The Last Innocent Man

by Phillip Margolin

  Fool them. That was an odd way to describe the function of the defense bar, but Monica felt it was an accurate description. When they had lived together, David often talked of himself, self-deprecatingly, as a magician whose job it was to make people see what was not there and to conceal what was there. Monica believed that Larry Stafford killed Darlene Hersch, and she was afraid that David would make her evidence disappear with a wave of his verbal wand.

  Monica opened the refrigerator and took out a container of orange juice. She put a kettle of water on the stove and tried to decide between cold cereal and frozen waffles. She settled for two pieces of whole-wheat toast.

  Judge Rosenthal had been chosen to preside at the trial, and David did not object, even though Rosenthal had issued the search warrant. Jury selection had taken longer than expected because of the difficulty in finding twelve Portland residents who had not formed an opinion about the “Policewoman Murder.” Monica and David had agreed on a jury shortly before noon on the second day of trial. They had concluded opening statements after lunch, and she had presented the testimony of Dr. Francis R. Beauchamp, the medical examiner, before Judge Rosenthal had called a halt to the proceedings for the day.

  The coffee was bitter and Monica grimaced as it went down, but she needed the caffeine. The toast was burned, too. Shit! She felt like smashing something. Not a good way to begin the most important day of the State’s case. She tried to calm down.

  Monica was always tense when she was in trial, but it was worse when she tried a case against David. She was a highly competitive woman who enjoyed winning. When Monica tried cases against other attorneys, she thought of them strictly in business terms. She could never think of David that way. Even after all these years she was still a little in love with him, and she knew it, so she overcompensated whenever they were matched against each other, and ended up pushing herself harder than she had to, out of fear that her feelings for him would influence her performance.

  There was an added reason for her anxiety this morning: Ortiz and his surprise witness. Last night, after court recessed, she had been making notes on Beauchamp’s testimony when Ortiz and Crosby came into her office. She was in a foul mood and wanted to leave, but the two policemen seemed excited.

  “Beauchamp was pretty convincing, I hear,” Crosby said, settling into a chair. Dr. Beauchamp was a frustrated actor with a knack for describing fatal wounds that made them appear more revolting than a color photograph ever could.

  “All Beauchamp established was that Darlene Hersch was struck in the abdomen and neck, then had her throat slit. He didn’t establish who did it,” Monica replied testily.

  “I don’t think pinning this on Stafford is going to be a problem anymore,” Ortiz said with a confident smile.

  “I’m glad to hear that, Bert. I thought we had problems.”

  Ortiz’s face clouded over. “Why do you say that?” he asked.

  “The case is flimsy. No offense, Bert, but all we have is your ID based on a few seconds’ observation after you had been struck on the head hard enough to require hospitalization. I’m beginning to think we may have moved too fast on this one.”

  “You can stop worrying, because I’ve got the man who is going to do it to Mr. Stafford.”

  Monica put her pen down and waited for Ortiz to continue. Ortiz had a tendency to be dramatic, and he paused to heighten the tension.

  “Remember Ron called you when Stafford was arraigned and asked you to oppose bail?”

  “Yes,” she said, turning toward Crosby. “You said that another officer was certain that Stafford had beaten up a prostitute and was going to try to find the police reports. I also recall being put off by you every time I’ve asked you about that report,” she added angrily. “I put myself on the line at the bail hearing because of your assurances.”

  “You have every right to be angry, Monica,” Crosby said sheepishly. “Tracking down our witness just took longer than we thought.”

  “You have a witness who saw Larry Stafford beat up a prostitute?”

  “Exactly,” Ortiz said.

  “Who is it?” Monica asked.

  “Cyrus Johnson.”

  “Cyrus-Jesus, Bert. I’m not going to vouch for the credibility of a known pimp and dope dealer.”

  “Who else would be able to testify about Stafford’s sex habits? It’s the fact that he’s a pimp that makes him credible.”

