Motion to Suppress

by Perri O'shaughnessy

  Nina swallowed. Another flash cut through the clouds of rain.

  "Or maybe you are right, you and your client are being pursued. Assume the worst, Nina. Take precautions."

  Nina reached in her purse and took out the tape she had made during her conversation with Sharon Otis. "I’m going to go ahead and give you this, Collier. Listen to it. I want to persuade you to look at this case another way, to consider for a minute that Michelle is telling the truth."

  "The investigation is open until trial. I’m always happy to learn additional facts that help us get closer to the truth. No offense, Nina, but you seem to be in a tough situation with your client confessing and yet not willing to take the only fair offer I can make...."

  "You know this isn’t a first-degree murder case. Even if she’s lying, there was no premeditation."

  "Premeditation can occur in a very short period of time. She had time to take him out on a boat. She struck him a second time when he was probably helpless. She threw him overboard. She cleaned up the mess afterward, at home and on the boat."

  "You know this is a voluntary manslaughter case. You know if she killed him, he drove her to it. But I don’t think she did it."

  "I’m sorry, Nina. We have the three factors listed in People v. Anderson that add up to premeditation." He listed them on his fingers. "One: Evidence of planning activity just prior to the homicide. Two: Motive to kill based on the prior relationship. Three: Manner of killing, from which it can be inferred that there was a preconceived design."

  He fleshed out the threat of life in prison for Michelle Patterson.

  "Think about the offer of a plea to second-degree murder, Nina."

  "Not with somebody out there trying to end the case another way, Collier. And Judge Milne hasn’t ruled on my motion to suppress the tape."

  "He got back yesterday."

  "And?"

  The expression on his face said everything. She ran for the clerk’s office and read through the single sheet of pink paper with fury.

  Collier had won. If she put Michelle’s mental state at issue in the trial, the confession would be allowed.

  "We call that thing propped over by the door there an umbrella," said Sandy when Nina dripped into the office. "You might want to take it next time they tell us there’s a one hundred percent chance of rain." Nina hung her jacket on the bentwood rack and sipped from hot coffee Sandy handed her. "Jeffrey Riesner is in the library. Chose not to wait in here."

  Riesner stood up when she entered the room, but he didn’t extend his hand. "I have coffee," he indicated. "And," he said, nodding his head toward the door behind which Sandy sat, "I wouldn’t dare ask her, if I didn’t. You can spare a couple of minutes before you go home, I take it?" No one waited in the waiting room, they both knew.

  "A couple of minutes."

  "You know that the Tengstedts consulted me about your case?" he said.

  "Yes."

  "Maybe you don’t know that after I talked with Michelle, I was ready to file a complaint against you with the bar association. "

  "No. I didn’t know that."

  "The way you’ve handled this case ... well, I probably don’t need to go into the fact that mistakes have been made. The kind of mistakes you might expect of a rank beginner."

  She waited, standing, arms folded.

  "No. A beginner would have taken the original plea. That makes everything you’ve done even harder to buy. After I finished thinking about the hellish mistakes you’ve made, it occurred to me that it might help if I—"

  "I don’t need your help, Mr. Riesner."

  "Wait a minute. Let me finish. Michelle is so ... young. I would like some assurance that you’re planning to proceed with more prudence than you’ve used so far."

  "You are not working for the Tengstedts now, are you?"

  He shook his head.

  "You may disagree with the risks I’ve taken. My client doesn’t." Since she didn’t drop me for you, Nina didn’t say.

  His face reddened slightly.

  "I’m confident I can defend my handling of the case, if necessary. When we go to trial—"

  "Don’t go to trial. I don’t want to see you ... your client crucified."

  "Plead her out."

  "Exactly."

  "Look, nobody’s willing to make any deals that are remotely favorable to my client at this time. Unless you have heard something different?" He said nothing. "You like to win, don’t you?"

  "Of course."

  "So do I. I don’t plan to lose."

