Case of Lies

by Perri O'shaughnessy

  Nina had just returned to the office. Somehow, Sandy had kept order during her absence, though the pileup of court appearances the following week would be a problem. She had never felt so angry, so grim. These feelings left little room for personal fear.

  “I’m protected,” she said. “My son is protected.”

  “It’s odd, though. He probably-”

  “He or she.”

  “He or she probably saw you through the window before you dove under the table. If he knew what you looked like, he would have seen that the girl was younger with a different hair color. So maybe he didn’t know what you looked like.”

  “Or maybe he was an amateur, and let off a shot when I took a dive out of panic. If he knew Chelsi wasn’t me, why didn’t he come in and shoot me?”

  Cheney shrugged. “You tell me.”

  “He must have followed me to the massage place,” Nina said. “He must have known what I looked like.”

  “You say she and her father were the prime movers on the Hanna wrongful-death action. They pushed the hardest, provided the funding. That’s my thinking right now.”

  “Mine, too,” Nina said. “The shooter is keeping track of this case. He waited for it to be dismissed, but then I came in at Chelsi’s urging and the case started to open up. He’s watching. Here’s a list of all the ways he might be watching.” She handed Cheney the list he had stopped by to pick up. “Maybe he checked on the file at the clerk’s office. Maybe he was in court the day of the dismissal. Maybe James Bova is sharing everything with some murderous significant other. Maybe it’s one of the witnesses.”

  “Why would you think that?” Cheney said. He had one of those heavy-lidded gazes, mostly caused by the way he slumped in her chair and kept his hands folded on his stomach, that gives the false impression of somnolence. Behind him, Sandy leaned against the door.

  “They didn’t want to be involved.”

  “But they were victims, too. You think one of those Boston kids would care that much about having to come back here and do some talking?” Then he nodded slowly. “Okay. The robbery wasn’t simple, that’s what you’re thinking.”

  “You know how often the robber knows the victim in some way, or there’s a hassle between them. I’m thinking it’s at least possible that one or more of those kids has some idea why they were being ripped off, and you have to talk to them. I already gave you the third witness’s address. The one named Wakefield, who lives in Washington State.”

  “It’s getting complicated,” Cheney said.

  “What do you mean, complicated?”

  “The Boston kids’ lawyer went to the Boston PD and offered to make a statement there. They’re not willing to come to California. Sorry.”

  “Are you going there?”

  “Someone is,” Cheney said. “This has to be coordinated with Placerville PD.” The door to the outer office opened and Sandy disappeared, checking on whoever had come in.

  “They’re material witnesses! Why can’t you have them arrested and-”

  “We don’t have enough to do that,” Cheney said softly. “We don’t have any real idea if they know anything at all. According to your tape, they don’t. And you taped them without their knowledge anyway.”

  “They do,” Nina said, her jaw set. “They have a lot more to say. This is how I see it, Sergeant. Either Chelsi was killed so that the case would go away, or the attempt was made on my life for the same reason. It’s about the Hanna case, it has to be.”

  “What does your client want to do? He’s the girl’s uncle, right?”

  “I don’t know what my client wants to do.”

  “You haven’t-”

  “He was arrested for his third DUI on the road last night, after the funeral. He had gone to a bar and got drunk. He’s in the Placerville jail. He’s an alcoholic. He’s going to have a public defender on that charge, and in the meantime he doesn’t call me and I’m not going to call him. Because he hasn’t got the guts to fight.”

  “Better hurry up with your case, then.”

  “What about your case?” Nina said. “What forensic evidence has turned up in Chelsi’s death? Even on a drive-by, somebody must have seen something.”

  “We’re working on it.”

  “No sign of the gun?”

  “All we have are the two bullets,” Cheney said. “Because the killer couldn’t go in and dig them out of that poor little girl’s body. And they’re valuable bullets. Preliminary tests on them show they are not from the same gun that killed Sarah Hanna.”

  “It has to be the same person!”

