by David Ellis
“And what happened next, Jason?”
He lets out a breath, a small courtroom victory accomplished. “Then I went back home, and I continued my recovery. I remember Tuesday as being a rough day, but honestly they all were.”
“You were home all day?”
This is a question the police and prosecutors have wanted answered since July thirtieth, when they found Alexa Himmel’s body. Where was Jason until sometime just after midnight, when he claims that he first returned home and found Alexa dead?
“No, I didn’t stay home the whole day. I went to the beach later that day. Can’t be sure when. Maybe—maybe mid-afternoon? It was a nice day. I sat on the beach and watched the waves. I did some power-walking, too. The adrenaline helped. It was kind of like a substitute for the drug.”
It’s a bit unsettling how well Jason can lie. He never went to the beach that day. He was lying on the couch, alternating between suffering and sleep, the entire afternoon and evening. He couldn’t even hold down the peanut butter toast I made him.
“You stayed at the beach for how long, Jason?”
“I can’t be sure. Until it got dark.”
“Do you recall, during that time in late July, when it got dark?”
“Oh, around eight.”
Getting close to that 8:16 P.M. phone call to his house. The call from Alexa, that sent him scurrying over to her place. If he’d never answered the phone, if he’d refused her pleas, if he’d just stayed home with me—
“And I stayed there in the dark for a while, too,” Jason goes on. “Sometimes that’s the best time to be by the lake. So maybe eight-thirty, maybe nine. I mean, it could have been nine-thirty, too.”
“And then what did you do?”
“I drove around,” he says. “All over, I guess. Everywhere and nowhere. I wasn’t traveling to a destination.”
“That sounds . . . unusual,” Bradley says, faux confusion.
“Not if you consider why I was doing it,” he says. “I wasn’t going anywhere. I just needed time to pass. You have to understand, what you’re doing when you’re in withdrawal, when you get down to it, is simply killing time. Every minute you’re clean is a victory, another minute closer to not needing pills anymore. They’re horrible minutes, but necessary. So I was doing anything to distract myself, trying to ignore the cravings, trying to hold out. If watching a children’s cartoon would pass the time effectively, I’d do it. If suspending myself upside down would help, I’d do that. All I was trying to do was get my body and my mind accustomed to not having OxyContin.”
“But the car?”
“Sure, the car. I never once took Oxy while in my car. I’d take it at home or in my office at work. That’s where the maximum temptation was. I was better when I was places I didn’t associate with the drug. Like the beach. Or driving, concentrating on the rules of the road and the speed limit and staying in my lane and playing music really loud and all of those things. The more I had to focus on that, the less I was focusing on Oxy.”
Good, I say to myself. He handled that well.
“When did you get home?” Bradley asks.
“It was sometime after midnight.”
“And what happened when you got home?”
“When I got home,” Jason says, “I went upstairs. And there was Alexa. Lying on my living room floor.”
94.
Jason
“I don’t remember exactly when I called the police,” I say in response to a question from Bradley. “But it would have been very shortly after I found Alexa dead.”
Bradley takes a drink of water, maybe for dramatic effect, but I think because his nerves are giving him dry mouth. Funny, I never had that problem myself—my mind and body seem to function best in situations like this, under pressure—but it was a problem that plagued me through my addiction.
He’s done a nice job with me. I’ll have to remember to tell him so. If this thing goes south for me, he’ll take it hard. Not as hard as Shauna, but hard.
“Jason, did you call 911 on your cell phone or on your landline?”
“Landline telephone,” I say.
“How is it that this detail sticks in your mind?”
“Because I remember the light was blinking on my machine. I had a voice mail. After I called 911, I sort of sat there, numb. And I pushed a button and listened to the voice mail.”
“Was this a voice mail from 8:16 that evening?”
“I don’t remember. I mean, I didn’t check the time. I just pressed the button to retrieve the message and I listened to it.”
Since I’m making up this entire business about the voice mail, it is tempting to say, Yeah! I remember very clearly that the voice mail had come at 8:16 P.M., and the message was more than one minute but less than two! But who remembers shit like that? So I don’t want to overplay my hand here. If you’re going to lie, lie about stuff that really matters, and play it safe on less important details, so it doesn’t look like you’re lying.
I am, after all, the son of a con artist.
“And what was the message?”
“It was from Alexa,” I say. “It was a long message. She was talking about wanting to get back together, she was watching a love story on television about star-crossed lovers and she wondered if maybe there was a chance for us, and she was going to come by my house if that was okay.” I pinch the bridge of my nose and pause. Respectful silence. Pained silence. I look back up at Bradley and let out air. “Obviously . . . she decided to come by.”
Bradley puts on the screen the Call Detail Records for that day, showing the 8:16 P.M. phone call with the number 2 in the column for duration.
“Was the voice mail more than one minute but less than two?”
“Oh, God.” I sigh. “Bradley, the truth is, I have no idea how long it was. I mean, I had just found Alexa . . .” I swallow hard and pause, summoning emotion. I can’t fake-cry. I hardly cry for real, so the concept of faking it is foreign to me. But I bring my fist to my mouth and bow my head and pause.
