Motion to Suppress

by Perri O'shaughnessy

  "Motion to Suppress Tape Recording and for Disclosure of Confidential Informant," the judge said. He scanned papers as he spoke, peering down through reading glasses perched on his nose. He had the classic build of male judges; huge, leonine head, heavy brow ridge, puny body under the robes. Having already disposed of six other matters, he spoke to an almost empty courtroom. "People versus Michelle Tengstedt Patterson. I will hear the Motion to Suppress first."

  "Nina Reilly, counsel for defendant. Good morning, Your Honor. We are relying on our declarations and we do not request an in camera evidentiary hearing. It is our understanding that the Court and both sides have heard the tape in question."

  "Yes. You may proceed," Milne said calmly.

  "As the Court can see from the declarations of Dr. Bruno Cervenka and myself, Dr. Cervenka was retained by me in a consulting capacity."

  Milne broke in almost immediately. "No privilege there, Ms. Reilly. The work-product privilege clearly doesn’t apply. The tape is evidence. Frankly, I see no basis for excluding the purported confession of your client. Your consultant ended up treating her. It’s obvious from the People’s Points and Authorities the session went beyond an examination. There’s no question the evidence sought to be excluded is relevant. It’s a confession. There’s no question, despite the legal arguments attached to your Motion to Suppress, that the evidence falls within a well-recognized exception to the attorney work-product privilege. Anything else?"

  "The psychotherapist-patient privilege also requires confidentiality. As stated in our brief—"

  "Make up your mind, Ms. Reilly. Was Dr. Cervenka acting in a consulting capacity, or was he acting as a therapist?"

  "For purposes of this particular argument he was a therapist," Nina said, not showing her anger. Judge Milne knew she had the right to argue in the alternative, to make arguments that were inconsistent.

  "So he’s a therapist now. What do you have to say about Mr. Hallowell’s well-taken point that there will be no such privilege if you put your client’s mental state in issue?"

  "We haven’t done that yet, Your Honor."

  "Well, are you going to?"

  Nina maintained her usual pleasant face. "As the Court knows, I am not required to reveal my entire trial strategy to Mr. Hallowell at this time."

  Milne apparently decided not to bait her anymore.

  "All right. Let’s talk about the attorney-client privilege argument. You seem to be saying that Dr. Cervenka was merely a kind of translator for you. He elicited for you the language of the heart, so to speak, that the defendant could speak only while hypnotized."

  "That’s right. My client wasn’t consciously aware at the time. I wasn’t competent to access her buried memories. I turned to a psychiatrist. But the information was intended as a communication to me, for purposes of preparing the criminal defense."

  "Mr. Hallowell?" Milne said, finally giving her a moment to breathe.

  "It’s simple," Collier said. He had been listening attentively. "You can make all the convoluted arguments you want, Judge, but that tape is evidence. The prosecution can’t be foreclosed from using it if counsel for the defense tries to explain why the defendant struck her husband and claims not to remember what happened next. We all agree Dr. Cervenka was trying to help the defendant remember some things. He wasn’t a translator, he was a therapist helping a patient. It wasn’t a communication, it was a therapy session."

  Nina said evenly, "I hired Dr. Cervenka. I set up the meeting. I drove the defendant to the meeting. Attorney-client privilege, Your Honor."

  "Converted into a therapeutic session, Judge," Collier said.

  "We’re starting to repeat ourselves," Judge Milne said, turning his head to the calendar tacked to the wall. "I’ll take it under submission. I’ll try to let you know within ten days. I see we need to set a trial date. Shall we take care of that today? September twenty-fourth? Ms. Reilly?"

  "Fine, Your Honor."

  "Mr. Hallowell?"

  "Okay by me."

  "Anything else?"

  "The defense requests that the Court order the district attorney’s office to reveal the source of its information leading to seizure of the tape."

  Hallowell said, "Excuse me, Your Honor."

  "Go ahead."

  "The district attorney’s office has promised to keep the name of the person providing this information confidential. That person’s identity is of no relevance to the question of whether the confession should come in."

