Outfoxed

by David Rosenfelt

  “Just some questions I need answers to,” I say. “When you were communicating with Denise in the days leading up to the escape, were you talking on the phone? I assumed you were, because you said cell phones are so prevalent.”

  “They are, but we were mostly texting.”

  “So the stuff about Petrone, about the danger, about how worried she was? Those were texts?”

  “Mostly. I can’t say for sure that it was all of it. We did talk on the phone some.”

  “What about the escape itself? Did you tell her you were about to do it in a text?”

  “Yes, I’m sure I did.”

  “Why did you text?”

  “Because there are listening devices all over jails, Andy. Nobody can hear a text.”

  “Can’t they intercept them somehow?”

  He smiles, remembering whom he is dealing with. “No, all texts are encrypted; they can’t be intercepted and read.”

  “Do you still have the phone with the texts on it?” I ask.

  “No, they took everything when I was arrested.”

  I leave the prison and head back home, calling Hike on the way. “Hike, I need you to get some things urgently.”

  “Hold on,” he says. “Let me get a pen.”

  This is apparently a larger task than one would imagine, because it takes about forty-five seconds. When he comes back, he says, “These things never write. And half of them leak; I got ink stains on three shirts last year. I have to wear a sweater over them.”

  “Hike, are you familiar with the concept of ‘urgently’?”

  “I’m ready,” he says. “Go ahead.”

  “I need Brian’s cell phone, the one they took from him when he was arrested. I also need Denise Atkins’s cell phone and personal computer.”

  “Okay, I’ll go right to Trell on this,” he says, uncharacteristically springing into action. “If he gives me any trouble, we’ll get a judge to authorize it.”

  “Perfect. Get back to me as soon as you can.” Hike is actually an outstanding attorney, for a pain in the ass.

  When I get home I brief Laurie on what is happening, and she has some more good news to give me. Cindy called, and her bosses are willing to give Tony Costa the use immunity we talked about.

  I call Costa on the number he gave me and tell him what the government is going to do. I expect some resistance, some hesitancy to follow through on our deal, but I get none. The chance to help nail Petrone is very appealing to him.

  Almost as appealing as it is to me.

  Besides being really smart, the upside to Hike is that he’s an equal opportunity pain in the ass. When he wants something from people, he doesn’t just ask for it. He chews on their ankle and tortures them until they beg him to take it, just to get rid of him. It’s a somewhat-less-than-endearing quality, but I’m okay with it when I’m the one sending him on the mission.

  In this case, Norman Trell was the unfortunate victim of Hike’s personality, and it took him little more than a day to cave. To get the bureaucracy to move on a weekend is no small task, but under pressure from Hike, Trell managed to secure and turn over Brian’s cell phone, as well as Denise’s computer and cell phone.

  “What do you want me to do with them?” Hike asks when he calls to tell me the good news.

  “Take them to Sam’s office. He’ll be waiting for you.”

  I had called Sam to tell him what was going on, and of the need to go over the devices as quickly and thoroughly as possible. He promised that he would, and we arrange to meet before court in the morning.

  My preparations for tomorrow’s court session are finished, and Sam is off doing his work, so I have some rare downtime. “You want to go out for dinner?” I ask Laurie.

  “I thought you’d never ask.”

  “Where do you want to go? Fancy as you like; money’s no object. You can even order an appetizer if you want.”

  “Thanks, Diamond Jim,” she says. “Let’s go to Charlie’s.”

  This is my kind of woman.

  On the way there, Laurie says, “We need to talk.”

  Uh-oh. I can’t remember ever enjoying a talk that I needed to have. “Hurry up and tell me,” I say. “It’s not safe for me to cringe and drive.”

  “Nothing to cringe about,” she says. “I just think I should go to be with Ricky. The investigating phase is about over, and I can tell from our conversations on the phone that he’s missing us. And I’m sure as hell missing him.”

  I nod. “So am I. It turns out that having a child is different than having a turtle.”

  She smiles. “That it is. And as great as Celia is, and as much as Ricky likes her, I just don’t want him to feel like we dumped him there.”

  “You think we should bring him home?” I ask.

  “Not yet, not when we’ve gone this far. There’s too much downside risk. Soon.”

  “Okay, I think you’re doing the right thing.”

  She smiles. “Good.”

  When we get to Charlie’s, Pete is sitting at our regular table. I’m not happy about that, but it could be worse. Vince could have been here also.

  I’d prefer to sit alone with Laurie at a different table, but she lights up when she sees Pete and drags me over there. “Can we join you?” Laurie asks.

  Pete looks at me, then says to her, “Just you? Or F. Lee Shithead as well?”

  She laughs. “Both of us.” And she sits down, not waiting for an answer. I sit down as well.

  “Pete’s upset because I made him look like a blithering idiot on the stand. Actually, that’s not accurate. I merely brought out the fact that he’s a blithering idiot.”

  “I wiped the floor with you,” he says.

  Neither of us are telling the truth, so we move past it quickly enough. The presence of Laurie and beer are more than enough to take us both out of our bad moods. Before long we’re actually having a good time.