“I’d just found Alexa . . . lying there,” I go on, “and now I’m hearing her voice on the phone. It was . . . I mean, it was crazy, it was . . . like a dream or something.” I take a long, hard breath. “If you told me it was ninety seconds, I’d believe you. If you told me it was ninety minutes, I might believe you, to be honest.”
“And did you keep that message on the phone, Jason?”
“I wish I had,” I say.
“But you didn’t?”
Everyone knows I didn’t. The police checked my voice mail and it was empty. My phone company has no retention policy on voice mails. If the user deletes the voice mail, it’s gone with the wind. They don’t even know if I had a voice mail at 8:16 that evening. All the phone company knows is that something—my voice mail or a human being—answered Alexa’s call, initiated the connection with her cell phone, at 8:16 P.M.
“Bradley—sorry, Mr. John,” I say, “I honestly don’t remember deleting that phone message, but I’m sure I did. It’s like—I do it by rote. I hear a message on my home phone and then I delete it. It’s automatic for me.”
It’s automatic for most people, which is why, again, I’m not overplaying my hand here and claiming that I specifically recall pressing 7 and erasing her message. My ex-girlfriend is dead, I’ve just called 911, but I remember deleting a voice mail?
It’s little things that separate good lies from bad. Maybe I should teach a class, or write a how-to manual. Lessons from My Father.
“Jason, let’s talk about whether Alexa had a key to your house. Do you recall portions of the videotaped police interview where that subject was discussed?”
“I do.”
We’re going here next because Shauna considers this subject a low point for us. She decided it was best to sandwich this topic between more favorable matters.
“Did Alexa Himmel have a key to your house?”
“Yes, she did. Of course she did. Until we broke up, she practically lived with
me.”
“The testimony we’ve heard,” says Bradley, “is that the police could find no such key on Alexa or anywhere else in your house.”
“I heard that, too. I don’t know what to tell you. I really don’t. I never got the key back from her. She still had it.”
“Did she typically keep it on her key chain?”
“Oh, boy.” I blow out air. “I really can’t say for sure whether she had it on her regular key chain or separate. I’m sorry. I really don’t know. Whenever we were together, I’d open the door. It was only when she was there by herself that she’d have to use the key. So I’m not sure I ever even saw where she kept the key or what she put it on.”
That sounds pretty good, I think. Better to do what I just did—throw up your hands, chalk it up to one of those things that probably has an obvious explanation, but you can’t think of it—than to have some elaborate explanation that checks every box. Again, if I’m a devious liar, why wouldn’t I come up with some carefully crafted explanation?
“Now, Jason, I’d like to turn to our final subject,” says Bradley. “I’d like to talk about this person you mentioned to Detective Cromartie as the possible killer. I’d like to talk about the person you called Jim.”
95.
Jason
“I’m going to replay a small portion of the police interview, Jason.”
Bradley hits “Play” on the computer. The projection screen comes alive. The jury gets to hear this snippet of the interview for a second time:
“You told me back at your house that you have a pretty good idea who killed Alexa,” Cromartie says. “Can you help me out with that? Who killed her, Jason?”
I don’t answer at first. Several seconds pass. I shake my head and wave a hand. “His name is Jim.”
“Last name?” Cromartie asks.
“Just Jim,” I say.
“Well . . . what can you tell me about Jim?”
The way Cromartie says Jim, it’s like he’s dealing with a little kid who is obviously lying.
“He . . . he has red hair,” I say. “He’s big, muscular. He wears glasses. He has a paunch, like, a gut.”
Bradley stops the recording. “Jason, who did you mean by ‘Jim’?”
“He was someone who came to my office. It would have been very early this summer. I want to say the first full week of June.”
“What was his name?”
“He gave the name James Drinker. He said his name was James Drinker, that he worked at Higgins Auto Body here in the city, and that he lived in an apartment building at the intersection of Townsend and Kensington in Old Power’s Park.”
Roger Ogren and Katie O’Connor are scribbling feverishly, trying to keep up.
“Can you describe this individual from a physical standpoint?”
“He was a very odd-looking person. He had long, kind of curly red hair. Thick black glasses. He was very muscular, like a weight lifter. And he had a big protruding stomach, a beer gut, I guess. Just like I told Detective Cromartie.”
“What did you two discuss?”
“I can’t answer that,” I say. “When a client comes in and tells me something, I’m sworn to confidentiality under the attorney-client privilege.”
“What if you, as an attorney, think this client is kind of shady? Up to no good?”
“That makes no difference. The privilege sticks.”
“What if it turns out he’s lying to you about his true identity?”
I shake my head. “It doesn’t matter. If the attorney-client privilege were broken every time a client lied to his lawyer, very few clients would have the privilege. Plenty of clients have lied to me over the years, Bradley, on big things and small things. It doesn’t eviscerate the privilege.”
“Does the privilege always apply, no matter what?”
“Basically, yes. The only exception is if the client tells me—I mean, literally tells me—that he or she is going to commit a crime. If I hear them say that, I have a duty to report them.”
“Did that happen here?”
