by Marcia Clark
“Think he’ll take the deal?” I asked.
“If he has half a brain. But Terry’s not gonna help us. I’d say she’ll hold out for a ‘no time’ offer.”
“Wouldn’t surprise me.” It’s what I would do.
“Think he was telling the truth?”
“Seemed so.” I shrugged. “I’ve kind of felt that way all along. He’s just a punk. I don’t see him having the stones to kill. Especially not with a knife.”
“Then again, you never can tell.”
“Well, there is that.”
51
With so little time to prepare for a preliminary hearing that would likely be broadcast around the country—or as Declan put it, “go wide”—we had no time for lunch, and I wasn’t planning to make any time for dinner either. So Bailey dropped me at the office and headed back to the station, where she’d be hunkered down and getting ready too. When I passed by Melia’s desk, she jumped up and thrust a fistful of messages at me. I groaned inwardly and took them back to my office. I flipped through them quickly. There were more than thirty, and as I’d suspected, they were all from reporters. It was already too much to handle. I could either prepare my case or field press calls. I couldn’t do both. Much as I’d wanted to earn some brownie points and make nice, I was going to have to let Melia route all of the press calls to Sandi, our media relations chief. I told Declan.
“You might not have as big a problem with public opinion as you think, Rachel. Most of those people on the newscast were in the industry, and they all have something to gain by currying favor with Powers or Russell Antonovich.”
Exactly what Toni’d said. “But how do they all know Russell isn’t on board with us?”
“Are you kidding? Russell has minions circling him around the clock. And every single one of them knows everything about him. He likes beets, hates brussels sprouts, and throws away his socks after one wearing. He doesn’t care for the Lakers, loves the Oakland A’s. If that’s common knowledge…”
“Yeah.”
“And they like to spread any insider information to all their friends—it gives them status. So something as big as this? After the way he screamed his head off when you gave him the news? Believe me, word started spreading before we got off the lot. Which means everyone and her Chihuahua knew that the way to Russell’s heart was to vilify you. And I promise you that if we lose, every single one of them will be on Russell’s and Ian’s doorstep, calling in their chits.”
“So it doesn’t matter that Ian slashed the throats of two young kids. It’s all about sucking up to the big names—”
“Who can put them in films, buy their screenplays, hire their clients…yes.”
Sickening. But, really, was Hollywood so unique? What about Wall Street? Or Capitol Hill? They were no better. Some would argue they were a lot worse—and they might even be right.
“How’s the research coming?” I asked.
“I think you’re in good shape with the seizure of the laptop. The language you put in the warrant about electronic writings covers it. The only real issue’s going to be what writings you can get into evidence. But that’s a relevance issue, not a Fourth Amendment issue.”
“And on that note, you hear back from Cliff yet?”
“No progress there. He agrees, there’s nothing he’s seen so far that has anything to do with this case, but he’s checking for any anomalies in…something, I can’t remember the word he used—”
“Wouldn’t matter if you did. I wouldn’t have known what it meant.” I looked down at my “to do” list. “I’m going to dig into the coroner’s reports right now. Do me a favor and put in a request for Steve Diamond to compare the wound tracks on Brian and Hayley and see if he can say whether the same knife was used on both victims.”
My phone started ringing. Declan flashed me a look of sympathy and went off to take care of his task. I buzzed Melia and told her to take that call and start routing all my calls through Sandi.
“What if they’re personal?”
I took a deep breath and blew it out. “I don’t get personal calls on the office number. They always come to my cell, Melia.” But, really, how could I expect her to know that? Just because, in the past two years, not one personal call had ever come to my office number? Silly me.
I hung up and called Bailey. “We seized the Ruger they found in Ian’s bedroom, right?”
“Yeah. And to answer your real question, we are having it looked at, but I wouldn’t get my hopes up. It seemed pretty clean.”
We’d already tested for fingerprints and found only Ian’s, so I figured Powers had initially held Brian at gunpoint because it would’ve been an easier way of controlling him if they’d had to move him up the mountain ridge to the killing ground. But Powers didn’t want to use the gun to kill because bullets and casings left too much evidence. If we could come up with evidence of soil or plant debris on the Ruger consistent with Boney Mountain, it would go a long way toward proving my theory correct. And proving premeditation.
I flipped through the murder book, to the evidence report. “You ever get the hard copy of Averly’s phone bill? I don’t see it here.”
“I should have it soon. It took a little while because I asked them to go back through all of his numbers for the past ten years.”
“Okay, keep in touch.”
“Yeah, sure. I’ll call every fifteen minutes.” She hung up. I did not believe she would.
For the next couple of days, I toiled away at my desk, working through lunch, taking my dinners in my room. Other than the occasional visit from Toni and phone call from Graden, the only people I spoke to were Declan and Bailey. Thanks to my having delegated the daily Vanderhorn reports to Declan, I didn’t have to waste time cooling my heels in his anteroom—or catching more of Francine’s “I told you so” looks. I had a feeling Vanderhorn was A-OK with this arrangement. By Wednesday evening, I’d gotten on top of the case enough to believe I might just be able to spend some weekend time with Graden, so I called him and asked what he was doing on Saturday.
