The Perfect Alibi

by Phillip Margolin

  Doug wiped his eyes with his sleeve. “I’m sorry.”

  “No need to apologize. I can’t imagine the stress you’re under. But you’ve got to take a deep breath and morph into lawyer mode. You’re a bright guy, and I’m going to need your help if I’m going to get you out of this mess.”

  Doug gave Robin a weak smile. “I’ll be okay.”

  “Good. Now, who were the detectives who arrested you? Do you know them?”

  Doug nodded. “It was Carrie Anders and Roger Dillon.”

  “How did they treat you?”

  “I was a little surprised. They were very considerate. I don’t think they had their heart in it.”

  “What makes you say that?”

  “They told me they were sorry they had to arrest me, and they waited until we were in the elevator to cuff me so no one in the office would know I was under arrest. Carrie even asked if the cuffs were too tight.”

  Robin frowned. Something was going on, and she made a mental note to talk to the detectives to find out what it was. “Did they tell you the basis for the arrest?” Robin asked.

  “Roger said he couldn’t tell me what the evidence was, but he did say that Rex Kellerman had gotten the indictment.”

  Doug looked down. “I don’t know what Rex has against me, but for some reason, he doesn’t like me.”

  “Rex treats everyone like crap,” Robin said.

  “This is something different. He goes out of his way to humiliate me. He alerted the press, and they were waiting outside my building, so everyone who watches the evening news would see me perp-walked to the police car.

  “Carrie told me she didn’t know that Rex had done that, and she pulled my coat over my face as soon as she saw the TV cameras.”

  “Did Carrie or Roger say anything else?” Robin asked.

  Doug nodded. “Yes, they did. They said that I should tell my lawyer to get the reports from the crime lab. Especially the one about the DNA evidence.”

  “Interesting.” Robin made a note. “They seemed to be bending over backward to be nice to you.”

  “That was my impression.”

  “Look, I know you know this, but I’m going to tell you that anything you say to me is confidential and warn you not to talk to anyone, including the other prisoners, Marsha, or anyone in law enforcement. You’re a lawyer and you’ve given this advice to your clients, but now you’re a defendant, and the pressure to unburden yourself—to try to convince others that you’re innocent—is going to be overwhelming.”

  Doug smiled. “Don’t worry, Robin. I’m upset, but I do have my wits about me.”

  Robin smiled back. “Good. Can you tell me about your relationship with Frank? I’ve known you two for a while, but I don’t know you very well.”

  Doug told Robin about his dismal academic record at West Virginia University, his attendance at the law school at Sheffield College in Arkansas, his infatuation with Oregon, and the depression he suffered when his attempts to get a job in Portland failed.

  “I’d hit rock bottom, and I was ready to pack it in and go back home. That’s why I was quietly getting drunk on a barstool in the Cascade Tavern when Frank sat down on the stool next to mine. There was a basketball game on the tube and we started talking about it.”

  Doug smiled as he remembered that first meeting. “Have you ever met someone and immediately hit it off? After a few minutes, I felt like I’d known Frank my whole life. When he found out I was a lawyer, he told me about opening his own firm and how tough it was to break through financially. But he said things were looking up and he was starting to get some decent clients.

  “I told him my tale of woe, and he told me that he had an extra office in his space and could use some help. I told him I wouldn’t be able to pay the rent. Frank said he’d hire me, pay me a small salary, and let me keep a percentage of what I brought in. I had nothing to lose, so I said I’d give it a go. Other than marrying my wives, it was the smartest move I’ve ever made.”

  Robin grinned. “Your story sounds like a love affair.”

  Doug laughed. “In a way, it has been. We’ve been there for each other at every step of the way for twenty-odd years.”

  “So why are you suspected of killing Frank?”

  Doug looked completely lost. “The only thing I can think of is that I don’t have an alibi.”

  “That can’t be all there is.”

  “How much do you know about my case?”

  “Other than that Frank was killed in his law office, not much.”

  “Then you don’t know that I have amnesia for the week of the murder.”

