Motion to Suppress

by Perri O'shaughnessy

  "What happens now?"

  "Well, we are now going to be kicked upstairs to the Superior Court’s Judge Milne. The evidentiary hearing is set for June tenth on our motion to suppress the tape. If lose, I’m going to file a special appeal called a Writ of Mandate before the trial. A trial date will be set next week. You won’t have to come back to court for that. Judge Milne is very efficient, and there isn’t much of a backlog of cases. The trial will probably get on the calendar for late September."

  September was a long way away. Four months. By then she would be very pregnant, if—

  Nina interrupted her thoughts. "Let’s join the Reillys for an early supper at Sato’s, Michelle."

  Before driving to the Japanese restaurant, they walked out on the pier nearby and sat dangling their legs, ladylike shoes tossed aside. Down twenty feet through the transparent water they could see somebody’s dilapidated "pump" athletic shoe and bottles shimmering brightly as a school of fish. Back at the beach a large family celebrated around a barbeque grill near one of the few picnic tables. The odor of mesquite chicken wafted their way, making Michelle hungry.

  "Nina, I need to tell you something private."

  Nina looked at her, brows arched behind the big sunglasses. She looked out of place in her white blouse and tight black skirt, though she had taken off her hot jacket. She noticed Michelle looking and said, "I feel like ripping the pantyhose off too. Ah, why not!" She lay down and hiked up her skirt, then swiftly rolled down the stockings and stuffed them in her jacket pocket. "Much better," she said. "What were you saying?" She straightened her legs out over the water and started rotating her ankles. Her toenails were painted pink.

  That was Nina. So prim and proper and unemotional on the surface, with something wild and colorful struggling to burst out underneath.

  "I’m pregnant," Michelle said.

  "Whew, the sun’s really beating down for so early in the summer. I thought you said—"

  "I’m pregnant."

  "Holy Christ."

  "Three months along. I only found out for sure at the clinic a few weeks ago."

  Nina kicked up some water. "Who’s the father?" she asked.

  "I don’t know. Three months back means it could have been any of three guys. At least I know who they are. There’ve been other times ..."

  "Okay, okay," Nina interrupted. "Three men."

  "Anthony’s the most likely, you know, because of frequency. And next Tom. We were pretty heavy. And Steve Rossmoor."

  "Didn’t you use a condom?"

  "Usually, with guys besides Anthony. Plus I had a Pill prescription, but I forgot to take ’em for a few days that month. Never was a problem before."

  Nina touched her on the shoulder. "How do you feel about it?"

  "The way things are going, I’ll probably be in prison when I deliver. The baby will go into foster care. If I even keep it. It’s not the best time to have a baby."

  "That’s an understatement," Nina said. "How long do you have to decide?"

  "Not long. The sooner the better."

  "If Clarke is the father, or Rossmoor ..." Nina said.

  "Tom already has three, and Steve is single."

  "Still," Nina said, "maybe something could be worked out."

  "I have to make the decision about an abortion all by myself. So for now, I’ve decided to go to AA meetings and keep the baby as healthy as I can while I make up my mind."

  "I’m sure your baby would be beautiful, knowing its mother," Nina said.

  "God, I worry about that. I mean, I got totally loaded those first two days right after I got out of jail. And what kind of life or family do I have to offer? I never even held a baby before."

  "What about your parents?"

  "No. What with my mom’s arthritis—and they’re getting old. They had enough trouble raising me. It wouldn’t be fair. "

  "About the father," Nina said. "You could take a DNA test if the other two men will cooperate. We could even maybe get a sample of Anthony’s blood from the police. Or we could file a paternity suit and force Rossmoor and Clarke to cooperate."

  "Just what I need," Michelle said, "more court." She thought about Steve Rossmoor finding out he was the father. She knew almost nothing about him, except that Nina said he was rich and she knew he had a big-deal job. Or Tom. Tom and Janine. Janine would never take the baby. She said, "I dug me a hole and now I’m buried. I don’t know what to do next."

