The Last Innocent Man

by Phillip Margolin

  “Surprise evidence,” Stafford repeated. “I can’t think of…” He stopped for a moment, and David got the distinct impression that something was troubling his client.

  “Look, I didn’t do it, so what could they have? It doesn’t make any sense.”

  “You do some thinking on this, okay, Larry? I don’t like surprises, and it looks like Monica is planning one. Remember what I told you about being straight with me. If you’ve done something that can hurt us, I want to know right now.”

  “Dave, I have been one hundred percent square with you. There’s nothing.”

  “You’re sure?”

  “Absolutely. Say, how do my chances look today?” Stafford asked anxiously.

  “I don’t know. It depends on what kind of showing the State makes. One point for our side is that Jerry Miles is the presiding criminal judge this month.”

  Stafford brightened. “He’s pretty liberal, isn’t he?”

  “He’s good and he’s fair. Keep your fingers crossed. I hope you’ll be out of here by this evening.”

  They shook hands and David buzzed the guard. Stafford was still waiting in front of the door when the guard let David out. On the elevator ride up to the courtroom, David tried to analyze his feelings about his client. He felt uncomfortable around Stafford. The man appeared to be open and honest, but David could not help feeling that Larry was using the same technique on him that David used on a jury. Or did he just want to feel that way? He had to face one very unpleasant fact: he wanted Jenny, and Larry Stafford was his rival for Jenny’s affections.

  David tried to stand back from his problem and be objective. Was Stafford lying to him? Was he really guilty? Were his uneasy feelings about Stafford generated by his emotional involvement with Jenny? He had given Larry a chance to lie today, and Stafford had not taken it. Although reticent at first to discuss his private life, Larry had eventually been candid about his marital problems, and he had told David about his failure to make partner. And then there was Jenny. She swore she was with Larry on the night of the murder. She would not lie to him.

  By the time the elevator doors opened, David was starting to feel better about his case. Jenny would make a good witness, and there was Grimes’s testimony about the hair. The jury might not be totally convinced of the accuracy of the motel clerk’s observations, but his testimony, combined with other evidence, could create the reasonable doubt needed for an acquittal. Now all David had to do was find those other pieces of evidence. He hoped some of them would be provided by the testimony at the bail hearing.

  Presiding criminal court was at the far end of the corridor from the bank of elevators David had used. He was halfway to the courtroom when he saw Thomas Gault grinning at him from a bench near the courtroom doorway.

  “You’re just the man I wanted to see,” Gault said. David stopped and looked at his watch. Court would start in a moment, and he really did not want to talk to Gault anyway. Ever since Gault had shaken him with his false confession, David had gone out of his way to avoid the writer.

  “I’m sorry, Tom, but I’m due in court.”

  “The Stafford bail hearing, right?”

  “Right.”

  “That’s what I want to talk about. I’m covering the case forNewsweek.”

  “The magazine?” David asked incredulously.

  “The same. They gave a lot of coverage to my trial, so I convinced them that it would be a neat gimmick to have someone who was just acquitted of murder cover a murder case. Hell, I’m their murderer-in-residence now. Besides, I did those articles on Cambodia and the article on the mercenaries for them.

  “So what do you say? Is Stafford guilty? Come on. I need a scoop to beat out the local yokels.”

  David couldn’t help laughing. Gault was a leprechaun when he wanted to be, and his humor could be infectious.

  “No scoops and no comment. How would you have liked it if I’d blabbed to reporters about your case?”

  “But, Dave, I had nothing to hide. Can you say the same for Stafford? If I don’t get facts from you, I’ll have to make something up. I’ve got deadlines.”

  “No comment,” David repeated. Gault shrugged.

  “Suit yourself. I’m only trying to make you famous.”

  “And I appreciate the effort, but I really do have to go.”

  “At least say something memorable, old buddy. I’ve gotta have some snappy copy.”

  David shook his head and laughed again. He opened the door and entered the courtroom. Gault followed him and took a seat in the back of the room where he would not be noticed.

  “This is the time set for the bail hearing in State versus Lawrence Dean Stafford, case number C94-07-850. The State is represented by Monica Powers,” Monica said, “and the defendant is present with his attorney, David Nash.”

  “Are you prepared to proceed, Mr. Nash?” Judge Autley asked.

  “Ready, Your Honor,” David answered stiffly. Clement Autley was the worst judge they could have gotten. Almost seventy, Autley was so erratic that many attorneys filed affidavits of prejudice against him rather than risk his unpredictable rulings at trial and subject themselves and their clients to his very predictable temper tantrums. Autley was not supposed to be on the bench today. Jerome Miles was. But Miles had the flu, and Autley had been shipped upstairs for the week.

  “You may proceed, Mr. Nash.”

  “Your Honor, I believe the burden is on the district attorney.”

  “You’re asking for bail, aren’t you? Your motion, your burden,” Autley snapped.

