Move to Strike

by Perri O'shaughnessy

  “But that doesn’t make any sense,” Paul said. “Help me out here. You were arguing.”

  “That was after I found out . . .”

  “What?”

  “Nothing. I didn’t kill the doc, and I didn’t break any laws. Which concludes our business here today, in my view.”

  “But you were fighting,” Paul persisted. “And you won’t say why. That leaves a huge question hanging out there.”

  Nina moved. She got up to stand in front of Rankin, hands on her hips.

  “Nina,” Paul said, his voice warning her.

  She ignored him. “You chased my son in the woods,” she said, aware only of Dennis Rankin. “You scared him to death. And you would have hurt him, too.” She remembered that night, the smell of the moist clumps of leaves on the ground, how hard Bob’s heart had pounded when she finally got to hug him again. The thought of him running in the dark woods so afraid blinded her momentarily to the brightness all around them. All she could see was Bob’s face when they got back to the house, the new dark place in his eyes that resided there all the time now.

  Rankin stared at her, then let out a laugh like a bark. “That was your son? Nimble little bugger.”

  She could see every clogged pore on his face, the wild hairs on his eyebrows, the dirt streaming down his neck. “This is for you,” Nina said. She handed him a subpoena.

  He took it.

  “And so’s this.” Nina’s arm went back and swung forward before Paul could stop it. Her palm connected with Rankin’s filthy face so hard that he reeled back a step. Fast as a scorpion, he jumped toward her, jerking the pickax up over his shoulder, getting ready to let loose . . .

  Paul grabbed her and pulled her out of reach.

  “How dare you,” she said to Rankin, rubbing her stinging hand. “You were the one in my truck, too, you bastard!”

  Tim sprang to his feet and took a position next to Nina and Paul.

  Just in time, because Rankin raised his ax and charged, swinging wildly as they scattered. Screaming curses, he followed Nina, who was running pell-mell down the hill, slipping on clods and gravel, falling and picking herself up, with the big man rumbling down after her, heavy as a truck. Paul managed to get between them, and ducked out of the way as Rankin swung. “Run!” he said to Nina and Tim. Nina paused just long enough to notice the mark of her hand across Rankin’s fleshy cheek. Then she ran after Tim, who had put a jackrabbit’s distance between himself and the fight.

  Paul, not moving fast, used strategy. He got Rankin running fast down a steep slope behind him, then shifted direction suddenly and watched with satisfaction as the huge man lost his balance and fell. “We’ll be going now,” Paul said before Rankin had time to shake his brain back into place and come after them.

  He climbed as quickly as he could to join Nina and Tim, who were waiting for him uphill on the trail. Accompanied by a steady stream of threats and invective from the gully below, they headed back, Tim grabbing his pack on the way. After they got out of visual reach, Tim started to whistle softly.

  “You move surprisingly well for a guy who was freaking out a minute ago over a snakebite,” Paul observed, panting.

  Tim pushed his pant leg firmly over the spot Nina had neatly cleaned. “I’m tougher than I act,” he said.

  “There was no snake. There was no bite,” Nina said.

  Paul’s eyebrows shot up.

  “He faked it.”

  “Got a real good look in those buckets,” said Tim. “Got a good look at the rock wall. That’s what you wanted, wasn’t it, Nina?”

  “That’s what I wanted, Tim. Did you see anything?”

  “Bentonite. The right kind of clay. But no opals. He’s not finding anything but low-grade opals he couldn’t sell for a couple of bucks to the rock store. You practically took his jaw off, Nina. I thought lawyers were—”

  “Bare-handed, she takes on Charlie Manson and his pickax,” Paul said.

  “I never did anything like that before,” Nina said, feeling the contact with Rankin’s grizzled, stinking skin on her hand again. She wiped it on her leg, trying to remove all traces of the encounter. “I don’t know what came over me.”

  Paul said nothing, but he put a hand on her shoulder and squeezed.

  When they got back to the Bronco, Tim pulled out a small sample he had filched from one of the buckets while Nina had been playing nurse, and examined it. “No. He’s not working a strike. He’s looking, but he’s not finding anything.”