  "Look for the ace," Nina said. "And have a good dinner. Strange ..."

  "What?"

  "With most of my clients, most of what happens in their lives is really irrelevant to my making a case. But with you, everything, even your pregnancy, seems linked to your case in my mind."

  They put their shoes on and walked back to the highway. "When I first met you? You told me once that you have a son," Michelle said.

  "I do. A great kid."

  "You’re a single mom now?"

  "I guess I am. His stepfather still wants to see him. I’m going to try to work that out. Bobby misses Jack."

  "What about you?"

  "What do you mean?"

  "Jack. Your husband. Do you miss him? Do you ever want him back?"

  "Yeah, I do."

  "Don’t you wish sometimes you could go back to a certain day and start all over? Not, like, your whole life, but to a day you blew totally? Get a chance, maybe, to do something different? Turn everything around?"

  "Sure, everybody has that fantasy sometimes."

  "I’d like to go back to that Thursday, at work. Sometimes I think if I hadn’t been in such a rotten mood that night ... see, there was this guy pestering me all night, and I couldn’t stop thinking about how bad I felt that Anthony controlled all the money and I couldn’t even take a dime to save my life, because that’s what Dr. Greenspan was doing. He was saving my life. I’d go back to that night and I’d change it. I’d do different things, you know?"

  "You think if we could go back, we would change the way we behaved?"

  "I do."

  "I don’t."

  Once at Sato’s, sitting at the long table with Nina and Andrea and her family, while Matt made fifteen pieces of California maki disappear and the kids poured gallons of soy sauce on their rice, Michelle’s hunger disappeared. Just the smell of sauce on fish was making her remember without pleasure her last trip on the Tilt -A -Whirl at the Modoc County Fair with Anthony. Nina offered to drive her back right away, but she said, "I’ll just go breathe outside for five minutes.’’

  "Keep your eyes open," Nina said, so she stood in the alleyway beside the restaurant, where she wasn’t visible from the sidewalk.

  A couple, man and woman, walked past her toward the Sato’s entrance. The man, a suede jacket draped over one arm and the woman hanging on the other, was Tom. Janine walked on ahead without seeing her, but Tom had eyes like a cat and must have made some excuse, because in about a minute he was back there in the alleyway with her.

  "Skulking in the dark," Tom said, not in a funny way. He leaned against the building with his arms crossed. "Where’ve you been? You dropped out of sight."

  "And out of your mind. You could have called Nina."

  "Misty, listen. Janine found out about us, and I’ve been making up for it ever since. If my wife sees you—"

  "What about me, Tom? I’ve been so lonely."

  "You know better than to look to me for emotional support. You came on so heavy, I couldn’t resist. But no more. This mess, you killing Anthony—"

  "I feel like killing you, right now."

  Tom actually stepped back and looked at her hands. Was he afraid of her? "Don’t joke about it," he said uneasily.

  "Don’t worry, your wife will probably kill me first," Michelle said. "Did she tell you she socked me the other night?"

  "She told me. And told me and told me. It’s been hell, what I’ve been going through."

  "What about what I’ve been going through?"

  "Try to understand, Misty. I have so much
to lose, and you—"

  "Just a stupid girl in spike heels. So who cares if I go to jail? Not you. Big relief for you, huh, Tom?"

  "I don’t expect you to understand. Just leave me alone in the future, okay, Misty? I have to go."

  He turned toward the restaurant, his body stiff, his mouth a line in concrete.

  "Just one more little thing, Tom."

  "I really have to go." He paused, with his back still to her. She felt like throwing a rock at him. Make him turn around and face her.

  "I’m pregnant."

  She watched the shoulders hunch. He didn’t move. With a kind of sad joy at her command of him and feeling overcome by a maniacal energy, she danced like a monkey around to the front of him, yelling, "Your baby! Remember that night you told me you loved babies, Tom? Remember that night? The one when you said you really, really, really loved me so much, more than anything or anybody? And I wouldn’t believe you, so you tried to convince me?" He put his hands over his ears and strode away. "You weren’t good enough. I never believed you! Never!"