  “If I might, Your Honor,” David said, careful to maintain his composure and to address the judge formally. He had once seen Autley, in a fit of anger, hold a young lawyer in contempt for not using the proper court etiquette. “Article one, section fourteen of the state constitution states that, and I quote, ‘Offenses, except murder and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or the presumption strong.’

  “InState ex rel. August v. Chambers, our supreme court held that if the State seeks to deny bail to a person charged with murder, it has the burden of proving that there is proof of, or a presumption of, the defendant’s guilt which is evident or strong. In light of the Chambers case, it appears that the State has the burden, not Mr. Stafford.”

  Judge Autley glared at David for a moment, then turned rapidly toward Monica Powers.

  “What do you say to that?”

  “I’m afraid he’s right, Your Honor,” Monica said nervously. It was widely known that the one thing Autley hated more than young defense lawyers was any kind of woman lawyer.

  “Then why are you wasting the Court’s time? I have a busy schedule. You see all these people waiting here, don’t you? Why did you let him go on and on if you agreed with what he said?”

  “I’m sorry…” Monica started, but Autley waved a hand toward her.

  “What’s your evidence?”

  Monica tendered to the judge a copy of the indictment charging murder. His bailiff, an elderly woman who had been with him for years, handed the document to him.

  “I believe the indictment in this case should be sufficient. It establishes that the grand jury, after hearing testimony, decided that there was sufficient proof to indict for murder.”

  Judge Autley scanned the document for a moment; then he handed it back to the bailiff.

  “Bail denied,” he said without looking up. “Next case.”

  David was on his feet, waving a law book toward the judge.

  “Your Honor.”

  “I’ve ruled, Mr. Nash. Next case.”

  “Your Honor, last month in the Archer case the Oregon Supreme Court ruled on this specific question and held that an indictment is not sufficient evidence to support a denial of bail in a murder case. I have the case here, if the Court would read it.”

  “What case?” Autley asked, annoyed that the matter was not over.

  “Archer, if you’d take a
look.”

  “Give it to me. But if this case isn’t on point…” He let his voice trail off, leaving the threat dangling over David’s head.

  David handed the law book to the bailiff. Stafford leaned forward to say something, but David touched his leg and he sat back. Autley read the page twice, then turned his anger on Monica Powers.

  “Don’t they teach you the law anymore? Didn’t you know about this case?”

  “Your Honor, I-”

  “You’d better have more than this, young lady,” Autley said, waving the indictment toward Monica, “and you’d better produce it fast.”

  “We do have further evidence, Your Honor. Officer Ortiz is prepared to testify.”

  “Then call him.”

  Monica gestured toward the first row of spectator seats, and Bert Ortiz rose from his seat next to Detective Crosby. He pushed through the gate that separated the spectators from the bar of the court and stopped in front of the bailiff.

  “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” the bailiff asked.

  “I do,” Ortiz replied.

  “Then state your name and spell your last name.”

  Ortiz sat down in the witness box and spelled his last name for the court reporter. His throat felt dry as he did so, and there was none of the air of self-assurance about him that he usually had when he testified. He felt uncomfortable reliving the events of the murder.

  “Officer Ortiz,” Monica asked, “how are you employed?”

  “I’m a police officer with the Portland Police Bureau.”

  “How long have you been so employed?”

  “It will be seven years this coming February.”

  “Were you so employed on the evening of June sixteenth of this year?”

  “I was.”

  “And what was your assignment at that time?”

  “I was working in a special vice unit. We were using policewomen disguised as prostitutes to arrest males who were soliciting prostitution.”

  “Could you be more specific for the Court?”

  Judge Autley leaned toward Monica and waved an impatient hand.

  “I know what he means. Don’t insult the Court’s intelligence. Now, get on with this.”

  “Very well, Your Honor. Officer Ortiz, who was your partner that evening?”

  “Darlene Hersch, a policewoman.”

  “When did you begin work?”

  “The shift started at ten-thirty, but we weren’t out on the street until about eleven-thirty. We had a meeting first.”

  “Officer, please tell the Court what happened from the time you began work on the street until the time Darlene Hersch was murdered.”

  Ortiz leaned forward slightly. There was tension in his shoulders and a tight feeling in his stomach. He looked down at the railing of the witness box and quickly ran his tongue across his dry lips.

  “I was in our car in a parking lot on the corner of Park and Yamhill, and Officer Hersch was on the far corner. Shortly after I started my surveillance, a beige Mercedes-Benz stopped and Darlene-Officer Hersch-got in. It drove off and I followed.”

  “Were you able to read the license number of the car at that, or any other, time?”

  “No.”

  “Go on.”

  “Officer Hersch was not supposed to enter a vehicle if asked. She was supposed to decoy the subject back to the lot, where we would make the arrest. She had strict orders not to do that.”

  Ortiz stopped. He realized that he was trying to justify his actions by putting Darlene in a bad light. He looked up. Monica was waiting for him to continue. There was little sound in the courtroom. For the first time in a long time, he noticed the faces watching him.

  “Officer Hersch got into the Mercedes and I followed the car to the Raleigh Motel. I saw Officer Hersch enter the motel office, and I saw the car drive around back. I parked in the lot of a fast-food place next door and took up a surveillance post.”