  “Bert, you’ve seen David operate. Do you know what he’d do to Johnson? The man sells dope to schoolchildren, for Christ’s sake.”

  “If you’re afraid of Nash, you shouldn’t be trying this case,” Ortiz said, suddenly very angry.

  Monica jumped to her feet. “Get out of my office,” she shouted. “I’m not going to take that shit.”

  Crosby put his hand on Ortiz’s elbow and Ortiz was immediately contrite.

  “I’m sorry. I didn’t mean…I think you’re a hell of a good lawyer. It’s just…well, the case means a lot to me and I want to make sure Stafford doesn’t get away.”

  Monica sat down and leaned back in her chair. The outburst had taken a lot out of her.

  “Apology accepted. The case is getting to me, too.”

  “Will you at least talk to Johnson and read this police report?” Crosby asked, placing the report in front of her.

  “Yeah. I didn’t really want to go home, anyway. But you two are going to stand me dinner. I’m starving.”

  The interview with Johnson created more problems than it solved. The man was smooth, and she could not determine if he was telling the truth. True, the story he told her was the same story he had told the police two years ago, but he had reason to lie to the police then, and he was in trouble, and obviously anxious to deal now. Monica wanted to convict Stafford, but she would not put on testimony she believed might be perjured.

  Even if the story was true, she did not know if she could get Johnson’s testimony into evidence. Johnson would be testifying that Stafford had committed a prior criminal act, and the rules of evidence forbade the introduction of that type of evidence, with only a few narrowly defined exceptions. Monica was not convinced that Johnson’s evidence fell under any of them. David was an expert on the rules of evidence, and she would have to research the question of admissibility thoroughly, because she knew how hard David would fight when he learned about Johnson.

  Monica finished combing her hair and put on her coat. Her key witnesses, Grimes and Ortiz, were scheduled to testify today. If they survived David’s cross-examination, she might not have to put on Johnson.

  “And what happened then, Mr. Grimes?” Monica asked. The motel clerk had just taken the stand and had been preceded by several laboratory technicians, a supervisor from the Motor Vehicles Division who established Stafford’s ownership of the Mercedes, and Detective Crosby, who testified about the search of Stafford’s house.

  “I gave her the key and she left. I went back to readin’, and the next thing I know, I hear these screams.”

  David leaned forward and began making notes about Grimes’s testimony on a yellow legal pad. Larry Stafford sat beside him at counsel table, looking businesslike in a conservative dark-blue three-piece suit. David had intentionally dressed more casually than his client to give the jury an initial visual impression that Stafford, not he, was the defense attorney.

  “Where were the screams coming from?” Monica asked. David heard Stafford shift nervously in his seat. He glanced at his client and caught him looking over his shoulder at the crowded courtroom. Stafford was looking for his wife, and David felt a slight pang of conscience that momentarily dampened his otherwise expansive mood. David knew where Jenny was and why she was late for court this morning. They had spent the night together, and she had returned home to change while he dressed for court.

  “Did you notice Jenny this morning?” Stafford whispered, as if reading David’s thoughts. There was an edge to Larry’s voice, and an air of tension around him that David had noticed since the start of the tr
ial. David expected a person on trial for murder to be nervous, but he sensed that there was something else eating at his client and that it concerned Jenny.

  “She’ll be along,” David whispered back. “And don’t look so down in the mouth. Take notes and concentrate on the witnesses, like I told you. I don’t want the jury to see your interest lag for one second.”

  “I couldn’t tell who was screamin’ at first,” Grimes continued, “so I went outside in the lot. The motel rooms are behind the office, and I had to go around the corner of the building. That’s when I seen this guy come bustin’ out of twenty-two.”

  “Did you get a good look at the person you saw running away?”

  “No, ma’am, I didn’t. He was runnin’ too fast and there’s a lot of shadow up there.”

  “Go on.”

