Alibi (33 page)

“This kid worth it?” asked Joe at last.

“I think so,” said David.

“You going this one alone?”

“No. Sara’s been here all day, but she left a little while ago to sort things out, clear her decks.”

“Jones?”

“Yeah, Jones. She hoped we might be able to hold on to both but . . .”

Joe nodded. “Not necessarily a bad thing,” he said.

“No argument there. Besides, Sawyer Jones doesn’t need a lawyer. If anything Katz will be crawling all over him to try to woo him as a witness for the prosecution.”

“Conflict of interest.”

“No matter which way you look at it.”

Mannix nodded again. “That kid creeps me out.”

“Well, as of tomorrow he will be officially off our books,” said David. “I’m going to need all the help I can get on this one, Joe—Sara, Arthur, Nora and . . .”

“I’m not here to help, David.”

“Could have fooled me.”

In the Commonwealth of Massachusetts all potential defendants charged with a crime are entitled to a speedy arraignment within forty-eight hours of their arrest. In most cases their first court appearance usually occurs within the first twenty-four hours—unless the offender is apprehended over the weekend, in which case he has to sit tight until Monday comes around. The arraignment itself is not intended as a forum to hear evidence, rather to establish the basics. The defendant and his lawyer appear before a judge who reads the charge and informs the defendant of his constitutional rights and the possible penalties involved. The judge then asks the defendant to enter a plea, of guilty or not guilty, before opening the floor to the two main opponents who, more often than not, come out fighting, this first round of fisticuffs dedicated to the issue of bail.

“Your Honor,” said Roger Katz now parading in front of the packed Suffolk County Superior Courtroom number seventeen. The atmosphere was taut with anticipation, the only disappointment so far coming in the form of a “no-show” from John Nagoshi and his son, Peter who, according to this morning’s news reports, was still recovering in Massachusetts General following an emergency nasal reconstruction. Seventeen was one of the smaller courtrooms in the Superior Court building at Three Pemberton Square, and David had no doubt Judge Isaac Stein had requested it specifically, so as to restrict the voyeurs, limit the press and maintain control of a case that had already triggered a national media frenzy.

“The Commonwealth vehemently opposes bail in this case for a number of reasons.” Katz raised his perfectly manicured hand to reveal a crisp white cuff, linked by gold monogrammed cuff links, under his charcoal Armani suit. “First of all, the violent nature of this crime, the brutal means by which Mr. Matheson bludgeoned and manually strangled . . .”

“Objection.” David was up. It was the fourth time he had got to his feet in the past ten minutes, which was extremely unusual in arraignments. “Mr. Matheson has not been convicted of any crime and therefore I would ask the Assistant District Attorney to use the word ‘alleged’ when referring to the crime of which my client has been so wrongly accused.”

Stein rolled his eyes. David could tell the rigid but fair judge was ruing the day he drew this legal short straw.

“He’s right, Mr. Katz. Watch your language—and get to the point.”

“Yes, Your Honor,” said Katz, stealing a quick sideways glance at defense counsel. “As I was about to say, the heinous nature of this crime—warranting the charge of first-degree murder, indicates the level of atrocity of which the defendant is capable.”

“Judge!” yelled David.

“I know, Mr. Cavanaugh, he did it again,” said Stein, waving David away. “Mr. Katz, I repeat, this defendant, like all others in this fine country, is innocent until proven guilty. Do I make myself clear?”

“Yes, Your Honor,” said Katz with a look of humility on his face, a look David knew hid the beginnings of a smile. The Kat was obviously determined to make sure his awestruck audience left this morning’s proceedings with no doubt who the real killer was, and if that meant getting a rap over the knuckles for the odd misuse of language, then so be it.

“Mr. Matheson openly admits lying to police in the course of this investigation,” Katz went on, “and has the monetary resources to flee the country. He has a large number of international ties with foreign associates, including a close relative in Australia.”

David was on his feet again. “Your Honor, my client’s Australian connection is not a foreign associate but his mother—who, I might add, is on her way to Boston as we speak. Mr. Matheson currently resides with his father at the family home in Brookline, and his father, respected merchant banker Jed Matheson, is also currently on his way back from a conference in South Africa. My client has no previous record, has been nothing but cooperative with police, and is more than willing to surrender his passport in the event that . . .”

“Bail is denied,” said Stein, his pale hazel eyes under a bushy canopy of pepper-colored brows now focused on David, obviously ready for further objection.

“Your Honor . . .” David began.

“No, I am sorry, Mr. Cavanaugh, but Mr. Katz is right. The very nature of the crime makes bail impossible—foreign associates or not.” This was, David knew, a consolatory dig at the ADA, but denial of bail was denial of bail, compensatory jibe or not.

“In regards to possible penalties,” Judge Stein began.

“Your Honor,” Katz interrupted, causing Stein, who had obviously had enough of the endless disruptions at this morning’s proceedings, to sit even taller in his seat and glare over his bifocals at the now advancing ADA. “Before we proceed to possible penalties, I would ask the court’s permission to readdress the nature of the charge.”

“I do not understand,” said Stein, his voice now raising a notch. “Murder one is as good as you get, Mr. Katz, so unless you want me to consider reducing the charge?”

“No, Your Honor. I was actually proposing an increase in the number of homicide charges—from one to two.”

And that did it. A terrified James said “No” as he grabbed David’s arm under the table. The gallery erupted in a gasp of disbelief. The media scribbled madly onto palm-held notebooks, the judge lifted his gavel and slammed it once, twice, three times, just as a horrified David finally realized exactly what the ADA was up to.

