Matter of Trust

by Sydney Bauer

  Well, that last question was a no-brainer, which made her anxiety all the worse.

  The problem was accentuated by McNally’s absence. He hadn’t contacted her since that day in the office. He had failed to return her calls and, while she suspected he was keeping his distance for her own protection, she was still angry as all hell at him for not keeping her in the loop.

  The trouble was, in all the years she had worked with him, she had never known McNally to be wrong about a perp. Even after Megan died – even when he was racked with sorrow – his focus didn’t desert him. If anything, his investigatory skills had sharpened after his wife’s death. The tragedy seemed to give him a special insight into human nature, and the futility of judging without proof.

  Her stomach churned some more as she paced the corridor – another wave of nausea hitting her as Cavanaugh and his fellow lawyers disembarked from the elevator at the far end of the hall. For a second she had stupidly hoped that McNally would be with them – even had to stifle the desire to walk up to Cavanaugh and ask him where the hell her old partner was. But in the end there was no need, for it was Cavanaugh who approached her.

  ‘From McNally,’ he said, as he handed her a sealed white envelope with ‘Carla’ written across the front. And then he looked at her and smiled, before moving into the courtroom.

  ‘The crime scene was worked like any other,’ said Carla Torres, now a good half hour into her testimony.

  Marshall was taking it slowly, extracting every detail about the discovery of Marilyn’s body. David knew the FAP was leading up to the physical retrieval of Marilyn’s corpse – hell, he wouldn’t be surprised if Marshall decided to show pictures.

  ‘And by that, I mean all care was taken to preserve evidence,’ the well-spoken Torres went on. ‘The area was cordoned off, the jogger who discovered the body was interviewed, the necessary lighting was put in place so that we as investigators might observe the scene in detail and the crime scene photographers would have the best illumination possible – and our crime scene guys used a winch to retrieve Ms Maloney’s body with the care it required.’

  ‘Not an easy task I would assume,’ pursued Marshall.

  ‘Discovering a lost life is never easy, Mr Marshall.’ Torres made her point and Marshall bristled slightly.

  ‘He’s treating her like a child,’ David whispered to Arthur. ‘He doesn’t approve of her offering any opinion whatsoever – unless it’s one he agrees with.’

  ‘McNally said she could be trusted,’ Arthur leaned into his ear. ‘Let’s see where this goes.’

  David returned his attention to the court.

  ‘What I meant was,’ Marshall pushed on, ‘from what I am told, a body that has been submerged for close to two weeks in freezing, stagnant, bacteria-infested water – the chances of it disintegrating the moment it is lifted are significant.’

  ‘I’m not a medical examiner, Mr Marshall, but yes, we took care to be as gentle as possible – so that the ME had her best chance of lifting evidence from the body. And out of respect to the victim, of course.’

  ‘Of course,’ nodded Marshall, perhaps realising that Torres was not the puppet he’d hoped her to be.

  The FAP moved back to his desk to retrieve a large cream-coloured envelope, before entering photographs of the victim into evidence and – just as David had speculated – asking permission to distribute the images to the jury.

  David was up. ‘Objection. The jury will have access to these photographs during their deliberations and, as such, distributing them at this point is almost theatrical. Further, the images themselves have no bearing on the information this witness may be able to provide – that being her earliest observations in regard to the possible identity of the killer.’

  ‘Mr Marshall?’ The judge was fishing for a rebuttal.

  ‘On the contrary,’ said the FAP. ‘The images go directly toward motive, Your Honour. Ms Maloney’s body was discarded in an attempt to hide the crime – a crime committed so that the defendant could hide his affair with the victim.’

  ‘That’s a stretch, Mr Marshall, but I’ll allow it.’

  And so David re-took his seat and the entire room sat in silence as the images of the victim’s bloated body were passed from one juror to the next. It was like watching the reaction to a grisly horror film played out frame by frame – the gasps, the sighs, the trembles. At least two jurors put their hands to their mouths as if they were going to gag, and a third crossed himself before mouthing a silent prayer to the heavens.

