Prime Witness

by Steve Martini

  “In return for what?” I say. This forces Roland back to me.

  Here he sucks a little air, how to couch it without appearing to give away the store.

  “A guarantee that the man will be put away forever,” he says, “that society will be protected.”

  “You mean that he will not be executed?” I say.

  “Yes.”

  Roland sits up a little, sticks out his chest.

  “What we propose is an L-WOP,” he says. This is lawyer slang, shorthand for a term of “life without possibility of parole.”

  Before I can say a word, Overroy anticipates. “We tell the community, the families of the victims that the defendant will spend his entire life behind bars, never to be released. In some ways, this is more punitive than death.”

  I would like to see him sell this to Kim Park.

  He minimizes the political fallout, tortures the truth, a good day’s work for Roland.

  Life without possibility of parole is a euphemism in this state. As long as there are courts and judges to administer them, parole is always possible. The people sitting in this room know there is only one irrevocable sentence in the law.

  “Forget the assurances of public safety,” I say, “what’s the legal basis for such a plea?”

  Overroy looks at me doe-eyed.

  “The codes,” he says, “it’s in the codes.” He means that such a sentence is mentioned in the statutes, which of course we all know. No doubt if I handed him the books he would look in the index under “L-WOP,” such is Roland’s depth of legal research.

  I continue to look at him, like try again.

  “Life without possibility of parole,” he says, “is a recognized sentence. I’m sure of it,” though his voice is now quivering with questions. He still does not get it.

  “He means,” says Chambers, “how do you justify the sentence under the statutes.” Unlike Overroy, Adrian comprehends where I am going.

  Under the law of this state in a capital case, a life term without possibility of parole is permissible only where mitigating circumstances outweigh other aggravating factors. It is a balancing test on the scales of justice.

  I do not see much cause for compassion here. Four kids staked to the ground and brutally murdered is not exactly a prescription for clemency. I tell them this.

  “Aggravation and mitigation are only factors to be considered by the jury in the penalty phase of a trial,” says Chambers. He means that this would be a plea bargain without trial.

  “The court,” he says, “has broader latitude. The parties can effect a settlement for tactical reasons, irrespective of the evidence.” He cites case law, People v. West. Adrian has clearly come prepared to this meeting.

  I turn to Ingel. Time to put his toes in the flames.

  “Are you prepared to condone this?” I say. “To sanction a settlement on these terms?” In a felony, the court must approve any plea.

  He dances around it, makes a few faces. He would prefer that I commit myself first, then ride on my coattails. After all I will be long gone by the next election, when he would be free to blame any fallout on me, like this deal was driven by an imprudent prosecutor who is now gone.

  Before Ingel can speak, Chambers saves him.

  “There are ample mitigating circumstances in this case, your honor, of which you should be aware. In the defendant’s past.” He calls Iganovich’s childhood a life of deprivation and abuse which he says he can document.

  Ingel smiles. The hook he needs to hang his hat.

  “I think I can live with it,” says Ingel.

  Of course all of these things, the Russian’s childhood, his early history, are matters which we cannot corroborate, not in the time available to us and in the chaos that is the Russian’s homeland.

  “Your honor, for the state it’s a particularly good deal,” says Roland. “The defendant has agreed,” he says, “to enter a similar plea, guilty to murder in the first degree on the two other charges.”

  Frosting on the cake. Overroy’s talking about the Scofield murders, wiping the slate clean.

  I cast a quick glance at Esterhauss and catch the glint in his eye. The prospect of a quick plea bargain that will bury everything in a single fell swoop, no trial, and an end to the perpetual publicity. To Esterhauss and the other doyens of this county, this scenario must be a political wet dream.

  I remind them all that the Scofield cases aren’t even charged.

  “So we get an indictment,” says Overroy. “How difficult can it be?”

  “We have multiple murders,” I say. “Life without possibility,” I tell him, “is ridiculous. Even if I wanted to, I could not in good conscience.”

  “And the Scofield thing.” I turn to Chambers. “Your client is ready to enter a plea, to factually acknowledge that he committed these crimes, in open court?”

  “He will enter a West plea,” he says, “for tactical reasons.”

  What he means is that Iganovich will not state in open court that he has committed these murders, but instead enter a plea for purposes of legal strategy. Decisional law, cases laid down by the courts of this state permit this, though I for one think it is bad public policy.

  “Why is this so necessary?” I say. “To join Scofield in a plea at all?”

  I am concerned that to charge these crimes to the Russian may result in the closure of a serious case without finding the real perpetrator.

  Chambers explains that unless we wash the Scofield cases through this deal, he cannot go forward. It seems he has thought this through.

  “Without a trial, Kellett would no longer apply,” he says. He’s referring to the case which he cited in court to Fisher.

  “Unless we include Scofield, what are we gaining?” he says. “We enter a plea on the four college students and the state is still free to charge Mr. Iganovich with Scofield. With pleas then entered to four counts of first-degree murder, a conviction in Scofield brings the death penalty,” he says. “Not a scenario I find helpful.”

