Detective (65 page)

"Sergeant Ainslie," Montesino
began, ''will you tell us, please,
how you were first involved with
inquiries into the deaths of Gustav
and Eleanor Ernst."

Ainslie, tired and strained,
breathed deeply, summoning strength
for this personal ordeal.

Since last week, after learning
conclusively first of Cynthia
Ernst's concealment of Patrick
Jensen's guilt of a double murder,
then that Cynthia had arranged her
own parents' murders Malcolm Ainslie
had accomplished what was required
of him in the way of duty, though at
times he moved more like a robot.
Certain things, he realized, he had
to do himself; today's testimony was
one, so were other initiatives and
responsibilities. But for the first
time in years he wished desperately
that he could walk away and have
someone else take over.

Through the few preceding days so
packed with action and
disclosures his mind had been in
turmoil. Last Fri

DETECTIVE 549

day night, when all the substance of
the investigation came together,
sadness had overwhelmed him. And on
that occasion and so many others,
central in his thoughts was
Cynthia Cynthia, whose passion he
had once welcomed and shared; whose
competence he had so often admired;
whose integrity he used to believe
in. Then, more recently, there was
the Cynthia he had desperately
pitied after learning of her
childhood abuse, and of her child
having been snatched away before she
even saw it.

True, there had been forewarnings.
Malcolm recalled the sense of
foreboding that had touched him a
month ago in the temporary office
where he instructed Ruby Bowe to
search through the boxes retrieved
from the Ernst house after the
murders. By then they knew for sure
that Doil had not killed Gustav and
Eleanor Ernst, and that was when
Cynthia's possible involvement had
fleetingly crossed his mind. He had
kept the thought to himself,
scarcely believing it possible, then
dismissed it. Now it was back, and
it was real.

What must he do now? Of course, he
had no choice. Despite all of his
pity for Cynthia, his compassion for
her suffering, and even
understanding the hatred she had
felt toward her parents, he could
never, ever, condone their murder;
and what he had to do as at this
moment he would do, though with pain
and sorrow.

There was one thing, though amid
all the conflicts and emotions that
he knew for sure.

A year and a half ago, at a time of
great personal distress that
Malcolm's work in Homicide had
caused him, Karen had asked him,
"Oh, sweetheart, how much more can
you take?" And he had answered, "Not
too many like tonight."

That answer had been an
equivocation, and both knew it. Now
he had another, different answer,
and he would

550 Arthur Halley

tell Karen before the ending of this
day. It was, Dearest, I've had
enough. This will be the last.

But for the moment Ainslie focused
on answering Adele Montesino's
question: Will you tell us, please,
how you were first involved . . .

"I was in charge of a task force
investigating a series of apparent
serial killings."

"And did the Ernsts appear to be
victims of the same serial killer?''

"Initially, yes."

"And later?"

''Serious doubts arose."

"Will you explain those doubts?''

"Those of us investigating the
case began to think that whoever
killed the Ernsts had tried to make
their deaths appear to be one more
killing in the series we were inves-
tigating, though in the end it
didn't work."

"A moment ago, Sergeant, you
referred to 'those of us
investigating the case.' Isn't it
true that you, initially, were the
only detective who believed the
Ernst murders were not serial
killings?"

"Yes, ma'am."

"I didn't want you to get away
with too much modesty." Montesino
smiled, and some of the jurors with
her.

"Is it also true, Sergeant
Ainslie, that a pre-execution
interview you had with Elroy Doll,
an admitted serial killer, suggested
that the Ernst murders were not
serial killings, and that afterward
you followed an investigative trail
that caused you to decide Cynthia
Ernst had planned them and retained
a paid killer?"

Ainslie was shocked. "Well, that's
passing over an awful lot of "

DETECTIVE 551

"Sergeant!" Montesino cut him off.
"Please answer my question with a
simple yes or no. I think you heard
it, but if you wish, the
stenographer can read it back.''

He shook his head. "I heard it."

"And the answer?"

