I admit I had taken some pains to shake Lindsay Patino out of my mind. I did it with a combination of Jim Beam and frustration. She didn’t want to see me, fine. Two could play at that game.
Except the game got a little more complicated when I walked into the courtroom and saw Janet, Fred, and Lindsay Patino sitting there waiting for me.
Naturally, Janet and Fred wanted to know what was going to happen. I danced around the question, saying this was merely the first big stage of a felony proceeding, where a judge hears the prosecution’s evidence and decides if there is “probable cause” to send the defendant to Superior Court for trial.
I didn’t tell them I had no intention of conducting a preliminary hearing but was here only to get the quickest and best deal I could before the morning was out.
Lindsay seemed glad to see me. “Why aren’t you teaching?” I asked.
“I got the day off to be here. I wanted to support Howie.”
“I can’t promise any breakthrough.”
She put her hand on my arm and said, “I know. I know you’ll do what you think is best.”
I excused myself and joined Sylvia Plotzske at her counsel table. She actually looked pleased to see me. “I’ve got good news for you,” she said.
“Oh?”
“Tolletson will drop this to voluntary manslaughter.”
“You’re kidding.” I was stunned. This was great news, better than I could have hoped. Considering Howie had never been in major trouble before, he would probably end up with no more than three years in prison.
“The only thing,” Sylvia Plotzske said, “is that the offer is good now. If we go to prelim, it’s off the table, and we go for first degree.”
A no-brainer. I was sure the Patinos would understand. At least the parents would. So I told them. Janet and Fred nodded at each other. “It seems the best we can expect,” Fred said.
“Yes,” I said.
Lindsay looked more disheartened than angry. Maybe she had finally realized the inevitable. But she shook her head slowly and muttered, “He didn’t do it. He just didn’t do it.”
It was now 8:55, and the judge would soon be taking the bench. It was decision time. A sheriff brought Howie in from the lockup and sat him down at the defense table. Howie winced a little, probably because of his side. But then he turned and gave a small smile and wave to his family. Janet Patino started crying.
I was just about to explain the deal to Howie when my cell phone bleeped in my briefcase.
“Hey, man, it’s a beautiful day at the beach!” Cyril Cornelius Carr said.
“I’m in court, Trip.”
“I know. You’re about to strike a deal, right?”
“So?”
“So don’t do it.”
I looked around as if people could hear him and then cupped my hand over my mouth and turned my back to Howie. “What are you talking about?”
“I got down here early to catch the surfers. Surf’s lousy today though.”
I could hear the sound of waves breaking in the background. In a vigorous whisper, I said, “What are you talking about?”
“I’m talking about one of the surfers, a guy by the name of Chip Delliplane. He’s pretty good on a board. He also saw something the night of the murder.”
I couldn’t believe this was happening. A surprise witness? Now? “I thought I told you to drop this.”
“I just didn’t feel good about that, Jake. Something didn’t smell right. So I talked to Delliplane. Got his name from a friendly bartender at the edge of town.”
“So what’s he say?”
“He says he was riding his bike toward the Patino house that night, and it was right around the time of the murder. He heard a scream, stopped, and started to turn around. Just before he did, he saw somebody running from the house.”
All breath left me for a moment. I sucked in some air. “Why -didn’t he go to the cops and tell them all this?”
“Because he didn’t want his parents to find out.”
“Find out what?”
“That he was having an affair with Rae Patino.”
At that moment the bailiff told everyone in the courtroom to rise. Judge Abovian was entering the courtroom. I stood up with everyone else, but I was alone in holding a phone to my ear with my mouth hanging open.
“Jake? Jake?”
“Hold on,” I said.
The judge, who was about forty-five, wore a trimmed moustache under a roundish nose. He might have looked jovial if he smiled. He didn’t smile. He looked at me and said, “I don’t allow cell calls in my courtroom.”
“Um . . .” I said eloquently, “if, um, I may have just a moment, Your Honor?”
“You may not. Court is in session. Put that thing away.”
“Jake!” Triple C cried as if he were being dragged out by the riptide. I disconnected and put the phone away.
“All right,” said Abovian. “This is the time set for the preliminary hearing in the case of People v. Howard Patino. Is counsel ready?”
Sylvia Plotzske stood. “The People are ready, Your Honor. However, we may have a disposition.”
“Is that right, Mr. Denney?” said the judge.
“Your Honor, if I may just confer with my client for a moment?”
“Haven’t you done that yet?”
“Not this morning.”
“All right, you can have one minute.”
I nodded curtly. How generous. One minute to get to the bottom of this thing. I put my hand on Howie’s shoulder and leaned in so no one could hear us. “Howie, I want you to tell me, once and for all, if you killed your wife.”
He seemed shocked and as if he barely comprehended what was going on. “Yeah, Jake, it was my fault.”
“That’s not what I asked you.”
“I killed her, Jake. I killed her spirit.”