  “What do you mean?”

  “I remember going to Seattle to negotiate a settlement in a case, and I remember landing in Portland. I also have a vague memory of talking to Frank in his office about Blaine Hastings being free on bail. But that’s it until I was found by the police wandering around downtown about a week after Frank was killed.”

  “You can’t remember anything?”

  Doug shook his head. “Believe me, I’ve tried, but there’s nothing there.”

  Robin asked Doug to tell her everything he remembered after he was brought to the hospital. Doug told her that he’d remembered his name and recognized Marsha. His house seemed a little strange at first, but he felt comfortable there now. When he returned to his office, he’d studied his cases and recalled details. But he had not recovered any memories of the events surrounding Frank’s murder, with one exception: he thought he might have told Frank that Blaine Hastings had been released on bail.

  Robin made a note to talk to an expert on amnesia.

  “I think this is enough for now. You’ll be arraigned tomorrow. I’ll set a bail hearing then. I want you out of jail if that’s possible. Get me a list of character witnesses and anything else you think will help convince the judge to set bail. I’ll also get you a copy of the discovery. When you’ve studied it, call me and we’ll brainstorm.”

  “I told Marsha to write you a check for your retainer. How much will it be?”

  Robin told him, and he said he would be able to pay her.

  When they were finished discussing business, Robin reached across the table and laid her hand on top of Doug’s. “You have a very good reputation in the bar. Use your lawyer smarts. I want you thinking like an attorney, not a defendant. Got that?”

  “I do. And I appreciate the way you’re treating me.”

  Robin smiled. “I’m treating you the way I treat everyone who has been accused of a crime they didn’t commit.”

  CHAPTER THIRTY-SEVEN

  There was a big smile on Rex Kellerman’s face when he walked down the corridor toward the courtroom of the Honorable Sylvester Greenwood. What better revenge could he have on Marsha Armstrong than to send her husband to death row, where she could watch him languish for years?

  Kellerman made the smile disappear as soon as he spotted the reporters waiting outside the courtroom. Death cases should be serious business, and it would be unseemly to appear to be enjoying himself. Kellerman maneuvered his way through the crush while spouting innocuous answers to the shouted questions from the press. Then he walked down the aisle and through the low gate that separated the spectators from the trial participants.

  Robin Lockwood was conferring with her client at the defense counsel’s table, and Marsha was sitting behind them. Lockwood had called Rex to let him know she was representing Armstrong, but Kellerman had told the receptionist to say he was unavailable. He was still furious with Lockwood for humiliating him in the Henderson case, and he didn’t want to talk to her. But knowing she was Armstrong’s lawyer had thrilled him because it would give him an opportunity for revenge.

  The arraignment went quickly, as they usually did. Armstrong waived a reading of the charges and entered a not guilty plea. Lockwood filed constitutional objections to the death penalty, requests for discovery, and other motions. The judge set a date for a bail hearing and a tentative trial date. It was all over in twenty mi
nutes. Then the guards took Armstrong away, and Kellerman heard Marsha choke up when she told Doug she loved him.

  Kellerman left the courtroom quickly and headed for the elevator. As the doors started to close, a slender hand blocked them and Marsha Armstrong stepped into the car. There were tear tracks on her cheeks and she was flushed.

  “Why are you doing this?” she demanded.

  “Doing what, Marsha?” Kellerman asked innocently.

  “Do you hate me so much that you’d kill my husband to get back at me?”

  “I don’t hate you and I didn’t do anything. A grand jury heard the evidence against your husband and decided that there was enough of it to indict him for murder. He has a good lawyer. If he’s innocent, he’ll be acquitted.”

  “You know he didn’t kill Frank. You’re going after Doug to get back at me for walking out on you.”

  “Marsha, we’re two adults. We had a brief fling and you decided to go back to Douglas. That was your choice, and I don’t hold it against you.”

  Kellerman stepped out of the car, and the doors closed on Marsha. The prosecutor broke into a wide grin. What a lovely way to end his morning, Rex thought as he walked to the Multnomah County District Attorney’s Office.

