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

by Jacobs, Jonnie

  “Not at all. Any idea what it was about?”

  “The cops are after a guy she was seeing.”

  “Tony Rodale?”

  “Yeah, that’s him. He’s some kingpin of the drug world. They wanted to bring him in.”

  I felt as if the air had been squeezed from my chest. It was so far-fetched as to be ridiculous, but it also made sense. The pieces fit perfectly. “Do you have any proof?”

  He shook his head again. “Not really.”

  “You must have something.”

  “I got this in strict confidence from someone who knows. Someone who doesn’t blow hot air. I’m sure it’s true.”

  “Jesus, Byron, you could have gotten it from the pope himself. But without proof it doesn’t do me any good. It’s just rumor.”

  “Her record’s sealed,” Spencer said. “But if you could find a way to check it, you’d discover two previous arrests on drug charges. The first was a slap on the wrist really, probation and counseling. The second one was about a year ago. A nothing sentence. This last one should have netted her some time, but the charge was dropped. That’s because she agreed to cooperate with the cops.”

  I took a bite of my pickle. Snitch. Drug deals. It certainly opened up a wealth of possibilities with respect to her murder. Assuming it was true. “You don’t have any information relating directly to her murder, do you? Anything pointing to someone besides Grady Barrett?”

  “Afraid not. I’ll keep looking though. I’ve got a couple of irons in the fire, so to speak.”

  “Good.”

  “See, I was thinking maybe her boyfriend found out about her being a snitch and all—and killed her. That’s what they do in movies.”

  And in real life, I added silently.

  It had potential, at least as a starting point. No wonder they’d been in such a hurry to arrest Grady; they wanted Rodale out of the loop. It would certainly buy us some mileage with the jury, even if it wasn’t enough to swing things our way at the preliminary hearing. Finally, the defense had some ammunition.

  And then it hit me.

  Hal’s discovery. Had he uncovered the same information? Was that what had killed him? I fought a wave of nausea.

  “What’s the matter?” Spencer asked.

  “Listen, what you’ve told me is interesting. Better than that. But it could be dangerous, as well.” I told him about Hal’s murder.

  “You don’t know for certain that’s why he was killed though,” Byron said.

  “True, but it sure makes sense.”

  “I’ll be careful.” He spoke with bravado, perhaps unaware that his face had gone pale. “A reporter doesn’t turn his back on a good story just because he fears for his own safety.”

  Byron Spencer sounded at that moment very young and naive. And very idealistic.

  I liked him all the better for it

  Chapter 42

  Sheila Barlow took the stand when court resumed after lunch. Her full gray skirt and crisply pressed white blouse accentuated the drabness of her appearance.

  Madeleine requested that she state her name for the record, then asked, “What is your relationship to the deceased?”

  “I’m her sister.”

  “Older or younger?”

  “Older by six years.”

  Next to me, Grady sat with shoulders squared, pulling at his knuckles. As unobtrusively as possible, I put a hand on his wrist. He got the message and stopped.

  “What is your occupation, Ms. Barlow?”

  “I’m a librarian with the city.”

  “Are you married?”

  “No.”

  “Have you ever been married?”

  “No.”

  “Any children?”

  Sheila smiled faintly, no doubt amused that she’d been asked about children despite never having been married. “No.”

  “Would you say that your relationship with your sister was a close one?”

  Sheila nodded. “Very. Deirdre has lived with me off and on over the years, and she was living with me at the time of her death, although she had taken a temporary house-sitting job elsewhere.”

  At Madeleine’s urging, Sheila described her sister in more detail. Deirdre had been full of life. People were drawn to her. She was outgoing and trusting, and those qualities sometimes got her in trouble.

  Although the words were laudatory, I thought I occasionally heard a tone of pique in Sheila’s voice.

  “On the morning of March first,” Madeleine was saying, “did you receive a call from Adrianna?”