  As we’re getting the check, or more accurately, as I’m getting the check, Pete says, “So, you going to throw yourself on the mercy of the court tomorrow?”

  “Actually, I’m going to do something you’ve been trying to do for years, without any success. And I don’t mean look presentable and not sound like an idiot.”

  “What might that be?” he asks, ignoring the insults.

  “I’m going to get Dominic Petrone.”

  “You got life insurance?” he says, as I see Laurie wince slightly.

  “Of course. Marcus.”

  He nods. “Good enough.”

  As we’re getting up, he says, “Andy, wait a minute.”

  “What now?”

  “If you need help, I’m the first call you make. You got that?”

  “Got it.”

  “You’re an asshole, but you’re my friend,” he says.

  “This is a moment I’ll cherish,” I say.

  “Thank you, Pete, sincerely,” Laurie says. “He’s an asshole, but he’s my husband.”

  “I promised myself I wouldn’t cry,” I say, and head for the exit.

  I meet Sam in the office at 7:00 A.M. to hear what he found on the devices. He doesn’t look tired, which leads me to observe, “Doesn’t look like you stayed here all night.”

  “I didn’t. I just got here. It took much less time than I thought last night.”

  “Why is that?” I ask.

  “Because Denise Atkins’s computer was wiped clean.”

  This is horrible news. “What exactly does ‘wiped clean’ mean?”

  “Actually, I used the wrong term,” Sam says. “The applications and programs are still on it, but anything you would care about is gone. E-mails, surfing history, that kind of stuff … all gone.”

  “Obviously someone did that deliberately?”

  “No doubt about it,” he says. “I can’t tell when it was done, but maybe the cops did it?”

  I shake my head. “No chance; that would be destroying evidence. They would know I could nail them on it. Can it be retrieved?” I ask.


  “No doubt about that either. But I don’t have the material to do it. Send it off to the FBI lab, and they can get just about everything back. Also, her e-mails can be retrieved from her provider, but it would take time.”

  “So you learned nothing from it?” I ask, although just the fact that it was wiped is significant and enlightening in and of itself.

  “I learned a couple of things. The same program that was in Westman’s computer was in this one. They were inside her computer, watching every cybermove she made.”

  “Could they have erased all the material from where they were, without physically having it?”

  He nods. “Absolutely.”

  “What about the cell phones?” I ask.

  “Hers gave me nothing, everything was wiped in the same manner.”

  This surprises me. “So they were in her phone?”

  He shakes his head. “No, not likely at all. These were all Apple devices, so they were synched together. If you erase these things on the computer, especially e-mails and texts, you erase them from the phone as well.”

  This is not going well; the bad guys seem to stay one step ahead of me. “You said you learned a couple of things from her computer. What’s the other one?”

  He smiles. “I thought you’d never ask. Have you ever googled anything?”

  It’s an annoying question; I’m not a complete loser. “Of course I’ve googled,” I say. “I was captain of my high school googling team. Get to the point, please.”

  He nods. “Okay. You know when you’re typing in your search request, how Google automatically fills in the rest, anticipating what you’re looking for? Like if you typed in B-A-R, it would guess ‘Barack Obama.’”

  “Yes.”

  “Well, it knows what you’ve searched for in the past, so if you had recently searched for ‘bar stools,’ that might come up with your B-A-R instead of Obama.”

  “Right.”

  “Well, I tried some on her computer, just to see what would happen. “D-O-M brought up Dominic Petrone. When I tried the same thing on my computer, I got Domino’s Pizza. She obviously searched Petrone.”

  “I’m not surprised, but I doubt I can use it in court. Anything else?”

  “Yes. When I typed in S-T-E-V on my computer I got Steve Jobs. On hers I got Steven Thurmond.”

  “Wow,” I say, because what I’m thinking is, “Wow.” Steven Thurmond is the ex-con hacker who’s living like a king on other people’s money, and Denise was searching for information about him. Gerry Wright had called him the day before he was killed.

  Sam tells me that’s all he got from Denise’s computer and phone, so I ask, “What about Brian’s phone?”

  Another smile; the man loves doling out good news. “Pay dirt,” he says. “The text messages between Brian and Denise are all there. I printed them out for you.”

  He takes a piece of paper off the desk and hands it to me. “I think you’ll like it,” he says.

  I take a quick glance at the paper and see enough to confirm that Sam is right; I’m going to like it just fine.

  “Sam, you do nice work.”

  “I’m here to serve,” he says.

  “Good, because I need you to go see Jason Mathers. Show him everything you’ve learned … the fact that the sites are essentially invisible, how Westman’s computer and Denise’s computer were compromised, and show him what you found on Denise’s computer. I’m going to need him to testify to all of it. I’ll call and tell him you’re coming.”

  “Will do,” Sam says. I’m glad I took him to meet with Mathers the first time.

  I thank Sam and head for court, holding copies of the text transcripts. If I’m lucky, in a couple of hours they’re going to let me present my case.

  “I would suggest we do this in chambers, Your Honor.” Trell has complained to Hatchet that the defense has turned over nothing in the way of discovery, and has not previewed its case at all. His fear is that we will go off on a tangent and present specious and irrelevant testimony.

