Guilt

by John Lescroart

  Father Herman, his major domo, stood in the hallway in the at-ease position, and behind him, hands clasped in front of him, was Eugene Gorman, pastor of St Emydius. Seeing him, Flaherty's stomach tightened, and he put his hand over it.

  Herman was trying to explain that he had asked Father Gorman to wait downstairs and he'd send the Archbishop down to see him in the study, but…

  'That's all right, Father. This is an old friend. You want to come in here, Gene? I don't have anything but hard chairs to sit on.'

  When the door closed behind them, Flaherty walked across the room and sat on his desk. Gorman stood awkwardly and finally, looking behind him, sat down on the Archbishop's bed. 'I'm sorry to bother you. I wouldn't have if this weren't an emergency.'

  'It's all right,' Flaherty began, 'we're-'

  But Gorman cut him off. 'I have been examining my conscience now for months, and I don't know what else to do. I need for you to hear my Confession.'

  Flaherty cocked his head at the man across from him. He seemed to have aged five years since they'd last spoken in May or June.

  The light was dim. A crucifix, the only ornament in the room, hung over Flaherty's bed.

  Gorman's eyes were tortured, pleading.

  The Archbishop nodded once, boosted himself off the desk, and crossed to the bed. He put his hand behind Gorman's head and stood like that for a moment.

  Then he went over to his dresser and picked up his stole – the sacramental cloth. Draping it over his shoulders, he returned to the bed, and sat down next to Gorman, making the sign of the cross.

  Gorman began. 'Bless me, Father, for I have sinned. I am living in a state of mortal sin, in despair.'

  'God will give you grace, Gene. He won't abandon you.'

  But Gorman didn't seem to hear. He continued. 'I am tormented by guilty knowledge and bound by the seal of the confessional. It's destroying me, Jim… I can't function.'

  Flaherty began to offer his counsel to Gorman. This was one of the heaviest burdens of the priesthood – penitents had terrible secrets they needed to confess…

  Gorman couldn't hold it in any longer. 'This was murder, Jim. Literal murder.'

  Entering his apartment after another night on the town, Wes Farrell was confronting another of the deadly sins, pride. The headiness of his success had not obliterated his doubts about his friend nor any moral qualms concerning his strategies at the trial, but he would be damned if he would let any of that nonsense stand in his way now.

  Winning was what mattered. Winners had to learn to ignore those small voices of discontent, the traces of timidity, that hampered lesser souls – that were, indeed, the hallmark of lesser souls.

  Wasn't it De Gaulle who had said that to govern was to choose? Well, Wes thought that the sentiment translated well into his own situation. He would no longer consider other paths he might have taken, could have taken, that were perhaps more righteous and less ambiguous. No, he had chosen to believe Mark Dooher, chosen to defend him. And those decisions had elevated him in his community. And that was what mattered.

  After a certain point, you just didn't have to think about certain things anymore.

  He had been reading about his exploits every day, hearing himself described in the various media as brilliant, dogged, ruthless, even charismatic. He wasn't about to give any of this up by worrying too much about the vehicle that had propelled him to here. It was Faustian, perhaps, but he'd often said he'd sell his soul for this chance.

  It might have disappointed him when he'd been younger and more idealistic, but right now all he could think was: I'll take it, I'll take it, I'll take it – and while we're at it, give me more.

  The time was 11:15. He was entering his apartment, filled with these thoughts. A dinner at John's Grill had turned into a testimonial from some of the other diners who had recognized him. He was resolving to change his residence in the next couple of months, get himself another house and a house cleaner to go with it, a new car, fix up the office as befitted his station.

  The telephone was ringing and he crossed the room, petting an ecstatic Bart, and picked it up.

  'Wes. This is Jim Flaherty.'

  The usually husky, confident tone was missing. 'Your Excellency, how are you?'

  'Well, I'm not too good, to tell you the truth.' A long breath. 'I might as well come right out with it, Wes. I'm afraid I've decided I'm not going to be able to testify for you, for Mark, about his character.'

  Farrell pulled out a kitchen chair and sat heavily upon it. He had been expecting to call the Archbishop tomorrow and wrap up his defense.

