Close Case (20 page)

Anderson shook his head, frustrated. “Given the things my wife was saying at the time, it was probably good for me to be gone for the night. No charges were filed, and she moved out a couple of weeks later.”

“Just to be clear, you were arrested for assaulting your wife, correct?”

“That was the accusation, but, no, I did not assault her.”

“And the police had been to your home several times prior to that over the course of the last year to investigate other domestic disturbances, correct?”

“Objection, your honor,” I said. “Ms. Lopez has already moved beyond any possible definition of relevance by inquiring about an arrest. This is simply harassment.”

“Goes to bias, your honor.”

“I’m wary, Ms. Lopez, but there’s no jury here. Mr. Anderson, I’d appreciate it if you’d continue to answer the questions, even though I may very well decide they’re irrelevant.”

Anderson nodded, and Lisa restated her question.

“One of the neighbors called the police a few times about arguments my wife and me were having. Let’s just say they were loud, and we’re better off separated. My wife made clear that everything was fine, and the police left. I guess the last time she really wanted me out. She told them I’d hit her, and, like I said, I got arrested.”

It was plausible. Oregon has a mandatory arrest law for domestic violence. Even if it’s a shaky case, the police are required to remove the aggressor from the home if there’s probable cause for a domestic assault.

Lisa marked a document as evidence, handing me a copy in the process. The caption read M
ARCY
W
ELLINGTON V
. P
ETER
A
NDERSON
, F
AMILY
A
BUSE
O
RDER OF
P
ROTECTION
.

“Could you please identify this document for the court, Mr. Anderson?”

“Why don’t you tell me what you want to call it?” So Anderson had a temper after all.

“This is a restraining order that your wife obtained against you after she moved out. Is that correct?”

“Yep.”

“You objected to it?”

“Of course I did. She made up a bunch of lies in the application. Made me sound like a wife beater or something.”

“And, despite your objections, the order was issued?”

“Her word against mine. I told the judge I didn’t care whether I saw her or not, I just wanted to clear my name. The judge said, ‘If you don’t care, then you won’t mind me issuing the order.’ And that was that.”

Again, it was plausible. No family court judge wants to be the one who denies a restraining order, then reads about a homicide two weeks later.

“So you’re aware that if you contact your wife in violation of that order, you would be arrested?”

“That’s the law as it was explained to me, yes.”

“No further questions, your honor.”

I saw where Lisa was going. She’d argue that Anderson saw the defendants on the news and fabricated the identifications to get in good with the bureau, just in case he was arrested down the road. It was farfetched even for Lisa.

I went straight to what mattered on rebuttal. “I noticed that Ms. Lopez cut you off earlier. You were trying to say something about the fact that the news report she showed you aired before Detective Johnson interviewed you. What were you trying to say?”

“That I never saw it. I was sleeping until right before the detective came up. Honestly?” Anderson looked at Judge Lesh. “I was hung over. Things haven’t been going so well with me lately, in case you haven’t figured that out already.”

Once Lisa and I had finished submitting our evidence, Judge Lesh announced he was ready to rule.

“I am denying the defense’s motion to suppress the witness Peter Anderson’s identification of the defendants. The procedures used by the police were standard and permissible. At its heart, the defense’s argument is that the witness’s memory was tainted by media coverage of the defendants’ arrest. Although the publication of the defendants’ photographs may raise colorable arguments about the source of the witness’s recollection, those will be for the jury to consider. Mr. Anderson, you’re excused.”

Ironically, my best hope of bolstering Anderson’s ID at trial would be to remind the jury that he was hung over and pathetic. Before he left, I thanked him again for coming in and assured him that I’d do my best to keep Lisa from questioning him about his wife again at trial.

“Now,” Lesh said, once Anderson was gone, “should we get down to what we really came for?”

Three hours later, the evidence was in. No real surprises, since I had insisted that Mike and Chuck disclose the entire truth about the night Corbett and Hanks were arrested. If we were going to win, I wanted it to be because we were right, not because the judge had a mistaken impression of the facts.

