by Sydney Bauer
David took a deep breath, his ribs still smarting from Sean’s final punch.
‘So I urge you to look hard at the evidence,’ he told them, ‘to look long and hard so you can see what she saw. And when this is all over and you realise that the dozen is still at least one egg short, then it will be time for you to do your duty – and send an innocent man home.’
87
Later that night
‘They’re gone,’ said David as a squinting Harry McNally stared at him through his wire-screen door. It was almost midnight and David had obviously woken him – the detective was wearing an old Newark PD T-shirt over a pair of red and green striped boxers, towelling slippers on his feet.
‘Who’s gone?’ asked McNally, forcing open the door with a squeak.
‘The gypsy moths.’ David pointed at the porch light above him before entering the house without being asked. ‘I thought summer was when they were at their worst?’
‘I painted the patio,’ said McNally. ‘They hate the smell.’ He led David into the living room. ‘I gave the walls in here a lick as well,’ he said self-consciously, knowing David would notice the change immediately. ‘In fact, I gave the whole place a bit of a spruce up. I had a whole lot of white left over from doing my neighbour’s garage.’
‘It looks good,’ said David, sensing this little home improvement was symbolic of McNally’s attempts to move on.
McNally nodded. ‘You want a beer?’
‘No. I won’t be here long.’
‘Coffee?’
‘Can’t sleep as it is.’
The detective nodded again. ‘So, you’re just here to shoot the breeze.’ McNally gave him some space.
‘We don’t have any choice,’ said David then. He had been thinking about it all day, hell, for most of the past week. He hadn’t thought it would come down to this, but in the end, it had.
‘Choice about what?’
‘About going after Cusack’s DNA without a warrant.’ And there was the line he was willing to cross. ‘It’s not exactly illegal.’
‘It’s not?’ McNally raised his eyebrows and gestured for David to take a seat.
David sat on the edge of the freshly steamcleaned sofa. ‘I’ve been doing some research. There was this case, in Morris County, some detectives knew this guy was guilty of a murder but they just couldn’t tie him to the crime. So they tailed him, waited until he smoked a cigarette, then they picked up the butt and had the saliva on it tested. It matched to some blood found on a towel in the victim’s apartment. The guy’s lawyers obviously hightailed it into court accusing the cops of using illegal means to obtain his client’s DNA, but the detectives argued it was necessary to secure probable cause for an arrest. They even had a name for it – called it “surreptitious sampling” – and they got away with it, McNally. The judge eventually ruled the sample admissible.’
David searched McNally’s face for some sort of reaction, but got none. ‘McNally?’ he said.
‘You want me to list the number of times that kind of police work has landed various cases in the crapper?’
David said nothing.
‘In case you haven’t noticed, Cavanaugh, we’re not the detectives trying to secure an arrest. In your scenario they had no other suspects, in ours we’re defending a man already charged with the crime.’
‘You’re a cop,’ said David.
‘I’ll be labelled a fucking turncoat as soon as the FAP finds out what I’ve been up to.’
A frustrated David collapsed back in his seat. ‘So you won’t even consider it?’
‘Well, I didn’t say that.’
David sat up again, praying he heard the detective right. ‘So what exactly are you saying?’
‘That what you propose could get us in all sorts of shit, but that we’re in all sorts of shit already, so one more gallon of the stuff isn’t going to affect us one way or another.’
David smiled. ‘So you’ll tail Cusack and wait until he leaves something we can test? I don’t think the kid smokes, so a butt is out, and he practically shaved his head but . . .’ David was thinking on his feet. ‘The kid has to eat and drink sometime. By all accounts, his mom is no Carol Brady so I am gathering he frequents restaurants, cafes, probably even bars. If worse comes to worst, you could always go through his trash.’
‘Geez, Cavanaugh, why do you give me all the good jobs?’
They both smiled.
