Prime Witness

by Steve Martini

  “Yes.”

  “And a baggy coat. He was wearing the baggy coat?”

  “Yes.”

  “And shifty eyes. You said he had shifty eyes?”

  Nothing from Beckworth.

  “Well did he or didn’t he?”

  “Yes.”

  “That’s your formula, isn’t it?” Conveniently Chambers ignores the other item, that the Russian was fingering the scarf when Beckworth saw it disappear.

  “Not my formula,” says Beckworth.

  “I thought we had something here,” says Chambers.

  “This formula,” he says. “Are you telling me that after all this, after sweatin’ blood, getting writer’s cramp—look at my notes,” he says. He turns the paper toward the witness, a lot of unintelligible scribbling. “Now you’re telling me that this thing doesn’t work after all—that your formula’s worthless?”

  “I never said it was a formula,” says Beckworth.

  “Sure you did. Would you like me to have the court reporter read it back to you?”

  “No.”

  Chambers moves away from the witness, stands with one hand on his hip.

  “And after all that, you didn’t find anything on my client.”

  “We found a silk scarf on the floor,” says Beckworth, “near where we scuffled.”

  “Ah. And the police charged Mr. Iganovich with stealing this scarf?”

  “No. They didn’t.”

  Mock shock from Chambers. “No? Why not?”

  “Insufficient evidence,” says Beckworth.

  “In other words the scarf could have fallen off the table of merchandise while you and the others were beating on Mr. Iganovich?”

  “Objection.”

  “Sustained. Mr. Chambers.”

  “Sorry, your honor. Slip of the tongue.”

  A deep sigh from the witness. It will be a long day. Before it is over, Reginald Beckworth will be wondering where Adrian Chambers left his rubber hose and floodlight.

  Chapter Twenty-seven

  “Aw, your honor.” Hands in the air, arching back, Chambers is complaining to Judge Fisher. Then he stamps around on the floor like some six-year-old, slapping the thigh of his pant leg. He’s putting on a tantrum that seems to be more amusing to Fisher than disturbing.

  “This was wrong,” he says. “There’s no basis, no basis at all.” Chambers is huffing and puffing below the bench, showing more aggravation than anger, playing on Fisher’s sense of fairness, like some sacred trust has been violated. He’s just been told about my earlier meeting with the judge, behind closed doors, my session to mask the evidence on the prime witness in the Scofield cases. Existence of a witness has not yet been mentioned. We can expect the eruption of Vesuvius with that.

  “This is ex parte communication,” he says, Latin for “single party,” a one-sided conversation with the judge out of the presence of the opposing side, something generally considered a high taboo in the law. “Unethical as hell,” Chambers calls it.

  To this, Fisher takes exception, a little personal privilege to shield his integrity. He cites the code section that permits this process for limited purposes.

  “You’re being notified now,” says Fisher. “Everything was on the record,” he says. “The transcript of our in-camera session is available for review, on appeal.”

  “Good,” says Adrian. “Then I would like a copy as soon as possible.”

  “It will remain sealed until the appropriate time.”

  “Not good enough,” says Chambers.

  “It’ll have to be,” says the judge. “You don’t like it, take an appeal.” Adrian knows this will not get him a glimpse of the transcript. Only the court on appeal would see it, to ensure that Fisher has not abused his discretion in going behind closed doors.

  The judge is in no mood to tarry with Chambers. Two-thirds of the motions filed by the defense bordered on the frivolous. In Fisher’s view he has now wasted four days hearing these.

  Today has not been a winner for Adrian. After taking them under submission, the bulk of his motions have been denied by the court. The Russian’s statements to the security guards as they wrestled on the floor of the department store have been ruled admissible for trial.

  Chambers has also failed to exclude the stun gun, which pathologists may now link to the burn wounds on two of the victims, the first two college kids.

  In all, Adrian is not happy. It is the lot of the defense lawyer confronted with mounting adverse evidence. I know the sinking feeling that he must be experiencing now, in the pit of his stomach. Having lost on these motions, for Chambers and Iganovich the start of trial will feel like the second half of a football game, with the home team down 21-zip.

  Fisher launches into a reading of the minute order from our closed session. Chambers is to get all our investigative and lab reports, everything we have on the Scofield murders with a single exception, he says.

  “All information pertaining to any witness or witnesses to those crimes shall be withheld from discovery, treated as confidential and not disclosed to the public until such time as any and all witnesses are in police custody. At that time fair disclosure shall be made to the defense concerning any and all evidence provided by such witness.” He looks up. “Is that clear?” he says.

  Chambers stands stone silent, staring up at the bench, his jaw slack, seemingly struck by this revelation. Several seconds pass, then a single question, nearly inaudible.

  “There was a witness?” he says. Puzzlement like a mask on his face.

  Iganovich has just heard the translation. He’s trying to talk to his lawyer. Chambers isn’t paying attention. Finally sees him, holds out a hand and tells him to sit down and be quiet. Chambers’s frustration is now matched by his client’s.