  “To this point had you been able to see who was driving the Mercedes?”

  “Not really. I had a look at him when Officer Hersch got into the car, but he was too far away. It was the same when he was letting her off at the motel office.”

  “Go on.”

  “Well, Officer Hersch was new. She didn’t have much street experience. I started to worry about her being alone with the, uh, the subject.”

  Ortiz paused again. He wanted to look for Crosby but was afraid. Would the older man condemn him for letting things go as far as they had? He had been wrong. He should never have let Darlene go into that room alone. Even if it meant losing the collar, he should have stopped it as soon as he reached the motel. Should have parked in the motel lot and gone straight up to the room.

  Ortiz looked over to the defense table. They had dressed Stafford in a suit. Very Ivy League. He looked more the lawyer than Nash. Their eyes met, and Stafford’s face, for a brief instant, reflected contempt. There was no fear in his eyes, only ice. Humorless, emotionless, unlike Ortiz’s own, which wavered with confusion and self-doubt. Ortiz looked away, defeated. And in that moment he felt the sick feeling in his stomach turning to hate for the man who had taken Darlene Hersch’s life. He wanted that man. Wanted him more than he had ever wanted any other man he had hunted.

  “I saw the subject walk along the second-floor landing and enter the room Officer Hersch had entered.”

  “What did the man look like?”

  “He was tall. About six feet. Athletic build. I would say he was in his late twenties or early thirties. I didn’t see his face, but he had curly blond hair, and he was wearing tan slacks and a flowered shirt.”

  “What happened after the man entered the motel room?”

  “I…I crossed over to the motel lot and started up the stairs. When I was halfway up, I heard a scream. I broke down the door, and then I was struck several times. I remember crashing into the bed. I must have hit the metal leg, because I passed out.”

  “Before you lost consciousness, did you get a look at your assailant?”

  “I did.”

  “Do you see that man in this courtroom?”

  Ortiz pointed toward Stafford. This time his hatred made him strong and he did not waver. David watched his client. If the identification upset him, he did not show it.

  “The man I saw in the motel room is sitting beside counsel at that table,” Ortiz said.

  “Officer Ortiz, if you know, what type of car does Mr. Stafford drive?”

  “Mr. Stafford drives a beige 1991 Mercedes-Benz, model 300 SEL.”

  “Is this the same car that you saw at the corner of Park and Morrison and later at the Raleigh Motel?”

  “Yes.”

  “At a later point in time, did you have an opportunity to search the defendant’s home?”

  “On September fifth we obtained a search warrant for Mr. Stafford’s home. Detective Crosby, myself, and several other policemen arrested Mr. Stafford and conducted a search for clothing.”

  “What did you find?”

  “A shirt identical to that worn by the person I saw at the Raleigh Motel, and tan slacks that were very similar to those worn by the killer.”

  “I have no further questions,” Monica said.

  “Officer Ortiz,” David asked, “you were a full city block away from the Mercedes when you first saw it, were you not?”

  “Yes.”

  “As I understand your testimony, Officer Hersch was supposed to lead a person back to you if she was propositioned and you would then arrest him in the lot?”

  “Yes.”

  “And you were watching Officer Hersch from your car?”

  “Yes.”

  “Was the engine on?”

  “In the police car?”

  “Yes.”

  “No.”

  “And you were surprised when Officer Hersch got into the Mercedes?”

  “Yes.”

  “Park is one-way going south, is it not?”

  �
��Yes.”

  “Where was Officer Hersch when she got into the Mercedes?”

  “At the corner of Park and Morrison.”

  “Did the Mercedes turn up Park?”

  “No. It proceeded down Morrison.”

  “In order to follow it, wouldn’t you have to go up Park to Taylor, then back down Tenth?”

  “No, sir, I went down Park the wrong way.”

  “Then turned on Morrison?”

  “Yes, sir.”

  “How far away from the Mercedes were you when you spotted it again?”

  “Two blocks, about.”

  “And did you maintain that distance?”

  “Yes.”

  “You were too far back to read the license plate?”

  “Yes.”

  “Where was the Mercedes when you reached the motel?”

  “I believe it had just stopped in front of the motel office.”

  “Why didn’t you get the license number then?”

  “At that point I didn’t realize it would be important. Besides, I was going too fast.”

  “When did you next see the Mercedes that night?”

  “I didn’t. It was gone by the time I parked.”

  “Let me see if I have this straight. You first saw the car from a distance of one city block, then you followed it from a distance of approximately two city blocks, and, finally, you saw it briefly as you passed by the motel lot?”

  “Yes.”

  “Now, you testified that the car you saw was a beige 1991 Mercedes-Benz, model 300 SEL, did you not?”

  “Yes.”

  “How do you know that?”

  Ortiz looked perplexed.

  “How do I know…?”

  “The model and year and color?”

  “That’s the car Mr. Stafford drives.”

  “Yes. But did you know the year and model and color on the night of the murder?”

  “I…The color was beige. I could see that.”