  As a tactical matter, Chambers is right. To eliminate any possibility that his client would face death, he must include a plea on the Scofield killings as part of the bargain. The Rubik’s Cube of the law.

  Overroy, ever helpful, suggests that we could confer immunity on the Russian for the Scofield murders.

  The specter of this causes even Ingel to wince.

  “No,” I say. “I can’t do it.”

  “OK,” says Roland, “no immunity. We charge him instead.”

  Overroy it seems is still operating on another wavelength from the rest of us in this room.

  “No. I mean no deal. No plea bargain,” I say.

  Ingel is out of his chair, sallying forth around the desk, cajoling, telling me to look at the facts of the case, something which he himself has not done. He pitches me on the circumstantial loose ends, that I could lose it all in trial.

  “I’ll take my chances,” I say.

  “On a multi-million-dollar trial,” says Ingel. “That’s rich. That’s generous.”

  Now it is getting ugly. Soon he will kneel on my throat. The man is hearing the strings of Hawaiian guitars, feeling warm sands of Waikiki under his ass.

  There’s a deep sigh from Chambers, like maybe he wanted this more than I know. Perhaps his defenses are not as sure as he makes out.

  The judge starts to lean on me heavily, veiled threats that I will not be getting the benefit of any doubt in trial.

  I wonder what has happened to Ingel’s blood oath to Armando Acosta, the man at the judicial backdoor—how he would explain a plea bargain that spares the killer of the Coconut’s own niece?

  Ingel is no doubt pressured by the county for this result. Faced with a decision between a colleague of the cloth and the vagaries of politics, he has
apparently made his choice. He comes at me again, assures me that if I make even the slightest slip he will see that I carry the mark of it on my career for life.

  “The courts in this part of the state,” he says, “are a finite universe, a small world. A word of advice.” He pulls up close in my ear. “Always make certain that you can sleep in your bed before you make it.”

  I glance at Esterhauss, who chooses to look away. It seems this has all left a little taste with him.

  Ingel has now moved to where he is standing behind my chair, boring a hole in the back of my head with his eyes.

  I get up, turn to look at him.

  “We can all thank God for little favors,” I say.

  “What’s that?” says the judge.

  “That the founders saw benefit in a separation among the powers. If you don’t mind,” I say, “I’ll bring the charges, and you can try them.”

  He looks at me with an acid gaze.

  With that I am out the door, closing it quietly behind me, listening to the receding din of voices, the wailing and gnashing of teeth.

  Chapter Thirty

  While I may be on the outs with the city’s power structure, at least today I have the admiring eye of Claude Dusalt. In the way that only happens in a small town, word has now filtered to the organs of law enforcement concerning my meeting with Ingel, the news that I’ve rejected a proposed plea bargain to spare the Russian’s life.

  “How did you find out so fast?” I ask him. “I mean we didn’t finish the meeting till late yesterday afternoon.”

  “If the judge doesn’t want things to get around,” he says, “he shouldn’t talk in front of his people.”

  In Davenport County the Sheriff’s Department staffs the courts for security.

  “Ingel’s bailiff,” I say.

  Claude won’t say. But the answer is clear.

  This news is probably all over the city by now. Dirt in the average cop shop travels faster than telepathy, and is generally more accurate than CNN.

  “I thought such people took blood oaths,” I say, “I mean to work in the courts?” This is generally considered privileged duty.

  “Working for Derek Ingel is not considered a choice assignment,” he tells me. “My source drew the short straw.”

  From the inception Claude has been scrupulous in his dealings with me, tireless in his efforts to pursue every item of evidence I have requested. But there has also been a certain reserve in his attitude toward me, something more than the mere deference paid to a prosecutor. In his cop’s eyes, I think, I was marked by the sign of Cain; after all, I came from the criminal defense side of the bar. Nothing was ever said, but in his eyes, the subtle gestures of conversation, Claude revealed doubts concerning my commitment, whether I would go the last mile in this case.

  My meeting with Ingel and Chambers, telling the judge to put his deal where the sun don’t shine, has put an end to Claude’s qualms.

  He sits behind the wheel of his unmarked police unit, doing nearly seventy, on the ribbon of highway that rolls from the foothills down toward Capital City and Davenport beyond.

  This morning’s errand was not one either of us much enjoyed. We have deposited Nikki and Sarah in what Claude now ridicules as our “safe house,” not his choice, but a compromise made necessary by Nikki’s continuing anger.

  This morning she was fingerprinted at the Sheriff’s Department, a procedure required to eliminate her prints on the threatening letter, envelope and photo deposited in our mailbox. Still the cops found only one other set of latents when they dusted, my own, placed on the letter before I realized its contents.

  Nikki feels violated, forced to be printed in the little room at the jail next to junkies and other collars waiting to be booked. She knows this is necessary, but still she wonders how and why she and Sarah have been ensnared in all of this. She is being forced to burn limited vacation time from her job until the trial is over. Her employer says he will carry her, off-salary, once all paid leave is consumed. This was time she’d been saving for an extended vacation for the family. Now it will be gone.

