Motion to Suppress

by Perri O'shaughnessy

  This jury, she thought, would not be railroaded, because Tahoe souls were independent souls. She had watched for the smile on one side and the reproving stare from the other, and saw them both.

  She rose. "Good afternoon, Mr. Eich."

  "Good afternoon."

  "You testified that you saw Mrs. Patterson steer the boat, more than once."

  "Yes."

  "Did she ever start up the motor?"

  Eich snorted. "No way."

  "Why do you say ’no way’?"

  "She’s used to having men do for her, you know? And because Anthony or I always did it. It’s man stuff." Juror number five, a young mother in the front row, looked affronted.

  "So you never showed her how to start it up?"

  "She didn’t need to know."

  Nina let that sink in.

  "Did you show her how to sail?"

  "Don’t you get it? I mean, excuse me, but she wasn’t interested. She was too busy laying on a tan."

  "Did Mrs. Patterson ever swim in front of you?"

  "Yeah." Rick Eich looked at Michelle, his face grateful.

  "Would you describe her as a good swimmer?"

  "She mostly liked to float around on an air mattress. She could swim, I guess. I wasn’t worried about her out there, but she wasn’t into swimming, if you know what I mean."

  "Did you ever see her swim as much as half a mile."

  "No. That’s a long way."

  "You say you observed Mr. and Mrs. Patterson together on a number of occasions?"

  "Mostly on the boat."

  "How would you describe their relationship?"

  "Objection," Hallowell said matter-of-factly. "Vague, calls for speculation, lack of foundation, beyond the scope of direct examination."

  Milne pursed his lips, said, "Overruled."

  "Go ahead, Mr. Eich," Nina tried not to let her pleasure at Milne’s ruling show.

  "Okay. Anthony bossed her. He told her what to do. Used to sing an old Rolling Stones song about it, how he had her under his thumb."

  "Who else knew how to start up the motor on your boat?"

  "Friends. People I took out over the years. Anyone who’s started a similar one."

  "Lots of people?"

  "Objection," Hallowell said, but Eich was already saying, "Lots of people."

  The prosecutor smiled, shrugged, sat down. "Withdrawn," he said.

  Another pause. "When she was on your boat, did Mrs. Patterson go down in the cabin?"

  "Sure she did."

  Having primed him, Nina asked, "Would it surprise you to learn that Mrs. Patterson’s fingerprints were found in the cabin?"

  "Of course not. The head’s down there, for one thing." He grinned broadly. "You know women."

  Somebody tittered.

  "One more question, Mr. Eich. Did you wash down your boat, or even just the cabin thoroughly, including walls, floors, and fixtures, before you left Tahoe in April?"

  "She coulda used a scrubbing, but no."

  "Mr. Eich, we’ve been talking about starting up this motor of yours. Why don’t you help the jury out and explain how you do start it up?" Hallowell, patient and kind, began his rebuttal.

  "Sure. You turn the key. Then you pull on the starter rope, you know, like for a lawn mower or a motorcycle, so it goes vroom-vroom, then you adjust it to the speed you want to go, and then you start steering her out using the rudder handle."

  "Doesn’t sound too hard."

  "Objection. Not a question."

  "Withdrawn. You start it up like a lawn mower, eh? So anybody with enough brains to turn the key and pull the starter rope can get the boat going?"

  "Objection," Nina said at the same time Eich said, "Sure."

  "Overruled. Too late, Counsel," Milne said.

  "You said you gave Mrs. Patterson the key when you left for Hawaii, is that correct?"

  "Correct."

  "You testified that lots of people could start up the boat?"

  "Yes."

  "Could they start up the boat without a key?"

  Rick Eich was rubbing his jaw. "You’re not supposed to be able to. I guess you can hot-wire a boat, or get a key made."

  "Could you start up your boat without a key, Mr. Eich?"

  "Not me."

  "Nothing further."

  "The witness is excused." Eich smiled at Michelle as he passed, and she smiled back. The jury watched.