  She stopped and shook herself, trying to shake out the tears she felt inside. Then she slid down the wall and sat on the damp asphalt until Nina and the rest of them came out.

  Delores moved into the shelter with her two kids on Friday. "The old man didn’t want me back, and he was sick of taking care of the children," she told Michelle from the old sofa in the living room. "He let me know I wasn’t welcome the day I got out of jail. With his fist. But this time I fixed him. I turned Philo’s ass in to County Family Support. He makes good money trucking. The county’s going to collect a thousand bucks a month for me. With that and a motel cleaning job we’ll be just fine. First check they forward, we’ll find us a little apartment and I’ll pick up some fried chicken and ribs and we’ll all have a big party."

  It was good to see her. Del had three old suitcases and new hair, long skinny braids that she called "dreads." She and Michelle did the cooking that night and they went to bed late. Del put on what looked like a cotton shower cap, tucking her braids carefully inside. She lay down in her bunk and almost instantly Michelle heard her breath deepen.

  "Del?"

  "Mañana, girl."

  "I’m going to have a baby." That got her up on her elbow.

  "Well, well, well. I should have known when we were bunkmates, the way you slept and complained about the food all the time. The spaghetti wasn’t that bad."

  "I don’t think I can keep it."

  Del said, "Oh," then, "Well, what happened to that guy you were seeing? The school one?"

  "I saw him yesterday. He’s through with me. How can you blame him? He loves the family he already has."

  "He just couldn’t resist getting a little on the side. God save us from husbands."

  "Have you ever had an abortion, Del?"

  "Yeah," Del said. "Two."

  "How come?"

  "First one, I must have been about fourteen or fifteen years old. My mother never knew. My boyfriend took me to a clinic in Tijuana and it was all over in ten minutes. All over," she repeated thoughtfully. "Second one seems like yesterday. Rennie was three then and Sharille was only nine months. I was in my forties, workin’ graveyard as a janitor in a downtown office building. How was I going to take care of another baby? I went to another clinic."

  "Did it hurt?"

  "Not if you don’t mind a vacuum cleaner hose up your bazunga," Del said.

  "Did you ever wish you hadn’t?"

  "Not for a long time. Then one day I said to myself, the oldest would be twenty-one today. Now, isn’t that funny? That I had a birthday in mind? Same for the youngest. She’s got a birthday, too, even if she never got born. Now when I think about it, I feel bad. I was meant to have four."

  "You did what you had to do," Michelle said.

  "I had my choices, the hard way and the easy way. I didn’t realize something then that I know now."

  "What?"

  "When it all comes down, the years pass, you realize you’re never gonna be rich and famous, enough men come and go, it comes to you—the children were the only thing that really mattered," Del said. "Listen to me, I sound like one of those guys with Deep South accents bangin’ the Bible on the Christer station. Now, can I go to sleep?"

  "Thanks," Michelle said.

  "De nada. Say, Misty-Michelle. You still a boozer?"

  "I quit. Because of the baby. I’m going to AA and I’ve been sober for sixteen days now."

  "I told you you’re a smart girl," Del said, her voice muffled in the pillow as she rolled over for good.

  "Del."

  "What?"

  "You still a K mart shopper?"

  Saturday morning dawned early and hot. Michelle put on her old Nikes and new big T -shirt and walked down to the beach. The north shore had mostly black-pebble beaches; she liked the coarse, warm, yellow sand of the south shore better. She stood knee-high in the cool wavelets, looking out at the immense blueness of Lake Tahoe, thinking about Anthony.

  Maybe someone would come and kill her right now. She wasn’t supposed to sneak out alone. She scanned the beach, but except for a flock of gulls squawking their way toward Emerald Bay the beach was empty.

  Bending down, cupping her hands, she splashed her face. It seemed to her that, though the doctor had told her it was too early, the baby fluttered inside her.