  Dr. Margo Schatz was waiting for Kellerman in the reception area. Schatz had been a prosecution witness in several of Kellerman’s trials. The psychologist was in her early sixties. Her silver-gray hair fell to her shoulders and framed a pleasant oval face. Soft blue eyes, lips that were quick to smile, and an appealingly plump body gave her a grandmotherly appearance that played well with jurors.

  “I hope you haven’t been waiting long,” Kellerman said as they walked to his office.

  “I just got here.”

  Kellerman closed his office door and motioned Schatz into a seat across the desk from him. “Did you read my memo?” the prosecutor asked.

  “I did.”

  “Do you think Armstrong is faking amnesia?”

  “There’s no way I can answer that question without interviewing him and administering a series of tests.”

  “So, you can figure out if a defendant is faking amnesia?”

  “It’s possible. Crime-related amnesia is common in cases involving extreme violence. It’s not unusual for perpetrators to fake amnesia to obstruct a police investigation or reduce their responsibility. I’ve seen studies that posit that twenty percent of criminals who claim no recollection of their crimes are feigning their memory loss and other studies that argue that the percentage is higher. One study found that twenty-nine percent of all criminals sentenced to life imprisonment who claimed amnesia at their trials admitted they were faking.”

  “How could you figure out if Armstrong is faking?” Kellerman asked.

  “Faking amnesia has been linked to increased brain activity in the prefrontal cortex of the brain, and increased pupil dilation.”

  “Armstrong’s not going to submit to an MRI or CAT scan or whatever you’d use to see that stuff.”

  “Symptom validity testing, or SVT, can also be used as a tool to assess whether people are faking when they claim to have no recollection of crimes they’ve committed.”

  “How does that work?”

  “SVT asks defendants to answer a number of questions about the details of the crime with which they’re charged. In answering each question, they must choose between two equally plausible answers, one of which is correct and one which is incorrect. If the defendant really has amnesia, the results should be random. In other words, correct and incorrect answers should be selected approximately equally. If the performance is significantly below chance—the incorrect answer is chosen significantly more than the correct answer—this indicates deliberate avoidance of the correct answer. That means the defendant most likely has an intact memory of the crime and is faking his amnesia.”

  “So, we can trip up Armstrong if we can get him to take the test!” Kellerman said.

  “Not necessarily. Armstrong is a lawyer, so he probably has above-average intelligence and good research skills. If he researched how to fake amnesia, he probably researched the methods you could use to prove he was faking. If he’s read the studies, he would understand the rationale behind SVT and how to game the test by giving random answers.”

  “So, you’re saying that there’s no way we can figure out if he really has amnesia.”

  “Not if he’s faking and has done his homework.”

  CHAPTER THIRTY-EIGHT

  Robin went back to her office after Doug Armstrong’s arraignment and called Carrie Anders. Anders was reluctant to discuss the Armstrong case, but she finally agreed to talk to Robin that evening at the Log Cabin, a tavern located on a country road, a half mile from the entrance to a state park, where they were not likely to run into anyone who would know them.

  At five, Robin picked up some sushi and ate at her desk while working on a case she’d been neglecting. At eight, she turned out the lights. Thirty minutes after she left her office, Robin was sitting in a booth in the dimly lit interior of the Log Cabin.

  The meeting was supposed to take place at eight thirty. Robin checked her watch. It was nine. By nine fifteen, Robin decided that Anders was going to be a no-show. She was getting ready to leave when the detective walked in. It was hard for a woman as big as Anders to be incognito, but she was trying her best by wearing jeans, a quilted ski jacket, and a baseball cap that was pulled low on her forehead. Anders stopped in the entrance to adjust her eyes to the dim light. The tavern was only a quarter full, and most of the patrons were regulars who lined the stools at the bar. Anders scanned the rest of the room. Moments later, she was sitting across from Robin.

  “Thanks for coming,” Robin said.

  “I bet you thought I wouldn’t show.”