  Five minutes later, the images collected, Marshall moved on to the investigation proper – starting with Chris’s visit to the 3rd Precinct. This was where things got tricky as Carla Torres had not been at the precinct at the time. McNally’s absence presented two big problems for the FAP – the first being that McNally was the only one who heard Chris’s lies besides David and the second being that the detective had embarrassingly ‘disappeared’ from the case. So David knew Marshall had some tap dancing to do – he was just not sure which song he was going to be dancing to. But then it became clear.

  ‘Detective Torres, your original partner on this case was a Detective Harold McNally, was it not?’

  ‘That’s correct,’ said Torres, her jaw tightening ever so slightly.

  ‘But Detective McNally is no longer on the case.’

  ‘That’s right.’

  ‘And why not?’ asked Marshall.

  Torres gave him a look prompting the FAP to be more specific.

  ‘Is he on leave?’

  ‘Yes.’

  ‘I believe it is compassionate leave?’

  ‘Yes.’

  ‘Why is that?’

  Torres took a breath. ‘Last year, his wife, a fellow police officer, drowned while trying to rescue a young boy in the course of her duty.’

  The gallery sighed in sympathy.

  ‘Terrible,’ said Marshall. ‘But Detective McNally was on duty at the time Chris Kincaid and his lawyer, David Cavanaugh, came to visit the 3rd Precinct back on January 26 – the afternoon after the discovery of the victim’s body.’

  ‘Yes.’

  ‘And in your opinion – as his partner, and I take it his friend . . . ?’ Marshall left the question hanging.

  ‘The detective is my friend,’ said Torres, confirming it.

  ‘Right – well, in your opinion, was Detective McNally, at that time back in January, not long after his wife’s death, capable of conducting a first class investigation?’

  ‘Absolutely.’

  ‘There were no lapses in judgment, no neglected duties?’

  ‘Definitely not.’

  ‘So he was a topnotch investigator?’

  ‘The best,’ said Torres.

  And Marshall smiled before returning to his desk once again. ‘So, you would have no problem in describing the statement he gave at the time as both thorough and accurate?’

  ‘Detective McNally was never anything but.’

  Marshall smiled again. ‘Your Honour, at this time I would like to enter into evidence the report filed by Detective Harold McNally following Senator Chris Kincaid’s said visit to the 3rd Precinct on Saturday, January 26. The report outlines a series of lies told to the detective by the defendant while his lawyer was present.’

  Marshall paused to look at Chris – and then at David, making the point that birds of a feather . . .

  ‘It explains how Senator Kincaid told the detective that he and his friend were trying to contact Ms Maloney in relation to a teenage reunion,’ Marshall went on. ‘It also describes how the defendant claimed his relationship with the victim was platonic and casual.’

  ‘Objection.’ David was on his feet again, needing desperately to cut the FAP short. Marshall, who mere months ago had basically sacked McNally because of his sharp investigatory skills, was now using them to benefit his case. ‘This report has already been entered into evidence. The jury have had access to it since the beginning of the trial. I understand Mr Marshall’s n
eed to impress, but this witness,’ he gestured toward Torres, ‘was not at the 3rd Precinct at the time and therefore cannot offer any comment as to what was discussed at that meeting.’

  ‘Perhaps I should call you to the stand, Mr Cavanaugh, so you can explain what was discussed,’ interjected Marshall. The gallery laughed, and the jury laughed with them.

  ‘All right, then,’ said Judge Jones. ‘Enough of the levity, Mr Marshall.’

  Jones turned to the jury. ‘Mr Foreman,’ he began. ‘Do you and your fellow jurors have access to the police report tabled as 3b?’

  ‘Yes we do, Your Honour,’ said George Brewster who, luckily for the defence, had been elected as foreman moments before the trial began. ‘As a matter of fact, Detective McNally’s statement was on the top of a number of reports provided to us by Mr Marshall – and each and every one of us has read it, sir – at least twice.’

