” the deputy said.

  There was a general rustle in the crowded courtroom as people returned to their seats and got comfortable. Grady sat rigidly with his hands folded on the table. I touched his sleeve lightly in a gesture of support.

  We’d drawn Edith Atwood as our judge for the hearing. Although I’d never met her, I was familiar with her reputation. A veteran of almost a decade on the bench, Judge Atwood was known for her no-nonsense approach to moving cases through the system as efficiently as possible. It was a quality I found admirable in theory, but a bit off-putting now that I was going to be on the receiving end of her judicial whip.

  According to rumor, she was in the midst of a nasty divorce that had further sapped her reserves of patience. Her rulings often reflected this.

  Judge Atwood took a seat behind the bench and donned a pair of tortoiseshell reading glasses. Petite, with birdlike features and short, wispy hair that was more salt than pepper, she looked like a woman not given to easy smiles or aimless banter. Not on the job, at any rate.

  In words taken almost verbatim from the penal code, Judge Atwood delivered a perfunctory admonishment about the purposes and limitations of the preliminary hearing.

  “This is not a trial,” she concluded, “and you are not playing to a jury. All we need to determine at this stage is whether there is reason to believe a felony has been committed, and that Mr. Barrett is the person who committed it.”

  She looked over her glasses at Madeleine. “How long do you propose to take, counselor?”

  “Two days should do it, Your Honor.”

  Judge Atwood nodded and made a notation on the sheet in front of her.

  I spoke up. “The defense may need additional time.”

  Her eyes showed surprise. “You intend to put on a case, Ms. O’Brien?”

  “I may, Your Honor, depending on how the prosecution’s case goes.”

  Although it was clear that Judge Atwood wasn’t pleased with my announcement, there was nothing she could do about it but scowl. The law allows defendants to put on a defense if they wish.

  “How many days do you anticipate needing?” she asked.

  I had no idea. “Two.”

  She sighed and made another notation.

  Beside me Grady whispered, “Will that be enough time?”

  About one and a half days more than I could possibly fill. I nodded.

  “Are the People ready?” Judge Atwood asked.

  Madeleine rose. “Yes, Your Honor.”

  Her opening remarks were thorough if not inspired, and pretty much what I’d been expecting. As a prelude to showing motive, Madeleine began by addressing the rape charge and the case against Grady that had been dropped following Deirdre Nichols’ death. She then proceeded to lay out the case against Grady, piece by piece. Adrianna’s statement about having seen a silver convertible and hearing a man’s voice. The handkerchief, shoe print, and missing slacks Grady claimed to have donated to the Salvation Army.

  No surprises until she mentioned a name I’d not heard before. Charles Berger.

  I scratched a note to Grady. “Who’s he?”

  Grady answered with a nervous shrug.

  Shit. This was the kind of stuff that wasn’t supposed to happen. That’s what the rules of discovery were all about. I shot Madeleine a questioning look, though it did me little good.

  “Is defense counsel ready to proceed?” asked Judge Atwood when Madeleine had concluded her remarks.

  “Yes, Your Honor,” I said, standing.

  “Good. Please, don’t feel you need to belabor points already raised by the prosecution. Bear in mind, this is only the preliminary hearing.”

  “Yes, Your Honor.”

  “And I don’t want to hear a lot of unnecessary rhetoric. Even though we’ve been graced with the presence of the press”—here she paused to nod toward the chairs at the back of the room, and when she continued, her voice took on a sardonic edge—“in spite of their interest, we’d like to proceed as though our eyes were on justice rather than on the media.”

  I nodded, took a calming breath, and began.

  “Your Honor, the prosecution’s case is based entirely on circumstantial evidence. In order to prevail in this situation at trial, the People need to show that the evidence points only to the defendant and to no one else. We intend to show that such a scenario does not stand up to logic. This is a case where the police, in their zeal to apprehend a culprit, jumped to an immediate and erroneous conclusion about who committed the murder. It’s incumbent on you to dismiss the case.”