  "Court is adjourned until nine o’clock Friday morning. Counsel, make sure you have sufficient witnesses available for next week. We’re going to work hard. Thank you, ladies and gentlemen. You’re excused." Milne admonished the jurors and witnesses not to discuss the case, or read or watch the news, and vanished.

  Nina made notes on a pad as Paul escorted Michelle out of the courtroom. Hammer on the amazon aspect. Be amazed at the fantastic suggestion that little Misty could ever physically commit the deed. Laugh at the fingerprints. Make the police look as if they’d conducted a shoddy investigation. Remind the jury, however she could, not to be led down Hallowell’s road without questions.

  She packed up her files and left the courtroom, alone.

  27

  ON FRIDAY MORNING, Collier called in the Coast Guard.

  Captain Frank Buell stepped up, sharp and smart in his uniform. He spoke carefully, hoarding his words.

  "Were you the commanding officer of the Coast Guard cutter U.S.S. Emerald Bay on Monday, April thirtieth of this year?"

  "Yes, sir."

  "What was your duty assignment at that time?"

  "General patrol duty on the lake."

  "What were the weather conditions at that time?"

  Captain Buell pulled out a notebook and flipped some pages. "According to my log, about forty-eight degrees Fahrenheit at dawn. Windless conditions had persisted for several days."

  "Did you at some time during that day receive a ship-to-shore communication regarding a missing boat?"

  "Yes, sir. A Catalina sailboat owned by a gentleman named Richard Eich was missing."

  "And in response to that communication did you begin to search the lake for the boat?"

  "Yes, sir."

  "Describe your search efforts, please."

  "The owner indicated the boat had been low on gas. He thought it might have somehow torn loose from its mooring. We searched the Keys waterways first, although it was unlikely a drifting boat could have gone unnoticed in that area. When we found nothing, we commenced a sweep of the lake in a roughly triangular pattern extending out from the Keys outlet to the lake. After searching the triangle perimeter and lines parallel to shore at a quarter mile and a half mile out, we located the boat at approximately a half mile out, drifting."

  "What did you do then?"

  "We had telephone permission to board from the owner. I sent two men over to investigate. They reported what looked like blood spots on the inside flooring and outside deck."

  "I presume there were no people on board?"

  "No, sir."

  "Any sign of a struggle?"

  "Other than the blood, none, sir."

  "What, if anything, did your men discover regarding the condition of the motor?"

  "The key was still in. The motor appeared to have run out of gas."

  "What did you do then?"

  "Notified the land authorities we had a problem out there. And I sent down our chief diver, Ensign Pepper, for a preliminary search."

  "Did your diver locate anything?"

  "Yes, sir, a body on the sand about thirty-five feet down."

  "Anything else?"

  "Not at that time."

  "The diver went down again at another time?"

  "In the evening, after we winched up the body. He requested permission to cover the immediate area, since the water was relatively shallow and clear and we had good night-lighting equipment."

  "And was anything else discovered, to your knowledge?"

  "Only one thing, I believe. A statue. Looked like soapstone. Eskimo, maybe. A polar
bear statue."

  "Located where?"

  "About two hundred feet in a direct line from the sailboat."

  "What occurred then?"

  "We secured the vessel with a towline and towed it to the Ski Run Dock. The Tahoe police met us. They have jurisdiction up to a mile out on the lake in the Keys area. They received the vessel, body, and statue and took reports. We moved out again at 0100 hours."

  "Thank you, Captain. Your witness." Collier nodded at the jury from his table. Open and shut, his kind face said. Just a matter of getting straight facts out to you folks.

  Captain Buell expelled a long breath and turned slightly in his seat as Nina began her cross-examination.

  "Captain, can you tell us the water temperature of the lake in the area the boat was found drifting that night?"

  He opened up his book again. "Fifty to fifty-two degrees Fahrenheit. That’s a few degrees warmer than usual at that time of year."

  "That notebook is your daily log for April?"

  "Yes, sir." A couple of jurors smiled, but the captain was oblivious.

  "Can you tell us the air temperature in Fahrenheit about midnight on April twenty-sixth?"