  Jones nodded before turning back to the FAP. ‘Looks like you’re doubling up, Mr Marshall. The jury has the report and as much as the gallery and our friends from the media here would appreciate a copy, I don’t believe they’ll be voting on the defendant’s guilt or innocence.’

  It was Jones’s way of slapping Marshall across the wrist, and David was grateful.

  ‘You may continue, Mr Marshall.’

  And so Marshall took the bitter with the sweet and moved on.

  The next hour was spent on the two searches – the initial search of Marilyn Maloney’s apartment and the subsequent search of Chris Kincaid’s house and cars following the raising of the warrant. Torres answered a series of detailed questions relating to the discovery of the satchel, the school ring and eventually Marilyn’s missing shoe.

  ‘And so, after all of these searches and observations,’ Marshall pulled his evidence together, ‘after confirming the writing on the satchel was in Marilyn Maloney’s hand, after identifying the school ring as one given to Ms Maloney by the defendant, after finding the very shoe the victim was wearing on the night of her death in Rebecca Kincaid’s car . . .’ Marshall paused for effect. ‘What did you conclude, Detective Torres, as to the defendant’s involvement in this crime.’

  Marshall wanted her to say it – to say she believed Chris Kincaid to be guilty. But David could see the detective was struggling and he knew Marshall saw it too.

  ‘Objection,’ said David, getting to his feet to offer Torres the lifeline he sensed she needed. ‘Mr Marshall is asking for the witness’s opinion. Detective Torres is a dedicated detective who knows that every individual charged with a crime is innocent until proven guilty and, as such, Mr Marshall’s question is both unfair and inappropriate.’

  ‘Your Honour,’ Marshall was ready with his counter-argument. ‘The detective was involved with the investigation from the outset and she has been a valued member of the Newark PD for fifteen years. I am calling on her opinion as an experienced investigator – a query which is not only appropriate but relevant.’

  There was silence, as the judge considered his ruling.

  ‘Your objection is overruled, Mr Cavanaugh. I’ll allow it.’ He turned to Torres. ‘You may answer the question, Detective.’

  But the to-ing and fro-ing had given Torres time to think.

  ‘First up, Mr Marshall, Mr Cavanaugh is right. It is not my job to offer an opinion, merely to collect the evidence that will assist the court in its deliberations. We arrested the senator because the evidence discovered was enough to satisfy probable cause. In other words, we did our job, Sir – and once the defendant was arrested, much of the investigation was commandeered by your own homicide squad so . . .’

  David smiled. He could not have answered the question better himself.

  ‘Then let me ask you this, Detective,’ Marshall was pissed and his body language taut as he took three swift strides toward his own witness. ‘At any stage of these early investigations, did the evidence point to anyone else?’

  Torres hesitated. ‘No.’

  ‘There were no other suspects?’

  ‘Not at that stage.’

  ‘There was no-one else who had lied to the police, no other accusatory satchels, no other high school mementos or random items of the victim’s clothing left in anyone else’s wife’s car?’

  Torres took a breath. ‘No. But there was some skin tissue taken from underneath the fingernails of the—’

  ‘Detective Torres, I appreciate your offer to answer questions relevant to the medical examiner, but I believe you have done your job and we can leave other matters to her.’

  Torres nodded, Marshall had left her nowhere to go.

  ‘One more thing, Detective,’ said Marshall after a pause. It was almost midday and the jury looked in desperate need of a break. ‘Your old partner – Detective McNally – why did he decide to take compassionate leave, given he’d already returned to work?’

  It was a question plucked from obscurity – misplaced enough to have all in the room at attention. David looked at Arthur who shook his head in an ‘I have no idea’ gesture. Chris looked to David as if to say, ‘This is not going well – you have to do something or we are screwed.’

  But then Torres’s eyes flickered quickly toward David, and David sensed she was telling him to trust her on this one.