  Fisher says that the court will not comment further on the matter, and admonishes the parties to exercise similar restraint. We are given copies of the order by the clerk. Chambers looks at his, reads it again carefully. He takes several seconds to mentally regroup, recover, like a prizefighter staggered by a punch.

  “Your honor,” he says. “May we approach? A sidebar?”

  Fisher waves us on.

  Chambers, Goya and I huddle at the bench. Adrian’s doing all the talking.

  “This is the first I’ve heard, your honor, about a witness. Clearly the state must have known about this for some time?”

  He gets nothing but stone faces from the rest of us huddled there. He can see he’s getting nowhere like this.

  “Well, of course, it’s a major coup,” he says. “Congratulations,” he tells me. He takes another tack, like maybe with this witness we are now finally on the track of the true Putah Creek killer. This is all very cordial, though Adrian’s face has the pallor of a sick man. Clearly we have caught him flat-footed on this.

  Still, there is no question, he sees this as an opportunity for his case. The classic SODDI defense (Some Other Dude Did It) is always more persuasive with a jury when you can put a face to the deed. This is part of the reason why I have delayed in turning over information on the prime witness as long as I have.

  When Chambers finds out what this witness knows he will no doubt move as quickly as possible to construct it neatly into his case. He will sand off the rough edges of discrepancy regarding this witness, his testimony, and the Russian’s version of defense. Knowing Adrian, he will apply a little lawyer’s license, indulge the facts until the two stories slide together like a well-oiled drawer. The longer I can keep him from this information, the better.

  “You can understand this comes as a major surprise, this witness,” Chambers says to Fisher.

  One of the chief purposes of discovery, that exercise in the exchange of information between opposing sides before trial, is the avoidance of surprise. Cha
mbers reminds us all of this, still beaming with cordiality and smiles.

  “This information, your witness, will be critical to my case,” he says.

  Then he looks me square on, a broad smile, the expression of some intimate. “Of course I understand,” he says. “A disclosure of this kind, the identity of the witness, it would raise hell in the press.”

  Chambers thinks we know who the witness is, just not where to find him. I leave him with illusions.

  “You were wise,” he tells Fisher, “to provide a protective order.”

  The judge is all smiles, delighted by Chambers’s demonstration of tolerance and understanding.

  “Still,” he says, “it would be appropriate to share what the state knows. I’m an officer of the court, with an obligation to protect the interests of my client.” He reminds us that we’re all under a gag order.

  Fisher doesn’t bite. “You’ll get all the information as soon as we have the witness,” he says.

  “It is a critical witness,” says Chambers. “Until you can find him . . .” He stops in mid sentence, calms down and looks at me. “I am assuming,” he says, “that the witness is a male?” He stands there, a big-eyed question mark.

  I offer him the social intercourse of a chimney brick. “Never mind, not important,” he says. His inquiry dies.

  “Mr. Chambers, is there a point to this?” sighs Fisher.

  Chambers shields one side of his mouth with a legal pad to keep his voice from carrying. He’s giving sideways squints at the fourth estate in the front row.

  “I wonder, your honor, if we could at least have some estimation as to how long before there will be some disclosure concerning this witness? How close are you,” he says, “to finding this witness?” This last is stated in high confidence to me.

  “It’s a fair question,” says Fisher. “Any idea, Mr. Madriani?”

  “We’re looking, your honor. It has top priority in our investigation,” I say.

  “But no estimate of time?” he says.

  “No. Not yet.”

  “There you have it, Mr. Chambers.” Fisher looks at him. “Maybe your client would like to reconsider the time frame for trial? The court would be willing to accommodate,” he says, “if Mr. Iganovich wishes to change his mind, to waive time. In light of this information.”

  Chambers makes a face, almost an idle gesture, like maybe he already knows the answer.

  “Would you let me confer?” he says.

  “Certainly. Take your time.” Fisher is more than willing. Anything to get Iganovich to waive time for trial, to push it back a few months, to give Ingel the tawny rose-colored hues of a tropical tan and the disposition to match.

  Adrian’s off to the table, hunkered down with his client and the interpreter. A lot of talking and animation from the Russian, shrugging shoulders and perplexed expressions.

  In less than a minute Chambers returns. “Can’t get him to budge,” he says. “He’s adamant. He wants a speedy trial.”

  “Maybe I should try?” says Fisher.

  “No. No. That would be a mistake,” says Chambers. “Let me work on him. I think if I push a little, he’ll come around.”

  This is all very interesting, our little cabal, the judge, prosecutor and Iganovich’s own lawyer conspiring, a lovefest of reasonable lawyers, working to a common purpose, to get the Russian to waive time.

  “If I can get him to see the importance of this witness,” says Chambers, “it will make a difference.”

  We leave it at that, return to our respective positions at the counsel tables.

  “Your honor, for the record,” says Chambers, “I must record my objection, perfect it for possible appeal. You do understand?” He’s talking about the failure to disclose all the information about our witness. It is one thing to understand the practical wisdom surrounding a court’s ruling, another to pass on possible grounds for a later appeal.

  Fisher nods.