  “The opals must be on the Logan claim. Rankin started out prospecting his own land,” Paul speculated. “He found inferior opals there and checked out some nearby properties, maybe without permission. That’s where he found the really good opals Sykes had, that Nikki took.”

  “The geology in this area is under-examined.” Tim shuffled the map. “But it seems impossible that black fire opals would be discovered so far from the Virgin Valley. The adjoining claim would have had to have the volcanic action plus the right minerals. I want to see the claim. It’s due east of here, but we have to go all the way out to the main road first.”

  “Tim, we don’t have enough time to look at Grandpa Logan’s claim today,” Nina said. “I have to get back to Tahoe tonight. It’s a five-hour drive.”

  “Fine,” Tim said from the back seat. “I’ll show you where to drop me. I’ve got a tent, water, supplies, and a phone in the bag. I’ll camp out on the claim tonight, and call one of the T.A.’s from the university to come and pick me up when I’m finished.”

  “Your phone might not work this far out,” Nina said.

  “I’ve got a satellite phone. I do lots of work in remote places. Now, don’t you worry about old Tim.”

  “You’re a good man, for an expert witness,” Paul said. “Tim, those opals Nina showed you in your office, you thought they were valuable, right?”

  “They were larger and more stable than any I’ve seen.”

  “If another half dozen existed, even larger, the real cream of the collection, would you say they were extraordinarily valuable?”

  “Hmm,” Tim said. “Depends on your context. The largest rock she showed me might—and highlight that word in your mind with a bright yellow marker— might just fetch a few thousand. So take a dozen, half of them even larger than the ones I saw . . .” A dreamy look came into his eyes. “I’d say that entire stash was worth over $100,000, sold to the right bidders. Maybe more. That’s if they are uncut. Cut and polished by the right expert, much more.”

  “It’s a lot,” Nina said. But it was really just money. She felt tired. Was that what this case came down to, another brawl over money?

  “Hitchcock’s MacGuffin,” Paul said.

  “What?” Nina said. She thought he was referring to a dog toy.

  “In every movie of his, there’s some important object everyone’s chasing. Only it isn’t really important what it is. It’s the story that comes out of how much people want it that is important. Remember in Pulp Fiction they opened the attaché case and you never even got to see what was this shining thing they’d all been struggling to get through the whole movie?”

  “That wasn’t Hitchcock,” Tim protested. “That was Elmore Leonard, wasn’t it? No, wait. The Italian guy.”

  “You think the opals are at the heart of this?” Nina asked.

  “No,” Paul said. “That’s what I’m saying. They’re just objects. The heart of the case is inside someone, beating fast.”

  “Poetic,” Nina said. “Who?”

  “And the suspects, they go round and round,” Paul said. “Or maybe the opals have nothing to do with this, and our original theory, that Sykes’s murder was connected with a malpractice case, is the more likely one.” They continued their discussion until they reached the end of the dirt road. Relaxing his hands on the wheel as they hit smooth asphalt, Paul said, “At least we know one thing. We know who was calling Nikki, who came after you, and who chased Bob through the woods that night. And who argued over something with
Sykes at the casino a week before he was murdered. Are you going to sic the police on him, Nina?”

  “I think . . . we can use him in our case somehow. So I guess not. And he’s right. He never did hurt any of us, just used scare tactics. I don’t think he’s a danger to us, now his story’s out.”

  “He knows we know who he is,” Paul agreed.

  They fell into thought. In the back seat, Tim, who had been marking their map with a highlighter, said, “Stop here.”

  They all got out and stretched. Late afternoon had brought the long blue-green shadows out. Buzzards circled overhead. A faint track led off across a scrubby meadow with the same line of mountains behind it. A wooden post beside the track was marked with a couple of black stripes. The Logan claim.

  “You sure you want to do this?” Paul said.

  “I’ve never been so thrilled in my entire professional life,” Tim said. He shook hands with them. “I’ll report in when I get back.”

  “Take it easy,” Nina said. Climbing into the driver’s seat, she looked down the dusty track toward the barren hills.

