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

by Jacobs, Jonnie

  “That’s correct.”

  “Did you find any of Mr. Barrett’s prints there?”

  Hawkins glanced in Madeleine’s direction. “No.”

  Early on, I’d been ready to explain away Grady’s prints by virtue of his presence at Deirdre’s house the week earlier. But we’d gotten lucky. Deirdre Nichols had been a meticulous housekeeper. Now I could simply reverse the argument.

  “If, as the prosecution suggests, Grady Barrett was in the house the night of the murder, wouldn’t you expect to find at least one print you could identify as his?”

  “Depends on what he touched and whether he wore gloves.”

  If we were in front of a jury, I’d have pushed it, painting a ludicrous picture of Grady making a social call in a pair of gloves. Under the circumstances, I was trusting that Judge Atwood could see things clearly on her own.

  “Did you inspect the rest of the house?” I asked Hawkins.

  “Yes, I went through every room in the house myself.”

  “Was there any sign of a disturbance other than on the deck?”

  “No, not really.”

  “So it was all very neat and tidy.”

  He smiled. “Well, the kitchen was kind of messy. But lived-in messy, if you know what I mean.”

  I feigned ignorance. “Not really.”

  “There were dirty dishes from dinner next to the sink, and Ms. Nichols had apparently been baking cookies, so there was baking stuff around.”

  “Baking stuff? Can you be more specific?”

  He gave a fractional shrug. “A bowl still partially full of batter, raisins, chocolate syrup, cookie sheets, a measuring cup. There was probably more, but I can’t remember offhand.”

  “But no signs of a struggle in the kitchen?”

  “No.”

  I paused for a sip of water and checked my notes again. “The handkerchief that you found in the hallway. You testified that it was monogrammed with the defendant’s initials and that it matched others found during a search of Mr. Barrett’s home.”

  “That’s right. The handkerchief is a specialty item, imported from England.”

  “But you can’t say with absolute certainty that it belongs to the defendant, can you?”

  He scoffed. “It pushes the limits of plausibility to think that two men with identical initials and handkerchiefs had reason to kill Ms. Nichols.”

  “Your Honor—” A quick glance at Judge Atwood’s scowling face prompted my retreat. I sighed. “Never mind.”

  Turning back to Hawkins, I took a different tack. “Assuming for the moment that it was Mr. Barrett’s handkerchief, isn’t it possible that he dropped it when he was at Ms. Nichols’ house a week earlier?”

  “Possible, I suppose.”

  “There are no tests you can run, no way of determining how long the handkerchief had been at the house. Is that correct?”

  “Not really, but it’s unlikely—”

  “Thank you, Detective. Now, on the morning the body was discovered, did you have any idea as to the killer’s identity?”

  “No, not then.”

  “What was it that led you to Mr. Barrett?”

  Hawkins shifted in his seat, crossing his legs. “It was a lot of things. The handkerchief, the little girl’s statement about seeing a silver convertible and hearing a man’s voice, and then the next day we found a record of the call between Ms. Nichols and the defendant. It didn’t take much to put two and two together.”

  Especially if you preferred simple arithmetic to more complex reasoning. “So you determined fairly early on that Grady Barrett was the principal suspect in the case?”

  “The evidence was there. We couldn’t ignore it.”

  “In fact, you were fairly certain Grady Barrett was your man when you first questioned him, weren’t you?”

  “Not at all,” Hawkins said, thereby skirting the issue of Miranda warnings. “We were just gathering information at that point.”

  Sure, and I’ve got a bridge I could sell you.

  “At what point did Mr. Barrett become your prime suspect?”

  Hawkins glanced at Madeleine. “That’s not an easy question to answer. Sometimes these things just evolve.”

  “So there was no one, single piece of evidence that convinced you Grady Barrett was your killer?”

  Hawkins looked uncomfortable. “No, not one piece alone.”

  “Aside from the handkerchief and the single shoe print, was there any physical evidence from the crime scene that pointed to Mr. Barrett?”