‘There is one other problem,’ said David, referring to a hurdle he was not sure how to jump. ‘We don’t have a copy of the initial DNA sample taken from underneath Marilyn’s fingernails – which means that, even if we manage to get the kid’s DNA, we have nothing to compare it to.’
McNally said nothing, merely got to his feet to make the same journey he had made weeks ago – the one that saw him trek down his corridor and return to the previously dark and dingy living room with the faxed copy of the Hilton’s guest list in his large right hand.
This time he returned holding two things – some sheets of paper and a small envelope. The envelope was yellow and had some typing on the front, and it made a chinking noise when McNally placed it on the coffee table between them.
‘What’s that?’ asked David as he pointed toward the envelope.
‘It’s an envelope.’ McNally seemed to be enjoying drawing this out.
‘Jesus, McNally, what’s in the freaking envelope?’
‘A slide,’ McNally smiled. ‘An original slide of the DNA taken from the skin sample found underneath the victim’s fingernails. And this,’ he raised his other hand, ‘is a copy of the report that goes with it.’
David couldn’t believe it – McNally had been one step ahead of him the entire time. ‘How did you . . . ?’ he began.
‘The ME and I go way back. She’s a good woman.’ McNally’s smile stretched a little wider.
A grateful David nodded.
‘There is one other problem,’ said McNally. ‘Even if we get Cusack’s DNA, we’re gonna need someone to compare these two samples on the sly.’
‘That’s okay. I know an FBI agent back in Boston who used to work at their lab in Quantico.’
‘The ex-cop,’ said McNally, obviously remembering Joe Mannix’s mention of Susan Leigh.
‘That’s her. In fact, I’ll fast-track this original sample to her in any case – get her to run it through as many national and international DNA databanks as possible. Something tells me Marshall stopped short the moment he got a negative from the New Jersey network.’
‘He wasn’t exactly keen to pursue it.’
David nodded once again. ‘How long do you think it will take?’ he asked after a pause. ‘To get Cusack’s sample, I mean.’
‘Not long. It’s not like I haven’t tailed a perp before, Cavanaugh.’
‘And if we manage to get a match?’ David was getting ahead of himself, but even the possibility of finally connecting Will Cusack to Marilyn’s death was invigorating.
‘Then you have to work out a way to avoid Cusack’s sample being thrown out of court.’
‘I’ll work that out. There is no way I’m nailing this kid just to see him walk.’
‘Then we might have something here, partner.’
‘Crazier things have happened, McNally,’ smiled David. ‘Crazier things have happened.’
88
Will Cusack was on his third coffee at the early-opening Greasy Franks – barely a triangle of scratched red formica visible under the mountain of Star Ledgers, New York Times and USA Todays.
The fingernail DNA was for real. The various reports had confirmed it, and Will was already in the process of trying to work a way around it. But first things first, he had to deal with Connor Kincaid who, along with Jack Delgado, had just pushed through Frank’s finger-smudged front door.
‘Hey,’ said Will as the boys approached. Will had enlisted Jack’s help in getting Kincaid here this morning – according to Jack, apart from the requisite court appearances, the kid had gone into
some sort of self-imposed hibernation.
‘So what the fuck happened?’ he asked Connor as he and Jack slid into the booth across from him. Will hadn’t attended the first day at trial yesterday – deciding it was better to play things safe.
‘I thought you were gonna be there,’ responded Connor, a new edge to his tone. And it took all of Will’s reserve not to reach across the table and grab the nervous-faced fuck by the collar of his perfectly pressed Polo Ralph Lauren shirt. If this ungrateful sap was the one who’d put Cavanaugh on to him, then he was going to pay. But once again, first things first.
‘Jack and I agreed it might be best if we maintained a little distance,’ said Will, knowing he needed to milk Connor for as much information as possible.
Jack blinked, his eyes downcast.
‘But why? I thought we were a united front?’ asked Connor, his fingers tapping anxiously on a small square of paper-free tabletop.
‘Sometimes less is more, Connor. We’ll be in court, don’t worry, we just thought that on the first day it was better if the focus was solely on your family.’