“No, it did not. I may have had my suspicions—well, I did have my suspicions. I can’t give you the details of what we discussed, but he never said he was a killer, much less that he was planning to kill again. So I had to keep it all confidential.”
“Let me jump forward in the police interview, Jason.”
Bradley, who knows computers better than I ever will, dials up the next passage, skipping a handful of questions.
“Did this . . . Jim tell you that he was going to hurt Alexa?” Cromartie asks. “Or you?”
I shake my head. “Not in so many words. I wish he had. If he had, maybe I could have done something.”
“I don’t understand what that means,” Cromartie says.
Stop tape.
“Detective Cromartie said he didn’t understand what you meant by that, Jason. Can you tell us what you meant?”
“Well, it’s just what I explained. He was my client, for the purposes of the privilege, the moment he entered my office. If this individual had told me that he was going to hurt Alexa, or me, or anyone else, for that matter, I could have done something. I could have reported him. That’s why I said, ‘I wish he had’ told me that. I didn’t know he was going to hurt Alexa. It never occurred to me.”
“Objection,” says Ogren. “We’re assuming facts not in evidence, and there’s no foundation for that statement. There’s absolutely no evidence in the record that this unknown man of mystery did anything at all to Alexa Himmel.”
“I’ll sustain that objection,” says the judge, “but let’s limit the speeches, Mr. Ogren.” The judge has the court reporter read back my answer and strikes the last two sentences.
“Well, Jason, regardless of what this man calling himself James Drinker may have done, did he ever give you any indication that he was going to hurt Alexa?”
“No, he didn’t.”
“Very good. This man, ‘James Drinker.’ Did you confirm that there was, in fact, a man named James Drinker who worked at Higgins Auto Body and who lived at 3611 West Townsend, here in the city?”
“I did confirm that, yes. So I assumed he was on the up-and-up.”
“How many times did you speak with this man?”
“Twice at my office, in early June.”
“Any other time?”
“Well, in a manner of speaking, yes.”
“Explain that.”
“In very late June, let’s say that . . . well, a crime had been committed that concerned me. By that, I mean, I was concerned that my client had committed that crime. And I wanted to discuss it with him.”
“Did you call him?”
“I couldn’t call him. He left no home phone and no cell phone. On rare occasions, I would speak with him by phone, but it was always him calling me, and it was always on one of those disposable phones you buy at the convenience store with a blocked phone number. So I had no way of calling him.”
“So what did you do?”
“I went to his house. I believe it was a Saturday. The last Saturday in June. His apartment at 3611 West Townsend, in Old Power’s Park. I think his apartment number was 406.”
“Did James Drinker answer the door?”
“Yes, he did.”
“Describe his appearance.”
“The same general characteristics. Long curly red hair, big muscles, black glasses, a big gut. Still funny-looking. But it wasn’t the same person.”
“Can you explain that?”
“The person living at that apartment, James Drinker, had all the same general features as the man who came to my office. But it was clearly a different person. Different eyes, without the glasses on. Different nose. Different voice. I apologized to the guy and I left.”
“So, Jason. What did this mean?”
“The man who came to my office gave me a bogus name and wore a disguise.”
Roger Ogren actually chuckles a bit, then raises his hand in apology.
“That’s ok
ay, I thought it was crazy, too,” I say. “Why would a client come to you, for a confidential discussion, and wear a disguise and give a fake name?”
“And did you come to discover an answer to that question?” Bradley asks me.
“Yes,” I say. “Because he was afraid I would recognize him. And because he wanted to mess with me.”
“Objection,” says Roger Ogren. “Foundation.”
“Sustained.”
“Okay, you need to explain that,” Bradley says, as if he’s just as curious as the jury, and the prosecution, and my brother, Pete, sitting in the gallery, must be. “Did you come to learn this person’s true identity?”
“I did. This person’s name was Marshall Rivers.”
Roger Ogren looks like he’s about to drop his pen.
Annnnd there, he drops it.
“And who was Marshall Rivers to you?”
“About eight, nine years ago, when I was a prosecutor, I took a confession from Marshall Rivers on a gun charge. Possession of a firearm. We were also looking at him for trying to forcibly abduct a woman and her child.”
“And you said you took his confession?”
“Yes, I was the prosecutor assigned to the police station where he was brought in after his arrest.”
I begin to provide the details from that night, as best as I can remember them. I recall the big picture, but not the small details. The whole thing doesn’t particularly stand out in my mind, because I dealt with dangerous criminals like him every day, and because the mind games I used on Marshall were the kinds of methods I employed on a daily basis during Felony Review.
Before I get too far, Roger Ogren objects and asks for a sidebar with the judge. I’m not privy to the conversation between the judge and the lawyers in the far corner of the courtroom, but I know Bradley is arguing that the details of my interrogation of Marshall Rivers are very relevant.
The judge overrules the objection. Bradley walks me through that entire sequence of events. I wish I didn’t have to emphasize what I did to Marshall, because it shows the jury a side of me that is less than forthcoming, even devious. But the details show why Marshall was pissed off at me. It shows his motive to do what he did to those women and, in his mind, to me.