  “From the crime scene itself, no.”

  “And when you searched Mr. Barrett’s house, you found no hair, no fibers, no blood—no evidence at all that could be traced to Ms. Nichols, is that correct?”

  “That’s true with regard to the items we seized. But the slacks he was wearing the evening she was killed are missing.”

  “Given away as part of a scheduled pickup, is that correct?”

  “The pickup was scheduled, but I don’t know about that particular pair of pants. Seems awfully convenient to my mind.”

  “Your Honor—”

  She cut me off. “Same as I said before, Ms. O’Brien. I’m capable of separating the wheat from the chaff.”

  I directed my attention once again to the witness. “Detective Hawkins, did you question anyone else in connection with Ms. Nichols’ murder?”

  He pulled himself up straight. “We talked to a number of people.”

  “Did you question anyone else as a potential suspect?”

  “Grady Barrett was our best suspect.”

  “He was your only suspect, wasn’t he?”

  “The evidence pointed to the defendant.”

  “Is that because you chose to interpret it that way?”

  Madeleine jumped to her feet. “Objection, Your Honor. Asked and answered.”

  “Sustained. Ms. O’Brien, let’s move along. You’ve made your point.”

  I took a moment to regroup, then stepped forward to address Hawkins. “Let me make sure I understand what evidence we’re talking about, Detective. The handkerchief, which could have been there from an earlier visit. The impression of a shoe, which could have been made by any size ten Nike Pegasus and was only one of many prints made by various shoes. And finally, the car Adrianna saw—a silver convertible.”

  “Yes, in addition to the missing pants—”

  I cut him off. “Detective Hawkins, certainly you aren’t saying that there’s anything unusual about people donating items of used clothing to charity?”

  His brow furrowed. “No, not in general.”

  “And I’m sure you don’t mean to imply that Grady Barrett is the only man with a size ten foot who drives a silver convertible?”

  He glared at me and muttered, “No.”

  I managed an incredulous face. “Thank you, Detective Hawkins. I have no further questions.”

  Chapter 41

  The last of the morning’s witnesses was Charles Berger, the name Madeleine had sprung on me in her opening statement. I rose to voice my objection to Judge Atwood.

  “Your Honor, Mr. Berger’s name was not included on the witness list we were given. This morning was the first I heard of him.”

  Madeleine was all sincerity. “The People weren’t aware of his existence, either, until late yesterday. I didn’t finish meeting with him myself until almost ten last night.”

  “You couldn’t have tried to reach Ms. O’Brien?” Judge Atwood asked.

  “I did try, Your Honor. I called Ms. O’Brien at her home as well as at her office. She didn’t answer at either number.” Madeleine made that in itself sound suspicious.

  I wasn’t about to explain where I’d been. “The defense requests time to prepare for cross,” I said, more upset about sabotage than any real preparation. “We ask that the witness not be allowed to testify at this time.”

  “The witness is here today,” Madeleine urged.

  “He can come another day as well, can’t he?”
<
br />   Judge Atwood frowned. “This is a hearing, not a jury trial. Let’s see what we’ve got. Then, Ms. O’Brien, if you think you need more time to prepare, we can bring him back.”

  With a sigh I slid into my chair at the defense table and leaned to whisper in Grady’s ear. “It’s the best we could reasonably expect.”

  “Why didn’t you pick up the phone last night?” He sounded testy.

  I ignored him. In truth, twelve hours’ notice wouldn’t have helped much. “You sure you don’t recognize the name?”

  Grady shook his head.

  Madeleine called Charles Berger to the stand. He was a skinny, acne-faced kid of about eighteen. Dressed in tan slacks and a too- small jacket, he looked like a young boy being dragged off to church on Sunday morning.

  Grady sucked in his breath. He may not have recognized the name, but it was clear to me that he knew the face. And that he wasn’t happy to see Berger in court. It was too late to ask for an explanation.