  “We’ll ask him why he needed two guns, when we find him,” Cheney said. “Maybe he threw away the gun he used to kill Sarah Hanna two years ago, and bought another one recently. We’ll look into that.”

  Sandy said, “Sorry to interrupt. Your eight o’clock is here. And your eight-thirty is, too.”

  “I’ll be right out.”

  “Good luck,” Cheney said, nodding a couple of times and then hauling himself up. “Keep in touch.”

  Lunch hour. Nina closeted herself in the conference room with the computer and the law books. How could she force the witnesses to come to California to testify at a trial?

  She started with Out-of-State Witnesses, Civil Subpoenas.

  The Code of Civil Procedure was clear. Witnesses in a civil case can’t be subpoenaed to appear at a trial from outside the jurisdiction.

  Material Witnesses. Nothing in the books that would help anyone but the police, and the police weren’t ready to use that power yet.

  Flight from Jurisdiction. Those precedents only applied to defendants. Apparently witnesses can flee as far as they want. No problem, she thought angrily, just split and leave all that chaos behind.

  She could go take their depositions in their states, but it would require a court commission. And that wouldn’t bring them to California for trial.

  If only the witnesses were defendants. She leaned back, put her arms behind her head, thought of the Ace High Lodge, a defendant because of the long reach of the legal concept of negligence.

  Negligence means you owe somebody a duty of care, even if it only amounts to a duty to act like a reasonable person around them. Negligence means that your act or omission results in unintended harm to that somebody. In the case of Ace High, the creative interpretation of negligence said you had a duty to keep your premises secure, and if you omitted to do that, and somebody got hurt, you were negligent.

  What if the witnesses had been negligent in some sense? No, they had been victims. But what if-

  Now she was thinking furiously, flipping through Witkin and looking for-

  Yes. A robbery. The victim, defending himself. The assailant, shooting an innocent bystander during the struggle. What if the victim used unnecessary force on the assailant, or did something so rash in the course of self-defense that the victim could legally be said to have acted negligently when a bystander got hurt?

  There were California cases, rare. A case in which the victim wrested the gun from the assailant and accidentally shot a bystander. That hadn’t happened here.

  Though how did she know it hadn’t happened here? She went into her office, came back with her copy of the tape of Silke and Raj, and played it.

  Wakefield had rushed the guy. Silke said so. There were shots, and Silke and Raj ran. The gun was missing, so who would know who actually shot Sarah Hanna?

  “Could have been Wakefield,” she thought aloud. She listened to the tape again. Even if Wakefield hadn’t shot Sarah Hanna himself, had he been negligent in rushing an assailant with a gun?

  You could allege that he was negligent. You could allege a lot of things, and at this stage of Dave Hanna’s decrepit case, at this time when a beautiful young woman had been killed for some obscure gratification, you might as well get creative.

  What about Silke and Raj? How could she allege that they were negligent, too? That was tougher-they hadn’t done anything but get robbed, and run.
r />   On the other hand, you can allege anything. Let the other side come in and defend, in a California court.

  I’m going to force the issue, she thought, bring them back. Excitement lodged next to the sorrow and rage in her heart. Force the law to behave the way she needed it to behave. Stretch the negligence idea like the biggest piece of chewing gum ever, all the way to Boston and Washington State. Bring the kids back kicking and screaming, and find the shooter through them.

  Sandy knocked.

  “Coming.”

  “Find anything?” she asked as Nina passed her.

  “Could you find an order shortening time request, and model points and authorities? I’ll give you some facts and cases and you plug it in. I need to get it to Flaherty today for signing. And call Betty Jo Puckett. Say I’ll meet her at the courthouse at four-thirty. Tell her it’s an emergency motion relating to the witnesses in the Hanna case.”

  “Can’t it wait until tomorrow?”

  “What else do I have today?”

  “Interrogatories to answer. Demurrer to a complaint. Four big phone messages.”

  “How many of those can wait until morning?”

  Sandy tugged at her lower lip and said, “If you don’t make two of those phone calls, you’re going to lose two cases.”