  “Maybe there’s a claim I can stake myself nearby,” Tim said.

  “I have the feeling all the relevant land is taken,” said Paul.

  “Oh, well,” Tim said philosophically. He tucked the map into his bag along with his stolen rock. “There’s still the glory of scientific publication.”

  CHAPTER 24

  PAUL, NINA, SANDY, Wish, and Dr. Ginger Hirabayashi sat around Nina’s conference table on Monday morning in postures that to Nina’s eyes perfectly exemplified their roles. Paul, the sly spy, lolled innocently on the chair, his leg hanging over its arm as if he were sitting at home watching a ball game, but the eyes in his sunburned face were sharp on Nina. Sandy, the sentry, was parked like a Humvee near the door. Wish, the disciple, listened eagerly, his big ears pricked, eyes wide as he took in everything. And Ginger was the resident skeptic, arms folded, buzz-cut head cocked to the side, scanning for defects in Nina’s train of thinking.

  “The worst thing about this whole case is that Henry McFarland is buying into the current hysteria surrounding juvenile violence and has decided to try Nikki as an adult,” Nina said. “I’ve practically gone down on my knees to him . . .”

  “You mean, as in groveling, or as in pulling a Monica?” Paul interjected.

  Nina looked at him, at his silly smile, at his powerful shoulders, at his capable hands, most of all at his hazel eyes flecked with yellow which caught everything, and she thought again, a basilisk, checking the word against the man she thought she knew. Inhumanly cold on the inside. A killer.

  He noticed the look. “Sorry. Lousy joke,” he said.

  With an effort, she went on. “But the prosecutor has a lot of discretion in making that decision, and no prosecutor or judge is going to go against the tide of public opinion. The whole country is paranoid about kids her age right now. So she’s charged with murder in the first degree. It can’t be a death penalty case, but there is a possibility of a life sentence.” She shook her head, looking down at her coffee cup. “It’s incredible. It’s all wrong in light of the factors cited in the Kent case, and . . .”

  “How come she’s charged with first-degree murder?” Sandy said. “It’ll have to look like a crime of passion to a jury. Not cold-blooded. No plan and all.”

  “You mean no premeditation, Mom,” Wish told Sandy. Wish was studying law enforcement at the community college and getting much savvier. Sandy slitted her eyes very slightly and Wish said, “Uh oh.”

  “I know what I mean,” Sandy said.

  “Sure you do, Mom.”

  “Damn right she does,” Paul said.

  “You stay out of this,” Sandy warned.

  “Wish is just trying to be helpful, aren’t you, Wish?” Paul said.

  Wish nodded.

  “He’s got a lot on his mind,” Paul added.

  “That would be a first,” said Sandy.

  “What do you have on your mind, Wish?” Ginger asked him. “Now I’m just dying to know.”

  Wish said, “I’m buying Paul’s van. I’m getting some work done on it. A ring job, new brake pads, new CD player, and new upholstery in back.”

  Paul said, “You’re replacing my upholstery?”

  “Well, I mean, leopard skin? Pretty dated. Like the hippies or something.”

  “What will you put back there?”

  “Industrial carpeting. I’ll have my bike back there a lot and my friends won’t have to wipe their shoes.”

  “I just happen to have some surplus industrial carpeting,” Paul said. “Come down to Carmel with me when the hearing’s over and I’ll give it to you. I might even have a job or two to keep you busy until school starts up again.”

  “Excellent concept!”

  “Excuse me. Can we get back to Sandy’s important question?” Nina asked. “Why is Nikki charged with first-degree murder? With her usual discernment, Sandy has zeroed in on a crucial point in this case. First of all, Sandy, there doesn’t have to be premeditation for someone to be charged with first-degree murder. The charge in this case is based on something called the felony-murder rule.”

  “A homicide that occurs during the commission of another crime,” Wish announced, looking sideways at Sandy. She made no sign she had heard.