  After Berger was sworn in, Madeleine took him through the preliminaries. He worked as a bagger at the Safeway in Montclair, about five minutes from the house where Deirdre Nichols was killed.

  “And were you working there the night of February twenty- eighth?” she asked

  “Yes, I was.”

  Madeleine walked back to the prosecution table and extracted a set of head-shot photos from her file. “I’d like to have these photographs entered as People’s Exhibit A.” She whisked them in front of my eyes and then past the deputy and judge.

  “Objection, Your Honor. I haven’t had time to examine the photos.”

  “I’ll have another set made for the defense at the close of court today.”

  Business taken care of, she approached the witness. “Mr. Berger, did the police show you these photographs?”

  He examined them briefly. “Yes.”

  “And were you able to identify one of them as a man you saw at the Montclair Safeway on the night of Friday, February twenty- eighth?”

  “Yes.”

  “Tell us please, do you see that man in court today?”

  “Yes, I do.” He pointed to Grady, who was sitting as still as stone, eyes straight ahead. “That’s him, there.”

  Uneasiness prickled my skin.

  “Let the record reflect that the witness has pointed to the defendant,” Madeleine said, then turned again to address Berger.

  “Do you recall what time it was on the night in question when you saw the defendant?”

  “Yes. It was about . . . his voice squeaked and he tried again. “A little before ten.”

  There were murmurs from the gallery. Next to me, Grady froze. I felt my own stomach knot. He clearly hadn’t been working as late that evening as he’d claimed.

  “You’re sure it was the defendant?” Madeleine asked.

  “Positive. I recognized him from when I did a report on ComTec in high school.”

  “So you knew it was Mr. Barrett at the time you saw him, even before the police questioned you?”

  “Yes, I did.”

  Madeleine rocked forward on her toes. “Did you speak to him?”

  “I think I said, ‘Nice evening,’ or something. The store manager likes for us to act friendly with the customers.”

  “Can you tell us what transpired?”

  “I was getting carts from the lot. I saw Mr. Barrett pull up, park his car, and go into the store.”

  “What kind of car was he driving, do you recall?”

  Berger glanced at Grady. “A silver Mercedes convertible. With the top down.”

  Another wave of murmurs from the back of the courtroom.

  Madeleine let a moment pass. “And you said this was about ten in the evening?”

  “That’s right.”

  “Are you sure of the time?”

  “I could be off by ten minutes in either direction, but not much more. I’d come back from my break at nine-thirty, and I know that I was bagging again by ten-fifteen.”

  She cocked her head. “So you saw Mr. Barrett go into the store at about ten?”

  “Yes.”

  “Did you see him come out again?”

  “Yes, just a few minutes later. He was opening a pack of gum.”

  Madeleine acted surprised. “That was it? No other groceries?”

  “None that I could see.”

  Grady’s leg was bouncing nervously under the table. I put my hand on his knee to quiet him.

  “How did he seem?” Madeleine asked.

  “Objection,” I said, standing. “With all due respect to the witness’s social acumen, he’s not qualified to judge Mr. Barrett’s mood.

  Judge Atwood frowned. “Ms. Rivera is merely asking the witness to share his observations. She isn’t requesting an evaluation of the defendant’s feelings or thoughts.”

  But that, by implication, was what Madeleine was after.

  Judge Atwood addressed the witness. “You may answer the question.”

  Berger looked at Grady and then lowered his eyes. “He seemed kind of nervous.”

  “What gave you that impression?” Madeleine asked.

  “Little stuff. He kept looking over his shoulder, jiggling the change in his pocket. I don’t know how to describe it exactly, but he looked tense and jittery.” Berger paused and hazarded a smile. “Kind of like I feel right now.”

  Madeleine acknowledge his candor with a smile of her own. “Thank you, Mr. Berger.” She turned to me. “Your witness.”

  “May I have a minute, Your Honor?”

  “Take five.” Nary the flicker of a smile.

  Seething, I turned to huddle with Grady. “You want to tell me what this is all about?”

  “I stopped at the store.”