The tension between Mike and me was palpable. I tried to hide my discomfort with his tactics, knowing it would be the death knell of the confession if Lesh sensed it. Mike tried to conceal his disgust with my detailed questions, pretending he was at ease divulging every aspect of the investigation.

So out came the entire story. The lengthy interrogation, with Corbett held incommunicado, in cuffs, through its entirety. Lying to him in every possible way: about the nature of the investigation, the strength of the evidence, even the identity of the very prosecutor in the courtroom. The threat of the death penalty hung over his head. Corbett’s ambiguous reference to an attorney, ignored. His own apparent uncertainty about the events of that night, thanks to good old reliable crystal meth.

When Chuck got to the part about my comment to Hanks, I watched Lesh carefully. To the casual eye, he kept right on with his notes. To an eye paranoid about its holder’s professional reputation, however, he paused, just momentarily. Uh-oh.

When the lawyers were done, Lesh announced that he needed some time in chambers. Thirty minutes later, he emerged, legal pad still in hand.

“I’m ready to rule. First, let me address Mr. Braun’s motion to suppress both the statement and the—well, let’s call it what it was—the spitting, by defendant Hanks upon his arrest. By that time, Hanks was clearly in police custody. He had been Mirandized and had unambiguously asserted his right to counsel. As a result, the state was prohibited from deliberately eliciting any further information from him. However, I find that the state did in fact respect the defendant’s rights. Although the defendant’s remark to DDA Kincaid was in response to a statement by her, it was actually the defendant who initiated the entire exchange. It was the defendant who first broke the silence by inquiring as to Ms. Kincaid’s identity, in his own colorful words. Although Ms. Kincaid’s response was undoubtedly provocative, it was in fact responsive to the defendant’s question. Accordingly, I find that the defendant’s statement, including the conduct that accompanied it, to be lawfully obtained and admissible evidence.

“Now, with that said, let me turn to the signed confession and the oral statements of defendant Corbett, which Ms. Lopez has moved to suppress. Here, in combination with the conduct of the detectives, I view Ms. Kincaid’s comments in a subtly different light, and I’ll explain what I mean momentarily.”

I was already on the edge of my seat, but now my heart was racing.

“Let me be very clear here: I see this as an extremely close case. The law in this area is difficult to apply, but the critical question is whether this confession was obtained voluntarily. There is a great deal about this interrogation that troubles me. I myself was a prosecutor and am well aware that police officers have tools they use to loosen up a suspect. Nothing about that is unconstitutional per se. In fact, some would say the Supreme Court encourages a little trickiness. My problem here is that Detective Calabrese appears to have used not just one or some of these tools but every one he could think of. It’s as if he had an agenda when he went in that room, regardless of process and regardless of whether the defendant was in fact guilty.

“Let me explain the factors that tip the balance for me. First, I take judicial notice of the fact that this is a high-profile case. The victim was well known, and the media had already begun to cover the story. I imagine that creates pressure to get a confession. My second observation has to do with Ms. Kincaid’s behavior on the night of the arrest. I have had the pleasure of knowing Ms. Kincaid and seeing her work as a prosecutor in this courthouse for some time now. She has always been, and continues to be, a consummate professional.

“So I cannot help but notice that her conduct on the night of the arrest—your conduct, Ms. Kincaid, as it has been described by your own witnesses—was somewhat atypical. I say that not to embarrass you, Ms. Kincaid, or to condemn your supervision of this case. I say it because I have the utmost respect for you, and ordinarily your presence during the interrogation would probably have tipped the balance in favor of ruling for the state. But what I have heard only reinforces my impression that the government was willing to be extremely aggressive to get the evidence it needed in this case. That aggressiveness translated into police conduct that renders defendant Corbett’s confession—both the signed statement and his oral statements preceding it—inadmissible.”

I heard Mike grumble behind me and turned to find him storming from the courtroom. I could see that Chuck was torn. I looked to the courtroom door, signaling him to go after his partner.

“In light of my rulings, are there other motions I need to entertain?” Judge Lesh asked.