  She had quit arguing with herself. She didn’t deserve this baby; probably it would be taken away; but she already loved it. She would keep it. She was one with this child the way she should have been with Anthony.

  18

  AFTER A BAD night, Nina slept late and arrived at her office around nine-thirty.

  Her recently improved nights had been blasted to hell on May eleventh, several weeks before, when Collier brought his ill tidings and Bruno called to tell her law enforcement was tossing his office. "I would have destroyed the tape if I had had any idea," he had told her in a low tone from his outer office at UCSF.

  "Let’s not compound the error, Bruno Just do what they say and fax me whatever they served on you." She had sat at her desk, her brain clicking without progress, like stripped gears. No work-product privilege? How could it be? The affidavit for the warrant cited several cases. She had walked dully over to her California Reporters and started pulling out volumes, ignoring the pain in her arm. Her anxiety blinded her; the words in the cases swam before her eyes. This was it, the ruin that had been waiting for her.

  How had she missed this? Looking back, she had simply assumed she knew the law. She had been sure she could deep-six Bruno and the hypnosis if she didn’t like the result. She had never dreamed Collier would find out and pounce so immediately and effectively.

  She had spent Saturday at the law library, looking up more cases. She had to file her Motion to Suppress for the June 10 hearing as soon as possible. She needed to reshape the case holdings Collier had cited, to draw distinctions, to find a critical dissent, anything she could use in her motion to suppress Michelle’s statement under hypnosis.

  Summary of Legal Arguments, she wrote now on her yellow pad. The phone was ringing in the outer office. Sandy fielded it. There are at least five legal grounds for a finding that the seized material may not be considered at trial. She sorted her research into five piles on the desk.

  First. The psychotherapist-patient privilege, codified in Evidence Code Section 1014, allows the defendant to refuse to disclose a confidential communication between a patient and her psychotherapist. This privilege supersedes the public policy and due process arguments advanced by the prosecution in its declarations supporting issuance of the warrant at issue herein. Menendez v. Superior Court, 3 Cal. 4th 435.

  Sounded good. But this privilege was a trap. It had an exception, called the patient-litigant exception. Nina read the Menendez case again; two brothers from Beverly Hills, accused of killing their parents, had gone to a therapist and confessed on tape. The Menendez defense lawyers had raised some of the same arguments Nina would raise, but
in the end the tape had been allowed in, because the boys’ defense required some testimony about their emotional and mental states before and during the killings.

  Unfortunately, Nina had the same problem. Michelle had told the police she couldn’t remember what happened after she hit Anthony the first time. The jury would never believe that, unless Dr. Greenspan, Bruno, and perhaps Michelle herself testified about her previous amnesia.

  Let Collier point out the exception to Judge Milne. She would deal with it after she saw his papers.

  Second. Attorney work-product is confidential. The tape was a product of defendant’s attorney’s trial preparation.

  Nina reread her research. Work-product included an attorney’s impressions and conclusions and other material that was derivative or interpretative, like reports from consultants. But there was a case, cited in the leading case, Fellows v. Superior Court, 108 Cal. App. 3d 55, in which a private investigator’s report of a witness interview had been kept out, while the tape of the actual interview with the witness came in. Not good. The tape itself, according to the Fellows case, was evidence, not work-product.

  She would probably lose on the work-product argument.

  She hadn’t known about the Fellows case. She hadn’t done her homework before the fact, and there was no brilliant argument about attorney work-product to be conjured up after the fact.

  There it was again, the sickening tide of anxiety rising from her stomach. She was disgusted with herself. She had made the decision to hypnotize Michelle without even cracking a law book.

  She took a deep breath, pushed the feeling aside. She wasn’t finished yet.

  Third. The attorney-client privilege is applicable to any information that the client gives to a psychiatrist retained to assist the defense. People v. Lines, 13 Cal. 3d 500. In the instant case, the communication could be made only through a psychiatrist, as the information sought was not available in the client’s conscious mind.