  "You don’t plan," he amended. "You compel me to give you some information that I hoped would be unnecessary. My firm represents Dr. Frederick Greenspan. We have handled his legal work for some time. He is concerned that, in your flailing about for some distraction from your client’s guilt, you will attempt to harm his reputation in the community."

  "What does he think I’m going to do, accuse him of the crime?"

  "Even you would hardly go that far. However, I think you would go so far as to suggest that he was somehow professionally negligent in his treatment, such that your client became unhinged. Even if that is not your idea, he is not going to become involved in some flimflam defense. If you subpoena him, one might assume his testimony will not be favorable."

  "One might wonder what he is trying to cover up," Nina said.

  "Dr. Greenspan has helped many people in the community over many years. He has a sterling reputation, unlike you. He won’t be slandered by some fly-by-night. Before I came here, I asked around town about you. Since nobody knew much, I called San Francisco. Not Jack McIntyre. My friends in the City."

  "You have friends?"

  "You’ve never handled a felony trial on your own until this one. You’re an appellate attorney. That something I haven’t given the press, yet. So before you gratuitously attack my client, do me the courtesy of thinking very carefully about alternatives that might serve you better at trial."

  "I’ll certainly remember what you’ve said. And now I’m sure you have better things to do," Nina said. "I know I do."

  "Nice to see you working hard for a change, Sandy," Riesner said as he left the reception area. He didn’t see the jutting finger with which she bade him adieu.

  When he was gone, Nina flopped down into her office chair. Sandy came in and settled herself across the desk.

  "A prick," she said. "Told you."

  "We lost the motion, Sandy," Nina said.

  "Too bad."

  "We have to file a writ of mandate in the Court of Appeals in Sacramento, right away."

  "Can we go home and get some dinner first?"

  "We’ll start on it tomorrow," Nina said.

  When the dark came, the Reillys splashed through the streets to Pizza Hut.

  Contrary to her intention, Nina unloaded her day. Matt and Andrea listened in dismal silence. Sharon Otis’s death had frightened them. Matt had spent the day installing better locks at the house. Brianna and Troy, adopting their mood, occupied their parents in disputes over crayons, napkins, and each other’s ugly face.

  Just as the waiter set their hot pizzas on the table, the lights of the restaurant went out.

  "It was a dark and stormy night," Matt said. They waited for light, drumming on the table. "Remember what Dad used to sing when he wanted to cheer us up, Nina? About Brian O’Linn?"

  "You mean when he had a snort too many," Nina said, but was drowned out by the kids shouting, "Sing! Sing!" The waiter lit candles in red glass holders covered with netting and went back to the kitchen, where the cook could faintly be heard banging pots and pans and cursing in Spanish.

  Matt sang:

  "Brian O’Linn was a gentleman born,

  His hair it was long and his beard unshorn,

  His teeth were out and his eyes far in—

  ’I’m a wonderful beauty,’ says Brian O’Linn!

  "Aye, and he always made the best of things," Matt said in his best brogue.

  Nina sang:

  "Br
ian O’Linn had no watch for to wear,

  He bought a fine turnip and scooped it out fair,

  He slipped a live cricket right under the skin—

  ’They’ll think it is ticking,’ says Brian O’Linn!"

  Troy and Brianna giggled and threw pepperoni slices. Andrea smiled into her glass of burgundy. Matt and Nina went on together:

  "Brian O’Linn was hard up for a coat,

  He borrowed the skin of a neighboring goat,

  He buckled the horns right under his chin,

  ’They’ll answer for pistols,’ says Brian O’Linn!

  "Brian O’Linn and his wife and wife’s mother,

  They all crossed over the bridge together,

  The bridge broke down and they all tumbled in—

  ’We’ll go home by water,’ says Brian O’Linn!"

  Their fellow patrons clapped; the lights blazed; Matt and Nina bowed.

  The doorway greeted them with a torrent.

  "Tonight it’s ’by water,’ " said Nina Reilly.

  21

  AUGUST, THE HEIGHT of summer, passed, bringing still, hot air and swimming in the lake. Even more people poured in from all over the world, heading for the yellow beaches to bake under the high-altitude vault of blue sky. In the crowded grocery store Nina heard as much French and Japanese as English. The casinos hummed day and night.