Closing my eyes and feeling like I might explode, I whispered forcefully, “I don’t give a rip about her spirit, Howie! Was there someone else in the room with you when it happened? Did someone else kill your wife and stab you?”
For a moment, Howie said nothing. Then his eyes went wild, like a character in an old haunted-house comedy who sees a ghost. Only this wasn’t funny. This was pure terror.
Howie shot to his feet and started screaming at the top of his voice, “The devil! The devil! The devil!”
And then he bumped me with his shoulder as he ran by. I fell back against the counsel table.
Howie burst through the gate and ran up the aisle, screaming.
The bailiff took off after him.
Janet Patino yelled, “Howie!”
Howie burst out the doors.
I followed the bailiff.
Lindsay Patino followed me.
Out in the hallway people were watching the fleeing defendant as he ran wildly toward the courthouse doors. His cries got the attention of folks at the front desk, including a deputy sheriff. The deputy, linebacker size, jumped in front of Howie. The impact sent them both to the floor.
The bailiff reached them and grabbed Howie from behind, lifted him slightly, and slammed him on the ground.
Howie was crying and screaming and flapping his arms.
The linebacker deputy, looking none too pleased, rolled on top of Howie and held him down as the bailiff reached for his handcuffs.
He was bending Howie’s arm back just as Lindsay and I got there. Howie squealed through his tears.
“Go easy!” I said.
“Stop it!” Lindsay said.
A third deputy had appeared and got his body between us and the handcuff party.
“Back away,” he said.
“I’m his lawyer,” I said.
“Back away!”
Howie’s pitiful, muffled moans sounded like a wounded animal’s.
Lindsay tried to get by the deputy. He grabbed her arm and pushed her.
“Let go of me!” she said.
I took Lindsay by the shoulders and eased her out of the deputy�
�s grip. “It’s okay,” I said.
“It’s not okay,” she said. “And you know it.”
They got Howie, who was still crying softly, back into the courtroom. They kept the cuffs on him as they sat him down. The bailiff and the lineback deputy stood directly behind him as Abovian came back to the bench.
He scowled at me as if I was the one who had been screaming. “I hope you will make it abundantly clear to your client,” he said, “that another outburst like that will result in his being shackled and gagged. Do you understand that? I am not kidding. I will slap a gag on his mouth so fast it’ll make your head spin. Is there anything about that you don’t understand, Mr. Denney?”
“No, Your Honor.”
“Talk to your client.”
I leaned down to whisper to Howie. His chin was resting on his chest. “Did you hear the judge?”
He nodded slightly.
“You going to behave yourself?”
He didn’t do anything.
“You trust me, Howie?”
Another nod.
“Then keep on trusting me. Will you keep quiet for the rest of the hearing? Will you do that much for me?”
Pause. Then: “Okay, Jake.”
“Your Honor, my client understands. May I request that the handcuffs be removed?”
“I’m warning both you and your client,” Abovian said.
“Understood,” I said.
“Then the bailiff will remove the handcuffs,” the judge said.
After Howie got his wrists back, the judge said, “Now, I understand there is a disposition on the table. Is that right?”
I glanced back at the Patinos. Fred was holding Janet, who was understandably shaken. Lindsay was looking at me as if I was the only one who could offer them any hope. Howie had his head in his hands and seemed spent.
And Sylvia Plotzske, arms folded, looked at me as if I’d better cop the plea right now or I’d be the world’s biggest idiot, especially after what had just transpired.
With a gulp, I looked at the judge. “We’re ready to proceed, Your Honor.”
I thought I could almost hear the sound of Sylvia’s jaw dropping. She quickly shuffled through her files, an indication to me that she never thought she’d have to put on a prelim. I was supposed to grab the deal and run. I wondered about my sanity at that moment.
“Call your first witness, Ms. Plotzske,” Judge Abovian said.
CHAPTER THIRTEEN
A PRELIMINARY HEARING, for the defense lawyer, is little more than an opportunity to get a cursory look at the prosecutor’s evidence. That’s why prosecutors will put on as little evidence as possible. Their only goal is to get a judge to send the case to Superior Court for trial, and judges are usually more than happy to oblige.
As a deputy public defender, I’d handled some prelims with as little as fifteen minutes preparation. My preference was more time, of course, but that is a luxury public defenders don’t enjoy. When you’ve got a pile of thirty or forty active files and the fuel of speedy trial rights, you get a fire that burns up your leisure, your relationships, and very often your health.
I was more prepared with Howie’s case, though less so than if I’d had this on a trial track to begin with. I’d just have to see what developed.
Sylvia Plotzske said, “The People call Wilburn McGary.”
McGary, dressed in his police uniform, stood up in the gallery and came forward. He had a buzz cut, like Tolletson, and a tenacious look in his eyes. He walked next to the witness stand, and the clerk swore him in.
Sylvia began her questioning seated at the prosecution table. “Officer McGary, you’re employed by the Hinton Police Department. Is that right?”
“Yes.”
“And how long have you been so employed?”
“Three years.”