“Objection!”
he yelled, now rising to his feet, aware of his shuddering client beside him. “Your Honor, this is nothing short of preposterous. The court has no record of a second homicide.”

“Your Honor,” said Katz, “this is the first court appearance in regards to this case. Mr. Matheson was only arrested on Saturday. There has been no opportunity to table this charge earlier—a charge that required sensitivity from the Boston Police and further investigation by the District Attorney’s office.”

“Get to the point, Mr. Katz,” said an impatient Stein, waving David back to his seat.

Katz nodded, before taking two swift steps so as to align himself in front of the judge, dead center in the middle of the now captivated room.

“As you are aware, Your Honor, sometimes, in the interest of apprehending an offender, the police and the District Attorney’s office withhold certain details of a crime from the media and as a consequence from the greater public as a whole. This has been the case in regards to the Jessica Nagoshi homicide—or more specifically double homicide, considering the nature of the information withheld.”

Shit,
said David to himself. He knew Katz was determined to play this card—but had totally underestimated his intent.

“In short, Your Honor,” a jubilant Katz went on, “Jessica Nagoshi was pregnant at the time of her death, the unborn child inside her—a boy,” said Katz, obviously trying to leach as much pathos as possible from the now horrified crowd. “And when the defendant murdered the mother he destroyed the unborn child’s life as well. It was a double homicide—or, more specifically, a homicide and a feticide. There is no question.”

The air seemed to suck from the room as the crowd reacted in a simultaneous intake of breath, the resulting exhale releasing itself in sighs of disbelief.

“Your Honor,”
screamed David, who rose so quickly that he knocked his heavy wooden chair backward onto the parquetry floor behind him. “This is insane. There is no law that defines a standard approach to feticide in this state. There is no precedent . . .”

“On the contrary,” said Katz. “Look at the highly publicized Peterson case. Scott Peterson was convicted of double murder for killing his wife and his unborn child.” Katz was referring to the extremely high profile 2002 homicide of Laci Peterson and her unborn son, Connor. “The jury convicted Peterson of two counts of capital murder with ‘special circumstances,’ and sentenced Peterson to death.”

“That was in California,” objected David. “And the fetus was eight months old.”

“Massachusetts 1989,” Katz pressed on over the din. “
Commonwealth v. Lawrence.
A man was convicted for the murder of a sixteen-year-old girl and the involuntary manslaughter of her unborn child.”

“The fetus was twenty-seven weeks,” said David.

“
Commonwealth v. Cass
, 1984.” Katz was determined. “A Massachusetts court extended the vehicular homicide statute to include a viable fetus.”

“My point exactly,” countered David. “A thirteen-week-old fetus is a long way from being defined as
viable
. The law defines fetal viability as the period when an unborn child reaches a stage where it can survive outside of the mother’s body—and that’s at twenty-three weeks at best. There is no way a fetus of thirteen weeks would . . .”

“Mr. Cavanaugh is correct,” said Katz in rebuke. “But there are no specific laws preventing a state judiciary from considering a nonviable fetus as a human being as well.”

“This is
insane,
” yelled David.

“Enough!”
shouted Stein. The judge was losing control of his courtroom, a fact, David knew, that would have the respected adjudicator seething with anger.

“If prosecution and defense counsel cannot conduct themselves with the necessary decorum I shall have them both removed for contempt,” he said. “And if the gallery continues to interrupt these proceedings with verbal outbursts of impropriety I shall call for their removal as well.”

The crowd reacted immediately, obviously chastened by Stein’s heated rebuke, but determined not to lose their precious front row seats.

“Your Honor,” said Katz, his voice now lowering a notch. “I realize this is a new area but the laws of Massachusetts have always had a high regard for the potentiality of human life. Thirteen weeks is early, granted, but a Minnesota court recently ruled in the case of a twenty-seven-day-old embryo—a mere two inches in length—that the question of ‘viability’ is irrelevant to criminal liability under the statute. Instead, the court found that viability here requires only that the genetically human embryo be a living organism that is growing into a human being.

“In other words, Judge, are we to disregard Jessica Nagoshi’s unborn son just because he was murdered ten weeks before he became so-called ‘viable’? Are we to label John Nagoshi’s grandson as irrelevant just because his potential life was extinguished before he made it to the hallowed twenty-three weeks?” Katz shook his head then, before looking up again and delivering his final kick. “I think not. Because if we do, Your Honor, we are telling the people of this fine state that innocent victims like this unborn child are not really victims at all—indeed that they never existed. But this boy
did
exist, he
did
live and he should not be denied justice simply because he never got to see the sun.”

“Jesus!”
said David, not realizing he had uttered this last objection aloud.

“My chambers,” said Stein, rising quickly to his feet before flipping his billowing black robe over the back of the chair behind him.
“Now!”

David turned quickly to his ashen-faced client, instructing him to drink a glass of water and sit tight until he returned. He then followed Katz toward the corner of the courtroom, the Kat stepping aside to allow David to exit the room before him.

“After you, Counselor,” he smiled.

“Get fucked, Roger,” said David under his breath.

Minutes later they were standing in Judge Isaac Stein’s chambers, the elderly arbitrator now having removed his robe, which lay draped over a nearby dark green leather sofa.

“What the hell was that?” boomed Stein at last as he paced restlessly behind his black walnut desk. The judge was a tall man who needed no robe to assert his authority in the Superior Court or beyond.

“That, Judge,” David began, “was a case of the ADA showing a blatant disrespect for the general laws of Massachusetts and for the courtroom over which you preside. It was a reprehensible, pathetic attempt to incite media and public frenzy over a case that already runs the risk of being swayed by the powerful force that is public opinion.