"Does Mr. Geddes have to convince me beyond a reasonable doubt that Mrs. Griffen killed Miss Rizzatti before I can let in the evidence of the Rizzatti murder?"
"No, Your Honor. If I remember correctly, the cases hold that you must be 'certain' Mrs. Griffen killed Miss Rizzatti, but that is still a high burden. There is a case, Tucker v. State, from Nevada that I would like to call to your attention.
"In the spring of 1957, Horace Tucker called the police to his home in Las Vegas. Tucker was unshaven, he looked tired and he had been drinking. A detective found a dead man on the floor of Tucker's dining room. The man had been shot several times, but Tucker said he found the body when he woke up and had no idea what happened. A grand jury conducted an extensive investigation, but did not indict Tucker because it deemed the evidence of Tucker's guilt to be inconclusive.
"Roughly six years later, in late 1963, Tucker phoned the police again.
This time they found a dead man on the couch in Tucker's living room.
The man had been shot to death. Tucker looked like he had been drinking. He said he awakened to find the dead man and had no idea how he got into his house or how he was killed.
"This time, Tucker was charged with murder. At his trial, the prosecutor introduced evidence of the first murder over a defense objection. Tucker was found guilty of murder, but the Nevada Supreme Court reversed because it found nothing in the record that proved that Tucker killed the first man. The court held that evidence of a prior crime is inadmissible unless there is proof that the defendant committed the uncharged crime."
"That case is absurd," Geddes said. "I don't care what they do in Nevada. A Nevada case isn't precedent here. I don't think Oregon law requires me to jump through all these hurdles to get this evidence before a jury."
"Calm down, Mr. Geddes. I'm not that impressed by that Nevada case myself. But it's clear that this issue is too complex for me to decide today. I'm going to dismiss the jury until we clear this up. I want briefs on the prior-crime issue from both of you by Friday."
Judge Baldwin looked worried. "One matter greatly concerns me, gentlemen. If I allow your motion, Mr. Geddes, I may also have to grant a defense motion for mistrial or a continuance because of the prejudice to the defense of reopening at this stage.
I'm deeply troubled that the defense may not have the ability to investigate these new allegations against Mrs. Griffen during trial. I want this prejudice issue thoroughly briefed. This is a death penalty case and I am going to make absolutely certain that both sides have a fair trial."
"Why didn't you tell me that a witness heard you threaten to kill Justice Griffen when we discussed the Overlook?" Matthew asked Abbie as she paced back and forth across her living room.
"I don't, remember seeing her. I was upset. I just stormed out of the motel room. I was so mad, I don't even remember what I said to Robert."
Matthew walked over to the French windows and stared out at the back lawn.
"I don't know if we can avoid asking for a mistrial if the judge let's Geddes reopen the case," he said grimly.
"We've got to go on," Abbie said, turning toward Matthew with a look of desperation. "I couldn't go through another trial.
I'd be trapped in this house again."
"You've got to consider the possibility. If the jury starts thinking that you may have murdered Laura Rizzatti, they'll forget everything else they've heard. And the judge is right. How can we possibly investigate the Rizzatti murder while we're in trial?"
"But we're winning. If the case went to the jury now, I'd be acquitted."
"Geddes knows that. It's one of the reasons he wants Judge Baldwin to rule that he can introduce the evidence. It would force us to move for a mistrial and save him from losing the case."
"That bastard. I hate him."
Abbie stopped in front of Matthew. Her shoulders sagged and she began to sob. The pressure she had been under since her arrest was suddenly more than she could bear. Matthew took her in his arms. Tears streaked her face. She was so forlorn Matthew would have done anything to make her smile. Without saying a word, he stroked her hair and held her.
Finally, Abbie stopped crying. She rested her head against Matthew's shoulder for a moment. She felt as light as a feather, as if her tears had carried away all her emotions and left her hollow. Then she slowly tilted her head back and kissed him. The kiss ended. Abbie rested her cheek against his and he thought he heard her say, "I love you."