  More page flipping. Nina waited impatiently, praying that Collier would not object that she was going beyond the scope of his direct examination. She stole a glance at him and with relief observed him in conference with his paralegal. Their heads almost touched.

  "Cold, snow flurries, high thirties about that time of night. Again, no wind. Hardly any wind between the twenty-sixth and thirtieth."

  "And the water temperature on the twenty-sixth?"

  "About fifty to fifty-two."

  "Now. You testified there was spotting that appeared to be blood both on the deck and in the galley portion of the Catalina." Nina showed him some blurry photos of the boat deck and galley areas. Hallowell had provided her with the shots and they had been marked for identification, but he had not used them, probably because all you could see were some blackish marks that could have been anything. "Have you seen these photographs, marked as People’s 7?"

  "I took the photos," Buell said.

  "Are these all the spots you suspected to be blood, which you and your men noted that night on the Catalina?"

  Buell held the photos up. His lips moved. He was counting spots. "Seems to be."

  "How many spots are there?"

  "Four on the outer decking. Two on the stairs leading down into the galley. Two on the padded bench. A smear on the table."

  The jurors listened intently. Why had the body been brought down into the galley? So it wouldn’t be seen as the boat slipped out of the Keys?

  "He wasn’t exactly bleeding to death, was he, Captain?"

  "Objection. Calls for speculation. Lack of foundation. The captain hasn’t been qualified as a medical expert."

  "Withdrawn, Your Honor," Nina said. "Captain, can you tell from the photos or any observation you made whether the decedent, Mr. Patterson, was bleeding at the time he was brought aboard the boat?"

  "I would say yes. The droplets appear at the edge of the decking and head in toward the stairs to the galley."

  "Can you tell if he was bleeding from one head wound or two at the time he was brought aboard?"

  Buell thought. So did Hallowell, and before Buell could open his mouth to answer, he said, "Objection. Again, this is a subject for expert testimony."

  "Do you wish to approach the bench?" Milne said, looking up from his note taking.

  "It’s a proper subject for lay opinion," Nina said.

  "Objection sustained," Milne said, his voice tight. Maybe the coroner could answer her question. She was ready to move on. According to her notes, she had nothing further to ask. But she didn’t want to let him go. He had seen the blood, seen the body. He could help her, if only she could think of the right question. It was on the tip of her tongue, then she lost it. She stared at the witness, her mind a blank.

  "Thank you, Captain."

  They took a break. Nina and Michelle and Paul convened at the courthouse coffee shop. Paul said, "Feeling all right?" to Michelle.

  "Hangin’ in there." Michelle nudged Nina with her arm. "Since the trial started, you’re so distant, like I’m just another job for you."

  Nina, hearing the hurt in her voice, resisted the surge of annoyance she felt. "Sorry, Michelle. Right now, it’s my job to be obsessed and professional. Only way to win." What had Michelle expected? What did they all expect from her? If she cared any more, she’d be incapacitated.

  In this court, in front of these jurors, she knew the outcome depended on many factors Hallowell did not have to consider—a run in her stockings, too much or too little makeup, hair in her eyes, the cut of her clothes, the amount of emotion she allowed herself, even the loudness of her voice, because in spite of the fiction she read, where there was this suspension of reality, where women lawyers acted like and were treated exactly like men lawyers, she had not gotten the same comfortable, instant credibility with the jury Hallowell got.

  You take the situation as you find it. She would earn their respect. Some of them would start to root for her, and by extension, for Michelle, if she showed she warranted their trust.

  Now that she was in the middle of the trial, she knew she would provide Michelle a good defense. Collier’s workmanlike approach had its drawbacks. He got the job done. But she could do more than that. She could turn it around. She could make them care about the case and about Michelle. But she couldn’t do that and be a friend, and mother, and sister all at the same time. Some things had to suffer.

  "Thinking about the guy who’s up next? The scuba diver?" Paul said. He looked uncomfortable in his suit; his tie was too wide: Nina recognized it as a derelict from the seventies.

  "Easy pickings," Nina said. "I only want one thing from him."