  “That’s right,” Nina said. “The theory is that Nikki was committing, or at least attempting to commit, a burglary at the time of the death. Burglary’s a felony. That’s why we face a first-degree charge. Now, we have to try to get Nikki back into the juvenile system. I think I could manage that if we could convince Judge Flaherty to throw out the burglary portion of the charge. Then the case would become a second-degree murder case and Flaherty would be much more likely to let Juvenile Court take over. That’s going to be the main strategy at this hearing.”

  “What would happen to her there?” Wish asked.

  “She’d be out at age twenty-five,” Nina said. “At worst.”

  “Nine long years from now,” Wish said. “That’s the best we’re hoping for?”

  For the length of time it took to adjust a few cramped limbs and take a sip or two of coffee, they all looked at Nina. They would take their cue from her.

  “No,” Nina said. “That’s not the best we can hope for her, but it’s all we can do right now. I think we have an innocent client. The problem is, we can’t prove it. It’s too early. We have leads that go all over the place. At this point, I don’t have any way of getting the entire case thrown out. So I’m attacking on a technical point that will substantially lessen our burden at trial.”

  “So it’s sort of an intermediate motion. You’re trying to get her into the juvenile system. You’re not trying to prove the girl is innocent,” Ginger said.

  “I would if I could.”

  “What are the main leads you’re working?”

  Paul answered Ginger, counting them off on his fingers. “One. The girl’s mother did it. She was there that night. The girl may be protecting her, or she may be protecting the girl. Two: For several years, Dr. Sykes had been running into trouble with his practice. He made some serious professional blunders that may have generated a motive for murder. I’m thinking of Linda Littlebear in particular.”

  Sandy stirred but said nothing.

  “Three: Dennis Rankin had an argument with the good doctor over opals soon before his death. Four: Could have been a robbery. A kid named Scott Cabano was making a career of robbing houses along the lake. Maybe he came along after Nikki. Five: Persons unknown wanted both Dr. Sykes and his son dead, and sabotaged his son’s plane flight. And that’s just for starters.”

  They thought about this, drinking from their cups, drumming fingers, and in Wish’s case, tapping his heel against the floor until his mother smacked the table and insisted he stop.

  “Okay,” Nina said. “We are filing the paperwork this morning to move to strike portions of the testimony that was taken at the preliminary hearing. Does everyone
understand that?”

  More nods all around.

  “I am requesting what’s called a 995 hearing. That’s a hearing based on Penal Code section 995 to review whether, based on the testimony and evidence at the prelim, there was probable cause to bind Nikki over on the first-degree charge. In this hearing, I’m going to move to strike the felony portion of the complaint.

  “To do that, I’ll attack two things: all the prosecution testimony about Nikki’s blood being on the sword, and Louise Garibaldi’s testimony.

  “There is a problem. A 995 hearing is usually based only on the transcript of the prelim—it isn’t usually an evidentiary hearing. And we need to get Detective Ditmar and Louise Garibaldi on the stand.”

  “So?” Ginger said. “How do you get around that and make the judge accept new testimony?”

  “Well, there’s this seldom-used subsection I found . . .”

  Ginger broke into a broad smile, and Nina smiled back. “Section 995b. Essentially, if we can convince the judge that there is some sort of minor error in the written charges against Nikki, Henry can ask the judge to allow new testimony to correct the error so the information can stand. I can’t ask for it myself. I have to make Henry do it. So I’ll try to make Henry nervous enough about the motion to strike that he asks to bring in some more testimony from Detective Ditmar, his blood expert, and Louise. That will open the door for me to cross-examine them and maybe even put on Ginger in rebuttal.”

  “So you have the setup,” Ginger said. “Then what? How, exactly, do you use it to persuade the judge to strike the felony charge?”

  “Like this. First, move to strike all testimony placing Nikki in the study. Show the judge that Detective Ditmar, who testified that Nikki’s blood was on the sword, didn’t really conclude that the blood was Nikki’s. Detective Ditmar waffled at the prelim, Paul.

  “Without testimony that the blood matches Nikki’s blood, there isn’t any evidence putting Nikki inside Dr. Sykes’s study. It isn’t a felony just to trespass on her uncle’s property, or to jump in his pool, or to look into the study from the outside. None of that is enough to show an intent to burglarize.”