  "We need to know who is so interested in getting the defendant convicted, Your Honor. The defense contends the confession under hypnosis is completely unreliable as evidence. The plea is not guilty. That information might lead to important admissible evidence," Nina said.

  "I’m afraid the word might is the operative word in your argument, Counselor. Conjecture and speculation of this sort is not sufficient to persuade me that I must compel the deputy district attorney to disclose his source. The motion that the prosecution divulge its source of information is denied. Anything further?"

  "Nothing further, Your Honor. Thank you, Your Honor," Nina said. Up yours, Your Honor, she added to herself.

  The clerks gathered up their papers and the lawyers filed out. Nina hoped Collier was just as puzzled as she was as to how the judge would rule on her Motion to Suppress.

  Jack called that night, late.

  At first, they discussed the case, a neutral enough topic, Nina thought, wrongly. When it became clear that he had far too much advice and criticism for her to accept, she clammed up. He invited Bobby for a week, and she readily assented. And finally, when he couldn’t stand it any longer, he asked her when she would be returning the divorce papers.

  "We’re not going to talk about it, are we, Jack? I don’t know if I can stand to have it end this way. You won’t even let me apologize."

  "Don’t apologize, Nina."

  "There isn’t any hope for us, is there? I can’t believe I make one mistake, even a big wow of a mistake, and that’s the end of Nina and Jack." She was as unsure of her feelings as ever, but the thought that Jack wasn’t calling in the hopes of mending fences made her frantic.

  "It isn’t that simple. It isn’t all your fault."

  His words hung there. In the silence that followed, she allowed her mind to drift back to that wet March, all the fights about his long hours, and her terrible loneliness of spirit.

  "It’s not all my fault." She said it the way he had said it, in a bald statement. She needed to buy herself some time to react to words that held such unpleasant promise. "Are you planning to expand on that?" she asked when his silence became painful, and her initial shock at his meaning had finished its assault on her.

  "I admit I haven’t been a very good husband. I loved you, Nina. You should know that." He laughed nervously. "I can’t think of anything to say that doesn’t have a hackneyed ring to it."

  However he said it, she knew she didn’t want to hear what was coming. "You want me to make it easy on you, don’t you, Jack? Maybe that’s my biggest fault. I made it easy. Now are you going to tell me who she is, or just keep me in suspense?"

  "Are you sure you want to hear this?"

  She thought. She assumed the name would be familiar, some mutual acquaintance. Better to face the whole story now, instead of constructing a fantasy that might be more bitter than the truth.

  "First I want to know, how long? How long before you left?" she said.

  "About a year. I hated lying to you, Nina. I still wanted to be with you. I couldn’t make a decision."

  She drew a deep breath. Would it be Francie, her friend, whom she had trusted? Or someone else she had eaten lunch with, gone to the movies with, some friend? "Yeah, I want to know, Jack."

  "Evanelle Cherry."

  Ms. Cherry! She started laughing, quickly revising her picture of Jack’s lawyer. "Let me guess. Age around twenty-nine. The totally successful woman. Victoria’s Secret lingerie. An uncle at city hall. How practical of you to p
ick another divorce lawyer."

  "Come on, Nina, we’re all pros. You don’t have any problem with the settlement, do you? Please don’t hold it up. Eva and I want to get married. Soon. Why are you laughing?"

  "I keep thinking you’re one of my clients, or I’m talking to opposing counsel just before the hearing, and Ms. Cherry is a fellow woman lawyer, my husband’s mistress, and definitely opposing counsel. You talk to me like your colleague, not your wife. This is all bathos, not pathos. Lawyers in love. What a contradiction in terms."

  "It was hard, seeing you like that with someone else," Jack said.

  "What? Did I hear something real just then, rising out of the dump of BS that constitutes Jack McIntyre?"

  "You’re hurt, Nina," Jack said, "but don’t get like that. It doesn’t get us anywhere. I don’t want an argument."

  "I don’t care what you want," Nina said. "Bobby wants to see you, so he can go see you. As for the settlement agreement, I’ll have my counsel review it and get back to you some month."