  'But just two nights ago…'

  'I realize that. I know. But something has come up…'

  'What?'

  Another pause. 'I'm not at liberty to say.'

  'Archbishop, Father, wait a minute. You can't just-'

  'Excuse me, Wes. This is a very difficult decision, one of the hardest of my life, but I've made it, and that's all there is to say about it. I'm sorry.'

  The line went dead. Farrell lifted the receiver away from his ear and looked at it as though it were alive. 'You're sorry?'

  He put the phone down and stared at his wavy image, reflected in the kitchen window.

  Flaherty sat, alone again, on the side of his hard bed. He'd wrestled with it for an hour or more, trying to find some other interpretation for Father Gorman's words. He grudgingly admired Gorman's decision the way he'd come to him for Confession. The strategy was, Flaherty thought, positively Jesuitical. Gorman never said Dooher's name, never even implied whether it was a male or a female who had committed the murder or, for that matter, whether it was one of his parishioners. He didn't, technically, break the seal of the Confession.

  But there was small doubt about what he was saying, and none at all about whether it was true.

  CHAPTER FOURTY TWO

  A war had broken out in Thomasino's chambers.

  The lead attorneys, the Judge, and Glitsky had originally gathered to discuss logistics. Farrell had decided that, after all, he wasn't going to call character witnesses – he didn't need them. The defense was going to rest.

  And then Jenkins had dropped her bomb, saying she would like to call a rebuttal witness then, someone who wasn't on her original witness list, a man who had been at the driving range during the time Dooher claimed he was, and who hadn't seen him.

  Glitsky was sitting in his chair off to the side, and Farrell, looking again more as he'd appeared earlier in the trial – the King of Insomnia – was screaming.

  'She's known about this witness all along, your honor! If I'd known about this witness or his testimony, I never would have asked Mr Dooher to take the stand. And this witness is nowhere on any of her lists. This is an incredible, unbelievable, egregious breach of professional ethics.'

  'Oh, get a grip, Wes,' Jenkins retorted, 'it's nothing of the sort. It's Prop One Fifteen.' She was referring to California Proposition 115, which eased the prosecution's obligations regarding discovery to the defense. The law changes every once in a while, Wes, you'll be surprised to hear. Maybe you ought to try to keep up on it.'

  'I keep up on the Goddamn law as well as a Goddamn rookie homicide prosecutor on her first case that she's blown all to hell because she doesn't know…'

  Thomasino, atypically wearing his robes in chambers, had heard all he would tolerate – Glitsky was surprised he'd let it go as far as it had – and now he was slapping his hand down on his desk, hard. 'All right, all right, enough! I said enough!'

  Both attorneys sat, breathing hard, in front of the Judge's desk. Thomasino, not jolly on his best day, was a study in controlled rage, his eyebrows pulled together until they met, a muscle in his jaw vibrating under the pressure of holding it so tight.

  Gradually, he gathered himself. The face relaxed by small degrees. 'This is a matter of law,' he said, almost whispering, 'not a matter of personality. Although, Ms Jenkins, I must admit to some discomfort about it. Surely you knew about this witness before this, an
d if that were the case, the name should have appeared in discovery.'

  The name they were discussing was Michael Ross. In the early days of the investigation, Glitsky had gone out to the San Francisco Golf Club and reviewed the credit-card receipts for the night of June 7th. Michael Ross had paid for a bucket of golf balls by VISA card, and the transaction had been run up at 8:17 p.m. Glitsky had brought the receipt in to Jenkins and they'd had a discussion about it in her cramped and airless office.

  The moment was etched clearly in Glitsky's memory. Jenkins's eyes took on a faraway look as she'd sat at her desk, fingering the receipt. He had figuratively seen the light bulb go on over her head.

  'Why don't you go out and interview this fellow Ross by yourself, Abe? You don't even need to bring your tape recorder. It's probably nothing anyway. And don't write it up until we've had a chance to talk about what he's told you.'

  Glitsky had been a cop long enough, he didn't need a road map. Jenkins wasn't suggesting anything illegal – it could be said that she was trying to save Abe the trouble of writing up lots of meaningless paperwork. It wasn't even procedurally suspect. He interviewed lots of people in the course of any investigation, and often these interviews were casual, limited, irrelevant to the case. There was no need to tape anything.

