Motion to Suppress

by Perri O'shaughnessy

  "Your back pain is probably just a strain rather than something serious, but we should keep an eye on it. I have some nonprescription pain pills here." The woman reached into a drawer and scrabbled through dozens of tiny sample pill packets. "That’s about it." Michelle put her clothes on to leave. The receptionist asked her to wait outside. Ten minutes later, she went back in.

  Dr. Francis pushed her glasses back on her face, saying, "Well. A positive result on a standard test. Looks like we’ll need to see you again, young lady."

  "What’s the matter? Do I have—"

  "No, no. You’re not sick. Healthy as a horse. Are you trying to tell me you haven’t noticed some changes in your body over the past three months?" She was smiling, so it couldn’t be too bad.

  "Doctor. You have no idea. My life’s been really crazy."

  "It’s about to become crazier. You’re going to be a mother. Whoops!" She caught Michelle’s shoulders and steadied her. "Are you all right?"

  "Oh, I am in so much trouble. A baby ..."

  "Well, let’s have you talk to one of our counselors tomorrow. Maybe I shouldn’t congratulate you; I never know what to say these days."

  That night, Michelle got into her car and drove to Tom Clarke’s house. He walked his dogs every night about ten.

  She hadn’t told Andrea or anyone else. She wanted to tell Tom, see his reaction, see what he wanted to do. Of course, maybe this baby did not belong to Tom at all, but she wanted it to be Tom’s baby.

  Shouldn’t the father hear the news first?

  Tom had been avoiding her, not even trying to reach her. She wanted to see him and ask him to his face why he hadn’t called.

  She couldn’t believe he would dump her, just like that, not after the way he had panted after her for months, made love to her in cars and motels and on the beach, all their secret places.

  Michelle was lonely, and she had never been without a man since leaving her Fresno home. Wisdom said, don’t go starting up something new at this point. She knew Tom. Steve had been nothing but a couple of quickies, a stranger.

  She cruised by his house in Anthony’s Subaru, which the police had finally released to her. Tom lived in a development called Montgomery Estates in a house that looked like a scale model of a castle. He complained enough about the mortgage that it should be full-size.

  His kids would be in bed by now. His wife Janine would be in bed too. She had to get up at five to get to her job as a nurse at Boulder Hospital. Tom had talked about his family all the time.

  Michelle parked the car down the street, rolled down the driver’s-side window to let in the sweet smell of night-blooming jasmine, and settled back to wait, away from the light. After about fifteen minutes she tucked her head back against the headrest and closed her eyes. The pain pill had made her drowsy.

  In what seemed like a moment, she opened them again to see Janine Clarke peering toward the driver’s window, holding the two dogs. Wearing shorts and a sleeveless black T-SHIRT, her hair tied up in a ponytail, Tom’s wife had the solid build and the pecs of a woman who lifted weights. Michelle had never seen her before, but she knew Tom’s collie and the black Lab straining at the leash.

  "Misty, right? The newspaper doesn’t do you justice," Janine Clarke said. "No, don’t start up the car. What are you doing here?"

  "I came to see Tom," Michelle said.

  "Oh. Dog walking. Usually his job. Do the two of you often meet this way?"

  "No. Anyway, I gotta go."

  "I guess Tom didn’t know you were out here, or he wouldn’t have made such a stink about me walking these guys tonight. So you’re spying. Did you want to see if the kids and I were still around? Here we are."

  "I never meant to hurt your family."

  "Did you know we have three little children? Did you ever think while you two went about your business about the kind of pain you put us through? ’Daddy’s gone again tonight’; me crying and the kids just frantic."

  Michelle couldn’t talk.

  "Ruining his life, ruining his career. Yes, you had one prize bull working for you there."

  "Who do you mean?" Michelle found her voice. Not Tom Clarke, because he might rate stud horse, but never bull status. "Anthony?"

  "Paid me a special visit at the hospital. He wanted to make sure I broke as badly as he broke. He made sure I would walk out on Tom. You know he said he taped the two of you in bed? I ran. Missed the performance."