  I paused for a sip of water. Out of the corner of my eye, I could see Grady. He looked alert and interested, but confident—the model of a defendant buoyed by his own innocence. Turning back to the judge, I continued.

  “The defense will show that each and every point raised by the prosecution is open to a different interpretation. What’s more, we intend to show that the police overlooked at least one, and possibly several, other logical avenues of investigation. They were aware of additional suspects and simply chose to ignore them.”

  Judge Atwood didn’t blink, but there was a murmuring from the rear of the courtroom. With luck, tomorrow morning’s headlines would allude to alternative suspects and defense surprises. I only hoped I could deliver.

  I talked for nearly fifteen minutes, reconstructing the crime step by step, even though Judge Atwood had told me it wasn’t necessary. What I said or didn’t say in my opening statement wasn’t going to change her decision one iota, but my words would be repeated in papers and newscasts, and I wasn’t about to give up my chance to spin the tale the way I wanted it told.

  I tried not to get carried away, but made sure I used words like innocent and groundless and rush to judgment enough that the press would pick up on them.

  When I sat down, Grady touched my sleeve. “That was very good,” he said, sounding almost surprised. “Everything you said made absolute sense.”

  Of course, Grady was hardly an impartial audience.

  The state’s first witness was the female police officer who’d responded to the 911 call placed by Adrianna. I recognized her from my visit to the crime scene the Monday following Deirdre’s death.

  After the officer was sworn in, Madeleine asked that she state her name and occupation for the record.

  “Janet Morrison, patrol division with the Oakland police department.”

  Madeleine took her through a few preliminaries, then asked about the discovery of Deirdre Nichols’ body. Officer Morrison explained that she’d arrived at the scene just after Deirdre’s sister, Sheila Barlow. She’d tried to calm both the girl and her aunt while at the same time preserving the crime scene. She’d been grateful when backup help arrived. Morrison had kids of her own, she explained, and she’d found Adrianna’s distress upsetting on a personal level.

  I took her through much of the same territory on cross. I wanted to see if any of the details changed. They didn’t. Some police officers are very good at testifying, while others get nervous and fumble for words or trip over details. These inconsistencies can serve as fodder for the defense. Unfortunately for the defense, Officer Morrison was a pro.

  Next up was the coroner. He acknowledged that the time of death could not be determined with precision, even in conjunction with extrinsic evidence. He was, however, able to say with confidence that Deirdre Nichols’ death took place sometime between eight p.m. and midnight. It was his determination that there’d been a brief struggle and then Deirdre Nichols had been pushed to her death.

  I’d given a copy of the autopsy report to a forensic pathologist I’d used as an expert witness on previous occasions. If we went to trial, I would undoubtedly call him, but he’d found little in the report to quibble with.

  Detective Hawkins, the lead investigator on the case, took the stand as we neared morning recess. Because the Best Evidence Rule is not applicable to preliminary hearings, the investigating officer can make use of reports an
d other information that would be inadmissible as hearsay at trial. As a result, Madeleine was able to cover a lot of ground with a single witness. The physical evidence from the crime scene, the results of the search of Grady’s house, and the absence of any verifiable alibi on Grady’s part. She hit them all, then graced me with a smug smile as she returned to her seat.

  “Your witness,” she said with grave formality.

  Before I could begin my cross examination, Judge Atwood called for morning recess.

  “How does it look so far?” Grady asked as the courtroom emptied.

  “We’ve barely begun.”

  “I don’t like that judge.” He was fidgeting in the seat beside me, twisting his watchband and pulling at his cuffs. “She doesn’t seem very friendly.”

  “It’s not her job to be friendly.”

  The bailiff came to escort Grady to the rest room. I looked around for Madeleine to see if I could get some background on Charles Berger. When I couldn’t find her, I found a pay phone and called Marc at home. I didn’t get an answer there, so I tried the office next.

