Equivocal Death
Page 24
Sam, by the way. Sam Howell.”
10
“Kate Paine.” His hand was large and warm. “Do you ever have 11
shows in the city?”
12
“Nothing planned right now. But Sag Harbor’s an easy day trip.
13
It’s nice this time of year. The tourists have all gone home. You 14
should think about coming out.”
15
16
17
Half an hour later, Kate was editing her memo when the ringing 18
phone made her jump. Still reading, she reached for the receiver.
19
“Ms. Paine?”
20
“Speaking.”
21
“This is Detective Valencia.” A pause. “I’m returning the mes-22
sage you left me.”
23
“Oh! Right. I called you last night.” Kate took a moment to shift 24
modes. It was a little dizzying, this moving back and forth between 25
the worlds of corporate law and urban violence.
26
“What can I do for you?”
27
“It’s probably nothing,” Kate said. “But I was getting my hair 28
trimmed this weekend by this guy who cuts hair for a lot of the 29
women associates here. He’s sort of a strange character. Anyway, 30
he told me that Madeleine —”
31
“I’m sorry, Ms. Paine, I don’t mean to interrupt, but are you talk-32
ing about Hercules Spivak?”
33
Spivak. Kate realized that she’d never known Hercules’s last ort 34
name. “How did you —”
reg 35
“Let’s say his name has come up a few times.” Valencia’s voice 9858_02_153-356_r6jm.qxd 9/28/00 3:59 PM Page 167
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was dry. “We spoke to him. At his loft.” She paused. Kate tried to 1
imagine Valencia’s reaction to Hercules’s artistic oeuvre. Had she 2
noticed the Barbie doll?
3
“Then this probably isn’t anything new. It’s just that he used to 4
be a paralegal at Samson. I didn’t know that before. He worked 5
with Madeleine. He also cut her hair. She was actually his first 6
Samson client.”
7
“I see.” said Valencia. Her tone was neutral. Kate couldn’t tell if 8
she was surprised. “Aside from his prior acquaintance with Ms.
9
Waters, is there anything else about this man that seems signifi-10
cant to you?”
11
“Well, if you were down at his loft, you probably noticed 12
his . . . artwork.”
13
“Yes.” Again, the same dispassionate tone.
14
“There was this one piece that caught my eye,” Kate said. “A 15
Barbie doll that sort of reminded me of Madeleine. It was partly 16
the coloring, I guess — pale skin and dark hair. Also, the way that 17
the hair was arranged, sort of rippling out from her head. Anyway, 18
he’d done this really brutal thing to the doll, stabbing her again and 19
again with knitting needles. There must have been six or seven of 20
them, sticking out from the body. And it made me think . . .”
21
Kate’s voice trailed off.
22
“I did see the doll,” Valencia said. Her voice had softened a bit.
23
“Ms. Paine, do you have any reason to think that Hercules had any 24
recent dealings with Ms. Waters?”
25
“No. Like I said, it’s probably nothing.”
26
“Is there anything else that comes to mind, anything that wor-27
ries you?”
28
Kate paused for a moment, recalling Hercules’s looming form as 29
he watched her descend the stairs. “No,” she said finally. “I don’t 30
think so.”
31
“Well, please don’t hesitate to call back if you think of anything 32
else. We need all the help we can get. Oh, and Ms. Paine? I 33
wouldn’t want you to worry too much about Mr. Spivak. He was 34 sh
out of town the night that Ms. Waters was killed.”
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1
As she hung up the phone, Kate was feeling sheepish. Andrea 2
was right: she needed to get a grip. She returned her attention to 3
the memo, erasing all other thoughts.
4
She’d been working intently for some time when she was star-5
tled by a knock on the door.
6
“Greetings,” said Peyton. “Hope I didn’t frighten you.”
7
Already, Kate felt at a slight disadvantage. Peyton had a way of 8
doing that. Today, he was wearing a dark suit and bow tie, along 9
with a pair of tiny glasses with hexagonal steel-rimmed frames.
10
The glasses were a calculated risk, an ironic twist to the starched 11
propriety of his clothing. Against all odds, it seemed to work.
12
“So let’s see what you have.” Peyton settled into a chair and 13
folded his hands before him. Kate recognized the gesture immedi-14
ately: vintage Carter Mills.