  Michelle, thunderstruck, said nothing. She didn’t believe it. Anthony must have made that up because he was in another jealous snit, to get Tom out of her life. He had suspected her, but he never knew.

  "Leave us alone. Tom wants nothing to do with you." Janine looked hard at Michelle, then without warning raised a hand and punched her in the face. Michelle threw up her arm to protect herself, but the woman began walking down the street, the dogs pulling her forward.

  Janine’s knuckles had felt like concrete. Michelle put a hand to her numb cheek, watched the woman disappear into the night, and then started up the car and drove away.

  17

  MICHELLE DECIDED NOT to try to tell anyone else about the baby until she was ready. She carried her secret around with the tiny spot of brightness she now knew was inside. The next day she went to the clinic counselor, who told her all about getting an abortion in the second trimester.

  She should have known from losing her periods, but even before Anthony and jail, she had been so miserable and desperate she had paid no attention.

  Now she felt the pregnancy enveloping her like soft baffling. That night she investigated her abdomen with her fingers. Deep inside there, just above the pelvic bone, she thought she could feel a spongy new lump right at her center, as alive in this moment as she herself felt. Her whole life had been concerned with death. Her childhood was dead to her, forgotten. Anthony’s death had felt ... expected, and her grief and guilt over that event, strangely familiar. She had almost died herself, the other day in Nina’s Bronco. She had searched for death; for Anthony to kill her, for alcoholism, for AIDS. She had made friends with death. Now, at the last minute, this fragile new life had come to her, trailed by an insistent inner voice whispering all the excellent reasons to end it.

  Her hands moved up and down her body, touching it as though they belonged to someone else. It was a healthy body, resilient, young and strong.

  Just before Michelle fell asleep, the thought came to her that the case against her was all part of the same process she began with Dr. Greenspan. She needed to remove the darkness in her life, the mysteries, the accusations, the confession that made no sense. Nina could provide the muscle, but the spirit had to come from her, from inside, because she knew without her inspiration, whatever defense Nina cooked up would crumble. She, who avoided conflict. She, who played games with her husband so that he would never know the truth about her. She, who shielded herself from her own past. She would have to fight her old friend Death and welcome in a stranger.

  The next day Nina came to the shelter. Michelle was peeling carrots into the sink in the kitchen, wearing sweats and a tank top spattered with ingredients for the chocolate cake she had just slipped into the oven.

  "Nice to hear you whistling," Nina said. "I didn’t know you could do that."

  "There’s a lot nobody knows about me." Michelle smiled. "Ain’t that a shame." They sat down at the long kitchen table. "I feel happy today."

  "How’s your finger?"

  Michelle held up the splint for inspection, a ragged bandage covered with cake mix. "It only hurts when I think about it. How about your arm?"

  "Sore. I wake up when I roll over at night."

  "It could be worse," they said at the same time. They looked at each other, two survivors.

  "So," Nina said. "You decided to live."

  "It could all be taken away tomorrow," Michelle said.

  "I know what you mean."

  "I’ve given up trying to control any of what’s happening," Michelle said. "There’s so mu
ch danger. It’s like swirling around in a whirlpool, thinking each time I go around I’ll get sucked down. But it doesn’t happen. I could still come out of this somehow, Nina. I could!"

  "Michelle, I really hope you do," Nina said.

  She sounded funny, choked up, so Michelle, who was whipping icing, turned the mixer off and said, "What’s wrong?"

  "I have some very bad news, Michelle, and I don’t quite know how to tell you about it. I’m just going to have to blurt it out. Somehow—I don’t know how—Collier Hallowell learned about the session with Dr. Cervenka," Nina said, putting her head between her hands. "He obtained a search warrant for Dr. Cervenka’s office. He has the tape of your hypnosis."

  "But how could that happen? You said he would hide in the background and we wouldn’t have to use him as a witness."

  "The DA’s office should never have found out. Someone knew about the session and talked to Hallowell."

  "But who?"

  "Did you tell anyone we were going to San Francisco, Michelle? Think hard."

  "Nobody. Except Steve. He called me and wanted to see me. I said I had to go to San Francisco for an appointment. He said he would drive me, and I said I was going with you. Tell me it wasn’t Steve."