  “You didn’t seem crazy about talking to me.”

  “I’m not.”

  “Can I get you a beer as a thank-you?”

  “I’m not going to be here long enough to drink it. And before I talk to you, I need you to agree that this meeting never happened?”

  Robin nodded.

  “Why did you think I’d agree to meet?” Anders asked.

  “Doug told me how you and Roger treated him when you made the arrest. He also said you told him you wanted me to check into the DNA test the crime lab conducted. That struck me as a strange way to act if you were convinced Doug was a murderer.”

  “I’m not.”

  “Why?”

  “Can we agree that Rex Kellerman is an unscrupulous asshole?”

  “Definitely,” Robin said, using all her willpower to keep her facial muscles from forming a smile.

  Anders leaned forward and lowered her voice. “No one but Kellerman thinks your client murdered his partner, and no one can figure out why he’s so intent on convicting Armstrong. The firm’s receptionist left Nylander and Armstrong alone in the office on the evening of the murder—so he could have done it—but no one we talked to can come up with a single reason why your client would kill the person everyone says was his best friend in the whole world. So, there’s opportunity but no motive. And then there’s the DNA.”

  “What about it?”

  “They scraped a minuscule amount of blood from under Nylander’s fingernails. The lab couldn’t analyze it, because the sample was too small, so Kellerman used a lab I’ve never heard of to analyze it. The report he read to the grand jury concluded it was Armstrong’s blood. But the lab didn’t use a conventional test. They used a test I’ve never heard of that depends on algorithms.”

  “So, the DNA test might be flawed?”

  “I don’t know anything about the science. Suppressing the results is your job. I just thought you should know that the state’s case is flaky.”

  “Who do you have pegged for the killing?” Robin asked.

  “There’s a good chance this was a burglary gone bad. If it wasn’t, Blaine Hastings is the obvious choice, but we have no evidence that puts him at the scene of Nylander’s murder.”r />
  “So, there are no solid suspects?”

  “No. And it’s time for me to go.”

  “I can’t thank you enough for this, Carrie.”

  “Yeah, well, I’ve always thought of Armstrong as a pretty solid guy. If he’s guilty, I misjudged him. But this just doesn’t sit right with me.”

  Anders left and Robin waited fifteen minutes before going to her car. While she waited, she decided that if she was going to save Doug Armstrong, she had to find out everything she could about the test that had been used to conclude that his blood was under Frank Nylander’s nail.

  * * *

  Jeff was sitting on the couch, watching a football game, when Robin walked in. He smiled and used the remote to pause the game.

  “Hi, kid,” he said. “What kept you so late?”

  “Doug Armstrong’s case, and I need your help with something odd that’s popped up.”

  Jeff patted the sofa. “What do you want me to do?” he asked when Robin was seated next to him.

  “There’s plenty of evidence that Doug and Frank Nylander were alone in their law office around the time that the murder occurred, but Doug claims that he has amnesia for the evening of the murder and several days after, so he can’t tell me what happened that night.”

  “Do you believe him?”

  “I’m sure Rex Kellerman will claim he’s faking. Kellerman called me shortly after the arraignment and wanted Doug to take some tests he claimed would show if he really has amnesia.”

  “What did you tell him?”

  “What do you think?”

  Jeff laughed. “I hope you were diplomatic.”

  “My answer was completely in Latin.”

  “Good for you. So. Do you think Armstrong is faking?”

  “I don’t have the training to give an opinion, but he seems genuinely confused.”

  “So what’s this thing you need help with?”

  “Doug has injuries that could have come from a fight. One piece of evidence that suggests that the fight was with Nylander is a minute amount of blood that was found under Nylander’s fingernail. The blood sample is too small to be used in a conventional DNA test, so Kellerman submitted the sample to an independent lab that uses some kind of cutting-edge technology, and they concluded that the blood is Doug’s. I need you to find out what that lab did and brief me on how valid the test is. I want to know if I can knock out the DNA evidence pretrial by arguing that it’s not been deemed reliable in the relevant scientific community.”