Connor met his eye, his jittering stopping momentarily, until he nodded, and returned to his fidgeting once again. ‘I’m sorry,’ he said. ‘It’s just that sometimes I feel like everyone is shutting me out. My parents are trying to protect me, you’re making decisions without me.’ Connor met his eye once again. ‘For example, what happened with the pocketwatch? I thought you’d have brought it back by now. I don’t even know why you took it in the first place, and sooner or later my mom is going to notice it’s missing.’
Will shot a look at Jack. His oldest friend’s eyes were narrowing in confusion, and Will knew he needed to change the subject fast.
‘Look, Connor, I’m just trying to hold this thing together – for us, and for your dad. That’s been my motivation all along, right?’
Connor managed a nod.
‘Will’s just trying to help, Connor,’ said a softly spoken Jack.
‘Exactly,’ confirmed Will, ‘which means I need to stay informed. The papers tell me shit,’ he added, shoving at the Times with his palm. ‘They called yesterday a dead heat – but it reads like the prosecutor was the one with all the evidence.’
Truth be told, the whole ‘dead heat’ thing worried Will more than just a little. Cavanaugh had obviously gone into trial all confident – and had even managed to convince the jury that an alternate theory was to follow. Which meant Will knew he needed to brace himself for a counter move, given time was short, and that, after all, he was the alternate theory.
‘It was kind of even,’ said Connor, shifting in his seat. ‘Mr Marshall had a good start – listing all the evidence against Dad, but David gave this whole speech about burden of proof and reasonable doubt.’
And then Will saw it, the smile beginning to creep across Connor Kincaid’s face. Connor’s fidgeting had nothing to do with panic – and everything to do with hope!
‘Fuck,’ said Will, seeing the full picture now. ‘You didn’t know about the fingernail DNA.’
Connor nodded. ‘No . . . like I said, my parents wanted to protect me. They were afraid that if I knew the particulars of the case I’d build up false hope.’ The smile was getting wider, his hollow cheeks shifting to accommodate it.
‘You think the fingernail DNA will secure your father a pass?’ asked Will, needing desperately to see just how far the stupid fucking kid had taken this.
‘Yes . . . I mean, no – not just that, Will. Don’t you see, this new evidence, it proves there’s a chance that . . .’
‘Oh God – you think the fingernail guy killed your dad’s lover.’
Will said this with such ridicule that Connor flinched before sitting forward like an excited child once again.
‘It’s possible.’
‘No, Connor, it’s not. The whore could have scratched someone at that bar she worked at.’
‘But the evidence of sex.’
‘Your dad wore a rubber.’
‘No.’ Connor shook his head in frustration, obviously needing Will to see it. ‘What if we were wrong all along, Will – about my father, I mean? What if—’
The kid was practically peeing his pants at the thought of it.
‘Connor wants us to go to the cops,’ interrupted Jack then, stating it plain and clear.
Will met his friend’s light brown eyes – a world of understanding passing between them.
‘Listen to me, Connor, and listen to me good.’ Will took a breath, willing his heartbeat to calm. ‘This isn’t a baseball game we’re playing here – I mean, the fingernail shit means nothing. So maybe the woman did bang someone else before your dad attacked her. Hell, your dad probably walked in on them – which was probably what caused him to go apeshit in the first place.’
Connor Kincaid shivered and Will decided to change tack. ‘I’m sorry, man, I can see why this information would excite you – and I don’t mean to sound negative. But I just don’t think you should be getting your hopes up based on a couple of opening speeches. The stuff you’re going to have to listen to over the next couple of weeks, Connor – it’s going to be tough.’ He reached across and nudged at Connor’s shoulder. ‘But you are going to have to hold tight, man, for all our sakes.’
Underneath it all, Will’s mind was racing. Connor hadn’t ratted him out. No, Connor Kincaid in all his wisdom, had come up with a better idea on how to screw them – by suggesting they screwed themselves.