15
“I’ve summarized the relevant law on sexual harassment,” Kate 16
said, handing him her current draft. “I’m still finishing up one sec-17
tion — the standard by which a claim is evaluated. Basically, the 18
conduct at issue has to be both subjectively and objectively outra-19
geous. In other words, it’s not enough that a given plaintiff was 20
outraged by what happened if a so-called reasonable woman would 21
not also have been. And vice versa. If a reasonable woman would 22
have been outraged, but this particular plaintiff would not have 23
been — again, there’s no cause of action.”
24
“So, if we could show that Friedman was less sensitive than most 25
women to sexually aggressive conduct, that should help us, right?”
26
“Exactly.”
27
“And what about the state law claims?”
28
“I’m still looking into them.”
29
“What can you tell me so far?”
30
Kate glanced at her notes. “In the first section, I’ve considered 31
the various grounds on which we could move for pretrial dismissal 32
of the sexual harassment claims.”
33
“And?”
ort 34
“I don’t think we have any really strong arguments. The action reg 35
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is timely. Well within the statute of limitations. And Friedman 1
properly filed with the EEOC before moving to federal court.”
2
“So where does that leave us?”
3
“As I see it, we have two main avenues of defense. First, we’ll 4
want to show that Friedman had no problem with Thorpe’s behav-5
ior. That she was a willing participant in whatever went on. That 6
in itself should dispose of her claim.
Second, as I was just saying, 7
we’ll argue that Thorpe’s conduct wasn’t outrageous. And that, 8
even if it might have been seen that way by some women, it 9
wouldn’t have been seen that way by Friedman. Based on what 10
Carter says — and on our meeting yesterday with Linda Morris —
11
I think we’ll have strong arguments on all of these points. Still, 12
they’re all factual issues, and that means we can’t get a pretrial dis-13
missal.”
14
“What’s this about the First Amendment?” Peyton was pointing 15
to a footnote.
16
“It’s a thought I had,” Kate said. She felt a surge of intellectual 17
pleasure in Peyton’s quick grasp of the issues. He’d rapidly zeroed in 18
on the one innovative section of what was, for the most part, a 19
pedestrian summary of current law.
20
“It’s like this,” Kate said. “To prevail on her sexual harassment 21
claim, Friedman has to show that Thorpe’s advances were unwel-22
come. My point is that this kind of factual showing should be a lot 23
more difficult here than it would be in other workplace situations.
24
Everyone knows that Catch is basically a sex magazine. When 25
Friedman took a job at Catch, she had to assume that the work-26
place atmosphere would be sexualized. How do you put out that 27
kind of magazine if you’re prohibited from discussing the subjects it 28
contains? It’s like Thorpe said — what did she expect, Good 29
Housekeeping? ”
30
Peyton looked reflective. “Isn’t that basically arguing that she 31
assumed the risk of sexual harassment? That’s a common-law doc-32
trine. It sounds like you’re trying to import common law into a fed-33
eral statutory regime.”
34 sh
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1
Kate paused to consider. Under the Supremacy Clause of the 2
U.S. Constitution, federal law always trumped state law. The rule 3
of preemption. Peyton was right in stating that assumption of 4
risk — a doctrine aimed at barring suits by plaintiffs who had 5
knowingly entered high-risk situations — was a principle derived 6
from state common law, principles enunciated in the binding deci-7
sions of state judges. But that hardly ended the debate.
8
“I don’t think so,” said Kate. “It might also constitute assump-9
tion of risk — and then you’re right, we’d have preemption prob-10
lems — but what we’re really considering here is whether the 11
conduct was unwelcome. That’s the standard set forth under federal 12
law. Look at it this way. If you came into my office and started de-13
manding lurid details of my sex life, you should expect me to be 14
outraged. We’re lawyers. That sort of information obviously has no 15
possible bearing on our work together.”
16
Peyton’s face was impassive. Hard to say if she was making any 17
headway. But she was in her element here, confident of where the 18
argument was heading. She plunged ahead.
19
“Now compare that with Friedman’s case. When Thorpe asks 20
her about sexual stuff, there’s arguably a legitimate business pur-21
pose. In other words, there’s a legitimate nondiscriminatory reason for 22
the discussion.”
23
“I’ll have to think about it,” Peyton said. “But you still haven’t 24
explained how the First Amendment fits in.”
25
“It’s a supporting argument. The First Amendment protects the 26
media’s right to free speech. My point is that if you prevent Chuck 27
Thorpe — or anyone else, for that matter — from engaging in es-28
sential editorial activities, you inhibit their constitutionally pro-29
tected right to speak.”