  Adrian outlines what he believes is an erroneous ruling by the court, the failure to turn over what could be exculpatory evidence. A major hindrance to the defendant’s investigation of his own case, he calls it.

  This is all very polite, not the Adrian Chambers of old. Just for the record, he says, ever solicitous of the court’s sensibilities. Then he finishes.

  “Objection noted,” says Fisher, “and overruled. For the time being my order will stand.”

  The judge is collecting his papers from the bench as if he’s about to adjourn.

  “Is there any other business before the court?” he says. Fisher sits like an auctioneer, gavel raised ready to pound.

  “Oh, there is one more thing,” says Chambers.

  “What’s that?”

  Adrian is shuffling through his briefcase looking for something.

  “I was going to hold off on this,” he says, “but in light of this news, information on a witness.” He finds what he’s looking for, a single sheet of letter-sized paper, typewritten on one side.

  “I move at this time,” he says, “that the state be ordered by this court to amend its indictment to charge my client with the Scofield murders. . . .”

  There are audible voices, murmurs from the front row of “Whaddid he say?”

  Fisher stares at Adrian as if the lawyer has suddenly lost his mind.

  “Or in the alternative,” says Chambers, “that the state be barred forever from bringing any charges in those cases against Mr. Iganovich.”

  “What?” says Fisher. “You’re asking this court to order the prosecutor to charge your client with two more counts of murder?”

  “Let me explain,” says Adrian.

  “Mr. Chambers,” says Fisher, “you have more moods than the three faces of Eve.”

  “There is authority, your honor.”

  I’m out of my chair protesting. “Mr. Chambers had ample opportunity to notice this motion, to give us an opportunity to respond,” I say. “The People object and ask the court to rule it out of order, as not being brought in a proper manner.”

  “Good point,” says Fisher.

  “Your honor, I would not be bringing this motion at this time, except for the information dropped on me here today that there is a witness to the Scofield murders. Mr. Madriani has held charges in the Scofield cases in abeyance, refusing to commit himself as to whether he was going to charge my client or not. He’s made public pronouncements that he’s searching for another killer, a so-called copycat. Now on the eve of trial he tells us there’s a mystery witness out there somewhere. A witness who if found will testify to God knows what.”

  Adrian makes a face, like what is he to do with all of this?

  “I’m left to face the specter of a piecemeal prosecution. The state is free to try the first four murders against Mr. Iganovich and if they fail, if we obtain an acquittal,” his voice goes up, a single finger held in the air for effect, “then, Mr. Madriani can turn around and bring separate and new indictments against my client in the Scofield cases. He can change his mind about a copycat, say it was all a mistake, produce his secret witness who has suddenly shown him the light, and try again.”

  Fisher looks at me only for the briefest second, wondering, I think, whether such a devious plot has crossed my mind.

  “We should not be required to defend on a piecemeal basis,” says Chambers. “Make no mistake,” he says. “I’m not anxious to have my client charged with additional counts. But it is either that or the court must tell Mr. Madriani that he may not bring these charges later.”

  “On what authority?” says Fisher.

  “Kellett v. Superior Court, your honor. As I read that case,” he says, “Mr. Madriani is compelled to consolidate all of his charges in a single prosecution.”

  Adrian holds up the piece of paper, a citation to the court
opinion. “Nineteen sixty-six case,” he says, “and still good law.”

  He passes the paper up to the judge. Fisher adjusts his glasses and reads. Several seconds pass. Then he arches an eyebrow and looks at me.

  “Mr. Madriani, have you read this case?”

  “The name doesn’t ring a bell, your honor.” Goya is scrambling behind me, fighting with a volume of the annotated Penal Code, the only resource book she has with her, looking to see if she can find a citation to the case, a veritable long shot.

  “Maybe you should,” he says, “read it. I think Mr. Chambers may have a valid point.” He seesaws his head a little like maybe he’s about to make a ruling, some shot from the hip.

  I cut him off. “Your honor, we should have time to consider this. To prepare a response,” I say. “At least to Sheppardize the case, to see if it has not been overturned by a later opinion, or limited to different facts.”

  Fisher nods, aggravated that he is still not finished with these motions.

  “Very well,” he says. Heavy sighs. “Forty-eight hours,” he says. “Two days. I will expect written points and authorities from each of you in two days. No more than five pages, on this single issue, the facts in Kellett. Do you understand, Mr. Chambers?”

  Nods from Adrian.

  Fisher looks at me. I give my assent.

  “Don’t try to stretch it,” says Fisher. “This issue only.”

  A solemn posture from Chambers, palm up like he’s taking an oath of honesty.

  “This issue alone,” he says.

  “We’re gonna eat it,” she says. “It’s settled law.” Lenore is talking about Kellett v. Superior Court. “I’ve pulled everything on it, every case in which Kellett is cited. Even punched it up on Lexis.”

  Lexis/Nexis is the lawyer’s research tool for the computer-literate, cases input to the system back to the 1940s, all the law you can handle in a nanosecond.

  We are back in my office, just before noon. Lenore has been up most of the night poring over the cases, researching Adrian’s latest shot. This one appears to have bounced into us, below the waterline.