  Sheila sat straighter, as if to brace herself against the memory of that day. “Yes.”

  “I’d like to turn now to that morning. What happened when Adrianna called you?”

  “It was a little after six. She didn’t chatter the way she usually does. She just said, ‘Ema.’ That’s what she calls me,” Sheila explained.” ‘Ema, something’s happened to Mommy.’ Poor child, I could hear the fright in her voice.”

  “Did she say anything more?”

  “I asked her where Deirdre was, and she said outside. On the ground.” Sheila’s voice quavered. “I told her to hang up the phone and go to her room. That I’d be right over.”

  Step by step, Madeleine led her through the events of the morning—how she’d reached the house, taken one look outside, and known that her sister was dead. The police and paramedics had arrived not long after. Sheila had remained with Adrianna, trying to comfort her.

  When Sheila started to repeat Adrianna’s story about seeing a silver convertible parked in front, I objected. “I would like to hear the account from the witness herself.”

  Sheila sucked in a breath as though she’d been physically struck. “For God’s sake, the child has been through enough already.”

  “Your Honor—”

  Judge Atwood cut me off, then warned Sheila against further outbursts. She turned back to me. “Do you really feel it is necessary to bring the girl into court?”

  Grady stirred beside me. I ignored him.

  “Yes, Your Honor, I do. She is a crucial witness for the prosecution. Her remarks about seeing a car similar to one driven by my client, and about hearing a man’s voice, are critical parts of the case against Mr. Barrett. It’s essential that we be able to question her directly.”

  Madeleine approached the bench. “She’s only seven years old, Your Honor, and she’s just lost her mother. Detective Hawkins already testified as to the content of her statement. Surely Ms. O’Brien is not so heartless as to require the child to relive that terrible chain of events once again?”

  “The last thing I want is to inflict more pain on Adrianna,” I said. “But Grady Barrett is accused of a crime he didn’t commit. He has the right to confront any witness against him.”

  Sheila Barlow’s face reddened with resentment. She glared at me.

  Judge Atwood removed her gray-framed glasses and rubbed her eyes. I knew that she wanted to keep the hearing as simple and short as possible. And I knew she believed that Adrianna’s comments could be relayed adequately by others. I was sure that on a personal level her sympathies were with Adrianna. But she surprised me by taking my side on this one.

  “Ms. Rivera,” she said finally, “you may continue to question the witness about her conversation with her niece if you’d like, but defense counsel has the right to question Adrianna. You’ll see that she’s in court tomorrow?”

  Madeleine’s brow creased with annoyance. “Your Honor—”

  “We’ll do it in closed session.”

  Sheila Barlow looked ready to explode. The veins in her neck stood out in livid ridges and her mouth was contorted. “Can’t you spare her this?”

  Judge Atwood didn’t admonish her for the outburst, but, rather, tried to explain. “I’ll make every effort to make it a nonthreatening experience for your niece. I don’t relish the idea of taking her through it all again, either. But the law states that the defendant has a right to confront and question witnesses against him.” She l
eaned back in her chair. “And rightly so. You may proceed, Ms. Rivera.”

  Madeleine resumed her questioning by changing direction. “Did you know that your sister had filed a rape complaint against the defendant?”

  “Yes.”

  “Did she discuss the matter with you, particularly with respect to the then-upcoming trial?”

  “Yes, she did.” Sheila never looked at Grady.

  “Can you tell us, please, what she was feeling in this regard in the days prior to her death.”

  Sheila nodded. “Deirdre felt that even though the trial was going to be difficult for her, and for Adrianna and myself, it was important that she go through with it. She said people like Grady Barrett were used to getting their own way. They were the sort who took whatever they wanted and didn’t care if others got hurt.’’

  “Did your sister play for you an answering machine message she’d received from the defendant?”

  Sheila licked her lips and spoke softly. “Yes, she did.”

  “And what was the gist of that message?”