  Nikki has exacted a price for all of this. “If I’m on vacation,” she told us, “then I’m going to stay in a resort.”

  It is fortunate for me that my wife’s sense of high living is a small bed and breakfast in the little town of Coloma, the place where Sutter found gold and started the stampede to this state that has never ended.

  We spent an anniversary there three years ago. Now Nikki is holed up there with Sarah and a pile of kindergarten workbooks, in a room with a brass bed, playing tutor to my daughter, at the Vineyard House. The building is a mammoth white pseudo-Victorian, dating from the nineteenth century, overgrown with wisteria and other clinging vines. It is said to be haunted by the ghost of a former owner, a man who suffered from dementia and was chained in the basement by his wife. This is a fate I fear for myself if I do not put a quick end to this trial. Such is Nikki’s growing sense of ire.

  “I don’t know about that place,” says Claude.

  “They’ll be fine,” I say. “They’re comfortable, and safe.”

  “It’s too public for me,” he says. “A private house or an apartment would have been better.

  “I’ve arranged periodic security,” he tells me. “El Dorado County Sheriff will keep a car patrolling in the area.” In the next breath he tells me that this is probably unnecessary.

  Nikki is there, registered under an assumed name. We have paid cash for the room and I will be traveling to and from this place daily more than an hour’s ride each way during the trial, so she will not be alone at night.

  Claude tells me that this is probably all overkill, needless precautions.

  I look at him as if to say “why the hell are we doing it then?”

  “Still, a good investment in some peace of mind,” he says.

  Then without missing a beat he slides something across the seat in my direction. This has come from under the flap of his coat near the seat belt, like he’s waiting for just the right moment to reveal it.

  “I thought maybe you could use this,” he says. There’s a disturbed look, a little chagrin on his face as he pushes this toward me.

  As he removes his hand, I’m looking down at the lustrous blued-steel of a small revolver, wrapped in its tight leather holster.

  “In the glove box,” he says, “is a permit, so you can carry it concealed. Emil issued it last night.”

  So much for peace of mind.

  It’s a truism that in the trial of any case, something will always go wrong, though usually it does not occur on the eve of opening argument as it has here. This maxim has now struck my own case, dead center and below the proverbial waterline.

  The commercial photo lab hired by Kay Sellig to upgrade the quality of our photos to be put before the jury has misplaced a critical piece of evidence, a short length of cord used in one of the murders. Sellig has me on the phone, giving me this news.

  “How in the hell?” I say.

  “They are looking for it,” she says, “turning the place upside-down.” She’s trying to calm me down. She tells me that they are confident they will find it.

  “When?” I say.

  “That’s the big question,” she tells me.

  “We have crystal clear colored photos of all of the pieces,” she says. Apparently the lab lost the missing piece of plastic sheathing after their processing was finished.

  I wonder aloud whether they could have thrown this out without thinking.

  Sellig cannot be sure, but tells me she doesn’t think this is the case. “They knew what it was for,” she says. “That it was important.”

  “That didn’t stop them from losing it.”

  She is silent on the other end of the line. Sellig had advised against allowin
g the evidence out of our possession, but I pushed for better enlargements as this was the centerpiece of our case. I am now paying the price for not heeding her warning.

  She tells me that she’s about to leave for the lab, to talk to the owner, to help them look.

  “If we can’t find it,” she says, “maybe the court would allow us to use the photos instead, as the best evidence,” she says.

  This is not likely, I tell her. “The defense has an absolute right to have the cord examined by its own experts. I wouldn’t count on it,” I say.

  Tomorrow morning I start my case-in-chief, opening argument. We have spent the last two days selecting our jury, or rather the judge has. Ingel, true to his promise not to cut any slack, pressed us to the wall, finally insisting on doing the voir dire himself, posing questions we submitted in writing, at least the ones he thought appropriate. Judges in criminal cases are permitted to do this under an initiative adopted by voters a few years ago, though unlike Ingel, most still allow the lawyers to ask critical questions.

  Chambers stomped up and down the courtroom railing about this, his exclusion from the jury selection process. He got nowhere, except perhaps the listing of another ground for appeal. That Ingel completed this task in two days was no mean feat, probably a record. In a capital case the jury must be “death qualified”—questions must be posed to assure that if convicted as charged, the panel would have no qualms about imposing the death penalty.

  The haste with which this process was completed has turned it into a dry exercise. Neither Goya nor I have any real feel for this group, our panel of twelve jurors and six alternates. I suspect that Chambers is equally blind, but no more so than one of the prospective jurors.

  When the man with the white cane appeared in the box, I objected, told Ingel that a major portion of our case was demonstrative in nature, photos of evidence that required visual acuity on the part of the trier of fact. He hammered me down, citing a code section that does not permit the exclusion of a juror because of impaired sight. I was ultimately forced to burn a peremptory challenge to remove the man from the panel. With this Ingel smiled, as if to say now I could deal with the wrath of the sight-impaired lobby.