  The man has a point.

  “Very well,” says Hatchet, granting my request. “With a court reporter present.”

  Trell, Hatchet, and I go into his chambers, and Hatchet sits behind his desk, sighing at the annoyance that we attorneys represent. I think at some time in the future someone is going to dig up his backyard and find the bones of enough lawyers to fill an ABA convention.

  “Mr. Trell” is how he opens the discussion.

  “I’m sure Your Honor remembers that Mr. Carpenter did a newspaper interview a while back and announced he was going to prove an organized crime connection to these murders. He has to my knowledge never recanted that, nor has he provided the state or this court with any evidence to support that contention.”

  He takes a breath and continues. “If that is still Mr. Carpenter’s intention, I would ask that he give the court an offer of proof before he goes off on some wild tangent.”

  “Mr. Carpenter?”

  “I have no intention of going off on a wild tangent, Your Honor.”

  “How comforting,” Hatchet says. “Now that that’s out of the way, perhaps you can reply to Mr. Trell’s main point.”

  “With pleasure. When I gave that interview, I believed that what I was saying was accurate. Our investigation has continued, and I am now positive of it. And I am prepared to prove it.”

  “Then let’s have an offer of proof,” Trell says.

  I shake my head. “Your Honor, I need to develop the case as I see fit. The initial witnesses will be significant, but their absolute relevance will only be established as further witnesses testify. I would ask that you allow me to proceed subject to connection.”

  My “subject to connection” request means that Hatchet would allow it essentially on my promise that it will all connect. If it ultimately doesn’t, he can tell the jury to disregard all of it, and admonish me in their presence.

  That would be devastating to the case, but for me it wouldn’t change anything, since if I can’t prove my case, we’re going to lose anyway.

  “Your Honor,” I continue, “if I don’t fulfill my promise, you’re going to crucify me in front of the jury, and I’ll deserve it.”

  Trell seems concerned, fearful that he might be losing this. “Your Honor, we have seen not a single page of discovery from the defense.”

  “We’ve withheld nothing subject to discovery, Your Honor. No reports, no transcribed interviews, no science, nothing. And much has developed in the last thirty-six hours. But Mr. Trell is the last one who should be complaining about discovery failings.”

  “What does that mean?” Trell asks, as indignantly as he can.

  I take two sheets of paper from my briefcase and hand one to Hatchet and one to Trell. “Your Honor, these are transcribed texts taken from Mr. Atkins’s cell phone. On page two, you can see a text from Denise Atkins to her husband, expressing fear that Mr. Petrone was involved with Starlight, and that she was fearful of him.”

  “This is discoverable,” Hatchet says, meaning I should have turned it over to Trell.

  “Yes, it is, Your Honor. Except the phone was in the prosecution’s possession until yesterday, when we made a special request for it.”

  Trell looks stricken. “I knew nothing about this information, Your Honor.”

  “If you didn’t, you should have,” I say. “There would be no reason to impound the phone if your investigators were not going to look at it. You were in possession of Brady material, and we were entitled to it.” Brady material refers to exculpatory evidence that the prosecution must turn over according to the Supreme Court case, Brady v. Maryland.

  “Mr. Trell?” Hatchet says, in a prompting tone.

  “This doesn’t change our position at all.”

  “Well, it should,” Hachet says. “You came in here saying that the defense had made no connection at all between this case and organized crime, and you had that very connection in your possession all along.”

  “We were not
aware of it,” Trell says, sounding increasingly lame.

  “Well, you are now. Consider it an offer of proof. Mr. Carpenter, I will allow the witnesses subject to connection. But it is not a blank check. If I do not see progress and relevance, I will cut you off.”

  “As you should, Your Honor. But I must request a one-day continuance. I literally received these documents an hour ago, and need a little time to work them into my case. It is not the defense’s fault that we are in this disadvantageous position, and we need at least a day to adjust.”

  Hatchet would rather eat nails than grant continuances, but I think he wants to stick it to Trell, so he agrees.

  Trell doesn’t bother to object to Hatchet’s decision. He probably knows it’s final, and I think he just wants to get out of here as soon as possible. I truly don’t think he had any idea what these texts said, and I certainly don’t think he deliberately withheld them. I feel bad about nailing him like this, but I’ll get over it.

  We leave the chambers. Starting tomorrow, I’m going to present my case as I wish, based on my promise that I will conclusively demonstrate the relevance and firmly establish that connection.

  I wish I knew how the hell I am going to do that.

  Things have worked out well, at least geographically. I’m dropping Laurie off at Newark Airport for her flight to Wisconsin, and then heading over to the FBI offices in Newark for a meeting.

  I’m old enough to remember when you could take someone to the airport for a flight and actually go with them to the gate. Now you have to say goodbye at security; if they were remaking Casablanca today, they’d have some trouble shooting the final scene.

  Saying goodbye to Laurie is one of my least favorite things to do, but I understand and agree with her decision to go. “Give Ricky a hug and kiss for me,” I say.

  She nods. “I will. We’ll be back as soon as this is over. Take care of yourself, Andy.”