  “It’s a deal. I’ll make those calls.” She went to her desk, sat down, made the calls and made them stick, and felt a hot rush of an emotion so foreign to her that at first she couldn’t give it a name.

  Ah. Vengefulness!

  So this was what it felt like to be vengeful. Hard, fevered, superhumanly focused, like the skull is grinning inside the head, anticipating what it’s about to do… how interesting that personal fear had no place.

  It’s a matter of honor, and behind that is the fact of humiliation. You don’t kill a human being in front of me and not deal with me, you son of a bitch, she told the shooter in her mind.

  Sandy buzzed. “Okay, I have the Petition for Order Shortening Time, and I have a draft order here, and I have model points and authorities. But what’s the motion going to be? I need a title.”

  “It’s a Motion to Amend the Complaint,” Nina said. “I’m going to add three new defendants after Shooter Doe I.”

  There was a pause while Sandy digested this.

  “And pull out three subpoenas for deposing defendants. I’m going to ask Flaherty to personally sign them.”

  Nina opened the file and looked at the complaint in the case of Hanna v. Ace High Lodge and Does I-X. Doe I would be changed to the shooter’s name, when they found the shooter. She considered once more what she was about to do, suing three people who were going to be rather perturbed about it. And they had Braun and Branson to object.

  So what? They had dodged involvement too long. They had no right to complain that she was getting dodgy, too.

  She wrote on her legal pad, “Plaintiff David Hanna hereby substitutes for John Does II, III, and IV in the complaint, the following-named defendants.”

  “Silke Kilmer.” A Jane Doe, actually.

  “Sumaraj Das.”

  “Elliott Wakefield.”

  She looked out her window, at the black and lowering sky. November now ruled in the mountains, harsh and cold.

  They were in for it.

  19

  THE LEGAL SYSTEM HAD ALWAYS VEERED toward the person with the strongest conviction. If a lawyer believed in a case very strongly, the usual obstacles fell away. That made it a good system, so long as the lawyer’s purpose was honorable, and that quality of honor would shine through, or it wouldn’t. Nina’s conviction overrode both Betty Jo and Judge Flaherty.

  “All we want is out,” Betty Jo told the judge. “We are willing to pay the price. We are bystanders as much as the lady who was shot. Your Honor, please, just approve our settlement agreement and let Ms. Reilly pursue the real malfeasors.”

  Great word, malfeasors. Nina wouldn’t have thought Betty Jo was up to a word like that.

  Flaherty was about fifty. Nina knew that he worried about his heart, and how long he could continue dealing with all the stressful bullshit he was exposed to all day, every day. He didn’t like dodgy legal moves. He flipped through the file, finding no solutions there, then looked out the window, where rain fell. The enclosed paneled courtroom felt cozy after the drive through the dark afternoon.

  “This ought to be a criminal matter,” he told Nina. “This court, and you and Ms. Puckett, shouldn’t be the ones trying to pursue this.”

  “But here we are, Your Honor.”

  “Two murders,” Flaherty said, shaking his head. “A civil case. Wrongful-death cases aren’t meant for this sort of thing. A senior citizen develops septicemia in her nursing home from bad care, and dies. That’s a wrongful-death case.”

  “But here we are.”

  “I don’t understand why the police aren’t taking a more active role.”

  “Me neither,” Nina said. “But they aren’t.”

  “Maybe I should at least let the motel out.”

  “Maybe the motel’s involved.”

  “You haven’t presented any facts in that regard,” Betty Jo protested.

  “But two people are dead. The plaintiff needs, and the plaintiff deserves, every latitude the law permits. Let this case proceed, Your Honor. Let the motel remain as defendant. Allow me to bring the witnesses back to California to be deposed.”

  “They have a lawyer. You didn’t serve him. You could have faxed him. I’m not sure about this ex parte stuff.” Flaherty appeared uncertain, but ready to blow the way the strongest wind blew.