  "I’ll take you to court if you try delaying tactics," Jack said.

  "You’d better consult with your lawyer first," Nina said. "You could try a Motion to Bifurcate Marital Status from Property Issues. San Francisco County’s running about four months behind for setting those hearings. See you in October."

  "I never thought of you as vindictive, Nina," Jack said. "What’s the point? It’s all over now."

  "You let me wallow in guilt all these months, Jack. Your turn to cry." She hung up slowly.

  Finally she knew what she’d seen in him that day at the condo when he found her with the plumber, had seen but had not understood. It was relief she had seen on his face, relief at having an easy out. He was that shambler Mr. Hyde, faking Dr. Jekyll, all along.

  So in their last conversation as husband and wife, she had lied. She had signed the agreement and put it in the mail yesterday.

  Wasn’t it Nietzsche who said no one was such a liar as the indignant woman? Let him sweat tonight. She only wished it was for longer.

  19

  JULY CAME, BRINGING with it a plague of tourists. Judge Milne had left for a holiday in Barbados with his wife, his mother, his two grown children, and their families. His clerk was sure that as soon as he came back he would get right to his decision on the motion.

  Michelle called regularly from Fresno. She was working in her father’s car dealership. The district attorney’s office had made no move to revoke bail. Nina believed it must be because Collier was fully aware that a first-degree murder conviction was unlikely.

  Nina had turned to her Theory Two, the idea that someone else had killed Anthony. Paul had been looking for motives and methods. He had sent workups on Frederick and Ericka Greenspan, Tom and Janine Clarke, Al and Sharon Otis, Peter La Russa, Stephen Rossmoor, and the Tengstedts: alibis for the evening of April 26 and early morning of the 27th, swimming abilities, Harley-Davidson affiliations, familiarity with boats, past brushes with authority, tax problems, family complexities.

  The material was fascinating, though mostly old or irrelevant. Janine Clarke had tried out for the Olympics in the 200-meter butterfly ten years before. Sharon Otis belonged to a Reno Harley Club, was a known drug dealer, and had done time in the Nevada state prison system. Tom Clarke had lied on his resume; he had been fired from his previous position as assistant principal of an elementary school in southern California. Steve Rossmoor owned both a catamaran and a water-ski boat, and his father owned a number of brownstones on Riverside Drive in New York City. The IRS had recorded a lien against Peter La Russa’s home, and his wife was about to leave him.

  Information on the Tengstedts remained scanty. Sandy had written again to her Aunt Alice at Subic.

  No one had a perfect alibi.

  Paul’s report on Anthony Patterson was the most surprising. Originally from Philadelphia, Anthony had been born illegitimate to an Italian girl who later married a butcher. She never told him the name of his real father. His mother and stepfather were dead, killed in a car accident when he was sixteen. His half sister had been paralyzed from the waist down in the same accident. Anthony had sent her money every month. Nina supposed the wreath at his funeral must have come from her.

  He had drifted around after high school, eventually hitchhiking to California and a job parking cars at a Fresno garage. He lived with an aunt in Fresno, as Michelle had mentioned. At the age of twenty he applied to the police academy. By all accounts he had been a model police officer for two years. Paul had an old friend from the SFPD who had transferred to Fresno. He checked around on Carl Tengstedt’s statement that while in Fresno, Anthony had been involved in strong-arming and extortion.

  According to Paul’s friend, Anthony had once been an honest cop. He had been cleared of serious charges made against him by a local appliance-store owner with a grudge. But after that he had known there would be no more promotions. He had gotten lazy and began taking shortcuts and got caught and reprimanded several times. After a final, larger-scale event a few years back, he had quit under duress, moving on to Tahoe and Prize’s, taking Michelle with him.

  Had he become bitter? Cynical? Had he felt like a failure? He hadn’t confided much in Michelle. Had he talked to his ex-wife, Sharon Otis? Nina decided to set up a time to see Sharon when she couldn’t slip away and let Al handle the questions. The silver Harley pin was Sharon’s. Maybe those had been her footsteps in the snow.