  Hikers jammed the trails, sending the prudent coyotes, jackrabbits, and mountain lions up toward the windswept granite pinnacles, up higher to where the pika played outside their rocky dens. Close to the ground, yellow cinquefoil, yarrow and wild onion, and red Indian paintbrush blew in the warm winds. Aspen leaves fluttered among the lodgepoles and red fir.

  Nina worked. As the weeks passed without a recurrence of violence, she had stopped looking over her shoulder all the time, though she and Matt and Andrea stayed on guard. She had begun seeing a tall, very big, dark young man now and then as she went in and out of the office. "That’s my son, Willis," Sandy said when she mentioned it. "We call him Wish. He’s watching."

  "It’s nice of him, Sandy. It’s nice of you."

  Sandy ducked her head behind her computer. In a gruff voice she said, "Jobs are hard to find," but Nina was getting to know her now. She knew what Sandy meant.

  Now and then at night, looking out her bedroom window, Nina would see a patrol car glide by noiselessly. Collier was being true to his promise.

  She filed her writ of mandate in the Third District Court of Appeals in Sacramento in mid-August. She knew the arguments could go either way. If the judges agreed Bruno’s hypnosis had been converted to a therapeutic session, Judge Milne’s decision would stand. She began a period of worry and waiting.

  Riesner wouldn’t be sitting at his desk biting the skin where his fingernails used to be. He’d take Collier to lunch, badger him, complain a lot, and then tell his client it was too risky to go to trial, and Michelle would be whisked off to Santa Rita on a second-degree murder conviction quicker than you could say "Cocktails?"

  In the first week of September, on a hot Tuesday morning, Nina called Michelle in Fresno. Michelle talked about how the baby kicked sometimes. She couldn’t sit at a desk filling out forms for her dad with her "whale belly." The mind-bendingly hot weather in the Central Valley reminded her every day about how much she liked Tahoe. Nina asked her to run through Anthony’s last few days one more time, and Michelle obliged, speckling her commentary with complaints.

  "What’s this for?" she asked again.

  "You know something about what happened, Michelle. I’m just going to dig until I do too." Nina told Michelle they should be hearing soon on the writ.

  "I’ve been thinking," Michelle said. "I want to know who the baby’s father is, just for my own sake. I can pay for DNA tests."

  "I’m relieved, Michelle. You should know. The information could be useful to you, your baby, even our case. I wish going into this trial all mysteries could be put to rest. At least this one will be."

  "I should get a blood test."

  "I can help you with that. There’s a lab in Sacramento."

  "Can you get Tom and Steve to give a sample?"

  "I don’t think Steve’s a problem. We’ll handle Tom for you. And I’ll have a sample of Anthony’s blood analyzed. The police have samples," Nina said.

  "Poor kid," Michelle said, and hung up.

  Nina buzzed Sandy. "Sandy, what are you working on?"

  "Your responsive declaration on the Airleigh divorce."

  "When’s it due?"

  "Tomorrow."

  "Good. All the time in the world. Call Sacramento information for a lab called, I think, Cytograph. I used them once before. Ask them to set up a DNA analysis for a paternity case. The mom’s sample will be coming in from Fresno. Find out what they need from Tom Clarke and Steve Rossmoor. Then call those two and ask them to give a sample. If Clarke says no, tell me right away."

  "Oh, he’ll love this," Sandy said.

  "Now, here’s the hard part. Tell Cytograph we have some tissue coming in from a man who is deceased, and find out if any special arrangements are needed. Then call the morgue in Placerville. Ask for a Dr. Clauson. Find out where he sent a cancerous tumor from the body of Anthony Patterson. You need to get a sample from it."

  Silence at the other end of the line. Nina thought, this is too hard for her, I should do this myself.

  "Ten bucks an hour, starting today," Sandy said over the com line.

  Nina thought. She should have done it long ago.