  I leapt to my feet. “Objection. Hearsay.”

  “Admission against interest,” Madeleine shot back, targeting one of the exceptions to the hearsay rule.

  “Your Honor, it’s an admission against interest only if you give the rule a creative interpretation, and only if the words were spoken by my client.”

  Judge Atwood leaned forward. “Is the tape itself available?”

  “We haven’t been able to find it,” Madeleine explained. “It was probably erased.”

  The judge pressed her fingertips together, frowning in thought. “I’ll allow the testimony for now. Until I know what was said, I can’t make a ruling. In any event, I’m sure the issue will be raised again at trial, assuming the case gets that far.” She nodded toward Madeleine. “Would you repeat the question?”

  “What was the gist of the message your sister played for you?”

  Sheila lifted her chin. “Mr. Barrett was trying to convince Deirdre not to testify against him.”

  Grady began pulling at his fingers again. There were tiny drops of perspiration across his brow.

  “How did you know that it was Mr. Barrett on the tape?” Madeleine asked.

  “He said it was. And I recognized his voice.”

  “Do you recall the exact words he used?”

  Sheila looked down at her hands. “He said that if Deirdre didn’t recant her story, she’d ‘live to regret it, but not for long.’ Those were his words.”

  I could feel Grady tense. “Not true,” he whispered through clenched teeth. “I never threatened her.”

  Madeleine tilted her head. “And did your sister consider retracting her complaint?”

  “Never,” Sheila said emphatically. “And the defendant knew it.” She shifted her gaze and looked directly at Grady. “That’s why he killed her.”

  I jumped to my feet. “Your Honor.”

  “Yes, I know. I will disregard the last remark.”

  Chapter 43

  Madeleine nodded in my direction. “Your witness.”

  I began where Madeleine had—with the sisters’ relationship. I knew that Sheila was angry with me because I hadn’t counseled Grady to plead the case out. And now, in addition, she was upset that I was forcing Adrianna to testify. She wasn’t going to cooperate any more than she had to.

  “Were you and your sister always close?” I asked, mindful that six years is a sizable age difference at certain stages.

  “In recent years, yes.”

  “How about when you were younger.”

  “I was in high school when she was still a child,” Sheila said. “Although we got along, I suppose we weren’t close.”

  I wondered fleetingly what Sheila had been like at sixteen. Had she been as somber and reserved as she was now?

  “But as you both grew older,” I said, “the relationship became closer, is that correct?”

  “Yes. Particularly after Adrianna was born.”

  “Was your sister living with you at that time?”

  “No. She and her husband were down in Palo Alto.” Sheila’s expression darkened for a moment, then she gathered herself back. “I visited them frequently, of course, and I took care of Adrianna on any number of occasions when Deirdre and Frank wanted to get away. After he died, she and Adrianna moved in with me.”

  Would I gain anything by bringing out Deirdre’s brush with bankruptcy? Probably not, especially at this stage.

  “Frank was your brother-in-law?”

  Sheila sucked on her bottom lip. “Yes.”

  “After she was widowed and moved in with you, did Deirdre live with you continuously until the present?”

  Sheila took a sip of water. “No, she moved out several times. She tried to make it on her own, but... well, it’s hard to raise a child as a single parent. Especially if you don’t have much in the way of assets or income.”

  “So she moved back out of necessity.”

  Sheila looked at me sharply. “It wasn’t out of necessity. At least not in the way you make it sound. I liked sharing my house with my sister and niece, and they liked sharing their life with me. We were close, all of us. A family.”

  I nodded, and moved on to the morning she’d learned of Deirdre’s death. “You said that Adrianna called you a little after six A.M.?”

  “That’s correct.”

  “And you got to the house before the patrol officer, who arrived at six thirty-three?”

  She thought for a moment. “Yes.”

  “You left home immediately after receiving the call?”

  “Yes, I was out the door in an instant. I knew something was terribly wrong.”