  “Technically, he’s not retained to represent them as defendants, to my knowledge,” Nina said. “Naturally I will cooperate fully with him when I’m notified that he will be involved in that capacity.” She turned back to her main point, adding urgently, “We have to find out who did this. The murder of Chelsi Freeman is an affront to the court. It’s an attempt to intimidate us into not pursuing the complaint. It’s the one thing, the one thing, Judge, we can never permit. Our justice system can’t flee from intimidation.”

  Betty Jo said, “Your Honor, we see the steamroller and we would like to step to the side in time. Please. Let us out. We’re just a building, a series of room numbers. We don’t want to go two-dimensional during whatever attack Ms. Reilly has in mind.”

  “Two-dimensional?” Flaherty said. “Oh, flattened.”

  “That’s tough,” Nina said. “You could almost feel sorry for the Ace High clerk, E-mailing her boyfriend while a mother-to-be lost her life. She should have been at her desk. She should have called 911 sooner. Or how about that cul-de-sac, that tight vending-machine space, isolated and unsafe, set up by the Ace High. Or the three robberies in the past year on the premises.”

  “Whatever our culpability,” Betty Jo said, “it’s not worth more than the settlement we have already offered. A failure to accept the settlement at this late date will amount to bad faith.”

  “Then bad faith it is,” Nina said. “The case has changed. It’s about two deaths now, and nobody skates.”

  “We’re good for fifty thousand, Your Honor. I thought Mr. Hanna took our offer. Where is Mr. Hanna, by the way? Hmm?” She turned toward Nina, her eyes narrow. Betty Jo was as aggravated as hell, and Nina didn’t blame her.

  “Tell me again. What’s the problem with letting this party out of the case?” Flaherty asked Nina.

  “We don’t know enough yet. We don’t know if someone from the Lodge might be involved somehow,” Nina said. “Mr. Hanna told me on the phone this morning that he understands we cannot go forward with a settlement right now.”

  Betty Jo folded her arms and looked over the top of her specs at the judge. In a hard tone that Nina hadn’t heard before, she said, “Well, then, the settlement offer’s withdrawn, Your Honor. It’s off. It’s as off as three-day-old chicken left in a hot car trunk. We’ll stay in and request our attorney’s fees at the right time.” She didn’t look at Nina.

  �
��Then there’s nothing before the court with regard to the settlement,” Nina said.

  “I can still dismiss the case next week based on the court’s discretion, since two years will have passed,” Flaherty said.

  “And let the whole world know this court bows to a killer?” Nina asked. Her words seemed to resound through the courtroom. The clerk looked scandalized and the lawyers lounging in their chairs, waiting for their own arguments to be heard, shifted and whispered.

  “No need to grandstand, Counsel,” Flaherty said. “You still have another week. The court will consider any additional documents filed during that time that tend to show progress in bringing the matter to trial.”

  “Very well,” Nina said. “Then I assume the court will execute the subpoenas requiring the newly named defendants to be deposed pursuant to our papers?”

  “Any objection?” Flaherty asked Betty Jo.

  “We’re just the sacrificial lamb on the side altar, Your Honor,” Betty Jo said. “Let’s get on with the immolation.”

  “Immolation?” Flaherty said. “Do you object or not?”

  “No objection. Bring ’em on.”

  “Then it is so ordered. The signed papers will be available from the clerk’s office in an hour or so, Ms. Reilly.”

  “Thank you, Your Honor.”

  “Ms. Reilly-”

  “Yes, Your Honor?”

  “Be careful.”

  “Thank you, Your Honor.”

  Nina went out to the hall, Betty Jo at her heels. She tapped Nina on the shoulder. “Wait,” she said. “I have a question for you.”

  “You should have raised it in front of the judge.”

  “I thought about it. Thought about asking if your own client approved you throwing away fifty grand. Then I realized, no way did he approve this. You’re here blowin’ off the settlement, and your client’s in jail, ’cause he’s a sick alcoholic. Who’s backin’ you? That’s the question. Well, it’s none of my business. Bottom line, you’re never going to get a dime out of the Ace High now. I warned you.”

  “It’s worth it, to have everybody still sitting together in the pot.”