It was the voice of someone who had given up everything but one basic truth.
Matthew felt dizzy. He pulled back and felt pressure on his hand. Abbie kept hold of it, turned her back to him and led him toward the stairs.
He followed behind her and walked into Abbie's bedroom in a trance, his heart beating so fast he was having trouble breathing. Abbie turned toward him. She unbuttoned her blouse and stepped out of her skirt. She was wearing a white lace bra and silk bikini panties. Matthew marveled at her smooth, olive skin, the hard muscle, the curves and flat places.
The mysteries of a woman's body. Compared to Abbie, he was pathetic.
Abbie moved into Matthew's arms. He could feel the warmth and texture of her satin-smooth skin. She unbuttoned his shirt, then knelt as she slipped off his pants. Matthew kissed the top of her head and smelled her hair. There was a fragrance of flowers.
Abbie stood up and unhooked her bra. Her breasts were full and high.
Her nipples were erect.
"Take off my panties," Abbie whispered. Her desire paralyzed Matthew.
How could a woman like Abbie want him? She read the confusion on his face and touched the tips of her fingers to his lips. Matthew began to shake. He had never felt such desire, had barely allowed himself to dream of it. Abbie's hand strayed to his penis and the fingers that had traced along his lips performed a different kind of magic. Then Abbie pushed him gently and he fell back onto the bed and into his dreams.
Matthew reached across the bed until he found Abbie's hand. As soon as his fingers touched hers, they entwined. They lay side by side without speaking. Matthew had never felt such peace. If this was all he could ever have out of this life, it would be enough, but he believed now that it was possible for him to have more than this single night with Abbie.
"If we win, will you go back to the district attorney's office?"
Matthew asked.
While Abbie thought about his question, Matthew stared at the ceiling.
With the lights off, the moonlight cast shadow patterns of the limbs of a giant elm on the white surface. The silhouette swayed gently in perfect rhythm with the calm pulse of Matthew's heart.
"It would be hard to go back, Matt. Jack and Dennis stood by me, but I don't know how I'd feel working there after being a defendant."
"Have you ever thought about defending cases?"
Abbie turned her head and studied Matthew.
"Why are you asking?"
Matthew kept his eyes on the ceiling. There was a tremor in his voice when he spoke.
"I love you, Abbie, and I respect you, more than you can imagine. You're an excellent lawyer. Together,' we would be the best."
Abbie realized what he was asking her. Matthew Reynolds had never had a partner and his law practice was his life. She squeezed his hand.
"You're already the best, Matthew."
"Will you consider what I've said?"
Abbie rolled over and stroked his cheek.
"Yes," she whispered. Then she kissed him softly, then harder, then harder still.
Tracy went directly from the courtroom to the Multnomah County law library and started researching the law governing the admissibility of prior-crime evidence. The words on the page were starting to blur when Tracy began reading State v. Zamora, an Oregon Supreme Court decision that discussed the prior-crime issue. For some reason the case sounded familiar, but she did not know why. It had been decided two years before she started clerking, so it wasn't a case she'd worked on, and she did not recall reading it before
. Then the names of the cases on Laura's yellow legal pad flashed in her head and she recognized Zamora as one of them.
Tracy skimmed the case. The defendant had murdered a clerk and a customer in a convenience store in Portland. A 5-2 majority reversed the conviction because the trial judge admitted evidence of a prior, unconnected robbery in violation of the rule excluding evilence of prior crimes. Justice Lefcourt had written for the court with Justices Pope, Griffen, Kelly and Arriaga joining him. The public defender had handled Zamora's appeal.
Out of curiosity, Tracy pulled the volumes holding the other cases that Laura had listed on the sheet from the yellow legal pad that Tracy had found in Volume XI of the Deems transcript. State v. Cardona had originated in Medford, a small city in southern Oregon five hours' drive down I-5 from Portland. Tracy did not recognize the name of the attorney who argued the case. Justices Kelly, Griffen and Pope had joined in Justice Arriaga's majority opinion reversing Cardona's conviction for distributing cocaine.