  Of course, in this case Glitsky knew what Jenkins was really telling him – she wanted to limit what she had to give to Farrell as discovery. She knew early on that their evidence case was weak, and she was going to sandbag the defense if she got the chance, which was what she was doing in Thomasino's chambers early on this Friday morning.

  Perry Mason notwithstanding, real trials were not supposed to deal in surprises. The discovery process – where the prosecution must turn over to the defense all evidence it possesses relating to the case – is supposed to guarantee that the defense sees all the cards before the game. It's how those cards are played that determines the winner.

  Jenkins was supposed to provide Farrell with a list of the prospective witnesses she might call during the course of the trial. She didn't have to call every witness on the list, or any of them, but in theory she couldn't call anyone who wasn't on the list.

  And Michael Ross hadn't been.

  Back in the war zone, the soldiers continued to scuffle. Jenkins was holding up the faded yellow tissue with Michael Ross's name and VISA number on it. and pointing out that she had Xeroxed it, both sides, and it had been turned over to Wes Farrell when he'd requested discovery documents. 'Is that true, Mr Farrell? Do you have a copy of this document?'

  'So what, your honor? What's the document mean? I even ask her back last June, July sometime, and she says it means what it means. So I look on her witness list – there's no Michael Ross. She's not allowed to call him, am I right?'

  'I'm calling him in rebuttal.'

  Farrell brought his own hand down on the edge of the armchair. 'You knew all along you were going to call him. Don't give me that crap.'

  'Mr Farrell.' Thomasino, too, was heating up. 'If I hear any more profanity out of you in this chambers, or out of your witnesses or defendants in the courtroom, I'm going to hold you in contempt. We're not street-fighting here, and we're not gangsta rappers, and if you say so much as "darn" in my presence, you'd better have an unassailable reason for doing so.'

  Farrell sat back in his chair. 'Sorry, your honor. I mean no disrespect.'

  'Well, intention or no, it is disrespectful and I'm not going to have it.' Thomasino's eyes strafed the room, came to rest on Jenkins. No one, it seemed, was going to get off easy here. 'Now, as to this witness, Ms Jenkins, do you care to explain to me how you saw fit to include this credit-card slip in your discovery documents and yet at the same time omit the man's name from your witness list?'

  'Your honor, he's a rebuttal witness. I didn't know I was going to call him until Mr Dooher testified.'

  Glitsky was kind of enjoying seeing Farrell sputter, sitting forward now, seeking non-profanities. 'I believe that is not the truth, your honor,' he finally said. 'When did she interview this witness?'

  'Lieutenant Glitsky interviewed him.'

  Finally in on the action, Glitsky took the chance to goad Farrell further. 'About two weeks after your client killed his wife, give or take.'

  But the attorney ignored the challenge. 'Two weeks?' He turned to the Judge. 'Your honor, two weeks. She knew she was going to call him. Where were Glitsky's notes on the interview, the transcription, anything?'

  Abe was glad to see Jenkins cover for him for a change. 'I didn't ask for a tape. It was a preliminary interview.'

  'Ms Jenkins,' Thomasino said, 'I'm not liking what I'm hearing here. It sound to me like you deliberately tried to circumvent the discovery process.'

  'Damn… darn straight she did!'

  The Judge pointed a finger across the room. 'And you, Lieutenant, I find this hard to believe of you.'

  Glitsky shrugged. 'I just build 'em, your honor. I don't fly 'em.'

  'Judge.' Jenkins wasn't having it. 'How could I have put this man on my witness list? He was no part of my case in chief. What was he going to say? That he didn't see Mark Dooher at the driving range? What am I supposed to do, provide a list of everybody who didn't see Mark Dooher at the driving range? That's pretty much the whole city, isn't it? And, in fact, the prosecution rested its case against Mr Dooher without using Mr Ross. If Mr Farrell here hadn't opened this whole can of worms by having his client testify, we wouldn't be having this discussion right now. It would never have come up.'