‘I understand what you’re saying,’ said Connor, obviously determined to push his point. ‘But think about it, Will. What if David is right? What if this other guy, whoever he was . . . what if he was the one who beat Marilyn Maloney? And what we saw, the way we found her, well . . . what if my dad had nothing to do with this in the first place?’
‘Connor,’ Will swallowed to contain his frustration, ‘if it was my dad I’d want to believe that too. But he just broke up with her, he tried to pay her off and she threatened to go public. This other guy, whoever he was, was most likely just some john she banged – probably to get back at your dad.’
‘Nevertheless,’ Connor continued, evidently having grown some balls during his recent time ‘in the cave’, ‘I still think, if we came forward, all three of us, together, and explained that we made a mistake, then at the very least, Dad’s sentence would be reduced and . . .’
But Will had finally had enough – so he took a breath and leaned slowly across the table.
‘Listen up, little Mr Princeton. I know you’re all excited about your new version of events with the fairytale fucking ending, but that’s all it is, Connor – a fantasy based on what you want and not what really happened. You need to stop dreaming and start understanding just much you have to lose by opening your big fat mouth, and the full fucking disaster your selfishness would cause.’
Connor tried to withdraw, but Will grabbed him hard by the wrist.
‘You think if we come forward the law will go any easier on your dad? Just how fucking stupid are you? Our confessing to save your dad’s ass will simply make matters worse.’
‘How?’ interrupted a still determined Connor. ‘How could matters get any worse, Will? We’re the ones who killed her, remember?’
‘Only because we thought she was already dead. We, I, did this to save your father’s skin – and for that you owe me and will continue to owe me big-time for the rest of your goddamned life.’
Will turned his attention to Jack, needing to gauge his reaction. But Jack sat silent, his chin lowered onto his chest.
‘We come forward, two things could happen,’ Will continued, realising he would have to spell things out. ‘One, they believe us, and we, along with your dad, are sent away to prison for life. Or two, they don’t believe us, and they think your dad paid me and Jack to go along with some cockamamie story to save his sorry ass.’
Will could see the reality sinking in.
‘You think they might say we were lying?’ asked Connor.
‘It’s not like your dad hasn’t used a chequebook to get himself out of trouble in the past.’
Connor nodded – defeated – his momentary joy squashed like a bug on the turnpike.
‘I told you I would fix things and I will,’ Will went on, glancing at Jack again before returning his attention to Connor. ‘Your parents were right to protect you, Connor. You operate best when you don’t know shit.’
‘And that’s what you like about me isn’t it, Will?’ replied Connor. ‘The fact that I don’t know shit?’
‘Yeah,’ said Will, telling the truth for once. ‘That and the fact that you know your limitations.’
‘So maybe one day I’ll surprise you.’ There was the slightest trace of resentment in Connor’s voice.
‘Maybe,’ smiled Will as he released the kid’s wrist and slapped him on the shoulder. ‘Maybe, but I think not.’
89
Detective Carla Torres was feeling sick.
She had been on a short fuse for days – so much so that this morning she’d barked at her oldest son Carlos for leaving his football shoes at practice. Carlos was only fifteen, but he still managed to play ‘man of the house’ with his father overseas in Afghanistan. The kid was her greatest supporter, but she tore him down for something stupid, and now she felt sick about it.
This had nothing to do with Carlos, of course. This was about Marshall and Chris Kincaid and, even more so, Harry McNally. She had been called as Marshall’s first witness this morning and she knew exactly what to expect. Hell, the FAP had practically given her a script to work from – and many of his questions goaded her to either have a subtle dig at her old partner McNally, or to express her own belief in Chris Kincaid’s guilt.
It was what Marshall had to do, of course – paint Carla as the lead investigator on the case. And while she felt confident in her ability to do her job, she couldn’t shake the nagging feeling that McNally could be right. What if there were a chance Kincaid was innocent? What if the real killer really was roaming free? And what if Marshall was railroading this investigation simply to put a big fat notch on his too-big belt?