  Rose picked up on the first ring. “How’s it going in the battle zone?” she asked.

  “So far, so good. Is Marc free?”

  “He’s not in yet.”

  “Not in?” I felt a rush of anxiety.

  “He called though,” she added. “Said he’d had a bad night and was going to sleep late. He told me that you already knew.”

  “Right, just checking.” I was relieved to know that he hadn’t taken a turn for the worse after I left. “How did he sound?”

  “Like somebody just ran over his cat.”

  Close, I thought.

  When I got off the phone, I was surprised to find Byron Spencer standing behind me. He smiled broadly. As usual, his good cheer was as bountiful as a puppy’s.

  “And so it begins,” he said dramatically. “Another revolution for the wheels of justice.”

  “So it does.”

  We moved across the hallway.

  “I didn’t see you in the back of the courtroom this morning,” I told him.

  “I got here a little late, but I saw most of it.” He stuck a hand in his pocket. “Where’s your other half?”

  “Marc?”

  He nodded.

  “He’s not in court today. Why?”

  “Just asking.” A pause. “Remember our deal?”

  “What deal?”

  “You told me when I’d found something to let you know. Barter, remember? Quid pro quo.”

  Spencer’s help in return for an exclusive. I’d assumed it was loose talk on his part, pie-in-the-sky dreaming by a kid who’d read too many detective novels. But I certainly wasn’t about to rule out help in whatever form it took.

  “Meet me for lunch,” he said, lowering his voice to a conspiratorial level. “I have something I think you might find interesting.”

  I siting my purse over my shoulder. “I don’t have time for lunch.”

  “I was talking hot dogs from a street vendor. Something quick and quiet. I think we need to be discreet.”

  I bit back a smile. Definitely too many crime novels. “Okay. As long as we can be quick.”

  “Noon recess,” he said. “Tenth and Jefferson. I’ll bring something for us to eat.”

  Chapter 40

  Judge Atwood poured herself a glass of water from the brown plastic pitcher on her right, and reminded the witness that he was still under oath. Then she looked at me. “Counselor?”

  Checking the collar of my gray silk blouse, I stood for cross. “Detective Hawkins, you stated that you arrived at the scene within an hour of the first patrol officer, is that correct?”

  “Yes.”

  “And what was the first thing you did after you arrived?”

  “The first—”

  “In terms of assessing the evidence.”

  Hawkins’ dark eyes narrowed as he tried to decipher the question for hidden tricks. He was wasting his time; I wasn’t setting any traps just yet. It was more like I was scrounging for bait.

  Finally, he cleared his throat and ventured an answer. “I took a verbal report from the patrol officer.”

  “And what did you do after that?”

  “I talked to the EMT in charge, and then to Ms. Barlow, the deceased’s sister.”

  “You didn’t talk to the little girl, Adrianna?”

  “Not right then, no. That was several hours later.”

  I moved closer. “What did you do next?”

  “I made an assessment of the crime scene.”

  “Did you begin your inspection of the scene outside in the yard or inside the house?”

  Hawkins folded his hands. “Outside, where Ms. Nichols’ body was found.”

  “You stated that the victim was wearing a white gown.”

  “That’s correct.”

  “Can you describe this gown?”

  He mustered a bemused expression. “I’m no fashion expert.” This drew titters from the journalists in the room.

  “Just describe it as best you can.”

  “Well, I know it was white, and long. And made of some kind of filmy material.”

  “The kind of thing someone might wear for entertaining?”

  Hawkins shook his head. “More like a robe, only nicer. Loungewear, I think that’s what they call it.”

  I gave him a quick smile. “You know more about fashion than you give yourself credit for, Detective.” Another ripple of laughter, cut short by a stem glance from Judge Atwood.

  “Wouldn’t you say it was an odd thing for Ms. Nichols to be wearing, if, as the prosecution suggests, she was expecting a visit from the man she accused of raping her?”