“You could come over to my place and let me make dinner for you,” he suggested. I knew it was a concession to my desire to avoid restaurants, where I might run into less than adoring fans, or the press. But it would also put us alone in his house…with wine. I was, however, sorely tempted.
“I might not have time for a whole night out.”
Graden suggested we wait and see how the rest of the week shook out. “We could always just grab a quick bite downtown.”
I agreed. Did he know that my hesitation was only partially work related? I couldn’t tell.
On Thursday Bailey called with news.
“I got Averly’s phone bill. Wait’ll you see. Oh, and by the way, it does look like he and Powers go back—”
“Great. Wait’ll I see what?”
“I skipped right by it the first time, for some damn reason—”
This preamble was killing me. “Tell me already!”
She continued, rolling right over me, “—but then I realized there was something familiar about one of the numbers. I checked out the exact time and then I checked out the number—”
“Seriously, I’m going to hang up.”
“Remember the texts between Hayley and Brian on the mountain?”
I exhaled impatiently. “Of course.”
“Well, after the last text from Brian, there was a gap, and then there was a text telling Hayley to come out and meet on the trail—”
“That was probably from the killer. Yes, I know—”
“No, there’s no ‘probably.’ That text was definitely from the killer.”
I sat up and clutched the phone. “What?”
“In the same minute—probably within seconds of sending that text, the killer made a call from Brian’s cell. To Jack Averly.”
“Oh, my God.” This was huge. It proved that Averly didn’t take part in the actual killings. Powers wouldn’t be calling Averly if Averly was standing next
to him. And Powers wouldn’t have been using Brian’s cell to do it if Brian was still alive and kicking.
“That’s it,” I said. “Ian Powers called Averly after he killed Brian—”
“—to say he’d found Hayley?”
“Or to tell Averly what direction he’d be moving in so Averly could meet him.”
We had our proof: Ian Powers had killed them both.
52
“We’ve got to turn this over to Terry,” I said. This was critical Brady material—evidence helpful to Averly’s defense—and it had to be provided immediately. Ian’s phone call was proof that Averly wasn’t present during Brian’s murder, and it was a pretty strong indication that he hadn’t been present for Hayley’s murder either. Powers didn’t need Averly’s help to take Hayley down, not once he realized she was within striking distance. His call to Averly—made at the same time he texted Hayley—provided some evidence that he was telling Averly where to meet him and going after Hayley himself. The fact that there was no physical evidence tying Averly to either murder offered more support for the theory that Ian had done the killings alone. Put it all together, and Averly had a decent basis for the claim that he truly didn’t know about the murder plan, which meant that he was only an accessory after the fact.
I put in a call to Terry and told her what I had. I said I’d sweeten the deal and give Averly time served, which meant that if he pled guilty as an accessory, he’d get out immediately.
“You’re going to insist on making him this deal in person again,” Terry said irritably.
“Correct. We should do it fast too, because if he’s going to take it, I’ll need to call off my witnesses and get him ready to testify at Powers’s preliminary hearing.”
“I can make it at two thirty,” Terry said.
“Fine.”
“And bring me a copy of that phone bill.”
I’d make her sign an acknowledgment of receipt form too. She’d already shown she was going to play the “prosecutor is hiding discovery” game at the arraignment. I planned to make sure she paid for that gambit. From now until her client pled guilty, I was going to bury her in discovery and have her signing acknowledgment forms, on the record, until her fingers fell off.
I gave Declan the good news.
“I’m calling Mr. Vanderhorn right now,” he said.
I hadn’t heard anyone say “Mr.” Vanderhorn in so long, I almost didn’t recognize the name.
Bailey picked me up outside the courthouse and we rehashed the ramifications of this latest development.
“It was pretty sloppy of Ian to call Averly,” I said.
“He’s not an experienced killer, and this whole thing was put together on the fly. Besides, he did have the presence of mind not to use his own phone.”
“True, that. And he was in a hurry to get to Hayley. Especially if she’d managed to get close enough to see Brian lying there.”
We fell silent, imagining the scene. Brian, bleeding out near a shallow open grave. Hayley alone in the darkness, peeking through the bushes. The shock of seeing her boyfriend lying there, on the ground, dying. And then…her terror as Ian—her second father—gave deadly chase.
“I hope Averly takes the deal,” Bailey said. “I’d like to hear how they all wound up on that mountain when the ransom drop was in Fryman Canyon.”
Personally, I wanted to hear why Ian decided that Brian had to die. But I doubted Averly would be able to give us that. Ian wouldn’t have wanted to tell him anything more than was absolutely necessary. This time, when we got to the waiting room, Terry was already there. And holding her hand out. I knew she wasn’t hoping to shake, so I put the report and a copy of her client’s phone record into it. She scanned the pages for the next few minutes.
“Thanks,” she said when she’d finished.
For Terry, that was gushy.
We waited in silence for the next ten minutes, and then a deputy arrived to escort us.
“I need a few minutes alone with my client,” Terry said.
I’d warned Terry on the phone that I didn’t want her to tell him about the deal. Again, I wanted to make sure he got the offer pure and unadulterated by any spin. She saw I was about to protest.