  “Well, by now the screamin’ had stopped, and I looked up at twenty-two to see if anyone’d come after the one that run out. I seen the door was wide-open, but no one was comin’, so I started across the lot to see what’s what. Just then this car came from the rear parking lot. It was the same one the girl’d come in, but she wasn’t in it.”

  “Who did you see in that car?”

  “It was a man drivin’, but I didn’t get a clear look at him.”

  Monica stood up and walked across to the witness box. “Mr. Grimes, I hand you what has been marked as State’s exhibit number five, and I ask you if you recognize the car in that picture.”

  Grimes took the color photograph of Stafford’s Mercedes and studied it carefully.

  “I can’t say for sure, but it’s like the car that girl came in.”

  “Thank you,” Monica said, returning the exhibit to the bailiff. “After the car left the lot, what did you do?”

  “To tell the truth, I wasn’t too anxious to find out why there’d been all that screamin’, but I got to thinkin’ that someone might be hurt up there, so I went up to the room. That’s when I seen ’em.”

  “Who was that?”

  “Well, the lights were out, so I didn’t see her at first. The man was lyin’ with his head against the bed. He was bleedin’ and I thought he might be dead. Then I seen he was breathin’, so I went to use the phone. That’s when I saw her. You see a lot workin’ in the hotel business, but that was terrible. I ran outa there and called the cops from my office.”

  “And did the police come?”

  “A few minutes later. An ambulance came too.”

  “Thank you, Mr. Grimes. I have no further questions.”

  “Mr. Nash,” Judge Rosenthal said, nodding in David’s direction.

  David took a final look at the report Detective Crosby had made of his interview with Grimes, and Terry Conklin’s report of their interview. It was quiet in the courtroom, and David could hear a juror shifting in his seat and the nervous drumming of Stafford’s fingers on the wooden table.

  “Just a few questions, Mr. Grimes. As I understand your testimony, you did not get a good look at the man who was driving the Mercedes while Darlene Hersch was registering.”

  “That’s right.”

  “And you did not get a good look at him when he ran out of the room where the murder was committed?”

  Grimes nodded.

  “Did you get a look at him as he drove out of the parking lot, after the murder?”

  “Like I said, not a clear look.”

  “Did you see his hair well enough to describe it to the jury?”

  Monica had been going over her notes and listening to David’s examination with half an ear. Now she lowered her pen and concentrated. She could tell from David’s tone that something was up.

  “Yeah, I seen his hair,” Grimes answered. “Just for a second, but I seen it.”

  “Did the driver of the Mercedes have blond curly hair like Mr. Stafford?”

  Grimes leaned forward and studied Larry Stafford.

  “Could he turn around?” Grimes asked, turning toward the judge. “I only seen him from the back.”

  “That’s up to Mr. Nash,” Rosenthal replied.

  “Certainly,” David said, and Larry stood up and turned his back to the witness stand.

  “I don’t remember it lookin’ like that,” Grimes said decisively.

  “How would you describe the driver’s hair?”

  “Well, like I said, I only seen it for a second, but it looked brown-colored to me, and he had one of them cuts that came down a ways.”

  “Thank you. I have nothing further.”

  Monica reread the police report on Grimes rapidly. There was nothing about hair color in the report. She turned to the third page and saw why. The son of a bitch was going back on his statement to the police. This was bad, because Grimes had the appearance of an honest witness. His testimony about the hair color could be crucial in a close case.

  “Mr. Grimes,” Monica asked, “how well lit is the parking lot at the Raleigh?”

  Grimes tilted his head back and furrowed his brow. “Not too good over by the side near Tacoma Street, but there’s plenty of light from that McDonald’s. Bothers some of the customers sometimes.”

  Monica felt her stomach tighten. Damn, she’d just made it worse. She hated surprises in trial, and this was a bad one. She decided to back off on the lighting.

  “Was the murderer’s car moving fast when it left the lot?”