  I tapped my chin. “Were you asleep when Adrianna called?”

  “No. I was already up for the day.”

  “And dressed?”

  “Yes.”

  “Had you had breakfast?”

  She gave me a puzzled look. “I’d had coffee. I don’t normally eat breakfast.”

  “So as soon as you hung up the phone from talking to your niece, you grabbed the car keys and left?”

  “Yes.”

  “And when you arrived at the house, did you render aid to your sister?”

  Sheila dropped her gaze. “I could tell from looking at her that she was dead.”

  “You didn’t check for a pulse just to make sure?”

  “There was no need. And at that point I was more worried about Adrianna.”

  “You testified that you tried to comfort her. How did you do that?”

  Sheila cleared her throat. “I held her, read to her a little. The police wouldn’t let us leave, but I didn’t want Adrianna to see all that was going on. We went into the den, where it was quiet.”

  “At what point did she tell you about seeing the silver convertible?”

  “Not until the police were questioning her. They let me stay when they talked to her. Until then, I’d just assumed she’d slept through the night.” Sheila took another sip of water.

  “And when the police allowed you to leave, what then?”

  “I took Adrianna home.”

  I stepped back to the defense table, standing near Grady. “Moving now to the answering machine tape. You stated earlier that Mr. Barrett gave his name when he left the message.”

  She nodded.

  “Anyone could have given Mr. Barrett’s name. Isn’t that so?”

  She hesitated. “I recognized the voice.”

  “After he’d said his name.”

  For a moment she looked flustered. “I know it was him. Deirdre told me. She said she wasn’t going to cave in to him.”

  Grady exhaled loudly, shaking his head in denial. I shot him a warning glance.

  “Ms. Barlow,” I continued, “you heard a message that you believed was left by Mr. Barrett. Your sister assumed it was Mr. Barrett. But you don’t know, with absolute certainty, that it was Mr. Barrett’s voice you heard, do you?”

  “It was him. I’m cert
ain. I know his voice.”

  We’d see, come trial, if she knew his voice as well as she thought. And I could use her certainty here for impeachment purposes.

  I shifted gears. “Your sister interpreted the message as a threat?”

  Sheila relaxed, clearly glad to be off the matter of identification. “Yes.”

  “Was she scared?”

  “Of course she was. Who wouldn’t be?”

  I moved closer to the witness box. “Then why didn’t she contact the police?”

  Sheila licked her lips. “I don’t know. Maybe she thought it wouldn’t do any good.”

  “And why would she open the door of her home to a man she was afraid of?”

  “I don’t know,” Sheila snapped. “Deirdre sometimes used bad judgment.”

  My shoulders were tight with tension. I stepped back to the defense table, thinking I might leave my questioning of Sheila Barlow at that. It was becoming clear there was no way we were going to get a dismissal. The case was going to trial.

  But the lunchtime conversation with Byron Spencer had been churning in the back of my mind all afternoon. Abruptly, I swung around.

  “Was your sister ever arrested?”

  Madeleine was on her feet immediately. “What’s that got to do with anything?”

  Judge Atwood raised an eyebrow, looking in my direction.

  “It goes to the existence of another suspect, Your Honor.”

  Madeleine crossed her arms. “It’s the defendant who’s the focus of this hearing, Your Honor. Our purpose is to determine if there is probable cause to believe that the defendant committed the crime in question. That’s all we need look at.”

  “Your Honor, the case against my client is entirely circumstantial. It’s our contention that the police moved in haste, without examining all the possibilities.”

  “You’re saying that the evidence believably points to another suspect?”

  I took a breath and threw caution to the wind. “Yes, Your Honor.”

  “You have a specific somebody in mind?”

  “I might.”

  Judge Atwood rubbed her nose. “This is highly irregular.”

  “An innocent man has been arrested for murder, Your Honor. He’s been deprived of his liberty, of the comfort of his family.”