“I gave you my word I wouldn’t tell him what you plan to offer, and I won’t,” she said.
I nodded to the deputy, and he took Terry back to the same attorney cage we’d had last time. Jack Averly clanked in shortly thereafter. Terry’s back was to me, so I couldn’t see her expression, but I saw Averly tilt his head, then slouch down in his chair and nod. A minute later she signaled the guard to let us in.
I put my micro recorder on the table and turned it on. Bailey’d had one in her pocket last time, but I wanted to be open about it now. If Terry could see us recording the conversation, she’d be less likely to try and claim later that we’d strong-armed her client into a plea.
Terry again took control. “I’m going to let the prosecutor make her new offer.” She nodded at me. “Go ahead.”
Gee, thanks, boss lady. “First, I have to have an answer to one question.”
Terry narrowed her eyes. “No, absolutely not. I told you up front, no questioning.”
“This is a platinum offer, Counsel. I don’t give this kind of deal every day, and I’m sure as hell not about to do it unless I’m certain of what I’m getting. If you can’t even let him give us this one answer, we’re out of here.”
I stood to go.
“Wait, I want to hear it!” Averly flashed his lawyer an angry glance. “It’s my life, not yours!” He turned to me. “Ask your question.”
Terry’s eyes narrowed to slits and her chin jutted out. She looked like she wanted to reach over and snap his neck. But she didn’t object any further. A client doesn’t control much, but he does have the right to decide whether he’ll take a deal or not. If Terry tried to get in his way now, even if it was just to keep him quiet, she ran the risk of looking like she was interfering with that right. And it was all being recorded.
“When you were on the mountain, did you get a call from Ian on a strange cell phone?” Averly wouldn’t have known it was Brian’s cell that Ian was using, but he might well have noticed the number was unfamiliar.
Averly frowned and looked down at the table. Then his expression cleared. “Yeah, I did.”
“Where were you when you got that call?” I asked.
“In my car, out on the road.”
“Could you see him?”
“No.”
“What did he—”
Terry slammed her palm down on the table. “That’s it.” She leaned forward and spoke directly into Averly’s face. “If you answer one more question, you can go find yourself another lawyer!”
Averly shot her an angry look, but he obediently clamped his jaws together.
“Fine,” I said. “Jack, you plead guilty to accessory after the fact and I’ll agree to time served. That means you’re out of here as soon as you enter the plea.”
“A hell of an offer,” Bailey added.
Averly gave me a little smile. “Don’t you kind of have to reduce my charges to accessory now? I mean, how could I be a killer if I’m getting a call in my car?”
“Doesn’t mean you’re not an accomplice. The law doesn’t require you to be present to qualify as an aider and abettor—which means you’re held equally as liable as the killer. So, no, I don’t ‘kind of have to’ reduce the charges. And you can always reject this deal and take your chances with a jury.”
I stared him down, thinking, “Don’t play poker with me, pal.” I might not be thrilled with my case against him for murder, but he might not be thrilled with the result if he trusted his fate to twelve strangers. And unlike Averly, if I lost, I wouldn’t be facing a lifetime in the slammer.
“How long do I have to think about this?”
I looked at my watch. “Two minutes. I can make this case without your testimony, Jack. Take it or leave it, but if I walk out of here without an a
nswer, the deal’s off the table.”
He nodded and stared at a point above my head. When he looked back at me, he had a superior little smile.
“No, thanks,” he said.
“Excuse me?”
“I’m not taking your deal.”
53
Terry stayed behind to talk to Averly. We headed out to Bailey’s car.
“You know, I always had a lot of respect for Terry,” Bailey said. “So I don’t want to believe she’d encourage her client to give up a sweetheart deal just to avoid representing a snitch—or worse, to cozy up to Mr. Big. But I just can’t believe a guy who’s never done prison time and isn’t a gangbanger would turn down a ‘no time’ deal like this.”
“And I doubt there’s a Hollywood Production Assistant prison gang to offer protection for their homies.”
Bailey chuckled. “No, not last I checked.”
“So prison time should be scaring the bejeezus out of this guy.” Even if Terry told him we’d never get him for anything more than accessory, that could still mean around a year in prison, even with good time, work time. That’s a long time for a virgin like Averly. On the other hand, if the incentive was right…“Averly’s young—he’s what? Twenty-four?”
“Twenty-three.”
“He strikes me as ambitious in a sleazy kind of way. The young part makes him silly enough to think he can handle a short-term stint in prison—”
“Which is really crazy for a soft little cherry like him—”
“And the ambitious part thinks this’ll move him to the front of the line when it’s time for Ian to hand out his ‘I love you’s.’”
“Then you don’t think Terry pushed him?”
“No. The bummer is, now I’m stuck going to trial against that barracuda.”
Bailey grinned. “It’ll be the best show in town.”
We reviewed what was left to be done for Averly’s preliminary hearing. Thankfully, since we had only a few days left, it wasn’t much.
Bailey pulled to the curb in front of the courthouse. “I’ll go back over Averly’s and Powers’s phone records and see what kind of activity they had before the kidnapping—”