Both defense attorneys rose, but Lisa shot Lucas Braun a look that sat him right back down. “Yes, your honor. The defendants make a joint motion to dismiss count one of their joint indictment, the charge of murder. Without Mr. Corbett’s confession, there is insufficient evidence to proceed against either defendant.”

It was a standard request once evidence was suppressed, but I nevertheless found my voice shaking as I recited the remaining evidence for the court. As nervous as I had been about Lisa’s motion to suppress, I had expected in the end to win it. I thought the court would dress me down, warning me to keep a closer watch on my cops, but I didn’t think a judge would actually have the guts to kick a murder confession. And yet here I was, clinging to a single eyewitness and a couple of carpet fibers to avoid an outright dismissal.

When I was done, Lisa and Lucas each argued separately that the case I laid out amounted to coincidence, smoke and mirrors, and, in Lucas’s words, “a few circumstantial evidences.” Lesh, however, recognized how little it takes to proceed with charges, even as a case is falling apart.

“Based on the evidence proffered by the state, a reasonable jury could find the defendants guilty. Accordingly, I deny the motion to dismiss count one. The defendants are bound over for trial. Anything further?”

“No, your honor,” the lawyers said as one.

“Very good. Counsel, please remain during recess.” Once the court reporter started packing up her gear, and the sheriffs’ deputies had removed Corbett and Hanks from the courtroom, Lesh explained the request. “First, although I ruled for Corbett on the motion to suppress, nothing I heard today changes my very high opinion of Ms. Kincaid. I know the realities of investigative work. Second, although I ruled for the State on the motion to dismiss the charges, that’s only because the standard for getting in front of a jury is low. I think the prosecutor knows this isn’t a slam dunk. I encourage the three of you to sit down and work something out. Now you guys get out of here and have a good weekend. I need a beer.”

Lisa Lopez and Lucas Braun packed up their briefcases and walked out of Judge Lesh’s courtroom separately. Apparently there was no love lost between them.

I caught up to Lisa in the hall, prepared to suck it up and grovel for a plea. “OK, so you won the motion. My offer still stands.”

“You’re kidding, right? Your offer, if you can call it that, was made before Duncan took the death penalty off the table. And, more important, that was
before
I won the motion, when you still had a confession. You’ll have to do a hell of a lot better than a life sentence.”

“Calm down. I meant my offer to give your guy the deal. If Corbett will testify, I’ll agree to the possibility of parole after thirty. What more can you ask for? That’s the minimum sentence.”

“Yeah, the minimum for
aggravated
murder, which you can’t prove. You’re off your rocker, Kincaid. I’m looking for something more like Man Two with probation.”

Lisa was skipping quickly over a few levels of homicide, like Man One and garden-variety unaggravated Murder. “You know that’s unreasonable.”

“You know what’s unreasonable? I’ve got an innocent client, and you don’t seem to care about that for a second.”

She was truly unbelievable. “Lisa, you say everyone is innocent. In fact, the last time you said that, your so-called ‘innocent’ client tried to kill me.” Talk about a trump card.

“You know I’ve admitted I was wrong about that.” The aftermath of that case was, in fact, the closest Lisa and I had ever come to getting along. “But I mean it this time. Corbett and Hanks did not kill Percy Crenshaw.”

I shook my head. Some defense lawyers could pique my attention by insisting the police got the wrong guy, but Lisa wasn’t one of them. “Then why did your guy confess, Lisa? And why are you even talking about pleading someone out if he’s innocent?”

“He confessed because your thumper cop didn’t give him any choices. And the only reason he’s even willing to consider a plea is to avoid the risk—the very real risk—that innocent people can still get convicted.”

“This conversation isn’t getting us anywhere, Lisa.”

“Well, the only thing I’m willing to talk about is Man Two and probation.”

“We both know there’s always something to talk about.” I may have started at a thirty-year sentence for Agg Murder, but negotiations were part of the game.

“You can throw out all the numbers you want. You’re wasting your time.” She turned and started walking away.

“You don’t have a monopoly on the market, Lisa. I can always go to Braun.”