Justices Lefcourt, Sherzer and Forbes had dissented.
The majority interpreted the search and seizure provisions of the Oregon constitution as forbidding the procedures the police had used when searching Cardona's apartment, even though the same procedures would not have violated the search and seizure provisions of the United States Constitution. There was nothing unusual about this. The United States Supreme Court had become increasingly conservative. Some state courts could not stomach its ideologically motivated opinions and had begun fashioning a jurisprudence based on interpretations of state constitutions that were frequently at odds with federal law.
In State v. Galarraga, Roseburg police stopped the defendant for speeding. After writing a ticket, they asked for permission to search Galarraga's car. According to the police, Galarraga consented to a search that revealed automatic weapons, money and cocaine. Justice Kelly reversed the conviction on the grounds that the search violated the provisions of the Oregon constitution.
Justices Arriaga, Pope and Griffen had joined in Justice Kelly's opinion. Bob Packard represented Galarraga.
Tracy skimmed the cases again, but could not see a connection between them, other than the fact that all three cases had been reversed. One was a murder case and two were drug cases.
They were from three different parts of the state. Two involved state constitutional law issues, but Zamora was reversed because of a violation of Oregon's evidence code. Different lawyers had represented the defendants.
The librarian told Tracy she was closing up. Tracy reshelved her books and drove to the office, where she dictated a memo on prior-crime evidence for Reynolds. She placed the cassette on his secretary's desk with a note asking her to type it first thing in the morning. Barry was cooking her dinner at his apartment. Tracy called to let him know she was on her way and turned out the lights.
Barry served her spaghetti with meat sauce, garlic bread and a salad, but all Tracy could do was peck at her food. Barry saw how exhausted she was and insisted that Tracy sleep at his place.
Tracy didn't argue. She staggered out of her clothes, collapsed on the bed and fell into a deep sleep as soon as her head hit the pillow. Soon she was lost in a dark forest. The trees were so high and the foliage so thick that only stray rays of sunlight were able to fight their way through the black-green canopy. In the distance, Tracy heard a muffled sound, strong and constant, like whispered conversation in another room.
The dark woods terrified her. She felt trapped and her breathing was labored. Tracy struggled toward the sound until she broke into a clearing and found herself on the shore of a river that raged and swirled downstream toward an unknown destination.
As often occurs in dreams, the landscape shifted. The trees were gone and the land around the river was flat and barren.
Someone called to her from the opposite shore. It was a man. She could not hear what he was saying because of the roar of the river. She strained to see him clearly, but his features were blurred by the reflected sunlight. To reach him, she would have to swim the river, and suddenly she was fighting a current that swept her downstream.
Tracy panicked. She sank below the surface, then bobbed up again. She was drowning, dying, when she splashed into a calm section of the river.
She gasped for air, still unable to swim to shore, but no longer in immediate danger. The current spun her toward the far shore, where the man miraculously appeared. He shouted to her, but the water roared in her ears, baffling the sound. Then she saw that he was holding something. She watched his arms fly upward. The object sailed toward her. Tracy reached up to catch it and saw a ball rotating slowly through the air. The minute the ball touched her hands, Tracy bolted upright in bed, jerked out of sleep by a truth that frightened her more than any nightmare she'd ever had.
The offices were dark except for the reception area, where the lights were kept on all night. Tracy let them in with her key and Barry punched in the alarm code.
"It's in here," Tracy said, leading Barry to the small room next to Matthew's office where they were keeping the defense evidence.
"I hope you're wrong about this," Barry said.
"I hope I am, too."
The evidence was arranged on a table. Tracy looked through it until she found the photographs and negatives in the FotoFast envelope. She set the negatives aside and shuffled through the photographs. There were shots of Abigail Griffen, pictures of the beach and the ocean, exteriors and interiors of the cabin and the photo of the shed Matthew had used on cross-examination to destroy Charlie Deems. Tracy checked the dates stamped on the negatives. Some of the early pictures on the roll had been taken in June, but the bulk of the negatives, including the photo of the shed, were dated August 12, the day Deems testified that he had met Abbie at the cabin and the day Abbie claimed she had been attacked.