  "And what’s that?"

  "A shiver," she said. Paul laughed.

  "I called Cytograph today. They’re talking next week sometime for the results of our second DNA go-round."

  "What difference does it make?" Michelle asked. She was resting her legs across another of the hard chairs.

  "You never know," Nina said.

  "There are so many things against us," Michelle said. "I don’t know where I’m winning or where I’m losing. The only thing I’m sure about is, I’m scared to death."

  "Courage," Nina said. "If our bridges tumble down, we’re out of here via the waterways."

  Back in court, it was Ensign Pepper’s turn. Sandy-haired and freckle-faced, he displayed an incongruous Howdy Doody overbite over a prime V-shaped physique. He went over the same ground as his captain, outlining his dives and how he had located Anthony’s body and the statue. He discussed the underwater photographs, high-tech infrared, of the body before it was moved. Anthony sat in ghastly twilight, about to say something, his face indistinct, his torso naked and undefended. "Nothing further," Collier Hallowell said.

  "Ensign Pepper, you observed the body after it was brought on board?" Nina asked.

  "Yes, ma’am."

  "Did you observe any fish bites or other evidence the body had been disturbed underwater?"

  "No, ma’am. Not many fish swimming around."

  "Did the body appear to have decomposed in any manner?"

  "Not that I saw. That’s your basic deep freeze down there. I’ve picked up bodies off the bottom that sat there for a year, fresh as the day they sunk. A couple of years ago, another patrol vessel picked up a Chinese man who probably worked on the railroad decades ago. They used to dump troublemakers in the lake. He must’ve been buried in the sand. Looked like a guy I know. We call them lake mummies."

  A ripple of laughter passed over the court. "When you went down in that icy water on April twenty-ninth, were you wearing any protective gear?"

  Ensign Pepper frowned, disappointed at this show of ignorance. "Subfreezing wet suit and mask designed for frigid conditions. You can dive under ice in the rig I wore. Even so, my lips got so stiff th
e regulator fell out of my mouth."

  "Have you ever been for a swim in water the temperature of the lake that night without such protective gear?"

  "One night," Ensign Pepper said slowly. "We picked up a drunk gentleman and we were towing his boat. He fell overboard, and I didn’t have time to suit up."

  "How long were you in the water?"

  "About five minutes."

  "Did you experience any discomfort due to the temperature?"

  Ensign Pepper wrapped his arms around himself, torturing his young features into a rigor of intense pain. Nina cast a sidelong glance at the jury. They got it.

  "Now I ask you, based on your experience as a Coast Guard diver, do you think an average swimmer could swim unprotected in that water for a half mile?"

  "Objection! Calls for speculation. Incomplete hypothetical. The witness hasn’t been qualified as an expert witness. Lack of foundation."

  "Overruled," Milne said, looking at Nina with ... no, could that be a twinkle?

  "Not a chance," the witness said with finality. "Or if this swimmer somehow made it, he’d better crawl himself straight to a phone for an ambulance."

  Several jurors gave Michelle their attention. Nina urged them on in her mind. Yes, imagine that girl, the one that liked to loll around on a sailboat tanning, the one that relied on men to pull a motor to life. Picture her on a freezing night like that, swimming mightily away from her dead husband. Michelle was leaning back in her chair to make room for her belly, her figure buried and her physical grace obscured. See her like that, flailing in the water.

  "No further questions," Nina said.

  Dr. Clauson, after the lunch recess, faced sleepy jurors fighting carbo overload. The court provided the jury lunches, which today must have been heavy on dessert.

  A pack of cigarettes nested in Clauson’s shirt pocket. His thick glasses kept his eyes mysterious. Soft, bloodless, hairless hands held his brown briefcase close to his body as he sat down.

  Hallowell took him through the autopsy report, which was introduced into evidence. The details of the contents of Anthony’s stomach, the wounds, and the changes associated with drowning took Nina back to the morgue. The jurors looked at their fingernails, lighting fixtures, or stared intently at Michelle, wishing to skip this part of the trial, please, Judge.