Ainslie said uncomfortably, "Yes."

He knew the question was flagrantly
leading; it skirted facts, and was
unfair to the accused. At a regular
trial, defense counsel would have
leapt up with an objection, which
any judge would have sustained. But
at a grand jury hearing there could
be no objections because no defense
counsel was allowed, or a defendant,
either. In fact, so far as anyone
knew, the accused Cynthia Ernst was
entirely unaware of what was taking
place.

Something else: In front of grand
juries, prosecutors presented as
much or as little evidence as they
chose, usually disclosing the least
amount they had to. They also used
devices as Montesino was clearly
doing to speed things along when
they were confident of getting an
indictment anyway.

Ainslie, who had testified before
other grand juries, increasingly
disliked the experience and knew
that many more police officers felt
the same way, believing the grand
jury system was one-sided and
contrary to evenhanded justice.

As a scholar with wide interests,
Ainslie knew the system's
history that grand juries originated
in medieval England around the year
1200, when such juries accused those
suspected of crimes and then tried
them. During succeeding years the
two functions were separated, and
grand juries became "inquisitorial
and accusatorial" only. Britain,
after more than seven centuries,
abolished grand juries in 1933,

552 Arthur Halley

believing them incongruous in modern
law. The United States retained
them, though criticisms made it
likely that eventually perhaps in
the century soon to come the British
example would be followed.

A problem with American grand
juries was their secrecy, which
permitted inconsistencies and barred
even local supervision to a point
where one legal critic described a
grand jury as "a body of
semi-informed laymen exempt from
technical rules."

Some states had largely eliminated
grand juries Pennsylvania and
Oklahoma were examples; a few states
nowadays allowed defendants and
defense attorneys to be present.
Only thirteen states required a
grand jury indictment for all felony
prosecutions; thirty-five did not.
Several states advised jurors
against accepting hearsay evidence;
two examples were New York and
Mississippi. Others allowed it,
including Florida, which permitted
hearsay evidence if given by an
investigator. The list of in-
consistencies and inevitable
injustices was complex and long.

Some United States lawyers felt
that grand jury procedures were
still disconcertingly close to the
Salem witch trials of 1692 though
usually not prosecutors.

Even with Adele Montesino's
shortcuts, a succession of witnesses
and questioning continued for two
hours. Malcolm Ainslie, after nearly
an hour on the stand, had been
dismissed and sent from the room,
though instructed to stand by
because his testimony would be
needed again. He was not allowed to
hear other witnesses; no one other
than jurors or court of ficials ever
attended a full grand jury per-
formance.

For the principal murder-one
accusation, the subject of

DETECTIVE 553

motive Cynthia's lifelong hatred of
her parents was addressed by
Detective Ruby Bowe, who, smartly
attired in a beige suit, was
responsive to questions, and
articulate.

Bowe described her discovery of
Eleanor Ernst's secret diaries,
though Adele Montesino's questioning
stopped before reaching Cynthia's
pregnancy. Instead, at the prompting
of Montesino, who had clearly
familiarized herself with the
diaries' clarified version, Bowe
jumped ahead, reading aloud the
diary entry that began, I've caught
Cynthia looking at us sometimes. I
believe a fierce hatred for us both
is there, and concluded, Sometimes I
think she's planning something for
us, some kind of revenge, and I'm
afraid. Cynthia is very clever, more
clever than us both.

Bowe had expected the questioning
would return to Cynthia's pregnancy
and childbearing, but Montesino con-
cluded, "Thank you, Detective. That
is all."

Afterward, when Ruby Bowe discussed
the omission with Ainslie, he said
wryly, "Bringing out the pregnancy
by her father might have created too
much sympathy for Cynthia. If you're
a prosecutor you can't let that
happen.''

Setting the stage for the tape
recording, the state attorney called
as a witness Julio Verona, the
Police Department's ID chief. After
establishing his qualifications,
Montesino proceeded. "I believe that
the recording this grand jury is
about to hear was subjected to tests
to establish that the voices on it
are indeed those of Cynthia Ernst
and Patrick Jensen. Is that
correct?"