Tracy studied the photograph of the shed. Barry looked over her shoulder. The photograph showed the interior of the shed.
Tracy could see the volleyball net, the tools and the space where a box of dynamite could have sat. In the middle of the space was the volleyball.
"I'm right," she said dispiritedly.
"Are you certain?"
"Yes. While you were looking around, I walked over to the edge of the bluff and sat on the stairs. On my way, I looked in the shed. The volleyball was resting on the volleyball net. You had the ball when you found me sitting on the stairs, and we played with it on the beach. On the way back to the car, you tossed the ball into the shed. I have a very clear mental picture of the ball coming to rest in the empty space.
"We were at the cabin in September, Barry. The ball was on the net when I opened the shed door. If the ball was in the empty space on August 12, how did it get onto the net? And how can the ball be in the exact position we left it in September in a photograph taken in August? The only answer is that this photograph was taken after we were at the cabin and it's been phonied up to look like it was taken in August. Only I don't know anything about photography, so { have no idea how it was done."
"Well, I know a lot about cameras. I have to on this job. Let me see the negatives and I'll try to figure this out."
The negatives were in cellophane slipcases. Each strip contained the negatives for four pictures. Tracy handed the stack of negative strips to Barry. He held up the strip with the picture of the shed to the light. All four negatives were dated August 12.
Barry sat down at the table and picked up the Pentax camera.
He turned it over and studied it. Then he looked at the strip of negatives again. Barry frowned. His brow furrowed. He examined the negative strips for all of the photographs. Then he laid down the strip with the negative of the shed and placed another strip directly above it. He studied the two strips, then he removed the strip without the picture of the shed and put another strip in its place. He repeated this with all of the negative strips. When he was done, Barry's shoulders sagged and he closed his eyes.
"What is it?" Tracy asked.
"You're rig
ht. The picture of the shed was not taken when the rest of these pictures were."
"How is that possible if the negative is dated August 12?"
"That's the easy part," Barry said, picking up the camera and pointing to a digital readout on the back. "The Pentax 105-R camera has a mechanism for setting the date that is similar to the mechanism you use to set the date on a VCR or a digital watch.
The person who took the picture simply reset the date to August 12, took the pictures he wanted, then reset the camera to the correct date."
"But there are pictures of Mrs. Griffen on the roll of film. The roll had to have ,been taken before she was confined to her house."
"It was. When FotoFast developed the film, it was in one strip.
Fotofast cut the strip of negatives into several strips, each with four shots on them. The strip with the shot of the shed was the only strip that was not taken on the date stamped on the negative."
"How do you know that?"
"When film is placed in a camera it's blank. It doesn't have any frames demurking where each photograph will be. The frames are formed when you take a picture. But each roll of film does have numbers imprinted on it that don't appear on the photograph but do show up on the negatives below the frames when a picture is taken. These numbers start at 1 and go 1, 1A, 2, 2A, and so on. You can see them here," Barry said, pointing out the numbers.
"These numbers are spaced along the bottom of the roll of film at a set distance from each other. The distance doesn't change, because the numbers are imprinted on the film when the film is produced.
"Whoever did this went to the coast after we were there. He had the negatives of the film Mrs. Griffen gave you. He took out one strip that would be in the natural sequence on the roll for the shot of the shed to appear. In this case it was the strip with the numbers 15 to 16A. Then he took photographs with the Pentax using the same brand of film Mrs. Griffen used. When he came to the shot that would be numbered 15, he copied the shot Mrs. Griffen had taken at that point on the strip. 15A is the fake shot of the shed. He took the shot showing the shed without any dynamite. Then he duplicated shots 16 and 16A, finished the roll, had it printed by the same FotoFast store that printed the roll Mrs. Griffen took and switched the single strip.
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