  "Okay, on one condition. Fax your Aunt Alice. Find out if she’s dead. If she isn’t, make her get what we need."

  "Done," Sandy said.

  After lunch, Nina went down the hall and put on her new blue maillot bathing suit under a robe.

  She had been wondering for a long time how, on the night of April twenty-six or, to be more accurate, in the early morning of the twenty-seventh, her client dragged Anthony’s body onto Rick Eich’s sailboat, chugged out half a mile, dumped the body, and then jumped out of the boat and swam back.

  The killer abandoned the boat for the simple reason that the gas ran out, but there was a limit as to how far anyone could swim in icy-cold water without a wet suit. Half a mile was close to that limit.

  How — now, this was the question—how had the killer survived the swim in the freezing cold? Maximum survival time at the water temperature on the night of April twenty-sixth through the twenty-seventh, Paul had checked with the Coast Guard and told her, was thirty-five to forty-five minutes. Nina had seen Michelle and Tom Clarke a few days later in her office, looking relatively healthy.

  How long would it take to swim the distance today?

  Nina rented a motorboat and persuaded, with a twenty-dollar bill, one of the boys hanging around the dock to come out with her. They headed directly out to the wide expanse of Lake Tahoe. Dotted with sailboats and picnic cruisers, as beautiful as the ocean Nina loved, the lake looked as pristine and impressive from here as it had when Mark Twain saw it. At half a mile on the odometer she cut the engine and sat there, looking back toward the shore a very long way away.

  "Out here, the lake’s cold," the kid said. He pulled off his baseball cap and wiped sweat off his forehead. "It’s not like near the beach, where the sun warms it up. I hope you’re a good swimmer." A lantern jaw and prominent Adam’s apple were all she could see under the Giants baseball cap. He seemed to be staring through her bathing suit.

  "I’m good," Nina said. "You just follow along behind me about a hundred feet. If I get in any trouble, just toss me that life preserver and haul me in."

  "Okay," he said.

  The sun picked this moment to disappear behind a large cloud. The temperature dropped palpably. Nina debated one last time whether to allow herself her goggles, and decided in favor of them. The killer hadn’t had goggles, but there were limits. She stood up a little shakily and said, "What time is it exactly?"

  "Two thirty-three," he said. "Don’t drown or anything."
<
br />   "Bottoms up!" She dove in.

  Two seconds later she popped up. She began swimming in a slow crawl toward the distant shore.

  It took a few minutes to find her rhythm. The water, swooping into crests, was not as smooth as it looked from the boat. Turning her head and opening her mouth to breathe challenged her, as unexpected small waves slapped her in the face. Nina, who loved swimming in the ocean, found Lake Tahoe similar. She matched the cold vigor of the water with her own energy.

  Somewhere near this spot Anthony had sunk, slowly, and sat upon the sandy bottom. This late in the season, in summer’s shallower water, she caught glimpses of the bottom. What a strange place to try to hide a body permanently. Farther out made more sense, because most of the last decade had been so dry the water was invariably shallow close to the Keys. Now, had the murderer headed straight out, instead of to the right like this, he or she would have hit very deep water more quickly. So, the killer showed lack of foresight at the very least. If this was premeditated, someone didn’t think too clearly.

  What if Anthony had just disappeared into the lake? Who would have cared? Michelle would have continued crashing through her life, wondering for a short while what had happened, but forgetting as new men and adventures intervened. No one else would care except maybe his sister in Philadelphia. But Anthony had not cooperated. That was not his style.

  She lifted her head to have a look. The shoreline appeared no closer. She swam steadily on. There would have been lights, far away, that the killer swam toward that night, indistinct in the snow flurry.

  The cold was an old enemy. Back in Monterey she had taken a freezing ocean swim one night, a dangerous swim. She had not gone in the ocean since, five—or was it six? — years later. Her mind flowed back to that other time, and she remembered how it felt to be drowning.... She took a huge gasp of air and stopped, treading water.

  "Doin’ okay?" she heard from behind her. She raised her hand and began stroking through the water again.