30
“The First Amendment doesn’t protect obscenity,” Peyton ob-31
served.
32
Peyton was right. In the so-called marketplace of ideas, obscen-33
ity was the outcast, deprived of the most basic First Amendment ort 34
protections. Never mind that no one seemed quite sure just where reg 35
to draw the line. But she was ready for the objection.
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“Catch isn’t obscene,” Kate said. “Just because there are some 1
racy pictures doesn’t mean you can write it off as pornography.”
2
“Like feeding Anita Hill through a meat grinder?”
3
Kate held her ground. “You’re just making my point. Catch con-4
tains political speech — the sort of speech that’s at the heart of the 5
First Amendment. The sort of speech the founding fathers were 6
most concerned with protecting. The sexual harassment story 7
should be our Exhibit A. It’s a spirited discussion of controversial 8
political issues. Exactly the sort of speech the First Amendment 9
was designed to protect. That story should help us, not hurt us.
10
That’s the beauty of it. We’d be taking their own evidence and us-11
ing it against them.”
12
Kate felt herself warming to the argument, trying to win Peyton 13
over. It was her favorite part of law, figuring out novel ways around 14
seemingly intractable roadblocks. There weren’t so many opportu-15
nities for it as a young associate; too much grunt work to get 16
through. But that would change as the years went by.
17
Peyton seemed intrigued, though undecided.
18
“I’ll have to think about it,” he said again. “We’ll talk when I’ve 19
read the cases.”
20
That was one of the good things about Peyton. It was standard 21
procedure for senior associates to steal ideas from more junior at-22
torneys, presenting them as their own. Peyton didn’t play those 23
games. He was good, and the partners knew it. He could afford to 24
share the credit.
25
Kate looked at Peyton curiously. From the neck up, he looked 26
like a promoter for an alternative band. Below that, the conserv-27
ative dark suit gave him away. Still, you had to admire him for 28
pressing the boundaries, for pushing convention without posing a 29
threat. Flair without subversion. Where had that impulse come 30
from? Funny how you could work with someone every day and still 31
know very little about him.
32
“What did you study in college?” Kate asked.
33
“Pardon?”
34 sh
“I know it’s a non sequitur. I was just . . . wondering.”
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Peyton gave her a pleasant smile. “I studied classics,” he said.
2
“Classics?” Kate could hear the surpri
se in her voice. “I would 3
have guessed economics or maybe even philosophy. But classics?
4
It’s so . . . literary.”
5
“Well, yes,” Peyton said dryly. “Anything else that you’d like to 6
know?”
7
“Yeah,” Kate grinned. “Have you always had a thing for funky 8
glasses?”
9
The corners of Peyton’s mouth edged slightly upward. Almost as 10
if he was enjoying himself. “Now that’s a fairly recent innovation.
11
My sister has a friend who’s a designer. She gives me the men’s 12
samples. Like them?” So Peyton had a sister. She never would have 13
guessed.
14
“They’re quite . . . striking,” Kate said. “Can you see without 15
them?”
16
“Not a thing. Blind as a bat.”
17
“Your eyes can’t possibly be as bad as mine,” Kate said. “I can’t 18
even see the big E on that eye exam chart.”
19
“That’s nothing,” said Peyton. “I can’t even see the chart. ”
20
“Come on, you’re just trying to one-up me,” Kate said. “Here, 21
trade. Let me put on your glasses.”
22
Peyton rolled his eyes but complied, though he declined Kate’s 23
proffer of her own frames.
24
As Kate raised Peyton’s glasses to her eyes, the room flew into 25
focus.
26
“This is amazing,” Kate said. “It’s like we have exactly the same 27
prescription. Or maybe I need my eyes examined. I think your pre-28
scription’s better than my own.”
29
Peyton reached out his hand. “Well, Kate, this is all quite inter-30
esting, but I’ve got some work to do.” Placing his glasses back on 31
his nose, he pushed back his chair and stood up. “Why don’t you 32
finish the research this evening. I’ll take a look at what you’ve 33
written so far.”
ort 34
After Peyton left, Kate looked out the window, at the Hudson reg 35
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River sunk in fog. The meeting had gone pretty well, she decided.
1
Better than she would have thought. She congratulated herself on 2
how she’d handled Peyton, even getting him to loosen up a bit.
3
Then, still staring out the window, she had a disturbing thought.
4
Throughout the duration of the meeting, Madeleine’s name hadn’t 5
come up once.
6
Madeleine had been killed on Tuesday. Less than a week ago.