  “I’ll say. It just come whippin’ around that corner. He screeched his tires when he did that, and that’s why I looked over.”

  “So you just had a brief view of him?”

  “Right. Like I said, I wasn’t concentratin’ on him much. I was lookin’ up at the room.”

  “Do you remember being interviewed by Ronald Crosby, a Portland police detective, on the evening of the murder?”

  “Was that the fella that bought me coffee?”

  “I wouldn’t know, Mr. Grimes.”

  “Nice fella. He even sprung for a doughnut. Not as tight as some a them cops I know.”

  Someone laughed in the back of the courtroom, and the judge rapped his gavel. Monica waited for the jury’s attention to return to the witness stand.

  “You never told Detective Crosby that the man had long brown hair, did you?”

  “He never asked.”

  “But he did ask you if there was anything about the man you could remember, did he not?”

  “I don’t recollect the whole conversation.”

  “Do you remember saying that the man did not make much of an impression on you and Detective Crosby asking you if you remembered his hair, eyes, or anything else about him and your answering ‘No’?”

  “That sounds right. Only I was talkin’ about when the girl come in. He never asked about when the fella drove off.”

  Monica looked as if she were going to ask another question, then thought better of it.

  “Nothing further,” she said.

  Judge Rosenthal looked at David, who merely smiled and shook his head.

  “Nice going,” Larry whispered.

  “That’s what you pay me for. If I do as well with the next witness, we’ll be in good shape.”

  “Who’s the next witness?” Stafford asked David.

  “The State calls Bertram Ortiz,” Monica said.

  Direct examination was easy for Ortiz. The questions were almost identical to the direct examination during the bail hearing, and he had gone over his answers with Monica several times. First he described the stakeout and the beige Mercedes. Then he recounted his surveillance during the drive to the motel. He told the hushed courtroom of his violent encounter with the man who had murdered Darlene Hersch, his reaction when he saw Larry Stafford in the courthouse corridor, and the results of the search at Stafford’s house. Then, as the jurors leaned forward, caught up in the tension of the moment, Ortiz turned toward the defense table and pointed his finger at the defendant. Direct examination was over, and Monica nodded to David.

  Ortiz turned toward the defense table and waited for cross-examination to begin. His hand had
been steady, and there had been no tremor in his voice when he identified Larry Stafford, because he had learned from dozens of experiences on the witness stand to control his nerves, but the fear of what David might do to him was there.

  David did not rush his questions. He smiled at Ortiz and leaned back in his chair. He wanted Ortiz to wait, and he wanted to build on the tension that already permeated the courtroom.

  “Officer Ortiz,” he asked finally, “what day was Darlene Hersch killed?”

  “June sixteenth,” Ortiz answered tersely. He was determined to answer only what he was asked and to volunteer nothing. The less he said, the less information Nash would have to work with.

  “Thank you,” David said politely. “And when did you see Mr. Stafford in the courthouse hallway?”

  “Early September.”

  “Some three months after the murder?”

  “Yes.”

  David stood up and walked to an easel that the clerk had placed between the witness stand and the jury box. David flipped the cover page from a large drawing pad over the top of the easel and revealed the diagram of the motel room that Ortiz had drawn at the bail hearing.

  “During a prior hearing in this case, I asked you to draw this sketch and to indicate your position and the killer’s position at the moment you saw his face, did I not?”

  “Yes.”

  “And is this an accurate representation of those positions?”

  Ortiz studied the drawing for a moment, then nodded.

  “I believe at the hearing you stated that, at the moment you saw the killer’s face, his left arm and leg were inside the room a bit and his body was at a slight angle, with the right arm and leg outside the door?”

  “Yes.”

  “Good. Now, you were struck immediately upon entering the motel room, were you not?”

  “Yes.”

  “The lights in the room were out?”

  “Yes.”

  “You fell, twisted, and your head struck the bed?”