  ‘I believe he took leave because you called our lieutenant and asked that he be relieved of his duties,’ she told the FAP.

  ‘And I did that because . . . ?’

  Torres’s eyes flickered again. ‘I believe you thought he was not conducting the Kincaid investigation in the manner you saw fit.’

  ‘Then let me take this opportunity to set the record straight, Detective Torres.’ Marshall shifted his stance so that he was now facing the jury. ‘I recommended Detective McNally take leave, because over time, I could see that the very nature of this crime – the fact that Detective McNally’s wife had drowned just like Marilyn Maloney – made the entire exercise incredibly distressing to the detective and, in all honesty, I felt his pain. More importantly, as hard a decision as it was, I did not feel Detective McNally could act objectively in his investigations given he was already predisposed toward punishing the accused for taking a life in the way that he did.’

  David could not believe it. Marshall was using Carla Torres – McNally’s good friend and partner – to enter his own set of lies into evidence. He was justifying McNally’s dismissal on the grounds that as lead prosecutor on the case, he would not tolerate any form of subjectivity – even if it was from a decent cop he classed as professional but too grief-stricken to conduct an investigation fairly – and all this from a prosecutor who mere moments before had used McNally’s professionalism to support his own argument.

  But then Torres blinked and the entire courtroom stopped as the witness appeared to be fiddling around in her pocket behind the witness stand.

  ‘I find that strange,’ said Torres then, her hand resting calmly in said pocket – as if whatever was inside it had provided her with some sort of inspiration.

  ‘It is not so strange that a prosecutor should understand a fellow investigator’s grief and as such take measures to assure his own wellbeing, and the unbiased approach to a case which—’

  ‘No,’ interrupted Torres. ‘Not that. I find it strange that you claim you had McNally removed from the case because you were worried about his ability to view the evidence against the defendant objectively. He told me you got him thrown off because he told you he believed that Chris Kincaid was innocent.’

  The gallery was silent for one second, two, three – but then an almighty gasp echoed around the room, as the jury buzzed and the media scribbled and Jones called for order just as Marshall made some quick comment as to the depth of McNally’s grief before hastily dismissing his witness.

  The judge brought down his gavel calling for an immediate recess for lunch, with a warning that the gallery should return with some sense of decorum.

  And as Carla Torres left the stand, now lost in a sea of bustling spectators, she moved p
ast the defence table to whisper surreptitiously into David’s ear, ‘Tell McNally thanks for the advice.’ And she took the now open envelope from her pocket and slipped it back into David’s hand.

  ‘What does it say?’ asked Sara, who had seen Torres’s gesture, and like David, was anxious to know what McNally had written in his private note to his old partner.

  David held it up for her to see. Tell the truth, the whole truth and nothing but the truth, the note read. So help you God.

  90

  The morning had flown, and during the lunch recess David had managed to make a quick call to McNally who was parked outside a downtown diner observing a coffee-guzzling Cusack inside. David could almost see McNally smile down the line as he told him of Torres’s final response to Marshall.

  ‘Carla is one in a million,’ McNally had said, before adding, ‘Do you think it would be stretching the friendship if I asked her help us organise that tap on Cusack’s home and cell phones?’ McNally had hit a series of brick walls trying to organise this on his own.

  ‘I think she hates Marshall so much right now that she’d do anything to help us,’ David had replied. ‘And besides, she knows you wouldn’t be asking unless it was important.’ And McNally had agreed before asking David to play his cross-examination as carefully as possible so as not to get Torres into trouble.

  And so when the session resumed, David stuck to the evidence – to not so much what Torres and McNally had discovered in the early stages of the investigation, but rather to what they had not – like evidence that Chris Kincaid had been at Marilyn’s apartment, evidence on the victim’s body linking Kincaid to her murder, and the fact that Chris Kincaid’s prints were not found on either the satchel in Marilyn’s apartment or on the victim’s single shoe.