  Just after the Fourth of July holiday, Nina put Bobby on Amtrak at the rail station in Truckee, on the north side of the lake.

  "Can I call you anytime I want, Mom?" he asked as they unloaded his backpack and luggage.

  "Of course you can, honey pie."

  "Are you mad that I want to go back to San Francisco and see my friends?"

  She knew what he wanted to know. Was she mad that he wanted to see Jack? "Of course not. Now that summer’s here, you can get Jack to take you to the Exploratorium and the park. I want you to have a great time and write me some letters too."

  "It feels funny to be going back."

  She didn’t know what that felt like. She could not go back.

  He was so thrilled to be going to San Francisco and so agonized about leaving her behind, he burst into tears just as the train pulled out of the station, so her last sight of him was a tear-stained face pressed forlornly to the Amtrak window. She was glad to see him whisked away before her own eyes blurred.

  A hot mountain sun beat down. A crafts fair was in progress in the Old West part of downtown, the storefronts decked with flags, vacationers thronging the sidewalks. Nina strolled around, wishing she hadn’t allowed the trip, already feeling lost without him. Bobby was her bedrock, her purpose. Why had she let him go?

  Bobby had wanted to see Jack. She loved her son, so she had let him. What bothered her was the feeling that when he came back he would be that much older, that much more experienced. He was not such a little boy anymore. He was ready to cross a line, a line she wished she could keep him from crossing.

  Someone was watching her from across the street. A chill went up her spine. She stopped dead and looked directly back at him.

  He was wearing Bermuda shorts and a baseball cap. When he saw her looking back, he doffed his cap and smiled, and started across the street toward her. Now she could see through the sea of traffic that his shoulders were peeling and he was carrying a shopping bag.

  It was a pickup, not a murder attempt. Relax, Nina! she said to herself angrily, ducking into a nearby clothes shop to escape her harmless admirer.

  Stephen Rossmoor came to the office the following week. Paul had described him, but Nina wasn’t prepared for the deep tan, the white teeth, or his youth. He was supposed to be about thirty-four but the male-model looks were deceiving. He seemed abstracted, and neglected to turn on the charm Paul had encountered. He refused her offer of a chair and Sandy’s offer of a soft drink, and stood there in front of her desk, so her eyes were even with the gold belt buckle she suspected was r
eal.

  "I need your help," he said without preliminaries. "I’m worried about Michelle."

  "You understand I can’t talk about her case with you?" Nina said.

  "Whatever the rules are. We have to talk."

  The lawyer waited.

  "I’ve been seeing her down in Fresno. I’ve asked her to take a DNA test so I can find out if I’m the father. She won’t do it."

  So Michelle was seeing Rossmoor again? She shouldn’t. She had told him about the trip to San Francisco. What if he was the driver of the car at Twin Bridges? Nina would call Michelle as soon as Rossmoor left.

  Ask him. Watch his reactions.

  "She shouldn’t be seeing you. Only two people knew Michelle and I were going to San Francisco last month. Someone ran us off the road. You were one of the people who knew."

  He looked shocked, then hurt as the meaning of what she had said sank in. "You think I ... But why?"

  "Patterson knew too much about club operations. You couldn’t just fire him for the scam with Al Otis. You had to get rid of him another way. And Michelle was a scapegoat, but now she’s fighting the charges, and you’re afraid we will learn too much about you and the club."

  "Paranoid fantasy," Rossmoor said. He was angry. He looked ready to walk out.

  "You were making love to her. You came to the house in the Keys. You saw Patterson get off the couch and you figured he was going to hurt her. You came in while she was in the kitchen and—"

  "That’s a little more plausible, but still untrue," Rossmoor said. "It’s much more likely Michelle killed him and is blotting it out. And I don’t care if she did."

  "If you want some help from me, convince me that I’m wrong," Nina said.

  "I’m in love with her!" Rossmoor burst out. "Please, don’t poison her against me. I understand you can’t trust anyone, but don’t destroy what is happening between her and me." Now he did sit down, as though his legs had decided not to hold him up any longer.

  "You want a DNA test. What happens if she agrees and the baby isn’t yours?"