"Yes, it is."

"Please describe the tests and your
conclusion."

"In our own police records we
already had recordings of
Commissioner Ernst when she was a
police officer, and of Mr. Jensen,
who was once questioned in
connection with another case. Those
were compared with the recording you
have just referred to." Verona
described the tech

554 Arthur Halley

nical tests on specialized acoustic
equipment, then concluded, "The two
voices are identical on both record-
ings."

"And now we'll play the recording
that is part of the evidence in this
case," Montesino told the grand
jury. "Please listen carefully,
though if there's anything you miss
and want to hear again, we can play
it as many times as you wish."

Julio Verona stayed to operate the
tape, using highquality sound
equipment. As the voices of Patrick
Jensen and Cynthia Ernst were
heard at first ordering their meal,
then in lowered tones discussing the
Colombian, Virgilio every grand
juror was visibly concentrating,
anxious not to miss a word. When
Cynthia was heard protesting after
Jensen told her Virgilio was the
wheelchair murderer Shut up! Don't
tell me that! I don't want to know a
male Hispanic juror proclaimed,
"Pues ya lo sabe." To which a young,
blond Caucasian woman added, "But
the bitch kept it to herself!"

Other jurors shushed the pair, and
another voice asked, "May we hear
that over again, please?"

"Certainly." The state attorney
nodded to Verona, who stopped the
tape, rewound it slightly, and
recommenced playing.

Then, as the recorded voices
continued two payments of two
hundred thousand dollars, one for
the Colombian, the same for Patrick;
Cynthia suggesting "odd features" to
make the deaths appear to be serial
killings murmurs, then exclamations
of disgust, anger, and resolve
surfaced among the jurors, one man
declaring as the recording stopped,
"Guilty as hell, an' I don't need to
hear no more!"

"I understand what you're saying,
sir, and I respect your feelings,"
Adele Montesino responded. "But
there are two

DETECTIVE 555

more indictments being sought here,
and I must ask your patience for a
little longer. By the way, I don't
know if anyone's noticed, but we
seem to have some air conditioning
again."

There was scattered applause and
some sighs, this time of relief.

Fairly quickly, a few gaps were
filled. An IRS inspector produced
Cynthia Ernst's subpoenaed tax
records, showing she had declared
and paid taxes on interest earned in
a Cayman Islands bank account, the
interest having resulted from
deposits stated to be a series of
gifts and therefore not
taxable exceeding five million
dollars. "I point out to you," the
inspector said at the end, removing
his bifocals, "that Ms. Ernst's
taxes are entirely in order."

"But the existence of the account,"
Montesino advised the grand jury,
"supports the statement you heard on
tape about Ms. Ernst's intention to
pay four hundred thousand dollars
for the murders of her parents."
Montesino did not mention the irony
that Cynthia's compliance with U.S.
tax laws had created evidence that
otherwise would have remained
concealed in the Caymans and been
off limits to any U.S. court.

Malcolm Ainslie was recalled. He
described the opening of Jensen's
safe-deposit box, which included the
tape recording the grand jury had
heard, as well as other items. One
of those was an airline ticket
counterfoil showing a round-trip
Miami~rand Cayman journey, by
Jensen, aboard Cayman Airways.

"What is the significance of that
flight?" Montesino asked.

"Two days ago, in the presence of
his attorney," Ainslie replied, "Mr.
Jensen told me that he and Cynthia
Ernst spent three days together in
the Caymans, during which they
planned the Ernst murders; also that
they traveled

556 Arthur Halley

there separately Miss Ernst on
American Airlines from Miami, using
the name Hilda Shawl"

"And did you verify that second
statement?"

"Yes. I went to American Airlines
headquarters in Miami, and, using
their computer records, they
confirmed there was a passenger with
the name Hilda Shaw on their flight
1029 to Grand Cayman that same day."