  'All right, all right.' Again, the warning hand, palm up. 'I'm going to let him testify.'

  Farrell went ballistic. 'Your honor, please…!'

  But finally, Thomasino's fuse flared. 'Mr Farrell, if you please. We're going outside now into the courtroom and Mr Ross is going to testify. That's my ruling and I don't want to hear another word about it.'

  Michael Ross was a twenty-one-year-old student at San Francisco State University – clean cut, well spoken, well dressed. From Glitsky's perspective, he was the last hope, if in fact it wasn't already way too late. But Jenkins, no denying it, had played this card masterfully.

  'Mr Ross,' she began, 'on the evening of June 7th of this year, would you tell us what you did between the hours of seven and ten p.m.?'

  Ross had a fresh and open face and he sat forward in his chair, enthusiastic yet serious. 'Well, my wife and I put our daughter to bed' – he looked over at the jury – 'she was just a year old and we put her down to bed at seven o'clock. Then we had dinner together. We barbecued hamburgers. It was a really nice night, and after dinner, about eight, I asked my wife if she'd mind if I went and drove a few golf balls.'

  He seemed to think this might need some more explanation, but hesitated, then continued. 'Anyway, I went to the San Francisco Golf Club's range and hit a large bucket of balls, and then came back home.'

  'And what time did you leave the range?'

  Ross thought a moment. 'I was home by nine-thirty, so I must have left at about ten after nine, quarter after, something like that.'

  Jenkins produced the credit-card slip, showing that Ross had picked up his bucket of balls at 8:17, and entered it into evidence as People's Exhibit Number Fourteen. 'So, Mr Ross, while you were out in the driving-range area, did you go to a particular station to hit your bucket of balls?'

  'I did.'

  'And where was that?'

  'I turned left out of the clubhouse and walked down to the third mat from the end.'

  The third from the end on the left side as you left the clubhouse?'

  'Yes.'

  Again, show and tell, and Jenkins produced the posters she'd first used with the maintenance man and then during her cross-examination of Mark Dooher. She mounted them on to the easel next to the witness box, side by side. 'Could you point out to the jury, Mr Ross, just where you stood, according to both of these visual aids?'

  He did.

  'And how far, then, were you from the first mat, the one Mr Dooher has testif
ied he used on this night?'

  Ross stole a neutral glance at Dooher. 'I don't know exactly. Twenty or thirty feet, I'd guess.'

  'So Mr Ross, to reiterate: you went out with your bucket of golf balls at around eight twenty-five and you stood hitting shots from a mat and a tee three spots from the end on the left side, finishing up at around nine-fifteen. Is this an accurate rendition of the facts you've presented?'

  'Yes.'

  'All right, then. During this period of time, nearly an hour, while you stood two mats away from the last mat on the left, did you at any time see the defendant, Mark Dooher, at the last tee?'

  'No. I didn't see anybody. There was nobody at the last tee.'

  A buzz coursed through the room. Glitsky noticed Dooher leaning over, whispering to Christina. Farrell was sitting, face set, eyes forward, his hands crossed on the desk in front of him.

  Jenkins pressed on. 'Did you see Mr Dooher anywhere there at the range, at any time that night?'

  Ross again spent a minute studying the defendant, then said he'd never seen him before in his life.

  'Mr Ross, was there anybody on the second tee? In other words, on the tee next to you, between you and the last tee?'

  'No. I was the last one down that way.'

  'There was no one either at the first or second tee the whole time you were there hitting golf balls, between eight-twenty-five and nine-fifteen p.m. on June 7th of this year?'

  'That's right. Nobody.'

  Farrell tried to smile, to convey the impression that this wasn't a problem. Glitsky didn't think he succeeded – he looked a couple of days older than God.

  'Mr Ross,' he began. 'You've testified that you hit a large bucket of golf balls on the night in question, is that correct?'

  'Yes.'

  'And how many balls are in a large bucket?'

  The witness seemed to be trying to visualize a bucket. He smiled, helpful. 'I'd say eighty or a hundred.'

  'A hundred golf balls. And is it true that you were at your mat, hitting these hundred golf balls for fifty minutes – eight twenty-five until about nine-fifteen?'