  “A store practically in Deirdre Nichols’ backyard. It’s not exactly on the way home from your office.”

  A small shrug, which was more stiff than casual. “It’s a store we go to.”

  “For gum?” I was barely able to contain my anger. Courtroom surprises were exactly what I’d wanted to avoid. “You could have stopped at the convenience store half a mile from your house,” I told him.

  “But I didn’t.” Grady’s voice was flat.

  Fighting the urge to scream at him, I whispered, “Why didn’t you tell me about this before?”

  “I never thought of it.”

  He never thought of it. Grady was either lying or stupid, and I was pretty sure he wasn’t stupid. “There’s also the matter of time. You told me, and the police, that you were at work until after eleven.”

  He nodded, then swallowed hard. His face was pale. “I guess I misjudged the time.”

  Turning away, I pushed back my chair and addressed the judge. “May I approach the bench, Your Honor?”

  Madeleine joined me in conference.

  “This is outrageous,” I said. “The prosecution can’t wait until the last minute to come in with a witness this potentially damaging to the defense.”

  “She just did,” Judge Atwood remarked coolly.

  “What I mean is, I need time to prepare. This is a major prosecution witness whose identity was revealed to me only this morning.”

  Madeleine folded her arms. “I didn’t set this up to deliberately sabotage you.”

  “It doesn’t matter,” I huffed. “The effect is the same.”

  Judge Atwood removed her glasses and rubbed the bridge of her nose. “Since this is not a trial, and since I’m the sole trier of fact, I don’t see the addition of a last-minute witness as a major problem.”

  “If you—”

  She looked at me sharply. “I’m not finished, Ms. O’Brien.”

  “Sorry, Your Honor.”

  “On the other hand, I can understand how an unexpected witness can throw you off.” She paused and slipped the glasses back over her nose. “I’ll excuse the witness at this time and allow you to recall him at a later date.”

  I let out a sigh of relief and returned to my seat at the defense table.

  “We
will take our lunch recess at this time,” Judge Atwood said, addressing the courtroom. “Court will reconvene at one-thirty.”

  <><><>

  I was steaming. If I hadn’t promised to meet Byron Spencer for lunch, I’d have used the time to berate Grady. Maybe even to punch him in the nose. Instead, I shoved back my chair and walked out of the courtroom without saying another word to him.

  Spencer was waiting for me on a bench at a nearby city park. Or what had once been a park. Like so many open urban areas, it had become a haven for drug dealers, derelicts, and the homeless. The rest rooms were covered in graffiti and missing their doors, the sandbox smelled of urine, and the playground swings were nothing but knotted chains.

  “I got us deli sandwiches,” Spencer said. “And Cokes. One diet, one regular. Take your pick.”

  I went for the diet.

  “I left early to pick up the food. Did I miss anything?”

  Yeah, I thought, the floor just fell through. I shook my head. “Just the usual. One minute it looks good for the prosecution, the next minute for the defense.”

  Spencer unwrapped his turkey sandwich. “It’s exciting watching this case unfold. Like television. Only better because it’s the drama of real life.” He sounded like a sixteen-year-old kid.

  “What was it you wanted to tell me?” I was still irked at Grady, and it carried in my tone.

  “You remember our deal—if I brought you something useful, you’d give me an exclusive when it’s all over.”

  I nodded.

  “Something substantial, none of these two-sentence quips. I want the real inside story.”

  “It depends on what you’ve got for me,” I told him.

  “Fair enough.” He’d taken a bite of sandwich, and paused a moment to swallow it. He turned to face me. “Deirdre Nichols was working for the police.”

  “Wrong woman, Spencer. She worked at a hair salon.”

  He shook his head. “No, not working as in a job. Working with them as a snitch.”

  It was like being hit between the eyes with a sledgehammer. “A snitch?”

  “An informant. You know, someone who feeds the cops information.”

  “I know what a snitch is. I’m just surprised. In fact, I’m dumbfounded.”

  He looked pleased. “So you didn’t know?”