  "You shouldn’t have told him that much," Nina said. "He has resources. He could have found out the rest. But don’t feel too bad, Michelle. I told somebody myself, although I don’t think I said the doctor’s name. He could be tracked down, easily enough."

  "Who did you tell?" Michelle could see Nina measuring her strength, wondering how much more she could take. Nina looked like she needed some support herself Glasses perched on her nose made her look younger, like the smart little schoolgirl she must have been. "Go ahead, Nina," she said.

  "Dr. Greenspan," Nina said.

  "My doctor? You think he came after us and rammed the car? I don’t believe it."

  "You’re in trouble, Michelle," Nina said. "I’ve seen it before. When somebody gets in trouble, the rats jump for safety. I know how much you trust Dr. Greenspan and feel you still need him. But you have to stay away from him."

  Michelle got up and took her cake out of the oven, placing the hot pan carefully on top of the stove.

  "I figured out what I want, Nina, because up until now I never knew."

  "What’s that?"

  "A normal life. Like yours. A family, and work where I’m not required to entertain with a flash of skin."

  Nina took a deep breath, which came out like a sigh.

  "Chocolate cake and Christmas. Not killers and jail and traitors everywhere. You’re the only one I can trust, Nina."

  "I’ve betrayed you too. I’ve screwed up your defense. I should never have taken the risk of the hypnosis. I wanted to find the truth too fast, just mess with your brain and have it all come spilling out. I should have been more patient, and let the truth unfold. Now the prosecution has a confession."

  "What do we do now?"

  "I’m going to file another motion, to suppress the tape, anything to do with the session. There are powerful legal arguments on our side. I’m working on it. The search warrant was obtained under Penal Code Section 1524, which requires the tape be sealed and brought to court for an evidentiary hearing. At that hearing we will argue that the tape was protected by what we call a privilege, that is, a right to keep the tape confidential. The hearing is set for June tenth."

  "Slow down. I don’t get it. If the tape was sealed, doesn’t that mean Hallowell doesn’t know I said I killed Anthony?"

  "He knows. Bruno told me the police played the tape at his office before they took it away. And ..."

  "That’s not all?"

  "Nope. It gets worse. Hallowell has withdrawn the plea-bargain offer. He’s ready to try you for first-degree murder unless you’ll plead to second-degree murder."

  "What happens to me if I do that?"

  "I would say you would be out in about ten to fifteen years. We’ve been putting off the prelim in hopes of resolving the case with a plea bargain. Now Hallowell says he wants to get that over with and get a trial date as soon as possible if we don’t accept this new ... offer by Wednesday." She looked up. "Michelle? Do you understand what I just said?"

  "I get it," Michelle said. "It’s okay."

  "Then you definitely don’t get it, Michelle. Let me explain again."

  "No, Nina. Your turn to listen. If we lose on the tape, we’ll have to have a trial. You almost had me convinced to plead guilty to ... to ..."

  "Voluntary manslaughter."

  "You’re not going to tell me to plead guilty to second-degree murder, are you?"

  "I might. If we lose this motion and I think you might be convicted of murder in the first degree. I’ve seen that happen, too, Michelle, a defense lawyer going for an acquittal instead of pleading to a lesser charge, only to find her client is off to San Quentin for twenty-five to life."

  "Another twirl around the whirlpool coming up," Michelle said. "Let’s have a piece of cake. And let’s have a trial." She cut them two big pieces.

  "Michelle ..." Nina began.

  "Nina, I never had a woman friend before. It’s always been men for me. I don’t know why. I guess I always competed with other women for men, some jungle thing. But I’m out of that, I’m changing. And I want to be your friend."

  "Michelle ... friendship doesn’t enter into this...."

  "You’re really on my side, Nina. So what if you made a mistake." Michelle had a big bite of the warm cake and put a piece in front of Nina.

  "You nut. You ought to fire me," Nina said, scratching beside her eye with a newly minted fingernail. She lifted a fork and took a bite.

  "Will you take it to trial if we lose on the motion, Nina? That’s what I want."