“Before that, how were you employed?”
“I was in the Marine Corps.”
“All right. I’d like to direct your attention to the night of March 25. Were you on duty that night?”
“I was.”
“And did you respond to a call at approximately 9:30?”
“Yes. We received a report about possible domestic violence. I was in my car, and dispatch gave me the address.”
“What was the address?”
“May I refer to my report?”
“Of course. Your Honor, may I approach the witness?”
“Yes,” Abovian said. Sylvia took a copy of McGary’s police report to him. I glanced at my own copy. McGary looked at the papers and said, “The address was 5035 White Oak Avenue.”
Sylvia was back at her table. “Tell the court what transpired when you answered the call.”
McGary told the court how he arrived at the house, knocked on the door, and didn’t get a response. He went around the side of the house and found the gate padlocked. Concerned about potential victims in the house, he hopped the fence. He found the sliding glass door at the back of the house. It was open.
“Did you think that was unusual?” Sylvia asked.
In a confident and rehearsed manner, McGary said, “Yes. There were no lights on in that area of the residence. It seemed unusual to me that anyone would leave a door open like that at night, unless there was some unusual circumstance.”
“What did you do then?”
McGary said he announced his presence again, but getting no response, he went inside. Using his flashlight, he went through the house, eventually coming to the bedroom, where he noticed a light on. Entering the room, he saw blood. Lots of blood. And a body on the bed. “I then heard a noise, like a grunt. I turned and saw the defendant on the floor by the television set.”
“Is the person you saw on the floor present in court today?” Sylvia asked.
“Yes.”
“Would you identify him, please?”
Officer McGary pointed at Howie. “He’s sitting next to the defense lawyer.” He said defense lawyer the same way he would have said refuse pile.
“Let the record reflect that the witness has identified the defendant, Howard Patino,” Sylvia Plotzske said.
“The record will so reflect,” said the judge.
“What was the condition of the defendant?” the prosecutor asked.
“He appeared to be hurt. He had blood on his suit and was holding his side.”
“Did he say anything?”
“No. He made some noises.”
“What kind of noises?”
“Like someone who was in pain.”
“What did you do next?”
“I quickly swept through the room and the bathroom to see if anyone else was present. No one else was there. I immediately called for backup. I then questioned the defendant in an effort to ascertain what happened.”
“Did the defendant talk to you?”
“No. He was either unable or unwilling to talk.”
Just so no one would think I was asleep, I said, “Objection. Speculation. It’s beyond the competence of this witness to know the mind of Mr. Patino. Move to strike.”
Abovian looked annoyed. “All right. We’ll strike the last part of the answer. Let’s move on.”
“No further questions,” Sylvia Plotzske said.
“Mr. Denney?” the judge said.
I picked up my legal pad and looked at the few notes I’d written. Some of them I couldn’t read. Wonderful.
“Officer McGary,” I said, “when you went to the location, you didn’t have a search warrant, did you?”
“No, sir. This was an answer to an emergency—”
“Just answer my questions, Officer. You don’t need to elaborate. Did you have a search warrant?”
“No.”
“You said you were answering a call about possible domestic violence, is that right?”
“Yes.”
“Do you know the difference between domestic disturbance and domestic violence?”
McGary shifted slightly. “Yes.”
“What is the difference?”
“In fact, there’s a chapter in the penal code that defines domestic violence, correct?”
“I believe so.”
“Can you cite that code section?”
Looking perturbed, McGary said, “No.”
That put us on equal footing. I couldn’t cite the section either. But I knew it was there somewhere, and I knew vaguely what it said. “Are you aware that the definition of domestic violence is intentionally causing bodily injury to a spouse?”
McGary shrugged and said, “That sounds right.”
Sylvia Plotzske stood up as if she had the goods on me. What she actually had was a copy of the penal code, which she held open in front of her. “Your Honor, counsel is referring to section 13700,” she said, sounding like Jack Webb. “It states that domestic violence means intentionally or recklessly causing, or attempting to cause, bodily injury to a family or household member, or placing a family or household member in reasonable apprehension of imminent serious bodily injury to himself or herself or another.”
“Thank you, Ms. Plotzske,” Abovian said. “Continue, Mr. Denney.”
I felt for a moment like the judge and Sylvia were a tag team of some sort. Plotzske was sharp enough to know where I was heading, and her reading of the code section was a not-so-subtle transmission to her witness. I started getting a little hacked off.
“Now, Officer, isn’t it true that when you got the call you had no idea whether this was a disturbance or violence case?”
“I believe the dispatcher said possible domestic violence.”
“Shall we subpoena the dispatch record? Would that refresh your recollection?”
McGary shot a quick glance at Sylvia Plotzske. “It may have been domestic disturbance.”
“You’re not sure?”
“It may have been.”
“That sounds like not sure, Officer.”
“Without checking the records, I can’t be sure.”
“But when you testified just a moment ago, you didn’t hesitate. You said domestic violence, isn’t that right?”
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