  “Objection.” Madeleine rose to address the judge. “The detective’s opinions on appropriate attire are not relevant, Your Honor.”

  Judge Atwood propped her chin on one hand. “There’s no jury present, Ms. Rivera. Let’s save the objections for things that matter.”

  In any event, Detective Hawkins sidestepped the issue by having no opinion one way or another.

  “You also testified about shoe impressions in the soil at the side of the house.” I paused. “I take it there was more than one?”

  “Yes. Most were partials and not very clear, but one was fairly decent. It was in a flower bed. The loose, damp soil took the impression easily.”

  “The other prints were less clear?”

  “Right.”

  “So you can’t say with certainty that all the prints were made by the same pair of shoes, can you?”

  “Not with one hundred percent certainty, no. But the clear print was a size ten Nike Pegasus, and there was nothing about any of the other prints inconsistent with that shoe.”

  “You testified that the prints were found on the north side of the house, in this general vicinity, here.” I pointed to the drawing of the house that Hawkins had used during his testimony on direct. “Some were leading toward the rear yard, where the body was found, and some leading away.”

  “Correct.”

  “And you believe it likely they all came from the same pair of shoes.”

  “I just said that, yes.”

  “Just this single set of impressions.”

  Hawkins rolled his eyes, annoyed. “Yes.”

  “So the EMTs didn’t leave any shoe impressions when they examined the body?”

  Hawkins shifted in his seat. “Well, yes, but I assumed you meant in addition to those.”

  “And were those prints pristine, or less clear?”

  “A little of both.”

  “So, actually, there were quite a number of prints. Some partials, some very clear. One was a size ten Nike Pegasus, many were not. Is that correct?”

  “Yes, but—”

  “You’ve answered the question, Detective. Let’s focus on the clear Nike print for a moment. It was found here, is that correct?” I pointed again to the drawing. “Near the street entrance to the side yard, well away from where the bo
dy was found?”

  “That particular print, yes.”

  “You testified that it was a left shoe print, with wear patterns similar to the left Nike Pegasus seized from Mr. Barrett’s home.”

  “Correct.”

  “Can you say with certainty that it’s a perfect match?”

  At the defense table, Grady stirred. I saw his jaw grow stiff and his hands clench.

  Hawkins licked his lips. “Not with absolute certainty, no. The print wasn’t clear enough for that degree of accuracy.”

  I waited a moment, allowing members of the press to absorb his words, then continued. “All right, let’s move on to the house now. It’s your contention that Ms. Nichols fell from the deck, is that correct?”

  Hawkins leaned back in the witness stand. “I’d say pushed rather than fell. But, yes, she appears to have come off the deck after a struggle. As I mentioned earlier, there were markings on the railing of the balcony, and fibers from her gown were caught in the wood there. An aluminum deck chair had been knocked over.”

  “Anything else to indicate a struggle?”

  “The coroner found scratches and abrasions on Ms. Nichols’ body that weren’t consistent with a fall.”

  I walked back to the defense table. “When you questioned Mr. Barrett in conjunction with your investigation, did you examine him for scratches or other markings that might indicate a struggle?”

  “Yes, we did.”

  “And did you find any?”

  Hawkins hesitated. “Mr. Barrett is a large man. He’d easily be able to overpower a woman of Ms. Nichols’ build.”

  “That was not my question, Detective.” I turned to the judge. “Your Honor, I request that Detective Hawkins’ response be stricken as nonresponsive.”

  “This is a prelim, for goodness’ sake,” she said to me. Her tone verged on being sharp. Then she turned to the witness. “Detective Hawkins, you know how we do this. Just answer the question.”

  Hawkins sighed. “No,” he said without elaboration.

  “Thank you.” I checked my notes. “Now, moving on. Your report indicates that you dusted for prints at the crime scene, both inside and out.”