  "You could go to prison for life, Michelle. We have no defense. You’ve confessed, for God’s sake."

  "I’ve been rolling in garbage for a long time, hoping to get hit by something sharp, something that would do me some damage. Now I want to stand up for myself."

  "I think I understand," Nina said quietly.

  "There’s something in what you say about the burglar at the Lucky Chip and the car accident. One bad thing, okay; I attract the wrong types. But two? Someone is out there, someone who did kill Anthony. You’ve got to keep looking."

  "Oh, Michelle. I’m looking," Nina said.

  "Because I only hit Anthony once. That’s what I believe, no matter what I said in the doctor’s office."

  "Bruno didn’t know what to make of your reactions at the end of the tape," Nina said. "He wanted to hypnotize you again. Of course, that’s too dangerous now."

  "You are going to figure this out, Nina." She licked icing off her bandage. "I want a trial, and I want it soon, because I need to clean up. We can beat them. All those good old boys, the ones who put me in a low-cut tux and then drool on me, are setting me up again, judging me before they even know me."

  "They aren’t the ones we have to convince."

  "Oh, I disagree with you there. Did you see the headlines? ’Barmaid Held in Husband’s Murder’? Everyone assumes I’m this guilty, brazen tramp who should be punished. Everyone wants to believe I’m guilty because of what I am, what I’ve been. It’s so simple. Well, that’s not me, so they can kiss my fluffy ass. I’m innocent and I want you to prove it, in court, once and for all. Show ’em how wrong they are." Michelle yawned. "I could sleep for a year and wake up someplace else. It’s almost exciting."

  "You are one brave woman, Michelle Patterson." Nina took off her glasses and rubbed her eyes. "Okay, we’ll do the prelim and set it for trial."

  "You keep playing the cold deck, and eventually the dealer has to shuffle," Michelle said. "Even at Prize’s."

  Nina forced a small laugh, said, "All right, we go for the ace in the hole," and waved on the way out.

  On May 24, the day set for the preliminary hearing and for hearing of her set of motions to suppress the physical evidence, Nina arrived at court at 8:00 A.M. exactly. Michel
le went up to the counsel table with her and sat down. She wasn’t nervous. Nina had told her that the results were a foregone conclusion.

  Judge Flaherty’s bailiff called the court to order.

  Michelle watched Collier Hallowell, a few feet away from her at the other table, the man who was trying to send her to prison for the rest of her life. His hair was graying to match his eyes, but he had plenty of it, and he was tall, with a nice build. He smiled at her, as if to say, it’s nothing personal, just my job. Michelle didn’t think it would be easy to get past that smile to see the man underneath.

  First, the court heard Nina’s arguments that the police had no reason to search Rick Eich’s boat or Michelle’s house. In response, Collier Hallowell just said, "Submit it on the paperwork, Your Honor," like he knew he didn’t have to argue it, and he was right, the judge ruled that all the evidence could come in. Nina didn’t waste her energy. "Thank you, Your Honor," she said, sitting down. Courtroom manners could be pretty funny. The lawyer thanked the judge, even though the judge had just said "no way" to the lawyer, even though the lawyer might be steaming.

  The preliminary hearing in Michelle’s case passed without surprises and took less than the court day. Three police officers testified about finding Anthony’s body and what she had told them about hitting Anthony. There was no jury, and Nina presented no witnesses, though she did cross-examine the officers on each point of their testimony. Nina and Mr. Hallowell then made short statements, but Michelle understood in advance that the Court would bind her over for trial. Nina had explained to her that the prelim in Municipal Court was a kind of formality, like her arraignment, and that the judge would find there was probable cause to believe a crime had been committed and she had committed the crime. The judge looked bored as he assigned the case to the Superior Court for trial-setting.

  "How do you think it went?" Michelle asked Nina as they walked out.

  "Textbook," Nina said. "We learned almost nothing new. Collier Hallowell is very, very good. He put on the minimum case to cause you to be bound over for trial and gave me very little. His burden of proof at this stage is much lower than it will be later. He’s saving Bruno’s tape for trial. He didn’t have to use it in order to get you bound over."